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By Mike Francis, The Oregonian

Lawyers for Oregon National Guard soldiers suing defense contractor KBR Inc. said this week the Houston-based company deliberately concealed a document proving it knew before the invasion of Iraq of the presence of a deadly carcinogen at a water treatment plant in the southern part of the country.

The soldiers’ lawyers are asking the Portland-based federal judge hearing the soldiers’ case to order a range of sanctions against KBR, including the award of attorneys’ fees and to revoke KBR’s attorney-client privilege.

KBR’s lead lawyer calls the charges “histrionic” and “just plain false.” And he said he would respond by calling for the judge to impose sanctions against the soldiers’ lawyers.

“I see the motion for what I think it is,” said Houston lawyer Geoffrey Harrison by phone Wednesday. “It is to distract attention from the lack of merit and to distract attention from the plaintiffs’ lawyers and experts inability to prove with evidence the hyperbolic claims they have made.”

The trial before U.S. District Judge Paul Papak is set to begin Oct. 9, but the soldiers’ lawyers say the discovery of the new document could force a delay.

Michael Doyle, a Houston lawyer representing the Oregon soldiers, said an environmental assessment that Kellogg, Brown and Root completed for the U.S. government before the invasion of Iraq, was finalized in January 2003 — a full five months before the company said it had found evidence of the toxic material, sodium dichromate. But he said KBR hasn’t admitted the existence of the assessment, much less its significance, despite repeated questions from the soldiers’ lawyers.

“They went to great lengths to conceal the existence of it,” he said by phone Wednesday.

The documents show KBR knew Iraqis ordered 8 million pounds of sodium dichromate to keep pipes from corroding, and that the company expected lax environmental maintenance and “lamentable” conditions.

The soldiers say they only learned of the alleged misrepresentation in late February, after a Department of Defense inspector general investigation directed them to the 2002 KBR assessment of the plant.

But Harrison, KBR’s lawyer, said the plaintiffs’ lawyers knew almost two years ago that KBR had completed and studied a series of contingency planning documents in preparation for the work at Qarmat Ali and elsewhere in Iraq. He said KBR had complied years earlier with a government directive to destroy or return the documents and that it since has “fully complied with its discovery obligations” in the case.

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 used to help produce Iraqi oil. Among the substances at the plant was a carcinogenic compound called sodium dichromate, which contains hexavalent chromium and is used to prevent corrosion.

Some of the Oregon soldiers have developed symptoms, including nosebleeds, skin rashes and respiratory problems, which their lawyers say were caused by exposure to the chemical compound. And they say their exposure increases their risk of developing cancer. At least two Indiana National Guard soldiers who served at Qarmat Ali have died from causes that could be related to exposure to sodium dichromate.

KBR has said in court there is no proof to support claims that soldiers were sickened from exposure to sodium dichromate and has argued repeatedly that it didn’t know the compound was present at Qarmat Ali until the middle of 2003, after soldiers were already stationed at the water treatment plant.

Guard soldiers from Oregon, Indiana and West Virginia who provided security at the Qarmat Ali water plant are involved in suits against KBR.

The U.S. Defense Department’s inspector general issued a report in late September that faults KBR for failing to comply with safety and health standards at the plant and not acting as quickly as it could have to protect soldiers and civilians from exposure. Nearly 1,000 Army soldiers and civilian employees being exposed to sodium dichromate over five months.

Before filing the motion on Wednesday, the soldiers’ lawyers conducted a deposition with John Weatherly, the lead contractor liaison with the U.S. Army Corps of Engineers.

He was asked by the soldiers’ attorneys how clear it was, given the newly-revealed assessment, that KBR knew of the chemicals at the latest by January 2003.

“From the dates on the documents,” he said, “it should be obvious.”

– Mike Francis

– The Associated Press contributed to this report.

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By Associated Press, Updated: Wednesday, April 4, 11:36 AM

A recent lawsuit brought by a group of Indiana National Guardsman spotlights a controversial legal doctrine that prevents soldiers on active duty from seeking compensation for injuries sustained in war zones.

