We’ve been talking a lot about the hair relaxer cases lately.

Nearly 60 cases have been filed so far in various federal courts, and we’ve been predicting that this is a case almost designed for MDL treatment.

JPML Agrees

This past Monday, following oral arguments in late-January, the JPML agreed, ordering centralization for discovery purposes.

This is a good thing for settlement hopes.

Risk of Reproductive Injury

In their order, the JPML found that “Centralization will obviate the risk of duplicative discovery and inconsistent rulings on pre trial issues such as what level of exposure to phthalates or other EDCs poses a risk of reproductive injury, and what obligation, if any, defendants had to disclose the presence of such chemicals in their hair relaxer products.”1

Northern District of Illinois

These cases will all be sent to U.S. District Court Judge Mary Rowland in the Northern District of Illinois.

Chicago is a great city to host these proceedings, and I know that all the big names in MDL will be happy to know they have enough 5-star hotels.

When it comes to Judge Rowland, politics may become an issue because, as a Trump nominee, she may be less favorable to plaintiffs.

But Judge Rowland received wide bipartisan support and there’s nothing indicating she will be anything but fair.

Defendants Opposed

Unsurprisingly, the defendants opposed centralization, claiming the multiplicity of products and injuries would eliminate any benefits that MDL treatment could have.

The JPML disagreed, noting that: “[T]he claims against the various defendants may turn on facts specific to the defendants and their products, and that in some instances we have been hesitant to centralize litigation against competing defendants that marketed, manufactured, and sold similar products.

In the circumstances presented here, however, we conclude that centralization will allow this litigation to be managed most efficiently and will best serve the convenience of the parties, witnesses, and courts.”

Just The Beginning

It will take a little time to get the MDL ball rolling.

Judge Rowland will first establish a discovery procedure and eventually, a bellwether trial schedule.

We’ll do everything possible to keep you updated with these developments as they happen.

Sometimes, MDLs get up and running in just a few weeks, but others can take months before they even start working the case.

Only time will tell as to how Judge Rowland handles these cases.

Massive Plaintiff Class

The potential plaintiff class in the hair relaxer MDL is enormous.

More than 80% of Black women in the U.S. use or used hair relaxers on a regular basis.

In essence, this means that every Black woman in the U.S. diagnosed with uterine cancer, ovarian cancer, or other related conditions is a potential plaintiff.

The US National Institute of Environmental Health Safety estimated that “1.64 percent of women who never used hair straighteners would go on to develop uterine cancer by the age of 70, but for frequent users, that risk goes up to 4.05 per cent.”2

Because there are more than half a million uterine cancer survivors in the U.S. today, and 50,000 more are diagnosed each year, the calculations add up to a massive MDL.

Long Road Ahead

Defendants have remained silent since the MDL was created but have previously vowed to fight these claims hard.

L’Oreal indicated that they are “confident in the safety of our products and believe the recent lawsuits filed against us have no legal merit.”3

As such, even though centralization is a good thing, there is a long road ahead before we will start seeing any real money.

Stick with us for every key development in this litigation – and for the best legal marketing out there.

Craig H. Alinder, Vice President

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Links

1. https://www.jpml.uscourts.gov/sites/jpml/files/MDL-3060-Transfer_Order-1-23.pdf

2. https://www.businesstoday.in/latest/corporate/story/multiple-lawsuits-filed-against-loreal-others-in-us-claiming-use-of-cancer-causing-chemicals-in-hair-relaxers-369505-2023-02-08

3. https://www.loreal.com/en/statement/group/

We have been talking about Johnson & Johnson’s attempt to skirt liability by shifting liability to a subsidiary that has no connection to the product nor the harm it caused for more than a year now, and we finally have some good news as to whether the so called ‘Texas Two-Step’ passes legal scrutiny.

This week, the 3rd Circuit answered the question clearly and cleanly in the negative, and the consequences are massive.

Massive Consequences

The decision stops J&J from diverting nearly 40,000 lawsuits into its newly created subsidiary, LTL Management LLC, then declaring it bankrupt.

Both sides appear to agree that this strategy was only designed to save the company billions from liability in the talcum powder cases.

The 3rd Circuit ruled that only companies in “financial distress” can declare bankruptcy, noting that J&J had agreed to fund LTL’s liabilities up to $61.5 billion.

The Court also noted that J&J had over $400 billion in equity value, a AAA credit rating and $31 billion in cash and marketable securities.

Good News, but…

While this is good news, it may not be the end of the story.

J&J has vowed to take the matter to the US Supreme Court, and results there may be unpredictable. J&J has promised to appeal, but if they lose or the Court declines the case, 38,000 ovarian cancer cases and over 400 mesothelioma cases could go forward to jury trials, unrestricted by bankruptcy issues.

One thing is for certain, however – this decision will affect much more than this case. 3M tried the same thing in the Combat Arms earplug cases.

Both J&J and 3M stocks have suffered since the ruling, pushing those defendants to the settlement table even faster.

Possible Limbo, but Stay Tuned

If the Supreme Court takes the case, things will likely be in limbo through 2024, but if they reject it, things could happen very quickly on the settlement front.

Neither J&J or 3M want this number of cases going to a jury.

Stay tuned for updates as the Supreme Court makes the next move.

