Military personnel injured by the poisonous fumes emanating from burn pits in Iraq and Afghanistan had a victory yesterday when United States District Judge Roger Titus rejected KBR’s Motion to Dismiss their lawsuits.

As they have repeatedly in other lawsuits, sometimes successfully and sometimes not, KBR argued that it need not answer in the courts for its actions harming Americans in Iraq and Afghanistan.

Specifically KBR argued that the courts have no jurisdiction to hear the burn pit cases because they present a “political question” that must be be left to the other branches of government.  In a second defense, KBR argued that the company was essentially functioning as the government (even though KBR and its subsidiaries are private corporations making oodles of money off of American taxpayers) and therefore entitled to the same immunity from suit as the government under a creative theory of “derivative sovereign immunity.”  Finally, they argued that they could not be sued because they were engaged in “combatant activities.”

In declining to rule in KBR’s favor, the court noted that KBR’s defensive arguments are in tension with the concerns of “soldiers and civilians injured from wartime logistical activities performed by hired hands allegedly acting contrary to military-defined structures.”  Moreover, “Courts must be prepared to adjudicate cases that ultimately expose defense contractors to appropriate liability where it is demonstrated that they acted outside the parameters established by the military and, as a result, failed to exercise proper case in minimizing the risk to service members and civilians.”

The court’s decision paves the way for the plaintiffs to proceed with carefully limited discovery.  The court did, however, leave open the possibility for KBR to raise its defenses again after discovery, so this will not be the last time KBR claims that it need not answer to American citizens in American courts.

Still, this is a meaningful victory for the many burn pit victims and is the second time in recent weeks that KBR has suffered a litigation setback.  On August 30, 2010, a federal district judge in Oregon rejected KBR’s immunity arguments in a suit by several American soldiers injured at the Qarmat Ali Water Treatment Plant in Iraq where KBR knowingly exposed them to the potent human carcinogen, sodium dichromate.

Federal Judge Paul Papak in the United States District Court for Oregon today entered an order rejecting KBR and Halliburton’s demands for immunity for their conduct exposing Oregon National Guard soldiers to dangerous toxins at their Qarmat Ali project in southern Iraq in 2003.

The order ( 00132958.PDF) rejected the government contractor’s claims that they were entitled to dismissal of all claims against them, regardless of how serious their knowing misconduct was or the impacts on the men serving at Qarmat Ali, under the “political question doctrine”, “derivative government immunity” and “combatant activities” claims.

In a detailed, fact-specific analysis of KBR/Halliburton’s motion, Judge Papak found that none of the claims for immunity were supported by the actual evidence of KBR/Halliburton’s responsibilities for both conducting appropriate site analysis from “the get-go”, as confirmed in sworn testimony of the former commander of Task Force Restore Iraqi Oil (RIO), Gen. Robert Crear, and protecting all the men at their work site, including the soldiers providing security, from the sodium dichromate (also known as hexavalent chromium) that KBR’s own documents confirmed totally contaminated the site.

In recognizing that the law was clearly on the side of our veterans who served at Qarmat Ali, Judge Papak also rejected KBR/Halliburton’s attempt to shield all their activities in Iraq from legal scrutiny of any kind.

Aside from the importance to the Oregon veterans and the other men knowingly exposed at Qarmat Ali, Judge Papak’s opinion is also important for its refusal to simply accept KBR/Halliburton’s use of carefully selected (and incomplete) documentation and affidavits secured by KBR/Halliburton’s lawyers outside the mandatory US government requirements for securing evidence by any litigant.

Many times KBR/Halliburton has been able to convince courts to simply accept their version of the facts as true, without allowing any scrutiny of the factual record presented by KBR/Halliburton. In requiring a careful review, including sworn depositions of Gen. Crear and representatives of KBR to be considered, Judge Papak’s ruling went a long way towards helping reveal the true facts of what KBR/Halliburton did at Qarmat Ali.

Oregon Judge Opinion Rejects KBR Immunity Motions

There have been several important developments in the fight to uncover KBR’s conduct in knowingly exposing the men at KBR’s Qarmat Ali project to dangerous toxins.  But first, it is with great sadness that all of us express our condolences to Sabrina and the McManaway family on Mark’s passing.  The Indiana/Texas lawsuit was brought in Mark’s name, and we will continue the fight in his name and for his family and the men with whom he served.

