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'A rocket docket': Judges want a speedy process to settle thousands of Camp Lejeune water cases

Michael Partain (left) and Jerry Ensminger, long-time activists for people harmed by Camp Lejeune water, speak outside the Raleigh, N.C. courthouse after a hearing in the huge federal case. Hundreds of thousands of plaintiffs are expected to join the case.
Jay Price
American Homefront
Michael Partain (left) and Jerry Ensminger, long-time activists for people harmed by Camp Lejeune water, speak outside the Raleigh, N.C. federal courthouse after a hearing. Hundreds of thousands of plaintiffs are expected to join the case.

People exposed to tainted water on the North Carolina Marine base from 1953 to 1987 can sue the government, but judges are hoping to keep the litigation from dragging on for years.

When Congress decided last year to allow people harmed by contaminated water on Camp Lejeune, N.C. to sue the government, it set the stage for what could become one of the largest mass torts in history.

Up to a million people - most of them former Marines and their families - may have been exposed to the water.

Now the handful of federal judges handling the case are trying to avoid getting swamped by lawsuits, while speeding settlements for plaintiffs and their families.

U.S. District Court Judge James Dever opened the first hearing with a question that caught the courtroom off guard. He asked the Department of Justice attorneys defending the government if they knew how long the Roman Empire had lasted.

No, came the answer.

Then he asked the same of the dozens of plaintiffs’ attorneys packing the courtroom benches.

No, they also said, some looking at each other trying to keep blank expressions.

Dever then gave a brief history lesson and said in his view the Roman Empire had lasted about 1900 years.

He said that's also how long it could take him and his three colleagues in the U.S. Eastern District of North Carolina to try the Camp Lejeune cases individually. The judge vowed that wouldn't happen.

Instead, he directed government defense attorneys to tell the Navy to start resolving claims administratively before they reach the court. The Marine Corps is part of the Department of the Navy, and Judge Dever said he was disappointed the Navy had not yet resolved a single case administratively.

He also told plaintiffs’ attorneys to choose leaders to work on the settlement process. And he told all involved that the focus needs to be on getting cases resolved quickly for people who were harmed.

The water on the huge Marine Corps base was tainted from 1953 to 1987, and even many of those who were exposed as children are no longer young.

Outside the courthouse afterwards, plaintiffs’ attorney Mikal Watts of San Antonio said the judge’s message was clear.

“It’s going to be a rocket docket,” he said, “which is what it needs to do, because our clients, because the exposure was so long ago, are up there in age.”

“They can’t wait around for lawyers to dicker around for years and years and years," Watts said.

Judge Dever’s show of control was also a signal that the judges plan to steer the case with a firm hand, rather than simply preside as it plays out.

New York University law professor Arthur R. Miller has studied and written about how courts handle mass cases. He said “managerial judging,” as it's called, has been on the rise since the 1960s.

"There just came to be a realization that life was not two cars colliding anymore,” he said. “It wasn't me punching you in the nose or breaching a landlord-tenant (agreement),” he said.

“The federal courts were being hit by mass phenomena, mass anti-trust cases, mass securities frauds, mass product defects. And they started to work very, very hard on figuring out how to do things on an aggregated basis.”

He said that required a different approach from judges.

“The role of a judge, particularly a federal judge, has slowly transformed from the historic concept of the judge as an umpire to the judge as a manager,” he said.

Miller called that the most significant transformation in judging in his lifetime, and he said ever-larger cases like those involving asbestos and opioids made it essential.

“The historic rule is, of course, you get to trial and you adjudicate," he said. "Well, you can't adjudicate 100,000 cases. You just can’t."

A mass approach can save years of legal wrangling and remove the risks for all involved of going to trial. But there are tradeoffs for that speed and efficiency.

“It really undermines the concept of the individual's right to a day in court,” Miller said. “These people will never get a jury trial, they will never be recognized as individuals. They will not have a formal day in court.”

And a standardized approach to settlement amounts is likely to leave some unhappy with what they get.

Judge Dever cited a model for the Lejeune cases: The settlement for about 10,000 rescue and cleanup workers who got sick after the 9/11 attack on the World Trade Center.

In that situation, the differences between individual cases were complicated. Plaintiffs varied in age and had different medical histories. Some were smokers, some were not. Some worked at the World Trade Center site for only a day, others for months. And they alleged more than 300 health issues.

“It would have been a very, very complex case,” said Aaron Twerski, a Brooklyn Law School professor, who was a special master appointed to help run the case. ""Nobody at the beginning had an idea of the severity of the injuries."

So the judge, Alvin K. Hellerstein of the U.S. District Court of the Southern District of New York, ordered the creation of a database with detailed information about each claim.

"It turned out that about about 75 percent did not have major injuries,” Twerski said. “Once we were able to get a handle on the severity, we knew that the case would settle.”

In part because of that — and some other managerial judging — Hellerstein and his team were able to streamline the settlement process.

“Ultimately, I think everything fell aside except the severity of the injuries," Twerski said.

The judges in the Lejeune case have ordered the creation of a similar database.

One name in it will be Michael Partain. He’s a prominent activist in the case and attended the hearing.

Partain lived on Camp Lejeune as a child in the 1960s and later developed male breast cancer, which is rare, but significantly more common among those exposed to Lejeune water.

He said he is particularly encouraged by the judge’s focus on moving quickly and focusing on those harmed. He's also happy, after years of pushing, to see the case finally reach a court.

“Walking in here today, 16 years after I got involved in this issue, was a welcome beginning,” he said. “A beginning of the end.”

But just a beginning. It took about six years for the 9/11 settlements to be finalized. While the Camp Lejeune case is in some ways simpler, and the court may be off to a faster start, it's also potentially much larger. More than 65,000 people already have filed claims with the Navy, with many more expected. The Navy has a few months to resolve each case before the applicant can file suit.

This story was produced by the American Homefront Project, a public media collaboration that reports on American military life and veterans.

Military and Veterans Affairs Reporter, North Carolina Public Radio - WUNC
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