March 2024 Case Status Update Camp Lejeune Water Contamination Lawsuit Filed By Lawyers 

https://www.courtlistener.com/docket/67266149/148/camp-lejeune-water-litigation-v-united-states/

Camp Lejeune Water Litigation v. United States

Status Report — Document #148

District Court, E.D. North Carolina

Docket Number: 7:23-cv-008

Citation: Camp Lejeune Water Litigation v. United States, 7:23-cv-00897, (E.D.N.C. Feb 27, 2024) ECF No. 148

Date Filed: February 27th, 2024, 6:13 p.m. EST

Uploaded: February 27th, 2024

Description

STATUS REPORT Joint Status Report by Camp Lejeune Water Litigation, Plaintiff (Bell, James) (Entered: 02/27/2024)

PDF

TEXT

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

SOUTHERN DIVISION

Case No. 7:23-cv-897

IN RE: )

)

CAMP LEJEUNE WATER LITIGATION ) JOINT STATUS REPORT

)

This Document Relates To: )

ALL CASES )

)

The Plaintiffs’ Leadership Group (the “PLG”), together with the Defendant United States

of America (“Defendant” or the “United States”) (collectively, the “Parties”), jointly file this Joint

Status Report pursuant to the Court’s Minute Entry of February 7, 2024. [D.E. 134]. The matters

required to be addressed in a Joint Status Report pursuant to Case Management Order No. 2

(“CMO-2”) (D.E. 23) are set forth below:

(1) An update on the number and status of CLJA actions filed in the Eastern District

of North Carolina

From February 11, 2023 to February 27, 2024, 1,530 Camp Lejeune Justice Act (“CLJA”)

complaints have been filed in this district. Fifteen cases have been dismissed; twelve of those were

voluntary dismissals and the three others were pro se cases. The cases are divided as follows: Judge

Dever – 374 cases; Judge Myers – 396 cases; Judge Boyle – 368 cases; and Judge Flanagan – 392

cases.

(2) An update on the number and status of administrative claims with the

Department of Navy

There are approximately 170,502 administrative claims on file with the Department of

Navy (“Navy”). The Navy has set up a secure storage system capable of receiving personally

identifiable information and substantiating documents to intake, organize, and analyze claims for

purposes of making decisions on CLJA claims. The Navy expects to have its claims management

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system available for direct access to firms and pro se claimants on March 1, 2024, and to complete

ingestion of its existing claims inventory into the system by the end of March. The Navy continues

to utilize two pathways for assessing CLJA claims. Under one pathway, the Navy receives fully

developed claims from law firms for manual review. Under the other pathway, the Navy accesses

information developed through benefits determinations by the Veterans Administration (“VA”) to

substantiate and settle CLJA claims. The Navy’s claims management system will facilitate the

organization, management, and evaluation of claims.

(3) An update on stipulations entered into between the Parties since the last status

conference

On December 26, 2023, the government filed a Motion to Amend and Correct Case

Management Order No. 2. [D.E. 95]. Among other things, the government asked the Court to

amend Case Management Order No. 2 for purposes of requiring the PLG to provide the

government with notice of examinations conducted of individual plaintiffs by certain retained

testifying expert witnesses. The Parties were able to negotiate the terms of a Stipulation that would

eliminate the need for the Court to decide this specific issue within the government’s Motion to

Amend and Correct Case Management Order No. 2. [D.E. 95]. The Parties’ Stipulation was filed

with the Court on February 26, 2024. [D.E. 145]. In limited circumstances, the Stipulation would

entitle the government to an additional 15 days to designate certain expert witnesses, and therefore,

the Parties’ filing of February 26, 2024 requested an amendment of Case Management Order No.

2 solely for purposes of allowing this additional 15 days, as discussed more fully in the Parties’

Stipulation.

In an effort to facilitate the efficient production of documents, the PLG is providing the

government, on behalf of every Track 1 Discovery Pool Plaintiff, with a Health Insurance

Portability and Accountability Act (HIPAA) compliant authorization form for the release of patient

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information from private third-party medical providers pursuant to 45 CFR § 164.508 (the

“HIPAA form”). The Parties expect that a similar arrangement will be consummated for future

discovery tracks. The government is using the HIPAA form to obtain private third-party medical

records for discovery pool plaintiffs (the “Medical Records”). In addition, for every plaintiff

deposed by the government, the PLG is providing the government with a completed Social

Security Administration SSA-7050-F4 form requesting and authorizing the release of social

security earning information (“Social Security Records”). The Parties are close to achieving an

agreement to the terms of a stipulation which would require the government to provide the PLG

with all Medical Records and Social Security Records generated as a result of the above-described

authorization forms.

