By MATT TOOMB

Wednesday, May 01, 2013

via Courthouse News Service

(CN) – KBR owes $75 million to a dozen Oregon national guardsmen who were poisoned with hexavalent chromium while stationed in Iraq, a federal magistrate ruled.
All together, 39 guardsmen had sued over their exposure to sodium dichromate and subsequent hexavalent chromium poisoning while stationed at a water plant in the Basrah oil fields of Qarmat Ali, Iraq, from May to September 2003.
Sodium dichromate is a rust inhibitor or anticorrosion agent that is a common source of hexavalent chromium, an extremely dangerous carcinogen.
Six guardsmen withdrew as plaintiffs, and a representative has stepped in as a substitute for a seventh plaintiff who died in 2012.
At a trial on 12 of the plaintiffs’ claims, a federal jury found the defense contractor liable for negligence and ordered it to pay each of the plaintiffs $6.25 million in punitive damages. The jury cleared KBR, a former Halliburton subsidiary previously known as Kellogg Brown & Root, of fraud related to the 12 guardsmen.
While the remaining 21 plaintiffs have since filed a sixth amended complaint, the trial plaintiffs wanted the court to enter final judgment on the 2012 verdict. KBR meanwhile tried to unravel the outcome of the trial. It wanted the court to either grant it judgment as a matter of law, a new trial or reduced damages.
Among several alleged trial errors, KBR challenged personal jurisdiction, some of the included testimony, and the idea that their negligence actually harmed the guardsmen.
U.S. Magistrate Judge Paul Papak disputed every supposed error and entered final judgment for the 12 trial plaintiffs on Friday.

“A preponderance of the trial evidence establishes that the trial defendants, by and through their employees or agents, affirmatively misrepresented the extent of the risk posed by sodium dichromate at Qarmat Ali to trial plaintiffs and others in their chain of command, and failed to disclose the extent of that risk to any trial plaintiff,” the 63-page opinion states.

“By contrast, defendants offered no evidence that they provided information accurately describing the extent of the health risk posed by exposure to sodium dichromate to any trial plaintiff or to any other party prior to the end of the Oregon National Guard’s deployment to Qarmat Ali,” Papak added. “The preponderance of the evidence thus supports plaintiffs’ allegation that the trial defendants both misrepresented the extent of the risk of chemical hazards at Qarmat Ali and failed to disclose the actual extent of that risk to any trial plaintiff.”
Citing testimony from a KBR environmental manager, Papak added that “a preponderance of the evidence likewise establishes that the trial defendants knew of sodium dichromate contamination at Qarmat Ali, and of the fact that the chemical represented a significant risk to the safety of personnel exposed to it, both at and prior to the time the Oregon National Guardsmen were deployed to the site.”
Lawrence Roberta, a trial plaintiff, told an Oregon House subcommittee in 2009 that “the sodium dichromate was everywhere, it was stacked in bags. … It appeared that somebody had taken the bags to the doors, ’cause it was stored in buildings, and physically stacked it there and destroyed the bags so you had to walk through it to get in.”
Ronald Bjerklund and Matthew Hadley, two other trial plaintiffs, had testified in the trial that they had the gear that would have protected them from exposure, but that they did not use it because KBR kept them in the dark.
The jury had also awarded each plaintiff $850,000 in noneconomic damages, but Judge Papak said this figure is subject to a $500,000 statutory cap. He declined, however, to order a new trial or reduce the punitive damages award, finding that $6.25 million apiece is well under the 9-to-1 ratio cap for punitive damages. 

on April 29, 2013 at 2:34 PM, updated April 29, 2013 at 2:41 PM

KBR Inc. is “disappointed” and “strongly disagrees” with the opinion delivered Friday by U.S. District Judge Paul Papak in the negligence case brought by 12 Oregon soldiers.

The Houston-based contractor, which was hired by the Army to help restore the flow of Iraq’s oil at the outset of the war there, said in a prepared statement Monday it thinks Papak’s opinion “contains significant factual and legal errors.” KBR will appeal, the statement said.

