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.
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….
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.
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.
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.
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.
Just came across this passionate and detailed response by KBR to questions posed by MSNBC regarding our soldiers’ sodium dichromate exposure at the Qarmat Ali water treatment plant in Iraq. “Wow,” is about all I can muster by way of comment. I really can’t wait to try this case.
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.”
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.