LAYING IN FOR THE LONG HAUL – CASE AGAINST KBR MOVES FORWARD

December 1, 2010

Two years and counting, thanks to the 9th Circuit Court of Appeals. The three-judge panel’s ruling last week assured that 36 Oregon National Guard veterans can continue their case against government contractors. The vets claim they were exposed to hexavalent chromium, a cancer-causing chemical, during their service in Iraq guarding KBR operations.

KBR, an engineering and construction company based in Houston, contracted with the federal government to restore oil flows and other engineering processes in Iraq. One such project was the Qarmat Ali water treatment plant, where, in 2003, the exposure to the toxin occurred. Many of the 800 guardsmen deployed to the site have died or suffered serious health problems as a result.

The Oregon lawsuit has succeeded where other suits in other jurisdictions failed. Twice KBR has asked the court to dismiss the case, and twice the motion has been denied. The most recent action was an appeal of the motion to dismiss, in which KBR argued that issues unique to the case — including whether government contractors in a war zone are subject to lawsuits back home — should be resolved before discovery and trial. The court disagreed, saying that the issue was a question of fact, and questions of fact are for a judge or jury to decide.

KBR simply stated that the company is disappointed in the ruling, but the matter was purely procedural — their position remains that “no soldier was injured nor has any soldier demonstrated an injury.” Further, they assert that the responsibility for assuring the site was clear of toxins belonged to the U.S. Army, not the contractors.

Attorneys for the guardsmen are looking forward to presenting evidence to the court and the jury. The ruling topples a major hurdle for the plaintiffs: Previous cases have failed because of an immunity clause in the contract, which stated that the U.S. government would be responsible for any harm — and the defendant in any personal injury cases — caused by KBR’s operations.

The immunity clause itself has stirred up some controversy, but that’s a story for another post.

Source: OregonLive.com “Hexavalent Chromium: 9th Circuit Court Says Suit by Oregon Guard Against KBR Can Go Forward” 12/15/10

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