Oregon Live November 2, 1012
A Portland jury found defense contractor KBR Inc. was negligent, but did not commit fraud against a dozen Oregon Army National Guard soldiers who sued the company for its conduct in Iraq nine years ago. Magistrate Judge Paul Papak announced the decision about 3:35 p.m. the U.S. Courthouse in Portland. Each soldier was awarded $850,000 in non-economic damages and $6.25 million in punitive damages.
“It’s a little bit of justice,” said Guard veteran Jason Arnold, moments after the verdict was announced Friday afternoon. Arnold was one of four of the soldier-plaintiffs in the courtroom was the verdict was read.
The verdict should send an important message to those who rely on military troops, he said.
“We’re not disposable,” said another soldier, Aaron St. Clair. “People are not going to make money from our blood.”
KBR’s lead attorney, Geoffrey Harrison, said the company will appeal.
“We will appeal the jury’s incorrect verdict,” he said. “We believe the trial court should have dismissed the case before the trial.”
Harrison said the soldiers’ lawyers produced a medical expert, Dr. Arch Carson, who offered “unsupported, untested medical opinions” that each soldier had suffered invisible, cellular-level injuries as a result of their exposure to hexavalent chromium.
The verdict means the jury did not hear clear and convincing evidence that KBR intended to deceive the soldiers in the way it operated at the Qarmat Ali water treatment plant, near Basra, Iraq. But they did find that the company failed to meet its obligations in managing the work at the plant.
Friday’s verdict closes the first phase of a web of litigation between National Guard and British troops against KBR Inc., the defense contractor they accuse of knowingly exposing them in 2003 to a carcinogen at Qarmat Ali. KBR has denied the accusations.
In Oregon another set of Oregon soldiers are waiting in the wings for their day in court. Magistrate Judge Paul Papak and the attorneys agreed earlier to hold an initial trial with the first 12 soldiers, in order to keep the proceedings from becoming too unwieldy. A second trial, featuring all or some of the remaining 21 plaintiffs, could begin in federal court in Portland this winter.
Another lawsuit brought by Indiana soldiers against KBR is on hold in federal court in Texas, while an appeals court considers a jurisdictional issue.
The cases stem from the chaotic aftermath of the U.S.-led invasion of Iraq in March 2003. The Army Corps of Engineers hired KBR Inc. to run a massive program called Restore Iraqi Oil. The program involved dozens of sites throughout Iraq — sites that neither the Army nor KBR had visited before the invasion. The project was intended to quickly restore the flow of Iraq’s oil, partly to fund the war. The Pentagon remembered the way Saddam Hussein had lit the fields on fire during the first Gulf War, and feared a repeat in 2003.
Qarmat Ali was a compound where water was pumped underground to drive oil to the surface elsewhere. For decades, Iraqis had treated the water with sodium dichromate, an anticorrosion agent that contains hexavalent chromium, a known carcinogen. (Sodium dichromate is banned in the United States.)
Iraq’s Southern Oil Co. took delivery of sodium dichromate, an orange-yellow crystalline powder, in bags that were stored on site. Soldiers and others testified that the material was loose and drifting around the site, and had contaminated areas even outside the chemical injection building where it was added to the water.
How contaminated was it? Accounts differ. Even one of the plaintiffs in this case said he didn’t notice any soil discoloration. One of the British soldiers whose testimony was prerecorded said it was everywhere. Another Oregon soldier said it settled heavily on the clothing of the soldiers, who unwittingly carried it back to their camps over the border in Kuwait.
Much of KBR’s defense in the first Oregon trial focused on just how unlikely it was that any soldier — who visited the plant at durations from one day to 21 days — could have been exposed to dangerously high levels of sodium dichromate. But one of the most gripping portions of the testimony was when Oregon veteran Larry Roberta described eating a chicken patty that had been coated with the orange crystals, which he said immediately burned in his esophagus, causing him to vomit.
Roberta now is confined to a wheelchair and takes oxygen from a tank in his backpack. He had a history of gastrointestinal issues, but attributes much of his poor health to his time at Qarmat Ali.
Harrison, KBR’s lawyer, said the company “believes in the judicial process and respects the efforts and time of the jurors,” but believes the process that brought the case to conclusion Friday shouldn’t have been allowed to come so far.
