The Third Circuit has reinstated a wrongful death action against military contractor Kellogg, Brown & Root (KBR), ruling that the plaintiffs’ claims are not barred by the political question doctrine and are not preempted by the Federal Tort Claims Act’s (FTCA) combatant activities exception, which extends sovereign immunity protection to government contractors working in military combat zones. This decision has been hailed as a victory for plaintiffs as they battle against defense contractors in negligence cases. (Harris v. Kellogg Brown & Root Servs., Inc., 2013 WL 3942391 (3d Cir. Aug. 1, 2013).)
In 2008, Staff Sergeant Ryan Maseth was electrocuted while showering at his barracks on the Radwaniyah Palace Complex U.S. Army base in Iraq. After Maseth died, his parents and estate sued KBR in federal district court in Pennsylvania, alleging that KBR was negligent in the electrical work performed at the base because it failed to ground and bond the water pump either during installation or maintenance work in response to complaints of electrified water in the barracks.
The Houston-based contractor moved to dismiss, arguing that the case is barred under the political question doctrine—which prevents courts from ruling on issues of a purely political nature—and that the plaintiffs’ claims are preempted under the FTCA’s combatant activities exception. The trial court denied the motion, and KBR appealed. The Third Circuit dismissed for lack of appellate jurisdiction and remanded. Discovery proceeded, and KBR renewed its motion to dismiss. Last August, the trial court found KBR’s arguments persuasive, holding that the case was nonjusticiable because of the political question doctrine, and alternatively, that the plaintiffs’ claims were preempted, as Trial News previously reported. The plaintiffs appealed.
First, the Third Circuit reviewed the political question doctrine. Judge D. Brooks Smith, writing for the 2-1 majority, concluded that KBR’s contracts with the military concerning the water pump gave the contractor considerable discretion over how to complete its work, which “does not introduce an unreviewable military decision into the case.”
However, Smith said that depending on which state law applies, the claims may still be barred if proving the claims or defenses requires evaluating military decisions. While the plaintiffs’ liability theories—negligent installation and maintenance—do not implicate military decisions, KBR’s proximate cause and contributory negligence defenses may require evaluating military decisions. The trial court has not ruled whether Pennsylvania, Tennessee, or Texas law applies.
Turning to the combatant activities exception, the court adopted a two-pronged test to determine whether the case merited dismissal: whether the contractor is integrated into the military’s combatant activities and whether the contractor’s actions were the result of the military’s retention of command authority. The plaintiffs argued that electrical maintenance was not a combatant activity. The court disagreed, holding that such a view was too narrow, so the defendant satisfied the first prong. But the court held that KBR did not satisfy the second requirement because it had considerable discretion over the water pump’s installation and maintenance.
Pittsburgh lawyer William Stickman, who represents the plaintiffs, said the decision may benefit other plaintiffs. “It eviscerates the ability of KBR in other cases, and even other contractors, to claim that because they are operating under a contract with the U.S. government and the military, their actions necessarily would require an examination of military actions, which would be nonjusticiable,” he said. “The Third Circuit decision provides a good road map for these cases.”
KBR may either ask the Third Circuit to rehear the case en banc or appeal to the Supreme Court. In the meantime, it is engaged in appeals in toxic exposure cases in other circuits.
More than 200 plaintiffs in 42 states allege that military personnel became ill from toxic emissions and contaminated water from the burning waste in pits that KBR operated in Iraq and Afghanistan. In February, Judge Roger Titus tossed out the 57 consolidated lawsuits, and the plaintiffs appealed. (In re KBR, Inc., Burn Pit Litig., No. 13-1430 (4th Cir. filed Apr. 2, 2013).)
Earlier this year, a federal judge upheld an $81 million award to 12 Oregon National Guardsmen following a jury verdict against KBR for toxic exposure at the Qarmat Ali water treatment plant in Iraq in 2003, as Trial News reported. KBR has appealed. (Bixby v. KBR, Inc., No. 13-35513 (9th Cir. filed June 11, 2013).)
Stickman said the most troubling aspect of all these cases is KBR’s political question argument. “Really, what KBR has been advocating for is a reduced role of the judiciary. Any question, no matter how mundane, is out of the reach of the judiciary,” he said. “KBR should not be able to shroud itself under the government’s sovereign immunity protection, and these cases present nothing more than common law negligence principles.”