Soldiers’ lawsuit dismissed

WHEELING - Citing jurisdictional concerns, U.S. District Judge Frederick P. Stamp Jr. has dismissed two separate lawsuits filed by 47 National Guard members who allege they were exposed to toxic chemicals while in Iraq.

The soldiers, most of whom were members of the 1092nd Engineering Battalion of the West Virginia National Guard headquartered in Moundsville, filed the lawsuits last year against Kellogg Brown and Root Services Inc. and KBR Technical Services.

Weirton attorney Michael Simon served as counsel on one of the two lawsuits, while Moundsville attorney Jeff Kessler served as counsel on the other. Kessler initially filed his lawsuit in Marshall County Circuit Court; the case later was moved to district court in Wheeling.

The soldiers allege in the lawsuits that they were exposed to sodium dichromate in spring 2003 while stationed at the Qarmat Ali water plant in Iraq. U.S. troops provided security for those working to restore operations at the plant.

Sodium dichromate is a toxic chemical that was used at the site as an anti-corrosive agent. It contains nearly pure hexavalent chromium, a highly potent carcinogen and mutagenic substance. Hexavalent chromium is the same chemical linked to poisonings in California in a case made famous in the movie "Erin Brockovich."

The lawsuits suggest the defendants knew or should have known about both contamination at the site and the dangers of exposure to hexavalent chromium. It also asserts the companies concealed facts about the dangers of the contamination and exposure to the toxic substance at the water plant.

Stamp's rulings, entered late Thursday, did not address the lawsuits' specific allegations but instead noted West Virginia is not the appropriate venue in which to try the cases.

"The plaintiffs argue that the defendants knew that the plaintiffs were from West Virginia and would presumably return to West Virginia. The plaintiffs believe that because their alleged diseases manifested in West Virginia, that defendants directed their conduct into West Virginia and West Virginia is the focal point of the harm. The plaintiffs provide no support for their contention. In this case, the alleged injury occurred in Iraq. The tort does not relocate to wherever any of these plaintiffs choose to reside, even though the effects of the alleged injury may be felt there," Stamp wrote in his ruling.

"... This court concludes that West Virginia is not the focal point of the tortuous activity."

A federal lawsuit filed by Indiana soldiers who provided security at Qarmat Ali suffered a similar outcome, as the judge there ruled Indiana was not the proper venue to hear the case. The soldiers from the Indiana lawsuit have joined a similar federal lawsuit with other soldiers in Texas who allege they were exposed to sodium dichromate at Qarmat Ali. KBR is headquartered in Texas.

"Judge Stamp has ruled that the National Guardsmen cannot get jurisdiction against KBR in West Virginia," said Wheeling attorney William Wilmoth, who represents KBR in the case. "He granted our motions (to dismiss) in both of the cases."

Kessler said Friday that he still believes West Virginia is the proper venue for the lawsuits, but now that Stamp has ruled to the contrary, a decision will be made as to appealing the ruling to the 4th Circuit Court of Appeals or consolidating the case with the Texas lawsuit.

"What we will not do is let the issue go away," Kessler said. "These soldiers were injured, they were hurt, they suffered, and they are experiencing ongoing health effects, in our view, to their exposure to sodium dichromate while they were serving our country. We further continue to believe that KBR is responsible for this exposure."

Simon did not immediately return phone messages left at his office on Friday.