(4) A summary of the discovery conducted since the last status conference:

The Parties have agreed to file separate summaries of the discovery conducted since the

last status conference. The Parties’ respective summaries appear below:

The PLG’s Position:

The PLG continues to believe that discovery is progressing reasonably well and that the

Parties are on track to meet the deadlines set forth in Case Management Order No. 2.

During prior Status Conferences, the Parties have discussed the PLG’s Motion to Compel

Document Production in Response to Corrected First Set of Request for Production [D.E. 81] and

the government’s Cross-Motion for Protective Order. [D.E. 93]. In an effort to resolve this

discovery dispute, the Parties have engaged in multiple meet-and-confer videoconferences and

exchanged several letters. The Parties’ discussions resulted in material, constructive progress.

However, there are three issues involved with the Parties’ negotiations that have not been resolved:

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(1) ATSDR’s Water Modeling Project File. The Agency for Toxic Substances and

Disease Registry (“ATSDR”) performed water modeling that reconstructed the historic

contamination levels at Camp Lejeune. As a result, the ATSDR generated a water modeling project

file (the “project file”). The ATSDR’s water modeling project file is clearly discoverable. In fact,

the government has agreed to produce the entirety of the project file (subject to privilege

objections) pursuant to the electronically stored information (“ESI”) guidelines of the Stipulated

Order Establishing Protocol for Document Collection and Production (the “ESI Protocol”). [D.E.

52]. Unfortunately, production of the project file pursuant to the ESI Protocol will involve breaking

apart the project file into many separate pieces, completely destroying the file’s organization and

thereby rendering significant portions of the file unusable. The project file consists of thousands

or perhaps tens of thousands of individual files. Many of these individual files cross-reference—

or “link”—to other individual files within the overall water modeling project file. If the file is

deconstructed, those links will not lead to actual data sources, and the file will not function in the

same manner intended by the ATSDR.

For these reasons, the PLG asked the government to produce a “mirror” copy of the water

modeling project file as it exists in its native format. This mirror copy could be compared to the

government’s own mirror copy to ensure the integrity of any data used by the PLG. The

government has declined to produce a “mirror” copy of the project file. Therefore, on February

20, 2024, the PLG filed a Motion to Compel Production of the ATSDR’s Water Modeling Project

File in Native Format. [D.E. 142].

(2) Digitized Muster Rolls. The phrase “muster rolls” refers to reports that document

the military personnel attached to a particular unit or station within the United States Marine Corps

(“USMC”). If you know a Marine’s unit or station, it is possible to access the applicable muster

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rolls and identify where the Marine was physically present during certain periods of time. Muster

rolls are especially important to CLJA litigation, because the muster rolls will frequently reveal

where a Marine was present on Camp Lejeune, and when.

Conveniently, the USMC and the Veteran’s Administration (“VA”) recently partnered on

a muster roll digitization project specifically related to Camp Lejeune. The digitization project

took place from 2013 to 2015 and involved the digitization of almost 61 million pages of muster

rolls generated from 1940 to 2005 and specific to Camp Lejeune (the “Project”). The critical

importance of these digital files to the CLJA litigation is self-evident.

The PLG’s First Set of Requests for Production, RFP No. 3, specifically referenced the

Project and requested production of all digitized muster rolls. To date, the government has failed

to produce these digitized muster rolls generated during the Project. The parties have a

disagreement concerning whether the pertinent muster rolls were present on a Network Attached

Storage (“NAS”) inspected by the PLG in Quantico, Virginia on January 30, 2024. On February

20, 2024, the PLG filed a Motion for Production of Certain Digitized Muster Rolls. [D.E. 140].

That motion requests that the Court compel the government to produce the digitized muster rolls

generated as a result of the Project, as well as any data that would make the said muster rolls

searchable. During a meet and confer videoconference held on February 27, 2024, the government

informed the PLG that the contents of the NAS will be produced by the end of March 2024.

(3) ATSDR’s Health Effects Project File. The ATSDR studied the impacts to human

health of the chemicals identified in the groundwater at Camp Lejeune. As a result, the ATSDR

created a health effects project file. Some data that makes up the health effects project file may be

subject to contractual or statutory confidentiality protections. The Parties are presently involved in

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discussions about how to address these confidentiality issues, and the PLG believes that these

discussions have a reasonable possibility of success.

The Parties are presently engaged in the depositions of Track 1 Plaintiffs. The PLG is

defending multiple depositions of Track 1 Plaintiffs every week. The government has requested

dates for the depositions of nearly every Track 1 Plaintiff, and the PLG is promptly providing dates

for each deposition requested by the government.