“KBR did safe and exceptional work in Iraq under difficult circumstances,” he said in a brief, prepared statement. “We believe the facts and law ultimately will provide vindication.”
Soldier-plaintiff Arnold said the message of the verdict is unmistakable. He said service members are being exploited “to this day.”
Now, he said, “the voice will be out. There will be a lot more scrutiny.”
The Oregonian August 30, 2012
Magistrate Judge Paul Papak this week denied KBR’s request to throw out the lawsuit by 12 Oregon soldiers. The 12 in the lawsuit are part of a group who accuse the company of knowingly exposing them to a carcinogen, hexavalent chromium, that was present at a water treatment plant in southern Iraq where the soldiers were assigned to provide security for KBR engineers.
The company denies the charge.
Papak also denied requests by both sides to exclude the others’ expert witnesses, except to limit the extent of the medical opinions offered by Dr. Arch Carson, who said the soldiers’ suffered “genetic transformation injury” as a result of their exposure to the carcinogen. Carson’s testimony will be allowed, but he will not be allowed to argue that the injury persists to the present day. Papak noted that Carson conceded “that he lacks a good scientific basis” for that portion of his opinion.
In the ongoing legal battle being waged by several State National Guard Units, this video is pretty typical of what I’ve seen of KBR testimony about the role they played in exposing US and British soldiers, US and local civilians to deadly hexavalent chromium at Qarmat Ali. You can watch more disturbing deposition testimony HERE. I am listing the people giving depositions in the order they appear in this DoyleRaizner video.
As far as I’m concerned, someone or several someones need to be going to prison for murder, assault and treason!
1. K.T. Tseng – KBR engineer who led team conducting April 2003 environmental/safety assessment of Qarmat Ali – Testimony from :53-2:29 of video
2. Ralph Stephenson – Former Corporate Health Safety & Environmental (HSE) Manager – Testimony from 2:45-3:16 of video
3. Mary Wade – KBR Chief Contract Negotiator – Testimony from 3:20-6:08 of video
4. Chris Heinrich – KBR Contract Attorney – Testimony from 6:09-7:00 of video
5. Jack Alvarez – KBR Head of Security – Testimony from 7:19-8:03 of video
6. Young Lee – KBR Environmental Engineering Manager – Testimony 8:08-8:42 of video
7. Mary Wade – KBR Chief Contract Negotiator – Testimony from 8:49-9:46 of video
8. Lt. Col. James Gentry – Former Commander of the Indiana National Guard – Testimony from 9:47-10:52 – Lt. Col James Gentry, 52 died on November 25, 2009 of his illness contracted from exposure to hexavalent chromium at Qarmat Ali.
On Wednesday, U.S. District Magistrate Paul Papak told attorneys to prepare for trial, even as he considers whether the 9th Circuit Court of Appeals should review his rulings so far.
Attorneys for Kellogg, Brown and Root seek an unusual appeal of Papak’s early decisions. They claim that suing a battlefield contractor for the U.S. military raises “unprecedented” legal questions that should be decided by the higher court first. Other federal judges have ruled in KBR’s favor in suits in Indiana and West Virginia, saying their courts lack jurisdiction.
The Oregon judge twice has rejected those arguments.
If the 9th agrees to hear the case, the process could delay a trial for years — or end the case outright.
Oregon Army National Guard vets sued KBR last year, claiming the company downplayed or disregarded hexavalent chromium at the Qarmat Ali water treatment plant. The soldiers say they were sickened by their exposure to the cancer-causing chemical.
Attorneys for the Oregon vets — about 34 are expected to be on the final case — say KBR is stalling.
“We just want to get these guys in court,” David Sugerman, of Portland, told the judge.
KBR attorney Jeffrey Eden, of Portland argued that “If we are correct and we end up in 24 months with a jury verdict and the 9th Circuit agrees with us, we have just wasted two years and countless resources.”
Veterans in West Virginia and Indiana refiled in Texas federal court and are scheduled for a May 2012 trial.
Papak said he will decide on the appeal shortly. But, he said the case should move forward in the meantime, and set deadlines for depositions and other evidence gathering.
Oregon has led the nation in its reaction to the exposure. Oregon lawmakers lobbied the Department of Veterans Affairs, which established a Qarmat Ali registry. They also filed the strongest bill yet to boost congressional oversight of defense contracts, revoke immunity for harm caused by a contractor’s misconduct and limit immunity in future agreements.
