Marines and their family members who were poisoned by toxic water at Camp Lejeune apparently lost their chance to sue the government when a federal appeals court ruled Tuesday that a North Carolina statute doesn’t give them the time they needed to make their cases.
The 11th U.S. Circuit Court of Appeals ruled that North Carolina’s 10-year limit on suits, called a statute of repose, did not allow exceptions for latent diseases.
The Supreme Court in June dealt the first blow to Camp Lejeune contamination victims when it ruled that a lawsuit by residents in Asheville, N.C., where an electronics manufacturing plant polluted well water, couldn’t proceed because of the 10-year limit. The company that the residents sued hadn’t owned the plant for 24 years.
The Obama administration then asked the appeals court to dismiss a lawsuit over contaminated groundwater at the Marine Corps base in Jacksonville, N.C.
The appeals court found that a clarification passed unanimously by the state legislature and signed by Gov. Pat McCrory after the Supreme Court ruling could only apply to future claims.
It remanded the case back to a trial court, where a factual ruling could be made on the 10-year limit. But several people close to the case said it appeared that the victims had lost.
The time limit starts a 10-year clock running from the last culpable act of the defendant. In the case of the Camp Lejeune contamination, that would be 1985, when the last well was shut down. But in 1995 the contamination and its impact weren’t yet known.
A federal law starts a two-year lawsuit clock only after people discover they have been harmed. But the appeals court noted that there already was a court ruling saying that the federal law didn’t pre-empt the state law.
Sen. Kay Hagan, D-N.C., said in a statement after the ruling on Tuesday that the Obama administration was wrong to seek it.
“These men and women and their families have sacrificed on behalf of our nation, and it is unconscionable that the administration has tried to deny them justice after all they’ve been through,” Hagan said.
She said she would work to try to advance a bill she introduced to ensure that federal law takes precedent over state statute “so victims have another option to seek justice.”
Rep. G.K. Butterfield, D-N.C., introduced the measure in the House of Representatives.
The water at Camp Lejeune was contaminated for over three decades, starting in the 1950s.
Jerry Ensminger, a Marine veteran who fought for decades for victims of the contamination, said the federal government used a loophole in the law to dismiss the claims.
“The only reason they’re going to these extremes is because they know that if any of these cases ever make it into court . . . they would lose,” he said.
Ensminger’s daughter, Janey, was conceived at the base and died in 1985 of a rare form of leukemia at age 9. He said he did not know then that the water had been contaminated.
He did not file a lawsuit. He said he chose instead to urge Congress to pass legislation to help those who were still alive and suffering from the contamination.