In a recent decision, the Rhode Island Superior Court ruled that claims brought against a dissolved entity’s insurers are barred pursuant to R.I. General Laws § 27-7-2.  This statute bars direct actions against insurers of alleged tortfeasors absent very limited exceptions.

In Shirley D’Amico, et al. v. A.O. Smith Corp., et al. (C.A. PC12-0403), the Rhode Island Superior Court examined whether one of those exceptions to R.I. General Laws § 27-7-2, which allows direct actions against the insurers of a bankrupt entity, similarly permits a direct action against the insurers of a dissolved entity.  The underlying facts of the case were straightforward.  Plaintiff alleged that her husband, Frank D’Amico, died from malignant mesothelioma proximately caused by occupational exposure to asbestos.  This exposure, according to Plaintiff, took place during Mr. D’Amico’s service in the United States Navy and his subsequent employment at various golf courses.  Plaintiff filed the original complaint on January 25, 2012.  After multiple amendments, Plaintiff filed a fifth amended complaint on June 11, 2015, to include Grover S. Wormer Company (“Wormer”) as a defendant.  In accordance with Michigan Corporate Code, [1]Wormer was dissolved as of January 10, 2008.  As such, on February 28, 2018, the Court dismissed Plaintiff’s claims against Wormer, finding they were barred by the laws of State of Michigan.

Continue Reading Rhode Island Court Bars Direct Claim Against Insurers of Alleged Tortfeasor

The Florida Asbestos and Silica Fairness and Compensation Act (the “Act”) has governed asbestos litigation in Florida nearly seamlessly for more than a decade until a series of recent challenges threw a wrench into the system by calling into question its constitutionality.

The purpose of the Act, which came into effect in June 2005, is to preserve funds of viable defendants in asbestos litigation to ensure compensation for those who develop or may develop asbestos-related cancers or an actual physical impairment caused by asbestos, and enhance the ability of the judicial system to supervise and control asbestos litigation. See § 774.202. While Defendants will argue the Act has served its purpose, Plaintiffs contend quite the contrary. In three separate motions filed in the Robert G. Clark, et. al. v. Borg Warner Corporation, et. al., Case No. 14-027985, Miami-Dade County, Florida case, Plaintiffs attempt to undo the legislative reform of asbestos litigation in Florida by challenging the constitutionality of the following provisions of the Act: (1) the pleading requirements for establishing an alleged non-malignant asbestos-related physical impairment; (2) the limitations on the liability of sellers and retailers; and (3) the abolition of punitive damages.

In the first of the three motions, Plaintiffs address the provisions of the Act, which govern the pleading requirements applicable to plaintiffs pursuing claims for non-malignant asbestos-related diseases. See Fla. Stat. §§ 774.204(1) and 774.205(2). These provisions require a plaintiff to demonstrate a “physical impairment” by requiring them to file prima facie evidence supporting his/her alleged asbestos-related injury along with their complaint. In Clark, while Plaintiffs provided medical documentation, which they maintain establishes Mr. Clark’s alleged diagnosis of asbestosis, they concede not only that the documentation provided does not meet the requirements of the Act, but also that they will never be able to meet those requirements. As such, they argue that these provisions of the Act should be declared unconstitutional on the following grounds: (1) they are procedural in nature, and therefore violate the separation of powers provision of the Florida Constitution; (2) they restrict access to the Courts; and (3) they violate Plaintiffs’ right to equal protection.

Plaintiffs’ first argument in support of this motion is based on the premise that the Act is procedural in nature, and therefore violates the separation of powers provision of the Florida Constitution, which grants the Florida Supreme Court exclusive authority to enact procedural laws. Plaintiffs look to the Florida Supreme Court’s ruling in Massey v. David, 979 So.2d 931, 936 (Fla. 2008) (citing Allen v. Butterworth, 756 So.2d 52, 59 (Fla. 2000)), which states “[g]enerally, the Legislature is empowered to enact substantive law” and the Florida Supreme Court “has the authority to enact procedural law.” In Massey, the Court described the difference between procedural and substantive law as follows:

 

Substantive law has been defined as that part of the law which creates, defines, and regulates rights, or that part of the law which courts are established to administer…On the other hand, practice and procedure encompass the course, form, manner, means, methods, mode, order, process or steps by which a party enforces substantive rights…

 

Massey, 979 So.2d at 936-37. Relying on the Courts explanation in Massey, Plaintiffs argue that the Act is clearly not substantive in nature because it does not “create, define or regulate” any rights that did not already exist at common law. Instead, Plaintiffs contend that the Act is procedural because it (1) creates priorities among injured plaintiffs by giving priority to plaintiffs that can demonstrate actual physical impairment; (2) regulates the manner in which an injured plaintiff can enforce substantive rights that existed at common law; and (3) conflicts with the Florida Rules of Civil Procedure by requiring harsher pleading requirements.

