Non-jury trials will be advantageous to the Judges in terms of maintaining control of the dockets , expediting trials , selecting diverse types of trials such as summary trials to gather trial data on each disease as needed . Non-jury trials increase the possibility that as many as ten cases could be resolved in each trial . This , in conjunction with the use of summary trials , could result in faster resolution of the litigation by producing the damages data needed for completing settlement matrices for each disease .
The disadvantage of non-jury trials from the viewpoint of the Plaintiffs is the perception that juries will be more liberal than the Judges in awarding damages to the injured and deceased veterans . This is a widespread perception among Plaintiffs ’ lawyers . However , in this litigation , that concept may not be as applicable because the Judges herein have knowledge about the outrageous and egregious conduct of the defendant which would not be available to the jurors . This could potentially lead to more informed and fair verdicts from the Judges .
The obvious disadvantage to the Plaintiffs of appealing the decision of the trial Judges is the delay inherent in taking a case to the appellate courts . The choice to proceed with the Courts ’ decision for non-jury trials would result in the first trials by the end of summer . There is no way to gauge accurately how long the appellate courts would take to resolve this issue .
Specific Causation
Plaintiffs have filed a Motion for Partial Summary Judgment on the issue of specific causation , arguing that under the Camp Lejeune Justice Act of 2022 , there is no requirement for proof of specific causation by the Plaintiff . Under this theory , if granted ,
78 x The Trial Lawyer the Department of Justice could not submit confounders , such as obesity , smoking , drug use or abuse and additional toxic exposures after leaving Camp Lejeune .
The theory is that this is not a tort case which would allow submission of contributory or comparative fault or negligence as either a defense or an offset against damages recovery . The Act provides a statutorily based recovery with a specific burden of proof that does not provide a specific causation defense to defendants .
The motion has been fully briefed and as of this writing has not been set for oral argument . If Plaintiffs prevail on the motion , the DOJ will not be permitted to use confounders as either a defense or an offset on liability . However , they will be able to argue that the confounders can be considered by fact finders in the evaluation of damages .
ATSDR Update
The ATSDR assessment document that was published in 2018 was compiled at the request of the Veterans Administration to aid in assessing veterans ’ disabilities . There has been a pervasive belief that the document would be updated in five years and there would be an amendment to the ATSDR published in 2023 .
The fact is that there is no update or amendment to the 2018 ATSDR and there are no plans to produce one in the absence of a request by the Veterans Administration for such an update .
What we received is a single cohort , non-peer reviewed evaluation of cancer incidence among Marines and Navy personnel and civilian workers exposed to contaminated drinking water at Camp Lejeune . The study was conducted by Frank Bove , a senior epidemiologist at ATSDR and is not currently an update or amendment of the 2018 ATSDR . We have reviewed the Bove Study in conjunction with Attorney Jamie Mauhay Powers and epidemiologist William J . Lee , J . D ., M . S ., MACE , and our early conclusions indicate that we must proceed with caution in relying on the study because , while useful on enhancing certain injuries , the study takes away as much as it gives in support of certain of our Tier I cases .
The analysis according to the epidemiological review by William Lee revealed a mix of outcomes , where certain conditions not previously associated with exposure showed statistically significant increased risk , while others previously identified as presumptive failed to show statistical significance , e . g ., non- Hodgkin ’ s lymphoma , kidney cancer , bladder cancer , and liver cancer .
As an epidemiologist , Lee considers how the Bove study ’ s methodology , including quantitative bias adjustment and underlying data limitations , could impact its admissibility in court . There is potential for the study to be both a tool for elevating certain conditions to presumptive status and a weapon for the defense to challenge established connections .
William Lee also expresses caution in placing too much reliance on this single cohort non peer reviewed study .
“ While it is tempting to highlight specific , favorable adjusted hazard ratios as robust evidence , we must acknowledge the study ’ s methodological limitations and null findings . We must critically assess and prepare for potential critiques from a defense standpoint . It is essential to balance our advocacy with a cautious approach to these scientific nuances , ensuring our strategies are resilient against potential counterarguments .”
To withstand legal scrutiny under either Daubert or Bradford Hill principles , Frank Bove must submit his study to a lengthy peer review process , which can materially alter the study ’ s content and conclusions . While the Bove Study offers valuable insights , its methodology and the potential legal implications require careful