Veterans Ask Court to Reinstate KBR Burn Pit Lawsuit

By: - May 12, 2018

On Wednesday, May 9, 2018, veterans and their families asked a federal appeals court to reinstate more than 60 lawsuits against government contractor KBR that allege that their burn pits in Iraq and Afghanistan caused severe health problems and even death for deployed service members. In the lawsuits, KBR is accused of dumping batteries, tires, medical waste, and other hazardous materials into open-air burn pits, resulting in toxic smoke that has caused respiratory and gastrointestinal illnesses, neurological problems, cancer, and a wide-range of other illnesses in service members. According to the lawsuits, the deaths of at least 12 service members can be directly attributed to KBR’s burn pits.

Back in the summer of 2017, United States District Court Judge Roger Titus dismissed one of the largest lawsuits around burn pit operations, ruling in favor of defense contractor KBR. In his ruling, Judge Titus said that the United States military made all of the decisions and controlled all of KBR’s burn pit operations, meaning that KBR was not liable for any possible illness or death.

“My husband is dead because of burn pits. I want someone to be held accountable,” said Dina McKenna, widow of Sergeant William McKenna.

In January 2018, a court ruling by the Office of Administrative Law Judges at the U.S. Department of Labor determined that open-air burn pits are indeed connected directly to lung disease. Around this same time, former Vice President Joe Biden stated that military burn pits may have led to the brain cancer that killed his son, Major Beau Biden.

In court on Wednesday, attorney Susan Burke argued before the 4th U.S. Circuit Court of Appeals that the previous ruling should be reversed and the lawsuits allowed to move forward. Burke stated that KBR had been contracted by the military to provide support services in Afghanistan and Iraq, but had violated the contract in the manner in which they handled waste disposal. According to Burke, KBR only had permission to use burn pits at 18 sites, but instead ran burn pit operations at 119 sites. Furthermore, Burke says that KBR “negligently burned substances they were directly told not to.”

According to KBR attorney Warren Harris, his client had only operated 31 burn pits, with the military running the remainder. This echoes the argument that originally led to the decision last year to dismiss the lawsuits, in which Judge Titus wrote that open-air burn pits were a decision “made by the military, not KBR, and was a decision driven by the exigencies of war.”

The 4th Circuit Court panel did not indicate how they would rule; it remains to be seen when they will deliver their decision regarding if and when the lawsuits can continue. The Court had previously returned the lawsuits to Titus’ courtrooms in 2014 after the judge had initially dismissed the case in 2013. More than 126,000 veterans and current service members have enrolled in the Department of Veteran Affairs burn pit registry, where they have documented illnesses such as rare cancers and a wide-range of neurological disorders. The VA has previously stated that attribution of illnesses to burn pits has proven difficult with the unknown nature of everything burned in the pits and how much exposure deployed soldiers were subjected to.