A recent lawsuit brought by a group of Indiana National Guardsman spotlights a controversial legal doctrine that prevents soldiers on active duty from seeking compensation for injuries sustained in war zones.
The guardsman allege that a mission to help clean up a water treatment plant in southern Iraq left them with what they say are potentially fatal illnesses.
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In a lawsuit filed in federal court in Indiana, the Guardsmen allege that oil company KBR Inc. “disregarded and downplayed” the fact that the site at Qarmat Ali was coated with the hazardous chemical sodium dichromate. They were exposed, they say, to the chemical that is used as an industrial anti-corrosive agent to protect pipes.
As a result, the soldiers suffered “unprotected, unknowing, direct exposure to one of the most potent carcinogens and mutagenic substances known to man,” alleges the suit, which seeks monetary compensation for health problems the soldiers say they have suffered.
KBR has said in court filings that it was carrying out the duties in its contract. It says the U.S. Army Corps of Engineers was obligated to provide it with an environmentally safe area for its work. Besides, the company says, Army medical tests have shown no soldiers were harmed. The company also says that once the chemical was discovered, the company worked to make the area safe.
The suit and similar ones filed separately against KBR highlight the challenges of soldiers seeking compensation from the courts for war-zone incidents. A U.S. Supreme Court ruling known as the “Feres doctrine” bars soldiers in active duty from filing suits against the federal government. The military gives soldiers free medical treatment and stipends in some instances, the reasoning goes, so they are duly compensated for whatever befalls them on the battlefield.
Many of the suits that stem from actions on the battlefield are directed at third parties, specifically contractors whom the military increasingly rely on. But contractors too are immune from suits if they can successfully prove they have lived up to the specifications in their government contracts.
As a general rule, third parties have been successful in warding off big rewards from battlefield litigation. For instance, U.S. soldiers in the Vietnam War who said they suffered from symptoms related to the usage of Agent Orange, a toxic defoliant the military used in the war, sued the chemical companies that manufactured it. Suits seeking-class action status were first filed in the late 1970s and settled after about six years of legal wrangling. Under the settlement, only a handful of litigants were eligible for relatively meager compensation.
In 2004, an airplane operated by Presidential Airways Inc., a private contractor, crashed into a mountainside in Afghanistan, killing its occupants, which included U.S. soldiers. A lawsuit by the families of the dead soldiers alleges pilot error is to blame.
The suit, pending in federal court in Florida, has been tied up for nearly four years in legal wrangling as defense attorneys argue that Presidential, carrying out its government contract, is immune from litigation.
Galen Bauer, representing the families suing Presidential, said that if the airplane passengers had been civilians, the case would be straightforward and would likely result in big rewards for his clients.
In the case of the Indiana National Guardsmen, “We are going to vigorously defend ourselves,” says KBR’s general counsel, Andrew Farley.
The suit says that more than half of the workers at the Qarmat Ali site reported symptoms of acute poisoning by the beginning of August 2003, yet the work went on for another month. KBR managers inspected the site that summer, the suit alleges, and they wore protective suits, though the soldiers had none.
When the Guardsman started having bloody noses, which the suit says are telltale symptoms of exposure to the chemical, KBR managers told them it was an effect of the “dry desert air,” and that they must be “allergic to sand,” according to the suit.
Contractors and lawyers who represent KBR say the suits scapegoat the company when it was merely carrying out what the military instructed. By carrying out duties assigned by the military, KBR should enjoy the same legal protections, they say.
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