In re Camp Lejeune N.C. Water Contamination Litig.

• Decision Date: 05 December 2016
• Docket Number: MULTIDISTRICT LITIGATION NO. 1:11–MD–2218–TWT
• Citation: 263 F.Supp.3d 1318
• Parties: IN RE CAMP LEJEUNE NORTH CAROLINA WATER CONTAMINATION LITIGATION.
• Court: U.S. District Court — Northern District of Georgia

263 F.Supp.3d 1318

IN RE CAMP LEJEUNE NORTH CAROLINA WATER CONTAMINATION LITIGATION.

MULTIDISTRICT LITIGATION NO. 1:11–MD–2218–TWT

United States District Court, N.D. Georgia, Atlanta Division.

Signed December 5, 2016

OPINION AND ORDER

THOMAS W. THRASH, JR., United States District Judge

This matter is before the Court on the Government's motion for order relating to the preservation of documents and electronically stored information [37]; the Government's motion to dismiss [61]; the Government's motion to dismiss for lack of subject-matter jurisdiction [62]; the Plaintiffs' motion for oral argument [72]; Plaintiff Bryant's motion to amend complaint [77]; the Plaintiffs' motion for extension of time to complete discovery and to stay [83]; Plaintiff Johnston's pro se motion to amend [97]; Plaintiff Douse's pro se motion for reconsideration [117]; Plaintiff Straw's pro se motion for clerk's entry of default [121]; Plaintiff Douse's pro se motion to amend [123]; Plaintiff Wright's motion to amend complaint [126]; the Government's motion to dismiss all cases based on North Carolina statute of repose [127]; Plaintiff Douse's pro se motion for punitive and exemplary damages [143]; the Government's motion to strike [152]; Plaintiff Douse's pro se motion for additional award of damages, for relief based on Bivens, and for a protective order [156]; Plaintiff Bryant's supplemental motion to amend [164]; Plaintiff Straw's pro se motion for permanent injunction [165]; Plaintiff Straw's pro se fourth motion for clerk's entry of default [169]; the Government's motion for protective order [172]; the Plaintiffs' motion to transfer pursuant to 28 U.S.C. § 1631 or motion for conditional suggestion of remand [176]; Plaintiff Straw's pro se first motion for clerk's entry of default [178]; the Plaintiffs' motion for a hearing [188]; and Plaintiff Straw's pro se motion for refund and further relief [192].

I. Procedural History

In this Multidistrict Litigation (MDL), the Plaintiffs are service members and/or their family members who allege they were exposed to toxic substances in the water supply while living at Marine Corps Base Camp Lejeune in North Carolina. The Plaintiffs further contend that the United States failed to monitor the quality of the water supply at Camp Lejeune and failed to provide notice to the Plaintiffs concerning the presence of toxic substances in the water supply. The Plaintiffs allege that they have suffered illnesses or death as a result of the actions of the United States and bring their actions pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671 – 2680. There are currently seventeen cases in the MDL and, although the potential number of plaintiffs is not known, there are currently over 4,000 claimants in the administrative process with the Department of the Navy.

Given the amount of time that has passed since it has addressed substantive matters, the court finds it useful to give a summary of the course of the litigation to this point. When the Multidistrict Litigation was formed, the court held a scheduling conference. After hearing from the parties, the court determined that the most efficient course of action would be to first address two threshold legal questions: (1) whether the limitations period contained in the Comprehensive Environmental Response Compensation and Liability ("CERCLA") preempted the North Carolina statute of repose; and (2) whether the North Carolina statute of repose had an exception for latent diseases.¹ Answering these two questions has taken the better part of five years.

Because the court determined that threshold legal issues needed to be addressed first, the court did not call for the filing of an omnibus complaint.² But the court did permit discovery on the Feres doctrine and the Federal Tort Claims Act discretionary function exception.³ The parties had briefed motions to dismiss based on these two theories.⁴ Those motions are still pending.