On Friday, Papak affirmed the verdict of an Oregon jury, which last November found KBR negligent in its failure to promptly notify Oregon troops that the Iraqi water treatment plant at Qarmat Ali was contaminated with sodium dichromate, which contains a known carcinogen. Jurors awarded the soldiers, who had been ordered in 2003 to provide security for the KBR workers at the site in southern Iraq, close to $85 million in damages.

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Poor KBR just can’t get a break — a federal judge in Oregon has affirmed an $81 million judgment against the Houston-based firm for exposing National Guard soldiers to a deadly chemical at an Iraqi water injection plant in 2003. The judgment was awarded to the first 12 veterans, out of hundreds still waiting, to bring their claims to trial.

Twin suits were filed in Portland and Houston against KBR on behalf of hundreds of military personnel who provided security for KBR staff at the Qarmat Ali plant, and who had become sick after breathing in sodium dichromate, which contains a carcinogenic called hexavalent chromium. Internal memos showed that higher-ups at KBR knew the chemical was onsite but did not inform the soldiers of the risks.

Magistrate Judge Paul Papak stated in his 63-page ruling that “a preponderance of the trial evidence establishes that [KBR]…affirmatively misrepresented the extent of the risk posed by sodium dichromate at Qarmat Ali….”

KBR had originally been ordered to pay $85 million in November, but Papak cut compensatory damages from $850,000 to $500,000 per veteran, to meet state requirements, according to The Oregonian.

Unhappy with that verdict, KBR’s lawyers asked to interview the jurors, whom they believed had been exposed to outside — and misleading — information to render their verdict.

Mike Doyle, one of the Houston attorneys representing the veterans, told Hair Balls in an e-mail that “Along with affirming that judgment on the jury verdict against KBR is wholly appropriate, the trial judge that heard the same evidence for the entirety of the trial independently confirmed KBR’s affirmative and egregious concealment of the hazards from the soldiers and their commanders, leaving each veteran with the lifelong impacts of their harmful exposure at KBR’s Qarmat Ali work site.”

on April 26, 2013 at 7:47 PM, updated April 26, 2013 at 8:51 PM

A federal judge in Portland Friday affirmed $75 million in punitive damages a jury awarded to 12 Oregon National Guard veterans last fall in a case against government contractor KBR, Inc. for its conduct in Iraq a decade ago.

Magistrate Judge Paul Papak trimmed compensatory damages for each soldier from $850,000 to $500,000 because he determined Oregon law required the reduction. Total compensatory damages now stand at $6 million, setting the total award at $81 million.

“Judge Papak conducted a detailed, independent review that fully confirmed that the jury rendered a just and fair verdict,” said David Sugerman,  the Portland lawyer who represents the soldiers along with Mike Doyle, of Houston.

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In Houston, following Judge Gilmore’s ruling rejecting KBR’s efforts to avoid responsibility, KBR appealed the decision to the Fifth Circuit Court of Appeals and we have filed our response brief. A redacted copy of the response brief can be found by clicking the link below.

http://www.doyleraizner.com/kbr-litigation-redacted-appellees-brief

The accounting of the financial cost of the nearly decade-long Iraq War will go on for years, but a recent analysis has shed light on the companies that made money off the war by providing support services as the privatization of what were former U.S. military operations rose to unprecedented levels.

Private or publicly listed firms received at least $138 billion of U.S. taxpayer money for government contracts for services that included providing private security, building infrastructure and feeding the troops.

Ten contractors received 52 percent of the funds, according to an analysis by the Financial Times that was published Tuesday.

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A federal judge Monday sided with lawyers for a set of Oregon National Guard soldiers and veterans, saying their lead lawyer didn’t violate the court’s gag order when he provided a testimonial for a jury consultant’s DVD.

The statements by Michael Doyle of the Houston law firm of Doyle Raizner “clearly were not in violation” of the court’s gag order, wrote Magistrate Judge Paul Papak. Further, he said, the jury consultant’s advertising “disclosed no information … not already in the public record.”

