Highlighting an area of unsettled law in North Carolina toxic tort litigation, a federal district court in the Eleventh Circuit held that the pre-2014 North Carolina statute of repose contained no exception for latent disease, barring disease-based toxic tort suits ten years after they accrue. Specifically, the U.S. District Court in Georgia held that North Carolina's ten-year statute of repose barred the claims of U.S. Marine Corps service members and their families in a multidistrict litigation (MDL) based on personal injury allegedly resulting from exposure to contaminated drinking water. See In re: Camp Lejeune North Carolina Water Contamination Litigation, No. 1:11-MD-2218, 2016 WL 7049038 (N.D. Ga. Dec. 5, 2016).
Plaintiffs alleged across multiple (now consolidated) cases that while on base at Camp Lejeune, they were exposed through the base’s drinking water to benzene, trichloroethylene (TCE), tetrachloroethylene (PCE), dichloroethene (DCE), and vinyl chloride through contaminated wells as late as 1987, eventually resulting in illness and death. The government contended that because the earliest suit was filed in 1999, more than ten years after the last government act alleged to cause illness, it was barred by the North Carolina statute of repose. Plaintiffs responded that the statute of repose contains an exemption for latent disease. The Northern District of Georgia, the federal court that oversees the MDL, applied an Eleventh Circuit interpretation of North Carolina’s ten-year statute of repose, which held that the North Carolina statute in effect at the time Plaintiffs filed suit contained no exemption for latent diseases. Bryant v. United States, 768 F.3d 1378 (11th Cir. 2014), cert. denied, 136 S.Ct. 71 (2015).
The court was careful to note that its decision is based on a now-amended North Carolina statute of repose and also is in conflict with an opinion from the U.S. Court of Appeals for the Fourth Circuit. After Plaintiffs filed their cases, the North Carolina legislature amended the statute of repose so that it “shall not be construed to bar an action for personal injury . . . caused or contributed to by groundwater contaminated by a hazardous substance, pollutant, or contaminant” resulting from “consumption, exposure or use” of the water. N.C. Gen. Stat. Ann. § 130A-26.3 (2014). The legislature’s exemption is limited to groundwater contamination causing harm, leaving open the issue of other contaminated media causing similar personal injury.
Plaintiffs argued that the MDL court should follow the Fourth Circuit’s opinion in Stahle v. CTS Corp., 817 F.3d 96 (4th Cir. 2016), which found an exemption in the statute of repose for latent disease, reaffirming “that ‘the [North Carolina] Supreme Court does not consider disease to be included within a statute of repose directed at personal injury claims unless the Legislature expressly expands the language to include it.’” Stahle, 817 F.3d at 103-04 (quoting Hyer v. Pittsburgh Corning Corp., 790 F.2d 30, 34 (1986)). The District Court declined to do so. The court applied the general rule in MDL-transferred cases that the transferee court, here the federal district court in Georgia, is bound by the law of the Circuit in which it sits in cases where jurisdiction is based on federal law rather than diversity. As a result, the court followed the Eleventh Circuit’s Bryant opinion and dismissed.
This alert was prepared with the assistance of Zajeer H. Tajani.