The guardsman allege that a mission to help clean up a water treatment plant in southern Iraq left them with what they say are potentially fatal illnesses.

In a lawsuit filed in federal court in Indiana, the Guardsmen allege that oil company KBR Inc. “disregarded and downplayed” the fact that the site at Qarmat Ali was coated with the hazardous chemical sodium dichromate. They were exposed, they say, to the chemical that is used as an industrial anti-corrosive agent to protect pipes.

As a result, the soldiers suffered “unprotected, unknowing, direct exposure to one of the most potent carcinogens and mutagenic substances known to man,” alleges the suit, which seeks monetary compensation for health problems the soldiers say they have suffered.

KBR has said in court filings that it was carrying out the duties in its contract. It says the U.S. Army Corps of Engineers was obligated to provide it with an environmentally safe area for its work. Besides, the company says, Army medical tests have shown no soldiers were harmed. The company also says that once the chemical was discovered, the company worked to make the area safe.

A spokesman for the U.S. Army says it cannot comment on the suit because it is pending.

The suit and similar ones filed separately against KBR highlight the challenges of soldiers seeking compensation from the courts for war-zone incidents. A U.S. Supreme Court ruling known as the “Feres doctrine” bars soldiers in active duty from filing suits against the federal government. The military gives soldiers free medical treatment and stipends in some instances, the reasoning goes, so they are duly compensated for whatever befalls them on the battlefield.

Many of the suits that stem from actions on the battlefield are directed at third parties, specifically contractors whom the military increasingly rely on. But contractors too are immune from suits if they can successfully prove they have lived up to the specifications in their government contracts.

As a general rule, third parties have been successful in warding off big rewards from battlefield litigation. For instance, U.S. soldiers in the Vietnam War who said they suffered from symptoms related to the usage of Agent Orange, a toxic defoliant the military used in the war, sued the chemical companies that manufactured it. Suits seeking-class action status were first filed in the late 1970s and settled after about six years of legal wrangling. Under the settlement, only a handful of litigants were eligible for relatively meager compensation.

CIVIL ACTION NO.: 5:09-cv-69

Download the full West Virginia KBR Complaint

DALE GALLAHER; ROBERT WILSON;
RUSSELL POWELL; ANDRU KELLER;
ERIC HEID; JOHN HEADLEY;
and BRADLEY EBERT,
Plaintiffs

vs.

KBR, INC.; KELLOGG, BROWN & ROOT SERVICES, INC.;
KBR TECHNICAL SERVICES, INC.;
OVERSEASADMINISTRATION SERVICES, LTD.;
and SERVICE EMPLOYEES INTERNATIONAL, INC.
Defendant.

COMPLAINT

NOW COMES the Plaintiffs, by and through the undersigned counsel, and for their Complaint against the Defendants, state and aver as follows:

Plaintiffs, Dale Gallaher, Robert Wilson, Russell Powell, Andru Keller, Eric Heid, John Headley, and Bradley Ebert (together, “West Virginia Guardsmen”) file this Complaint against Defendants, KBR, INC., KBR TECHNICAL SERVICES, INC., KELLOGG BROWN & ROOT SERVICES, INC., OVERSEAS ADMINISTRATION SERVICES, LTD., AND SERVICE EMPLOYEES INTERNATIONAL, INC. (“together, “KBR”), and would respectfully show the following:

FACTUAL BACKGROUND

1.
KBR, a private company, and its operating subsidiaries (including Cayman Island subsidiaries set up by KBR for various purposes described further below) received billions of  dollars of no-bid contracts for work in Iraq in 2003. This suit arises from one of the projects KBR was charged with safely completing, a project involving the restoration of the Qarmat Ali water plant in southern Iraq so the facility could resume pumping water down into the Iraqi oil wells for more consistent oil flow. After major combat operations ceased in southern Iraq, KBR, a self-proclaimed expert in overseas infrastructure projects, was responsible at Qarmat Ali for proper site survey before and as work progressed. For allegedly timely completing the Qarmat Ali project, KBR received not only base contract payments but also retrospective “award” payments after Qarmat Ali was back on line.

Download the full West Virginia KBR Complaint

Indiana Complaint