The Supreme Court of the United States refused to dismiss a pair of disputes between KBR and former military contractors injured in Afghanistan and Iraq.
In court documents, the Houston-based firm said that it had the same immunity to lawsuits from injured servicepeople that the United States government enjoyed. Furthermore, the judicial branch has no inherent authority to issue decisions concerning the secondary effects of any executive orders, its lawyers added. In the waning hours of the Obama administration, former Solicitor General David Verrelli urged that the Justices return the cases to the trial court, to at least limit the number of claims before KBR begins filing appeals.
The action before the Court is actually several different lawsuits. The plaintiffs in Metzgar et al v. KBR alleged that exposure to the burn pit at Joint Base Balad triggered a wide range of serious respiratory and other illnesses. In his Maryland courtroom, U.S. District Judge Roger Titus initially dismissed this action, citing the aforementioned immunity provisions. But the U.S. Court of Appeals for the Fourth Circuit reinstated the lawsuit and ordered Judge Titus to consider them. In a second lawsuit, the family of Army S.Sgt. Ryan Maseth sued KBR after Sgt. Maseth was electrocuted in a shower near Baghdad; his mother, Cheryl Harris, blamed faulty electrical work and other negligence for her son’s death. A district judge threw out that lawsuit, but the U.S. Court of Appeals for the Third Circuit revived Harris v. KBR. In a third case that is probably destined for the High Court, the Ninth Circuit is scheduled to hear a third similar matter later this spring. Earlier, an Oregon jury awarded twelve contractors $85 million after it heard testimony that KBR did not warn the men about dangerously high levels of sodium dichromate at the Qarmat Ali Water Treatment Facility before the company ordered the men to clean it.
KBR contends that it had no operational control over the JBB burn pit, and even if it did, the burn pit did not cause the plaintiffs’ injuries. Similarly, KBR says it had no control over the faulty shower that killed Sgt. Maseth. “We get really frustrated when we are blamed for the decisions that were made by politicians and the military,” remarked KBR attorney Mark Lowes.
Burn Pit Injuries
In much the same way that it denied a link between Agent Orange exposure and Vietnam veteran illnesses, the Veterans Administration has consistently denied that there is a link between burn pits and respiratory illness, instead arguing that environmental factors, such as dust in the air, are entirely to blame for former contractors’ illnesses.
However, the VA’s own data indicated that there is a connection. 30% of the 28,000-plus veterans surveyed who were exposed to burn pits say they were subsequently diagnosed with respiratory conditions.
- Chronic: Many veterans developed bronchitis, emphysema, or chronic obstructive pulmonary disease (COPD). All these conditions make everyday activities, like walking upstairs or walking in the park, almost impossible to perform.
- Serious: A surprising number of veterans developed idiopathic pulmonary fibrosis or constrictive bronchiolitis. IPF is a degenerative illness due to excessive scar tissue in the lungs; CB constricts the lung chambers, effectively making it impossible to breathe. Both these conditions are almost unheard of among young people who are otherwise healthy.
Burn pits have also been linked to high blood pressure, insomnia, and liver disease.
Overseas Premises Liability
Under the Defense Base Act, victims do not have to prove fault to obtain compensation for their injuries, as outlined below. However, if the injury is something like a slip, trip, and fall, the victim must prove that the injury occurred at a place that the contractor owned or controlled. To determine control, most courts employ some variation of the following test, which holds that liability attaches if the defendant:
- Occupied the property with the intent to control it,
- Was the last person to occupy the property with intent to control it, or
- Owned legal title to the property.
In the above case, Ms. Harris must prove, by a preponderance of the evidence (more likely than not) that KBR occupied the shower, perhaps by sending plumbers or electricians to work on it, and intended to control it. Normally, a jury may infer intent through circumstantial evidence.
Contractors who were injured overseas in a war zone (which is essentially anyplace outside the United States where there is an American military presence of any kind), or there is a contract with the US Government to do work overseas, are entitled to benefits under the Defense Base Act. These benefits normally include compensation for:
- Lost wages, including regular pay, overtime, bonuses, and most non-cash compensation, and
- Medical bills, including emergency care, follow-up visits, physical rehabilitation, and any other related expenses.
Most injured contractors can choose their own doctors. Victims normally receive two-thirds of their average weekly wage until they can return to work; permanently disabled victims may be eligible to receive a lump sum payout or lifetime benefits. Typically, the insurance company pays medical bills directly, so victims only have to concentrate on getting better.
To learn more about the DBA process, contact Barnett, Lerner, Karsen & Frankel.