Feds Look to Feres Doctrine in Bid to Dismiss Camp Lejeune Water Contamination Lawsuits

The federal government is trying to convince a federal court to dismiss lawsuits filed on behalf of former U.S. Marines who were allegedly sickened by polluted water while stationed at Camp Lejeune in North Carolina. In several of the lawsuits, the government is claiming that the so-called Feres doctrine bars the Marines from suing the U.S. government.

From the mid-1950s to the mid-1980s, an estimated 1 million people at Camp Lejeune were exposed to water that was poisoned by benzene, trichloroethylene (TCE), tetrachloroethylene (PCE) and vinyl chloride, which the Department of the Navy eventually blamed on an off base dry cleaner. As we’ve reported in the past, many scientists have called the drinking water contamination at Camp Lejeune the worst in the nation’s history. Lawsuits involving toxic water at Camp Lejeune have been consolidated in a multidistrict litigation and transferred to the U.S. District Court, Northern District of Georgia. These lawsuits allege that the U.S. government was negligent in disposing of the toxins that eventually contaminated water supplies at Camp Lejeune.

According to a report from Law360.com, the U.S. Justice Department has filed motions in the multidistrict litigation to have it dismissed. In one motion, the government maintains three of the complaints are barred by the Feres Doctrine, a 60-year-old Supreme Court decision which holds that service members may not sue under the Federal Torts Claims Act for injuries “arising out of or sustained incident to military service.” Advocates for military personnel have long insisted that the Doctrine was meant to cover situations that occur during battle or in the course of armed forces activities. However, over the years, Courts have extended that restriction to medical care received stateside, and U.S. troops are prevented from suing the U.S. government if they are injured by a negligent doctor or other healthcare practitioner within the military healthcare system. Recently, the government has been trying to convince courts that the Feres Doctrine also applies to the families of military men and women.

Advocates for military personnel have long decried the expansion of the Feres Doctrine. For years, they’ve been lobbying Congress to amend the Federal Tort Claims Act to protect the legal rights of active duty military personnel and their families. Although there have been attempts to do this over the past 60 years, they’ve mostly not gone anywhere. As we reported previously, the most recent attempt came in 2009, but Republican lawmakers balked because such an amendment would allow more malpractice cases to get to trial, something that runs counter to their goal of enacting tort reform.

The second motion filed on Monday by the Justice Department claimed all seven Camp Lejeune lawsuits currently pending in the multidistrict litigation should be dismissed, based on the so-called discretionary function exception to the Federal Tort Claims Act, which bars litigation based upon the performance or failure to perform a “discretionary function or duty” on the part of the government, Law360.com said. The motion argues that because the Plaintiffs’ cannot point to any statute that imposes duties upon the U.S. to provide safe water, such duties are “discretionary.”

It’s important to note that in both motions, the government concedes that the water contamination at Camp Lejeune was due, in part, to the military’s disposal practices,

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