A Supreme Court decision on Tuesday sent several lawsuits against defense contractor KBR back to trial court, allowing litigation to continue over the company's support operations in Iraq and Afghanistan.
The high court denied a petition by the Houston-based company to consider arguments in cases that allege the contractor and former parent corporation, Halliburton, acted negligently while operating open-air burn pits in Iraq and Afghanistan and other facilities, resulting in death and illness of U.S. troops.
KBR had sought the court's opinion because it says the suits should be dismissed on the basis that, as a combat-support company, KBR should share the same immunity that shields the U.S. government from litigation over war injuries. KBR also says the judicial branch does not have authority to rule on political decisions made by the executive branch.
The court did not give a reason for denying the petition, but the Obama administration on Dec. 16 submitted an opinion to the court saying a review is not "warranted at this time."
U.S. Solicitor General David Verrilli noted that the primary case, involving the burn pits, should be remanded to the lower courts to dismiss or narrow the claims.
KBR counsel Mark Lowes said Wednesday the Supreme Court's decision surprised the company but KBR still thinks the cases will be considered by the trial court judges, then the appeals courts and eventually wind up at the Supreme Court.
"What we had tried to do [before] was get the government engaged at the trial court level to voice its opinion. ... One question now is will the solicitor general engage ... to reiterate their views as the case percolates back up through the courts," Lowes said.
The burn-pit lawsuits, known as Alan Metzgar et al v. KBR Inc., are a collection of suits from across the country by plaintiffs who say they developed respiratory illnesses, neurological disorders, cancer and skin diseases from living and working near open-air burn pits in Iraq and Afghanistan.
They say the pits were used to incinerate refuse that included plastics, computer parts, medical waste and heavy metals, releasing toxins such as dioxin and volatile organic compounds into the air.
A U.S. District Court judge in Maryland dismissed the burn-pit suits in 2013, agreeing with KBR's arguments that the company deserved immunity and the judicial branch lacked authority in the cases.
But the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, disagreed and sent the litigation back to District Judge Roger Titus in the Maryland court in early 2014.
Another case, Harris v. KBR Inc., addresses a lawsuit over the death of Army Staff Sgt. Ryan Maseth, who was electrocuted while taking a shower in a palace complex in Baghdad in 2008. The suit, filed by Maseth's mother, Cheryl Harris, alleges that shoddy electrical work and poor maintenance caused the death because the water pump in the shower was not grounded.
The 3rd U.S. Circuit Court of Appeals, in Philadelphia, overturned the trial judge's decision to dismiss that case in 2013.
Another set of suits allege that KBR violated military orders while performing cleanup of a water treatment facility near Basra, Iraq, in 2003, causing troops to fall ill. A jury awarded $85 million to 12 Oregon soldiers who say they were not warned of the presence of toxic sodium dichromate while they were guarding and helping cleaning the plant, known as the Qarmat Ali water treatment facility.
Attorneys for the soldiers said the troops were unaware of the dangerous exposure until KBR managers arrived at the site wearing chemical protective suits and respirators.
KBR appealed the verdict to the 9th U.S. Circuit Court of Appeals, in San Francisco, which is set to hear the appeal this spring.
KBR continues to maintain it did not operate the primary burn pit at the center of many allegations filed in the multidistrict lawsuits — at Joint Base Balad — and says other environmental factors in the combat zones may have contributed to troop health problems.
In Maseth's case, Lowes said KBR warned the Army that existing buildings in Iraq posed danger to troops and there was no evidence KBR installed the pump.
"We get really frustrated when we are blamed for the decisions that were made by the politicians and the military, things we can't control," Lowes said.
Susan Burke, lead attorney for the plaintiffs in the burn-pit cases, said she looks forward to bringing the facts of those cases before Titus and says KBR should be held accountable.
"The defendants promised the U.S. government they would supply safe water for hygienic and recreational uses and properly and safely dispose of waste products on U.S. bases in Iraq," Burke wrote in the original complaint. "[They] utterly failed to perform their promised duties."
"We are delighted that the Supreme Court refused to accept KBR's effort to delay. ... The service members look forward to their day in court with an American jury hearing their claims," she told Military Times on Tuesday.
New court dates have not been set for the burn-pit cases or the Harris case.
Under its original contract KBR, the Army pays a portion of the company's defense fees in these cases.
KBR also has filed suit against the federal government to help recover a portion of the legal fees required to defend itself in litigation related to its contracting support in the combat zones.
Patricia Kime is a senior writer covering military and veterans health care, medicine and personnel issues.