PORTLAND — The 9th U.S. Circuit Court of Appeals overturned an $85 million jury award to a dozen Oregon National Guard soldiers who said they were sickened from guarding a water treatment plant during the Iraq War.
The military contractor Kellogg, Brown and Root successfully argued that Oregon was not the proper jurisdiction for the case. KBR is based in Houston, and similar cases filed by soldiers from Indiana, West Virginia and South Carolina are pending in federal court there.
“We are thrilled with the result; it is the right result and we look forward to a successful conclusion to this and all the legacy tort claims that relate to KBR’s work supporting the U.S. military in Iraq,” KBR attorney Geoffrey Harrison said by phone Thursday.
The three-judge panel heard oral arguments May 4 in Portland and came back with a surprisingly fast decision. The brief opinion only addressed the question of jurisdiction, and it found an insufficient link between KBR and Oregon.
The opinion mentions two possibilities for what comes next: Either the case is dismissed and then refiled in an appropriate venue, presumably Texas, or it’s simply transferred there.
The plaintiffs could also ask the full court to review the case.
Mike Doyle, the lead attorney for the soldiers, said he will take a few days before deciding the next step. He said KBR was fully able to defend itself in Oregon, so it was tough to lose on jurisdictional grounds.
“But that’s the law,” he said. “We’ll follow the law; we’ll follow the rules. That’s what we do.”
A federal jury in Portland found KBR guilty of negligence after a three-week trial in late 2012. Each of the 12 soldiers was awarded $850,000 in noneconomic damages and $6.25 million in punitive damages.
U.S. District Court Judge Paul Papak acknowledged before the trial that the losing side was likely to appeal.
KBR reconstructed the water treatment center shortly after the March 2003 invasion while National Guardsmen defended the area.
The soldiers said they had respiratory ailments after their exposure to sodium dichromate, a corrosive substance used to keep pipes at the water plant free of rust. Moreover, they feared a carcinogen found in sodium dichromate could cause cancer later in life.
KBR witnesses testified that the soldiers’ maladies resulted from desert air and pre-existing conditions. And even if the soldiers were exposed to sodium dichromate, they weren’t around enough of it, for long enough, to cause serious health problems.
Rocky Bixby, one of the Oregon soldiers, said his health hasn’t improved since the 2012 verdict. He said he has coughing fits, lung problems, depression and post-traumatic stress disorder.
“We beat them in federal court on the merits of the case and now we have to retry it again,” he said. “It’s frustrating that the appellate court basically threw out our whole case.”
The case has been going on since 2009. “I don’t know how many of us will survive to the end of this, but we’ll push through and see what happens,” Bixby said.
The military contractor has had more legal success in its home state than in Oregon. The Texas federal court granted KBR’s request for summary judgment on several matters in the case involving Guard troops from other states, including whether KBR was negligent.
That has left those soldiers with one pending claim, whether KBR intentionally inflicted emotional distress.