Next, Plaintiffs contend that the provisions of the Act governing the pleading requirements violate Florida’s constitution by restricting access to the Courts for those plaintiffs, like Mr. Clark, who are injured but not considered as having a “physical impairment” as defined by the Act. Plaintiffs again look to the Florida Supreme Court for guidance citing the two-part test set out in Kluger v. White, 281 So.2d 1, 4 (Fla. 1973), which precludes the Legislature from restricting access to the courts “without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show (1) an overpowering public necessity for the abolishment of such right, and (2) no alternative method of meeting such public necessity can be shown.” Plaintiffs argue the Legislature failed to meet either prong.

Lastly, in support of their first motion, Plaintiffs argue that the Act violates the Equal Protection Clause of the Florida Constitution. First, Plaintiffs contend that the Act denies recovery to plaintiffs based on arbitrary criteria distinguishing those it deems have a physical impairment and those that do not. Second, Plaintiffs assert that the Act fails to meet the requirements of the Florida Supreme Court’s rational basis set out in McCall v. United States, 134 So. 3d 894, 901 (Fla. 2014). The McCall test requires a determination of (1) whether the challenged statute serves a legitimate governmental purpose, and (2) whether it was reasonable for the legislature to believe that the challenged classification would promote that purpose. The intent of the Act was to preserve funds of viable defendants in asbestos litigation to ensure that plaintiffs who develop asbestos-related cancers can be compensated and continue to contribute to the state economy.  Plaintiffs argue that there is a lack of data to support the stated purpose of the Act and the limitation of the number of cases filed by plaintiffs who were injured, but not “impaired” as required by the Act’s pleading requirements does not bear a rational basis to that purpose.

In their second motion, Plaintiffs challenge the Act’s prohibition of strict liability claims against sellers and retailers of asbestos-containing products. They contend that this provision, Fla. Stat. §774.208, violates the Equal Protection Clause of the Florida Constitution by creating the following arbitrary distinctions: (1) discriminating among plaintiffs injured by defective products by making an unnecessary distinction between those who are injured by asbestos and those injured by all other defective products; and (2) wrongfully distinguishing between product sellers based solely on the product they sell; i.e., by distinguishing between sellers of asbestos-containing products and sellers of all other defective products. Plaintiffs again assert that this provision of the Act fails the rational basis review under Florida’s McCall test, as set forth above, given the lack of legislative findings to support the purpose of the statute. And, even if the Court were to decide that the Legislature had a legitimate governmental purpose for this provision, preventing all plaintiffs from asserting strict liability claims against sellers and retailers is not rationally related to achieving the stated goals of preserving assets to compensate future plaintiffs or protect Florida’s economy. Notably, Plaintiffs failed to aver in their motion that they are unable to assert claims for strict liability against any of the defendants named in their complaint. So whether they even have standing to bring this motion in the Clark case is yet to be determined.

In their third and arguably most significant motion, Plaintiffs seek punitive damages against one of the defendants in Clark and challenge the constitutionality of the Act’s provision that abolishes punitive damages, Fla. Stat. §774.207. In the motion, Plaintiffs first provide the bases for why punitive damages are warranted against the defendant in question. Next, Plaintiffs present their constitutional challenge of the Act’s prohibition of punitive damages arguing that it violates the Equal Protection Clause of the Florida Constitution. Plaintiffs contend this provision creates an arbitrary distinction –this time, by immunizing manufacturers of asbestos–containing products against punitive damages, even when they have engaged in grossly negligent or intentional misconduct, while manufacturers of all other products remain subject to punitive damages in Florida. Plaintiffs also contend that the Act’s bar on punitive damages fails the rational basis test under McCall, because the legislative record supposedly does not support the stated purpose of imposing a punitive damages bar against defendants in asbestos. According to Plaintiffs, regardless of whether this provision serves a legitimate governmental purpose, the Act does not preserve assets for sick plaintiffs by precluding punitive damages in a small number of Florida lawsuits.

