Six month deadline for filing Court action after FTCA denial

[Craig Kabatchnick]

Please beware that under the Federal Tort Claims Act, 28 U.S.C. 1346, once an adminsitrative claim denial is sent out by the Department of the Navy, you only have SIX MONTHS to file suit in U.S. District Court. At that point, the U.S. Department of Navy will be represented by the Department of Justice. If you miss that six-month filing deadline by even a day, your claim is gone forever.

That is why the delays in this case, and lack of communication are so crucial.

I am still assembling a massive and growing team to handle VA claims for those who had their claims dismissed by the Department of the Navy based on the FERES Doctrine. VA claims and Federal Tort Claims are two entirely separate entities. There is no time deadline to file a VA claim, and the standards of proof are lower and easier to achieve.

I am monitoring the FTCA situation very closely, but based on the involvement and actions already taken by the prior law firm, I have not received clearance to take on the Federal Tort Claims Act cases as of this time.

Professor Craig M. Kabatchnick

[Andrea Byron]

I think at this point the 6 months to file after being denied on the Form 95 has been waived until further studies etc. have been completed. If I am incorrect, someone please advise me otherwise. Also, it is my understanding that the 2 year statute of limitations has also been waived in lieu of further studies etc. Again, if I am incorrect, someone please advise me otherwise with documentation. Thanks!

[Mpartain]

I hope you are right Andrea, there are 2 people that I know that are outside the SOL and would be very pleased to hear that. One of them is a male breast cancer patient like me who discovered his cancer a little over 2 years ago but could not obtain legal representation in time.

Mike

[Craig Kabatchnick]

Dear Andrea,

As I said to Mike, first, I am not involved in the FTCA claims (SF-95's), I am only handling VA claims, two different entities. However the standard I believe, and I may be mistaken, under 28 U.S.C. 1346 (The Federal Tort Claims Act) is that the statute of limitations starts to run when the individual "knew or should have known" that he had a claim. Once that final denial is sent out be certfied mail from the Department of the Navy it is my understanding that you have six months to appeal to the United States District Court. Just check out Federal Tort Claims Act and statute of limitations under Google. However, you understand the inside scoop on these cases, so anything else is news to me. I do know from personal experience that the standard normally is: that the claims acccrue for statute of limitation purposes when the plaintiff knew or should of known that he had a claim is two years from the date of that event, as determined by the Court, and the claim must be filed within six months of receipt of the certified denial letter from the military.

The caselaw is out there on this issue. However, you have lived with and understand the Camp Lejeune issues more than I do. Maybe you know something I don't know.

Take care,

Craig

[Craig Kabatchnick]

Dear Andrea,

As I said to Mike, first, I am not involved in the FTCA claims (SF-95's), I am only handling VA claims, two different entities. However the standard I believe, and I may be mistaken, under 28 U.S.C. 1346 (The Federal Tort Claims Act) is that the statute of limitations starts to run when the individual "knew or should have known" that he had a claim. Once that final denial is sent out be certfied mail from the Department of the Navy it is my understanding that you have six months to appeal to the United States District Court. Just check out Federal Tort Claims Act and statute of limitations under Google. However, you understand the inside scoop on these cases, so anything else is news to me. I do know from personal experience that the standard normally is: that the claims acccrue for statute of limitation purposes when the plaintiff knew or should of known that he had a claim is two years from the date of that event, as determined by the Court, and the claim must be filed within six months of receipt of the certified denial letter from the military.

The caselaw is out there on this issue. However, you have lived with and understand the Camp Lejeune issues more than I do. Maybe you know something I don't know.

