Jones v. United States, 751 F. Supp. 2d 835

Plaintiff married a Marine and lived at Camp Lejeune, NC from spring 1980 to May 1983.
Plaintiff was diagnosed with Non-Hodgkin's lymphoma twenty years later.
Plaintiff learned Oct. 31, 2005 that Camp Lejeune water may have contained toxins.
Plaintiff filed an administrative claim Oct. 31, 2007 and a FTCA suit on July 4, 2009.
Defendant moves to dismiss arguing NC § 1-52(16) statute of repose bars the claim.
Court previously denied a limitations-based dismissal on Feb. 23, 2010; issue now is whether latent-disease exception applies to § 1-52(16).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does § 1-52(16) have a latent-disease exception?	Jones argues latent diseases are exempt from the 10-year repose.	USCG argues no latent-disease exception; barred after 10 years.	Yes; latent-disease exception applies.
Is § 1-52(16) constitutional as applied to latent diseases under open-courts?	Applying repose would violate open-courts guarantee for latent illnesses.	Statute constitutional as to time-bar in most cases.	Unconstitutional as applied; saves claim.
Should latent-disease analysis apply to FTCA claim involving cancer?	Exposure-caused cancer can manifest long after exposure.	Statute of repose supposedly bars latent claims.	Latent-disease analysis applies; claim not barred.

Wilder v. Amatex Corp., 314 N.C. 550, 336 S.E.2d 66 (1985) (latent disease exception to time limits based on statutory history and policy)
Hyer v. Pittsburgh Corning Corp., 790 F.2d 30 (4th Cir.1986) (disease exception to repose applied in product liability context)
Bullard v. Dalkon Shield Claimants Trust, 74 F.3d 531 (4th Cir.1996) (reaffirmed Wilder’s open-disease approach)
Doe v. Doe, 973 F.2d 237 (4th Cir.1992) (continued open-courts/open-disease considerations)
Lamb v. Wedgewood South Corp., 308 N.C.419, 302 S.E.2d 868 (1983) (open-courts analysis for statutes of repose)