Recent developments in a number of areas:

Discovering the truth: KBR has made several bids to block discovery into their actions at Qarmat Ali.  KBR has filed yet more motions to dismiss the suits, and as part of those motions, they have asked that all discovery be blocked while the judge considers the motions.  However, at a hearing on July 9, 2010, United States District Judge Vanessa Gilmore in Houston federal court rejected KBR’s demand that all discovery be blocked and its managers not be required to testify under oath about what they knew about the hazards to the men at Qarmat Ali, when they knew it, and what KBR management should have been doing from the beginning of KBR’s project to protect our soldiers, British troops, and the men actually on the ground at Qarmat Ali doing the work.  Even after that ruling, KBR has refused to comply with its discovery obligations, so another hearing with the Court may be necessary.

Oregon Hearing on KBR’s Immunity Claims: At a hearing on July 12, 2010 before Judge Paul Papak in federal court in Oregon, the Court heard KBR’s demand for immunity for any misconduct at Qarmat Ali. KBR asserted that it was engaged in “combatant activities” during the routine work of site inspection and restoration of Iraqi Oil over many months, as well as entitled to “political question doctrine” immunity as an agent of the United States Army.  Judge Papak was able to hear about the June testimony of retired Brigadier General Robert Crear, the Corp of Engineers officer in overall command of Task Force Restore Iraq Oil (RIO), who confirmed that Project RIO was neither a combat nor combat support tasking.  More significantly, recently uncovered internal KBR documents confirmed that KBR was told at the outset of the need to advise the Army immediately of hazards at any of the work sites, including Qarmat Ali, and Gen. Crear confirmed that KBR was entrusted with the direct responsibility for both identifying hazards at Qarmat Ali, including sodium dichromate, and ensuring that all the men at the site were properly notified and protected by KBR at KBR’s project.  Judge Papak has in the past ruled swiftly on motions, and we are hopeful we will receive a decision on these motions within the next 30 to 60 days.

KBR’s “indemnity” demands for a bail out from the taxpayers: Recent testimony from KBR lawyer Christopher Heinrich has revealed that after securing the “no bid” contract KBR in March 2003, KBR demanded “full indemnification”, or taxpayer bailout, of any responsibility of KBR for any misconduct causing death or injury to our soldiers, Coalition forces, and civilian workers at KBR’s projects.  KBR made this demand after entering into the “no bid” contract, and apparently refused to honor its obligations to the government and the men and women serving in Iraq unless the government acceded to their demands.  This revelation has led to calls in Congress for answers about whether KBR actually made such a demand of the Pentagon, whether it was added-on after the fact to the no-bid contract, and whether anyone on behalf of the United States has agreed with KBR’s demand for reimbursement of any and all costs, including attorneys’ fees in justifying its conduct at Qarmat Ali.

VA Qarmat Ali initiative: The United States Department of Veterans’ Affairs has announced a new initiative at clinics in Oregon, Indiana, West Virginia, and other facilities providing care to impacted soldiers to more appropriately screen, document, and address the health effects on our soldiers.

West Virginia: The Court in the West Virginia suit dismissed the case there on the grounds that KBR does not do enough business in that state to exercise jurisdiction there.  This essentially is the same ruling that the Indiana judge made.  While we disagree with this ruling, we anticipate joining the West Virginia soldiers to the Houston suit shortly.

U.S. Rep. Baron Hill, D-Ind., in a letter March 4, 2010, to the Secretary of the Department of Veterans Affairs has asked the VA to step up care for the men currently suffering from debilitating illnesses as a result of exposure to the carcinogenic chemical hexavalent chromium during their service in the Iraq war.  Doyle Raizner LLP welcomes this and other efforts, including those by Sen. Bayh, to ensure that these men’s current needs are not ignored.

Along with members of the US Army National Guard, a large contingent of the British forces deployed in 2003 were also tasked with protecting KBR’s Qarmat Ali project near Basra, Iraq.   Unfortunately, these men, primarily members of the RAF Regiment, were likewise wholly unprotected against the hazards of sodium dichromate-an anticorrosive chemical containing nearly pure hexavalent chromium, a carcinogen- even after its presence and dangers of unprotected exposure were known to KBR’s managers for months and months.

We are proud to represent Andy Tosh, a retired sergeant from the RAF Regiment now living in Lincolnshire,  as he has joined the case of West Virginia veterans suing KBR for knowingly exposing them to the hazards at the site without protection.  What appears clear from documentation provided to the British Forces is that at the same time KBR’s managers were documenting elevated chromium levels in the admittedly inadequate blood testing of KBR’s civilian employees, KBR’s managers apparently deliberately told British Forces exactly the opposite.

