By Julie Sullivan, The Oregonian
May 20, 2010, 6:31PM

Magistrate Judge Paul Papak will hear arguments July 12 on whether an Oregon Army National Guard veterans’ case against military contractor Kellogg, Brown and Root should go forward in U. S. District Court in Oregon.

On Thursday, Papak also granted in part and denied in part KBR’s motion to temporarily stop discovery until that he rules on the KBR’s second motion to dismiss the case. Papak directed the opposing attorneys to work together until then to identify witnesses and documents needed to proceed.

Twenty-one current and former Guard soldiers sued the contractor claiming that KBR managers downplayed or failed to disclose the dangers of a cancer-causing chemical scattered across Qarmat Ali water treatment plant in the months after the invasion of Iraq. The Guard was assigned to protect KBR employees as they worked to restore Iraqi oil production. The men say they suffer health problems as a result.

Thursday’s hearing underscored the case’s national scope and complexity. Four attorneys, appearing in person and by phone to defend KBR, referred to similar cases filed against the contractor by National Guard soldiers in West Virginia and Indiana. (The Indiana National Guard case was dismissed in February and refiled in Houston.)

KBR’s attorney Jeffrey Eden, of Portland, said sufficient information has already been gathered, including more than 20,000 pages of documents and the depositions of 14 current and former KBR employees.

But Judge Papak said he didn’t know how much discovery was fair to both sides. He was also concerned about delays noting that KBR attorneys appeared to have had the latest motions “in the quiver” and filed them two weeks after the judge rejected their first motion to dismiss on April 9.

“We got the motion ready as fast as we could,” said Ray Biagini, KBR defense attorney from Washington, D.C. Biagini said getting information from the Army was slowed by regulations. He also argued there is already enough known to show actions were based on the military’s wartime decisions in conjunction with the British and Iraqis.

Papak said he would have to hear both sides take on such information first.

David Sugerman, one of two attorneys appearing for the Oregon Guard, said the Army took 13 months to respond to his Freedom of Information Acts requests for documents, and then only after going Sen. Jeff Merkley, D-Ore., got involved. Yet, he said, KBR has gotten “many more documents” than the veterans.

Papak said he would help both sides agree on what other documents and witnesses they needed to proceed.

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]]> http://kbrlitigation.com/oregon-guard-chemical-exposure-suit-against-kbr-will-move-forward/feed/ 0 http://kbrlitigation.com/indiana-national-guard-soldiers-re-file-lawsuit-against-kbr/ http://kbrlitigation.com/indiana-national-guard-soldiers-re-file-lawsuit-against-kbr/#comments Fri, 02 Apr 2010 15:42:27 +0000 Doyle Raizner llp http://www.kbrlitigation.com/?p=465 by Star report of Indystar.com Attorneys for Indiana National Guard soldiers exposed to a dangerous chemical in Iraq have refilled their lawsuit against a military contractor in a federal court in Houston.The lawsuit claims that the contractor concealed the risks faced by nearly 140 Hoosier soldiers potentially exposed to a cancer-causing agent. The Guard soldiers [...]


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INDIANAPOLIS — After their lawsuit was dismissed in Indiana, attorneys for a group of National Guard soldiers have refiled it in Texas.

The lawsuit against a defense contractor claims the company knew of the presence of a deadly toxin at a site the soldiers were guarding in Iraq but waited before telling anyone.

The lawsuit against KBR was filed Tuesday in a federal court in Houston.

Brought by a group of attorneys led by Houston-based Mike Doyle, the lawsuit was dismissed in February by a federal judge in Indiana. The judge ruled the court lacks “personal jurisdiction” to take up the matter and did not consider the merits of the lawsuit.

The soldiers, about 140 from Indiana, say they were exposed to sodium dichromate, an anti-corrosive that was likely dusted across the wind-swept desert near Basra when Iraqis cut open storage containers as they fled the site at the beginning of the 2003 American-led invasion.

Known carcinogen

The soldiers were guarding Qar-mat Ali, a plant being operated by Houston-based KBR where water was pumped underground to boost oil production.

