The Camp Lejeune Water Litigation: When Legal Infighting Risks Losing Sight of the Victims
Introduction: A Battle Within a Battle?
While the Camp Lejeune Water Litigation case should be focused on the victims—service members and their families allegedly affected by contaminated water—it seems that the legal proceedings have taken a detour. A recent motion for reconsideration has thrown the spotlight on attorneys rather than the plaintiffs, raising questions about the true aims of this litigation.
The Parties: Who Should be the Focus?
The Plaintiff in this high-profile case represents those claiming harm from contaminated water at Camp Lejeune, a U.S. military base. The Defendant is the United States of America. But now, the Plaintiffs’ Leadership Group (PLG), a body set up to coordinate the plaintiffs' activities, seems to be taking center stage, and not for the right reasons.
A Motion Distracting from the Main Issue?
The "Reply in Support of Motion for Reconsideration of the Order Dated July 19, 2023," filed in the U.S. District Court for the Eastern District of North Carolina, has the potential to shift focus from the victims to legal technicalities. While it's important to get the legal aspects right, one can't help but wonder if this is turning into a battlefield for attorneys fighting for a bigger piece of the pie.
What’s in the Motion?
- Lack of Legal Basis: The motion, filed by counsel Roy T. Willey, IV, argues that the original order appointing the PLG lacks sufficient legal justification.
- Transparency and Nepotism Concerns: Willey raises serious questions about the transparency of the PLG's appointment process and points fingers at Zina Bash and her spouse, John Bash, as well as H. Scott Overholt, for potential conflicts of interest.
- Prevention of Manifest Injustice: The motion claims that the court's initial order could lead to clear errors and injustices.
Lawyers or Litigants: Who Stands to Gain?
The motion alleges a lack of transparency in the PLG's appointment process, focusing on potential nepotism with Zina and John Bash, and H. Scott Overholt. While these concerns may be valid, one has to ask: Are we losing sight of who this case is supposed to help? The victims and their families don't care who leads the litigation; they care about justice.
Rule 42 vs. Rule 23: A Red Herring?
The motion argues that Rule 23, tailored for class action lawsuits, is more appropriate than Rule 42, which is about consolidation. But in the grand scheme of things, does this legal nuance matter more than speeding up the process for the sake of the plaintiffs?
The Real Cost: Paid by the Plaintiffs
Let's not forget, every hour spent fighting over legal technicalities is billable. And who's going to foot this bill? Ultimately, it's the plaintiffs—the very people this litigation is supposed to help—who will be paying for the time it takes for the leadership to respond to this motion and for the court to deliberate on it.
Conclusion: Time to Refocus
While legal propriety is important, it shouldn't overshadow the ultimate aim of this litigation: to provide justice for the victims of the Camp Lejeune water contamination. It's high time the focus shifted back to where it belongs—on the plaintiffs, not the infighting among attorneys.
For those who want to read the full motion, here is the text of the filing.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
CASE # 7:23-cv-00897-RJ
Camp Lejeune Water Litigation,
Plaintiff,
v.
United States of America,
Defendant.
REPLY IN SUPPORT OF MOTION FOR RECONSIDERATION OF THE ORDER
DATED JULY 19, 2023 (DE 10)
While undersigned counsel recognizes the significant burden and questions this Motion
raises, it is a critically important issue that will only metastasize as the litigation continues if not
fairly and adequately addressed now. In this instance, the Court should grant the requested relief
because the undersigned has satisfied the burden of Rule 54 and justice so requires this Court to
act.
LEGAL STANDARD
This Court has the inherent power to reconsider its interlocutory orders, and
reconsideration is granted when one of the following is met: “(1) the discovery of new evidence,
(2) an intervening development or change in the controlling law, or (3) the need to correct a clear
error or prevent manifest injustice.” Reale v. Wake Cnty. Hum. Servs., No. 5:11-CV-682-D, 2013
WL 2635181, at *5 (E.D.N.C. June 12, 2013) (internal quotation marks omitted).
Case 7:23-cv-00897-RJ Document 21 Filed 09/11/23 Page 1 of 9
ARGUMENT
I. THE MOTION PRESENTS ISSUES THAT THE COURT HAS NOT
ALREADY CONSIDERED NOR RULED UPON
Plaintiffs’ Leadership Group’s (“PLG”) Opposition to Motion for Reconsideration of
July 19, 2023 Order fails to acknowledge that the Court gave no legal basis for its Order and on
that basis alone must be reconsidered. See Generally DE 10. While the PLG raises in its
opposition that similar issues were previously raised to the Court by letter, there has been no
acknowledgment by the Court or any of its representatives as to the opposition raised by
undersigned counsel’s letter. In fact, there was no indication at all either prior to or in the Order
itself under what authority or Rule the Court entered DE No. 10.
