KBR’s Bid To Nix Burn Pit Claims Punted Over Discovery

KBR’s Bid To Nix Burn Pit Claims Punted Over Discovery

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Law360, Washington (December 23, 2015, 3:47 PM ET) — A Maryland federal judge stayed KBR‘s move to ax allegations it operated a burn pit at a military base in Iraq Wednesday, calling the current accelerated discovery unfair to both sides, despite KBR’s warnings a delay would be “rewarding bad behavior” by soldiers allegedly exposed to toxic fumes.

The decision came over KBR’s complaints that the plaintiffs “blindsided” them with eight new witnesses as part of the fight over whether KBR located, constructed or operated the burn pit at Joint Base Balad, where roughly 350 plaintiffs claim they were exposed to harmful substances as part of the larger multidistrict litigation.

KBR’s attorney, Robert Matthews, called for the judge to exclude those witnesses, and claimed the plaintiffs have been playing “hide-the-ball” litigation tactics, never nailing down exactly who they would rely on.

But U.S. District Judge Roger W. Titus seized on that dispute, as well as the plaintiffs’ claims of lacking discovery as illustrative that the accelerated discovery process for the motion on the Balad base was flawed.

“I’m just not satisfied that what I have in front of me right now is sufficient to resolve the pending issue, which is the motion for summary judgment,” Judge Titus said.

The judge said he did not think he had enough evidence to decide whether the term “operate” the burn pit was limited to whether the company had a contract to operate the pit, as KBR said, or whether he could decide the company de facto operated the pit, as the soldiers contend.

“I think ‘operate,’ in the context of this case, operating a burn pit, can be a factual question that I have to address,” Judge Titus said.

Judge Titus pushed back a January hearing on KBR’s summary judgment motion, and directed both parties to work out a discovery schedule that would be more fair to both sides, and possibly roll his decision on the Balad base into a decision on the other bases included in the complaint.

Susan Burke, attorney for the plaintiffs, had asked the judge for a similar outcome, saying the additional witnesses came into the process as a result of their due diligence in the case, not a game of “hide-the-witness.”

“[KBR doesn’t] actually want to get to the facts, they don’t want to get to the issues, and they want to keep this truncated process,” Burke said.

Plaintiffs in the MDL claim KBR, in connection with a government contract, burned waste — including lithium batteries, plastic foam, paints, solvents, asbestos and other hazardous materials — in open-air burn pits on military bases in Iraq and Afghanistan without taking safety precautions. In addition, the soldiers say they were harmed by the company’s inability to properly operate water purification facilities at some military bases.

Resolving the partial summary judgment motion in KBR’s favor would end the claims of around 40 percent of the plaintiffs in the multidistrict litigation, the rest of whom have claimed injuries stemming from alleged KBR-operated pits in other bases in Iraq and Afghanistan.

Throughout the proceedings, KBR has contended that the political question doctrine bars state law tort claims against military contractors in battle zones when judging such claims would demand second-guessing “sensitive military judgments.”

A district court tossed the litigation in February 2013, along with derivative sovereign immunity, which shields contractors from tort liability for doing the same sort of work that would entitle a government agency or department to be immunized from liability. The Fourth Circuit in March revived the case, prompting KBR to petition the high court for review.

The U.S. Supreme Court declined that petition in January.

The plaintiffs are represented by Susan L. Burke of Burke PLLC and Joseph F. Rice of Motley Rice LLC.

KBR is represented by Raymond B. Biagini, Robert A. Matthews, Daniel L. Russell Jr. and Covington & Burling LLP.

The case is In re: KBR Inc. Burn Pit Litigation, case number 8:09-md-02083, in the U.S. District Court for the District of Maryland.

— Additional reporting by Jimmy Hoover. Editing by Ben Guilfoy.

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