Craig H. Alinder, Vice President

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Once again, we attended one of the great webinars put on by Levin Papantonio Rafferty and Mass Torts Made Perfect.

These can be such great sources of information and we thank the presenters for their time and knowledge on these very tricky cases. Even more, they are pushing hard for CLE hours on these webinars, so it’s the epitome of a win-win.

This session was less of a deep dive on one case and more of an update on several, so let’s get to the good stuff.

NEC Baby Formula

Andy Childers, co-Lead attorney of MDL 3026, discussed what has been going on in the NEC baby formula litigation.

The headline here is that direct filing is allowed, and a plaintiff profile form is all that will be required for most cases in the MDL, at least initially.

The only cases where this does not apply are those working in the bellwether process. This will make life easier for plaintiff counsel and the court.

We’re just getting into the bellwether trial process, and discovery for those cases is ongoing. The first bellwether trial is scheduled for March 11, 2024, with most of this year being dedicated to discovery.

The bellwether cases were selected late last year, with four picks for each side, plaintiff and defense, and an additional four random picks made by the court. After fact discovery, plaintiffs and defense will each get to choose two for trial.

These NEC cases are tragic for a number of reasons, making them potentially high value cases.

With easy filing and good science behind it, this may be one of the more exciting cases this year.

CPAP Machine Litigation

Over in the Philips CPAP machine litigation, we’re in a similar situation. The MDL is still ramping up, and we’re in the midst of initial disclosures.

The good news is that general causation is looking great for us. The manufacturers knew that the PE-PUR sound abatement foam was genotoxic and cytotoxic, meaning it was potentially cancer causing, and they did nothing, for years.

Specific causation may be a bit more of a challenge. Troy Bouk of Levin Papantonio Rafferty noted the importance to not only have a solid diagnosis, but also the due diligence to rule out other potential causes.

In other words, if a plaintiff comes in with a solid lung cancer diagnosis, make sure that they did not work around asbestos or other carcinogenic toxins.

These cases will mostly be based in head, neck and lung cancers, but other diseases like COPD and asthma are also implicated.

Timing is also something to remember – you must file your plaintiff profile form within 45 days of filing the short form complaint in the MDL.

Camp Lejeune

And finally, in Camp Lejeune, we’re dealing more with expectations than reality at this point in time.

As you should know by now, the administrative claims process through Navy JAG gives them a 6-month period to respond, and we’re still inside that window. In other words, the JAG has until February 11, 2023 to respond to the first claims made since passage of the PACT act.

According to Brian Barr, shareholder at Levin Papantonio Rafferty, there have been more than 15,000 claims filed, and not one of them has received an offer to settle.

The JAG has not been completely silent, sometimes asking for additional information, sometimes delivering a Letter of Perfection indicating that the claim submitted was complete. But without a single offer on the table, it looks like these cases will end up needing litigation, at least for now.

Fees Discussed

Attorney fees in this case were also discussed, with a focus on pending legislation attempting to limit recovery.

There are now three bills being discussed on the subject, and there may be some appetite to resolve the matter through legislation.

While we have nothing to fear as to Senator Sullivan’s absurd limitation of 2% for filing a claim and 10% if it goes to court, the votes may be there to limit attorney fee recovery to 25-33%.

Stay tuned for more on this most important subject.

Plan For Trial

It doesn’t look good for MDL centralization in this case, meaning that we should all plan on trying individual cases if it comes to that.

In the Eastern District of North Carolina, they’re planning for a lot of trial activity, apparently discussing a plan to split the cases amongst judges based on the illness diagnosed.

A lot of this case is still being organized and we’ll have to see what the parties (and the Court) can end up agreeing to.

Excellent Source of Info

These webinars are great. All the above info was covered in an hour if you can believe it. They’re free, and yes, CLE credits may be available.

We know it’s only January and bringing up CLE this early seems strange but imagine a December when you aren’t scrambling for those hours.

We’ll be back with more of these as they come out because they really are great sources of information. If you ever feel like attending, their schedule and the signup form can be found at https://mtmp.com/connect/

Craig H. Alinder, Vice President

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One of the hottest cases sweeping the country today is the hair straightener litigation, and lawsuits are being filed in federal court due to a new study that effectively proves that hair straighteners increase the risk of uterine cancer, uterine fibroids, breast cancer and endometriosis.

A 2022 National Institutes of Health (“NIH”) study shows an increased risk of uterine cancer in women who used the product. The study is commonly referred to as the “Sister Study”, and its results were clear – frequent use of chemical hair relaxers (over 4 times per year) over long-time periods increased the risk of uterine cancer by as much as 150%.

Plaintiff lawyers argue that the Sister Study is a definitive link between use of the product and uterine cancer.

Hair straightener products have also been linked to breast cancer, uterine fibroids and endometriosis.

Chemical hair straightener brands named as defendants include: Dark and Lovely, Just for Me, L’Oréal, Motions, Namaste, Olive Oil Girls, Optimum, Soft & Beautiful, Strength of Nature Global LLC and TCB Naturals.

Lawsuits claim that these products were heavily marketed to African American women, who are more likely to use chemical hair straighteners.