Nevertheless, PLG attempts to support the Court’s Order with citation to its own legal
argument, which begins and hinges on the following:
For well over 60 years, since before the advent of MDLs, federal courts have
exercised their power under Federal Rule of Civil Procedure 42(a) to appoint lead
counsel to resolve common issues in pretrial proceedings in complex litigations
involving numerous plaintiffs. See, e.g., In re Air Crash Disaster at Fla.
Everglades on Dec. 29, 1972, 549 F.2d 1006, 1014 (5th Cir. 1977) (“Florida
Everglades”); MacAlister v. Guterma, 263 F.2d 65, 68-69 n.2 (2d Cir. 1958).
Memo at 1.
The problem for PLG is that there are two immediately identifiable issues – the cases they cite.
The first, In re Air Crash Disaster is an MDL case. As the undersigned has pointed out, and this
Court has acknowledged, the present matter is not an MDL case. As a result, the Order of July
19, 2023, and its sweeping powers conferred to the appointed PLG cannot find a basis under that
legal reasoning or line of cases as MDLs are specifically authorized by 28 U.S.C. § 1407 and the
JPML’s Orders specifically required centralized for coordinated or consolidated pretrial
2
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proceedings. Notably, those Orders do not require the expansive list of powers granted to the
PLG in this case.
Equally inapplicable is the second case cited, MacAlister, a series of three “stockholders’
derivative actions where the stockholder sues, not in his own right, but in that of the corporation
and on Behalf of his fellow stockholders.” Id. At 68. Suits that are brought in a representative
capacity such as those under F.R.C.P. 23 and similar state rules explicitly provide for the
appointment of class counsel as the undersigned advocates. See F.R.C.P. 23(c)(1)(B) Defining
the Class; Appointing Class Counsel. Notably, even though it would be appropriate in that
construct in MacAlister the Court actually refused to appoint “general counsel” and the Second
Circuit upheld it. In so doing, the Court made the following comment regarding general counsel:
By such a procedure, one general counsel is not substituted for the counsel of each party
plaintiff's choice. The function of general counsel is merely to supervise and coordinate
the conduct of plaintiffs' cases. The separate actions are not merged under the direction of
one court appointed master of litigation— each counsel is still free to present his own
case, to examine witnesses and to open and close before the jury, if there be one.
MacAlister v. Guterma, 263 F.2d 65, 68 (2d Cir. 1958)
Here, given the broad and sweeping authority of the July 19, 2023 Order, that lack of
substitution is not the case. It goes even further given the acknowledgement of the PLG that they
intend to select which Plaintiffs cases can proceed through a general superseding Complaint.1
II. NEW EVIDENCE INVOLVING THE APPOINTMENT PROCESS HAS
COME TO LIGHT SINCE THE MOTION TO RECONSIDER WAS FILED
1
“During the extension, rather than devoting further resources to answering individual
complaints and preparing for dozens of individual discovery conferences on a case-by-case basis,
the Parties will focus on the global issue of proposing a process for master pleadings that would
supersede individual CLJA complaints and previously filed answers.” DE 11. Emphasis added.
3
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Second, new evidence of how this committee was formed and the ongoing lack of
transparency since even the Motion to Reconsider was filed has come to light that requires the
attention of the Court as this landmark litigation begins.
For example, in the Motion filed August 16, 2023, the undersigned informed the Court
that it was discovered that the Plaintiffs’ Steering and Executive Committees (“PSC” & “PEC”)
had been formed by the PLG without any process for the formation of the same having been
announced and that “Counsel did not receive a copy of the committee slate selections, the
selections were not filed on the public docket, and clients injured in this litigation have not been
made aware of who has been selected to act on their behalf.” DE 13 at 9. Two days later on
August 18, 2023, the PLG filed on the docket the list of names selected to these committees
without any process at all – applications or otherwise. DE 14. It is unclear exactly when these
groups were formed but the Status Update indicates they were formed at least by July 27, 2023,
when the PLG “presented them to the Court…by letter” barely a week after this Court appointed
the Leads. DE 14 at 1.