Accordingly to an internal KBR memo dated August 8, 2003  “60 percent” of workers showing symptoms” was being found, while the KBR personnel in liason with the British forces were telling them (accordingly to a British Forces fact sheet, “b. Biological monitoring test results to which we have been given access for contractors and American forces have been within normal limits.”).

Andy Tosh and his fellow members of British Forces, part of the Multinational Forces serving in support of  Restoring Iraqi Freedom, were entitled to and did rely on the knowing misrepresentations by KBR’s managers about the hazards they faced at the time of their exposures, as well as the serious health consequences they now face.  It is simply not right that these men serving their country, in this case America’s staunchest allies in the United Kingdom, have the bear the consequences of these deliberate decisions by KBR’s managers.

Sgt Tosh in Iraq, 2003

by Melissa Swan of WHAS-ABC 11 (Louisville, KY)

Toxic Tour of Duty: Part 2

by Melissa Swan of WHAS-ABC 11 (Louisville, KY)

(WHAS11)–Russ Kimberling has nearly 2,000 images from Iraq on his computer.  They chronicle his duties there as a captain in the Indiana National Guard.

Kimberling now pours over the pictures wondering why he and other soldiers weren’t warned about a yellowish substance in thesand at Qarmat Ali, a water injection plant near Basrah.

Kimberling recently told me, “If it came up they would say don’t worry about it.  It’s a mild irritant.  It’s not a big deal.  You may get
a bloody nose.  It’s not a problem.”

He says he got that “don’t worry” message from workers with KBR, an American contractor headquartered in Houston, Texas and at the time owned by Halliburton.

KBR was restoring Iraqi oil fields.   The guard members were protecting the private contractors.

Clinton Hammack is a retired National Guard soldier from Tell city who says he wasn’t too concerned about what he calls “dirty sand.”  He says “You know I didn’t worry about it.  I did what I was there to do – take care of the contractor.”

The yellow substance in the sand was later confirmed to be sodium dichromate.  The Environmental Protection Agency calls it a human carcinogen.

It was used as an anti-corrosive at the Qarmat Ali plant before the Americans arrived.  It may have been spread by Iraqis to sabotage the site at the beginning of the American invasion.

Currently 51 Southern Indiana National Guard members have filed a federal lawsuit against KBR claiming the company knew about the chemical and endangered the soldiers’ health.

Kimberling says one day in Iraq he realized the yellow substance might be more than a mild irritant.

He says, “I remember that day when we jumped out, jumped out of the vehicle.  I’m kicking the ground around.  I’m kicking the ground and everyone’s in chemical gear all protected but not me or any of the soldiers.”

He says the people in the protective gear were managers from KBR.  He remembers thinking at the time, “They know something we don’t and it can’t be good.

Mike Doyle the attorney for the National Guard Members who have filed suit says, “That’s what’s kind of frustrating about it.  You have these fellows they have every reason to expect if KBR knew — and they did — there was this poison they’ll tell them about it.”

Related Stories:

• Toxic Tour of Duty: Part 1
• KBR’s statement and News Release on the Qarmat Ali Water Treatment Plant litigation
• Statements from KBR’s Director of Communications and from Attorney for Indiana National Guard members
• Raw Video: Evan Bayh testifies at a Senate Veterans Affairs hearing
• Toxic Tour of Duty: Site History & Chronological Events
• Information from the EPA on Chromium Compounds

For Original Story Please Click Here.

Jeff Raizner, of Doyler Raizner LLP  was recently a guest speaker on ABC RADIO, along with Alan E. Tannebaum. You can “LISTEN IN” to the interview by following this link to their website:  “Americas Premier Lawyer Series – Top Verdicts”

Jeffrey L. Raizner
Board Certified, Personal Injury Trial Law
Texas Board of Legal Specialization
Doyle Raizner LLP
www.doyleraizner.com
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Click to Play Jeff Raizner Interview on the KBR Case

Sixteen Indiana National Guard soldiers have sued the Houston-based defense contractor KBR, saying the company knowingly allowed them to be exposed to a toxic chemical in Iraq in 2003. The soldiers were providing security for KBR during repairs of a water treatment plant in southern Iraq shortly after the US invasion. The suit claims the site was contaminated for six months by hexavalent chromium, “one of the most potent carcinogens” known to man. It alleges that KBR knew the plant was contaminated but concealed the danger from civilian workers and soldiers. We speak with one of the soldiers and with the lead attorney in the case.