Massive Plaintiff Pool

As of December 2022, plaintiffs have moved to centralize the litigation, but the JPML has not heard oral arguments. I expect these arguments will be heard at the next JPML hearing in Miami, Florida on January 26, 2023.

The case certainly makes sense for centralization, but until the JPML speaks, there will be no progress on that front. I expect we’ll have an answer by February. 

The first case was filed in federal court in Chicago and many more have been filed since then. To date, all filed lawsuits have been uterine cancer cases, but now that we have an MDL, I expect breast cancer, uterine fibroids, and other cases to follow shortly.

The size of the potential plaintiff pool in this litigation is massive. Your intake form should start from a relatively simple place; any woman who regularly used hair relaxer and was later diagnosed with uterine cancer is a potential plaintiff.

Over 60,000 uterine cancer cases are diagnosed each year, and even though only a small proportion of those will be linked to hair straighteners, this MDL has immense value.

So how much are these cases worth? Some plaintiff firms have already started estimating settlement amounts, but until the MDL is established and some progress is made, I’d stress the ‘approximate’ nature of these values.

That being said, some of these estimates are substantial, making these cases highly desirable.

The Sister Study

Causation evidence connecting hair relaxer use to uterine cancer (the “Sister Study”) is very strong, making these cases more valuable than others. After all, uterine cancer is a more severe injury, and the first estimates I’ve seen range from $300,000 to $1,750,000. 

As to endometriosis, these cases will have lower values. The causation evidence is not nearly as strong as for uterine cancer, and the condition itself is less severe than uterine cancer. Lawsuits involving endometriosis as the primary injury could have a settlement payout value of around $110,000 to $300,000.

Uterine fibroid cases are also secondary in terms of settlement estimates, with at least one law firm claiming these cases will be worth $150,000 – $500,000. 

Breast cancer cases remain uncertain. The causation evidence is there to support a causal link between hair relaxer use and increased breast cancer rates, but specific causation is far more challenging. Depending on how the causation issue works out, breast cancer cases could have a settlement compensation range between $180,000 to $750,000.

Regional Demographics

These cases are bound to be hot as we enter 2023, but marketing for them may require a more delicate touch.

Due to the demographics of the plaintiffs, the plaintiff base, even if large and growing, may also be regional in nature.

Logically, there are going to be more of these cases in the South or the Northeast than in Utah. From what I’ve seen in this case, I believe we’ll see an MDL in February of 2023, and from there, it will all come down to the MDL judge.

Tylenol/Acetaminophen Litigation

Another new case we’re following closely is the Tylenol/Acetaminophen litigation, where the JPML just centralized an MDL claiming Costco, Walmart and other major retailers failed to appropriately warn that acetaminophen during pregnancy can cause autism and ADHD.

The panel has sent 64 cases to the newly created litigation as of this week, but that number is bound to grow exponentially now that we have an MDL (and attorney advertising).

The MDL is focused on the retailers rather than the manufacturers of the drug. The JPML found that all of the cases involved common questions of fact, including whether acetaminophen can cause autism spectrum disorder or ADHD, whether the sellers knew or should have known of the danger and whether they properly warned consumers.

The primary injuries from taking acetaminophen during pregnancy are autism and ADHD, but some law firms are pursuing others, including Asperger’s Syndrome, Kanner’s Syndrome, Childhood Disintegrative Disorder, and Pervasive Developmental Disorder.

Published Research

Multiple studies have found an increased risk for the disorders in children whose mothers used the drug. Some studies linked the risk to exposure over time, but only with more substantial use of the drug.

In October 2019, a study published in JAMA Psychiatry found children with the highest levels of acetaminophen metabolites in their blood at birth had the highest risk of these disorders.

According to additional research published in the European Journal of Epidemiology (June 2021), children exposed to Tylenol during pregnancy were 19% more likely to have autism spectrum disorders and 21% more likely to have ADHD symptoms compared to non-exposed children.

Because of these potential acetaminophen pregnancy risks, researchers from Columbia University warned that doctors should re-evaluate the role of the pain medication for pregnant women after finding that prenatal exposure may lead to impaired neurodevelopment in the fetus, way back in 2020.

There have been links between baby food and autism for years, and for years, lawyers have thought the baby food cases would be easier to prove. But now, armed with these new scientific studies, it appears these acetaminophen cases will be far easier. In addition, women’s medical records are replete with instructions from doctors to take acetaminophen for aches and pains, making the connection even easier to prove.

On the other hand, there won’t be any prescription records for acetaminophen, so proving each plaintiff used the drug may be more difficult.

Not the Desired District

The JPML appointed District Judge Denise Cote to manage the growing litigation out of the Southern District of New York. The MDL will eventually work to streamline discovery and a hold a series of “bellwether” trials, but for now, the Court appears more focused on master complaints and short form complaints.

SDNY was not what either side wanted; defendants sought an MDL in New Jersey and plaintiffs lobbied for the Northern District of California or Minnesota. Ultimately, the panel passed on both suggestions. The most impactful decision Judge Cote has made in this case thus far is the use of a Short-Form Complaint.

As to scheduling, much remains uncertain as this is an infant when it comes to the MDL world. Plaintiffs have been asked to file two Master Complaints this month, one against the retailers and the others against Johnson & Johnson for users of brand-name Tylenol products.

