Bixby v. KBR–Oregon Congressional Delegation members push back on KBR and Department of Defense

The Oregon Qarmat Ali Vets’ case, Bixby v. KBR, continues. A group of 12 of these veterans won a stunning $85 million verdict against KBR for toxic harms suffered in Iraq at a KBR- contaminated site. After the verdict, and while the case was on KBR’s slow-track appeal, the U.S. Supreme Court issued, Walden v. Fiorean opinion in an unrelated case that changed the rules of jurisdiction. When the case came before the Ninth Circuit, it remanded the case because jurisdiction was improper.

And then KBR filed a claim for costs against these veterans, seeking approximately $850,000 from 12 sick vets who provided KBR with security. KBR got paid handsomely for its war-time work on a no-bid contract. KBR is seeking to have the United States indemnify it for all costs in these lawsuits. And even so–after winning on a technicality–KBR is now seeking to bankrupt these vets.

There are countless horror stories involving our vets. And this is one more. They served. They were sent. They did their jobs. They sacrificed. And now this.

It is perhaps too much to hope that anyone will care. And that is the point of this post. Thanks are due to members of the Oregon Congressional Delegation: Senator Wyden, Senator Merkley, Rep. Blumanauer, Rep. Schrader, Rep. Bonamici, and Rep. DeFazio did Oregon proud when they wrote this  Ltr Or Cong to DOD 15 July 2015 letter to the Department of Defense, blasting KBR and calling on the Department of Defense to take over these cases and resolve them equitably.

“These veterans deserve better***.”  I couldn’t agree more.

-David

Food Poisoning: Townsend Farms

Very pleased to be working with Bill Marler, aka @bmarler, of Seattle’s Marler Clark LLC on a food poisoning Hepatitis A contamination case against Townsend Farms to be filed here in Oregon. I’ve long been a fan of Bill’s work. When I told my family I would be jumping this weekend, my teenage daughter described my excitement as a “man crush.” (Yikes!-that sounds kinda creepy.)

The case involves Hepatitis A contaminated fruit products sold through Costco stores. Townsend Farms manufactured the product. CDC recall information is here.

We will be filing a class action State court here in Oregon. Bill’s firm and the the Food Safety News blog are the best source of information on this litigation, though we will from time-to-time provide updates here as well.

Feel free to contact me if you have questions.

David Sugerman

 

A Juror Speaks Out: More on Bixby v KBR

A follow up  on a recent post. Our story so far:  Judge Papak issued a comprehensive 63-page opinion on Friday affirming the jury verdict in favor of 12 Oregon Army National Guard veterans against KBR. The men were injured by sodium dichromate contamination, while providing security at a KBR work site, the Qarmat Ali Water Treatment Plant, in Iraq in 2003.  My work on the team representing the veterans has consumed a good part of my professional life.

Under the rules that govern the conduct of Oregon lawyers, I am not allowed to approach jurors and ask them for feedback on their service in a case I have tried. The rule exists for good reasons. We don’t want lawyers to be able to use jurors’ statements to undermine verdicts, and we never want to add additional burden to the difficult duty of serving on a jury. The rule is straightforward: We can talk if a juror initiates contact but cannot contact jurors.

That said, I am always incredibly interested in what jurors think. (Most every trial lawyer is, so in that regard I’m not special.)

That’s why I found this follow up news report so exciting. Mike Francis, The Oregonian reporter, is not under the same restrictions. He can ask jurors for feedback and comments after the trial, and he got a response from Ken Howe, the presiding juror.

Very cool to hear Mr. Howe’s take. I was initially blown away to read that Mr. Howe had gotten a copy of the opinion and read it over the weekend. Then I was appreciative all over again of how hard this jury worked.

While there is a lot of law in the opinion–that’s required with what we do–Judge Papak’s  opinion focuses on the evidence in detail. From  The Oregonian, it appears that Mr. Howe and Judge Papak viewed the evidence in similar fashion.

As Mike Francis reports, Mr. Howe explained:

“‘His [Judge Papak’s] analysis of the evidence closely echoed our discussions during deliberations,” *** “Not being trained in the legal profession, I don’t fully understand the reduction of the non-economic damages award, but I was pleased to see that Judge Papak let the punitive damages stand — another confirmation of our verdict.'”

As Mike Francis noted:

“Papak’s opinion amounts to a point-by-point refutation of KBR’s legal arguments during the trial.”

There are many reasons why this case is important. There are many pieces to this big story that will be told for a while and remembered for the rest of our lives. That said, every hour, every sleepless night, every worry has been worthwhile for these veterans. When our system of justice works, it is a sweet thing.

I’m sure the jurors who served know that the veterans, and those of us who served as counsel, stand in awe. Their service, too, is a huge part of this story. It’s one I imagine I’ll never get to hear or tell, but that’s the life of a trial lawyer.