Take care,

Craig

[wednesday]

Craig...when you say, two years from the date that a person knew or should have known, are you saying that if I found out in June of 07 about the contamination and think that I have a claim, that I would only have till June of 09 to file that claim???Wednesday

[Craig Kabatchnick]

Dear Wednesday,

I had a case involving this exact issue, not Camp Lejeune, but the issue of when the Plaintiff knew or should have known they had a claim. After a two year battle we lost, we argued the date should have been a later date, but the Court was persuaded by arguments presented by the Department of Justice that an earlier date applied, and that the statute of limitations had run. We were handed the case by another law firm over one year after the date that the Court subsequently determined that the statute of limitations had run. It is literally "knew or should have known". It is the "should have known" aspect that is tricky, and subject to the discretion of the Court, the final adjudicator at that point of the case, so be cautious and careful.

Cases that fit squarely within the presumed disabilities listed by ASTDR as related to the contaminated groundwater, if timely filed, as I believe they have been, are valid and ripe to be adjudicated either at the adminstrative or judicial levels. Because of the limited number of presumed disabilities at this time, those cases are limited in numbers at this time, but I bet that the presumed list of disabilities will continue to multiply and grow.

Again, I am not handling the FTCA cases, just VA claims related to Camp Lejeune.

Take care,


Craig

[Guest]

Mr. Kabatchnick, It would be helpful, if you or someone from your team would post a list of the illnesses which have been definately linked to the contamination at Camp Lejeune. On one hand, it seems that the rules say we can only file, if we have definate scientific proof that we were harmed. On the other hand, the rules say that we will lose our standing, if we don't act soon enough. It looks to me as if the whole thing is stacked in the DoD's favor. People are dead, dying and suffering and the system is playing games with limited studies and limited findings. What about the Camp Lejeune Scientific Advisory Panel which presented findings to Congress in 2005? Dr. Maas, a member of that panel and co-director of the Environmental Quality Institute at the University of North Carolina at Asheville told the Asheville Citizen-Times, "Camp Lejeune presents a groundwater contamination site of unusually high level of concern". He also told the Citizen-Times, "It became clear to me from my work on the panel that our country had treated these people unfairly. There should immediately be legislation passed that offers health care compensation to the thousands of people who were exposed to this contaminated drinking water and are now experiencing severe health effects." My husband tried to contact Dr. Maas, after reading the Asheville Citizen-Times article; he was on vacation. Unfortunately, before Dr. Maas' vacation was over and before my husband could get in touch with him, Dr. Maas was killed in an auto accident. If we go by all of the legal ins and outs, what is to prevent the government from saying that we all should have known we were harmed when our family members started dying of rare diseases or because they are dibilitated by multiple diseases? After all, there have been reports like the one which the Camp Lejeune Scientific Advisory Panel presented to Congress in 2005. The legal community, the medical community and the DoD say there is not enough evidence, yet there have been reports made to Congress that seem to indicate otherwise. It's all double talk and when it suits the purpose of this system to remember that the Camp Lejeune Scientific Advisory Panel made this report, they will remember it. Please have someone list the illnesses which have been definately linked to Camp Lejeune water contamination. If we don't have one of those illnesses, it will free us up to stop searching for legal help and pursue other means of obtaining help. Thanks so much in advance, n/a

[Andrea Byron]

Craig,
You are correct on the Federal Tort Claims Act- I am quite familiar with it at this point. Typically, it would be 2 years from the date that the person knew or should have known, but in this particular situation, unless something has changed since I last heard, the statute is not running at this time. I believe that this is because a majority of the people who may have been affected are still not aware of the issue. I wanted to thank you for assisting people with their VA claims- there are definitely people involved in this whole mess that could use some help with this sort of thing.


Wednesday,
Under FTCA it does mean that if you found out in June 2007, you would have until June 2009 to file a suit. Like I was stating previously, I believe at this time that timeframe has been waived. I don't want anyone quoting me on that, but last I heard, that was the case.

n/a,
I'm not sure that I am correct in saying this, but I don't know that there is a definitive list of illnesses that can be directly correlated with the contamination at Lejeune. As I am sure you are aware, a study was done on children who were in utero while their mothers were at Lejeune and certain illnesses/birth defects were of interest. I can't think of all of them off hand, but I'm fairly certain that leukemia, cleft palate and spina bifida were on the list. I'll have to look back through my paperwork to get you an exact list of the things they were interested in after conducting the study. There are however a lot of illnesses/disease/birth defects that are thought of by the medical community which could possibly be attributed to chemical exposure. My disease, aplastic anemia, has been directly linked to benzene exposure. The best thing to do might be to find out more about your illnesses and see what the common consensus is of the medical community and linking contaminants to the illnesses. You may also want to look at Material Data Safety Sheets (MSDS) on the particular chemicals involved. They will typically state some issues that may be expected when exposed at certain levels. I hope that this offers some help.

