Iraqi Law Won’t Apply in Suit Over Dead Soldier

PITTSBURGH (CN) - The parents of a Green Beret who was electrocuted while showering at base camp during his second tour of duty in Iraq can use U.S. law to pursue wrongful-death claims against Texas-based military contractor Kellogg, Brown & Root, a federal judge ruled.

Cheryl Harris and Douglas Maseth sued KBR in March 2008, claiming 11 on-base electrocutions of American military personnel in Iraq gave the contractor notice about sweeping electrical problems. But despite this notice, the couple says KBR "did nothing to fix" the "faulty electric infrastructure," which included the improperly grounded water-pump system that sent a stream of electrified water through the shower nozzle, killing their son, Staff Sgt. Ryan Maseth.

KBR moved on Feb. 4 to apply the Iraqi Civil Code to the case, submitting an expert report that argued Iraqi law does not allow an estate to obtain damages for a decedent's pain, suffering or emotional distress.

The Iraqi law specialist, University of Pittsburgh School of Law Professor Haider Ala Hamoudi, also articulated the so-called "drowning out" principle that controls Iraqi jurist's handling of negligence cases: "where there are two negligent acts, one built upon and the product of another, the second negligent act is 'drowned out' by the first, and is no longer considered a cause of harm."

Maseth's parents argued that American law controls the case under an order passed by Iraq's transitional government during the early days of U.S. invasion.

U.S. District Judge Nora Fischer agreed in a 39-page decision Friday that reserves judgment as to whether Pennsylvania, Texas or Tennessee law will be applied.

Maseth's parents are Pennsylvania residents, but his estate is being administered in Tennessee, where he had purchased a home shortly before leaving for his second tour.

Fischer noted that, under Pennsylvania law, "if multiple defendants are found liable for the harm caused to the plaintiff, they are each held responsible for damages to the extent of their proportional responsibility for the harm caused to the plaintiff."

"The Court understands that KBR's position in this litigation is that the Army was allegedly negligent in its decisions and actions related to housing soldiers in Iraqi buildings with known substandard electrical systems," Fischer wrote. "By advancing the causation law under the Iraqi Civil Code, KBR argues that if that law were applied, the Army's negligence would subsume its own negligence, if any."

Professor Hamoudi also noted that Iraqi Civil Code does not authorize recovery of punitive damages, as the ideals of punishment or deterrence are within the exclusive purview of Iraq's criminal courts, while the country's civil courts are designed solely to compensate victims.

The order establishing the authority of U.S. law was in effect until repeal of the transitional government, called the Coalitional Provisional Authority, on Nov. 17, 2008 - 11 months after Maseth's death, Fischer wrote, citing Hamoudi's own admission.

Fischer added that she had doubts about Hamoudi's "credibility" since he ignored a critical section of the transitional government's order in trying to undermine it, and originally avoided any reference of the order at all in his initial report.

The judge also rejected KBR's references to similar cases in Maryland and Georgia cases, noting that those states have a different standard than Pennsylvania has.

"KBR has failed to meet its burden to persuade this Court that the recited portions of the Iraqi Civil Code possibly govern this litigation," Fischer wrote.

The plaintiffs' attorney, Patrick Cavanaugh with Del Sole Cavanaugh Stroyd in Pittsburgh, applauded the decision. "I think they are going to try every legal defense that they have and we have no choice but to respond," Cavanaugh told Courthouse News, noting that Fischer rejected a different KBR tactic in 2009.

KBR spokeswoman Sheryl Gibbs bristled at the suggestion, saying that "Judge Fisher herself has recognized that it may be appropriate for KBR to reassert its jurisdictional motions at a later date."

While both parties emphasized their concentration on discovery, Cavanaugh would not discuss the possibility of a settlement and Gibbs said KBR has no plans to settle.

"Staff Sergeant Maseth's accidental death, while tragic and unfortunate, was not the responsibility of KBR," Gibbs said in an email. "The Department of Defense Inspector General and other government entities have thoroughly investigated the Maseth incident and determined that there were multiple causes that contributed to the accident."

Gibbs declined to point fingers at what entity is to blame, but said the U.S. military had to make tough choices for its soldiers' safety.

"The Army decided to place its soldiers in hard sided buildings that they knew were not bonded and grounded because they were safer than tents," Gibbs said, referring to vulnerability to mortar and rocket attacks. "The military, at the highest levels, was well aware of the shock and electrocution hazards at these and other facilities well before this incident."

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