The related Short Form Complaint will allow a plaintiff to adopt certain allegations from the Master complaint and present details about their family’s individual claim. This will reduce the delays and expenses associated with transferring the individual cases to the MDL, and back to the original court.

Judge Cote has scheduled a conference on January 6, 2023, where we expect to see a final decision on the Short Form Complaint. 

Leadership Appointed

Judge Cote also recently appointed lawyers to serve in various leadership roles in the MDL. In an order issued this week, the court appointed a total of 22 plaintiffs’ attorneys to leadership positions, including three co-lead counsel, one liaison counsel, a nine-member Plaintiffs Executive Committee (“PEC”) and 12 members of a Plaintiffs’ Steering Committee (“PSC”). 

Given the widespread use of Tylenol and acetaminophen during pregnancy, it is ultimately expected that tens of thousands of claims may be brought over the coming weeks and months. This case is still a baby, so there is a lot we don’t know.

Settlements may be hard to come by, considering Johnson & Johnson’s recent history, but as to the other defendants, it will be an interesting thing to see.

Causation evidence is strong in this case, and unless Judge Cote ends up tossing out the scientific studies entirely, I think these are strong and legitimate cases.

This may end up being of the biggest cases in 2023, and we’ll be following it closely.

Craig H. Alinder, Vice President

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Disaster Averted! Camp Lejeune Attorney Fees Not Capped.

There was a minor panic over the past two weeks over the potential that the U.S. Senate would amend the PACT Act to cap attorney’s fees in the Camp Lejeune litigation.

Senator Dan Sullivan (R-AK) introduced an amendment that would severely limit any lawyer’s recovery in the Camp Lejeune cases.

Political Leanings

You can see the political leanings from the very name of the proposed amendment – the ‘Protect Camp Lejeune Victims Ensnared by Trial-lawyer’s Scams Act.’

As of this writing, there are a total of 10 senators sponsoring the amendment thus far, all Republicans and none from any state remotely close to Camp Lejeune.

As other Republican senators fell in line, the number of co-sponsors really made some attorneys worry that 2023’s cash cow would become a bust.

The Marine’s Choice

Despite the GOP’s efforts, this amendment has next to no chance of passage.

With the Democrats holding both chambers of congress and the White House, there has been no indication that any Democrat is on board, and even with Republican control of the House after January, there has been no indication that President Biden would sign such a limitation.

As of today, no Democrat has crossed the aisle to sponsor the bill, especially with the harsh limitations included.

The Chairman of the committee that Senator Sullivan’s amendment comes from seemed unconcerned.

“When this [provision] was debated, this issue was not brought up at all,” said Jon Tester (D-MT). “In the end, it’s the Marine’s choice. And if [a senator] wants to deny them that choice, then, wow.”

A Cry For Attention

The story of the amendment ended without a parade, as senate Democrats were able to block it from being discussed on the floor or even have a vote in committee.

The recent midterm elections solidified democratic control of the Senate and the White House, meaning this Amendment is effectively dead.

To my eyes, the entire idea was nothing more than a cry for attention, and I don’t expect we’ll hear much from Senator Sullivan on the subject again.

Caps Are Possible?

That doesn’t mean that caps are 100% dead though.

President Biden’s administration has not been entirely silent on the matter, and the Department of Justice earlier warned everyone that, without a cap, some attorneys could end up receiving the majority of awards.

In essence, this is on the DOJ’s radar, and I would not be surprised to see some kind of compromise to enter the picture, at more reasonable levels, like the 20-25% implicated by the initial draft of the PACT Act. Yes, this is confusing.

The confusion stems from an interesting omission. The PACT Act that was passed earlier this year does not include any discussion about attorney fees, but a 2021 version of the bill did.

That earlier draft limited attorney’s fees to 20% if the case was settled before trial and 25% if it required litigation, in line with 28 U.S. Code § 2678, the statute relating to FTCA claims attorney fees limitations.

The reason this was not included in the final legislation likely boils down to politics, as the democrats required the passage of a clean bill, without amendments.

In essence, the statute on the books is absolutely silent on the topic of attorney’s fees, even if previous drafts were not.

Concerned? Don’t be.. yet

I know a lot of lawyers that are concerned about the imposition of a severe cap like the one in Senator Sullivan’s amendment, and with good cause.

A 2% cap would make these cases hardly worth chasing. But after the passage of some time, I don’t believe there is anything to fear.

I believe the worst-case scenario would be a return to the 2021 draft, limiting attorney’s fees to 20-25%, which, for a case like Camp Lejeune, is at least moderately reasonable.

Stay tuned for any developments.

Review The Deep Dive

Anyone that has turned a TV on over the past few months knows that the Camp Lejeune litigation is the big one this year. Get caught up on Camp Lejeune here.

Craig H. Alinder, Vice President

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We’re going to start off this month’s newsletter with a case that we have not discussed here before, MDL 2873 or the Aqueous Film-Forming Foams (AFFF) Products Liability Litigation.

Film Forming Foams

This case has been in progress since 2019 and involves PFAS (also known as ‘Forever’ chemicals) that have contaminated groundwater near military bases and other industrial sites.

AFFF’s are used for a number of purposes, causing personal injury, a need for medical monitoring, property damage and other economic losses.

