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McManaway v. KBR, Inc.

United States Court of Appeals, Fifth Circuit

March 27, 2017

MARK MCMANAWAY; DAVID RANCOURT; BRENT LASHER; JODY AISTROP; WILLIAM BICKELL, et al, Plaintiffs - Appellants
v.
KBR, INCORPORATED; KELLOGG BROWN & ROOT SERVICES, INCORPORATED; KBR TECHNICAL SERVICES, INCORPORATED; OVERSEAS ADMINISTRATION SERVICES, INCORPORATED; SERVICE EMPLOYEES INTERNATIONAL, INCORPORATED; HALLIBURTON COMPANY; HALLIBURTON ENERGY SERVICES, INCORPORATED, Defendants-Appellees ROCKY BIXBY; LAWRENCE ROBERTA; SCOTT ASHBY; CHARLES ELLIS; MATTHEW HADLEY, et al, Plaintiffs - Appellants
v.
KBR, INCORPORATED; KELLOGG BROWN & ROOT SERVICES, INCORPORATED; KBR TECHNICAL SERVICES, INCORPORATED; OVERSEAS ADMINISTRATION SERVICES, INCORPORATED; SERVICE EMPLOYEES INTERNATIONAL, INCORPORATED, Defendants-Appellees

         Appeal from the United States District Court for the Southern District of Texas

          Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.

          JAMES L. DENNIS, Circuit Judge:

         This toxic tort case presents the question of whether Plaintiffs' injuries were caused by the alleged hexavalent chromium contamination at an industrial water injection facility in Iraq. Plaintiffs are former American and British soldiers who were assigned to protect employees at the facility. Defendants, KBR, Incorporated and affiliated entities (KBR), [1] were tasked with restoring the facility. Plaintiffs claim that KBR did not responsibly handle the contamination at the facility, leading Plaintiffs to suffer injuries stemming from hexavalent chromium exposure. The district court granted KBR's motion for summary judgment dismissing Plaintiffs' claims because of their inability to prove that hexavalent chromium caused their injuries. On appeal, Plaintiffs argue that they adduced sufficient evidence of causation to survive summary judgment. KBR argues that resolution of this case necessarily calls into question non-justiciable military decisions and that Plaintiffs' claims are therefore barred by the political question doctrine. For the reasons discussed below, we conclude that Plaintiffs' claims are justiciable, but we AFFIRM the district court's summary judgment.[2]

         I

         In March 2003, the United States Army Corps of Engineers (USACE) hired KBR to help restore Iraq's oil infrastructure following the United States' invasion as part of Project Restore Iraqi Oil (Project RIO). Pursuant to Task Order 3 (part of KBR's contract with USACE) KBR was to begin work on a facility after USACE determined conditions were "benign." Benign conditions meant, among other things, that the site was "cleared of all enemy forces" and "environmental hazards" including nuclear, biological, chemical, and industrial hazards. USACE did not perform an environmental assessment of Qarmat Ali, a water injection facility that KBR was tasked with restoring, and it is unclear whether USACE declared conditions there benign. Nonetheless, USACE (specifically, Task Force RIO) authorized KBR to start work at Qarmat Ali on May 13, 2003, and KBR began work later that month. Plaintiffs are current or former members of the Army National Guard or the British Royal Airforce who provided military protection for KBR at Qarmat Ali.

         The company that operated Qarmat Ali prior to KBR's arrival onsite used sodium dichromate, an anti-corrosive agent and hexavalent chromium compound, when injecting water into oil reservoirs for the purpose of forcing oil to the surface. The use of sodium dichromate at Qarmat Ali, particularly the improper storage of the substance, led to air and soil contamination. Plaintiffs contend that they suffered injuries as a result of their exposure to sodium dichromate, a known carcinogen and irritant, while working at Qarmat Ali.

