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By Mike Francis, The Oregonian The Oregonian

KBR asks federal judge to dismiss case brought by Oregon soldiers

Lawyers for defense contractor KBR Inc. asked a federal judge in Portland Friday to dismiss the suit brought by a group of Oregon National Guard soldiers who said the KBR knowingly exposed them to a carcinogenic compound while they served in Iraq in 2003.

U.S. District Judge Paul Papak heard the arguments for two hours Friday morning, then said he would rule on KBR’s request in the coming weeks.

Friday’s arguments, while delivered in calm and measured tones, included some stinging accusations. KBR’s lawyer said the soldiers’ primary medical expert is “a junk scientist who cannot be trusted.” And the soldiers’ lawyer said KBR committed “fraud” in its conduct at the Qarmat Ali water treatment plant and in its actions afterward.

While KBR is technically asking the judge to dismiss the entire case brought by 34 Oregon National Guard soldiers, KBR lawyer Geoffrey Harrison of the Houston law firm of Susman Godfrey acknowledged that he expects some subset of the group will survive the legal challenge and proceed toward trial.

That trial is currently scheduled for June 5, but that date appears to be “in severe jeopardy,” said Jeffrey Eden of Portland’s Schwabe, Williamson & Wyatt, also representing KBR. Judge Papak agreed that a delay is likely because of the need to work through a variety of legal challenges brought both sets of lawyers.

Lawyers for the soldiers said they worry that KBR’s filings could delay the case “for years.” Said soldiers’ lawyer David Sugerman of Portland, “we need to get this case to trial.”

The lawsuit’s roots lie in the spring and summer of 2003, when Oregon National Guard soldiers and other U.S. and British troops provided security for KBR contractors who were trying to restore a damaged water treatment plant that was used to help produce Iraqi oil.

Among the substances at the plant was a carcinogenic compound called sodium dichromate, used to prevent corrosion.

Some of the Oregon soldiers have shown symptoms, from nosebleeds to skin rashes, that their lawyers say was caused by exposure to the chemical. And they say their exposure to sodium dichromate increases their risk of developing cancer.

KBR argues that they haven’t proven that.

-Mike Francis

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New defense bill requires military to tell Congress when granting immunity to contractors

By Mike Francis, The Oregonian The Oregonian

KBR Inc. enjoyed government-guaranteed immunity from claims that might be brought by anyone claiming the contractor’s actions in Iraq caused injury or death, according to a newly declassified 2003 military contract. 

Doug Beghtel / The OregonianRep. Earl Blumenauer has been a leading voice in the push to force the military to disclose cases when it grants immunity to contractors.

But under the terms of the $662 billion defense appropriations bill Congress sent to the president Thursday, the military will be required in the future to inform the House and Senate Armed Services Committees when it grants immunity in such cases. If such language had been in effect when the KBR contract was signed, it wouldn’t have remained classified for 8-1/2 years.

“By forcing the Pentagon to conduct business with contractors out in the open, we are restoring a sense of public accountability for companies whose operations may endanger our troops,” said Rep. Earl Blumenauer, D-Ore., who along with Rep. Kurt Schrader, D-Ore., and Sens. Ron Wyden, D-Ore., and Jeff Merkley, D-Ore., have called for greater transparency in such contracts.

Army lawyers on Wednesday released terms of the amended contract under which the Army hired KBR to perform work to restore Iraq’s oil production in the early years of the Iraq war. Instead of standard language that excludes government liability for cases of “willful misconduct and lack of good faith,” the amended contract contains no such exclusion. Instead it says the government shall shield KBR from liability for claims by third persons “for death, personal injury, or loss of, damage to, or loss of use of property.”

The contract had been classified, but was released to lawyers whose clients include Oregon National Guard soldiers suing KBR after being exposed to potentially dangerous levels of a carcinogen at Qarmat Ali.

“By shining a light on these secret agreements,” Wyden said in a statement, “we are making sure that there will be no repeats of what happened to National Guard troops from Oregon and other states at Qarmat Ali in Iraq or anywhere else that troops are sent to protect private contractors.”

-Mike Francis

In a terse one-sentence opinion, the Ninth Circuit Court of Appeals dismissed KBR’s appeal of a ruling by Oregon federal judge Paul Papak in the toxic exposure suit by dozens of Indiana National Guardsmen.  With a mid-lawsuit Ninth Circuit Appeal that could have delayed the case significantly now out of the way, the soldiers are on track for a jury trial next year.

In 2003, KBR was hired by the Department of Defense under the Restore Iraqi Oil program (RIO) to refurbish the Qarmat Ali Water Treatment Plant near Basrah, Iraq.  The Oregon Guardsmen, along with National Guardsmen from Indiana, West Virginia, and South Carolina and members of the British Royal Air Force, were tasked with providing security to KBR’s civilian personnel at the plant.

The Qarmat Ali site, however, was heavily contaminated with sodium dichromate, which contains the highly carcinogenic chemical compound hexavalent chromium made infamous in the Erin Brockovich move.  The chemical, banned in the United States, had been used by the Iraqis as an anti-corrosive in plant operations.  Acres of the site were blanketed with the telltale sodium dichromate yellow and orange dust, getting swept into the air by fierce Iraqi winds for months as the soldiers carried out their duties in the midst of it, unaware of the danger they were in.  Anxious to get the plant online quickly, KBR concealed information about the sodium dichromate contamination from the soldiers.  In addition, although

KBR steadfastly maintains that it did not use the chemical when operating the plant, documents exchanged in the lawsuit suggest otherwise.

In serial motions to dismiss, KBR has sought to avoid liability for the harm caused to the soldiers.  In the trial court, KBR argued that the federal courts have no authority to render a judgment against KBR for its conduct under legal theories referred to as the political question doctrine, the government-contractor defense, and the combat activities exception to the Federal Tort Claims Act.  In essence, KBR contends that because it was under contract by the United States government and paid by taxpayers, it cannot be held liable to soldiers.  In a comprehensive, 29-page opinion issued August 30, 2010, Judge Papak rejected KBR’s arguments.  KBR sought interlocutory appeal of the ruling, appealing both to the trial court again and directly to the Ninth Circuit.

The Ninth Circuit’s rejection of the appeal represents a monumental step forward for the soldiers, who are eagerly anticipating trial.

In a terse one-line opinion, the Ninth Circuit Court of Appeals today dismissed KBR’s appeal of Oregon federal judge Paul Papak’s ruling rejecting KBR’s position that the private military contractor is immune from suit.

The decision represents a monumental step forward for the several dozen Oregon National Guardsmen who filed suit against KBR for exposing them to sodium dichromate at the Qarmat Ali Water Treatment Plant in Iraq in 2003.  The soldiers were providing security to KBR personnel paid by the government to restore the plant.  With KBR’s mid-stream Ninth Circuit Appeal now out of the way, the suit is on track for trial.

9th Circuit Dismisses Appeal