In an order dated September 29, 2011, the court held that although a plain reading of 42 U.S.C. § 9658 of CERCLA might counsel a different result, based on the purpose of CERCLA as a remedial statute, section 9658 preempted both statutes of limitation and statutes of repose.⁵ Therefore, the court found that the applicable North Carolina statute of repose contained in North Carolina General Statute § 1–52(16) barred claims from accruing more than ten years from the last act giving rise to the cause of action would not apply to the Plaintiffs. A consequence of this holding was that the court did not then need to consider whether North Carolina's statute of repose contained an exception for latent disease. However, the Government then asked the court to rule on this alternative ground so that the parties could take an interlocutory appeal to the United States Court of Appeals for the Eleventh Circuit on both legal rulings. The court agreed to do so and permitted the parties to brief the matter of a latent disease exception.⁶ In an order dated May 11, 2012, the court held that the statute of repose in North Carolina General Statute § 1–52(16) did not contain an exception for latent diseases.⁷

The Government then filed a motion for permission to file an interlocutory appeal pursuant to 28 U.S.C. § 1292(b).⁸ The court granted that motion.⁹ The Court of Appeals accepted the appeal on October 31, 2012,¹⁰ which was docketed as Bryant v. United States, and held oral argument in the case on January 17, 2014. However, just days prior to the argument, the United States Supreme Court granted certiorari in CTS Corp. v. Waldburger, No. 13–339, which would be directly controlling authority on the issue of CERCLA preemption. The Court of Appeals held its ruling to await the Supreme Court's opinion in Waldburger.

On June 9, 2014, the Supreme Court held that CERCLA section 9658 did not preempt North Carolina's statute of repose.¹¹ The Eleventh Circuit then took up the parties' appeal. In its opinion, the Court of Appeals recognized the Supreme Court's holding in Waldburger as answering the first question and therefore turned to the second question—whether the North Carolina statute of repose includes an exception for latent disease.¹² Based on the statute as it existed when the Plaintiffs brought their cases, the Court of Appeals found that the statutory language was unambiguous and did not contain an exception for latent disease.¹³

The Eleventh Circuit recognized, however, that shortly after the Supreme Court issued its decision in Waldburger, the North Carolina legislature amended the statute of repose to add the following language: "The 10–year period set forth in G.S. 1–52(16) shall not be construed to bar an action for personal injury, or property damages caused or contributed to by ... the consumption, exposure, or use of water supplied from groundwater contaminated by a hazardous substance, pollutant, or contaminant."¹⁴ The General Assembly specified that this amendment applied to any actions "filed, arising, or pending" on or after June 20, 2014.¹⁵ Nevertheless, the Court of Appeals found that the amendment should not apply retroactively because it "substantively amended the statute of repose to create an exception for groundwater contamination and, as a result, can only apply prospectively, lest [the amendment] divest the Government of a vested right."¹⁶ The Court of Appeals then remanded the case.

This court accepted the order as mandate and held a Scheduling Conference on February 25, 2015, during which the Plaintiffs indicated they intended to seek certiorari as to the Eleventh Circuit's ruling in Bryant.¹⁷ The Supreme Court denied the Plaintiffs' petition for writ of certiorari.¹⁸ The court held another Scheduling Conference on January 6, 2016. During that conference, the court directed the Government to file a motion to dismiss based on the Eleventh Circuit's holding in Bryant.¹⁹ In addition to responding to the Government's motion, the Plaintiffs have filed numerous motions to amend their complaints, as well as a motion to transfer or remand the Multidistrict Litigation.

II. Discussion

A. Motion to Transfer or Remand

1. Impact of Stahle and Choice of Law Questions

In their motion to transfer, the Plaintiffs essentially ask that the court reconsider the outcome of Bryant in light of the Fourth Circuit's recent ruling in Stahle v. CTS Corporation.²⁰ The Plaintiffs' arguments are premised on a contention that the Fourth Circuit's holding in Stahle is in conflict with the Eleventh Circuit's ruling in Bryant. In Stahle, the plaintiff filed a negligence action alleging that his leukemia was caused by his exposure to toxic solvents when he was a child. The Fourth Circuit considered the scope of North Carolina General Statute § 1–52(16) in relation to Stahle's claim. The Stahle court first recalled that the Fourth Circuit previously held in Hyer v. Pittsburgh Corning Corp., that "the [North Carolina] Supreme Court does not consider disease to be included within a statute of repose directed at personal injury claims."²¹ Although the Stahle court agreed that section 1–52(16)"functions as a statute of repose directed at certain personal injury claims," it found that the "North Carolina General Assembly has not expressly expanded the language to include disease."²² Thus, the court found that section 1–52(16)does not apply to claims arising out of disease.²³ The court rejected CTS's argument that Hyer addressed a different statute of repose.²⁴ Instead, the court ruled that "we anticipate that the Supreme Court of North Carolina would rule that Section 1–52(16) is not applicable to Stahle's claim arising from disease."²⁵ The Stahle court then went on to discuss its disagreement with the Eleventh Circuit's ruling in Bryant that the plain language of section 1–52(16) demonstrated that there was no exception for latent diseases.²⁶

There can be no dispute that under the "law of the case" doctrine, the court must apply the Eleventh...