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Federal court allows burn-pit lawsuit to advance

Mar. 7, 2014 - 12:36PM   |  
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A federal appeals court has ruled in favor of the plaintiffs in a collection of lawsuits over the use of open-air burn pits in Iraq and Afghanistan, a decision that allows the litigation against contracting giant KBR to continue.

The civil cases — 58 separate class actions and individual suits known as Alan Metzgar et. al. v. KBR — allege that KBR and its former parent company, Halliburton, acted negligently as the Pentagon’s largest logistics contractor in the region, willfully burning items that employees should not have placed in the pits and exposing troops to toxic fumes and pollutants.

A three-judge panel from the 4th U.S. Circuit Court of Appeals in Richmond, Va., ruled unanimously Thursday that the suits can continue because the defendants have not sufficiently demonstrated that they were acting under military orders.

The judges also concluded that KBR doesn’t necessarily share the same immunity that the military has from litigation over injuries in war zones, even if the company was directly supporting the Defense Department.

“Although the evidence shows the military exercised some level of oversight over KBR’s burn pit and water treatment activities, we simply need more evidence to determine whether KBR or the military chose how to carry out these tasks,” Judge Henry Floyd wrote.

In March 2013, Maryland U.S. District Court Judge Roger Titus dismissed the suits, affirming KBR’s argument that it deserved the same protection as the U.S. government from litigation stemming from injuries in war zones.

KBR attorneys had argued that the company was not responsible, having operated only about a third of the pits in Iraq and Afghanistan. They also argued that the company was protected by a law that prohibits claims from being filed against private contractors integrated into combat activities.

“If this was Vietnam or the Korean War, you wouldn’t have seen any contractors. There would have been drafted troops cooking, doing the laundry, driving. ... Fifty years ago, there wouldn’t have been anyone to sue,” KBR counsel Mark Lowes told Military Times in November.

But the sides disagreed — and presented conflicting evidence — on whether the military explicitly instructed, condoned or monitored KBR’s use of burn pits at bases across the region.

“The extent to which KBR was integrated into the military chain of command is unclear,” Floyd wrote.

The plaintiffs, who number in the hundreds, say the smoke produced by burn pits contained toxins such as dioxin and volatile organic compounds that have made them sick, causing respiratory illnesses, neurological disorders and cancer.

Susan Burke, lead attorney for the plaintiffs, said Titus’ ruling was “nonjustifiable” and the appeals court helped clarify the law.

“We are pleased that the service members harmed by the burn pits operated by KBR will have their day in court. As we alleged in the complaints, the military paid KBR to provide waste disposal services in a manner consistent with the health and safety of the troops. KBR broke that contractual promise,” Burke said Friday.

The case returns to Titus’s courtroom at U.S. District Court, Greenbelt, Md., where it originated.

Lowes told Military Times in November that KBR is prepared to take this case — and others it is involved in, including litigation involving 12 Oregon National Guardsmen exposed to a carcinogen during cleanup operations at an Iraqi water treatment plant and several lawsuits over injuries or electrocutions in KBR-renovated facilities — to the U.S. Supreme Court, if necessary.

KBRs attorneys remain convinced that as contractors operating in war zones, providing services that would have been handled by troops in the absence of an all-volunteer force, they rate immunity from lawsuits.

“KBR was performing delegated functions, battlefield waste and water services, that the military itself was also performing, using the same methods at the same time, for which the United States was immune,” counsel Robert Matthews said in his argument to the 4th Circuit Court of Appeals.

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