Sodium dichromate contains hexavalent chromium, a known human carcinogen. Exposure to the toxin, experts say, can cause nosebleeds and severe respiratory problems, as well as heightened risks of cancer, and kidney and liver diseases.

The soldiers’ lawyers charge that KBR was aware of the risk but kept it secret. KBR has said it collected air samples that showed low levels of the chemical. Doyle’s team also is representing soldiers in cases pending in Oregon and West Virginia.

One of the exposed soldiers, Lt. Col. James Gentry, 52, of Mitchell, Ind., died in November. Gentry, a nonsmoker, was diagnosed in 2006 with a rare form of lung cancer. Military doctors say it most likely was caused by the exposure.

“Only the good Lord knows what happened at that site,” said Maj. Gen. R. Martin Umbarger, Indiana’s top-ranking National Guard general, at the funeral of Gentry, who commanded the group including soldiers from a battalion based in Jasper, Ind., and Tell City, Ind.

Another soldier, David Moore, 42, of Dubois, Ind., died in 2008.

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By Jon Murray
Indystar.com

A federal judge today dismissed a lawsuit accusing a large defense contractor of concealing the risks faced by nearly 140 Indiana National Guard soldiers potentially exposed to a cancer-causing agent in Iraq.

The ruling did not address any of the claims in the lawsuit, which could still be pursued elsewhere by the attorneys for the 47 Indiana Guard soldiers serving as plaintiffs. Chief Judge Richard L. Young ruled that the U.S. District Court for the Southern District of Indiana lacks “personal jurisdiction” over Texas-based KBR and several related companies.

The dismissal was based in part on a finding that the actions at issue in the suit took place outside Indiana even if the health effects are only being felt now. And the KBR companies’ limited contacts in Indiana — they have no offices here but have held contracts in Indiana — amount to an insufficient business footprint.

Mike Doyle, one of the plaintiffs’ attorneys, said the legal team plans to file a new version of the lawsuit in another jurisdiction as soon as possible, but he did not specify where.

“This development delays but does not deny justice for the Indiana Guardsmen in this case,” Doyle said in a statement. “The truth of what happened at Qarmat Ali will be told, and we believe it will be told in a federal court.”

KBR also issued a statement: “We are pleased with the ruling and believe Judge Young made the right decision regarding jurisdiction in this case. Regarding the general allegations in the litigation, KBR maintains that plaintiffs’ claims are unsupported by the evidence.”

Most of the plaintiffs served with a Tell City, Ind., unit sent to Iraq with the Indiana National Guard’s 1st Battalion, 152nd Infantry Regiment, based in Jasper. For three months beginning in May 2003, the unit provided security for KBR employees charged with rebuilding the Qarmat Ali water-pumping plant near Basra.

Restoring the plant was a key step in restoring oil production.

The suit says the site was covered in sodium dichromate, an industrial chemical normally used to remove pipe corrosion. It contained heavy doses of a carcinogen called hexavalent chromium that is known to heighten the risk for cancer of the lungs and respiratory tract.

Some of the Indiana soldiers have developed rashes and other health problems since their return.

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Ross William Hamilton, The Oregonian | U.S. Sen. Ron Wyden watches as Larry Roberta, an Oregon veteran who suffers breathing and stomach problems from exposure to hexavalent chromium, coughs during a news conference in Portland. "There was no way to get away from it,'' Roberta said. "Our job was to watch KBR's back and make sure they were OK."

Veterans exposed to cancer-causing hexavalent chromium in Iraq — including nearly 300 Oregon soldiers — should be treated as if they’d hit a roadside bomb and receive lifelong medical care and Purple Hearts, U.S. Sen. Ron Wyden said Thursday.

Ten Oregon Army National Guard veterans who were exposed to the chemical while protecting war contractor KBR’s employees stood with the Oregon Democrat a news conference to acknowledge their “invisible wounds” and to hold the contractor accountable. When one veteran began to cough violently and struggled for breath at the podium, Wyden’s alarm turned to outrage.

“Precautions should have been taken and they were not, that is inexcusable,” Wyden said. “That soldiers have become critically ill and suffer respiratory diseases and skin rashes that, again, is inexcusable.”

