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WSJ – Soldiers Fight in the Courts Over Liability in War Zones

The Wall Street Journal | Law Journal | January 7, 2010

QARMAT-ali-plantA recent lawsuit brought by a group of Indiana National Guardsman spotlights a controversial legal doctrine that prevents soldiers on active duty from seeking compensation for injuries sustained in war zones.

The guardsman allege that a mission to help clean up a water treatment plant in southern Iraq left them with what they say are potentially fatal illnesses.

In a lawsuit filed in federal court in Indiana, the Guardsmen allege that oil company KBR Inc. “disregarded and downplayed” the fact that the site at Qarmat Ali was coated with the hazardous chemical sodium dichromate. They were exposed, they say, to the chemical that is used as an industrial anti-corrosive agent to protect pipes.

As a result, the soldiers suffered “unprotected, unknowing, direct exposure to one of the most potent carcinogens and mutagenic substances known to man,” alleges the suit, which seeks monetary compensation for health problems the soldiers say they have suffered.

KBR has said in court filings that it was carrying out the duties in its contract. It says the U.S. Army Corps of Engineers was obligated to provide it with an environmentally safe area for its work. Besides, the company says, Army medical tests have shown no soldiers were harmed. The company also says that once the chemical was discovered, the company worked to make the area safe.

A spokesman for the U.S. Army says it cannot comment on the suit because it is pending.

The suit and similar ones filed separately against KBR highlight the challenges of soldiers seeking compensation from the courts for war-zone incidents. A U.S. Supreme Court ruling known as the “Feres doctrine” bars soldiers in active duty from filing suits against the federal government. The military gives soldiers free medical treatment and stipends in some instances, the reasoning goes, so they are duly compensated for whatever befalls them on the battlefield.

Many of the suits that stem from actions on the battlefield are directed at third parties, specifically contractors whom the military increasingly rely on. But contractors too are immune from suits if they can successfully prove they have lived up to the specifications in their government contracts.

As a general rule, third parties have been successful in warding off big rewards from battlefield litigation. For instance, U.S. soldiers in the Vietnam War who said they suffered from symptoms related to the usage of Agent Orange, a toxic defoliant the military used in the war, sued the chemical companies that manufactured it. Suits seeking-class action status were first filed in the late 1970s and settled after about six years of legal wrangling. Under the settlement, only a handful of litigants were eligible for relatively meager compensation.

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