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.”

KBR’s next motion to dismiss-subject matter jurisdiction

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

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.

U.S. sues KBR, Inc. over its Iraq billings

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.

Senator Wyden pushes VA for assistance to Qarmat Ali veterans

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.

Senator Wyden supports expanded benefits for Iraq war vets exposed to sodium dichromate

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.

Halliburton/KBR continue fight against rape victim Jaimie Leigh Jones

Sometimes the best legal advice to a recalcitrant client about their case is, “Stick a fork in it; it’s done.” And so it goes with KBR and the horrifying case of Jamie Leigh Jones.

When Ms. Jones claimed that she was drugged and raped while working in Iraq, KBR and Halliburton worked hard to keep her sexual assault case quiet by forcing it into mandatory arbitration. Fortunately, judicial wisdom prevailed, and KBR eventually lost the Jones case in the Fifth Circuit Court of Appeals.  And those who trail behind her have the benefit of Senator Franken’s great work in limiting mandatory arbitration for defense contractors.

But KBR is both angry and undeterred. As this this report explains, KBR now disputes Ms. Jones’ allegations that she was drugged and gang raped by co-workers. KBR reportedly made those points in its brief seeking U.S. Supreme Court review.

While Ms. Jones blew the whistle five years ago, KBR now says Ms. Jones fabricated her story. Odd if you think about it.  If KBR actually doubted Ms. Jones, wouldn’t they have taken that position years ago? And more to the point, given all the publicity over the rapes in Iraq, isn’t it fair to assume that they would want to fight this thing publicly and loudly?

I’ll admit to biases and a point of view. They come from two sources. First, I’m a father, a husband, a son and a brother. Every woman in my family has worked. When my wife and daughter go to work, I think it’s a modest demand that they not be subjected to sexual violence. Apart from that, I represent Oregon National Guard soldiers in unrelated litigation involving toxic exposures at Qarmat Ali. I am not intending to comment on that case–we’ll leave it to our proof.  Still, the KBR litigation posture is telling.

I suppose it’s just too much to demand that KBR simply accept that it lost and go to trial.  Owing to the genius of our founders, we have jury trials to allow impartial fact finders to decide cases. That right exists so that the Jaimie Leigh Jones’s of the world can force KBR to prove its defense or shut up.

David Sugerman