The soldiers served at Qarmat Ali, a water treatment plant where fleeing loyalists of Saddam Hussein spilled a corrosion fighter containing hexavalent chromium, which is so toxic that an amount the size of a grain of salt greatly increases the risk of lung, stomach and brain cancer. The Oregonian exposed the widespread health problems in a series of stories last year, which alerted the soldiers to danger.

The men are among 21 soldiers in Oregon, and dozens in other states suing KBR in federal court. Soldiers say they were never told of any danger and were told that their bloody noses and other symptoms were allergies to desert sand. KBR maintains it was not responsible for the chemical at the water treatment plant, that it posted signs warning that the anti-corrosive was toxic and points fingers at Army engineers.

The Senate Veterans’ Affairs Committee passed a bill to extend health care to the Qarmat Ali veterans, but only until 2012. Wyden wants to amend and extend that coverage for life before a final vote. He said he is also taking up the fight headed by retiring Sens. Byron Dorgan, D-N.D. and Evan Bayh, D-Ind. Dorgan led 19 hearings into waste, fraud and abuse by war contractors. At one hearing, former KBR employees at Qarmat Ali, themselves suffering lung and skin problems, told senators that soldiers were exposed. Bayh was the first to raise alarm about Oregon soldiers when he noted that Indiana troops followed Oregon troops at Qarmat Ali in 2003.

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First UK Iraq Vet Sues Contractor KBR Over Alleged Toxic Exposure

Contractor also accused of misleading British military

HOUSTON, Feb. 4, 2010 – A retired Royal Air Force sergeant joined more than 80 U.S. veterans in litigation against military contractor KBR, Inc. over alleged toxic exposure at a contaminated site near Basra, Iraq, the Doyle Raizner LLP law firm announced today.

In an amended lawsuit filed today in West Virginia federal court, Andrew M. Tosh claims KBR endangered U.K. and U.S. military personnel by exposing them in 2003 to sodium dichromate – an anticorrosive chemical containing nearly pure hexavalent chromium, a carcinogen – at a water plant they guarded in Qarmat Ali, Iraq. KBR was contracted to restore the water plant to supply water to Iraqi oil wells.

According to the lawsuit, military personnel guarding the site were “unprotected against the hazards of sodium dichromate known to KBR’s managers for months and months.” KBR also is accused of manipulating air and soil testing at Qarmat Ali and of intentionally avoiding blood tests that might have confirmed the presence and extent of hexavalent chromium toxicity in civilian workers showing exposure symptoms.

The lawsuit alleges, “In fact, despite the demonstrated knowledge of elevated chromium levels in the admittedly inadequate blood testing of KBR’s civilian employees, KBR’s managers apparently deliberately told British Forces exactly the opposite.”

Tosh, 44, of Lincoln, Lincolnshire, UK, was deployed with his squadron to Basra, Iraq in May 2003 on force protection duties. His service at the Qarmat Ali site included numerous 24-hour shifts during a five-month period. A 23-year veteran of the RAF Regiment, he suffered from skin rashes during and after his deployment and prolonged chest infections while in Iraq and on return to the UK.

Tosh said, “We now know that the dusty rust-colored substance at Qarmat Ali was extraordinarily dangerous. Whilst afraid for my own long-term health and that of the numerous other RAF Regiment troops I served with in Iraq, I believe KBR management misled the militaries of the U.S. and the U.K. Too many of the men who served at Qarmat Ali were sick whilst there or became ill later. This cannot be coincidental.”

An internal KBR memo from August 8, 2003 noted that “60 percent” of the company’s civilian contractors at the site were showing symptoms of sodium dichromate exposure. Yet, shortly thereafter, the British military reported that “[b]iological monitoring test results to which we have been given access for contractors and American forces have been within normal limits.” The British report then estimated that the “environmental hazards” would have “no effects” on military personnel guarding Qarmat Ali.