The defendants (3M, Chemguard, Kidde-Fenwal, National Foam, and Dynax) have deep pockets, and Bloomberg is reporting their exposure may be more than $30b.

Last week, the MDL judge rejected defendants’ motion for immunity based on being contractors for the U.S. government. The ruling came from a summary judgment motion, and its denial means that the issue will be presented to a jury, but this is still a substantial victory for plaintiffs. We’ll see if this moves the defendants to the settlement table.

I suspect we’ll see some bellwether trials next year, but there is nothing on the calendar as of now. The MDL is moving slowly, but there’s some hope that it will pick up pace now that the summary judgment phase has concluded.

3M Denied

3M’s luck isn’t any better in the Combat Arms Earplug litigation. On August 29, 2022, Bankruptcy Judge Jeffrey Graham denied 3M’s attempt to shift liability to a separate entity, as Johnson & Johnson successfully (so far) did in the talcum powder case.

Despite the subsidiary’s bankruptcy, the court will allow suits to continue against the more financially stable parent company. After 3M lost 10 of 16 bellwether trials, this should really get defendants to the bargaining table.

The MDL judge agreed and has ordered a mediation between the parties by the end of the year. We’ll see what happens in that mediation, but this one could really see some action by the end of the year.

It remains the single largest MDL in U.S. history, and the number of plaintiffs is simply staggering.

J&J ‘Two Step’ Review

As to that ‘successful’ bankruptcy procedure that Johnson & Johnson pursued in the talcum powder case, it is under review by the 3rd Circuit.

If the Court agrees with the bankruptcy court, it remains uncertain how much exposure J&J will truly avoid as they continue to maintain the ‘Texas two-step’ will be the most efficient way to resolve the claims.

Plaintiffs, along with the U.S. Trustee, the DOJ’s watchdog for bankruptcy, have argued that it is a clear attempt for the parent company to avoid liability.

Expect this one to go to the Supreme Court, no matter how the 3rd Circuit decides, by the end of 2022. If that happens, we won’t likely have an answer as to the bankruptcy issue until the end of 2023.

This one could take some time.

Plaintiff Withdraws

In the Zantac litigation, Judge Robin Rosenberg dismissed claims related to some types of cancer, allowing only 5 types to keep going in the MDL.

As you may know, the MDL judge has limited those proceedings to five types of cancer: bladder, esophagus, stomach, liver or pancreas**.

The bellwether system was supposed to start in September, but the plaintiff withdrew the case for unknown reasons. Defendants claims that they paid nothing in exchange for the plaintiff’s withdrawal.

Judge Rosenberg has not scheduled another trial yet, but certainly, this will be something to look out for as the year ends.

Any claimants with other types of cancer may still have a case, but not in the MDL. 

1 in 4 People

The bellwether trial system in the Bard hernia mesh cases have ended in mixed results.

Last month, in a Rhode Island state case, a bellwether trial resulted in a great result for plaintiff Paul Trevino. The jury there awarded plaintiff $4.8m in damages.

Plaintiff firm Motley Rice summed up the reality of this case nicely. “4000 people hurt severely by this device in the last 3 years alone. 25%, 1 in four people that were implanted with this device had another surgery to take it out.”

These cases are great value if you can find them, whether you’re in the MDL or not.

Monsanto Victory

In less satisfying bellwether news, Monsanto came out the victor in the most recent Roundup case tried before a jury.

There have been seven trials as of now, and Bayer, through their subsidiary Monsanto, has now won five straight. This is a direct hit for plaintiffs in this case, and causation remains the real challenge here.

The EPA labeled the active ingredient in Roundup as “unlikely to be a human carcinogen” in 2020.

Whether these cases hold value or not remains an open question, but with the right plaintiff and strong causation evidence, I still think they have value.

Camp Lejeune

Anyone that has turned a TV on over the past few months knows that the Camp Lejeune litigation is the big one this fall.

We discussed these cases in detail through a number of separate news blasts, but if you have a client that was exposed to the drinking water between August 1, 1953 through December 31, 1987, that was later diagnosed with several specific cancers or other diseases, these claims have real merit. And because the first step is a straightforward claims process, damages may begin getting paid as early as the first half of next year.

Competition for these claims is extreme – so get in early!

ICYMI: Roundup Roundup

We recently discussed the Roundup cases: Get Caught Up Here

Focused on Bellwethers

That’s all for this month. Some may ask why we’re so focused on the bellwether trial process, and the answer is simple.

These trials give great guidance on how these cases will end up. If the defense wins the majority, the chances of a settlement agreement go down, but if plaintiffs score some decisive victories, they’re likely to try and get out cheap and quick.

Next month, we’ll have a new JPML hearing to discuss and hopefully some new mass torts to get the end of the year off to a good conclusion.

Get out there and sign these cases!

Craig H. Alinder, Vice President

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** This list of cancers was updated for accuracy from the original newsletter that was sent on 12/01/2022. The correction was sent on 12/02/2022 with our apologies and thanks to our attentive readers for pointing out the error.

To answer the questions readers of the Mass Tort Report are asking, we have assembled this 7 part “Deep Dive” series into the Camp Lejeune Water Contamination Litigation.

This is Section 8 Geographic deep dive – what areas qualify?

