Senators defused a fight over Marine Corps Base Camp Lejeune water contamination-related lawsuits that threatened to stall final action Thursday on the annual defense policy bill.
A last-ditch effort by Senate Republicans to amend the fiscal 2023 National Defense Authorization Act with a measure capping attorneys’ fees in Camp Lejeune-related lawsuits had earlier thrown a wrench into efforts to quickly pass the sweeping defense policy bill. But Sen. Dan Sullivan, R-Alaska, the amendment's lead sponsor, agreed to back off his demand for a vote after securing an hour on the floor to speak before withdrawing his amendment.
The amendment Sullivan offered would have limited legal fees to 2 percent for Lejeune cases filed in federal court after Aug. 10 and at 10 percent in cases filed before that date.
The House passed the final version of the NDAA on Dec. 8. Senate Majority Leader Charles E. Schumer, D-N.Y., filled the amendment tree and filed cloture on the bill on Wednesday, but some senators continue to press for votes on their amendments, including West Virginia Democrat Joe Manchin III's permitting legislation.
More than 14,000 claims have already been filed in U.S. District Court for the Eastern District of North Carolina, where Camp Lejeune is located. The cases have poured in since the PACT Act was signed into law on Aug. 8, clearing the way for damage claims to be filed by those exposed to contaminated water at Camp Lejeune from the mid-1950s through the mid-1980s.
Cap called into question
Victims of the contamination called the proposed cap on legal fees simply an effort to discourage more lawsuits against the government, since few attorneys will take a case for anything less than 25 percent of the amount recovered, as allowed under the federal tort claims law.
"No attorney is going to touch a case with a 10 percent cap,” said Jerry Ensminger, a former Marine drill instructor whose daughter died of cancer nine years after she was conceived at Camp Lejeune in 1976. Ensminger was one of the first to file a damage claim in federal court in August.
“The truth is that when the PACT Act was voted on, it was only Republicans who voted against it,” Ensminger said. “Now they’re trying to kill it through the back door.”
Another Lejeune victim, Lori Freshwater, who has filed a case on behalf of her mother — who lost two babies while living at Camp Lejeune and died of two types of leukemia in 2013 — blasted the Republican efforts to cap attorneys’ fees.
“I personally would not want an attorney working on contingency for such a low amount,” Freshwater said via email. “And it’s pretty well anticipated the court will cap the fees at around 25 percent. A lot of quality firms would walk, leaving us with even worse!”
Sullivan attempted to push his legislation through the Senate by unanimous consent on Nov. 30, but Majority Whip Richard J. Durbin, D-Ill., objected to the request.
Sullivan, whose bill has attracted 13 other GOP cosponsors, including Minority Leader Mitch McConnell of Kentucky, said in a Nov. 30 news release that the legislation was an attempt to protect former Marines and family members from unscrupulous attorneys.
“Since passage of the law, trial lawyers across the country have unleashed hundreds of millions of dollars in television ads and social media campaigns, seeking out Marines and other victims for Camp Lejeune-related cases and charging contingency fees reportedly as high as 60 percent,” the release said.
“You can’t turn on a TV in America without seeing ads from trial lawyers trying to get rich at the expense of sick Marines who served at Camp Lejeune,” Sullivan said in the release. “Worst of all, we knew this was coming. The Biden Justice Department warned us that, without a cap, predatory law firms could grab the lion’s share of these judgments and leave Marines and their family members with crumbs. This is an outrage — all Americans know it, all senators know it.”
Ensminger said that while there may be some lawyers seeking to exploit victims, many law firms are taking on cases and abiding by 25 percent fees as allowed by tort law.
“While the PACT Act was a step forward for veterans affected by the water crisis at Camp Lejeune, it also opened the door for unscrupulous attorneys to prey on desperate victims and engage in lawsuit abuse,” Issa said in a statement. “As a result, millions of dollars could go to predatory law firms, rather than deserving Marines and their families.”
Bost added in a news release on the bill: “Our Camp Lejeune veterans and their families have tolerated enough. The last thing they should have to endure is high legal fees to have their day in court.”