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Oregon Live – KBR files pre-emptory appeal in Guards’ lawsuit

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Julie Sullivan, The Oregonian Julie Sullivan, The Oregonian

KBR wants to jump hexavalent chromium case to the 9th Circuit Court of Appeals

War contractor Kellogg, Brown and Root is taking the unusual step of appealing an Oregon Army National Guard veterans’ lawsuit –before the case has gone to trial.

On Friday, KBR attorneys asked the U.S. District Court in Oregon for permission to appeal to the 9th U.S. Circuit Court of Appeals. If the 9th accepts, that process could delay the case for years –or end it outright.

In a 19-page memorandum filed Friday, attorneys for the Houston contractor argued that the case raises unique issues that should be resolved before discovery and trial. Specifically: whether and to what extent wartime contractors can be subjected to lawsuits back home.

The Portland attorney for National Guard veterans suing KBR says it’s a delaying tactic.

“It’s intended to block the truth,” said David Sugerman. “They don’t want any review of what happened. Their strategy is: ‘Let’s tie it up for as long as they can.’ ”

Twenty-six Oregon Guard veterans sued KBR last year, claiming its managers downplayed or dismissed the presence of hexavalent chromium at a water treatment plant in Iraq.

U.S. District Magistrate Paul Papak has twice denied KBR motions to dismiss the case. His Aug. 30 ruling placed Oregon at the forefront of a national dispute over who is responsible for exposing American soldiers to a known cancer-causing chemical early in the Iraq war.

Jeff Dobbins, who teaches appellate law at Willamette University College of Law, said the filing of an appeal before a final ruling is unusual. The 9th Circuit typically accepts fewer than 15 such appeals out of the 13,000 or so cases that reach the court in a year. But Dobbins said the issue of whether KBR is immune from liability is the kind of question that the federal appellate court in San Francisco may decide to hear.

Dobbins said it is also unusual that KBR attorneys are pursuing a parallel argument to win an appeal. In a footnote in Friday’s filing, attorneys said they also plan to file a notice of appeal with the 9th Circuit directly, citing a 1949 Supreme Court case. “This sequential course of action certainly allows them to methodically exhaust all possibilities,” Dobbins said.

KBR attorneys argued that immediate review by the 9th Circuit would resolve how this and similar cases should proceed. They noted that on Sept. 9, a federal court in Pennsylvania dismissed all claims against KBR –arguments Papak dismissed –showing that there is a “difference of opinion.”

Beginning in May 2003, hundreds of U.S. and British troops guarded KBR workers as they worked to restore Iraqi oil flows. At the Qarmat Ali water treatment plant, they were exposed to a rust-fighter, sodium dichromate, 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 health problems.

The Oregon case has gone further than any other, opening a window into the government’s unprecedented use of private companies in Iraq and their lucrative contracts.

Julie Sullivan: 503-221-8068 begin_of_the_skype_highlighting              503-221-8068      end_of_the_skype_highlighting begin_of_the_skype_highlighting 503-221-8068 end_of_the_skype_highlighting; [email protected]

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Posted by on Sep 29 2010. Filed under Oregon Federal Court. You can follow any responses to this entry through the RSS 2.0. Both comments and pings are currently closed.

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