PORTLAND, Ore. - (Mealey's) The Iraq War contractors accused by Oregon National Guard members in the U.S. District Court for the District of Oregon of exposing them to hexavalent chromium during a Restore Iraqi Oil mission were found liable by a jury under the theory of negligence but not fraud Nov. 2 in the 19th day of a bellwether trial; each of the 12 test plaintiffs was awarded $850,000 in compensatory damages and $6.25 million in punitive damages (Rocky Bixby, et al. v. KBR, Inc., et al., No. 09-632, D. Ore.).
(Verdict form available. Document #15-121106-090V.)
Rocky Bixby, a staff sergeant in Charlie Company of the Oregon National Guard, is the lead plaintiff among 34 guard members alleging claims against KBR Inc. and its subsidiaries, KBR Technical Services Inc., Kellogg, Brown & Root Services Inc., Overseas Administration Services Ltd. and Services Employees International Inc.
The guard members provided security at Qarmat Ali while the companies worked under contract to the U.S. Army Corps of Engineers to repair a pumping station, which injected water to extract crude oil from wells in Iraq. The initiative is known as Restore Iraqi Oil (RIO), and Task Order 3 delineates the contractors' duties, according to the record.
Claims against Halliburton Co. and Halliburton Energy Services were dismissed with prejudice on July 28 for lack of jurisdiction.
In the fifth amended complaint, the guard members seek to recover under theories of negligence and fraud, according to the record. The guard members allege that they were exposed to sodium dichromate while they were stationed at Qarmat Ali in May 2003 through September 2003. As a result of the exposure, the guard members allege, they have hexavalent chromium poisoning.
Magistrate Judge Paul Papak presided over the trial. The jury was selected Oct. 9. The parties gave opening statements on Oct. 10, and the guard members began presenting their case. The plaintiffs completed their case on Oct. 24, according to the record. The defendants began presenting their case on Oct. 25.
Magistrate Judge Papak instructed the jury on Oct. 30, the 16th day of the trial. In the definitions portion of the instructions, he said "plaintiffs" means Jason Arnold, Rocky Bixby, Ronald Bjerklund, Colt Campredon, Charles Ellis, Byron Greer, Matthew Hadley, Brian Hedin, Vito Pecheco, Lawrence Roberta, Charles Seamon and Aaron St. Clair. The defendants for purposes of the jury instructions are KBR Inc. and Kellogg, Brown & Root Services, according to Magistrate Judge Papak.
The jury answered affirmatively the questions of whether each of the guard members filed his claim within the Oregon two-year statute of limitations, whether the defendants were negligent and whether the negligence was a cause of damage to the guard member.
The jury found insufficient evidence that Roberta contributed to his injuries under the theory of comparative fault.
The jury also concluded that the guard members did not show that the defendants were liable under the theory of fraud.
The jury answered affirmatively the question of whether each guard member had produced evidence of noneconomic damages and awarded each plaintiff $850,000. The jury also awarded each guard member punitive damages of $6.25 million.
Magistrate Judge Papak instructed the jury Oct. 30 on the definitions of "reasonable care," causation, foreseeability and comparative fault definitions relative to negligence. The nonparties to which comparative fault may apply include the U.S. Army and the U.S. Army Corps of Engineers, according to Magistrate Judge Papak.
The jury was instructed that the factors to find fraud are a material false representation the defendant knew to be false or recklessly made with the intention or reckless disregard of whether it was misleading that was relied upon and damaged the plaintiff as a result. Magistrate Judge Papak also provided definitions of false representation, fraudulent misrepresentation and half-truth fraudulent misrepresentation.
Regarding damages, Magistrate Judge Papak instructed that the jury may consider noneconomic and punitive damages. He defined noneconomic damages as pain, mental suffering, emotional distress and/or humiliation and inconvenience or interference with normal activities. Magistrate Judge Papak instructed the jury that it may not award noneconomic damages for an increased risk of developing cancer. The jury may award emotional distress damages based on a determination that the plaintiff experienced the distress because of the possibility of developing cancer. The jury was instructed that it may consider aggravation of a pre-existing injury but may not award noneconomic damages for the earlier injury.
To award punitive damages, the jury was instructed to consider how "reprehensible" the behavior was, the reasonability of the relationship between the amount of punitive damages and the harm and the financial condition of the defendants.
Amanda G. Halter, Jeffrey L. Raizner, Michael P. Doyle and Patrick Mason Dennis of Doyle Raizner in Houston; David F. Sugerman of David F. Sugerman Attorney in Portland; Gabriel A. Hawkins of Cohen & Malad in Indianapolis; and Stuart Bruce Esner of Esner, Chang & Ellis in Glendale, Calif., represent the guard members.
Randall Jones of Serpe, Jones and Andrews, Callender & Bell in Houston; Raymond B. Biagini, Kurt Hamrock and Lora A. Brzezynski of McKenna, Long & Aldridge in Washington, D.C.; Chanler A. Langham, Geoffrey L. Harrison, J. Hoke Peacock III and Jordan W. Conners of Susman Godfrey in Houston; and Jeffrey S. Eden of Schwabe, Williamson & Wyatt in Portland represent the KBR defendants.
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