A federal magistrate has ruled that a lawsuit by Oregon Army National Guard veterans against contractor Kellogg Brown & Root can continue.
U.S. District Magistrate Paul Papak denied KBR’s second motion to dismiss the suit on Monday.
In 2009, 26 Oregon Guard veterans sued KBR, saying its managers downplayed or dismissed the presence of a toxic chemical. The veterans were among hundreds of U.S. soldiers in Iraq who were potentially exposed to sodium dichromate, which contains hexavalent chromium.
The Oregon soldiers and others were protecting KBR workers at a water-treatment plant in Iraq beginning in May 2003 when they say they were exposed to the chemical.
KBR denies wrongdoing. Spokeswoman Heather Browne on Monday said the company was disappointed in the ruling.
WHEELING, W.Va. — A federal judge in West Virginia has dismissed two lawsuits filed by National Guardsmen who believe they were exposed to toxic chemicals in Iraq, and those soldiers now plan to join similar litigation in Texas.
U.S. District Judge Frederick Stamp recently ruled he has no jurisdiction over the case, which involves Texas-based military contractor Kellogg Brown & Root Services Inc. and KBR Technical Services.
Wheeling attorney Bill Wilmoth, who represented KBR, said that while his client does recruiting and business in other states, the judge appropriately ruled KBR had not done enough in West Virginia to merit his jurisdiction.
Plaintiffs’ attorney Jeff Kessler said Tuesday that his clients aren’t giving up. They will join a similar case in Texas that already includes more than 100 guardsmen from Indiana.
“We are not going to drop it or forget about it because the boys were injured, were exposed and are having long-term and lasting repercussions from that,” said Kessler, who is also a state senator.
While his clients are disappointed they could not proceed in West Virginia, near their doctors, joining forces with fellow soldiers is a positive, Kessler said.
A similar toxic-exposure case against KBR has been filed by guardsmen in Oregon.
The soldiers say they were exposed to cancer-causing sodium dichromate while providing security for KBR workers at a water plant in Iraq in 2003. They say they’ve suffered long-term health problems, including respiratory struggles and nose bleeds.
KBR had been hired to restart the treatment plant, which had been looted and stripped bare. The Iraqis used hexavalent chromium, a component of sodium dichromate, to prevent pipe corrosion at the plant. That’s the same chemical linked to poisonings in California in a case made famous in the movie “Erin Brockovich.”
Some experts say hexavalent chromium can cause severe liver and kidney damage and studies have linked it to leukemia as well as bone, stomach and other cancers.
“It was a very interesting case, lots of interesting science and the war in Iraq — the kind of thing that normal lawyers in West Virginia don’t get a chance to see very often,” Wilmoth said, “and there is a real dispute among the scientists about whether or not this exposure could have resulted in symptoms this soon after the exposure.”
Legislation is pending in the U.S. Senate to help provide a registry that would identify and monitor soldiers exposed to hexavalent chromium in Iraq.
The Department of Veterans Affairs is launching a Qarmat Ali registry to aggressively track and treat veterans exposed to a cancer-causing chemical in Iraq in 2003.
The national surveillance program will register hundreds of National Guard members who served at the Qarmat Ali water- treatment plant, looking for health problems associated with hexavalent chromium exposure, such as asthma and lung cancer.
The monitoring is a victory for nearly 300 Oregon Army National Guard members and for Sen. Ron Wyden, D-Ore. Wyden proposed such a registry March 22 after veterans with breathing and skin problems told him in an emotional meeting in Portland that VA staff did not understand the hazards of their assignment.
“This is a concrete step forward,” Wyden said. “But it is only a step.” He wants the VA to go further and presume a service connection that will increase access and benefits.
The program is more a medical monitoring program than a confirmation of health problems. The VA does not presume a veteran who served at Qarmat Ali is ill — nor that any specific diseases are linked to serving there.
But the Qarmat Ali Medical Surveillance program will standardize medical exams nationwide, focusing doctors’ attention on lung cancer and other related problems and help direct treatment. Among the steps: ear, nose, throat, lung and skin exams as well as regular chest X-rays, said Dr. Victoria Cassano, director of radiation and physical exposure for the VA’s Office of Public Health and Environmental Hazards. Read the entire story here
by Julie Sullivan The Oregonian
American taxpayers — and not KBR– will likely pay if the war contractor is found to have harmed Oregon Army National Guard veterans who say they were exposed to cancer-causing chemicals in Iraq. The startling details emerged in documents related to a U.S. District Court hearing Monday that illuminate the secretive world of defense contracting.
