Ruling Revives KBR Case

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Forum Spin Doctor
Houston Chronicle
May 30, 2008 Court sees way lawsuits over workers' deaths could be resolved
By Brett Clanton and David Ivanovich
An appeals court has handed a federal court judge in Houston a possible road map for dealing with lawsuits brought on behalf of KBR truck drivers wounded or killed in a bloody ambush in Iraq four years ago.
In a ruling Wednesday, the 5th U.S. Circuit Court of Appeals in New Orleans said it may be possible to resolve the lawsuits without making a "constitutionally impermissible review of wartime decision-making."
The appeals court decision overturns a 2006 ruling by U.S. District Court Judge Gray Miller in Houston. He decided the courts lacked the authority to second-guess military decisions in a war zone.
But the appeals court ruled the plaintiffs had presented "a plausible set of facts" that might allow them to pursue their claims that KBR misled applicants when it told them they would be safe while working for the company in the Middle East "without questioning the Army's role."
The suits accuse KBR and its former parent company, Halliburton, of knowingly sending a convoy into a dangerous area where it was attacked on April 9, 2004. Six truck drivers died in what has been called the Good Friday massacre, a seventh is missing and presumed dead, and 15 were wounded.
Now the cases will land again in Miller's court, where they are expected to get a fuller airing, a prospect plaintiffs' attorneys say is favorable.
"I am extremely confident — to a 100 percent degree — that I will be able to, following the court's ruling, prove my case beyond any doubt against Halliburton and KBR," said T. Scott Allen, a Houston lawyer who represents most of the 19 truck drivers and family members who have filed suit against KBR and Halliburton.
KBR is the Pentagon's largest contractor serving in Iraq. The truck drivers caught in the ambush were delivering fuel under a contract in which KBR provided a host of logistical support services for U.S. troops, from building bases to serving up meals.
KBR spokeswoman Heather Browne declined to comment on the appeals court ruling, saying the company was still reviewing the decision.
But, she said, the "company's top priority remains the safety and security of all employees."
Halliburton also declined to comment, saying the lawsuit is a matter for its former subsidiary KBR to resolve.
"Although Halliburton is named in the lawsuit, the activity involved was pursuant to a KBR contract," Halliburton spokeswoman Melissa Norcross said. "Defense of this lawsuit is KBR's responsibility."
In April 2007, Halliburton completed a spinoff of KBR to focus on its more profitable oil field services business.
Since then, Halliburton has sought to distance itself from its former unit, saying it never had contracts to provide services to the U.S. government and that contracts always were in KBR's name.
The appeals court, in its opinion, noted that KBR has said that if the case goes to trial, "KBR would make the case that plaintiffs' injuries were not caused by KBR's actions or inactions but by the insurgents' attack and the Army's failure to provide adequate protection of the convoy."
But plaintiffs' attorneys have argued that it was KBR's decision alone to send workers into harm's way.
"They knew it was under active enemy combat and was off-limits to civilians," Allen said.
The plaintiffs' attorneys contend Judge Miller dismissed the cases prematurely.
"The judge didn't even give us a chance," said Tobias Cole, a Houston attorney representing Kevin Smith-Idol, a KBR contractor shot in the knee and hip during the attack.
To this point, KBR has been able to shield its executives from giving depositions about the incident and persuaded the 5th Circuit to hold a rare closed-door hearing in January, citing national security concerns.
But the ruling Wednesday by a three-judge panel of the court effectively allows plaintiffs' lawyer to depose KBR officials and present previously unheard evidence about what went wrong that day in April 2004.
"My sense is that this is KBR's worst nightmare," said Tommy Fibich, a Houston lawyer representing Reginald Lane, a worker who lost an arm and suffered brain damage in the Iraq attack.
The families of KBR truck drivers killed and injured in Iraq are seeking $300 million in damages.
In its ruling, the appeals court cautioned that the cases may reach an impasse again on the question of whether it is the court's place to second-guess battlefield decisions.
"It appears, though, that these tort-based claims of civilian employees against their civilian employers can be separated from the political questions that loom so large in the background," the appeals court said.
 
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