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Lejeune Litigants Can’t Get Draft Cancer Study, Judge Decides

Law360 (December 19, 2023, 6:55 PM EST) — Plaintiffs in consolidated litigation over water contamination at Camp Lejeune cannot access a draft report by a Centers for Disease Control and Prevention subagency that they say could link their exposure to various cancers, a North Carolina federal magistrate ruled Tuesday, saying the report could mislead the public before it’s fully peer-reviewed.

U.S. Magistrate Judge Robert B. Jones denied plaintiffs’ discovery request for the federal government to turn over a draft study authored by the Agency for Toxic Substances and Disease Registry. The plaintiffs say the study could prove the extent to which they were harmed by contaminated water at the U.S. Marine Corps base in Jacksonville, North Carolina.

“The draft [cancer incidence study] and supporting documents identified on defendant’s privilege log are undoubtedly relevant and solely in defendant’s possession,” Judge Jones said in Tuesday’s order. However, he concluded, “The public interest in both maintaining the integrity of ATSDR’s peer review procedure and avoiding the damage resulting from premature release of any draft CIS outweighs plaintiffs’ need.”

The order cites a protection known as the “deliberative process privilege,” which allows agencies to withhold documents like draft reports that federal officials use to guide governmental decisions or regulations.

The report is still considered a draft because it has yet to be fully vetted by external peer reviewers — a process federal law requires ATSDR to conduct, after which the CDC would also need to sign off for the report to become official, according to the order.

In an opposition brief earlier this month, the federal government told the magistrate that turning over the draft report before peer review is complete could have a “chilling” effect on discussions between the federal government and outside reviewers.

Judge Jones cited media attention surrounding the release of the cancer study as evidence that waiting is in the public interest and that requiring the release of the draft study could confuse the public if the final version is significantly different.

The order, however, points to a single article, published by Reuters last month, that references the draft study showing a heightened incidence of cancer at Camp Lejeune as a result of contaminated water.

ATSDR’s draft cancer study is only one of many studies that have linked toxic chemicals found in Camp Lejeune’s water to diseases including cancer, the order says. On its website, the agency identifies 22 other published studies that reached similar conclusions.

The massive litigation involving over 1,500 lawsuits alleging potential exposure to toxic chemicals came about from passage of the Camp Lejeune Justice Act, or CLJA, signed into law last year.

The law allows a greater degree of flexibility for individuals who lived in and around Camp Lejeune between 1953 and 1987 to sue the government. It passed after it was discovered that water on the base contained excessive levels of chlorinated solvents and other contaminants.

The substances have been linked to different diseases in those exposed, including bladder cancer, kidney cancer, lymphoma and issues in children whose mothers came into contact with the water.

Ed Bell of the Bell Legal Group, representing the plaintiffs, told Law360 in an email Tuesday that not handing over the draft report could cause further harm to those exposed to the contaminants at Camp Lejeune.

“We are concerned that the ATSDR has vitally important health information, which the government is delaying releasing,” Bell said. “We believe it is in the interest of those affected, including Marines who served their country and their families, to be able to have the important information in this study.”

A spokesperson for the U.S. Department of Justice declined to comment Tuesday. 

A spokesperson for the ATSDR could not immediately be reached for comment Tuesday.

The government is represented by Adam Bain and Haroon Anwar of the U.S. Department of Justice’s Civil Division.

The plaintiffs are represented by Ed Bell of the Bell Legal Group, Keller Postman LLCWard & Smith PA, Dowling Firm PLLC and Lieff Cabraser Heimann & Bernstein LLP, among others.

The case is Camp Lejeune Water Litigation v. U.S., case number 7:23-cv-00897 in the U.S. District Court for the Eastern District of North Carolina.

–Editing by Amy French.

For a reprint of this article, please contact reprints@law360.com.