Documents show that within days of the 2003 Iraq invasion, Kellogg, Brown and Root delivered an ultimatum to the Pentagon:
Either the Army cover the potential cost of any soldier or civilian killed or harmed on a KBR project – or the defense contractor would not carry out its no-bid contract restoring Iraqi oil.
The Army agreed to it, according to a deposition given by a KRB attorney who delivered the ultimatum. The attorney added that KBR has also recently notified the Army that it will have to reimburse KBR for court and potential liability costs.
On Monday, attorneys representing the 26 current and former Oregon soldiers and those representing KBR argued nearly 80 minutes over whether the case should go forward in U.S. District Court in Oregon. KBR asked Magistrate Judge Paul Papak for a second time to dismiss the case, saying a private company doing the job of the military on the battlefield should receive the same envelope of protection the military does.
In 2009, Oregon National Guard troops sued the former Halliburton subsidiary claiming that managers downplayed or dismissed the presence hexavalent chromium, a cancer-causing rust fighter. In 2003, U.S. and British troops had guarded KBR workers repairing a decrepit water-treatment plant near Basra used to maintain pressure in oil wells. Piles of the toxic orange-yellow powder stained the soil, water and walls of the critical Qarmat Ali plant.
Troops from four states and Britain later claimed they suffer health problems as a result. At least two who were exposed to the chemical have died of cancer. KBR defended itself by saying the Army was responsible for safety at the plant and that the soldiers were not there long enough to be risk of cancer. 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 cancer, stomach, brain, renal, bladder and bone cancers.
Judge Papak said he will decide quickly whether the case should proceed. But already the limited discovery Papak has allowed is being tracked by attorneys suing, or defending, KBR nationwide. More logistical support has been conducted by private companies in Iraq and Afghanistan than in any previous U.S. wars. Full Story here
The men were providing security at a water plant near Basra where sodium dichromate was discovered.
They claim that its operator, Kellog Brown and Root (KBR), failed to protect them from the substance.
The men join 98 US soldiers suing KBR. It denies the allegations, saying necessary precautions were taken.
“If I’d have known what I now know, I would not have gone on that site and I would not have made my men operate on that site,” says Andy Tosh.
The former regiment sergeant served in several combat zones but it is his time in Iraq in 2003 which has left him worried for his future.
“I’m used to risking my life or defending the right cause if you want to call it that. But again that’s against things you would expect.
“You join the military to do a job, not to get exposed to a toxic chemical through a contractor,” he adds.
The lawsuit he and his former colleagues have joined relates to the time they spent providing security at the Qarmat Ali water plant, which was pumping water to nearby oil wells.
May 19, 2010, 9:17PM
Oregon Army National Guard veterans suing the largest war contractor in Iraq today in federal court in Portland acknowledge they’re waging an improbable fight.
In February, the war contractor squashed a similar lawsuit by Indiana Guard who also claimed they were knowingly exposed to a cancer-causing chemical in Iraq in 2003.
Last June, the war contractor even knocked out a suit by 10 of its former employees — the people Oregon troops were guarding.
The 21 Oregon veterans suing Kellogg, Brown and Root include a postal clerk, a security guard and a soldier just back from a second tour to Iraq where he guarded KBR convoys. The men say they suffer breathing, stomach and other health problems from being exposed to hexavalent chromium at the Qarmat Ali water treatment plant.
They face a large and experienced defense team who’ve handled hundreds of personal injury claims filed against KBR since the invasion of Iraq over its burn pits, accidental electrocutions and alleged assaults.
On the vets’ team: one tall Texan and a Portland trial lawyer in a solo firm.
Houston attorney Michael Patrick Doyle, who’s won millions suing corporations for negligence, is working with David Sugerman, who’s taken class-action suits and consumer cases. They took the case on contingency. After months of unpaid work, one soldier felt so guilty he gave Sugerman the only bill in his wallet: an Iraqi dinar. Read the full story here
Attorneys for Kellogg, Brown & Root have filed a second motion to dismiss an Oregon Army National Guardsmen lawsuit against the war contractor, saying the Oregon court lacks jurisdiction over the federal government’s military and foreign policy decisions in wartime.
