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.

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.

 

Inspector General critical of KBR conduct in Qarmat Ali Water Treatment Plant toxic injuries

The Inspector General of the Department of Defense released its long-awaited final report Exposure to Sodium Dichromate at Qarmat Alli Iraq in 2003: Part II Evaluation of Army and Contractor Actions Report No. SPO-2011-009 (September 28, 2011).

Here is the current report: Part II Qarmat Ali FINAL Report Sept 28

And here is a link to a pdf of Part 1, for those interested. The findings confirm much of what the vets in the Qarmat Ali cases have been saying in the their long fight against KBR for exposure injuries from sodium dichormate.

From the summary:

“Contractor recognition of, and response to, the health hazard represented by sodium dichromate contamination, once identified at the Qarmat Ali facility, was delayed. The delay occurred because KBR did not fully comply with occupational safety and health standards required by the contract, and Task Force Restore Iraqi Oil failed to enforce contractor compliance. As a result, a greater number of Service members and DoD civilian employees were exposed to sodium dichromate, and for longer periods, increasing the potential for chronic health effects and future liabilities.”

-DOD IG Qarmat Ali report, p. i.

The DOD IG report explains that KBR first became aware of the sodium dichromate contamination in late May 2003. Our evidence suggests that it was earlier and that KBR knew in April 2003.

The report includes a laundry-list of contract problems and safety violations. KBR did not do what it was supposed to in protecting people at the site. (Report, pp. 12-14). We made similar arguments in court here in Oregon when we briefed and won KBR’s motion to dismiss.

The IG report represents a good day for the sick vets. My view is that the IG acted because the Senate Democratic Policy Committee and Oregon Congressional delegatoin pressed the issue of Qarmat Ali exposures.

The Oregon Congressional delegation provides great leadership on these issues. Senator Wyden, Senator Merkley, Rep. Blumenaur, Rep. Schrader, and Rep. DeFazio have been particularly helpful to Oregon’s Qarmat Ali vets.

As the guy in the trenches, I can say that this day restores some of my lost faith in our government. Members of Congress pushed, and the Inspector General’s office did  their job in a frank and thorough fashion. We are pleased.

Meantime, here is today’s report on the Inspector General’s report from The Oregonian.  While it is a good day, nothing has changed. The vets are still sick, and KBR has still refused to reckon with the harms and the losses. Our fight for the vets continues.

Revised 29 Sept 2011

Ten years after 9/11–what about the debts owed to our veterans?

Ten years after the 9/11 tragedy, I am thinking today of the first responders and veterans who volunteered for service. They did so understanding the dangers and the risks, and they did so as a matter of duty and conscience. In answering the call, they put themselves in harm’s way. It was not just them, of course. Their families have borne heavy costs from their service.

Against this backdrop, I continue to represent the sick veterans of the Oregon Army National Guard 1/162. They provided security at the heavily-contaminated Qarmat Ali Water Treatment Plant in Iraq. KBR was responsible for the facility as part of its secret, no-bid, multi-billion dollar Restore Iraqi Oil contract.

Many of the vets who provided security to KBR contractors at Qarmat Ali are sick. Some vets from other units have perished from cancer. All who served in that toxic facility are rightfully worried about the future.

I am something of a cynic–I suppose that’s part of my job. I usually distrust flag waving because it can distract us from what is important. So let’s commit to do more than wave flags. How about we resolve to take care of our sick and injured veterans and their families? How about we hold accountable those who profited from the war contracts and insist that they take responsibility for what they have wrought?

Debts are owed. It is time to pay.

Details emerge on KBR’s request for taxpayer bailuout

In today’s Oregonian, Julie Sullivan (aka “the one-woman wrecking crew”) reports here on emerging details of KBR’s request for a taxpayer bailout.  Short version is that as revealed by depositions taken in our Oregon Army National Guard toxic injury case, Bixby v. KBR, KBR won a special secret contract clause that requires the government to pay in the event of injuries or deaths.

Special thanks to Rep. Earl Blumenauer who pushed the Department of Defense on this issue.  Along with Sen. Wyden, Sen. Merkley and Rep. Schrader, Rep. Blumenauer has made it a point to take a hard look at these issues and provide critical assistance to our vets.  Members of the Oregon Congressional delegation have been fabulous.  Their hard work provides real comfort to the vets who stepped up to serve.

One question that occurs to me is whether that clause is enforceable if the vets in the Bixby case succeed in proving fraud by KBR. I don’t profess any particular expertise in this area. And even if I did, the details remain secret, so it’s likely impossible to know how that plays out.

As a taxpayer and as counsel for the sick vets, I’m steamed.  KBR already got paid billions for their work, and now they want a get-out-of-jail-free card so that they don’t have to pay for any consequences of their actions? Great plan.

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….