Wednesday, October 15, 2014
Eleventh Circuit Holds that Legislative Amendment to North Carolina Statute of Repose for Groundwater Contamination Claims Cannot Apply Retroactively
On October 14, the Eleventh Circuit (Tjoflat, Wilson, Bucklew (by designation)) issued a decision in Bryant v. United States, No. 12-15424. This appeal arose out of multi-district litigation in which plaintiffs sued the United States under the Federal Tort Claims Act, alleging that they experienced adverse health effects from toxic substances in the drinking water at Camp Lejeune, North Carolina. The United States moved to dismiss the case based on North Carolina’s ten-year statute of repose. On certified interlocutory appeal under 28 U.S.C. § 1292(b), the Eleventh Circuit addressed (a) whether CERCLA preempts the North Carolina statute of repose, and (b) whether the North Carolina statute of repose contains an exception for latent diseases. The first question was easy; during the pendency of the appeal, the Supreme Court decided CTS Corp. v. Waldburger, 134 S. Ct. 2175 (2014), which held that CERCLA does not preempt North Carolina's statute of repose. As to the second question, the Eleventh Circuit held that, at the time the plaintiffs brought their suit, the North Carolina statute of repose contained no exception for latent diseases. After the Supreme Court decided Waldburger, however, the North Carolina legislature enacted an exception to the statute of repose that applies to tort claims based on groundwater contamination and directed that the exception should apply to actions filed, arising, or pending on the effective date of the exception. N.C. Gen. Stat. Ann. § 130A–26.3.8. On its face, therefore, the 2014 legislation would validate the plaintiffs’ claims. The Eleventh Circuit held, however, that the 2014 legislation could not apply retroactively without depriving the United States of vested rights. Despite language in the 2014 legislation that characterized it as “clarifying” the statute of repose, the court of appeals held that the legislation enacted a new exception that did not merely clarify ambiguities.