Today’s Oregonian includes this thoughtful editorial about what is at stake in our on-going case against KBR for Oregon National Guard Soldiers. I have to agree with the editorial board that what is at issue is more than whether and how KBR will be required to repair the damage done.  In the case, we can only recover money. That money can only be used to fix what can be fixed,  to help where money can provide help, and to make up for all the losses that cannot be fixed or solved with help.

Still the case is wider and deeper and raises questions about war and contracting and profits.

The latest round of revelations indicate that the government agreed to indemnify KBR for financial losses it might incur as a result of its misconduct in performing work under the Project RIO contract.  If that sounds like gobbledygook, maybe it’s easier to explain this way. In addition to the multi-billion dollar payday, KBR wanted and got a taxpayer bailout for whatever harms might be caused by its misconduct.

The legal team representing the soldiers focuses on their needs. We have a court room and a trial. We are traveling around the world to find evidence and get our witnesses. We are digging through tens of thousands of pages of documents. We hold the line and fight KBR when it seeks immunity or special treatment.  At trial we will put on the evidence, make our arguments and then leave it to the jury to deliberate and decide.

Meanwhile, it is good that Oregonians are asking these questions. Better still, our journalists and thinkers and our Congressional delegation have their teeth into their respective parts of this tragedy. That is good as well, as no one wants our vets to go quietly into the night.

Addendum (2 Sept 2010): Here is a video report on KGW8 News that ran yesterday. Nice to see that Rep. Blumenauer is on this.  For those who say Congress does nothing, you better believe that the Oregon vets appreciate the efforts made by Sen. Wyden, Sen. Merkley, Rep. Blumenauer, and Rep. Schrader.

Rep. Earl Blumenauer (D. Or.) has done his part to get to the bottom of the sad story of Oregon National Guard soldiers exposed to toxic chemicals at the KBR Qarmat Ali facility. Rep. Blumenauer previously asked the Secretary of Defense to provide information about the agreements–both for KBR and other contractors.

In today’s Oregonian, Julie Sullivan reports here that the Army has refused to produce the information because it remains confidential. The response from the Army is a bit perplexing. The Project RIO contract, which was declassified, contains an indemnification provision. So I can’t help but wonder what is classified. Maybe there are other documents the Army is withholding?

It’s all a bit curious.

The soldiers appreciate Rep.  Blumenauer’s efforts. He is helping to get to the bottom of things.  He’s raising important questions about government contracts, and contractors and oversight.

For my part, I remain focused on KBR.  That’s my job.  Lots of work ahead to prepare for trial. But we’re on it.

In a ground-breaking opinion issued hours ago, Magistrate Judge Paul Papak denied KBR’s motions to dismiss in Bixby v. KBR. I’ve attached a pdf copy of the opinion here: 89 – Opinion and Order

For law geeks: It’s a detailed opinion addressing subject matter jurisdiction that touches on political question doctrine, derivative sovereign immunity, and combat activities under the Federal Tort Claims Act.

I am pleased. So are our vets who I represent. It’s a good day. But there is still far to go.

Onward.

Yesterday, The Oregonian published this interesting piece in the Sunday opinion section. I have a number of reactions, but I think I’ll let it sit for now. My grandmother taught me the value of manners; one of her cardinal rules is that if you can’t say anything nice, don’t say anything at all.

That’s not a rule that we honor in the courtroom where we will have a few things to say. The short version is that I’ll be interested to hear Mr. Williams’ answers to a few questions after he is placed under oath. But now is not the time, and this is not the place.

For those following this case, I’m simply noting yesterday’s publication so that you’re aware that it hasn’t escaped our attention. There will be a time and a place for testing some of the more wild assertions in the linked piece.

Just came across this passionate and detailed response by KBR to questions posed by MSNBC regarding our soldiers’ sodium dichromate exposure at the Qarmat Ali water treatment plant in Iraq.  “Wow,” is about all I can muster by way of comment. I really can’t wait to try this case.

This is an update on our case, Bixby v. KBR, U.S. District Court Case No. CV 09-632-PK  (D. Or.).  In the case, soldiers serving in the Oregon National Guard claim that KBR defendants  are responsible for their exposures to hexavalent chromium, a cancer-causing toxic chemical. The soldiers claim that KBR knew or should have known that the Qarmat Ali site was contaminated. They claim that KBR officials knowingly sent the soldiers into harm’s way when KBR repeatedly requested security at the site.

The KBR defendants moved to dismiss the case, arguing that the Oregon court lacked jurisdiction over them.  Today, Judge Papak denied the motions. For those interested, I’ve uploaded (pdf) his opinion: 44 – Opinion and Order re def’s motion to dismiss. It’s fairly technical. I wouldn’t recommend it unless you’re interested in the nuances of personal jurisdiction.

Judge Papak did not pass on the merits of the case. That is for the jury. Rather, he simply decided that the Oregon soldiers will have their day in court in Oregon. Judge Papak ruled based upon case law (precedent) from the Ninth Circuit setting out and applying the effects test.