Tosh is represented by Michael P. Doyle, Jeffrey L. Raizner, and Patrick M. Dennis, of Doyle Raizner LLP, of Houston, and Michael G. Simon, of Frankovitch, Anetakis, Colantonio & Simon, of Weirton, W.V. Doyle Raizner LLP and co-counsel represent 81 Iraq veterans in three cases pending in federal courts in Indiana, West Virginia and Oregon.

Doyle said about half of the veterans pursuing legal claims still show signs of sodium dichromate exposure, ranging from persistent rashes and nose bleeds to severe respiratory impacts such as tumors. Two cancer deaths – including that of the commanding officer of an Indiana National Guard unit serving at Qarmat Ali, Lt. Col. James Gentry – are attributable in whole or part to the exposure, he said.

“Through this litigation and the Congressional investigation,” Doyle said, “the evidence has begun to show that KBR risked the lives of the U.S. and U.K. military personnel guarding the facility. We allege, contrary to KBR’s dubious claims, that the company continues to conceal the truth about Qarmat Ali.”

The lawsuit seeks medical monitoring costs, future medical costs, and damages related to physical impairment and disfigurement and loss of earning capacity, among other claims.

The Tosh case is “Dale Gallaher, et al., v. KBR, Inc., et al.,” in the U.S. District Court for the Northern District of West Virginia, Civil Action No. 5:09-cv-69.

More information about the Qarmat Ali litigation is available through Doyle Raizner at www.kbrlitigation.com.

Media Contact: Erin Powers, Powers MediaWorks LLC, for Doyle Raizner LLP, 281.703.6000; info@powersmediaworks.com.

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National Guardsmen suing KBR for chemical exposure

December 30, 2009 Wednesday
NBC Nightly News 6:30 PM EST NBC

NBC News Transcripts
ANCHORS: BRIAN WILLIAMS
REPORTERS: LISA MYERS

We’re back and we have an NBC News investigation tonight that takes us back to Iraq in 2003, after the combat phase of the war was over. American troops were working alongside contractors from private corporations, racing to get that nation’s oil flowing again, as you’ll recall. Tonight we bring you the story of some Army National Guardsmen who are suing the defense contractor KBR, accusing the company of putting them in a different kind of danger in the war zone. Here is our senior investigative corespondent Lisa Myers.

Mr. LARRY ROBERTA: Independence Hall.

LISA MYERS reporting:

When National Guardsman Larry Roberta went to Iraq, he expected sandstorms, physical hardship, perhaps even combat. What he didn’t expect was this: orange dust all over the place at a plant where his unit was assigned to provide security for contractors working for Kellogg Brown and Root, KBR. The workers were repairing the Qarmat Ali water treatment plant, needed to supply water to Iraqi oil fields.

Mr. ROBERTA: You could taste stuff in the air that–it had a really strange metallic taste.

MYERS: Roberta and others say the dust was throughout the plant and the grounds, and permeated the air during sandstorms.

Mr. ROBERTA: And it blew up in my face and on my chicken patty and my mouth and stuff like that. I didn’t really think a whole lot of it, other than it tasted really bad, and made me throw up and burned.

MYERS: Another Guardsman, Captain Russ Kimberling, says he asked KBR officials what the orange dust was.

Captain RUSS KIMBERLING: And what we got from them was it’s a mild irritant.

MYER: The orange dust actually was a highly toxic chemical, sodium dichromate, which had been used by the Iraqis prior to the war to prevent corrosion in pipes. Scientists have found that the chemical can cause lung cancer in humans. There were hundreds of bags of it at the plant, clearly labeled. Six years later, several Guardsmen who spent time at the site have reported rashes, perforated septums and severe respiratory problems. Former Lieutenant Colonel James Gentry developed a rare lung cancer. First Sergeant David Moore developed lung disease.

Larry Roberta, who hiked up Mount Sinai before he went to Iraq, now struggles to catch his breath when he walks. He has serious stomach and liver issues, migraines and acute respiratory problems.

Mr. ROBERTA: You almost feel like you’re–like you’re drowning. Like you want to breath but you just can’t.

