How Do Military Members Get Compensated for Toxic Exposure Injuries?
Those who lived and worked at North Carolina’s Marine Corps Base Camp Lejeune now have a chance at justice, decades after they were exposed to dangerously contaminated water that gave them a laundry list of health problems.
Thanks to the 2022 Camp Lejeune Justice Act (CLJA), signed into law in August by President Joe Biden, qualified veterans, their family members and civilians can file a Camp Lejeune lawsuit against the federal government.
But Camp Lejeune is just one of at least 400 U.S. military installations with toxic chemicals in the water supply. These contaminants include per- and polyfluoroalkyl substances (PFAS), jet fuel, lead paint, radioactive substances, TCE, PCE, benzene, and more. Nearly all were detected in amounts hundreds of times higher than safe levels. Some military officials knew of the danger and kept it quiet for decades.
As a result, untold men, women and children developed or even died from serious health complications, including but not limited to:
- Heart problems
- Aplastic anemia
- Birth defects, infertility, miscarriages
- Liver and kidney disease
- Autoimmune disorders
- Parkinson’s disease
- Non-Hodgkin’s lymphoma
- Many types of cancer
And yet, those poisoned by contaminated water on bases other than Camp Lejeune remain prohibited from suing the government for damages like pain and suffering, lost wages, enjoyment of life, and more.
Why? And if they’re not entitled to bring a lawsuit, how are they compensated for their toxic exposure illnesses and injuries?
The Federal Tort Claims Act and Sovereign Immunity
Before the passage of the Federal Tort Claims Act, citizens could not sue the federal government for injuries caused by a government employee. Instead, the injured party had to send a statement to Congress summarizing their injuries and damages. Congress would decide whether or not to act on these claims.
The passage of the Federal Tort Claims Act in 1946 streamlined this tedious process. Prior to this, federal employees enjoyed sovereign immunity, a concept derived from British common law, which means the government cannot be sued without its consent. The Federal Tort Claims Act waived this immunity, but only for a short list of specific personal injury claims.
However, the Act does not apply to military members due to the Feres Doctrine, a controversial legal principle more than 70 years old. It shields the government from lawsuits by servicemembers injured on duty. This doctrine has protected the military from legal action over sexual assault, training mishaps, and more.
The National Defense Authorization Act made an exception for medical malpractice, which doesn’t allow servicemembers to sue but permits injury or death claims against military physicians (but only in limited circumstances).
As Camp Lejeune lawyers help water contamination victims to file claims through the Camp Lejeune Justice Act, lawsuits brought by water contamination victims at dozens of other military bases have been dismissed under sovereign immunity.
In just one example, a U.S. District Court recently dismissed a 2021 negligence suit filed by former residents of California’s George Air Force Base, which was decommissioned in 1992 after being named an EPA Superfund site (a designation reserved for extremely toxic areas). Affected residents developed cancer, heart disease, miscarriages, infertility, and other issues from 33 hazardous chemicals found there.
Sovereign immunity isn’t the only barrier facing other water contamination victims. For example, residents of Michigan’s Wurtsmith Air Force Base cannot sue under the Federal Tort Claims Act because it does not include exceptions to statute limitations or other time limit restrictions. Before the Camp Lejeune Justice Act, more than 850 Camp Lejeune lawsuits were dismissed because they fell outside North Carolina’s ten-year statute of limitations.
Sick Veterans Still Waiting for Justice
Various efforts in Congress, especially by Rep. Dan Kildee (D-Flint), to help thousands of other veterans and their families sickened by on-base toxins have failed.
Kildee has introduced the Veterans Exposed to Toxic PFAS Act (VET PFAS Act) three times without progress, most recently in March 2022. PFAS were found, among other places, in firefighting foam used in training and real-world situations at military bases nationwide.
Under the bill, major illnesses associated with PFAS exposure would be considered service-connected disabilities, qualifying victims for medical treatment and disability payments from the VA.
The VA currently refuses to recognize PFAS-related illness as service-connected, despite growing studies showing that high PFAS exposure is a health hazard. The Dept. of Defense continues to deny that veterans were highly exposed, ignoring strong evidence to the contrary.
Because of this, veterans who claim disability are routinely denied when seeking coverage for anything related to toxic exposure, even those with medical documentation connecting it to their condition.
The VA makes rare exceptions on an “individual, case-by-case basis after a physical examination and a review of a veteran’s case.”
Kildee introduced another now-dead bill in 2018 related to TCE exposure.
There are some signs of progress too early in the process to predict. In 2018, Congress approved a $10 million annual defense bill to begin health studies of communities near eight military bases with PFAS in the water. The studies conducted by the CDC’s Agency for Toxic Substances and Disease Registry are ongoing.
For now, veterans must continue suffering without compensation for toxic exposure injuries sustained while serving their country.