The government has also requested dates for the depositions of several treating providers

for the Track 1 Plaintiffs. In several instances, the government has requested the depositions of

multiple treating providers for each Track 1 Plaintiff. While the arrangement of treating physician

depositions presents several complexities, the PLG is dedicating substantial time and resources to

arranging the treating physician depositions as requested by the government, and the PLG believes

that these depositions will be scheduled in a reasonable timeframe.

The PLG has dedicated substantial time and resources to the discovery process, including

both paper discovery and depositions. The PLG believes that discovery is progressing at a

reasonable pace and that the Parties will be able to meet all deadlines set forth in Case Management

Order No. 2.

United States’ Position:

The United States continues to make significant progress in producing documents in

response to Plaintiffs’ Requests for Production on a rolling basis. The United States is working

with various agencies to ensure the timely production of relevant documents.

ATSDR Water Modeling Project Files: The United States will be filing its Opposition to

Plaintiffs’ Motion to Compel the Water Modeling Project Files on Friday, March 1. Briefly, the

United States contends that Plaintiffs have not shown good cause to produce these files outside of

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the negotiated, agreed-to, and jointly submitted ESI Protocol [D.E. 52] and require a “mirrored”

production of the water modeling project files. As will be explained further in the Opposition, the

United States is producing certain exotic files natively pursuant to the ESI Protocol, and has been

– and continues to be – willing to produce certain subfolders natively as well. Producing the entire

project files “as is,” however, will likely cause significant confusion in the litigation for years to

come because an “as is” production does not facilitate clear identification or tracking of produced

data.

Muster Rolls: Muster Rolls: The United States will be filing its Opposition to Plaintiffs’

Motion to Compel the Muster Rolls on Friday, March 1. The United States has agreed to produce

the electronic information present on the USMC’s NAS system, including muster rolls, by the end

of March 2024.

ATSDR Health Effects Studies Project Files: The United States agrees that it is working

with Plaintiffs to reach a mutually agreeable position on the production of the ATSDR health

effects studies project files.

Depositions: As of February 27, 2024, the United States has requested dates for 90

depositions of Track 1 Discovery Plaintiffs, scheduled 83 of those depositions, and taken 49 of

those depositions. The United States has also requested dates for 16 fact witnesses and 11 treating

physicians.

(5) Update on individual and global settlement efforts:

As of February 27, 2024, the Torts Branch has determined that forty-eight (48) cases in

litigation meet the Elective Option (“EO”) criteria through documentary verification. The case

breakdown by injury includes: 13 Bladder Cancer, 12 Kidney Cancer, 10 non-Hodgkin’s

Lymphoma, 5 Kidney Disease, 3 Parkinson’s Disease, 3 Leukemia and 2 Multiple Myeloma.

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Seventeen (17) offers have been accepted by plaintiffs on 5 cases of Bladder Cancer ($150,000;

$150,000; $300,000; $300,00; $450,000), 3 cases of Kidney Disease (End Stage Renal Disease)

($250,000; $100,000; $100,000), 5 cases of Kidney Cancer ($300,000; $300,000; $300,00;

$300,000; $150,000), 2 cases of non-Hodgkin’s Lymphoma ($150,000; $150,000), 1 case of

Multiple Myeloma ($250,000) and 1 case of Parkinson’s Disease ($400,000). Seven (7) offers

were rejected by plaintiffs, including 4 cases of Bladder Cancer, 1 case of Kidney Cancer, 1 case

of Multiple Myeloma, and 1 case of Kidney Disease. Eight (8) offers have expired, including 3

cases of Kidney Cancer, 2 cases of non-Hodgkin’s Lymphoma, 2 cases of Bladder Cancer and 1

case of Leukemia. The other sixteen (16) settlement offers are pending. Further, the DOJ has

approved offers for fifty-eight (58) claimants in reliance on information provided by the Navy.

Twenty-four (24) settlement offers have been accepted. Two (2) offers have been rejected.

Nineteen (25) offers have expired, and the other seven (7) offers are pending.

Payments have been sent for eight accepted settlement offers made by the Navy and seven

accepted settlement offers from DOJ, totaling $3,600,000. Five cases of Bladder Cancer resulted

in two payments of $300,000 and three payments of $150,000. Four cases of Leukemia resulted in

three payments of $300,000 and one payment of $150,000. Two cases of non-Hodgkin’s

Lymphoma resulted in a $300,000 payment and a $150,000 payment. Two cases of Parkinson’s

Disease resulted in a $400,000 and a $250,000 payment. One case of Kidney Cancer resulted in a

$300,000 payment. One case of Kidney Disease resulted in a $100,000 payment.

