Federal Judge Paul Papak in the United States District Court for Oregon today entered an order rejecting KBR and Halliburton’s demands for immunity for their conduct exposing Oregon National Guard soldiers to dangerous toxins at their Qarmat Ali project in southern Iraq in 2003.

The order ( 00132958.PDF) rejected the government contractor’s claims that they were entitled to dismissal of all claims against them, regardless of how serious their knowing misconduct was or the impacts on the men serving at Qarmat Ali, under the “political question doctrine”, “derivative government immunity” and “combatant activities” claims.

In a detailed, fact-specific analysis of KBR/Halliburton’s motion, Judge Papak found that none of the claims for immunity were supported by the actual evidence of KBR/Halliburton’s responsibilities for both conducting appropriate site analysis from “the get-go”, as confirmed in sworn testimony of the former commander of Task Force Restore Iraqi Oil (RIO), Gen. Robert Crear, and protecting all the men at their work site, including the soldiers providing security, from the sodium dichromate (also known as hexavalent chromium) that KBR’s own documents confirmed totally contaminated the site.

In recognizing that the law was clearly on the side of our veterans who served at Qarmat Ali, Judge Papak also rejected KBR/Halliburton’s attempt to shield all their activities in Iraq from legal scrutiny of any kind.

Aside from the importance to the Oregon veterans and the other men knowingly exposed at Qarmat Ali, Judge Papak’s opinion is also important for its refusal to simply accept KBR/Halliburton’s use of carefully selected (and incomplete) documentation and affidavits secured by KBR/Halliburton’s lawyers outside the mandatory US government requirements for securing evidence by any litigant.

Many times KBR/Halliburton has been able to convince courts to simply accept their version of the facts as true, without allowing any scrutiny of the factual record presented by KBR/Halliburton. In requiring a careful review, including sworn depositions of Gen. Crear and representatives of KBR to be considered, Judge Papak’s ruling went a long way towards helping reveal the true facts of what KBR/Halliburton did at Qarmat Ali.

Oregon Judge Opinion Rejects KBR Immunity Motions

Please visit Oregonlive.com for full story

By Julie Sullivan, The Oregonian
Originally Published Oregonlive.com on May 19, 2010, 9:17PM

Photo by: Torsten Kjellstrand, The Oregonian - David Sugerman represents 21 Oregon Army National Guard soldiers in their lawsuit against KBR.

Oregon Army National Guard veterans suing the largest war contractor in Iraq today in federal court in Portland acknowledge they’re waging an improbable fight.

In February, the war contractor squashed a similar lawsuit by Indiana Guard who also claimed they were knowingly exposed to a cancer-causing chemical in Iraq in 2003.

Last June, the war contractor even knocked out a suit by 10 of its former employees — the people Oregon troops were guarding.

The 21 Oregon veterans suing Kellogg, Brown and Root include a postal clerk, a security guard and a soldier just back from a second tour to Iraq where he guarded KBR convoys. The men say they suffer breathing, stomach and other health problems from being exposed to hexavalent chromium at the Qarmat Ali water treatment plant.

They face a large and experienced defense team who’ve handled hundreds of personal injury claims filed against KBR since the invasion of Iraq over its burn pits, accidental electrocutions and alleged assaults.

Photo by Beth Nakamura, The Oregonian - Rocky Bixby is one of the veterans in the KBR lawsuit.

On the vets’ team: one tall Texan and a Portland trial lawyer in a solo firm.

Houston attorney Michael Patrick Doyle, who’s won millions suing corporations for negligence, is working with David Sugerman, who’s taken class-action suits and consumer cases. They took the case on contingency. After months of unpaid work, one soldier felt so guilty he gave Sugerman the only bill in his wallet: an Iraqi dinar.

Today, KBR’s attorneys will argue it’s not responsibile. They blame the Army Corps of Engineers, which was in charge at Qarmat Ali. KBR’s local attorneys Jeffrey Eden and Stephen Deatherage will ask Magistrate Judge Paul Papak to stop discovery. They want Papak to rule — yet again– on whether the case should go forward in his U.S. District courtroom.

The case pits the Oregon veterans against the very Army they served in. For instance, the Army won’t release some records to their attorneys — only KBR.

“It’s overwhelming to know we’re going up against a company that has a lot of power and that the military seems to want to keep on their side, to work with in the future,” said former soldier Rocky Bixby, 43, a public safety officer at Oregon Health & Science University.

