Battle Over Burn Pits: 1st-of-its-kind lawsuit
BURLINGTON, Vt. (WCAX) - The global war on terror is America’s longest conflict, launched after the Sept. 11 terror attacks, 20 years ago this September.
Nearly 2,500 U.S. military members have been killed, including 40 with ties to Vermont. Dozens were injured and hundreds more suffered invisible wounds like post-traumatic stress disorder.
Now, many are battling rare and aggressive cancers and other illnesses doctors haven’t seen before.
The troops blame war zone burn pits-- open-air trash fires filled with everything from human waste to body parts, metals, tires and more. Military members breathed in the smoke that hung over the bases.
Now, one of those soldiers is about to go to war with the U.S. government.
It’s difficult for Wes Black to talk about that dark day in 2010. Two back-to-back enemy attacks in Afghanistan claimed the lives of two Vermont soldiers from his platoon despite Black’s attempts to save them both.
“I ran under fire to get to him,” Black said. “He’d been killed in combat.”
Black came home from war with a pair of medals for his bravery and a purple heart for a wound he suffered in an explosion. He came home with something else, too.
“I made it through two deployments. I survived. I come home,” Black said. “I was supposed to be on easy street. And then I got hit with the big C word.”
Stage 4 colon cancer-- a form so aggressive countless treatments and surgeries failed. It spread, and fast, to his liver.
Black is dying. The 35-year-old will leave behind a wife and young son.
“I got cheated. He got cheated. And my wife got cheated, you know,” Black said.
He blames war zone burn pits for his illness. He was stationed close to them on his deployments and worked right next to one guarding the gate.
“You could be standing your entire shift just sucking in that horrible toxic air,” he said.
Black also blames the VA Medical Center in White River Junction. He says doctors there misdiagnosed his cancer as irritable bowel syndrome, and never took burn pit exposure into consideration during his evaluation.
He got a second opinion from a physician at Dana Farber in Boston, a leader in cancer research and treatment.
Dr. Thomas Abrams wrote, “If further investigation had been done, Black’s colon cancer could have been discovered sooner than it was.” He went on to say, “It is likely his cancer was caused by exposure to burn pits in Iraq and Afghanistan.”
“We want to make sure that Wes’ wife and young son are taken care of financially,” said Dan Perrone, Black’s lawyer.
Black is suing the U.S. government in a first-of-its-kind claim.
Dan Perrone: I think this is significant because it’s going to put the VA Medical Center in a position of having to change the way they treat our veterans. It will force them to take a look at the harmful effects burn pits are having on our troops.
Reporter Darren Perron: You’re going against the federal government with enormous resources. This has to be an uphill battle.
Dan Perrone: It’s always an uphill battle going against an entity like the federal government with unlimited resources, but that doesn’t mean it’s not a battle worth fighting.
Perrone says in this type of lawsuit, a judge would determine monetary damages if Black wins.
The Veterans Administration will only say the VA “does not generally comment on pending litigation.”
“It shouldn’t be his job to sue the U.S. government. It should not be on him to find a lawyer to represent him. Our country, the government should be protecting them,” said Sen. Kirsten Gillibrand, D-New York.
Gillibrand supports Black’s lawsuit. She’s been an outspoken advocate for military members exposed to burn pits.
She worries the suit might get tossed because of the Feres Doctrine, which prevents military members from suing the government for active-duty injuries. Black was exposed while deployed. But the senator says Black’s legal action could help force the VA to cover disability claims for burn pit exposure, most of which are now denied.
“The fact that he is filing one is helpful because he’s trying to be heard,” Gillibrand said. “Whether that means we debate eliminating the Feres Doctrine or simply fund the health care these service members have earned, those are two choices.”
But Black’s lawyer believes the Feres Act won’t come into play. That’s because it’s a malpractice claim that blames the VA for misdiagnosing Black and turning a blind eye to his burn pit exposure. And Black was not on active military duty at the time he got medical care at the VA. He was a civilian after being medically retired.
They say other soldiers denied a burn-pit exposure diagnosis might be able to sue this way, too.
Darren Perron: Could this open the floodgates to so many more suits against the feds?
Dan Perrone: If the change that we are pushing for is not made, if burn pit exposure is not considered when troops are assessed, it’s a sad reality that I believe this will be the first of many lawsuits.
“I’m basically trying to extend my life a little bit longer for my family,” Black said.
He knows he doesn’t have long. Black left his firefighting job at the local department to spend as much time at home as possible.
“She’s been through all of my darkest days. And stuck with me,” Black said. “I’m eternally grateful to her for that.”
He’s trying a new treatment that might give him a few more weeks or hopefully months with his wife and son.
Wes Black: He’s still too young to know that daddy’s not going to live through this.
Darren Perron: What do you want your son to know about you?
Wes Black: I just want him to know that I was the person who stood up for others... If I can prevent just one family from going through what my family is going to go through, what I’m going through, if I can prevent one vet from having to do that... and that’s what I want my son to know about me, I fought to the end.
Black’s lawyers recently provided the government with its expert reports. The case is currently set for trial in November.
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