KBR files motion to dismiss hexavalent chromium lawsuit filed by Oregon soldiers
Posted by defensebaseactcomp on April 27, 2010
Attorneys for Kellogg, Brown & Root have filed a second motion to dismiss an Oregon Army National Guardsmen lawsuit against the war contractor, saying the Oregon court lacks jurisdiction over the federal government’s military and foreign policy decisions in wartime.
Friday’s filing comes three weeks after U.S. District Judge Magistrate Paul Papak denied an earlier motion to dismiss, ruling that the case should go forward.
Twenty-one current and former Oregon Army National Guard soldiers, mostly from the Portland area, are suing the Houston-based firm and four of its subsidiaries saying they were intentionally exposed to the cancer-causing chemical, hexavalent chromium after the U.S. invasion of Iraq in 2003.
Troops from Oregon, Indiana and West Virginia were ordered to guard KBR employees working to restore oil production in southern Iraq. Soldiers from all three states have filed lawsuits. They claim that at the Qarmat Ali water plant near Basra, KBR ignored and downplayed the health risks of a corrosion-fighter scattered across the facility that contained hexavalent chromium. Soldiers allege breathing, stomach and other health problems as a result. At least two soldiers, including one in Oregon, died of cancer after serving at the plant.
According to the 41-page memorandum, KBR attorneys wrote the firm won the Army Corps of Engineers’ contract to “Restore Iraqi Oil” 17 days before the United States invaded Iraq on March 20, 2003. Restoring oil flow from the dilapidated and heavily looted Iraqi facilities was one of the United States’ most pressing goals, attorneys said. The circa-1970s water plant at Qarmat Ali was particularly important, as it provided the needed water pressure to all the oil wells across southern Iraq.
KBR attorneys Jeffrey Eden and Stephen Deatherage wrote that under its contract, KBR was not required to conduct an environmental assessment at Qarmat Ali. U.S. soldiers who did conduct an initial assessment shortly after the invasion noted the orange stains on the soil, but did not ask for further investigation. Instead, they recommended a new plant be built altogether.
The Corps of Engineers decided not to rebuild the plant, but rather repair it and decided not to conduct a full environmental assessment due to the wartime conditions.
KBR attorneys also said that the U.S. and British military, not KBR, were responsible for notifying soldiers of the potential exposure and determining whether and to what extent they were exposed.
The attorneys further claim that the same Federal Tort Claims Act which prevents individuals from suing the government in all but very limited circumstances, should apply to the contractor.
“KBR performing a common mission with the military under military command in a military theater.’
KBR has been barraged with lawsuits ranging from soldiers’ who claimed they were injured by burn pits the to families of drivers killed in Iraq.
The soldiers attorney, David Sugerman, vowed to go forward.
“We want Oregon soldiers to have their day in court.”
A hearing has been scheduled for 10 a.m. June 7 in federal court in Portland.
Julie Sullivan: 503-221-8068