“It’s like stepping onto a freeway. You don’t know if you’re going to get run over or even make it out of there.”

The Oregon case against KBR offers a portal into the unprecedented privatization of war.

Since 2001, the government has paid private companies at least $150 billion to do work the military once did, from folding laundry to driving fuel trucks. Civilians working for contractors now outnumber military in Iraq and Afghanistan.

Last month, the Special Inspector General for Iraq Reconstruction reported just how radical the shift is. During World War II, the ratio of contractors to military was 1-to-7. In Vietnam, 1-to-6. In Iraq and Afghanistan, 1-to-1 or fewer.

Court documents, government reports, Congressional testimony and reporting by the Center for Public Integrity and U.S. newspapers describe KBR’s ascent:

Three weeks before the March 2003 invasion of Iraq, the Corps of Engineers contracted with KBR to fight Iraqi oil fires, without the usual bidding process or notification to Congress.

KBR was well connected.

Ties to Lyndon Johnson had helped the vintage Texas road-building firm, Brown and Root erect dams, military installations and off-shore oil platforms before it was acquired by oil giant Halliburton in 1962.

After the Persian Gulf war, then-Secretary of Defense Dick Cheney ordered a study to turn military support operations such feeding and housing troops to a private company. Brown and Root did the study, and was then chosen to carry out its plan for $2 billion. Cheney went on to Halliburton from 1995 to 2000, when he became vice president.

KBR lost the bid for the logistics contract in 1997 but won it back in late 2001, a 10-year contract worth $23 billion. In November 2002, KBR was asked to plan how to restore oil production in Iraq. Five months later, it won the no-bid contract to carry out its own plan. Three weeks later, the U.S. invaded Iraq.

But details of the contract remained secret until the non-partisan Center for Public Integrity sued the government and a year later, got the paperwork. They found 10 tasks had been added onto KBR’s original oil restoration contract. One task had ballooned in cost from $24 million to nearly $900 million in just six months. KBR eventually billed the government 2.5 billion.

Within weeks of the invasion, contractors reached the decrepit Qarmat Ali plant near Basra in southern Iraq. The plant provided the critical water pressure needed to extract oil from nearby fields. KBR moved swiftly to repair it.

National Guard soldiers from four states were ordered to protect the contractors traveling to Iraq oil sites. From April to June 2003, teams of Oregon soldiers accompanied KBR employees to pipelines, oil fields and Qarmat Ali. Just weeks after the Indiana Guard replaced the Oregonians, a new KBR safety officer arrived at the plant and was immedately concerned about the fine orange powder piled several feet deep that blew constantly in the desert wind. The corrosion fighter contained hexavalent chromium, one of the most potent carcinogens. Most of the soldiers and staff had sinus problems and bloody noses. KBR managers at first dismissed complaints, then inspected the plant wearing protective suits. The military immediately pulled out. KBR closed the plant, and the contamination was eventually paved over.

Still, the exposure and the men’s health problems remained hidden until KBR’s own employees told Senate Democrats about the hexavalent chromium during contractor oversight hearings on waste and abuse in 2008. The Senators concluded “the Bush Administration failed to follow long-established regulations for awarding contracts, mismanaged the performance of contracts it did award, and allowed contractors and Iraqi government officials to engage in fraudulent and wasteful conduct.”

Soldiers from across the country, learning the extent of the danger, also testified before Congress and began filing suit.

The Senate Democrats also concluded that KBR “knowingly” exposed troops and its own employees to sodium dichromate/hexavalent chromium.”

KBR, which spun off from Halliburton in 2007, become synonymous for poor performance: serving spoiled food, using contaminated water and burning trash in pits. The company also outraged the public by hiring workers through two shell companies in the Cayman Islands to avoid federal Social Security and Medicare taxes.

KBR denies harming troops or employees in Iraq and said it is proud of its work there.

“Ethics and integrity are the foundation of our business. The company in no way tolerates or condones illegal or unethical behavior. When questions about our work have been raised, KBR has provided information requested of us and worked to resolve the issues. We remain committed to providing the Army with high-quality, cost effective service,” spokeswoman Heather Browne said in a statement Wednesday.