In December, KBR’s lawyers argued that Doyle’s words and statements made in the jury consultant’s advertising deserved to be penalized by the court.

Veterans who served at Qarmat Ali and the Gulf War should also participate in the Gulf War registry. Veterans who participate in the program will receive an initial exam, chest X-ray and pulmonary function test. The results will be tracked in the VA’s Gulf War Registry.

Important points about registry health exams:

• Free to eligible Veterans and no co-payment
• Not a disability compensation exam or required for other VA benefits
• Enrollment in VA’s health care system not necessary
• Based on Veterans’ recollection of service, not on their military records
• Veterans can receive additional registry exams, if new problems develop

Veterans should contact their local program manager to make an appointment to enroll In the VA Qarmat Ali Medical Surveillance Program. Click here for a team locator.

We encourage all veterans who served at Qarmat Ali to join these registries. A burn pit registry is also being created. The registry was part of an improvement act signed on January 10, 2013, and gives the VA one year from signing to create the burn pit registry. We will continue to share updates as they develop.

KBR Inc. is responsible for its own costs for defending itself in lawsuits brought by military veterans, including Oregon National Guard soldiers, lawyers for the federal government argued in federal court Monday. They have asked the judge to dismiss KBR’s suit against the government.

The Houston-based contractor sued the government in November, saying it was owed $15 million in legal costs stemming from cases in Oregon and Texas. In addition, the company said, the government should cover any damages awarded in judgments against KBR in connection with its work at the Qarmat Ali water treatment plant in southern Iraq in 2003.

A jury in Oregon awarded 12 Oregon soldiers $85 million in damages, finding that KBR showed “reckless and outrageous indifference” to the welfare of the soldiers, who were assigned to provide security for KBR contractors at the plant.

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Thursday, March 14, 2013

TAMPA (CN) – After firing a guard who threatened to kill U.S. soldiers, a private security firm rehired him and he shot to death two GIs in Afghanistan, the families claim in court.

Three other people were wounded by Tundra Strategies employee Shia Ahmed, an Afghan citizen Tundra armed with an AK-47 and body armor, the families claim in Federal Court.

Families of the late Rudy Acosta and Donald Mickler Jr. sued Tundra Strategies, the Tundra Group, Robert MacIntyre and MacIntyre Family Holdings for wrongful death.

Co-plaintiffs Chris Hemwall, Patrick Shelley and Zackary Hombel were wounded in the March 19, 2011 shootings at Forward Operating Base Frontenac.

“The Tundra security guard had previously been fired by Tundra because he had threatened to attack United States troops,” the complaint states. “At the time that he was fired, Tundra’s manager specifically recommended that this individual, who posed such a dangerous threat, not be rehired. Tundra failed to properly document the guard’s threats, the circumstances of his firing, and failed to report to the United States military the danger the guard posed to U.S. and coalition military forces. As a result of Tundra’s actions and inactions, the security guard was rehired by Tundra.” The complaint adds: “Within days of being rehired by Tundra, he carried out his prior threats with the weapon provided by Tundra. The guard launched an attack, killing Rudy Acosta and Donald Mickler Jr. inside the ‘protected’ security zone at FOB [Forward Operating Base] Frontenac. At the same time, Chris Hemwall, Patrick Shelly, and Zackary Hombel were seriously wounded. According to the post-incident Army Criminal Investigation Division (CID) investigation, not a single Tundra manager or guard took any action to stop the attack or protect the men serving at FOB Frontenac. It was only because of the actions of other U.S. solders serving at FOB Frontenac who took on and fatally wounded the shooter that a greater number of men and women were not killed or wounded. A later search of the shooter’s quarters by U.S. military investigators revealed large amounts of different types of narcotics, including hashish and opium.”

