Bixby v. KBR, Inc.

Decision Date04 September 2012
Docket NumberNo. CV 3:09–632–PK.,CV 3:09–632–PK.
Citation893 F.Supp.2d 1067
CourtU.S. District Court — District of Oregon
PartiesRocky BIXBY, Lawrence Roberta, Scott Ashby, Charles Ellis, Matthew Hadley, Jesus Bruno, Colt Campredon, Stephen Foster, Byron Greer, Kelly Hafer, Dennis Jewell, Stephen Mueller, Vito Pacheco, John Rydquist, Kevin Stanger, Ronald Bjerklund, Adanrolando Garcia, Brian Hedin, Charles Seamon, Randy Keiper, Matt Kuhnel, Dennis Rosgen, Aaron St. Clair, Kevin Wilson, Jason Blain, James Borja, Devon Fields, Leslie Ing, Richard Lawrence, Jay Louisiana, James McGowan, Donald Yeargin, and Jason Arnold, Plaintiffs, v. KBR, INC., Kellogg, Brown & Root Service, Inc., KBR Technical Services, Inc., Overseas Administration Services, Ltd., and Service Employees International, Inc., Defendants.

OPINION TEXT STARTS HERE

Amy R. Johnson, Law Offices of Amy R. Johnson, David F. Sugerman, David F. Sugerman Attorney, PC, Portland, OR, Gabriel A. Hawkins, Cohen & Malad, LLP, Indianapolis, IN, Jeffrey L. Raizner, Michael P. Doyle, Patrick Mason Dennis, Doyle Raizner, LLP, Houston, TX, for Plaintiffs.

Johnny W. Carter, Susman Godfrey L.L.P., Randall Jones, Serpe Jones Andrews Callender & Bell PLLC, Houston, TX, Raymond B. Biagini, Kurt Hamrock, Lora A. Brzezynski, McKenna Long & Aldridge LLP, Washington, DC, Andrew J. Lee, Jeffrey S. Eden, Schwabe Williamson & Wyatt, PC, Portland, OR, Chanler A. Langham, Geoffrey L. Harrison, J. Hoke Peacock, III, Susman Godfrey L.L.P., Houston, TX, Jordan W. Connors, Susman Godfrey L.L.P., Seattle, WA, for Defendants.

OPINION AND ORDER

PAUL PAPAK, United States Magistrate Judge:

Plaintiffs Rocky Bixby, Lawrence Roberta, Scott Ashby, Charles Ellis, and Matthew Hadley filed this action against defendants KBR, Inc., Kellogg, Brown & Root Service, Inc., KBR Technical Services, Inc., Overseas Administration Services, Ltd., and Service Employees International, Inc. (collectively, the KBR defendants), on June 8, 2009. On September 8, 2009, plaintiffs amended their complaint, adding Carlos Avalos, Jesus Bruno, Colt Campredon, Stephen Foster, Byron Greer, Kelly Hafer, Dennis Jewell, Stephen Mueller, Vito Pacheco, John Rydquist, and Kevin Stanger as additional plaintiffs. Plaintiffs amended their pleading a second time on February 2, 2010, adding Ronald Bjerklund, Adanrolando Garcia, Brian Hedin, Lewis Martin, and Charles Seamon as additional plaintiffs. On June 25, 2010, plaintiffs amended their complaint a third time, adding Randy Keiper, Matt Kuhnel, Dennis Rosgen, Aaron St. Clair, and Kevin Wilson as further additional plaintiffs. On October 27, 2010, plaintiffs amended their complaint a fourth time, adding Jason Blain, James Borja, Devon Fields, Leslie Ing, Richard Lawrence, Jay Louisiana, James McGowan, and Donald Yeargin as further additional plaintiffs, and adding Halliburton Company and Halliburton Energy Services, Inc. (collectively, the “Halliburton defendants), as additional defendants. Plaintiffs amended their complaint a fifth time on January 10, 2011, adding as additional plaintiffs Jason Arnold, Thomas Barella, Daniel Grover, Christopher Wangelin, and Michael O'Rielly. Plaintiffs voluntarily dismissed Barella as a plaintiff in this action on the following day, January 11, 2011, and voluntarily dismissed Grover as a plaintiff in this action on February 25, 2011. The parties stipulated to the dismissal of Avalos, Martin, and Wangelin as plaintiffs in this action, on December 16, 2011, and to the dismissal of O'Rielly as a plaintiff on April 4, 2012. In their fifth amended complaint, plaintiffs allege defendants' liability for negligence and for fraud arising out of plaintiffs' exposure to sodium dichromate and subsequent hexavalent chromium poisoning while stationed as Oregon National Guardsmen in Iraq and assigned to duty at the Qarmat Ali water plant in May–September 2003.

