Hexavalent chromium exposure: Federal judge rules Oregon vets lawsuit against KBR can go directly to appeals court
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A federal judge who ruled an Oregon lawsuit against the largest war contractor in Iraq should proceed in Portland, agreed that the U.S. Court of Appeals for the 9th Circuit should review his decision.
U.S. District Magistrate Paul Papak stood by his earlier rulings, but cleared the way for an unusual interim review in part because of the explosion of lawsuits — and court decisions nationwide — involving military contractors.
“I believe I made the right decision but do I think there is a substantial difference of opinion in other jurisdictions,” Papak told the attorneys in an hour-long hearing Wednesday. “There is lots of litigation involving contractors and a substantial variety of opinions. At some point, we’re going to have to get a final decision.”
The Portland case involves Oregon Army National Guard veterans who say they were harmed by for Kellogg, Brown and Root’s handling of a cancer-causing chemical early in the Iraq war. The soldiers guarded the civilian contractors at the Qarmat Ali water treatment plant between April and September 2003.
Attorneys for KBR twice filed motions to dismiss the Oregon case, saying the federal court in Portland lacks jurisdiction over matters of national security and military operations in a war zone. Jurisdictional issues have stalled or stopped civil and criminal cases against KBR and other contractors across the country.
After Papak denied both motions earlier this year, KBR took the unusual legal step of seeking an appeal to the higher court — before any trial.
An appeal to the 9th Circuit could take 18 months. And it could cost taxpayers. In a secret clause in its no-bid contract signed before the invasion of Iraq, the Army granted KBR immunity for anyone harmed or killed under its Restore Iraqi Oil contract. A company attorney says KBR has already sent letters to the Army saying KBR intends to recover any liability costs.
Jeffrey C. Dobbins, an assistant professor who teaches appellate law at Willamette University called Papak’s ruling “significant” and said that that KBR attorneys have overcome “a substantial barrier” to an appeal.
“There are others to come, though, before they can persuade the Ninth Circuit to consider, let alone reverse, Judge Papak’s decision.”
KBR attorneys have 10 days to file their request and veterans’ attorneys will have 10 days after it to respond. The 9th Circuit will likely consider the request very soon after, Dobbins said. A panel established by the appelate court decides any motions that come in for immediate resolution each month. Dobbins said the panel will ask whether the case presents “exceptional circumstances” that justify an appeal now instead of after a trial.
KBR spokeswoman Heather Brown said the company had no further comment on the order. Veterans’ attorney, David Sugerman, of Portland, said he is “not afraid to have this fight before 9th circuit,” but he worries about the delay.
“The only concern is getting this matter to trial — especially for the guys with health problems.” The veterans claim they suffer serious breathing, stomach and skin problems from exposure to hexavalent chromium, the chemical found in a rust fighter scattered at the Iraqi plant.
The claims of harm — and details of the secret immunity deal — have outraged Oregon’s Congressional delegation. Rep. Earl Blumenauer (D-3rd District) is pushing the Department of Defense to declassify the agreement.
The Secretary of the Army tried to reassure Blumenauer that KBR has not filed any claims so far for any costs associated with Restore Iraqi Oil lawsuits.
But on Monday, Sen. Ron Wyden sent a letter to Sec. of Defense Robert Gates asking him to clarify that statement, given that a KBR attorney said in a deposition that he had sent several letters notifying the Army that the former Halliburton subsidiary intends to recover its liability costs.
— Julie Sullivan
Short URL: https://kbrlitigation.com/?p=1837
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on Oct 27 2010. Filed under News Coverage, Oregon Live, Qarmat Ali News.
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