A Trust Betrayed (33 page)

Ensminger and Byron were determined to make their site as open as possible. Visitors were encouraged to use their real names, tell their stories, and post comments on the blog. They filled the site with news articles, with links to studies and reports, and, most important, with many of the documents they and retired Marine Tom Townsend had uncovered through Freedom of Information Act requests, web searches, and other digging for data. After Partain came on board in 2007 and added the detailed timeline of events that had transpired since Camp Lejeune had opened in 1941, “The Few, the Proud, the Forgotten” became the most authoritative place to go for information about the Lejeune saga. “We're all over the place,” Partain said in 2013.

The site connected people in deeply personal ways without them ever speaking directly or even seeing each other's faces. One of the first to join was Denita McCall, a former Marine from Colorado who had spoken eloquently and emotionally about her parathyroid cancer before the
ATSDR
's expert panel of scientists in 2005. McCall became an active member of the federal agency's Community Assistance Panel, at least until surgery, chemotherapy, and radiation treatments in 2008 forced her to abandon trips to Atlanta for the meetings. But she kept in touch through the website, right up until she died at age forty-four in July 2009. Prior to her final round of chemo in October 2008, McCall posted a defiant message on the
tftptf.com
blog: “I don't know what my future holds, but I can tell you that I am coming out
SWINGING
!! I am so angry with the way the
USMC
,
VA
, Navy and
DOD
have treated us. I am angry for the hell that they have put our families through. . . . To every victim whose life has been destroyed/damaged, you are not forgotten.—Denita.”
¹²

The real rift between “The Few, the Proud, the Forgotten” and Water Survivors came later, after Ensminger heard from an attorney that Dyer and Strand had approached him with an offer to sell the undisclosed names of people who had registered on their website for use in future litigation against the Navy and Marine Corps. When that proposal was rejected, the attorney said, Dyer asked if she could be guaranteed part of any future settlement if she provided the names and contact information for hundreds of potential plaintiffs, according to Ensminger. That offer, too, was turned down, he said. And he was livid. “I told her, ‘You're victimizing the victims,'” Ensminger said.

Dyer admitted in an hour-long interview in early 2013 that she had offered to sell her website to an attorney, Richard Hibey, after he and his team visited her house to consider taking her case against the military for exposure to toxic chemicals at Camp Lejeune. “Then
they called later and said they couldn't do it,” she said. “I asked if they'd buy the website with all the names and I can give the money to my sister,” who Dyer said was destined to spend her life in assisted living. But after consulting with another attorney later about the ethics of her proposal, Dyer said, she withdrew the offer to Hibey because of how it might have looked. “I don't know if Hibey told Jerry, but he started spreading it around that I was trying to sell my website,” she said. “He's made my life a living hell.”

A few weeks after the interview, Dyer said she would have no further comments about her past activities involving Camp Lejeune. She also said none of the members of her group would provide any information for a book that included Ensminger.

The friction between Dyer and her website members and Ensminger and his followers exploded in a public forum in 2011. A website called Veterans News Now had published a story about a planned
ATSDR
study of health problems at Lejeune, and one of the members of the Community Assistance Panel that had pushed for the study posted a comment urging anyone with concerns about the contamination to attend an upcoming meeting of the
CAP
in Wilmington, North Carolina. Dyer posted a comment in response saying she had been a member of the
CAP
“for many, many years” and quit because “I for one am tired of these ‘meetings' that do no more then get people's names in the press and more pictures in the paper.”
¹³

Ensminger, who had been a member of the
CAP
since it was set up by the
ATSDR
in 2006, couldn't help but correct the record, pointing out that Dyer had resigned after being a member for only eighteen months. “Those of us who remained on the
CAP
and worked with
ATSDR
to hammer out the studies that are currently under way are now subject to the ‘sniping' of individuals such as Ms. Dyer and her cronies. It is easy to sit back and let everyone else do the work and then once it is done they can sit back and find
fault with it!” He urged Dyer to attend the next
CAP
meeting, saying he would be happy to engage in a face-to-face debate on the issues.
¹⁴

Ensminger later followed with another post directed at Dyer:

I would challenge any/everyone who is involved in this issue to join Terry Dyer's web-site,
http://www.watersurvivors.com
and attempt to post your personal contact information or to dispute any of the rhetoric being spewed by her selected cronies on their discussion board. First of all, your posting will be deleted, secondly, you will receive an email chastising your post, and thirdly if you persist, you will be banned from her web-site! I spent a quarter of a century defending the constitution of this nation and I do recall something in it that refers to the issue of “freedom of speech!” I will be damned if I will ever give up that right to someone whose's [
sic
] only goal is to receive a government check!
¹⁵

Dyer shot back: “I was going to DC and meeting with members of Congress before you ever even thought about gracing the halls on the Hill and we made a real difference at that time too and it was a good one! We just do not call everyone we can think of at 11 pm to tell them everything we have done and how much others haven't!”
¹⁶

More animosity was directed at Ensminger after he was prominently featured in a seventy-six-minute film about the Lejeune contamination,
Semper Fi: Always Faithful
, released in 2011. Ensminger said his sister, a public relations specialist in Pennsylvania, had met in Philadelphia several years earlier with New York filmmaker Rachel Libert. She knew Libert from previous projects and showed her some documents about the decades of tainted drinking water at Camp Lejeune. Libert, according to Ensminger, responded, “Oh my God!” The result was a documentary produced
by Libert and colleague Tony Hardmon that focused largely on Ensminger's efforts to push Congress to provide health care for Lejeune victims and on Partain's efforts to track down male breast cancer cases among former base residents. The film's release became a watershed event in the struggle for a government acknowledgment that the military had potentially harmed thousands of people through its failure to provide clean, safe drinking water. It was shown on Capitol Hill soon after it was released in the spring of 2011, won numerous awards at documentary film festivals around the country, and nearly made the final list of Academy Award nominations for Best Documentary in 2012. The cable news network
MSNBC
showed
Semper Fi
to a national audience in February 2012, just when members of Congress were considering legislation to provide health care for victims.