-David Sugerman

Oregon Court Confirms Jury Verdict for Oregon Qarmat Ali Veterans

It’s a good day for the Oregon Qarmat Ali veterans.

Today,  the Court confirmed the jury verdict in favor of the first 12 Oregon Army National Guard veterans who suffered contamination injuries at the Qarmat Ali Water Treatment Plant in Iraq in 2003.  Here is a link to the PDF opinion:  724 – opinion & order re trial

Judge Papak denied virtually all of KBR’s motions for which it sought a new a trial. Judge Papak left intact each veteran’s $6,250,000  punitive damage assessment and reduced each veteran’s compensatory damage assessment from $850,000 to $500,000. Judge Papak reduced those damages based on a case that came down after argument, Howell v. Boyle, 353 Or. 359, 298 P.3d 1 (2013). Just so we’re clear, the veterans disagree with the reduction part of Judge Papak’s legal ruling.

In any event, this is a great day for the veterans and their families. They told their stories to the jury, and the jury did justice. After a detailed, independent review, Judge Papak confirmed the jury’s findings.

For my part, I could not be happier for these vets and their families. When our system of justice works, it is a thing of beauty.

Oregon Qarmat Ali vets’ case against KBR headed to trial

Today, Judge Papak issued another summary judgment opinion denying KBR’s motions for summary judgment on fraud and negligence. Here is a PDF copy: 512 – opinion & order – fraud and neglig It’s a long opinion, but it provides a really clear view of some of the information that has come out during the course of our work on behalf of the Oregon Army National Guard veterans.

Trial begins October 9, 2012. We are looking forward to our day in court.

David Sugerman

KBR’s concealment of discovery

Yesterday in our Qarmat Ali Vets case against KBR, we filed a motion for sanctions. The filing is here (pdf). The Memorandum (toward the bottom) lays it out in detail. Turns out that KBR concealed critically-important information about the Qarmat Ali Water Treatment Plant and its extreme level of contamination. They knew about that in 2002 or early 2003, long before Oregon Army National Guard veterans went into the site.

Today’s Oregonian reports the story here, including rather colorful big words (“histrionic” and “hyperbolic”) bandied about by lead counsel for KBR. One wonders why KBR hurls big words and accusations when they simply could have avoided this problem by coming clean.

I suppose we could respond in kind. Not going to happen because not much is served by doing so. For readers who might wonder about the lack of response, let me just say that this is neither the time nor the place. We are scheduled for our first trial in Oregon in October. Fair to say I am looking forward to it. I hope that’s not too histrionic or hyperbolic.

Twitter from the jury box in Brooklyn

My sleepy Monday started with full-on Twitter commentary emanating from a courtroom in Brooklyn. It seems that Ryan J. Davis (@RyanNewYork), a Brooklyn social media-active guy had gotten pulled into court for jury duty.

Mr. Davis was live-tweeting voir dire–AKA jury selection–from the court room. That’s to say, he was broadcasting his observations on Twitter while sitting on a case. He explained:

Ryan J. Davis

@RyanNewYork Ryan J. Davis

“Nobody had told me not to tweet, everyone can see me clearly on my phone.”

Some of his tweets were amusing and harmless, but at least a few crossed the line, including one regarding the merits:

Ryan J. Davis

@RyanNewYork Ryan J. Davis
“Apparently the woman suing the nursing home has been in like 6 accidents and is always suing. Raises some flags.”

And then there was this somewhat ominous appraisal of one party’s attorney:

Ryan J. Davis

@RyanNewYork Ryan J. Davis

“Plaintiff’s attorney said “you won’t see me on any late night tv ads'” I don’t believe him.”

Ryan, being a skilled social media user, quickly saw that a small group of trial lawyers were talking about what he was doing. He was eventually told by the judge that he should not be posting on Twitter, and he wondered whether one of us had complained to the judge.

Through the limited space of Twitter posts, I explained that I had not and promised to elaborate on the complicated problems of jurors and social media.

So now we’re caught up, and Ryan this is for you.

Our civil justice system stands and falls on the jury and the integrity of the process. The injured woman sought access to justice because she believed that the nursing home should be held accountable for maintaining its facility in a way that was safe for those entering the business. Whether she is right or wrong, injured or not, it is up to the jury selected to hear the evidence and render a verdict. My worry is that Twitter and social media disrupt that process.

You engaged in the very human process of forming impressions on things that mattered (the woman’s credibility based upon someone’s claim that she had made prior claims) the credibility of her counsel (based upon his appearance and conduct). You did that without the benefit of actual evidence.

I imagine that happens to many potential jurors, so you’re still in an unremarkable position. But then those are broadcast to tens of thousands of people who follow you and beyond. Until earlier today, I did not follow you; I only picked up on the stream because someone flagged it for me.

