Wednesday, February 21, 2024

NC trend: Law firms pour it on to rep Camp LeJeune plaintiffs

The legal race is on to aid those harmed by toxic exposure at North Carolina’s famed Marine base.

Jerry Ensminger was in his kitchen in Elizabethtown in June when he heard the first ad from lawyers soliciting potential victims of the toxic water disaster that flowed from Marine Corps Base Camp Lejeune taps and pipes for 34 years.

The former drill master was intrigued. “I said, ‘What is this?’” Ensminger recalls. Then he started noticing more ads with similar messages. “They’re crazy,” Ensminger says. “There was one with a woman promising wheelbarrows full of cash.”

That’s just a taste of the ad frenzy related to Camp Lejeune’s toxic water that has created a field day for lawyers, TV stations and digital media outlets.

From March through mid-October, about $65 million was spent nationally on 97,000 television ads soliciting Camp Lejeune claims, according to X Ante, a Washington, D.C., company that tracks tort litigation. It’s about 20% of the 513,000 mass tort TV ads that aired in 2021.

In North Carolina, $338,460 was spent in five TV markets from June 27 to Sept. 30, X Ante reports. Nearly two-thirds went to the Raleigh and Wilmington areas.  

The ads have a common pitch: If you lived at Camp Lejeune between 1953 and 1987 and suffered from cancers, a miscarriage, Parkinson’s disease, kidney problems and more, you might be eligible for significant financial compensation. Estimates of potential claimants range from 800,000 to as many as 1 million.

No idea

Jerry Ensminger

Ensminger, a former drill master at the Onslow County base, has spent the past 25 years

testifying numerous times before Congress and speaking to the media about personal tragedies that he attributes to contaminated water. He’s become the face for government accountability at Lejeune, where Benzene and other chemicals used in a dry cleaning solvent and degreasers stewed in base waters.

The Bladen County resident, 70, saw his daughter Janey battle leukemia for nearly two and a half years as a child before dying at age 9 in September 1985. Janey was the only one of Ensminger’s four children conceived, carried and born while the family lived on the base about 60 miles northeast of Wilmington.

They had no idea of the noxious chemicals flowing through contaminated water treatment plants into their home. He didn’t find out until 1997, when he was eating a plate of spaghetti in his living room while watching the evening news. A segment described a link between Lejeune water and childhood cancer, based on an assessment by the federal Agency for Toxic Substances and Disease Registry.

“The Navy and the United States Marine Corps did their very best to conceal the truth,” he told Congress in 2015. “But eventually that genie escaped its bottle.”

The escape did not bring swift accountability, though. While Congress passed the Safe Drinking Water Act in 1972, the Federal Register didn’t publish the noxious chemicals found at Lejeune on its list until 1987. Contaminants had been exposed in 1982 after the water was tested per Environmental Protection Agency standards.

The government closed two of Lejeune’s eight water plants from 1985 to 1987.

Another 12 years passed before the Marine Corps began notifying former base residents of the health risks to which they were exposed.

Veterans started pushing for VA benefits. In 2009, the wife of a Marine veteran with non-Hodgkin’s lymphoma filed the first lawsuit and some 800 others soon followed, leading to a court consolidation of all the claims in multidistrict litigation that went all the way to the U.S. Supreme Court.

The high court rejected the claims, saying they were filed too long after the triggering contamination. That prompted Congress to adopt the PACT Act, or Promise to Address Comprehensive Toxins, which President Joe Biden signed in August. The legislation removes the statute of repose obstacle, making it easier for Marines and their family members who were on base for at least 30 days during the defined 34-year period to file lawsuits. Contractors at the base are also eligible. 

Rush is on

The estimated cost of the PACT Act is $280 billion, which extends beyond the Lejeune situation to include other areas where service members faced toxic exposure.

The law firm ads accelerated after the law passed, then slowed during October to avoid being overwhelmed by political advertising tied to the November elections. A new spurt is likely over the next few months to appeal to potential plaintiffs.

Ensminger and Mike Partain, a breast cancer survivor who was born at Lejeune, initially chose a South Carolina lawyer as their representative. Earlier this year, they switched to Mikal Watts of San Antonio, a nationally known plaintiff’s lawyer.

Ensminger was impressed when Watts jumped on a plane shortly after their first phone conversation and met him in Bladen County. Not long after that, Watts asked for a tour of Lejeune. “That was the only attorney who did that,” Ensminger says.

This fall, Ensminger, Partain and environmental justice advocate Erin Brokovich hopscotched across North Carolina and South Carolina holding town halls to discuss potential litigation with former Lejeune residents. Watts Guerra law firm sponsored the meetings.

Claimants have until Aug. 10, 2024, to file with the U.S. Department of the Navy. If the Judge Advocate General’s office denies the claim or doesn’t act within six months, individual lawsuits can be initiated in federal court in the Eastern District of North Carolina. Four district judges will take on cases that must involve attorneys admitted to practice in the 44-county region, including courthouses in Greenville, New Bern, Raleigh and Wilmington. 

Law firms are trying different approaches to land clients who will file claims. As is common in personal injury cases, many attorneys agree to do the work in return for a percentage of the awards. The fee is typically 20% to 40%.

A common worry among many lawyers is that a crush of lawsuits from attorneys making unrealistic promises could bog down courts and slow the process for everyone. 

Earlier this year, Salisbury’s Wallace & Graham hired Larry Hall, a former secretary of the N.C. Department of Military and Veterans Affairs, to aid the firm with a wave of expected Lejeune lawsuits. Hall was at the base for three years of active duty and in the reserve force for 12 years.

Though Hall is not filing a lawsuit, the former state lawmaker from Durham says his familiarity with base and military legal proceedings will help his clients. He agrees that many solicitation ads are misleading, with unfounded promises of big money for the masses.

Hall and other Wallace & Graham lawyers have held seminars with peers across the country to try to streamline the process for filing claims. This goal is to avoid gumming up the system.

Many larger firms are dedicating teams to the lawsuits. Paralegals will become familiar with obtaining information from Veterans Affairs health records offices. Though each case is filed individually — these are not class-action claims — the attorneys will learn what works over time.

Gary Jackson, a partner with the James Scott Farrin firm in Durham, is one of 20 lawyers and paralegals assigned to Lejeune cases. The firm has contributed to the advertising blitz, including the most widely aired ad, a 30-second spot that was broadcast about 2,700 times through late September, according to X Ante.

Eric Sanchez, who describes himself as a Marine veteran, tells people to “listen up,” then directs them to the Durham firm. 

While James Scott Farrin is known for its heavy marketing spend, Jackson criticizes other firms’ ads. He cites some that make uncertain claims that people won’t have to go to court or that they could receive $230,000 right off the bat.

“The ads drive me crazy,” Jackson says. “A lot of them misrepresent important features.”

Ward and Smith, a longtime power among eastern North Carolina law firms, touts its  experience and familiarity with military life in a blog targeting potential Lejeune litigants. The firm, which has five N.C. offices, is dedicating 10 professionals to the cases.

Ward and Smith’s website tackles common questions related to the litigation, including whether filing a lawsuit means that a veteran will lose other benefits. Answers from the firm’s Isabelle Chammas and Lynwood Evans are negative — the Navy has clarified that claims filed under the Camp Lejeune Justice Act don’t impact benefits or other VA programs.

Eventually, many attorneys say they expect the government to settle with the litigants, but no one knows for sure. 

Ensminger is looking for a resolution in which the Marine Corps and Department of the Navy adhere to a motto he tried to instill in his trainees.

“We take care of our own,” he says. “The government made their mistake right up front. They lied.”

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