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.”
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.
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.”
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.
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.
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.
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.
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.
Senator Byron Dorgan (D. N.D.) announced yesterday that he will not seek re-election. I’ve never been to North Dakota, and I had only passing awareness of Senator Dorgan until this summer. That changed as a result of my work on behalf of Oregon National Guard soldiers exposed to sodium dichromate in Iraq.
Senator Dorgan has chaired the Democratic Policy Committee. In that role, he has held hearings on Army and Army National Guard soldiers’ exposures to sodium dichromate at the Qarmat Ali facility. Those hearings have been instrumental in exposing wrongdoing by KBR and others.
Senator Dorgan has proved himself a friend of our soldiers and their families. This is not simple bumper sticker “support our troops,” stuff. In comments made at the hearing in August 2009, Senator Dorgan made it clear that he is motivated by the simple proposition that we owe our vets more than pats on the back.
So I read this news with a heavy heart. Those of us who dare to challenge KBR for their misconduct have taken on a big and powerful foe. As every guy knows, when you’re in a barroom brawl, there’s nothing more welcome than a friend by your side. Thanks Senator Dorgan for your great work. We’ll miss you as we push forward.