To be sure, the Motion for Reconsideration focused exclusively on procedure and not
personalities. However, in its Memo in Opposition the PLG elected to make the procedure-based
argument about actual appointments in the litigation (“Willey apparently believes that because he
filed the first class action, he would be appointed class counsel.” Parenthetical omitted. Memo at
11). Willey believes no such thing, but in any event, with respect to the actual personal
appointments in this case it was the filing of the actual names of the PSC/PEC that started the
reporting about at least the perception of some of the conflicts in the appointment process (See
also: https://www.law360.com/articles/1713226/quinn-emanuel-motley-rice-firms-tapped-in-
lejeune-suits noting “Former federal prosecutor John Bash, a Quinn Emanuel appellate partner
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— who's married to co-lead counsel Zina Bash of Keller Postman LLC, a former counsel to
suspended Texas Attorney General Ken Paxton — is one of 13 attorneys named to the plaintiffs'
executive committee…”). It was unknown to counsel at the time for the filing of the Motion for
Reconsideration that the lack of transparency in the appointment process had actually resulted in
the undesirable effects of a process that lacks transparency. Namely, nepotism, in that at least
one Court appointed co-lead counsel, Zina Bash, appointed their spouse John Bash to the PSC /
ESC when according to his law firm biography Mr. Bash has no prior mass tort experience. It
was also discovered that H. Scott Overholt was appointed to the PSC / ESC , the son of liaison
counsel, Hugh Overholt. These are appointments, given the closeness of the relationships, that if
not unprecedented should be.2
Without waiving the argument regarding appointment in this case as directed being
inappropriate, and in response to PLG’s reliance on the Manual in its Opposition, the
undersigned directs the Court’s attention to Section 10.222 of the Manual where it outlines
powers and responsibilities of appointed leadership in any case, which states:
To avoid controversy over the interpretation of the terms of the court’s appointment
order, designated counsel should seek consensus among the attorneys (and any
unrepresented parties) when making decisions that may have a critical impact on the
litigation.
Counsel in leadership positions should keep the other attorneys in the group advised of
the progress of the litigation and consult them about decisions significantly affecting their
clients.
Section 10.222 Powers and Responsibilities.
Here, the PLG announced no process by which PSC/PEC appointments would be made, took no
applications, and otherwise failed in their obligations as noted above. There can be no more
2
To the extent this is “discovery of new evidence” the same is so raised.
5
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critical impact on any litigation than who leads it, and failing to advise – much less consult –
other attorneys until it was raised in the undersigned’s Motion for Reconsideration is a separate
and compelling ground for reconsideration of the Court’s leadership Order.
The introduction of the new evidence brought to light under these appointments certainly
reaches the level of “new evidence” as required by the F.R.C.P. For this reason alone,
undersigned counsels’ motion is proper and should be granted.
III. UNDERSIGNED COUNSEL IDENTIFIES CLEAR ERROR AND MANIFEST
INJUSTICE IN THE LEADERSHIP ORDER, SUBSEQUENT APPOINTMENTS,
AND CONDUCT OF THE LITIGATION SINCE
A. Consolidation and Common Benefit is Improper under Rule 42
Assuming that the Court adopts PLG’s legal reasoning and uses Rule 42 to justify its
Leadership Order, the Order will still require amendment due to clear error and manifest
injustice because the PLG fails to identify an adequate source of authority in Rule 42 for the
broad and sweeping powers this Court bestowed upon the PLG.
Rule 42(a)(2) provides that if “actions before the court involve a common question of
law or fact, the court may ... consolidate the actions.” The meaning of the term “consolidate” in
this context is ambiguous. But the term has a legal lineage stretching back at least to the first
federal consolidation statute, enacted by Congress in 1813. Act of July 22, 1813, § 3, 3 Stat. 21
(later codified as Rev. Stat. § 921 and 28 U.S.C. § 734 (1934 ed.)). Under
the consolidation statute—which was in force for 125 years, until its replacement
by Rule 42(a)—consolidation was understood not as completely merging the constituent cases
into one, but as enabling more efficient case management while preserving the distinct identities
of the cases and rights of the separate parties in them. See, e.g., Rich v. Lambert, 12 How. 347,
13 L.Ed. 1017; Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285, 12 S.Ct. 909, 36 L.Ed. 706; Stone
6
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v. United States, 167 U.S. 178, 17 S.Ct. 778, 42 L.Ed. 127. (Emphasis added). Just five years
before Rule 42(a) became law, the Court reiterated that, under
the consolidation statute, consolidation did not result in the merger of constituent cases. Johnson
v. Manhattan R. Co., 289 U.S. 479, 496–497, 53 S.Ct. 721, 77 L.Ed. 1331. See also In re U.S.