MYERS: A KBR spokesman says the company immediately notified the Army as soon as it discovered there was sodium dichromate contamination at the plant. That, the company says, was in late July 2003. But an internal KBR document says a company technician actually identified the chemical at the site in May. Yet another KBR document warns of potential contamination at the site, and suggests testing and cleanup. It’s dated June 21st, more than a month before the Army was alerted. It wasn’t until late August that the Guardsmen became aware of the danger, and then only because they saw images like this, KBR workers wearing white chemical suits.

Capt. KIMBERLING: They were in full protective chemical gear, you know, from head to toe. I kind of looked at one of my men and just said, `This can’t be good, can it?’

MYERS: These and other Guardsmen are now suing KBR, charging that the company knowingly endangered their lives. KBR strongly denies wrongdoing. The company says it was the Army’s responsibility to ensure the site was free of environmental hazards and that tests done by the Army concluded that no soldier encountered a significant inhalation exposure. The company also disputes claims that the chemical made Guardsmen sick. We went to one of the foremost experts on sodium dichromate, Dr. Herman Gibb.

KBR says that there was simply no evidence that soldiers were harmed by exposure to this chemical.

Dr. HERMAN GIBB: I don’t see how they can say there’s no evidence. I mean, they experienced symptoms that are consistent with sodium dichromate exposure. The exposure must have been fairly significant to be associated with these symptoms.

MYERS: Since our interview, Dr. Gibb has been hired by lawyers representing the Guardsmen to review material for their case. Recently the Army acknowledged that 700 soldiers may have been exposed to the chemical at the plant. The Defense Department is now investigating. David Moore died last year at age 42. James Gentry died the day before Thanksgiving. Larry Roberta struggles just to get through each day.

Capt. KIMBERLING: They said it was a mild irritant. That’s what I told my soldiers, and suck it up and drive on with the–with the mission.

Mr. ROBERTA: IF KBR did now…(clears throat)…excuse me—about this before we were there, it should have been rectified.

MYERS: Lisa Myers, NBC News, Washington.

WILLIAMS: When NBC NIGHTLY NEWS continues in just a moment, who do we admire most these days in this country? Some new poll numbers are out tonight.

by Melissa Swan of WHAS-ABC 11 (Louisville, KY)

(WHAS11) – Indiana National Guard troops gathered to say goodbye to one of their commanding officers on Tuesday, Lt. Colonel Jim Gentry. Gentry believed his terminal cancer was directly related to his service in Iraq and even after death the 52-year-old Indiana National Guard commander is continuing a fight for his troops through a lawsuit.

Veterans from several wars held the stars and stripes as members of Jim Gentry’s family, both by blood and by military arrived for a final, formal goodbye.

“He was the type of person that loved the challenge, loved soldiers, loved to work with soldiers,” said Major General Dan Colglazier, a retired member of the Indiana National Guard.

Inside the chapel, were many of Jim Gentry’s soldiers, their patches for the infantry and for Indiana worn proudly on their sleeves.

Gentry entered the Army in 1981 as an infantry man and rose to the rank of Lieutenant Colonel. He was among the first National Guard troops in the country to be deployed to Iraq. There he commanded soldiers throughout the country.

“We always talked about how to take care of the troops and how to fulfill his mission..Never about how he was doing, what kind of condition he was in..It was always his soldiers and the unit and the mission,” added Maj. General Colglazier.

It was during Gentry’s first tour of duty, in 2003, he and other Indiana National Guard soldiers first noticed a yellow substance in the sand near Basra.

They were guarding American contractors restoring the Iraqi oil fields. That yellow substance was later confirmed to be a cancer causing chemical, sodium dichromate.

Gentry would later come to believe that the sodium dichromate led to his terminal cancer.

Before his death, Gentry joined in a federal lawsuit against KBR, the American military contractor restoring the Iraqi oil fields.

More

Washington  – Senator Evan Bayh made the following statement today at a Senate Veterans Affairs Committee hearing about S. 1779, The Health Care for Veterans Exposed to Chemical Hazards Act of 2009:

Mr. Chairman, I want to thank you for the invitation to testify today—and for all you’re doing to ensure that the VA has the tools and authority it needs to help our brave men and women who are returning from Iraq and Afghanistan nursing the wounds of war.