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For Full Story

]]> http://kbrlitigation.com/suit-against-kbr-by-oregon-national-guard-goes-forward-in-portland/feed/ 0 http://kbrlitigation.com/oregon-guard-chemical-exposure-suit-against-kbr-will-move-forward/ http://kbrlitigation.com/oregon-guard-chemical-exposure-suit-against-kbr-will-move-forward/#comments Fri, 21 May 2010 04:36:14 +0000 Doyle Raizner llp http://www.kbrlitigation.com/?p=519 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 [...]


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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.

For Full Story

]]> http://kbrlitigation.com/oregon-guard-chemical-exposure-suit-against-kbr-will-move-forward/feed/ 0 http://kbrlitigation.com/houston-chronicle-guardsmen-allege-kbr-exposed-them-to-carcinogens-in-iraq/ http://kbrlitigation.com/houston-chronicle-guardsmen-allege-kbr-exposed-them-to-carcinogens-in-iraq/#comments Tue, 06 Apr 2010 04:59:51 +0000 Doyle Raizner llp http://www.kbrlitigation.com/?p=484 By MARY FLOOD | Houston Chronicle More than 50 Indiana National Guardsmen have filed a lawsuit in Houston claiming KBR failed to warn them about exposure to carcinogenic chemicals at an Iraqi water facility they were guarding. An Indiana judge tossed out the same lawsuit over cancer-causing hexavalent chromium at the Basra-area water plant, saying [...]


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Houston Chronicle Website

By MARY FLOOD | Houston Chronicle

More than 50 Indiana National Guardsmen have filed a lawsuit in Houston claiming KBR failed to warn them about exposure to carcinogenic chemicals at an Iraqi water facility they were guarding.

An Indiana judge tossed out the same lawsuit over cancer-causing hexavalent chromium at the Basra-area water plant, saying that Midwestern court did not have jurisdiction over the Houston-based company.

Houston lawyer Mike Doyle, who has also filed cases in Oregon and West Virginia for other soldiers claiming exposure to the chemicals,said “KBR management absolutely knew that soldiers were being exposed and management absolutely did not share the information so they could protect themselves.”

KBR has denied that they kept any contamination secret and said there is no known illness connected to the facility.

The lawsuit filed last week alleges the guardsmen from Tell City, Ind., and others working at the site were subjected to “months and months of unprotected, unknowing, direct exposure to one of the most potent carcinogens and mutagenic substances known to man.”

“The Tell City, Indiana Guardsmen were repeatedly told that there was no danger on site, even after KBR managers knew that blood testing of American civilians exposed on site confirmed elevated chromium levels,” the suit alleges.

KBR was hired to get the Iraqi water plant working through a no-bid U.S. government contract in 2003 as part of Operation Restore Iraqi Oil.

The dangerous hexavalent chromium was part of a chemical compound called sodium dichromate used by Iraqis as an anti-corrosive for clearing pipes. The soldiers who are suing, along with some family members, were guarding the facility while KBR civilians worked on restoring it.

Congress held hearings on the question of the chemical exposure at this Iraqi plant in June 2008.

Doyle said one soldier’s death has been directly linked to exposure to the orange dust with the carcinogen and others are sick with related respiratory illnesses, many have related rashes or other problems and all have higher risks of getting cancer.

Mark Lowes, KBR’s vice president of litigation, said any contamination KBR found at the site was properly reported.

“Based on testing by both the military and KBR we believe there was no hazardous exposure, and there has been no documented illness related to the facility. More importantly, our Statement of Work with the Army obligated them to provide us with a facility that was free from ‘all environmental and war hazards,’ ” Lowes said.

Lowes said some KBR employees also went into arbitration over possible chemical exposure at the Qarmat Ali water facility and that “resulted in a finding of no illness and no liability to the employees.”

For full article at the Houston Chronicle

KBR: Private Military Cancer (PMC) Provider?

David Isenberg, Author, Shadow Force: Private Security Contractors in Iraq

Yesterday Doyle Raizner LLP, the legal team for the Indiana National Guardsmen, whose claims against KBR were recently dismissed in Indiana federal court, refiled for the Guardsmen in Houston federal court.

The suit alleges that KBR knowingly allowed exposure to the toxic chemical sodium dichromate. This chemical, sometimes called hexavalent chromium, was widely present as an orange-colored dust that soldiers assigned to guard the Qarmat Ali water treatment plant in southern Iraq could not avoid inhaling. Sodium dichromate or hexavalent chromium is a powerful carcinogen known to cause lung, nasal and other cancers, other severe respiratory problems and other medical problems.