So we’ve taken the initial impressions that aren’t based on evidence and broadcast them outward from the courtroom. I imagine some of your 30,000+ followers responded, retweeted, etc. and next thing you know the merits of a case in Brooklyn are grist for the social media mill.

Now if it seems like I’m picking on Ryan, that’s not my intention. Assuming Ryan accurately heard all and correctly tweeted the lack of instructions regarding use of Twitter, the problem is upstream with the court and counsel. But it is a problem.

It goes back to the foundation of the civil justice system–the jury. The parties need to know that their case will be tried on evidence in the courtroom. Put another way, if I am trying that case, I know how to put on a case, challenge through cross-examination witnesses who are adverse, and analyze and argue the evidence. But I can’t argue with information and influence that enters the jury room through Twitter and other social media.

Some in the social media world may say, “Tough luck, pal. This is the new world; get used to it.” To which I say, “Not without a fight.” Because the civil justice system is what levels the playing field between oligarchs, corporations and consumers. Do you have any doubt about a large, institutional corporate nursing home’s chain ability to influence via social media jurors who are willing to listen during trial? Do we doubt for a moment the power of protected corporate interests to exploit these channels?

So at the risk of sounding pompous (or worse), we need to figure out how to divorce social media from the jury box. To do otherwise is a loss for consumers who count on the integrity of the civil justice system as a uniquely American means of leveling the playing field between the oligarchs and the rest of us.

Ryan, if you catch this, thanks for the teachable moment. Hope that I’ve explained my concerns and the stakes adequately. Happy to discuss in detail if this is of further interest.

David

 

 

Sen. Santorum and the hyporcisy of damage caps

I’ve heard so much about the Santorum surge and how he is a man of principle–a values candidate, a different kind of politician.

Senator Santorum has been part of the echo chamber for caps on damages in medical injury lawsuits. He hits all the rhetoric about how caps are necessary because of frivolous lawsuits, rising health care costs, etc. According to Senator Santorum, Congress knows better than a jury the value of all patient injury cases, and no patient should ever recover more than $250,000 in non-economic harms when the defendant is a doctor or a hospital.

Yes, that includes the drunken doctor botching a surgery, sex abusers in the exam room, and hospitals that dump patients on the streets. Never more than $250,000 because Senator Santorum and Congress know better than a jury.

So imagine my surprise when a colleague in New York, Andy Barovick (@AndyBarovick), posted a link on Twitter to a news report about Senator Santorum’s wife’s malpractice claim against her chiropractor in which she sought $500,000 in non-economic harms. For those playing at home, that’s twice the amount of the cap Senator Santorum and Congress want to impose on the rest of us.

Here’s the corrected link to the news report (second video)Well worth watching.

Senator, On the off chance that you or your staff are reading this: Shame on you.

Update 7 Jan 2012: Law blogger, Eric Turkewitz, New York Personal Injury Law Blog, takes a different approach in defense of Senator Santorum here. While he makes a good point that Senator Santorum is not responsible for his wife’s choices, he misses the mark. Senator Santorum participated in the case, testifying as a damages witness. In the linked interview (above), Senator Santorum claims that the verdict included a substantial amount of economic damages that would not be subject to the cap. The news report debunks that excuse and lie. At bottom, Senator Santorum knows from personal experience that the proposed cap is wrong because one size justice does not fit all. We need to trust juries to do what is right and not put in Congress’s hands the ability to determine damages in all cases.

On Veterans’ Day, let’s hold KBR accountable

So here is what is happening in my law office today, Veteran’s Day, 2011: Kevin Stanger is giving a deposition in Bixby v. KBR, the case in U.S. District Court here in Oregon where veterans dare to call corporate giant KBR to account.

Mr. Stanger is one of the vets sickened by exposure to sodium dichromate at the Qarmat Ali Water Treatment Plant. The Vets dare to demand an accounting and justice from KBR.

In 2003, Mr. Stanger was in the command unit of the Oregon Army National Guard. He was one of the many soldiers who relied on KBR to be straight about the dangers at Qarmat Ali. KBR failed to do its job, and now Mr. Stanger and many of his brothers in arms are sick.

The vets’ depositions are grueling. Each vet sits in our conference room for a day. answering KBR lawyers’ questions under oath. I’ve had to apologize to the guys–it’s a lousy process.

Even so, there is some beauty and irony in Mr. Stanger’s deposition today. Our soldiers swear to defend and protect the United State Constitution when they take their enlistment oaths. When they enlisted, I doubt any of the Qarmat Ali vets thought for a moment that they might be the ones who needed their constitutional rights to trial by jury. Thankfully, that right endures because of each veteran’s commitment to the constitution.

While Mr. Stanger is giving his deposition, I am head-down working on our opposition to KBR’s latest motion to have the case thrown out of court. The Vets’ legal team’s hard work on this Veterans’ Day is all that we can give toward repayment of the vast debt owed to our veterans. It is not enough, of course, but I hope that it is a modest start.