I am here today to testify about a tragedy that took place in 2003 on the outskirts of Basrah, Iraq.

I’m here on behalf of Lt. Colonel James Gentry and the brave men and women who served under his command in the 1st Battalion, 152nd Infantry of the Indiana National Guard.

I spoke with Lt. Col. Gentry by phone last week. He is at his home with his wife, Lou Ann, waging a valiant fight against terminal cancer.

The lieutenant colonel was a healthy man when he left for Iraq. Today, he is fighting for his life.

Tragically, many of his men are facing their own bleak prognoses as a result of their exposure to sodium dichromate—one of the most lethal carcinogens in existence.

The chemical is used as an anti-corrosive for pipes. It was strewn all over the water treatment facility guarded by the 152nd Infantry. More than 600 soldiers from Indiana, Oregon, West Virginia and South Carolina were exposed.

One Indiana Guardsman has already died from lung disease. The Army has classified it a service-related death.  Dozens of others have come forward with a range of serious respiratory symptoms.

The DoD Inspector General just launched an investigation into the breakdowns and gaps in our system that allowed this tragic exposure to happen. Neither the Army nor the private contractor KBR performed an environmental risk assessment of the site, so our soldiers were breathing in this chemical and swallowing it for months.

Our country’s reliance on military contractors—and their responsibility to their bottom line vs. our soldiers’ safety—is a topic for another day and another hearing.

Mr. Chairman, today, I would like to tell this committee about S.1779. It is legislation I have written to ensure we provide full and timely medical care to soldiers exposed to hazardous chemicals during wartime military service.

The Health Care for Veterans Exposed to Chemical Hazards Act of 2009 is bipartisan legislation that has been cosponsored by Senators Lugar, Dorgan, Rockefeller, Byrd, Wyden, and Merkley.

My bill is modeled after similar legislation that Congress approved in 1978 following the Agent Orange exposure in the Vietnam conflict.

The bill ensured lifelong VA care for soldiers unwittingly exposed to the cancer-causing herbicide in the jungles of Vietnam.

Some have called toxic industrial hazards the Agent Orange of the wars of Iraq and Afghanistan.

My legislation would make soldiers eligible for medical examinations, laboratory tests, hospital care and nursing services. It would ensure soldiers receive priority health care at VA facilities. It would recognize a veteran’s own report of exposure and inclusion on a Department of Defense registry as sufficient proof to receive medical care, barring evidence to the contrary.

My legislation will help ensure that we provide the best possible care for American soldiers exposed to environmental hazards during the reconstruction of Iraq and Afghanistan. At a bare minimum, my bill will ensure compassionate care so families are spared the added grief of going from doctor to doctor in their loved ones’ final days, searching for a diagnosis.

The 1978 Agent Orange registry only covered one chemical compound. But my bill is broader. It covers all members of the armed forces who have been exposed to any environmental chemical hazard, not just sodium dichromate. It recognizes a new set of risks that soldiers face today throughout the world.

Senate testimony last year identified at least seven serious instances of potential contamination involving different industrial hazards—sulfur fires, ionizing radiation, sarin gas, and depleted uranium, to name a few.

S.1779 ensures that veterans who were exposed to these chemicals will be eligible for hospital care, medical services, and nursing home care.

It allows the Secretary of Defense to identify the hazards of greatest concern that warrant special attention from the VA.

My bill switches the burden of proof from the soldier to the government. Soldiers exposed to toxic chemicals will receive care presumptively, unless the VA can show their illness is not related to their service.

Exposure to toxic chemicals is a threat no service member should have to face. It is our moral obligation to offer access to prompt, quality care. We should cut the red tape for these heroes.

Mr. Chairman, I promised Lt. Col. Gentry that I would fight for his men here in Congress. I promise I would use my position to get them the care they deserve and to make sure we protect our soldiers from preventable risks like this in the future.

This tragedy will be compounded if we do not take the steps to provide the best medical care this country has to offer.

Thank you for this opportunity to offer testimony today. I urge this committee to adopt S. 1779 to honor the sacrifice of Lt. Colonel Gentry and all of our brave men and women doing the hard, dangerous work of keeping America safe.

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