Friday’s filing comes three weeks after U.S. District Judge Magistrate Paul Papak denied an earlier motion to dismiss, ruling that the case should go forward.
Twenty-one current and former Oregon Army National Guard soldiers, mostly from the Portland area, are suing the Houston-based firm and four of its subsidiaries saying they were intentionally exposed to the cancer-causing chemical, hexavalent chromium after the U.S. invasion of Iraq in 2003.
Troops from Oregon, Indiana and West Virginia were ordered to guard KBR employees working to restore oil production in southern Iraq. Soldiers from all three states have filed lawsuits. They claim that at the Qarmat Ali water plant near Basra, KBR ignored and downplayed the health risks of a corrosion-fighter scattered across the facility that contained hexavalent chromium. Soldiers allege breathing, stomach and other health problems as a result. At least two soldiers, including one in Oregon, died of cancer after serving at the plant.
According to the 41-page memorandum, KBR attorneys wrote the firm won the Army Corps of Engineers’ contract to “Restore Iraqi Oil” 17 days before the United States invaded Iraq on March 20, 2003. Restoring oil flow from the dilapidated and heavily looted Iraqi facilities was one of the United States’ most pressing goals, attorneys said. The circa-1970s water plant at Qarmat Ali was particularly important, as it provided the needed water pressure to all the oil wells across southern Iraq.
KBR attorneys Jeffrey Eden and Stephen Deatherage wrote that under its contract, KBR was not required to conduct an environmental assessment at Qarmat Ali. U.S. soldiers who did conduct an initial assessment shortly after the invasion noted the orange stains on the soil, but did not ask for further investigation. Instead, they recommended a new plant be built altogether.
The Corps of Engineers decided not to rebuild the plant, but rather repair it and decided not to conduct a full environmental assessment due to the wartime conditions.
KBR attorneys also said that the U.S. and British military, not KBR, were responsible for notifying soldiers of the potential exposure and determining whether and to what extent they were exposed.
The attorneys further claim that the same Federal Tort Claims Act which prevents individuals from suing the government in all but very limited circumstances, should apply to the contractor.
“KBR performing a common mission with the military under military command in a military theater.’
KBR has been barraged with lawsuits ranging from soldiers’ who claimed they were injured by burn pits the to families of drivers killed in Iraq.
The soldiers attorney, David Sugerman, vowed to go forward.
“We want Oregon soldiers to have their day in court.”
A hearing has been scheduled for 10 a.m. June 7 in federal court in Portland.
April 12, 2010, 5:57PM
An Oregon Army National Guard soldiers’ lawsuit against war contractor Kellogg, Brown & Root over exposure to a cancer-causing chemical will go forward, a federal judge ruled Friday in Portland.
U.S. District Judge Magistrate Paul Papak denied KBR’s motion to dismiss the case, saying the court in Oregon does have jurisdiction.
The ruling is a significant step for 21 Oregon soldiers who claim they were intentionally exposed to the chemical hexavalent chromium after the U.S. invasion of Iraq in 2003. Troops from Oregon and two other states were ordered to guard employees of the Houston-based holding company and its four subsidiaries, which were restoring oil production in southern Iraq.
The soldiers claim that at the Qarmat Ali water plant, KBR ignored and downplayed the health risks of a corrosion-fighter scattered across the facility that contained hexavalent chromium. Soldiers sued alleging lung and other health problems as a result.
In February, a federal judge in Indianapolis dismissed a similar suit saying that the U.S. District Court for the Southern District of Indiana lacked jurisdiction over KBR. The 47 Indiana soldiers refiled their lawsuit in Houston.
In Portland, the attorney for the Oregon soldiers, David Sugerman said, “We are going forward. Oregon National Guard soldiers will have their day in court.”
KBR has denied harming any troops or employees. Calls seeking comment from the contractors’ Portland attorneys were not returned. In February, the attorneys argued that when the contractor called for help in Iraq, that action was not directed at the state of Oregon and the alleged victims were not in Oregon when those calls occurred.
But in his 18-page opinion, Papak ruled that by using Oregon National Guardsmen — people whose health and safety directly impact the state’s treasury, “defendants purposefully injected themselves into this forum.” He also said that Oregon has a clear interest in protecting the health and safety not merely of its citizens, but also of its employees, the Guardsmen.