It would not be easy to convince the gridlocked legislative branch to do anything in an election year, let alone pass a measure that could cost the government billions of dollars at a time when it was approaching a “fiscal cliff.” But it was also clear that the story of Ensminger's daughter, told in heartbreaking fashion in
Semper Fi
, was having an impact. Congressman Brad Miller (D-NC) sponsored a bill to assist Lejeune victims, naming it “the Janey Ensminger Act.”

15

THE WAY TO THE OVAL OFFICE

Much of the human suffering caused by this problem could have been avoided if, years ago, some educated soul had picked up the phone and requested a water analysis, if only to err on the side of caution.

—
FORMER SENATOR ELIZABETH DOLE
(
R
-
NC
)

V
eterans who were denied disability benefits from the Department of Veterans Affairs faced a significant roadblock if they wanted to file claims against the government that military wastes had made them sick. It was called the Feres Doctrine, and Mike Gros, the Navy obstetrician who worked at Camp Lejeune for three years in the early 1980s and was diagnosed with a rare form of leukemia in 1997, ran smack into it in 2005 after he filed a federal lawsuit seeking damages. Most of Gros's medical bills were covered by the
VA
and later Medicare, but some of his estimated $12 million in health-care costs—which mounted as Gros faced complications from a bone-marrow transplant that included “graft
versus host” disease and numerous side effects from treatments—had come out of his own pocket. Not to mention the losses he sustained after being unable to continue his practice as an Ob/Gyn in Texas.

The Feres Doctrine refers to a US Supreme Court ruling after World War II that said military personnel could not sue the government for injuries sustained while on active duty. “They keep extending it to cover every occasion,” Gros said. “When I filed a claim, they ran me out of the courtroom. I then went to the Fifth Circuit, and they dumped me out, too.” His attorney had argued that Gros's illnesses were not “incident to service,” because they had resulted from consumption of water in his home. But the US District Court in Houston cited a ruling under the Feres Doctrine that said a serviceman's injury in a fire in his barracks while he was sleeping was in fact “incident to service.” Since Gros's alleged injury occurred in his home, on military property during off-duty hours, it was a similar situation, so he was blocked from seeking damages.
¹

Family members of Marines had no such limitation on their ability to seek damages from the government for exposing them to toxic chemicals in water provided by the military. Victims could not just rush into federal court, though, and demand millions of dollars for pain and suffering from health problems, lost income, or the deaths of loved ones. Under the Federal Tort Claims Act of 1948, anyone who wants to sue a federal agency for causing harm must first file a claim with the agency seeking compensation. Only if the claim is denied or if there has been no response in six months can the applicant go to court as a plaintiff against the government.

Hundreds of former residents at Camp Lejeune filed claims against the Navy after the water contamination became public in the late 1990s. The Navy's Office of the Judge Advocate General
(
JAG
) reported in 2010 that in the previous decade, 2,182 claims had been filed seeking more than $37.7 billion in damages from toxic exposure at Lejeune. But not a single claim had a response: the Navy steadfastly insisted it could not appropriately rule on the validity of any claims until all the studies of Lejeune's pollution were done. “It is the Navy's intention to wait for the
ATSDR
study to be completed in order to insure that we have the best scientific research available so we may thoroughly evaluate each and every claim on its own merits,” Pat Leonard of the
JAG
Office told a congressional subcommittee in 2007. “We truly believe this approach is in the best interests of both the claimants and the Department of the Navy.”
²

Nearly all who have filed claims—mostly family members of Marines who were at Lejeune when the water was contaminated, along with some civilian employees and former Marines, such as Jerry Ensminger, who filed claims on behalf of injured or deceased children and spouses—are waiting for the Navy to respond after the
ATSDR
finishes all its health studies in 2014 or 2015. But citing the section of the Federal Tort Claims Act that allows lawsuits to be filed if a federal agency has not responded to a claim after six months, nearly a dozen individuals have gone to court charging the government with negligence at Camp Lejeune, and in most cases seeking to recover millions of dollars in health-care costs, lost wages, and damages for pain and suffering.

A long road lay ahead for victims taking the path of litigation. In June 2009, the US Supreme Court rejected an appeal by a former Marine whose lawsuit had been dismissed in federal district court. Donal McLean Snyder Jr. had argued that his son, who had been born at the base in 1971, had a congenital heart defect because his pregnant wife had drunk the base's tainted water. The boy had undergone two open-heart surgeries because of the defect. The district court had ruled that the Marine Corps was not liable,
because there were no regulations for the chemicals found in Lejeune's drinking water until the late 1970s.
³

Then, in July 2009, a lawsuit was filed in federal court in North Carolina alleging that the government knowingly exposed thousands of Marines and their families as well as civilian employees at Camp Lejeune to highly contaminated drinking water. The suit was filed by a law firm that Ensminger had contacted three years earlier, Anderson Pangia & Associates, and a Pennsylvania firm, Smorto, Persio, Webb & McGill. Named as the lead plaintiff was an Iowa woman, Laura Jones, who had been diagnosed with non-Hodgkin's lymphoma twenty years after she and her Marine husband had lived at Lejeune. He had been stationed there from 1980 to 1983.