What are the boundary lines of Camp Lejeune?

The Camp Lejeune Water Contamination litigation has been the biggest case of the year so far, and there are no signs of it slowing down just yet.

Under the PACT Act passed in August of this year, claimants that would have otherwise been time barred can now file claims for their diagnosis resulting from their exposure to contaminated water.

We have covered the procedure and diagnoses required for a valid case before, but this time, we have a slightly more complicated question to answer.

What are the geographic limitations of a claim? The answer is not as simple as it may seem.

Does my case fit the geographic limitations of the PACT Act?

The statute itself is the best place to start, and the text appears clear on first look, offering a claim to anyone “who resided, worked, or was otherwise exposed (including in utero exposure) for not less than 30 days during the period beginning on August 1, 1953, and ending on December 31, 1987, to water at Camp Lejeune, North Carolina.”

So, what makes this question so difficult? We need to start with a definition of what Camp Lejeune actually is in terms of a geographic location.

The map below, from a 2012 water contamination statute, may be an informative place to start.

The 2022 statute did not include any such map or any words that could adequately describe the zone of danger, but the previous description should carry some weight when considering the universe of potential claimants.

Further, the fact that dozens of law firms are using this exact map on their websites should give additional support to its use here.

The Question to Answer

The question we need to answer is whether the statute intended to offer a claim to anyone on any part of the greater Camp Lejeune complex or only to the more limited ‘Camp Lejeune Military Reservation,’ and unfortunately, the statute is silent on these specifics.

The issue is that there is a primary base called Camp Lejeune, supplemented with six satellite facilities:

1. Marine Corps Air Station New River
2. Camp Geiger
3. Stone Bay
4. Courthouse Bay
5. Camp Johnson
6. Greater Sandy Run Training Area

All of these in combination make up the greater Camp Lejeune area, and it is this area that was considered the benefit coverage area in 2012.

We have had calls from lawyers with cases from satellite facilities of the Camp Lejeune complex, such as Camp Geiger, and we believe these cases may be viable.

Making this question even more complex is a VA website that specifically includes Marine Corps Air Station New River as a zone of contamination but does not include any of the other five satellite facilities.

A Valid Claim?

The question remains, does someone that was stationed only at Camp Johnson or Camp Geiger that has a diagnosis of one of the VA’s presumed conditions have a valid claim?

Based on previous application of federal statutes and general rules of construction, the answer must be a resounding “YES.”

Could the application of the statute be different as the Department of the Navy reviews the claims? Of course.

We simply won’t know until we start hearing responses through the claims process.

However, we believe that if these claims are denied, there is a subsequent pathway to litigation.

The Line Between A Good & Impossible Case

We have reached out to a number of firms handling these to get their opinions on the dividing line between a good case and an impossible case and we’ve heard differing opinions.

Most are casting a wide net and taking any cases with a good diagnosis and any exposure from the greater Camp Lejeune complex area as long as they meet the 30-day threshold..

A few are limiting their intake to those that were stationed only at the more limited definition of Camp Lejeune.

Without naming names, one colleague summed up the answer to the question as, “Take them all! If the statute doesn’t impose limitations, why should we?”

We tend to agree with that sentiment, that taking any cases from the primary area known as Camp Lejeune as well as any of the six satellite facilities makes logical and business sense.

But it can’t be that simple, can it? Not likely.

Even though the statute may open the door to claimants from all of the Camp Lejeune’s satellite facilities, obtaining a diagnosis may be more challenging.

There have never been any allegations of any water contamination outside Camp Lejeune as defined in the more limited sense.

Put another way, there are eight water treatment plants across Camp Lejeune:

• Tarawa Terrace
• Hadnot Point
• Holcomb Boulevard
• Courthouse Bay
• Rifle Range
• Onslow Beach
• Montford Point/Camp Johnson
• New River

Only three have been identified as being contaminated:

• Hadnot Point
• Holcomb Boulevard
• and Tarawa Terrace

You can take a look the map above and establish pretty quickly the zone of exposure.

Many Factors

That’s not to say that someone stationed at Camp Geiger has no case, but it may be one factor that the Department of the Navy may take into account when evaluating the claim.

A casual look at the map shows that Camp Geiger is the geographically far from the water treatment plants that have been confirmed as contaminated, but that contamination is only one part of the story.

Two other sources of contamination occurred at Camp Lejeune in the forms of a generator tank leak and through the use of degreasing chemicals, and we don’t know specifically where those contaminations took place.

Likewise, we know nothing about the potential that water from one area of the camp was bottled, trucked or otherwise transported to other areas.

In other words, we can’t say that all water was clean and uncontaminated at Camp Geiger or any of the other satellite facilities, and as such, these cases are worth chasing, at least for the time being.

If congress intended to limit the geographic coverage of the statute in any way, they would have done so, or at least they should have done so.

Anyone Exposed

Our best recommendation is to seek and take any cases from anyone that can prove their exposure at any area within Camp Lejeune, including the six satellite facilities.

There are likely to be fewer cases that fall within the outer fringes of the map, but there are still likely valid cases.

At this time, there is no reason to be overly conservative in this regard. The standard intake should remain largely the same:

1. A diagnosis of one of the VA presumed conditions
2. 30 days of exposure at Camp Lejeune, including its satellite facilities.

