KBR update: Halliburton joined in Bixby v. KBR

Yesterday, we filed an updated complaint in Bixby v. KBR. Here’s a copy Bixby Fourth amended complaint. The new complaint adds Halliburton defendants.

For those interested, here’s what happened. The legal team representing the sick veterans made Freedom of Information Act requests to the U.S. Army. It took a long time to get the requested documents, but we did. Once we reviewed them, we learned that Halliburton had been at the site pumping water at Qarmat Ali.

Additional documents produced at the same time suggest that Halliburton and KBR were actually bringing sodium dichromate to Qarmat Ali and using it for water pumping. That would be a big additional problem for them.

There is much more to the update, but I wanted to post this for those who are interested.

Live in Doha–chasing KBR and Halliburton

So there are many advantages to chasing KBR witnesses around the globe. One is getting out to see new and different places. And that’s part of my mantra as I get oriented on the ground in Doha.

I left Portland Friday morning our time, and traveled for about 24 hours, arriving in Doha, Qatar Saturday night. I was a bit dazed, but that’s to be expected.

The heat here is remarkable, but the humidity even more so. I’ve been in the tropics, and I can say that this is probably more uncomfortable.  But of course, the legal team is surrounded by comforts, as we lay in at the Sheraton. Still, the distance, time changes, and climate give the legal team a minor taste of what our soldier-clients faced when they came here.   

My driver told me on the way from the airport that we’re staying at one of the oldest hotels in Doha, having opened in 1981. The skyline here is impressive. It’s a profoundly wealthy city. Reminds me a lot of Midland-Odessa, Texas, which, in the 1970s had its own oil boom and wealth.  There’s a sense here of busy-ness; lots of ex-pats going about the business of working and dealing; vast and obvious wealth. 

Today is a day off. I managed to sleep last night and even got to workout this morning in a very well-equipped fitness facility. Mike Doyle and I will probably catch a few sites and then sit down to talk about Monday and Tuesday depositions. Mike’s got it well in hand–my role is mostly to help steer the boat and listen to the witnesses.

Meanwhile, we have a lot of work on this case besides these next two days of depositions.  More on that in the coming weeks.

If the travel gods remain kind, I’ll be back on the ground in Oregon Wednesday afternoon. I imagine I’ll be a tad worse for wear….

Reflections: What is at stake in our Oregon vets’ claims against KBR

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.

US Army refuses to disclose KBR indemnification agreement to Rep. Blumenauer

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.

Mom called

I’m at home this evening with two computers going side by side. On the desktop, I have a  several thousand page PDF of Army FOIA documents open, as I wade through KBR discovery. My laptop is up with a running digest of the interesting tidbits.  It’s my own odd-duck style of learning the case.

The phone rings, and I answer it absentmindedly.

“David Sugerman?,” asks the woman on the other side brightly.

“Yes?”

She runs on without a pause about how she’s calling to thank me for my great work and wondering whether she can help. Can she send money, or bake cookies, or weed my yard?

I stammer, “Who is this?” I have the presence of mind to not ask her how she got my number or why she’s calling a stranger out of the blue.

She chuckles lightly, “I’m just a Mom.”

“And why are you calling?”

“Because your work makes Portland great. And besides those guys are killers.”

Might be the exhaustion, or maybe it’s that I’ve lately been reflecting on my mother and wondering what she would have said about her son’s latest work. But for whatever reason, I was practically moved to tears.

Turns out that she had collapsed two people into one. She thought that Stu Sugarman, a Portland civil rights and criminal defense attorney, and I were the same person. It happens now and then…. I corrected her. And she STILL wanted to help and to send money. She wondered what she could do.

So this is what I said. “Do something great that you think matters and then drop me a line to tell me what you did.” She liked that.

A few thoughts before I go back to the mind-numbing document review.  There are some days when I know that I am blessed or–if you prefer–profoundly fortunate.  This is one.

So Mom, your call was a boost. Hope you don’t mind that I’m putting it down here. I imagine doing so will help me remember this moment as we trudge on toward trial.

Thanks and love-Just a son

Calling out Oregon lawyers by name

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.

Update: Bixby v. KBR-today’s story

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.”

A boy and his dog

A Boy and His Dog was a mid-1970’s science fiction movie set in the rubble of the U.S. destroyed by nuclear war. It features a young Don Johnson and his telepathic dog. The title is fetching. The film–while flawed and violent–is darkly comic and memorable.

I’m reminded of the relationship between the boy and his dog after impulsively giving into my longstanding dog lust. A beautiful German Shepard puppy needed a home, and we adopted her a few weeks ago. I call our pup the toddler-bomb because we went from a calm and sedate mid-life household to the chaos of owning a large eight-month old Shepard.