These motions are still in a very preliminary posture and discovery relevant to the constitutional challenges is currently being conducted. Nevertheless, they will be closely watched, as the outcome could have far-reaching effects on asbestos litigation in Florida.

lungsIn what asbestos litigation defendants hope will become a growing trend, the United States District Court for the District of Maryland recently drew a clear distinction between expert testimony as it relates to causation of both pleural mesothelioma (affecting the lining of the lung) and peritoneal mesothelioma (affecting the stomach).  In Rockman v. Union Carbide Corp, et al., 1:16-cv-01169-RBD, 2017 WL 3022969, the court recently granted defendant Union Carbide and Georgia-Pacific’s motion to preclude expert testimony as to causation and in turn, sustained defendants’ motions for summary judgment.

 

Rockman involves plaintiff Jeffrey Rockman, who allegedly developed peritoneal mesothelioma resulting from asbestos exposure during three minor home repair projects in 1965, 1973 and 1976; all lasting no more than several weeks in total.  It is undisputed that plaintiff did not perform those home repairs himself, but rather hired a handyman.  Mr. Rockman contends that Georgia-Pacific “Ready Mix” joint compound was used in all three repairs, that it contained Union Carbide asbestos, and that its use generated asbestos-containing dust, to which he was exposed.  Plaintiff was merely a bystander.

 

In support of his claims, plaintiff submitted the expert testimony of Dr. Jerrold Abraham, Dr. Arthur Frank and Dr. Arnold Brody who specifically concluded that plaintiff’s alleged exposures to Union Carbide chrysotile asbestos contained in Georgia-Pacific’s Ready Mix joint compound caused him to develop peritoneal mesothelioma.  Additionally, Dr. Brody concluded that “each and every” exposure to asbestos “cumulates” and should therefore be considered a cause of the injury, regardless of the type of mesothelioma, the exposure dosage, or the type of asbestos.  In reaching these conclusions, plaintiff’s experts relied on numerous studies of pleural mesothelioma despite reports from Dr. Abraham and Dr. Brody acknowledging that peritoneal mesothelioma is typically caused by higher exposure levels than pleural mesothelioma.

 

In assessing the reliability of plaintiff’s expert’s testimony, the court turned to Rule 702 of the Federal Rules of Evidence as well as the long established U.S. Supreme Court interpretation of Rule 702 set forth in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 588 (1993) and recently reaffirmed in Bresler v. Wilmington Trust Co., 855 F.3d 178, 195 (4th Cir. 2017) allowing the courts to “act as a gatekeeper to ensure that testimony is relevant and reliable”.  Id.  In assessing the validity of the methodology employed by a proposed expert witness, a court may consider whether the expert witness’ theory or technique: (1) can be or has been tested; (2) has been subject to peer review and publication; (3) has a high known or potential rate of error; and (4) is generally accepted within a relevant scientific community.  Id.

 

Ultimately, the Court determined that plaintiff’s expert’s specific causation opinions are not the product of reliable principles and methods as required by Rule 702.  Contrary to the factors set forth in Daubert, Drs. Abraham and Frank had improperly drawn conclusions about a case involving peritoneal mesothelioma and low-level bystander exposure to chrysotile asbestos, basing their opinions entirely on prior research studying pleural mesothelioma and primarily high-level exposures to amphibole asbestos.  Both experts cited a series of studies involving high-level occupational exposures to asbestos.  In contrast, plaintiff has not alleged that he ever worked with asbestos or used an asbestos-containing product.  Rather, he was merely present while workers completed various repair tasks at his home in 1965, 1973 and 1976.

 

Plaintiff first argued that although each type of mesothelioma requires different levels of asbestos exposure, plaintiff is not required to show a quantitative estimate of a patient’s asbestos “dose”, but rather, a “significant” exposure to asbestos will suffice.  The Court, however, rejected plaintiff’s argument, as neither Dr. Abraham nor Dr. Frank were able to demonstrate plaintiff’s exposure was significant in the context set forth in Yates v. Ford Motor Co., 113 F. Supp. 3d 841, 861-62 (E.D.N.C.) (holding that the use of the term “significant . . . implies that a certain level has been established at which the asbestos exposure attains ‘significance’”)  The court in Rockman went on to note that Drs. Abraham and Frank even acknowledge that peritoneal mesothelioma is typically caused by higher exposure levels than pleural mesothelioma.  As such, because plaintiff was merely a bystander on three short-term occasions, plaintiff’s exposure could not be classified as “significant”.