Here are some excerpts from the 32-page lawsuit…

FACTUAL OVERVIEW OF THE CASE

1.1 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 worth of no-bid contracts for work in Iraq in 2003. This lawsuit 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 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 paid by the United States government to get the Qarmat Ali water treatment plant back online. The project necessarily required KBR to take ordinary and necessary safety precautions to protect those working at the site, including proper surveys of the site before and as work progressed. KBR was incentivized to get Qarmat Ali back online as quickly as possible without interruptions because it received not only base contract payments but also retrospective “award” payments for expeditious completion of the project.

1.2 Instead of doing what KBR promised and was paid to do for the Qarmat Ali project, KBR managers based in Kuwait City; Houston, Texas; Alexandria, Virginia; and elsewhere disregarded and downplayed the extreme danger of wholesale site contamination by sodium dichromate, a toxic chemical used at the site as an anti-corrosive and containing nearly pure hexavalent chromium. KBR managers knew about both the site contamination and the extreme danger of hexavalent chromium.

What these knowing acts and omissions meant to the Tell City, Indiana Guardsmen providing security for the actual work at Qarmat Ali, along with the British troops and the American civilians actually carrying on the work at Qarmat Ali, was months and months of unprotected, unknowing, direct exposure to one of the most potent carcinogens and mutagenic substances known to man: hexavalent chromium. When the Tell City, Indiana Guardsmen and American civilians actually working at Qarmat Ali began experiencing the most characteristic symptom of acute hexavalent chromium poisoning, nasal excoriation (bleeding from the nose) known to toxicologists as “chrome nose,” KBR managers told men onsite that their symptoms were simply an effect of the “dry desert air” and they must be “allergic to sand.” The Tell City, Indiana Guardsmen were repeatedly told that there was no danger on site, even after KBR managers knew that blood testing of American civilians exposed onsite confirmed elevated chromium levels. What was not revealed until Congressional Hearings in June 2008 was the extent of knowledge of KBR managers about the danger onsite and the ongoing concealment of the exposures to the Tell City Guardsmen and others.

On the classic question of what did they know and when did they know it:

There is no doubt that KBR’s managers knew before the Tell City, Indiana Guardsmen ever arrived at Qarmat Ali about the dangerous sodium dichromate contamination at the site. According to the sworn statement of KBR’s southern Iraq Health Safety Environment (HSE) manager Johnny Morney:

Q. How did you learn Sodium –

A. Jake Duhan was making a round as a safety professional. He made a round and he observed this.

Q. Mr. Duhan –

A. Right.

Q. — this observation that was conveyed to you -

A. Right.

Q. — in May 2003 –

A. Right.

Q. — how was it conveyed to you in May 2003? In what manner? Did

you get a memo, did you get a email?

A. In a conversation. He came in and it was in his daily report and we had a discussion, which was a requirement of all our HSE coordinators…

THIRD CAUSE OF ACTION – FRAUD

7.1 The Tell City, Indiana Guardsmen re-allege and incorporate each allegation contained in Paragraphs 1 to 6.2 of this Complaint as if fully set forth herein.

7.2 KBR was in contact with the United States Army regarding the dangers present at Qarmat Ali and materially misrepresented those dangers to the United States Army by denying any knowledge of site contamination until July 2003, failing to inform the United States Army of the dangers at Qarmat Ali while the Army was of the understanding that such dangers would be conveyed, and otherwise concealing evidence of sodium dichromate exposure even though KBR managers were aware of the sodium dichromate contamination in May 2003 and the dangers associated therewith.

7.3 The Tell City, Indiana Guardsmen were exposed to sodium dichromate despite the afore-referenced representations from KBR officials that falsely conveyed the impression and explicit understanding that Qarmat Ali was safe.

7.4 KBR had reason to expect and was substantially certain that its representations would be directly and indirectly communicated to the Tell City Guardsmen and that these misrepresentations would substantially increase the danger to the Tell City, Indiana Guardsmen by allaying any fears that they or the United States Army might have had about their exposure to such a potent carcinogen.

7.5 Had KBR not made these misrepresentations, actions would have been undertaken to protect the Tell City, Indiana Guardsmen from the sodium dichromate contamination and/or to otherwise remove this threat to the Tell City, Indiana Guardsmen.

7.6 The Tell City, Indiana Guardsmen suffered significant physical pain and mental anguish as a result of KBR’s above-discussed conduct and misrepresentations.

Full Story from Huffingtonpost.com

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.