Throughout the course of this action, defendants have brought various jurisdictional challenges, most of which have been denied. On April 12, 2010, 2010 WL 1499455, this court denied the KBR defendants' motion to dismiss for lack of personal jurisdiction, concluding that the court may exercise specific personal jurisdiction over each of the KBR defendants on the grounds that plaintiffs had sufficiently alleged that the KBR defendants intentionally withheld information regarding the alleged sodium dichromate contamination at Qarmat Ali from the plaintiffs, whom they knew to be Oregon residents. On August 30, 2010, 2010 WL 3418340, this court denied the KBR defendants' motion to dismiss for lack of subject-matter jurisdiction. In so doing, I rejected defendants' argumentsthat the court lacks subject-matter jurisdiction by operation of the political question doctrine, the government contractor defense, or the combat activities exception the Federal Tort Claims Act. On June 16, 2011, 2011 WL 2971848, this court recommended that plaintiffs' claims be dismissed to the extent alleged against the Halliburton defendants for lack of personal jurisdiction, and on July 20, 2011, 2011 WL 2970926, Judge Hernandez adopted that recommendation as his own opinion. On August 29, 2012, 2012 WL 3776473, I denied defendants' renewed motion to dismiss for lack of subject-matter jurisdiction, again rejecting defendants' arguments regarding the political question doctrine and the combat activities exception to the Federal Tort Claims Act.

On April 4, 2012, the following twelve plaintiffs were designated as the “Group I” plaintiffs for trial set to commence on October 9, 2012: Jason Arnold, Rocky Bixby, Ronald Bjerklund, Colt Campredon, Charles Ellis, Byron Greer, Matthew Hadley, Brian Hedin, Vito Pacheco, Lawrence Roberta, Charles Seamon, and Aaron St. Clair.

Now before the court is defendants' motion for summary judgment (# 344) on plaintiffs' fraud and negligence claims. For the reasons discussed below, the motion is denied.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied,516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). In evaluating a motion for summary judgment, the district courts of the United States must draw all reasonable inferences in favor of the nonmoving party, and may neither make credibility determinations nor perform any weighing of the evidence. See, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554–55, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

FACTUAL BACKGROUND1

A brief sketch of the parties basic background facts appears below. The parties dispute virtually all other factual evidence, so that evidence is discussed where relevant to the particular claims at issue. Kellogg, Brown & Root Service, Inc. (KB & RS) entered into Contract No. DACA63–03–D–0005—known as the “Restore Iraqi Oil” or “RIO” contract—with the U.S. Army Corps of Engineers on March 8, 2003, pursuant to which KB & RS would perform tasks as ordered by the U.S. Army Corps of Engineers in connection with efforts to restore the infrastructure underlying the Iraqi oil industry.

Combat operations in Iraq began on March 19, 2003.

On March 20, 2003, the Corps of Engineers issued “Task Order 3,” which governed the services to be provided by KBR and its subsidiaries at Qarmat Ali and other facilities. Under Task Order 3, the U.S. military would declare a given worksite to be “benign” before KBR would begin operations there. In addition, the RIO contract provides that the U.S. government will indemnify KBR for any claims involving bodily injury or death arising out of KBR's provision of services under the contract.

In April 2003, the KBR defendants began operations at Qarmat Ali.

In May 2003, the Oregon National Guard was assigned to the Doha Operations Center in Kuwait. Beginning some time after May 1, 2003, the KBR defendants, or some of them, would contact the Doha Operations Center and request assistance with security issues on a regular, perhaps daily basis, in accordance with the provisions of the RIO contract and Task Order 3. On some occasions, members of the Oregon National Guard would receive security assignments to the Qarmat Ali water plant, where they were allegedly exposed to sodium dichromate, a chemical corrosion inhibitor used to treat water in oil wells, but which is also an irritant and carcinogen.

Plaintiffs are members of the Oregon National Guard allegedly exposed to sodium dichromate at Qarmat Ali in 2003 who have allegedly been harmed by their exposure.

DISCUSSION

Defendants seek summary judgment on plaintiffs' claims for fraud and negligence. Defendants argue that summary judgment is appropriate on the fraud claim because plaintiffs have failed to provide satisfactory evidence of any false representations, intent to defraud, reliance, or causation. Defendants contend that they are entitled to summary judgment on the negligence claim because KBR owed no duty to the plaintiffs.

I. Fraud

In order to bring an action for fraud under Oregon law, plaintiffs must establish, by clear and convincing evidence, each of the following elements:

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon;...

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