Plaintiff’s second argument was that, regardless of whether plaintiff’s exposure was significant, “each and every” exposure to asbestos cumulates and should therefore be considered a cause of the injury, regardless of dose, the type of asbestos, or the type of mesothelioma.  The court further rejected this argument and held that despite this theory’s repeat appearances in asbestos litigation, courts have routinely excluded expert testimony grounded in this theory on the grounds that it lacks sufficient support in facts and data.  Comardelle v. Pa. Gen. Ins. Co.,76 F. Supp. 3d 628, 632-33 (E.D. La. 2015); see also Wills v. Amerada Hess Corp., 379 f.3d 32, 49 (2nd Cir. 2004) (affirming exclusion of theory that decedent’s cancer was caused by a single exposure to toxic chemicals, regardless of dosage, based on Daubert factors.   Thus, the court held that “[w]ithout epidemiological studies – or other reliable evidence – demonstrating a causal link between injury and exposure, expert testimony amount[s] to no more than mere speculation and conjecture.

Therefore, because plaintiff’s expert testimony as to causation was excluded, the court was left with no choice but to sustain defendant’s Motion for Summary Judgment.

 

Future Impact

 

This case has the possibility to have a major impact on Maryland asbestos and toxic tort litigation because it not only draws a clear distinction between the standard of causation for peritoneal mesothelioma and pleural mesothelioma cases, but also because it does not allow plaintiff’s experts to rely on the cumulative dose of asbestos as a basis to assign causation to a particular product.  Although this ruling comes from a local District Court, asbestos litigation defendants hope that it will begin to set a jurisdictional trend among other courts and force plaintiff’s experts to take a closer look at the necessary exposure levels between both types of mesothelioma, in order to demonstrate causation.

 

A tale of two verdicts (1)Frequently as litigators, we are faced with questions about which factors can make or break a trial. The facts of each case and skill of counsel are obvious elements to obtaining a favorable verdict, but outcomes can also be heavily influenced by the venue, pre-trial rulings, voir dire, jury instructions and even the sheer whim of a jury.

Within the last few weeks, two separate verdicts came down in mesothelioma lawsuits. Both cases were heard in state courts, both cases involved a deceased plaintiff, both cases were brought by the same plaintiffs’ firm that specializes in asbestos claims, and both cases had only one defendant remaining at the time of verdict. However, one jury found for the defense, while the other awarded $81.5 million to the plaintiffs. What were the specific facts of each case, and what were the factors that might explain how two similar cases turned out so differently?

New Orleans, Louisiana

Mr. Thomas Hayden died of pleural mesothelioma in March 2016. He served in the Navy aboard the USS Edson in the 1960s, during which time he often worked in the boiler rooms. He later worked as a mechanic for a several decades, working on tractors, and, during this time, he also worked building scaffolding at various industrial facilities throughout South Louisiana. He alleged generally that he had worked with asbestos-containing friction products while working on tractors, and that he was in the vicinity of asbestos-containing products, particularly asbestos insulation, while he constructed scaffolding. Importantly, the plaintiffs in Hayden stipulated that they would not seek any damages for exposure to asbestos related to Mr. Hayden’s time in the Navy. Accordingly, the suit remained in state court.

Of the 72 originally sued defendants, only ExxonMobil, Corp. remained at the time of verdict. About 15 parties were dismissed via summary judgment, one (1) party was bankrupt, and the remaining parties settled or were dismissed voluntarily. Mr. Hayden was never employed directly by Exxon, but rather he allegedly worked as a contractor building scaffolding at an Exxon facility in Baton Rouge, Louisiana. He could not identify whether he worked on the chemical or the refinery side of the Exxon facility. He could not recall if the scaffolding he built was for new construction or maintenance. Nor could he recall handling any asbestos-containing products at Exxon.  Moreover, he could not identify the brand name or manufacturer of any products installed by other crafts. He could not even recall seeing any pipe insulation at Exxon. Finally, his work at Exxon was for a total of approximately one (1) week, sometime between 1982 and 1985.

Counsel for Exxon stressed Mr. Hayden’s inability to recall basic details about his alleged work at the Exxon facility, suggesting to jurors that this lack of memory was because Mr. Hayden never actually worked at Exxon. In closing arguments, counsel for Exxon contrasted the dearth of testimony regarding Mr. Hayden’s alleged work at Exxon with his ability to recall co-workers, supervisors, and products at other worksites. Counsel suggested to the jury that the real reason Exxon was sued was because plaintiff’s counsel gave Mr. Hayden a checklist of refineries and plants to “help” him recall where he had worked.

