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9th Circuit Court says suit by Oregon guard against KBR can go forward

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Julie Sullivan, The Oregonian Julie Sullivan, The Oregonian

On Tuesday, the 9th Circuit Court of Appeals denied KBR’s request for an unusual early review that could have stalled or stopped the veterans’ lawsuit against it. Thirty six Oregon vets allege they were exposed to a cancer-causing chemical while guarding KBR and Halliburton operations early in the Iraq war and suffer serious health problems as a result. The ruling means attorneys will prepare for a jury trial in Portland later next year. The Oregon case has already proceeded further than similar suits in other states and shone an unprecedented spotlight into the secretive business of military contracting.

Earlier this year, U.S. District Magistrate Paul Papak  twice denied KBR motions to dismiss the case. In September, KBR attorneys sought an appeal by the higher court, arguing that the case raises unique issues that should be resolved before discovery and trial. Chiefly: whether — and to what extent — wartime contractors can be subjected to lawsuits back home. KBR attorneys argued that immediate review by the 9th Circuit would resolve how this and similar cases should proceed. They noted that federal judges elsewhere dismissed all claims against KBR, unlike Papak.

The 9th Circuit’s three-judge panel ruled Tuesday that unresolved questions of fact require the case to go forward in district court.

Veterans’ Portland attorney David Sugerman  called the rulings “good news.”

“There is a lot to learn by developing a full record and allowing us to go forward at trial allowing evidence to be heard,” said Sugerman, “and the court and the jury to decide the case based on that information.”

KBR issued a statement: “This is a procedural ruling with which we are disappointed. Regardless, this ruling does not change the facts of the case. KBR’s position remains that no soldier was injured nor has any soldier demonstrated an injury. The medical evidence confirms these facts.”

Beginning in May 2003, hundreds of U.S. and British troops guarded KBR workers as they restore Iraqi oil flows. At the Qarmat Ali water treatment plant, soldiers were exposed to a rust-fighter that contains hexavalent chromium. Exposure to 40 micrograms of hexavalent chromium per cubic meter — about the size of a grain of salt in about a cubic yard — has shown a high increase in lung, stomach, brain, renal, bladder and bone cancers. Dozens of National Guard soldiers have sued in several states, citing deaths and health problems.

Depositions and documents exchanged in the Oregon case have revealed that the eve of the Iraq invasion, government attorneys signed an agreement with KBR that taxpayers — and not the contractor — would pay for any harm caused by the KBR operations. That immunity clause, still classified, prompted Oregon’s congressional delegates to demand an accounting of all military contractors granted immunity for hazardous work. Oregon Democrats also filed bills in both houses to increase oversight in future contracts.

On Tuesday, KBR restated the company’s position that, “the Army was responsible for confirming the (Qarmat Ali) property was free of all environmental and war hazards before sending KBR to work on the facility. KBR believes it has the facts and law on its side and we look forward to continuing our vigorous defense.”

Sugerman said his clients, who include former and current Oregon Guardsmen, have been remarkably patient with the legal proceedings now in a second year.

“These guys fought as ground troops,” he said. “They know sometimes you have to lay in for the long haul.”

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