The Parties have had several preliminary discussions regarding the possibility of a global

resolution of claims that remain in the administrative and legal processes. The Parties continue to

negotiate a resolution questionnaire and resolution roadmap. On January 16, 2024, the parties

jointly recommended Tom Perrelli of Jenner & Block to serve as Special Settlement Master. The

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Parties have agreed to a budget with Mr. Perrelli and the United States is continuing to work with

Mr. Perrelli to finalize terms of a contract. Assuming a Court appointment and agreement to

contract terms, the Parties anticipate having an initial substantive meeting with Mr. Perrelli before

the end of March.

(6) Any other issues that the parties wish to raise with the Court:

At present, the Parties have filed the following motions that will be ripe for decision at the

time of the Status Conference on March 5, 2024: (a) Joint Motion to Amend/Correct Case

Management Order No. 2 Regarding Expert Examinations [D.E. 145], (b) the PLG’s Motion to

Compel Production of the ATSDR’s Water Modeling Project File in Native Format [D.E. 142],

and (c) the PLG’s Motion for Production of Certain Digitized Muster Rolls [D.E. 140].

While not ripe for decision, the following motions are also pending before the Court: (a)

the PLG’s Motion for Partial Summary Judgment on the Issue of Specific Causation [D.E. 110],

and (b) the PLG’s Motion to Certify for Appeal the Order Granting Defendant’s Motion to Strike

the Demand for a Jury Trial [D.E. 137]. Briefing on these motions will close after the Status

Conference on March 5, 2024.

[Signatures follow on next page]

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Case 7:23-cv-00897-RJ Document 148 Filed 02/27/24 Page 9 of 11

DATED this 27th day of February 2024.

Respectfully submitted,

/s/ J. Edward Bell, III BRIAN M. BOYNTON

J. Edward Bell, III (admitted pro hac vice) Principal Deputy Assistant Attorney General

Bell Legal Group, LLC Civil Division

219 Ridge St.

Georgetown, SC 29440 J. PATRICK GLYNN

Telephone: (843) 546-2408 Director, Torts Branch

jeb@belllegalgroup.com Environmental Torts Litigation Section

Lead Counsel for Plaintiffs

BRIDGET BAILEY LIPSCOMB

/s/ Zina Bash Assistant Director, Torts Branch

Zina Bash (admitted pro hac vice) Environmental Torts Litigation Section

Keller Postman LLC

111 Congress Avenue, Ste. 500 /s/ Adam Bain

Austin, TX 78701 ADAM BAIN

Telephone: 956-345-9462 Special Litigation Counsel

zina.bash@kellerpostman.com Environmental Torts Litigation Section

Co-Lead Counsel for Plaintiffs U.S. Department of Justice

and Government Liaison P.O. Box 340, Ben Franklin Station

Washington, D.C. 20044

/s/ Robin Greenwald E-mail: adam.bain@usdoj.gov

Robin L. Greenwald (admitted pro hac vice) Telephone: (202) 616-4209

Weitz & Luxenberg, P.C.

700 Broadway LACRESHA A. JOHNSON

New York, NY 10003 HAROON ANWAR

Telephone: 212-558-5802 DANIEL C. EAGLES

rgreenwald@weitzlux.com NATHAN J. BU

Co-Lead Counsel for Plaintiffs Trial Attorneys, Torts Branch

Environmental Torts Litigation Section

/s/ Elizabeth Cabraser Counsel for Defendant United States of

Elizabeth Cabraser (admitted pro hac vice) America

LIEFF CABRASER HEIMANN &

BERNSTEIN, LLP

275 Battery Street, Suite 2900

San Francisco, CA 94111

Phone (415) 956-1000

ecabraser@lchb.com

Co-Lead Counsel for Plaintiffs

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Case 7:23-cv-00897-RJ Document 148 Filed 02/27/24 Page 10 of 11

/s/ W. Michael Dowling

W. Michael Dowling (NC Bar No. 42790)

The Dowling Firm PLLC

Post Office Box 27843

Raleigh, North Carolina 27611

Telephone: (919) 529-3351

mike@dowlingfirm.com

Co-Lead Counsel for Plaintiffs

/s/ James A. Roberts, III

James A. Roberts, III (N.C. Bar No.: 10495)

Lewis & Roberts, PLLC

3700 Glenwood Avenue, Suite 410

P. O. Box 17529

Raleigh, NC 27619-7529

Telephone: (919) 981-0191

Fax: (919) 981-0199

jar@lewis-roberts.com

Co-Lead Counsel for Plaintiffs

/s/ Mona Lisa Wallace

Mona Lisa Wallace (N.C. Bar No.: 009021)

Wallace & Graham, P.A.

525 North Main Street

Salisbury, North Carolina 28144

Tel: 704-633-5244

Co-Lead Counsel for Plaintiffs

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