The survivors claim that “Tundra, a private security contractor, promised to but did not measure up to basic, contractual obligations to screen, evaluate, and monitor the guards at certain military installations overseas. …

“The [November 2009] agreement required that Tundra perform ordinary and necessary safety precautions to protect the men and women living, working and serving at FOB Frontenac. Among other things, Tundra was required to screen and vet security guards, ensure that the guards were properly processed and that documentation was in place for any security guards who were disciplined or fired, and monitor the guards in general, and to prevent the use of possession of drugs/narcotics by the guards.”

In its advertising, “Tundra claims they ‘specialize in threat assessment, protective services, training, intelligence gathering and analysis,’ with ‘extensive experience developing and implementing procedures for assessing risks, to include implementing the measures to mitigate them,’” the complaint states.

But that’s not what happened.

“Ahmed, the attacker, was hired by Tundra in May 2010 and worked for Tundra at FOB Blackhawk (Spin Boldak) until July 5, 2010,” the complaint states. “He was fired by Tundra’s manager at FOB Blackhawk for threatening to kill U.S. armed forces and coalition forces. At the time he was fired, Tundra’s manager reported that he should not be rehired because he posed a danger to U.S. and coalition forces.

“In March 2011, Tundra rehired Ahmed and this time sent him within two days of his hiring to FOB Frontenac and armed him with an AK-47 and body armor. Prior to arming any local national, such as Ahmed, Tundra was required to send an ‘arming request’ to the U.S. Forces in Afghanistan (USFOR-A). And prior to submission of the arming request, Tundra was required to review all background information that is or should be known about the person seeking employment to determine if he is disqualified from handling a weapon or ammunition. Tundra was also required to conduct a full spot enrollment and never issued a letter of authorization to permit him to be armed.

“In addition, Ahmed volunteered, and Tundra placed him, with a QRF [Quick Reaction Force] which provided him with greater mobility and allowed him greater access to internal secure areas of the FOB.

“On the morning of March 19, 2011, Rudy Acosta and plaintiffs Hemwall, Shelly, and Hombel, along with other members of their squadron were conducting weapons cleaning in preparation for an upcoming mission. At that time, a convoy of contracted trucks arrived at the FOB and were escorted by the QRF, including Ahmed, to the container area located next to the location where plaintiffs were situated. Ahmed approached plaintiffs and their fellow squadron members and drew his weapon and engaged them with well-aimed automatic fire. He fired all rounds of the first magazine and then reloaded. Plaintiffs and other members of their squadron were caught without their weapons loaded and it took a few minutes before any of the soldiers could maneuver out of the line of fire to load and return the fire. However, once the squadron members were able to fire on Ahmed, his body armor protected him and it took numerous rounds to ultimately kill him.

“Following the attack, the U.S. Army investigated and discovered, among other things, that Ahmed had in his possession illicit drugs, including hashish and opium.

“A subsequent investigation by the U.S. Army found that, among other things, Tundra failed to properly document internally the firing of Ahmed in 2010, failed to properly document the subsequent arming of Ahmed for FOB Frontenac, failed to monitor Ahmed in a manner that would have revealed his possession of illicit drugs, and failed to insure that it had proper procedures and documentation processes in place to prevent the rehiring of an individual that Tundra had previously fired because of his threats to U.S. and coalition forces.”

The plaintiffs seek punitive damages.

The two defendants Tundra Strategies Incs., are a Bahamas and a Canadian corporation.

The late Rudy Acosta’s parents, Dante and Carolyn, live in Los Angeles County.

Donald Mickler Sr. is his late son’s sole surviving parent.

Of the wounded, Chris Hemwall lives in Monroe, Mich,; Patrick Shelley in Marana, Ariz.; and Zackary Homble in Norfolk, Va.

They are represented by Michael Allweiss with Allweiss & Allweiss, of St. Petersburg. In a July 2012 federal complaint they filed against Tundra in Los Angeles, they were represented by Michael Doyle of Doyle Raizner.

The Acostas filed a similar federal complaint this week in Albany, N.Y. In that case, they are represented by Kreindler and Kreindler attorney Daniel Rose.