KBR Could Still Pay for Chromium Exposure

PORTLAND, Ore. (CN) - National Guardsmen cannot prove that KBR poisoned them, but they can still seek damages for emotional distress, a federal magistrate ruled.

KBR, a former Halliburton subsidiary previously known as Kellogg Brown & Root, contracted with the U.S. government after the Iraq war to rebuild the country's infrastructure.

Nearly three dozen members of the Oregon National Guard said they were exposed to carcinogenic sodium dichromate while providing security for civilians who were working on the Qarmat Ali water-treatment plant in 2003.

Sodium dichromate is used as an anticorrosive that contains hexavalent chromium, a known carcinogen. It has been linked to illnesses ranging in severity from asthma to lung cancer.

The plaintiffs said exposure first presented itself with nosebleeds, a condition toxicologists call "chome nose," which they say is "the most characteristic symptom of acute hexavalent chromium poisoning."

KBR managers allegedly told soldiers that the nosebleeds were from "the dry desert air" and that they were "allergic to sand."

The plaintiffs, who have amended their complaint five times, claim that KBR is concealing its knowledge of the chemical dangers of the water plant.

In January, U.S. Magistrate Judge Paul Papak ordered sanctions on the plantiffs' expert, Dr. Arch Carson, for a November 2011 report he filed to supplement one submitted five months prior.

Papak explained in an August ruling that Carson failed to prove that KBR caused the guardsmen to get sick.

Since the doctor's expert report is not admissible, Papak awarded KBR summary judgment Monday on the claims seeking compensation for "asymptomatic subcellular genetic transformation" and future medical monitoring.

"In the absence of admissible expert opinion as to causation in connection with these two categories of damages, such damages are unavailable as a matter of law," Papak wrote.

The claims seeking damages for emotional distress can still proceed, however.

"All or nearly all of the 34 plaintiffs who remain parties to this action have offered evidence of having suffered either transient or permanent symptoms consistent with hexavalent chromium poisoning," Papak wrote. "All plaintiffs who experienced such symptoms are entitled to claim damages in compensation for all emotional distress suffered in 'natural consequence' of such symptoms and of the circumstances under which the condition underlying such symptoms came about."

He added: "Although plaintiffs may not seek personal injury damages premised on the theory that such genetic transformation injury persists to the present, I find no principle of Oregon law to suggest that physical transformation of a plaintiffs cellular structure caused by physical exposure to a carcinogenic industrial toxin is insufficient to satisfy Oregon's minimal physical impact rule for purposes of determining the plaintiffs entitlement to emotional distress damages."

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