Although Exxon was the sole remaining defendant, fault allocation according to Louisiana law for a wrongful death claim allows for all potentially liable entities to be listed on the verdict form. Therefore, defendants are able to introduce evidence as to the fault of those entities, and the jury is presented with a relatively comprehensive list of parties when it begins its deliberations. After five (5) weeks of trial, the Hayden jury received a verdict form with 30 potentially liable entities, including the US Navy. Based on the evidence and arguments, the jury returned a defense verdict in Exxon’s favor, finding that exposure to asbestos on Exxon’s premises, if any, was not a substantial contributing factor in Mr. Hayden’s illness and death.

Tacoma, Washington

Mr. Jerry Coogan died of peritoneal mesothelioma in 2015. He served six (6) years in the Army National Guard from the 1960s to early 1970s. He also worked at the Wagstaff Machine Works in Spokane, WA for a little over one (1) year, a facility where Johns-Manville marinite board was fabricated; however, there was no direct evidence that Mr. Coogan worked directly in the area where the marinite was cut. He later started and operated his own excavating business, purchasing it from his grandfather in the mid-to-late 1970s. Also, Mr. Coogan’s hobby was restoring hot rods and classic cars. He alleged that he was exposed to asbestos through his work digging up old asbestos cement pipe, cutting and laying new pipe, working with automotive friction products, including gaskets, brakes and clutches, and through work on boilers in the late 1970s at the Boise Cascade facility in Kettle Falls, Washington.

Trial began with four (4) defendants, including three (3) automotive friction product manufacturers and one (1) asbestos cement pipe supplier. Plaintiffs’ case focused, for over two (2) months, on the liability of both the pipe supplier and the friction products. First, plaintiffs focused on Mr. Coogan’s excavation work, arguing that Mr. Coogan was heavily exposed to both crocidolite and chrysotile asbestos by cutting and installing asbestos cement pipe. Second, plaintiffs focused on Mr. Coogan’s work with gaskets, brakes and clutches, urging the jury to find that Mr. Coogan’s repair work on both his heavy machinery and his hobby cars also exposed him to heavy amounts of chrysotile asbestos.

None of the defendants disputed that Mr. Coogan’s disease was asbestos related.  Each defendant argued, however, that the evidence in this case failed to demonstrate either: (1) that he actually worked with their products; or (2) that any work with their products was sufficient to cause Mr. Coogan’s mesothelioma based on varying issues specific to each defendant. Defendants in the suit also filed a motion in limine to preclude the use of “Reptile Tactics” by plaintiffs’ counsel in voir dire, opening statement, witness examination or in closing. This MIL was denied by the court, with the judge specifically noting that under Washington law “conscience of the community” was a perfectly acceptable argument. Plaintiffs’ counsel embraced “Reptile Tactics” throughout the trial, for example, telling the jury that “hundreds of thousands” of people are dying from asbestos-related diseases each year, and that small-town-folks, like the community of Kettle Falls and Mr. Coogan, were not getting the warnings they should have from any seller of asbestos-containing products. At one point in the trial, plaintiffs’ counsel went further, attacking a defense expert by implying that he did not want to protect children from water-borne toxins and telling the jury that first responders to the World Trade Center terrorist attacks are now contracting asbestosis and other asbestos-related diseases. She told jurors that asbestos is “an epidemic for our country” that affects not only the people who worked with it, but spouses and children who did their laundry, and people in  communities across the county that lived even hundreds of yards away from facilities that manufactured, sold or even used asbestos-containing materials.

Over the course of the trial, the defendants cross-examined plaintiffs’ experts and presented evidence regarding whether Mr. Coogan actually worked with any of their individual products; the scientific evidence concerning whether chrysotile could cause mesothelioma at low doses; whether chrysotile asbestos could cause peritoneal mesothelioma, at all; whether low doses of asbestos, in any form, could cause peritoneal mesothelioma; whether their respective warnings regarding potential hazards of asbestos were timely and sufficient. Three (3) out of the four (4) defendants, however, dropped out over the course of two and a half (2 ½) months, leaving GPC/NAPA as the sole defendant at the time of verdict. Moreover, and of great importance, Washington law apportions fault jointly and severally in asbestos cases, and the only name submitted to the jury on the verdict form was GPC/NAPA. No other potentially liable parties were listed for the jury to consider. After quite literally months of testimony regarding Mr. Coogan’s asbestos-related disease, the jury rendered a verdict in plaintiffs’ favor against the only defendant on the form for $81.5 million.

