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Burn-pit claimants will appeal judge's dismissal

Jun. 4, 2013 - 04:07PM   |  
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Attorneys representing former troops and family members who say they were sickened by exposure to open-air burn pits in Iraq and Afghanistan are appealing a judge’s dismissal of their cases.

Alexandria, Va., lawyer Susan Burke and attorneys from the South Carolina firm Motley & Rice filed an appeal Wednesday arguing that Maryland U.S. District Court Judge Roger Titus’s decision in February to toss out 57 consolidated lawsuits filed against KBR, Inc., was “non-justifiable.”

Titus ruled Feb. 28 that as a government contractor working in a war zone, KBR was entitled to the same legal protection and immunity as U.S. armed forces operating in combat. He also argued that the court did not have jurisdiction to rule on decisions made by another branch of government.

But in their appeal filed in the Fourth Circuit, the plaintiffs’ attorneys said KBR often did not follow military directives while operating burn pits in Iraq and Afghanistan, effectively negating any “sovereign immunity” the company may have had.

The U.S. military relied for years on KBR-operated burn pits in Iraq and Afghanistan to dispose of debris such as garbage, medical waste, plastics, batteries and computers.

The plaintiffs say the smoke produced by the pits contained toxins like dioxin and volatile organic compounds that have caused respiratory disease, neurological disorders and cancer.

In his decision in February, Titus cited an observation by Gen. William Tecumseh Sherman that “war is hell,” adding “the military frequently calls upon civilians and civilian contractors to aid in the fulfillment of its missions under often hellacious combat conditions.”

He added that U.S. interests could be “compromised if if military contractors were left ‘holding the bag’ for claims made by military and other personnel that could not be made against the military itself.”

KBR, formerly known as Kellogg, Brown and Root and once a subsidiary of defense contractor Halliburton, faces a number of ongoing lawsuits regarding its business operations in Iraq and Afghanistan.

A federal judge last month upheld an $81 million award to be paid by KBR to 12 Oregon National Guardsmen who were exposed to the carcinogen hexavalent chromium during cleanup operations at the Qarmat Ali water treatment plant in Iraq in 2003.

The company is expected to appeal that decision.

A separate suit, also involving Qarmat Ali, has been filed in U.S. District Court in Texas.

Several service members and families also have sued KBR for injuries or electrocutions resulting from inadequate or faulty electrical systems in company-constructed buildings and facilities overseas.

Titus cited an appeals court decision in one of those cases — Taylor v. Kellogg, Brown and Root Services — as setting “binding precedence” that the contractor is immune from suits. The court decided that the “political question doctrine” applies, preventing the judiciary from reviewing some actions taken by the executive or legislative branches.

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