Craig H. Alinder, Vice President

Calendly | Download our Latest Price Sheet

To answer the questions readers of the Mass Tort Report are asking, we have assembled this 7 part “Deep Dive” series into the Camp Lejeune Water Contamination Litigation.

This is Section 7 How to find the highest payout plaintiffs & potential settlement amounts

The Biggest Question

The question we all want to know is where the big settlement plaintiffs are, and the answers are relatively standard for this kind of case.

Due to the nature of military service, plaintiffs may be found nationwide, and potentially, even globally.

There are three primary factors to look for when it comes to making the best claim, and I would recommend looking at all three of them in conjunction with each other.

Factor 1: Exposure

First, exposure is key.

Many people will have been stationed at Camp Lejeune for years or even decades.

These plaintiffs will show a stronger element of exposure than those that only spent the 13 weeks of their military training at Camp Lejeune.

That is not to say that those plaintiffs are invalid, but the more exposure, the better.

13 weeks of boot camp clearly satisfies the statute, and I wouldn’t reject a claim on that basis alone.

However, I would try to avoid plaintiffs that have non-consecutive time on the base of 30 days over several years.

Factor 2: Diagnosis

The diagnosis is the second metric worth considering.

The VA has issued a list of eight conditions that are presumed to be causally connected to the water contamination at Camp Lejeune:

• Adult leukemia
• Bladder cancer
• Kidney cancer
• Liver cancer
• Multiple myeloma
• Non-Hodgkin’s lymphoma
• Parkinson’s Disease
• Aplastic anemia or other myelodysplastic syndromes

Outside of that list of presumed conditions, others can be claimed with an additional showing of proof, including:

• Breast cancer
• Esophageal cancer
• Female infertility
• Hepatic steatosis
• Lung cancer
• Renal toxicity
• Scleroderma
• Miscarriages, and others

An analysis of the conditions on this list show that they are serious and potentially terminal in nature.

But liver cancer is much more serious than hepatic steatosis (a.k.a. fatty liver disease), and as such, the payouts will be higher for the former and lower for the latter.

I would not reject a potential plaintiff just because they had a less serious condition, but combined with other factors, I would highly value claims with more serious diagnoses.

Factor 3: Age of Claimant at Onset of Condition

Finally, the age of the claimant at the onset of the condition should be a factor in this analysis.

If a plaintiff is diagnosed with terminal liver cancer at the age of 40, the case will hold much more value than a plaintiff diagnosed with the same cancer at age 80.

That’s not to say that diagnoses at an older age don’t hold substantial value, but this is one other aspect to be considered when analyzing an intake form.

Damages related to an in-utero diagnosis that reduces a person’s chance at happiness or income can be calculated to be much higher than someone that was only diagnosed on their deathbed.

This all relates to the ‘sum certain’ requirement in the claim filing process, and again, making a larger claim will always be better than a smaller one because the amount claimed will be the maximum award in subsequent litigation.

Still Early

There are other factors to consider, but because this case is still in its infancy, I think these three metrics should be seriously and collectively considered.

Up Next: Geographic deep dive – what areas qualify?

Craig H. Alinder, Vice President

Calendly | Download our Latest Price Sheet

To answer the questions readers of the Mass Tort Report are asking, we have assembled this 7 part “Deep Dive” series into the Camp Lejeune Water Contamination Litigation.

This is Section 6 Tips to Avoid Pitfalls Regarding Potential Claimants

Age

Obviously, when the universe of potential plaintiffs is so well defined, the primary pitfall would be taking any case that falls outside of that universe.

In this case, the intake process will be especially important and relatively simple.

Starting with the temporal aspects of the case, no lawyer should accept any client under 35 years old, unless of course, they are coming to you as a representative.

Date of birth may be the easiest metric to avoid unviable cases.

Exposure

The exposure, likewise, should be rather easy to prove.

Some potential claimants will come to you with solid, paper records that clearly show a person lived at Camp Lejeune for more than 30 days.

The longer the exposure, the better, so I would be careful of any claims that struggle to reach that minimum threshold.

At Legal Calls, most clients are not differentiating between cumulative and consecutive exposure days which is consistent with the language in the law as passed.

Confidence

As is the case with every mass tort case, a claimant’s confidence level is also a primary consideration.

I remember one person that would call our firm every time a new pharmaceutical case made the news. He would call up and tell us things like “I think I took that and now, I’m all messed up.”

Of course, the moment I asked him to get pharmacy records, he would become much more sheepish.

When considering Camp Lejeune claimants, each attorney should also consider the subjective – Does this person come across as honest, trustworthy, and legitimate?

This sounds easy, but I, like most of you, have been fooled before.

In my assessment, any person calling about these cases should have concrete dates of exposure and a doctor’s diagnosis of one of the conditions connected to the exposure, whether on the presumed list or not.

Diagnosis

As I have said before, this case gives us a well-defined universe of claimants, and we can use that to our advantage.

At intake, a showing of exposure and diagnosis should be the absolute minimum requirement.

Another consideration is the distinction between veterans and non-veterans that have been exposed.

Military records are likely to be easier to access than 70-year-old employment or medical records as a civilian.

