Toxic dust exposure leads to litigation

Indianapolis attorney Gabe Hawkins has already attended the funerals of three former clients, and he hopes that he won’t have to see a fourth before finally being able to say that the courtroom battle they’ve been waging for years has paid off.

The 35-year old attorney at Cohen & Malad is on the legal team for dozens of Indiana National Guard members who allege they were exposed to a toxic chemical while working for a war contractor in Iraq, and his legal work is influencing a multi-state line of litigation with plaintiffs living from Oregon to West Virginia and Indiana to Texas.

Describing himself as an attorney with an eye for complex and creative lawyering, Hawkins says the case is right up his alley because it involves novel legal concepts, political intrigue, and international travel. But for the attorney who’s the same age as many of his clients, the most important aspect of this litigation goes beyond the courtroom.

“This is about getting these men who’ve served our country the help they need. I’ve been to three funerals, and my goal is to not see a fourth during this litigation,” Hawkins said.

Exposed

The litigation involves about 140 soldiers, with most of the 47 named plaintiffs in the suit serving with a Tell City unit sent to Iraq with the Indiana National Guard’s 1st Battalion, 152nd Infantry Regiment. Beginning in May 2003, the unit provided security for KBR employees charged with rebuilding the Basra-based Qarmat Ali water-treatment plant, a key step in restoring oil production for the area.

At that site, the soldiers were exposed to an orange, sand-like dust that covered much of the ground and equipment and filled the air during windstorms. It was sodium dichromate, an industrial chemical normally used to remove pipe corrosion that contains heavy doses of a dangerous carcinogen.
 

Since returning, some of the Indiana soldiers have developed rashes, bloody noses, severe respiratory problems and other health issues. Three men have died.

The extent of the toxic exposure came to light in 2008, when the U.S. Senate held hearings on the issue and the U.S. Army began an investigation. Then-Indiana Sen. Evan Bayh requested a U.S. Army investigation, and that led to a widespread effort to notify the ex-guardsmen who had been to the Basra plant and encouraged them to visit the nearest Veterans Affairs hospital.

For former soldier Sam Schultz from southern Indiana, word came in 2008 with a notice from the Army warning the guardsman about the reported exposure. He started serving in 1996, and after the Sept. 11 attacks and the Iraq war began, Schultz ended up as a non-commissioned officer with a crew of five men guarding KBR officials at Qarmat Ali. They were told the symptoms they were experiencing on the site were a result of the desert air.

Schultz had experienced nose bleeds, sinus infections, serious headaches, and gastrointestinal and respiratory problems when he received a certified letter from the National Guard notifying him of the potential exposure.

“We’d been told this was possible hundreds of times before, but that was the first time I took it seriously,” he said. “You have to be damaged pretty badly for them to send that kind of notice. I had these symptoms in Iraq, but they were getting worse.”

Litigation

Sixteen members of the Indiana Guard sued in December 2008, filing a suit in the Southern District of Indiana’s Evansville division that eventually expanded to include 47 plaintiffs and represents more than 140 who were exposed.

In their suit, the guardsmen allege that the war contractor “disregarded and downplayed” the fact that the site at Qarmat Ali was coated with the hazardous chemical sodium dichromate. KBR has said in court filings that it was carrying out the duties in its contract, and that the U.S. Army Corps of Engineers was obligated to provide it with an environmentally safe area for its work.

The defense briefs touch on a trio of legal theories – from the political question doctrine, sovereign immunity, and military-focused war-time doctrine that basically don’t allow for the plaintiffs’ claims to triumph.

In his brief writing and legal theory creation for the cases, Hawkins has been playing a pivotal role in crafting some of the more novel aspects of the litigation. A main point was the question of personal jurisdiction, focusing on where the litigation should be heard, and the argument was that KBR knew the dangers would hit the guardsmen’s health after they came back to their home states.

“The theory is that the exposure would be taken back with them like a ticking time bomb, to Indiana or Oregon or where they might be from,” Hawkins said. “This is a novel legal theory that really hadn’t been made before. Specific jurisdiction has been expanding for 40 years in this direction, and so I thought this concept fell into that context perfectly.”

Essentially, the theory used argued that KBR intentionally committed the tortious actions, those acts were expressly aimed at the forum state, and that caused harm to the plaintiffs in the forum state because the defendant knew the injury was likely to be suffered.

Chief Judge Richard Young in the Southern District of Indiana didn’t buy that argument, ruling against the Indiana plaintiffs in February 2010 and determining the court lacked personal jurisdiction because the Texas-based KBR didn’t have an adequate business footprint in Indiana.

“This argument is simply too tenuous to support a finding that Defendants expressly targeted the state of Indiana,” the judge wrote. “While the effects of that injury may ultimately be felt by Plaintiffs in Indiana (or any other state in which they reside), the tort does not relocate from Iraq to Indiana.”

He dismissed the Indiana case and allowed it to be re-filed in Texas, which happened in 2010.

But while he lost that contention in Indiana, Hawkins noted that the identical personal jurisdiction argument prevailed in the Oregon case. Less than two months after Chief Judge Young’s ruling in Indiana, the opposite holding came from U.S. Magistrate Judge Paul Papak in the District of Oregon. He denied KBR’s motion to dismiss the suit, and found that Oregon would be the most convenient place for the litigation because essentially all of the plaintiffs were located there. That 2009 case includes 26 Oregon National Guard veterans as named plaintiffs.

“Sometimes, it just depends on the judge and how well-recognized a legal theory is,” said Mike Doyle, the Texas litigator who is lead counsel on the cases. “In the 7th Circuit, it hasn’t been argued or applied as often as it has in Oregon, where you were looking at a similar law but the judge found it applicable.”

The discovery is ongoing in both suits. The lawyers say the Oregon case is set for trial next June, while the Texas litigation is about a year from trial.

Outside the courtroom

In the past year, Hawkins has been working with Congress to get more assistance and response from VA hospitals that his clients visit. The lawyer said that in many places, the medical staff at these facilities hasn’t seemed to take the veterans’ care seriously, often rescheduling appointments repeatedly or not examining all the symptoms to actually give the National Guard members a real diagnosis.

Schultz, who visits a VA hospital in Louisville, said at times when he has described symptoms, the VA nurse practitioner has looked at him like he was crazy. He was once asked him about any history of mental illness and questioned about his sanity when he described his symptoms possibly being related to his time in Iraq.

“The VA has gotten better recently, thanks to Gabe, but still a lot has to be improved,” he said.

“I just can’t stop thinking that had you rattled a chain a little more, maybe they could have gotten better medical care and you could have prevented some of these deaths,” Hawkins said. “I say: forget the litigation. One of the watershed moments of this case for me, personally, has been seeing them getting the care they need.”

For Schultz and the other ex-guardsmen, it’s not about getting KBR to pay for their medical care. It’s about the company being accountable for not taking safety measures to prevent this from happening and for providing some assurance to those who served.

“Based on my medical condition, I may or may not have long to live,” Schultz, the 35-year-old father of three young children, said. “Nothing is guaranteed right now, and I want assurances that my family will be taken care of.”•