It’s a particularly important ruling because there was a major risk that if he dismissed the case, no court would have the authority to hear the case against all of the defendants.  I am pleased with the ruling, though of course there is far to go.

I haven’t seen the complaint yet, but multiple media reports indicate that the U.S. Department of Justice filed a False Claims Act case against KBR, Inc. and its subcontractors over allegedly improper bills for security in Iraq. Here is the CNN report.

I’m taken by this KBR quote reprinted from the linked article:

“The government fails to acknowledge that the Army breached the contract by repeatedly failing to provide the necessary force protection and, in fact, frequently left KBR, its employees and its subcontractors unprotected,” KBR said.

As one of the lawyers representing Oregon National Guard soldiers who claim to have suffered toxic exposure injuries while protecting KBR employees in Iraq, I have a point of view. Regardless, I’m guessing that National Guard soldiers who provided security to KBR employees at Qarmat Ali site in Iraq might have a slightly different view.  Or perhaps KBR is forgetting about the soldiers that provided security at the Qarmat Ali site?

Fair to say I’ll be interested in how this one turns out.

Our toxic exposure case for Oregon National Guard vets exposed to sodium dichromate at the Qarmat Ali facility in Iraq continues. The case is against Kellogg Brown and Root (KBR) and its various offshoots.  Background: Link to NBC Nightly News story and reflections on the case here.  Earlier updates on the case here.

Meantime, worth noting is that Senator Ron Wyden’s sent a letter today to Eric Shinseki, the Secretary of the Department of Veterans Affairs regarding the matter. Here is a pdf copy-  Qarmat Ali vets letter fr Sen Wyden.

I am appreciative that Senator Wyden continues pushing on these issues. As well, Senator Merkley, Rep. Schrader, and Oregon Sen. Shields have carried this issue, too.  Some of this is about good constituent service, I suppose.

But in talking to Sen. Wyden, Sen.  Merkley, Oregon Sen. Shields and their staff members, I know that this is about more than simply providing service to voters.  We all agree that we owe our vets better. To my way of thinking, this includes that KBR face its day of reckoning.

To all of our leaders who continue advocating for our soldiers-I am sure you know from your own conversations that our Qarmat Ali vets deeply appreciate your continuing efforts.  One of our vets’ father served in Vietnam. He quietly shared with me his appreciation that a senator or a busy lawyer would come to the aid of his son. As he explained it, usually soldiers think that they can only rely on other soldiers.  I thanked him for his kind words and simply said that it was the very least we could do.

In Portland last week, Senator Wyden held a press conference to announce his support for expanding VA benefits for soldiers exposed to toxic chemicals in Iraq.  This arguably sounds bland.  It is not.

Senator Wyden and Oregon National Guard Vets

It’s important for a few reasons. Let’s talk first about history. Senator Wyden and I are a few years apart, but I believe that we both share the haunting memories of our Vietnam era vets exposed to Agent Orange. That was the impetus for me in joining this fight. I imagine it plays on Senator Wyden, as well. We owe our soldiers many debts. It is good that Senator Wyden sees the world this way and has committed to the fight.

I’ll be the first to admit that I don’t always agree with Senator Wyden. But that is little more than a footnote. I share his sense of mission and want to thank him for his commitment to these issues.

And that brings me to the other reasons why this is important. Senator Wyden’s commitment to these issues provides profound comfort to our injured vets. At one point during the press conference, Senator Wyden opened the mic to any of the sick vets who wanted to comment. A soldier, Sgt. (retired) Matt Hadley, moved toward the mic. He hesitated briefly–Matt is a soldier and not the kind of guy you would find hugging a mic at a press conference. He developed asthma and was forced to retire from the Oregon National Guard.

So as Matt moved to the podium, I wondered what he would say and do. He paused and then called out Senator Wyden by name. He delivered the most heartfelt thanks that anyone could imagine. I would have remembered it and reported it word-for-word, except that I was busy losing the struggle to remain dry-eyed. Sgt. Hadley gave voice to many in that brief moment, and what I heard was that our vets were thankful that they don’t fight alone.

The last reason why all of this is important is that Senator Wyden is taking up the mantle of leadership on these issues. Senator Wyden has been supportive of the vets throughout, but he has deferred to his colleagues, Senators Dorgan and Bayh.  Both are leaving the senate. So Senator Wyden’s leadership on this issue will be important.

All of this takes place as we move forward in the legal fight against KBR. Our soldiers protected KBR at the tainted Qarmat Ali site. And now they face a lifetime of health problems. As we look at these problems going forward, I’m struck by the contrast. Our soldiers did their jobs at Qarmat Ali. They didn’t complain about putting themselves on the line to protect KBR assets and personnel. And now that they are sick, I can’t help but grow angry at KBR’s refusal to cover our soldiers’ backs.

I guess that’s why God invented juries and why I have a job.

Here is a link to a video of a recent NBC Nightly News’ story on the Army National Guard soldiers’ exposures to sodium dichromate while serving in Iraq. I’ve been representing Oregon National Guard soldiers on this matter. Larry Roberta, the first soldier interviewed, is one of my clients. Read more »