Ex-Camp Lejeune resident’s cancer claims can proceed

By PAUL THARP, Staff Writer

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A lawsuit brought by a woman who was one of perhaps a half-million people exposed to cancer-causing pollutants and contaminants in drinking and bathwater at Camp Lejeune has withstood a salvo of dismissal motions filed by the government.

But now a new motion is pending.

The plaintiff, Laura J. Jones of Iowa, lived with her husband, a marine, at Camp Lejeune from 1980 to 1983.

In 2003 Jones was diagnosed with non-Hodgkin’s lymphoma. She didn’t learn about problems with Camp Lejeune’s water supply until 2005.

Jones brought suit against the United States under the Federal Tort Claims Act, alleging that pollutants and contaminants in the water supply at Camp Lejeune caused her cancer.

The government moved to dismiss the suit on the basis that the U.S. District Court for the Eastern District of North Carolina lacked subject-matter jurisdiction. The government alleged Jones failed to bring her case within 10 years of the last act or omission by a government agent that would have given rise to her claim. Jones would have to have sued the United States in 1993, the government argued, or 10 years before her cancer developed.

Even though Jones sued in federal court, the act requires the court to apply the substantive law of the state in which the injury occurred. “The FTCA only allows claims where a private person in like circumstances would be subject to liability according to the substantive law of the state where the act or omission in question occurred,” U.S. District Court Judge Terrence W. Boyle wrote in his Nov. 9 order in Jones v. United States (Lawyers Weekly No. 10-02-1129, 12 pp.).

Judge Boyle issued the order after the government moved to dismiss Jones’ complaint on the grounds that it was barred by N.C.’s 10-year statute of repose under G.S. § 1-52(16). That statute provides “that no cause of action shall accrue more than 10 years from the last act or omission of the defendant giving rise to the cause of action.”

The government argued that G.S. § 1-52(16) bars all tort actions filed more than 10 years after a defendant’s alleged culpable conduct, even if the harm to the plaintiff did not manifest until after the 10 years had passed.

Judge Boyle disagreed. He wrote that “local courts have consistently held that North Carolina’s statutes of repose do not apply to latent diseases.”

“In accordance with the legislative history, case law, and North Carolina public policy,” Boyle found that the state legislature did not intend for the statute-of-repose clause in G.S. § 1-52(16) to refer to latent diseases.

Latent diseases are governed instead by the statute of limitations in G.S. § 1-52(16), “which gives plaintiffs three years to file suit from the date upon which they should have reasonably discovered the existence and cause of their illnesses,” Boyle wrote.

Since Jones brought suit within three years of reasonably discovering the existence and cause of her illness, her suit was allowed to proceed.

Boyle wrote that the court could not “fathom a law that would require hundreds of thousands of plaintiffs to bring their claims before they even had opportunity to know they were harmed.” He noted that the Senate Veterans Affairs Committee “believed that over 500,000 marines and their families were exposed to toxic substances in Camp Lejeune’s water between the 1950s and 1987.”

 Move for reconsideration

Boyle wrote in his order that cancer “and other toxin-induced diseases often do not manifest” until a decade or more after exposure. “To summarily bar such claims from entering the court house would be a profound miscarriage of justice.”

Boyle found that interpreting G.S. § 1-52(16)’s statute of repose to apply to latent diseases “would likely render the statute unconstitutional” under the “open courts” provision of Art. I, § 18 of the N.C. Constitution.

The N.C. Supreme Court has found that a statute of repose may be unconstitutional under the N.C. Constitution “if it establishes a time period that is so short that it would effectively abolish all potential claims,” Boyle wrote.

To apply the statute of repose as the government advocated in Jones, he added, “would bar all potential claims from the over 500,000 marines and their families affected … and would bar the overwhelming majority of claims involving any cancer.”

The United States filed motions for reconsideration of its motion to dismiss on Nov. 23 and Nov. 26, arguing that the court failed “to employ fundamental rules of statutory construction and … seek required input from interested parties.”

The government alleged that Boyle’s consideration extrinsic sources such as state public policy, legislative history and the plain language of other statutes was inappropriate “unless the language in the statute is ambiguous.”

The language of G.S. § 1-52(16), it argued, is not ambiguous, and Boyle’s determination “that the statute was ambiguous without reference to the statute’s language and context [was] a clear error of law.”

The government urged the court to vacate its ruling and grant its motion to dismiss for lack of subject-matter jurisdiction. Jones’ attorney could not be reached for comment for this story. Attorneys for the United States did not respond to requests for comment by press time.

 OPINION BRIEF

Case name: Jones v. USA

Court: U.S. District Court for the Eastern District of North Carolina (Southern Division)

Judges: Judge Terrence W. Boyle

Date: Nov. 9, 2010

Plaintiff-appellee’s attorney: Joseph L. Anderson of Anderson Pangia & Associates (Washington, D.C. and Winston-Salem)

Defendant-appellant’s attorney: John A. Bain, Adam M. Dinnell, Margaret J. Mahoney and Kathryn G. Naegeli, U.S. Department of Justice (Washington, D.C.)

Issue: Did the North Carolina legislature intend the statute of repose clause in G.S. § 1-52(16) to refer to latent diseases?

Holding: No, based on the statute’s legislative history, case law and the state’s public policy, G.S. § 1-52(16)’s statute of repose has an exception for latent diseases.

Opinion digest: See Page 15