Yesterday Doyle Raizner LLP, the legal team for the Indiana National Guardsmen, whose claims against KBR were recently dismissed in Indiana federal court, refiled for the Guardsmen in Houston federal court.
The suit alleges that KBR knowingly allowed exposure to the toxic chemical sodium dichromate. This chemical, sometimes called hexavalent chromium, was widely present as an orange-colored dust that soldiers assigned to guard the Qarmat Ali water treatment plant in southern Iraq could not avoid inhaling. Sodium dichromate or hexavalent chromium is a powerful carcinogen known to cause lung, nasal and other cancers, other severe respiratory problems and other medical problems. If
Here are some excerpts from the 32-page lawsuit...
FACTUAL OVERVIEW OF THE CASE
1.1 KBR, a private company, and its operating subsidiaries (including Cayman Island subsidiaries set up by KBR for various purposes described further below), received billions of dollars worth of no-bid contracts for work in Iraq in 2003. This lawsuit arises from one of the projects KBR was charged with safely completing -- a project involving the restoration of the Qarmat Ali water plant in southern Iraq so the facility could resume pumping water into the Iraqi oil wells for more consistent oil flow. After major combat operations ceased in southern Iraq, KBR, a self-proclaimed expert in overseas infrastructure projects, was paid by the United States government to get the Qarmat Ali water treatment plant back online. The project necessarily required KBR to take ordinary and necessary safety precautions to protect those working at the site, including proper surveys of the site before and as work progressed. KBR was incentivized to get Qarmat Ali back online as quickly as possible without interruptions because it received not only base contract payments but also retrospective "award" payments for expeditious completion of the project.
1.2 Instead of doing what KBR promised and was paid to do for the Qarmat Ali project, KBR managers based in Kuwait City; Houston, Texas; Alexandria, Virginia; and elsewhere disregarded and downplayed the extreme danger of wholesale site contamination by sodium dichromate, a toxic chemical used at the site as an anti-corrosive and containing nearly pure hexavalent chromium. KBR managers knew about both the site contamination and the extreme danger of hexavalent chromium.
What these knowing acts and omissions meant to the Tell City, Indiana Guardsmen providing security for the actual work at Qarmat Ali, along with the British troops and the American civilians actually carrying on the work at Qarmat Ali, was months and months of unprotected, unknowing, direct exposure to one of the most potent carcinogens and mutagenic substances known to man: hexavalent chromium. When the Tell City, Indiana Guardsmen and American civilians actually working at Qarmat Ali began experiencing the most characteristic symptom of acute hexavalent chromium poisoning, nasal excoriation (bleeding from the nose) known to toxicologists as "chrome nose," KBR managers told men onsite that their symptoms were simply an effect of the "dry desert air" and they must be "allergic to sand." The Tell City, Indiana Guardsmen were repeatedly told that there was no danger on site, even after KBR managers knew that blood testing of American civilians exposed onsite confirmed elevated chromium levels. What was not revealed until Congressional Hearings in June 2008 was the extent of knowledge of KBR managers about the danger onsite and the ongoing concealment of the exposures to the Tell City Guardsmen and others.
On the classic question of what did they know and when did they know it:
There is no doubt that KBR's managers knew before the Tell City, Indiana Guardsmen ever arrived at Qarmat Ali about the dangerous sodium dichromate contamination at the site. According to the sworn statement of KBR's southern Iraq Health Safety Environment (HSE) manager Johnny Morney:
Q. How did you learn Sodium -
A. Jake Duhan was making a round as a safety professional. He made a round and he observed this.
Q. Mr. Duhan -
Q. -- this observation that was conveyed to you -
Q. -- in May 2003 -
Q. -- how was it conveyed to you in May 2003? In what manner? Did
you get a memo, did you get a email?
A. In a conversation. He came in and it was in his daily report and we had a discussion, which was a requirement of all our HSE coordinators...
THIRD CAUSE OF ACTION - FRAUD
7.1 The Tell City, Indiana Guardsmen re-allege and incorporate each allegation contained in Paragraphs 1 to 6.2 of this Complaint as if fully set forth herein.
7.2 KBR was in contact with the United States Army regarding the dangers present at Qarmat Ali and materially misrepresented those dangers to the United States Army by denying any knowledge of site contamination until July 2003, failing to inform the United States Army of the dangers at Qarmat Ali while the Army was of the understanding that such dangers would be conveyed, and otherwise concealing evidence of sodium dichromate exposure even though KBR managers were aware of the sodium dichromate contamination in May 2003 and the dangers associated therewith.
7.3 The Tell City, Indiana Guardsmen were exposed to sodium dichromate despite the afore-referenced representations from KBR officials that falsely conveyed the impression and explicit understanding that Qarmat Ali was safe.
7.4 KBR had reason to expect and was substantially certain that its representations would be directly and indirectly communicated to the Tell City Guardsmen and that these misrepresentations would substantially increase the danger to the Tell City, Indiana Guardsmen by allaying any fears that they or the United States Army might have had about their exposure to such a potent carcinogen.
7.5 Had KBR not made these misrepresentations, actions would have been undertaken to protect the Tell City, Indiana Guardsmen from the sodium dichromate contamination and/or to otherwise remove this threat to the Tell City, Indiana Guardsmen.
7.6 The Tell City, Indiana Guardsmen suffered significant physical pain and mental anguish as a result of KBR's above-discussed conduct and misrepresentations.
7.7 KBR intended to deceive the United States Army, and ultimately the Tell City, Indiana Guardsmen, because as KBR knew, significant delays would have been incurred in order to neutralize the danger posed by sodium dichromate contamination at the site.
Delay would have interfered with KBR's "award payments" for timely brining Qarmat Ali back on line.
7.8 As demonstrated by KBR spokeswoman Heather Barnes while commenting on KBR's actions at Qarmat Ali, KBR publically holds itself out as having a commitment to the servicemen and women and publicly states that this commitment has always been KBR's "top priority."
7.9 KBR's public proclamations regarding its commitment to military servicemen and women render its above and below-listed conduct more extreme and outrageous because this ongoing public representation created the expectation among the United States Army and those who serve therein that, if KBR were aware of a significant danger to the Tell City, Indiana Guardsmen, KBR would not fail to inform the United States Army of the danger and would otherwise take the appropriate action to remove the danger.
7.10 KBR's actions constitute fraud and constructive fraud, and the Tell City, Indiana Guardsmen are entitled to recover all damages sustained as a result thereof.