It’s been two weeks, and life has changed. Lots of long walks. Lots of lost sleep. A mountain of dog hair. Two pissed off cats. The gamy smell of a house inhabited by a dog.  Most of my friends and family shake their heads, roll their eyes, and question my sanity.

I guess that’s a reasonable reaction. She’s turned the world upside down. For those who have noticed a slowing my blogging, blame the pup.

She’s a challenge for a 50-year old guy, but she comes with laughs and love. The best laugh came via my beloved, who pointed out that while I was at low risk for running off with a young trophy wife, the pup would be the best prophylactic for any notion of having babies in a new life. “You’re too old!” she snorted. She’s so right.

We’ve had our ups and downs.  The worst was when she lunged at my beloved’s best friend. And then there are the p.o.’d cats and the barking. But on the upside, the long walks get my out of my head, and they have helped to melt the excesses of my bulging middle. And she’s filled us with love and laughter. So yeah, it’s good.

The wise ones at doggy obedience school–yes, we’re doing that–tell me that Shepards need a job. Ellie has a job, which is getting this middle aged guy out of his head and off of his couch. She’s doing it beautifully.  And so a middle aged boy and his dog are doing well.

Ruling allows Oregon National Guard toxic exposure case against KBR to go forward

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.

Oregon injury claims-What Oregon consumers need to know (Part 2)

This is the second part of a three-part series on what Oregon consumers need to know when dealing with injury claims. In case you missed it, here is  Part 1 . And should you need more information, here is Part 3.

So as I noted in the first post, if you need this information for yourself or a loved one, you’re in a tough spot. Here are a few more  things that consumers need to know about Oregon injury claims: 1. Most  cases settle; 2. The ability and willingness to go to trial matters; and 3. We have to learn to live with uncertainty.

1. Most cases settle.

The reality is that only a few cases go to trial. The cases that go to trial tend to fall into two different categories. The first group involves cases in which one side has mistakenly evaluated the case.  The second category include cases in which settlement is too costly.  Let’s look at both.

Examples of the mistake in evaluation often occurs because one side doesn’t understand the facts or–perhaps–one side is unable to accurately evaluate the strengths and weaknesses of their case.  When, for example, one side doesn’t know about a key witness or document, they may incorrectly evaluate the case and go to trial.

Some cases simply won’t settle because one of the parties won’t agree. Sometimes that’s because of emotion. Sometimes it’s rational, but in any event the exceptional cases go to trial. Examples of this type of case include situations in which a corporation knows that settling this case will open them up to many others. So they fight on.

2. The ability and willingness to go to trial matters

Some lawyers are afriad of trial, and many lack the experience and resources to successfully try cases. While it looks easy on TV, trial demands special skills. To succeed, a trial attorney must be able to succeed in very different areas all at once. The lawyer must be able to argue the law to the court. The attorney must be able to talk to juries. The lawyer must be able to question and cross-examine witnesses.  These are learned skills that take years of study and experience to master. This is espeically true when a case involves complicated technical questions, tough legal issues, or sad and soul-aching injuries.

The insurance industry tracks lawyers, and when they don’t know someone, they’ll ask questions of their sources. Does the consumer’s lawyer try cases? How well? When a lawyer won’t go trial, the insurance adjuster knows that the case can be settled for much less because there is little risk of a large verdict. All this means that the lawyer who is prepared for trial and capable of trying the case puts their client’s case in the best position.

The willingness and ability to go to trial is especially important when a case won’t settle. I used the example of the corporation that can’t settle a case because of all the others out there from the same misconduct. They know that some lawyers won’t go to trial. So if they delay and refuse to pay, perhaps the consumer will get tired or the attorney–who never really intended to try the case–will quit. Either way, the corporate defendant has outlasted the consumer. That’s why willingness and ability matter.

3. Living with uncertainty

It’s been years since I rode a roller coaster. But the thing is that every roller coaster has that thing toward the end. You think you’re at the end. Maybe you can even see the station up ahead, and then–wham!–out of nowhere you drop and curve and go again. Likea roller coaster, the case isn’t over until the car stops and the bar releases you.

Those of us who represent consumers can generally predict timelines for cases. But how quickly a case goes depends on a number of things that are outside anyone’s control.

Case value is also a challenge. At the beginning is impossible to accurately value a case because the attorney doesn’t have all of the information. Over time, information comes into focus and we narrow it down and refine the value as we learn more.  It all takes time. At least at the early stage, there is a lot of uncertainty. For some, that’s a difficult notion. But for my part, I would rather consumers know so that we can all keep reasonable expectations.

Okay, that’s enough for this post. In Part 3, I’ll talk about hiring a lawyer in Oregon, including payment and contracts.