[Mpartain]

I was reading Mrs Bruce's post and wanted to throw this out to see what you all think....

This is my understanding...ATSDR is currently conducting a feasibility study on the children who were in utero or spent the first year of life at the base. These children are being studied for illnesses diagnosed before the age of 20 years. I am one of those children conceived and born at the base. According to a researcher I spoke with at Boston University who studied PCE/TCE, as us kids start to enter our 40's and 50's, cancer is going to start popping up more and more in our lives. I was born underweight and with a severe rash in 1968. Then this year I am diagnosed with male breast cancer and a 2.5 Cm tumor. I am BRCA (herediatry BC mutation) negative with no history of of breast cancer in my family. I am outside the current ATSDR study.

There is another young lady here in Tallahassee whose name is Martina. She was conceived at LeJeune in 75 and at the age of 31, she was diagnosed with a rare form of a slow growing cancer in her pituitary gland. Like me, she is outside of the ATSDR study.

Then, there is the gentleman that called me last week from Alabama. He was a child on the base in the 60's. He lived in Tarawa Terrace and 2 years ago at the age of 47, he was diagnosed with male breast cancer and a golf ball sized tumor. Like me, he has no history of breast cancer in his family. Because he was older than 1 year when he arrived at the base and he was diagnosed after age 20, he is outside of the current ATSDR study.

I wonder what the statistics would say if they conducted a lifetime study of the most at risk group? Us kids.

Just a thought,

Mike

l

[Guest]

Mike, I'm sorry for your illness and those of the people you have talked to. I have wondered the same thing. Limited studies produce limited findings. Is it possible for this government (ATSDR) to say these chemicals produced health effects when people were contaminated at some non military contamination sites, while this government (DoD) says more studies must be done at Camp Lejeune? My God, according to Dr. Gerald LeBlanc (Dept. of Environmental & Molecular Toxicology, North Carolina State University) there are 70+ contaminants at Camp Lejeune. At least 14 of those contaminants are on the ATSDR's 2005 top 20 list of most hazardous substances. Is it possible that who did the contaminating, how many contaminants are involved and the huge number of people in need of help, is more important than completing a thorough study of the people who were contaminated? Why are those contaminants on the ATSDR's 2005 top 20 list? What criteria did the ATSDR use to determine that they belong on that list? Was there a study of the chemical's health effects on humans or just on test animals? If whatever testing method the ATSDR used was adequate enough to place those chemicals on the top 20 list, why is it not good enough to determine that Camp Lejeune victims' illnesses are a rusult of the contaminants on the top 20 list? I think this nation should help Camp Lejeune victims on a humanitarian basis. This nation has provided humanitarian aid to countries from whom the Camp Lejeune Marines protected us, in the past. Simply, some of the nations who have received aid, were our enemies. The Camp Lejeune Marines protected us from those enemies. I will never understand why this nation has provided those nations with humanitarian aid while letting Camp Lejeune Marines and their families struggle in this broken health care system. The impact of constant medical bills on a family is a terrible strain. The legal, medical and political ins and outs of all of this is just one more strain on those families. In the background, there is always the fact that limited studies produce limited findings. I pray that our representatives in DC will realize that it is not appropriate for this system to limit studies to a small fraction of those who were contaminated, when this system put the victims in a position to be contaminated. Our representatives in DC can provide humanitarian aid to these families, if they want to. n/a