Take Aways

State-specific laws can be as damaging to a case as a bad set of facts. Would the jury have returned a verdict solely against GPC/NAPA had other parties been listed on the form?  Would the verdict have been the same had plaintiff’s counsel been prohibited from asking the jury to be the conscience of the community? Did the length of the trial have a significant effect on the amount of the verdict?

It is easy to play Monday-morning quarterback and point out rulings we believe the judge got wrong or why the jury may have believed one expert over another. We are continually learning, both through our own experiences, and when possible, from the experiences of others. However, one important lesson to be learned from comparing the verdicts in Hayden and Coogan is that to be effective trial attorneys, we must understand and anticipate the complicated interplay of all of these factors, and must communicate and counsel our clients on both the benefits and risks associated with trial.

lawjUSTICEBWThis month, attorneys working at Guantanamo Bay’s Camp Justice filed a lawsuit against the Department of Defense (Seeger et al v. U.S. Department of Defense et al, U.S. District Court, District of Columbia, No. 17-00639), in which they allege that they have been exposed to dangerously high levels of carcinogens from working in contaminated areas. The four attorneys, who include Army Major Matthew Seeger and three civilian attorneys, represent Walid Bin Attash, a Yemeni man charged with helping to plot the attacks of September 11, 2001.

The attorneys’ complaint alleges that various environmental hazards at the Guantanamo Bay Camp Justice complex have been linked to nine cases of cancer since 2008 among individuals who worked at the camp, and that the U.S. Navy has not properly investigated these conditions. The nine individuals range between the ages of 35 and 52, and their diagnosed illnesses have included lymphoma, colon, brain, and appendix cancer. Camp Justice is located on the site of a former airfield, and includes temporary housing units, as well as offices where the attorneys both live and work while at the camp. This former airfield was at one point allegedly used to dispose of jet fuel.

The complaint alleges that the attorneys first approached authorities with complaints in July, 2015 and requested an investigation into whether conditions at Camp Justice had contributed to several cancer cases among employees who worked at the camp. The suit further alleges that the U.S. Navy conducted a flawed investigation of the alleged environmental hazards, failing to determine what kind of a risk they posed to personnel and further failing to determine appropriate measures to remedy the situation.

The Navy’s preliminary investigation included an industrial hygiene and habitability survey of Camp Justice’s buildings where personnel live and work. The investigation documented the presence of multiple environmental hazards, including poorly-maintained asbestos-containing floor tile, lead-based paint chips, air samples that tested positive for mercury and formaldehyde, and soil samples that tested positive for benzopryene. All of these substances have been found to be carcinogenic. The Navy’s report acknowledged that their environmental and historical investigations were limited, but nevertheless found that there was insufficient evidence to address potential exposures to carcinogens. With that, they deemed the property’s buildings to be habitable. Additionally, following a review of military health records, they concluded that the number and types of cancer cases did not meet the Center for Disease Control’s definition of a “cancer cluster” and therefore did not warrant a formal cancer cluster investigation. These and additional findings were detailed in a risk assessment report published in February, 2016, which ultimately found that the potential cancer risk cannot be determined and identified the need for further sampling in response to the carcinogens documented during the investigation.

While none of the Plaintiffs have been diagnosed with cancer at this time, they allege that they face an increased risk of developing cancer or other serious diseases, and suffer from emotional distress, upper respiratory symptoms and infections, migraine headaches, itching and burning eyes and skin, and a lack of support in their professional duties because team members refuse to travel to Guantanamo Bay due to the potential health risks.

The complaint alleges that when hearings are held at Camp Justice, attorneys and support staff, including plaintiffs, are required to travel to the camp for a week or more at a time, several times throughout the year. They further opine that as their client’s trial approaches, it will become necessary for them to spend weeks at a time at the camp. When these teams must travel to the camp, they receive orders from the Convening Authority, assigning them to specific housing, but the Navy controls housing decisions at the Naval Station and can reject the Convening Authority’s requests for certain housing. Since their complaint was filed in 2015, Plaintiffs have consistently requested alternative housing, but have not been permanently reassigned to different housing units.

Three of the nine cancer patients referred to in the complaint have died, including Navy Lieutenant Commander Bill Kuebler, who was 44 years old when he passed away from cancer in July, 2015, just a few days after plaintiffs’ original complaints were made to superiors. The complaint notes that the cancer cases have occurred among young, otherwise healthy individuals who have worked at Camp Justice. The attorneys who filed the complaint are seeking an injunction that would require the Defense Department to provide accommodations that would protect them from the risks, both known and unknown of living and working at the camp. They request proper testing of the conditions at the camp and that they, in the meantime, be moved to safer housing units.