Smoking gun in toxic injury case against KBR and Halliburton

In today’s Oregonian, Julie Sullivan reports here about a document provided to the soldiers in discovery that is one of those classic smoking guns. In our case, Bixby v. KBR, KBR and Halliburton claim that they didn’t know about the sodium dichromate until late July or August, they claim that they told the Army immediately, they claim that they never used sodium dichromate, and they claim that no one was injured from the exposure.

Against those claims, this pdf document,  Team RIO Mtg Min 02 Oct 2003 MCM00739, tells a very different story. The document is a summary of a meeting in Oct 2003 of members of Team RIO (Restore Iraqi Oil). Representatives from KBR, the Army Corp of Engineers (“USACE”) and Iraq’s Southern Oil Company (“SOC”) were discussing the sodium dichromate contamination of the Qarmat Ali Water Treatment Plant.

Qarmat Ali is where our troops provided security to KBR employees as they worked under their secret, no-bid, $7 billion, cost-plus contract to rebuild Iraqi oil production. The document raises a few questions.   No doubt the soldiers’ legal team will be exploring those questions when we get to trial.

Thinking about our veterans today

I’m not a flag waver.  Never have been. Like the vast majority of Americans, I have treated Veterans Day as one of those days in the fall that I might have off from work. No thought to the meaning; no thought to the sacrifices that lie beneath.

That changed in a profound way last year when I agreed to help sick soldiers and vets from the Oregon Army National Guard’s 1/162. These men were poisoned by exposures to sodium dichromate while providing security to KBR and Halliburton employees. They came back hurt and sick.

In working on their legal team, I’ve come to learn about the soldiers and vets and their families.  Their sacrifices are so great. They served for all the right reasons.  And now they are wounded and hurting.

Seems to me that every vet deserves our appreciation today. For those who have come back from service broken and hurt, we the people owe them.  And for those who are broken and hurt because a greedy contractor violated safety rules in pursuit of profits, well, let’s just say that I’m doing my best to make sure your day of reckoning comes.

Thanks vets.

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….

“Does KBR have a secret get-out-of-court-free card?”

That’s the question posed in the title of this Mother Jones write up by reporter Kate Sheppard.  It’s a sharp article that focuses mostly on Rep. Earl Blumenauer’s (D. Or.)  great work asking the hard questions about the relationship between KBR and the U.S.  government.

The short answer to her question is not really. At least not a get-out-of-court-free card. The KBR defendants are in the case regardless of what happens as between the government and KBR. Still, they will try to evade financial responsibility by sticking the government with the bill. Those of us who actually pay taxes are right to think about that as a bail out of a wealthy defense contractor that has or had friends in high places.

The real question I think Ms. Sheppard meant to ask is this: Can KBR stick the government with the bill for claims made by vets who were exposed to sodium dichromate at the Qarmat Ali facility in Iraq? Yes, that’s a lousy headline, which is one more reason why I will keep my day job.

But still, it’s important to clarify that we push forward on the case against KBR regardless of what side-deals were made between KBR and the government. On some level the bailout deal between the government and KBR is a distraction.

The contours of that still-secret deal are important, of course, because we as citizens and taxpayers have a right to know when our government has foolishly agreed to indemnify a private contractor that received billions from the public treasury. That’s especially true where–as here–the original Project RIO (Restore Iraqi Oil) contract under which KBR worked was a multibillion dollar, cost-plus, no-bid contract that was offered, negotiated and signed in secrecy.

All that aside, my job is simply to move the soldiers case forward. In that respect, I am very much like the infantry soldiers that I represent. The soldiers’ legal team will do everything in its power to see that we have our day in court. And yes, as trial lawyers, I can admit that we are looking forward to this trial.  I welcome the opportunity for the story to be told here in Portland. Like a dog fixated on a ball or a bone, I am staring into the future when a jury will hear the evidence and decide the case.

And to that end, I leave tomorrow for Doha, Qatar where I will meet up with Mike Doyle, where we will take depositions of KBR witnesses. Mike will lead on the depositions. He’s got mad skills matched with an encyclopedic knowledge of the facts and relationships.  It’s a hoot working with Mike.  I imagine we’ll learn some things that matter.

David Sugerman

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.

Judge Papak denies KBR’s Motions to Dismiss-Again

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.

KBR Op-ed piece in The Oregonian: Now that’s interesting.

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.

Another day in the KBR litigation

Yesterday, Mike Doyle and I appeared in U.S. District Court here in Oregon to argue against dismissal of 26 Oregon National Guard soldiers’ toxic exposure claims against Kellogg Brown and Root.

Judge Papak heard oral argument for close to an hour and half. As always, he was well prepared with tough questions for both sides. Oral argument in his courtroom isn’t so much about arguing the motions as answering his questions.  He really knows how to push and challenge both sides. I have to say that I welcome the challenge of stepping into his courtroom.

KBR claims that it is entitled to a dismissal because: 1) The political question doctrine prevents the court from reviewing the actions of the contractor; 2) KBR, as a government contractor, is immune from claims due to derivative sovereign immunity; and 3) KBR is immune because of the combatant activities exception to the Federal Tort Claims Act.

The soldiers made extensive arguments on all three motions. To prepare the briefs, we reviewed approximately 50,000 pages of documents and took depositions of Army and KBR witnesses in Houston, Dallas and St. Louis. The briefing is voluminous. The issues are complicated. But it seems to come down to KBR claiming that even though it was paid $7 billion on a secret, no bid, cost plus contract, its conduct falls outside the review of our justice system.

We’re waiting for Judge Papak’s ruling on these motions.  The case is on hold until he issues his decision.