         In the district court, Plaintiffs adduced evidence that they were exposed to sodium dichromate. For example, they submitted a Royal Airforce report concluding that "operational activity would suggest" that soldiers working at Qarmat Ali were exposed to sodium dichromate, although the extent of the exposure could not "be satisfactorily quantified." Plaintiffs also submitted a 2008 National Guard memorandum concluding that soldiers at Qarmat Ali "had a high potential for direct exposure, " and an October 2003 report from the Army Center for Health Promotion and Preventive Medicine, concluding that before containment of the chemical, "chromium concentrations exceeded (military) health risk screening values, " and exposure "[p]robably occurred to some degree prior to containment." Moreover, August 2003 urine and blood sampling of twenty-seven KBR employees who worked at Qarmat Ali showed that four of the tested employees had higher-than-normal levels of chromium in their urine and twenty-three of the tested employees had higher-than-normal levels of chromium in their blood.

         Plaintiffs contend that exposure to sodium dichromate was deleterious to their health, both during and after their service at Qarmat Ali. Plaintiff Jody Aistrop observed that "[e]verybody" in his company complained of nosebleeds and rashes and that he experienced such symptoms, as well as gastrointestinal distress. Plaintiff Russell Powell, a medic, observed that he and other soldiers experienced "intense" gastrointestinal problems. Plaintiff Russell Kimberling developed headaches, respiratory problems, diarrhea, skin rashes, and a septal hole. In 2009, Lieutenant Colonel James Gentry died of lung cancer. The Army deemed his death to be "In Line of Duty for Exposure to Sodium Dichromate between June - September 2003."

         In 2010, a group of plaintiffs filed suit in the Southern District of Texas, [3]alleging negligence, gross negligence, fraud, and intentional infliction of emotional distress. Plaintiffs claimed that KBR was aware of the sodium dichromate contamination at Qarmat Ali and failed to take appropriate steps to reduce the risk of harm to the soldiers, to inform the U.S. or British military, or to warn the soldiers who were exposed to the contamination. Plaintiffs claimed that KBR's tortious actions caused them to suffer, among other ailments, nose bleeds, skin lesions, physical pain, emotional distress, and death.

         In the district court, KBR filed a motion to dismiss on the grounds that the case presented a non-justiciable political question and that Plaintiffs' claims were preempted by federal common law. The court denied this motion.[4]KBR also moved for summary judgment claiming, inter alia, that Plaintiffs could not establish that sodium dichromate caused their injuries. The court granted KBR's motion for summary judgment, dismissing Plaintiffs' claims on causation grounds and, separately, granted KBR's motion for summary judgment, dismissing individual plaintiff Lieutenant Colonel James Gentry's claims on similar grounds. The court entered judgment in favor of KBR. Plaintiffs timely appealed.[5]

         II

         We review a district court's summary judgment decision de novo. Davis v. Fernandez, 798 F.3d 290, 292 (5th Cir. 2015). Summary judgment is appropriate if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When reviewing a summary judgment decision, we view all facts in the light most favorable to the non-moving party. See Tolan v. Cotton, 134 S.Ct. 1861, 1863 (2014). It is not the role of the court to make credibility determinations, or to weigh evidence when ruling on a motion for summary judgment. See Anderson, 477 U.S. at 255. However, in reviewing expert opinion evidence, "we look to the basis of the expert's opinion, and not the bare opinion alone." Wackman v. Rubsamen, 602 F.3d 391, 400 (5th Cir. 2010) (quoting Guile v. United States, 422 F.3d 221, 227 (5th Cir. 2005)). "A claim cannot stand or fall on the mere ipse dixit of a credentialed witness." Guile, 422 F.3d at 227 (quoting Archer v. Warren, 118 S.W.3d 779, 782 (Tex. App. 2003)).

         III

         Before we discuss the merits of the Plaintiffs' arguments on appeal, we must address a possible jurisdictional bar to our review of this case: the political question doctrine. See Spectrum Stores, Inc. v. Citgo Petroleum Corp., 632 F.3d 938, 943 (5th Cir. 2011); see also ...


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