A smoke plume from a burn pit fills the air above housing at Balad Air Base, Iraq. (Courtesy photo)
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Government contractor KBR will find out this year whether the Supreme Court will consider a group of lawsuits filed against the company for its operation of burn pits in Iraq and Afghanistan.
The Houston-based firm has petitioned the court to hear arguments in the case of Alan Metzgar et. al. v. KBR Inc., a collection of class-action and individual suits alleging that KBR and former parent company Halliburton acted negligently when operating the burn pits for the U.S. military, exposing troops to toxic fumes and pollutants.
KBR is arguing that the case, which in March was sent back for reconsideration to its original court by the 4th U.S. Circuit Court of Appeals, should be heard by the high court because it addresses issues of constitutional law on combatant activities and contract support.
“In Vietnam, people who were drafted, they drove the trucks, they did the laundry, cooked the food — all the things that have been outsourced by the Army were done by soldiers,” KBR counsel Mark Lowes said. “I don’t see us ever going back [to that]. Contractors are going to be tied to the military from here on out, and it behooves the court to tell us how that relationship is going to work.”
Last year, a U.S. District Court judge in Maryland dismissed the suits, affirming KBR’s defense that it deserved the same protection as the U.S. government from litigation stemming from injuries in war zones.
Judge Roger Titus also agreed that the judicial branch did not have the authority to rule on the political decisions of the executive branch in the cases.
But a three-judge panel from the 4th U.S. Circuit Court of Appeals in Richmond, Va., disagreed, ruling that the lawsuits could continue because KBR had not sufficiently demonstrated it was acting under military orders specifically during burn pit operations or water treatment activities.
The judges concluded that the case needed further exploration and consideration as to whether KBR should share the same immunity the military has from litigation over injuries in war zones.
Roughly 10,000 petitions are filed with the Supreme Court each year, and the court elects to hear between 75 and 80 cases.
Susan Burke, lead attorney for the plaintiffs, said she doesn’t think the Supreme Court will take the case at this point because the 4th District Court remanded it for further investigation.
“We’re cautiously optimistic,” Burke said. “Typically, the Supreme Court doesn’t like to hear cases prematurely.”
Plaintiffs, who number in the hundreds, say the smoke produced by the open-air burn pits contained toxins such as dioxin and volatile organic compounds that have made them sick, causing respiratory illnesses, neurological disorders and cancer.
They also charge that KBR violated military orders in performing water treatment services, causing troops to fall ill.
The burn pit litigation is one of three major suits outstanding against KBR. The 3rd Circuit Court of Appeals last August overturned a judge’s decision to dismiss the case of Army Staff Sgt. Ryan Maseth, electrocuted in 2008 in a KBR-built shower. The lawsuit alleges that shoddy electrical work caused Maseth’s death.
And in 2012, a federal jury in Portland, Ore., ordered KBR to pay 12 soldiers $85 million in punitive damages for exposing them to a toxic chemical during the cleanup of a water treatment facility in 2003. That case is on appeal.
If the Supreme Court does not hear the Metzgar case, it will continue to be considered in the Maryland U.S. District Court.
Should that happen, Lowes said, KBR believes the merits of the case still lean in the company’s favor. He said KBR never operated the burn pit at Joint Base Balad, Iraq, a central location in several of the suits, and added that other environmental factors in Iraq and Afghanistan may have contributed to troops’ chronic health problems.
“Iraq was not a nice place. Aside from burn pits, you had dust storms, the desert conditions, the sand over there was dirty,” Lowes said. “The people who served all had the [Iraqi] crud.”
Burke said she thinks once the details come to light, the cases will reflect clear-cut examples of negligence.
“This is a fairly straightforward corporate wrongdoing, corporate malfeasance, that wronged people. KBR is trying to morph it into an issue of national import, but it’s just garden-variety negligence,” Burke said.
The Supreme Court would likely announce in June or October whether it will hear the case.