Medical Records

Similarly, the condition claimed should be supported by medical records.

VA medical records may be the best avenue to confirm what the client is saying, as I think the vast majority of the claimants will be former military.

Again, following advertising on TV or the internet, we are seeing law firms being contacted by people claiming one of the linked conditions.

As someone that has worked in this business for a decade, I can tell you that the moment some people see ‘cancer’ on an ad, they will call and tell you that they have been diagnosed with cancer. That does not necessarily make it true.

This is why it’s so important to use a US based professional intake team that has the experience to easily recognize unreliable claimants, will not ask leading questions, and will get to the truth prior to signing a potentially unqualified claimant.

Many Legitimate Cases

There will be tens of thousands of legitimate plaintiffs out there, and by focusing on exposure and diagnosis, we can cut through a large majority of the illegitimate claimants.

As indicated above, people that don’t show confidence in their answers about either the exposure or diagnosis should be treated as speculative.

(note – LegalCalls standard procedure for all torts is to disqualify claimants who are ‘unsure’ of answers or seem to be fishing for the correct answer)

Up Next: How to find the highest payout plaintiffs & potential settlement amounts

Craig H. Alinder, Vice President

Calendly | Download our Latest Price Sheet

To answer the questions readers of the Mass Tort Report are asking, we have assembled this 7 part “Deep Dive” series into the Camp Lejeune Water Contamination Litigation.

This is Section 5 of 7: The Claimants & Criteria

Long Awaited Legislation

The Camp Lejeune Justice Act of 2022 has clearly defined the universe of potential claimants.

The primary evaluation is temporal, where any claimant must have lived or worked at Camp Lejeune between August 1, 1953 and December 31, 1987.

Potential claimants’ exposure could have happened while in utero, meaning that the youngest potential claimant in this litigation would be 35 years old in 2022. Further of note is that the statute requires the claim to have arisen before the bill was signed on August 10, 2022.

So from the outset, one primary requirement is a showing that the claimant was on the base during this window of time, for a minimum of 30 days.

There has not been a ruling giving us a clear answer at this point, but the claim would be stronger if you can show the 30 days were consecutive, and the longer the exposure, the better for your case.

Eight Conditions

The VA has issued a list of eight conditions that are presumed to be causally connected to the water contamination at Camp Lejeune.

They are:

• Adult leukemia
• Bladder cancer
• Kidney cancer
• Liver cancer
• Multiple myeloma
• Non-Hodgkin’s lymphoma
• Parkinson’s Disease
• Aplastic anemia or other myelodysplastic syndromes

Outside of that list of presumed conditions, others can be claimed with an additional showing of proof, including:

• Breast cancer
• Esophageal cancer
• Female infertility
• Hepatic steatosis
• Lung cancer
• Renal toxicity
• Scleroderma
• Miscarriages and others

If you have a client that has one of the presumed conditions, you will be in a much stronger position that if you don’t, but for the right plaintiff, with an additional showing of causation, just about any condition may be part of the litigation.

The Assessment Process

We have seen several different tacks taken by law firms in assessing whether to take a claimant’s case or not. These are decisions that each lawyer needs to make on an individual basis, considering the claimant, the exposure, the diagnosis, and more.

• Some law firms are casting a very wide net, willing to accept any client that can show 30 days of exposure, whether the exposure was consecutive or cumulative. These firms will attempt to find a diagnosis later.
• Others are taking a more restrictive approach, taking any cases where a claimant can show 30 days of exposure and a diagnosis of one of more than 80 potential conditions. This standard meets the requirements of the statute but will require an additional showing of causation if the diagnosis is not on the presumed list.
• Other law firms are taking a more measured approach, taking cases only with a showing of the required exposure and a diagnosis of one of the VA’s presumed conditions. This is the narrowest standard we’re seeing, but these claimants are in a much stronger position.

Claimant Documentation

Another criteria point that is showing variability among law firms is whether or not a potential claimant has the paperwork on hand documenting their time spent at Camp Lejeune.

Other firms are accepting verbal confirmations or signed affidavits in lieu of requiring documentation on hand, which reduces the cost per acquisition for these claimants.

Obviously, the better proof of exposure the better, and a verbal confirmation may not hold up well in the claims process.

Common Requirement

The one requirement that all law firms are enforcing is exposure, and this may be one of the hardest elements to prove.

Since we are talking about plaintiffs that may have been exposed more than 70 years ago, getting solid proof that a person was stationed at or lived on Camp Lejeune may be a challenge.

Many potential claimants are deceased, and an estate or representative may face challenges in getting this evidence.

When signing up claimants, most law firms are accepting their word when it comes to this aspect, and then asking for verification of exposure, service history, and medical records during the on-boarding process.

Claimants In Utero

Some claimants may have been in utero during their exposure through their mother.

Studies have determined that in utero exposure to Camp Lejeune water led to an increased risk of birth defects.

Camp Lejeune babies in the study were 4 times more likely to have neural tube birth defects, such as spina bifida and anencephaly.

Other conditions that may be present for these claimants are oral clefts and childhood hematopoietic concerns.

Up Next: Tips to Avoid Pitfalls Regarding Potential Claimants

Craig H. Alinder, Vice President

Calendly | Download our Latest Price Sheet