Financial Securities Litig., 609 F.2d 411, 428 n. 58 (9th Cir.1979) (discretionary consolidation
under Rule 42 cannot alter right to jury trial)
On July 19, after interviewing3 counsel and without a hearing, this Court selected one
Lead Counsel and six Co-Lead Counsels. DE 10. The Court enumerated a list of responsibilities
for the attorneys or their delegees, which in summary provides: “Lead Counsel and six Co-Lead
Counsel will make all decisions – strategic, procedural and substantive – on behalf of all
plaintiffs.” DE 10 at 2. Yet, the Order contradictorily provides that “[e]ach plaintiff’s counsel
shall continue to be responsible for each individual plaintiff’s case.” DE 10 at 10. It does not
make practical sense that individual counsel can be responsible each of their Plaintiff’s
individual cases while having no ability to make or impact any decision (“strategic, procedural
and substantive”) on behalf of those Plaintiffs. Plainly, the Court’s Leadership Order provides all
of the benefits of leadership to the PLG with none of the burden.
Moreover, the now filed Proposed Case Management Order No. 2, filed after the Motion
for Reconsideration, calls for a master consolidated complaint “that would supersede individual
CLJA complaints and previously filed answers” (DE 11 at 2-3) and dispense with individual
cases proceeding forward explicitly stating that “[a]l cases on individual dockets asserting any
CLJA claim shall be stayed…” (DE 17-1 at 3). This shows the extent to which the PLG seeks to
3
Undersigned counsel has attempted to contact the Clerk of Court to request records of these
interviews, and were informed that the Court would not provide them. Based upon conversation
with other counsel it is unclear who, if anyone at all, was interviewed other than those selected.
7
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control individual plaintiffs’ cases, and the same is not permitted by the law as it “would tend to
merge the various actions in disregard of the caveat expressed in Johnson v. Manhattan Ry. Co.,
1933, 289 U.S. 479, 496-497, 53 S.Ct. 721, 77 L.Ed. 1331,” as noted by the Court in MacAlister,
263 F.2d 65, upon which the PLG relied at the outset of its Opposition.
B. Consolidation and Interim Leadership Appointments Under Rule 23 is
Appropriate
A court may “designate interim counsel to act on behalf of a putative class before
determining whether to certify the action as a class action.” Fed. R. Civ. P. 23(g)(3). Although
Rule 23(g)(3) does not provide a standard for appointment of interim counsel, the court may
consider the factors contained in Federal Rule of Civil Procedure 23(g)(1). Under that section,
the court considers: “(i) the work counsel has done in identifying or investigating potential
claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation,
and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law;
and (iv) the resources that counsel will commit to representing the class.” Fed. R. Civ. P.
23(g)(1)(A). The court may also “consider any other matter pertinent to counsel’s ability to fairly
and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). Those criteria
are all met in this case.
To the first point, it cannot be denied that this litigation contains attorneys well suited to
interim lead counsel, some of which were appointed to the PLG, and others of which were never
given an interview nor had the opportunity to be heard in a hearing. Plaintiffs’ counsel in this
action both included and excluded, conducted in depth reviews of the science and history of
these claims, as well as evaluating countless claims of retired servicemen and women and their
families that were impacted by this case, as well as attending all in-person hearings.
8
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The second and third points are also easily satisfied here given the wealth of experience
many in Plaintiffs’ counsel have obtained in their careers. Many attorneys and firms in this
action have been at the forefront of complex litigations, including class action cases, for which
these firms have litigated as interim or lead counsel in numerous class action cases representing
hundreds of thousands of claimants in the last couple of years alone.
Rule 23 would allow the court to not only to appoint interim lead counsel, it would
prevent the manifest injustice that is currently occurring in the named PSC and PEC as laid out
above. At the very least the appointment process should include a public hearing where the
above issues, and others that may not be currently known, can be addressed4. The requirements
of Rule 23 ensure that qualified and capable counsel and Plaintiffs are selected to represent the
class at the time of class certification, further giving validity to any judgment issued by the court
on these cases. For this reason, undersigned counsel requests this court reconsider it’s Leadership
order and instead view the case within the scope of Rule 23, which as outlined by our briefings,
make clear it is the proper vehicle for these claims.
/s/Roy T. Willey, IV
Roy T. Willey, IV (Pro Hac Vice)
Blake G. Abbott
Poulin | Willey | Anastopoulo, LLC
32 Ann Street
Charleston, SC 29403
843-834-4712
roy@poulinwilley.com
blake.abbott@poulinwilley.com
4
At least one national investigative reporter has raised the issue of the need for potential recusal
to the undersigned, and to the undersigned’s knowledge and the knowledge of any unnamed PLG
members, this issue has not been raised nor addressed by the Court. As of the time of this filing
this has just been brought to the undersigned’s attention and is currently being investigated as it
is a serious matter that is worthy of full vetting before it is submitted in a public filing.
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