Ninth Circuit Says Get Ready for Trial in Qarmat Ali Case in Oregon

In a terse one-sentence opinion, the Ninth Circuit Court of Appeals dismissed KBR’s appeal of a ruling by Oregon federal judge Paul Papak in the toxic exposure suit by dozens of Indiana National Guardsmen.  With a mid-lawsuit Ninth Circuit Appeal that could have delayed the case significantly now out of the way, the soldiers are on track for a jury trial next year.

In 2003, KBR was hired by the Department of Defense under the Restore Iraqi Oil program (RIO) to refurbish the Qarmat Ali Water Treatment Plant near Basrah, Iraq.  The Oregon Guardsmen, along with National Guardsmen from Indiana, West Virginia, and South Carolina and members of the British Royal Air Force, were tasked with providing security to KBR’s civilian personnel at the plant.

The Qarmat Ali site, however, was heavily contaminated with sodium dichromate, which contains the highly carcinogenic chemical compound hexavalent chromium made infamous in the Erin Brockovich move.  The chemical, banned in the United States, had been used by the Iraqis as an anti-corrosive in plant operations.  Acres of the site were blanketed with the telltale sodium dichromate yellow and orange dust, getting swept into the air by fierce Iraqi winds for months as the soldiers carried out their duties in the midst of it, unaware of the danger they were in.  Anxious to get the plant online quickly, KBR concealed information about the sodium dichromate contamination from the soldiers.  In addition, although

KBR steadfastly maintains that it did not use the chemical when operating the plant, documents exchanged in the lawsuit suggest otherwise.

In serial motions to dismiss, KBR has sought to avoid liability for the harm caused to the soldiers.  In the trial court, KBR argued that the federal courts have no authority to render a judgment against KBR for its conduct under legal theories referred to as the political question doctrine, the government-contractor defense, and the combat activities exception to the Federal Tort Claims Act.  In essence, KBR contends that because it was under contract by the United States government and paid by taxpayers, it cannot be held liable to soldiers.  In a comprehensive, 29-page opinion issued August 30, 2010, Judge Papak rejected KBR’s arguments.  KBR sought interlocutory appeal of the ruling, appealing both to the trial court again and directly to the Ninth Circuit.

The Ninth Circuit’s rejection of the appeal represents a monumental step forward for the soldiers, who are eagerly anticipating trial.

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Posted by admin on Dec 16 2010. Filed under Oregon Lawsuits, Qarmat Ali Blog, Qarmat Ali Case Update. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.