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.

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.

Yes, I’m going to name names here. That’s how we do things. But before I start throwing the dirt, I want to be clear about what they’ve done.

Last week, a case I’ve been working on–Bixby v. KBR–got a lot of press. This is the Oregon National Guard soldiers’ toxic exposure injury case against KBR, Inc. (New motto: “We’re no longer Halliburton.”) [Brief note to KBR/Halliburton: That was a joke. -ed.]

Anyhow, I received a number of comments from friends and colleagues. Invariably, some included gentle ribbing about the picture of the middle-aged attorney who seems way more serious and sober than usual. Some included the kind of “Attaboy” comments from colleagues with whom I’ve shared foxholes.

Those are good. But there were a few that were better.

Over the course of the years, I’ve been up against talented and tough opposing counsel in all manner of cases. Two former (and future) adversaries took time to send notes and emails lauding my efforts and wishing me well on these cases. And these are the two Oregon lawyers who I want to call out by name.

Carol Bernick, Partner-in-Charge at Davis Wright Tremaine, and W.A. Jerry North, a shareholder at Schwabe Williamson Wyatt, have both been opposite me in hard-fought cases.  We’ve each had our wins and our losses in big cases.

Each of them wrote notes about the Oregon National Guard cases. The recognition is nice, but what’s better is what it says about the legal profession in Oregon. Both are top-notch opponents. Neither gives an inch in their cases. Still, they can recognize the work of a colleague.

This is why I treasure practicing law in Oregon.  Despite our differences and our courtroom fights, we still have the sense and wisdom to recognize the good works of our colleagues and opponents. When I talk to colleagues in other states, they can’t believe that we generally get along with opposing counsel, work toward stipulations on things on which we can agree, and then bring it full force to fight when we cannot agree. Our clients are well-served by all of this, and we who fight for a living gain a measure of comfort by knowing that the places and times we battle are simply what we do.

So Jerry and Carol show by quiet act what professionalism means to Oregon attorneys. I am deeply appreciative of their kind private messages. But more, it speaks to a vision of how Oregon attorneys carry themselves.  Thank you, friends, for your grace.

Mike Doyle and I were in court this morning fighting off more KBR motions. The KBR defendants asked Judge Papak to prohibit us from taking discovery because–according to KBR–their motion to dismiss for lack of subject matter jurisdiction required no discovery. They also asked Judge Papak to prohibit discovery until the soldiers proved their levels of exposure–a so-called “Lone Pine” order. Judge Papak ruled that we can get our discovery to respond to the next KBR motion to dismiss. He is allowing us full discovery from U.S. Army witnesses–subject, of course, to Army regulations. He denied the KBR motion for an order requiring us to prove the cause and existence of soldiers’ injuries before we could get discovery.  It’s a win for the Oregon soldiers.

Also from today, here’s a link to a story in today’s Oregonian. I think I can speak for all the soldiers when I express my admiration for The Oregonian’s  Julie Sullivan.  Her tenacity in refusing to let this story die inspires me. Telling their story is a powerful thing.

Our next hearing is scheduled for July 12 at 10:00 a.m.  At that time, Judge Papak will hear KBR’s next motion to dismiss. Meantime, we’ll be doing discovery and filing our opposition.

My good friend and frequent collaborator, Oregon trial lawyer extraordinaire Robert Neuberger, tells me that every big case needs a theme song. I’ve got ours for this case, courtesy of Tom Petty:  “Stand My Ground.”

Late Friday, KBR filed its next motion to dismiss in Bixby v. KBR, Inc., 3:09 cv 00632-PK (D. Or.). Now the KBR defendants argue that the court lacks subject matter jurisdiction. KBR raises the political question doctrine, sovereign immunity and the Federal Tort Claims Act, and combatant activities doctrine. I’m especially tickled by the political question doctrine, as it cites Marbury v. Madison and Baker v. Carr.

For those whose geekiness knows no bounds, here is a pdf version of the memorandum: 46-1 KBR memo in support of motion to dismiss subj matter jur

No one said this case would be easy. (No one was right.)

My dear friend and frequent collaborator Robert Neuberger tells me that a really good case demands a theme song. I’m sure it’s pure happenstance, but I’ve already settled on a theme song for this case.  In the words of Tom Petty, “I won’t back down.”

I Won’t Back Down

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.

Sex abuse is one of those challenging areas where lawyers have to tread. I have handled several civil cases for sex abuse victims over the years. They’re tough.  The victims lives are often trashed. The amount of denial and levels to which some will go to protect predators is horrifying.

These topics cause fires, so I’ll lay out my background and biases here. First, I write this as someone with experience representing sex abuse victims, though I have not handled any cases against the Church. I am not Catholic, though I have friends who are engaged in the Church and friends who have left it over the years.  My daughter attends St. Mary’s Academy, a fabulous Catholic school here in Portland. The school is particularly welcoming to those of us who are not Christian.

Today’s story focuses on Cardinal Levada, a high ranking Vatican official who has been extremely critical of press editorials regarding the Church’s failures in dealing with child sex abuse problems. Cardinal Levada previously served as Archbishop in Portland.  Oregon attorney Erin Olson deposed then-Archbishop Levada in connection with Church sex abuse cases here.  (Technical law term: A “deposition” is pre-trial testimony taken under oath.)

Ms. Olson–who has handled many of the Oregon church sex abuse cases–had the deposition transcript in her files, and she released it yesterday to The Oregonian. According to the news report, Ms. Olson explains that Cardinal Levada reinstated an Oregon priest who was a child sex abuser.  The story quotes from the transcript. While there are always differences in how people interpret evidence or testimony, my own take is that the quoted testimony suggests that Cardinal Levada was at least inattentive to the horrible risks of priest sex abuse.  At a minimum, it’s easy to see that Cardinal Levada’s own experience in the civil justice system might undercut his criticism of those who question the Church’s actions.

I suppose some legitimately may feel that the Church has been unfairly criticized and that it has done enough to confront and repair this awful black chapter in its history. On the other extreme, there are those who see what the Church did and what it failed to do as unforgivable, no matter what. I tend to fall toward the middle.

The Church has confronted some of the misdeeds from these dark times. But that only happened because the victims mustered the immense courage to come forward to challenge the Church. As well, the civil justice system and dedicated and tough attorneys like Erin Olson refused to back down. And facing those things and the awful and immutable truth beneath, the Church had some of its reckoning.  I use “some” deliberately here, as it looks to me like there is far to go.

Perhaps I’m naive, but I don’t accept that any group of people, any nation, any religion or any institution is beyond redemption. So I hope that those in the Church committed to healing and reconciliation continue their efforts.  I also hope that leadership of the Church stops the circling of wagons and defensiveness, as these are legitimate criticisms and questions.  Denouncing the critics like The New York Times or the victims or their attorneys seems to me to be the opposite of reconciliation.

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.