KBR Hexavalent Chromium|Case Put to 9th Circuit

PORTLAND, Ore. (CN) - Attorneys for Oregon national guardsmen urged the 9th Circuit not to punt claims that military contractor KBR knowingly exposed them to toxic hexavalent chromium at a water-treatment plant in Iraq.

Just a dozen remain from the 39 guardsmen who claimed that they were exposed to the carcinogen through the anti-corrosive sodium dichromate, while providing security for civilians working on Iraq's Qarmat Ali water-treatment plant in 2003.

Claiming that they reported the telltale sign - developing "chrome nose" bleeding - the guardsmen say KBR, a former Halliburton subsidiary once known as Kellogg Brown & Root, brushed off their ailments as an allergy to sand and kept them working.

A federal jury ultimately found KBR not liable on fraud claims, but awarded non-economic and punitive damages to the 12 plaintiffs in late 2012.

Since the actions at issue happened in Iraq, and KBR is based in Texas, KBR then asked the court to either transfer the case to Texas or to dismiss the case for lack of jurisdiction.

The company appealed to the 9th Circuit when the trial court instead granted the plaintiffs final judgment.

At a Monday hearing before a three-judge panel at the Pioneer Courthouse, KBR attorney Warren Harris cited the Supreme Court decision Walden v. Fiore in seeking to boot the case from Oregon.

In Walden, the Supreme Court found that the jurisdiction of a case depends on "contacts created by the defendant."

Since KBR's actions took place outside of the state where the case was filed, as in Walden, Harris said that the plaintiff alone cannot tie the defendant to the forum.

"In this case, the plaintiffs are the only link between KBR and the state of Oregon," Harris said.

Noting that similar claims against KBR have also been refiled in Texas, Harris assured the judges that a "savings clause" in both Oregon and Texas law would allow the Oregon guardsmen to use the original filing date in Texas.

Judge William Fletcher would not concede the point so easily.

"You may be right on how we have to read Walden," Fletcher said, "but clearly there is a connection with the state of Oregon. You've got people, according to the finding of the court, were from Oregon, were injured in Iraq wrongfully, and are now back in Oregon injured. And if they get no compensation from your client, may be on public welfare and even if they are capable of full time work in the way they would have been before, they are here injured. So there's clearly a connection. Whether it's jurisdictionally sufficient is another question."

Harris said the plaintiffs coming home to Oregon and feeling the effects of their injuries there would not be enough to establish jurisdiction in Oregon. For KBR to trigger jurisdiction, it would have had to reach out and make contacts of its own in Oregon, the attorney added.

He answered no when Judge Andrew Hurwitz asked whether it made a difference that KBR "was involved with individuals that were part of an Oregon institution - that they were the Oregon National Guard."

In ensuring that its contractor had protection, the military assigned it troops from the National Guards of West Virginia and the U.K., as well as Oregon guardsmen, Harris said.

"KBR did not make a specific request for Oregon guardsmen," Harris said, "the Army made that decision."

Arguing for the guardsmen, attorney Stuart Esner highlighted a finding by the trial court that KBR "purposely interjected" itself into Oregon by harming "state treasury," i.e. Oregon national guardsmen.

"So you're claiming that the state of Oregon was harmed because its guardsmen were harmed," Hurwitz said.

"Yes," Esner said.

"But it's not the state of Oregon that's suing," Hurwitz said.

U.S. District Judge Donald Walter, rounding out the panel by designation from Shreveport, La., interjected.

"If what you're saying is true, then I can go create my own jurisdiction in any tort," Walter said. "All I have to be is a burden on the state of Louisiana, and I've got jurisdiction in Louisiana."

Harris said the guardsmen were temporarily "nationalized" when they went to Iraq, and thus received federal benefits, including care at hospitals run by the Department of Veterans Affairs.

"The real question here is, your 'targeting' argument says KBR targeted elements of the Oregon National Guard while they were overseas and under federal jurisdiction," Judge Hurwitz told Esner. "And they should have anticipated that the state of Oregon would be hurt by these actions. But doesn't the injury have to be an injury that occurs to the plaintiff?

"Has the Supreme Court ever found jurisdiction where there wouldn't have been jurisdiction were the plaintiff the only party, but there would have been jurisdiction had some other unnamed party joined the suit?" Hurwitz continued.

Esner said he was not aware of any case that fit those criteria.

The judges turned to whether KBR had actively "reached in" to Oregon through its use of Oregon guardsmen.

Harris said the trial court found that it was pure luck that Oregon guardsmen had been the ones to guard KBR's activities in Iraq, and not guardsmen from another state or regular Army troops.

For Hurwitz, "if KBR had said, 'Governor, send us the Oregon National Guard,' that would be different."

Still, Esner said KBR should have anticipated that it could be sued in Oregon for intentionally exposing Oregon guardsmen to hexavalent chromium.

"But that's circular," Judge Fletcher said. "Being able to anticipate being hauled into court in Oregon or somewhere else depends on what the law is."

"They may have anticipated getting sued all over the country and being able to assert very good jurisdictional defenses," Judge Hurwitz said.

Follow @@karinapdx

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit