texas complaint - second amended complaint (00135131)

8/8/2019 Texas Complaint - Second Amended Complaint (00135131)

http://slidepdf.com/reader/full/texas-complaint-second-amended-complaint-00135131 1/59

UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

SABRINA McMANAWAY, INDIVIDUALLY and §on behalf of the Estate of MARK McMANAWAY; §DAVID RANCOURT; BRENT LASHER; § JODY AISTROP; WILLIAM BICKELL; §MATTHEW BOARD; LARRY BUNNER; §

WILLIAM DeLASHMUTT; JEFFREY §FROMME; JEFFERY HENKE; ANTHONY HUFF; §BEN McINTYRE; JEFFREY VARNER; TOMMY §EBERT, JR; LUCAS WHISTLE; MICAH §PARTLOW; JURGEN TURNER, JR; RUSSELL §KIMBERLING; SCOTT WYATT; JOHN GARY §FISCHL; STEPHEN SALAMONE; RUSSELL §

GARVIN; DANIEL KRIBS; DAVID BARKER; §EDWARD BOSA; STEVE MOORE on behalf of the §wrongful death estate of DAVID MOORE; JASON §BREEDEN; CLINTON HAMMACK; SAM §SCHULTZ; BRENDAN WILCZYNSKI; DAVID §ANGELL; BRENNIN SHEPHERD; RYAN §LEVITZ; WILLIAM MICHAELS; ERIC FLORES; § JEROLD EVARD; JEREMIAH WILSON; § JONATHAN ROBERTSON; JESSE HARDIN; §CLAY CHAMPION; RONALD WILSON; §GEORGE DEEL; LOU ANN GENTRY on behalf §of the wrongful death estate of JAMES GENTRY; §FRED LUMPKIN; TERRY MILLER; RALPH §STILES; EDWARD CROWLEY; KELLY DUGGER; § JOHN EDGE; JOSH FARMER; MICHAEL KERN; §

ISRAEL PRADKE; ROBERT WORKMAN; BRIAN § Cause No. 4:10WANINGER; KRISTOFER WERLEY; JOSEPH DILTS; §DAVID RAUL DIAZ; MARTIN GALE; §ROWLAND BOOCOCK; JOHN GLEDHILL; §RICHARD JAMES GARTH; CHARLES FERGUSON; §JAMES GRIFFITHS LUKEWICKS ANDY TOSH §

Case 4:10-cv-01044 Document 43 Filed in TXSD on 09/10/10 Page



GODDARD; NORMAN “BUDDY” GRAY, III; §MICHAEL HELMICK; CHARLES J. HOWELL; §

ROBERT EWELL; JASON JOHNSON; EARL L. §LAYTON; JON R. LITTLETON; ANTHONY Q. §LONG; BRANDON LONG; JAMES MCQUAIN; §GARRETT MICHAELS; AARON MILLER; ROBERT §MULLAVEY; JOSHUA POLING; BILL POWELL; § JONATHAN REGETS; JOSEPH L. RICHARDSON; § JAMES ROBINSON; MICHAEL SCHNELLE; §

JOSHUA SIPOS; ADAM SPEECE; MICHAEL §ALLEN TOLAND; ADAM TRAYNOR; ROBERT §TUCKER; SCOTT URBANEK; LUCIAN WEESE; §DALE GALLAHER; ROBERT WILSON; RUSSELL §POWELL; ANDRU KELLER; ERIC HEID; JOHN §HEADLEY; BRADLEY EBERT; BENJAMIN §BECKETT; ROGER GREATHOUSE; DWAYNE §

McELROY; and CHRISTOPHER COGAR §§§

Plaintiffs, §§

v. §§

KBR, INC; KELLOGG, BROWN & ROOT §SERVICES INC; KBR TECHNICAL SERVICES, §INC; OVERSEAS ADMINISTRATION §SERVICES, LTD; SERVICE EMPLOYEES §INTERNATIONAL, INC; and §HALLIBURTON COMPANY, §

§Defendants § JURY DEMAN

SECOND AMENDED COMPLAINT AND JURY DEMAND

Come now Plaintiffs, by counsel and for their Second Amended Co




AISTROP; WILLIAM EARL BICKELL; MATTHEW DALE BOARD; LARRY

WILLIAM DeLASHMUTT; JEFFREY FROMME; JEFFERY HENKE; ANTH

BEN McINTYRE; JEFFREY ALAN VARNER; TOMMY J. EBERT, JR.; L

WHISTLE, MICAH PARTLOW; JURGEN P. TURNER, JR., RUSSELL KIM

STEVE MOORE, personal representative of the wrongful death estate

MOORE, SCOTT WYATT, STEPHEN SALAMONE, RUSSELL GARVIN

KRIBS, DAVID BARKER, EDWARD BOSA, JASON BREEDEN,

HAMMACK, SAM SCHULTZ, BRENDAN WILCZYNSKI, DAVID ANG

LEVITZ, WILLIAM MICHAELS, JOHN GARY FISCHL, BRENNIN SHEPH

FLORES, JEROLD EVRARD, JOHNATHAN ROBERTSON, CLAY C

RONALD WILSON, GEORGE DEEL, LOU ANN GENTRY, INDIVIDUA

behalf of the wrongful death estate of JAMES GENTRY, FRED LUMPK

MILLER, JR, RALPH STILES, BRIAN WANINGER, ROBERT WORKMA

PRADKE, MICHAEL KERN, JOSH FARMER, JOHN EDGE, KELLY DU

CROWLEY, JEREMIAH WILSON, JESSE HARDIN, KRISTOFER WERLE

DILTS, KELLY DUGGER, JEFFREY VARNER, DANIEL KRIBS, DANIEL R

(together, the “Tell City, Indiana Guardsmen”); MARTIN GALE,

BOOCOCK, JOHN GLEDHILL, RICHARD JAMES GARTH, CHARLES F

S G S W C S Y OS d W




M. GAMBLE, FREDERICK GARLAND, EZEKIAL GODDARD, NORMAN

GRAY, III, MICHAEL HELMICK, CHARLES J. HOWELL, ROBERT JEWE

JOHNSON, EARL L. LAYTON, JOHN R. LITTLETON, ANTHONY

BRANDON LONG, JAMES MCQUAIN, GARRETT MICHAELS, AARO

ROBERT MULLAVEY, JOSHUA POLING, BILL POWELL, JONATHA

JOSEPH L. RICHARDSON, JAMES ROBINSON, MICHAEL SCHNELL

SIPOS, ADAM SPEECE, MICHAEL ALLEN TOLAND, ADAM TRAYNO

TUCKER, SCOTT URBANEK, LUCIAN WEESE, DALE GALLAHER

WILSON, RUSSELL POWELL, ANDRU KELLER, ERIC HEID, JOHN

BRADLEY EBERT, BENJAMIN BECKETT, ROGER GREATHOUSE,

MCELROY and CHRISTOPHER COGAR (together, the “West Virginia G

(all together, “the Men Exposed at HALLIBURTON/KBR’s Qarmat Ali p

file this Second Amended Complaint and Jury Demand against Defendant

KELLOGG, BROWN & ROOT SERVICES INC.; KBR TECHNICAL SERV

OVERSEAS ADMINISTRATION SERVICES, LTD.; SERVICE E

INTERNATIONAL, INC.; and HALLIBURTON COMPANY

“HALLIBURTON/KBR”), and would respectfully show the following:

FACTUAL OVERVIEW OF THE CASE

1 1 H llib /KBR i d i i b idi i




safely completing—a project involving the restoration of the Qarmat Ali w

southern Iraq so the facility could resume pumping water into the Iraqi oil w

consistent oil flow. After major combat operations ceased in so

Halliburton/KBR, a self-proclaimed expert in overseas infrastructure projects

the United States government to get the Qarmat Ali water treatment plant

The project necessarily required Halliburton/KBR to take ordinary and nec

precautions to protect those working at the site, including proper surveys of th

and as work progressed. Halliburton/KBR was incentivized to get Qarm

online as quickly as possible without interruptions because it received n

contract payments but also retrospective “award” payments for expeditious c

the project.

1.2 Instead of doing what Halliburton/KBR promised and was paid t

Qarmat Ali project, Halliburton/KBR managers based in Kuwait City; Hou

Alexandria, Virginia; and elsewhere disregarded and downplayed the extrem

wholesale site contamination by sodium dichromate, a toxic chemical used at

anti-corrosive and containing nearly pure hexavalent chromium. Halli

managers knew about both the site contamination and the extreme danger o

chromium.1 What these knowing acts and omissions meant to the Tell C

G d d G d G d f h




Qarmat Ali, along with the American and other civilians actually carrying on

Qarmat Ali, was months and months of unprotected, unknowing, direct exp

of the most potent carcinogens and mutagenic substances known to man

chromium. When the Tell City, Indiana Guardsmen and American civil

working at Qarmat Ali began experiencing the most characteristic sympt

hexavalent chromium poisoning, nasal excoriation (bleeding from the nos

toxicologists as “chrome nose,” Halliburton/KBR managers told men onsi

symptoms were simply an effect of the “dry desert air” and they must be

sand.” The Tell City, Indiana Guardsmen were repeatedly told that there w

on site, even after Halliburton/KBR managers knew that blood testing

civilians exposed onsite confirmed elevated chromium levels. What was

until Congressional Hearings in June 2008 was the extent of kn

Halliburton/KBR managers about the danger onsite and the ongoing concea

exposures to the Tell City Guardsmen and others. See Senate Demo

Committee Hearing, “The Exposure at Qarmat Ali: Contractor Misconduct an

of U.S. Troops in Iraq”, June 20, 2008, at http://dpc.senate.gov/hearings

(“The United States Senate Hearing”). As outlined further below, Hallibu

apparently still withholding from the United States Army the ful

ll b / ’ ’ k l d f h d h ld d




1.3 Several Indiana National Guardsmen serving at Qarmat Ali h

manifested respiratory system tumors characteristically associated with

chromium exposure, two of the Tell City, Indiana Guardsmen have died a

sodium dichromate exposure, and many of the Tell City, Indiana Guardsmen

experience chemical sensitivities and rashes consistent with the impacts o

chromium poisoning. The United States Army has already confirmed that

death from cancer resulted from his service exposure. See, Exhibit J, Depar

Army official notification of cause of death for Lt. Col. James Gentry. As has

only recently, the Men Exposed at KBR/HALLIBURTON’s Qarmat Ali

require ongoing, expensive follow-up health care for the health impa

exposures, as well as compensation for the reasonably anticipated manife

time, including the cancers, potential impact on their offspring, and heightene

chromium salts in the environment.

1.4 The Tell City, Indiana Guardsmen never shirked their responsibil

families, the State of Indiana, or this Nation. A number joined up in a

military service dating back to the Revolutionary War. The Tell C

Guardsmen have consistently gone above and beyond the call of duty for

citizens, year after year, many for decades, by responding to natural disas

f 9 h h f d dl h l h




manner that directly and continuously exposed them to serious health imp

rest of their lives. As stated by Lieutenant Colonel James Gentry, comman

of the Tell City, Indiana Guardsmen at Qarmat Ali, before his untimely deat

I understand and accept there’s danger with my line of service, in mservice. What’s very difficult for me to accept is if I’m working for they have knowledge of hazardous chemicals on the ground that c

cancer and not share that knowledge, then that is putting my men atis not necessary. I’m very upset over this . . . I feel like they sashamed that they did that.

The Tell City, Indiana Guardsmen and RAF Ground Regiment Gunners ha

legal action because they believe that Halliburton/KBR, having profited h

should be held accountable for these costs it has imposed on the Men

KBR/HALLIBURTON’s Qarmat Ali project, and the burdens should

dumped by Halliburton/KBR on the Men Exposed at KBR/HALLIBURTO

Ali project, their families, or the United States (or British) taxpayers.

1.5 The RAF Ground Regiment Gunners and the other members of the B

at Qarmat Ali were likewise wholly unprotected against the hazards

dichromate known to Halliburton/KBR’s managers for months and mon

despite the demonstrated knowledge of elevated chromium levels in the

inadequate blood testing of Halliburton/KBR’s civilian employees, Hallibu

managers apparently deliberately told British Forces exactly the opposite.




have been within normal limits.”). The RAF Ground Regiment Gunne

fellow members of British Forces, part of the Multinational Forces serving i

the Restoring Iraqi Freedom, were entitled to and did rely on th

misrepresentations by Halliburton/KBR’s managers about the hazards they

time of their exposures, as well as the serious health consequences they now

PARTIES

2.1 The Tell City, Indiana Guardsmen, although from throughout Indian

deployed to Iraq with “Charlie Company” of the Indiana National Guard, b

City, Indiana. In their civilian roles as well, they truly constitute the back

Nation, working in our police departments, schools, mines, and facto

McManaway, also known as “Sergeant Mac,” was from Cannelton an

untimely death supported his family, including his wife, Sabrina, in his civi

trucker. David Rancourt is from South Bend and works in civilian life a

guard at the University of Notre Dame. Ben McIntyre protects his com

police officer in his civilian life and lives in Bourbon, Indiana. Brent La

Fulda and works in his civilian life in a local factory. Jeremiah Wilson is fro

Indiana. Jody Aistrop is from Elkhart and works now in plant maintenan

Earl Bickell lives in Tell City, and William DeLashmut is from Grandview

D l B d i f L ld d h k d d i L




Anthony Huff lives with his family in Tell City, and he works in civilian

worker. Jeffrey Alan Varner lives in Cannelton and supports his

construction worker. Tommy J. Ebert lives in Saint Meinrad and work

control, and Lucas Ray Whistle is from Fulda and works as a trucker. Mica

from Goshen and is attending college. Jurgen Turner, Jr. is currently a resi

Eye, Indiana. Russell Kimberling served in the Indiana National Guard an

in Louisville, Kentucky. William Michaels lives in Walkerton, Indiana.

works as a Mental Health Technician and resides in Walkerton, Ind

Champion lives in Evansville, Indiana and is currently a college student. Ro

lives in South Bend, Indiana and is currently employed as a food warehouse w

Gary Fischl is a former resident of Indiana and currently lives in Cape Co

Stephen Salamone lives in Ferdinand, Indiana and makes his living as

Russell Garvin served in the Indiana National Guard and now lives in Nile

Edward Bosa lives in South Bend, Indiana. Daniel Kribs lives in Muncie, In

a college student. David Barker lives in Chrisney, Indiana. Eric Flores

Wayne, Indiana and is a mortgage broker. Jason Breeden is a resident

Indiana and works as a machinist. Clinton Hammack is a resident of Tell C

Sam Schultz is a resident of New Salisbury, Indiana. Brendan Wilczynski is

h k d h l l ll b k l




Indiana and is the brother of David Moore and the personal representative o

David Moore is survived by his daughter, Rylee Weisheit. John Edge lives

Kentucky. Josh Farmer lives in Evansville, Indiana. Jesse Hardin is currently

Cudahy, Wisconsin. Ryan Levitz is a resident of Muncie, is still a member o

National Guard, and works as a Juvenile Detention Officer in his civilian

Evrard is a member of the Indiana National Guard and lives in Cannelt

Jonathan Robertson is a member of the Indiana National Guard, works as

officer in an urban training center, and lives in Seymour, Indiana. George

French Lick, Indiana. Lou Ann Gentry lives in Williams, Indiana and is the su

and personal representative of James Gentry’s estate. Kevin Bauman live

Indiana. Ed Crowley lives in Chesterton, Indiana. Kelly Dugger lives in S

Kentucky. Fred Lumpkin lives with his family in Boonville, Indiana

employed as an industrial engineer. Terry L. Miller, Jr. lives in LaGrange, In

he works as a travel trailer manufacturer. Ralph Stiles resides in Tell City, In

he is employed with the State of Indiana Military Department. Brian Waning

his family in Tell City, Indiana. Kristofer Werley served his country in two

and he currently lives in Bourbon, Indiana. Joseph Dilts lives in Culver, In

Dugger, Jeffrey Varner, and Daniel Kribs are all Indiana residents as well.

l C l d




C 4 10 01044 D t 43 Fil d i TXSD 09/10/10 P



Toland lives in Wheeling, West Virginia, and Adam Traynor lives in Colu

Carolina. Robert Tucker lives in Benwood, West Virginia, and Scott Urbanek

Martinsville, West Virginia. Lucian Weese lives in Moundsville, West Vir

Gallaher lives in Kansas City, Kansas. Robert Wilson lives in Dunbar, West V

Russell Powell lives in Moundsville, West Virginia. Andru Keller lives in M

West Virginia, and Eric Heid lives in Rocky Mountain, North Carolina. Jo

lives in Paden City, West Virginia, and Bradley Ebert lives in Wheeling, W

Benjamin Beckett lives in Wheeling, West Virginia, and Roger Greathouse l

Martinsville, West Virginia. Dwayne McElroy and Christopher Cogar are also

West Virginia.

2.4 Defendant, KBR, INC. is a foreign company with its principal place o

the State of Texas and was created and functions solely for the accumulation

profit.

2.5 KELLOGG, BROWN & ROOT SERVICES INC., is a foreign comp

principal place of business in the State of Texas that was created and functio

the accumulation of monetary profit.

2.6 Defendant, KBR TECHNICAL SERVICES, INC., is a foreign comp

principal place of business in the State of Texas that was created and functio

h l f f


Case 4 10 c 01044 Doc ment 43 Filed in TXSD on 09/10/10 Page



It was created for one purpose only. That purpose was to hirworkers, but pay them through a post office box in the Cayman Isl

the company could claim to the United States government that thwere not really American workers subject to U.S. taxes. So they dipay any payroll taxes on their American workers that they hired andif they ran their payroll through Post Office Box 847 in the Cayman Is

The United States Senate Hearing, June 20, 2008.

2.7 Defendant OVERSEAS ADMINISTRATION SERVICES, LTD. was i

by KBR’s managers in the Cayman Islands, but manages its operations

offices at 4100 Clinton Avenue, Houston, Texas 77020.

2.8 Defendant SERVICE EMPLOYEES INTERNATIONAL INC. was inco

KBR’s managers in the Cayman Islands, but manages its operations from K

at 4100 Clinton Avenue, Houston, Texas 77020.

2.9 Defendant HALLIBURTON COMPANY is a foreign company with

place of business in the State of Texas that was created and functions s

accumulation of monetary profit.

Single Business Enterprises Responsibility/Corporate Shell-Alter-Ego Lia

2.10 In addition to the direct involvement of Halliburton employee

(including Halliburton attorney William Bedman in secret meetings in Hou

2003 to make plans to deal with Halliburton/KBR’s potential “liability” for th

while sodium dichromate exposure to the men on the ground continued (an


Case 4:10 cv 01044 Document 43 Filed in TXSD on 09/10/10 Page



in the operations and management of the Halliburton/KBR Qarmat Ali proj

venturers and/or parts of a single integrated business enterprise, each is l

responsibilities and liabilities of the other, including for the operations

conduct of the other.

2.11 In the alternative, or jointly, Halliburton, KBR and the other Defend

corporate formalities in practice, and made no distinction in the manage

operations such that the corporate veil between each should be ignored

practice).

VENUE & JURISDICTION

3.1 The Tell City, Indiana Guardsmen are predominantly current or for

of the State of Indiana. The RAF Ground Regiment Gunners are all resi

United Kingdom. The West Virginia Guardsmen are current or former ci

State of West Virginia. None of them are residents of Texas. The Halli

Defendants each maintain a principal place of business in the State of

conduct substantial activities within the State of Texas. Claims are ea

damages well in excess of $125,000. Jurisdiction is therefore proper befor

pursuant to 28 U.S.C. § 1332 (diversity jurisdiction). Venue is proper i

pursuant to 28 U.S.C. § 1391, as Halliburton/KBR Defendants reside in t

Di i f T f





acts and omissions that proximately led to their unprotected exposure

levels of hexavalent chromium at the Qarmat Ali site. As expressed in

James Gentry’s above-quoted testimony, the Men Exposed at HALLIBUR

Qarmat Ali project agreed to undertake and appreciated the hazards f

enemies while doing their part to assist their Nation in restoring freedom

could not even imagine that Halliburton/KBR’s managers would act in a

directly and continuously exposed them to serious health impacts for the

lives.

4.2 There is no doubt that Halliburton/KBR’s managers knew before t

Indiana Guardsmen ever arrived at Qarmat Ali about the dangero

dichromate contamination at the site. According to the sworn s

Halliburton/KBR’s southern Iraq Health Safety Environment (HSE) man

Morney:

Q. How did you learn Sodium –

A. Jake Duhan was making a round as a safety professional. He mround and he observed this.

Q. Mr. Duhan –

A. Right.

Q. -- this observation that was conveyed to you –





Q. -- how was it conveyed to you in May 2003? In what manner?you get a memo, did you get a email?

A. In a conversation. He came in and it was in his daily report anhad a discussion, which was a requirement of all our HSE coordinato

4.3 In addition to this evidence establishing that Halliburton/KBR was

Qarmat Ali sodium dichromate hazard in May 2003, Halliburton/KB

warnings from its environmental specialists in June that sodium dich

contaminated Qarmat Ali. On June 21, 2003, Halliburton/KBR’s en

specialist Rod Kimbro informed Halliburton/KBR manager Young Lee of

dichromate hazard in an email stating in part:

Sodium dichromate has been replaced as a commonly utilized coinhibitor in the US due to its toxicity and disposal issues. Sdichromate is a strong irritant and a potential carcinogen. The MTotal [sic] chromium in drinking water is 0.1 mg/L. The MSDS for dichromate and materials contaminated with sodium dichromate wconsidered hazardous waste in the US.

During our inspection of the chlorine tanks at the water treatment observed areas of soil that had been discolored yellow east and souththe chlorine drums and on the west side of the chlorine tank storagThe areas are potentially contaminated with sodium dichromate during the looting activities which occurred at the water treatment pl

Due to the potential toxicity of sodium dichromate I suggest that thof soil stained yellow be cordoned off and that samples be collecttested to determine the concentration of hexavalent chromium anchromium in these areas. If it is determined that the yellow scontaminated with sodium dichromate, I recommend that these s

d d l d d h d b l b l d d





4.4 As documented by Halliburton/KBR managers, sixty (60) percent of

onsite reported symptoms of acute poisoning by the beginning of August 2

the work (and exposure) was not even stopped fully until September 2003.

photos of sodium dichromate, Qarmat Ali; see also Exhibit D, K

memorandum, August 8, 2003. The repeated warnings, both in wri

meetings, about the sodium dichromate onsite continued to be disr

Halliburton/KBR’s managers from their offices while the Men

Halliburton/KBR’s Qarmat Ali project continued to do their duty at Qarm

e.g. Exhibit E, June 22, 2003 KBR HSE log. Unfortunately, this confirmed

not timely shared with the United States Army or British Forces by Mr. Mo

other Halliburton/KBR managers, even though Halliburton/KBR was full

the soldiers providing security stayed within arms’ reach of Halliburton/K

on site:

Q. This information you shared about Sodium Dichromate thefor personal protective equipment in May 2003, did you makeffort as a manager to ensure it got to the U.S. Army soldiers sent out there?

A. There was no need. They were not working in the area.

4.5 A month before Halliburton/KBR’s managers finally suspended o

Qarmat Ali due to sodium dichromate contamination in Septe





afforded themselves, they left the soldiers and civilian workers onsite unp

exposed. See Exhibit F, photo of KBR personnel, Qarmat Ali, Iraq, August 20

4.6 More disturbing, however, is that Halliburton/KBR, as part of th

which Halliburton/KBR billed and was paid by the United States

conducted a full site analysis identifying the hazards at Qarmat Ali sev

earlier, in April 2003. According to senior Halliburton/KBR HSE man

Adams:

Q. Site analysis has a very specific meaning to a health environment professional doesn't it?

A. Yes, it does. Normally when you do a site analysis, you go ouyou look at -- get a good overview of the site and then you also taksamples, core samples in areas that you may feel that there maypossible contamination of the soil, other than just on the surface. Youair sampling if you feel that there's -- if -- if you see a risk from air samand noise sampling. There is all kinds of things you do for aassessment?

Q. This site analysis also called a risk assessment?

A. Yes.

Q. Mr. Cater /KBR site manager/ told you who had performed a riskassessment before you ever got there April 29, 2003?

A. Mr. Cater told me that the environmental group for OAS /Overseas Administrative Services/ had been out there to -- and lookedthe site. He did not specifically say that they had done a risk assessmese, but he said they had been given the go ahead by the environm

d h l h d d d h k

g




A. Yes, you identify the -- the air samples, the soil samples, what --processes you went through to get that -- that, you know, that che

completed and where the samples were taken.

4.7 Halliburton/KBR’s HSE manager for Iraq, Chuck Adams, has testified

that he was never provided the April 2003 “no notes” site assessment that w

by other Halliburton/KBR professionals months before the Tell City, Indiana

arrived at Qarmat Ali:

Q. Now, you said you -- you got Mr. Cater telling you somebody hadout there. Did you see any record of that site analysis?

A. No. Sorry, no.

Q. Now, when you say consultant specialists to come in and do soil asamples, you're talking about folks from Houston, aren't you?

A. Folks from Houston. We use them as a consultant, if -- if we nthem. They were not working for us. They came in just on a consbasis just to help us.

Q. Absolutely positive, you never saw, never even asked fordocumentation about any kind of site analysis done by Mr. Kimbro employee/ or anyone April of 2003?

A. No.

Q. Did it concern you at all that there is standard protocols for doin

analysis, soil samples, air sampling, a basic KBR checklist you'vearound the world for years and nobody could show you one for this sit

A. Sure it concerned me, but based on the information I had been and you have to understand, again, I'm in charge -- I'm trying to co

h l




As an EMT concerned that there was a health problem, I begquery all English-speaking personnel working at the facility, w

included KBR, Halliburton, Iraqi Oil Company, U. S. Army NaGuard and British soldiers, and all were suffering identical sympThe symptoms for all at the facility developed into continuous bnoses, spitting up of blood, coughing, irritation of the nose, eyes, tand lungs, and shortness of breath. In order to determine what migthe cause of these medical problems, I undertook a more in assessment of the facility with my Iraqi interpreter taking dow

chemical names on the burst bags I initially noted as well as fromtanks in the Injection building. The chemical was Sodium Dichrowhich contains hexavalent chromium. I asked my Iraqi interpreterwas aware of what the material in the bags was used for and was adthat it was injected into the water supply system for the oil fields anti-corrosive. He was reluctant to say more and when pressed he sknew it was poisonous and that he was aware of many workers froplant who were made ill by it. He said that it being a poisonous chewas probably the reason members of the Baath party had openestorage bags and spread their contents all over the plant as part ofsabotage efforts in the facility. That evening, on my return to my quI researched sodium dichromate on the internet, finding and downloa Material Safety Data Sheet (MSDS) for the chemical (attached).MSDS states that sodium dichromate is a hazardous material acarcinogen, exposure to which is to be avoided. At this time, a colle

knew from Chad provided me with an internal memo written by aIndustrial Hygienist that substantiated my personal findings. I was ttaken aback to find that KBR knew as early as May, from a UN reporfrom their Industrial Hygienist, that they were putting not onlyworkers but our security details from the U. S. and British in harmswithout the required training or personal protective equipment.

I reported my findings about the imminent danger sodium dichrowas posing to the workers at Qarmat Ali to the HSE and Project Main Kuwait and insisted that they take immediate action. A few daystwo representatives of the health, safety and environmental sectiKBR came to Qarmat Ali to assess the situation and talk to the wo

h d d l S f d




NIOSH/CDC documents that I had on sodium dichromate dicontradicted their statements to the workers. At this point, Mr. G

who was one of my superiors, directed me to be quiet and to leavthen escorted me out of the meeting. Outside of the meeting, he adme that I was being insubordinate, disruptive, and that my input waappreciated. I was determined to pursue the complaint with highein KBR’s HSE department in Kuwait, and upon attempting to do so, made clear to me that my presence in Iraq and Kuwait was no lappreciated and that I would be better off going home. As a respo

my complaints, the Medical Supervisor, Ray Garcia, under direction KBR Project Manager, directed me to accompany him to a clinic for workup. I was taken to a substandard medical clinic where I refussubmit to the tests due to the unsanitary conditions and unprofessnature of the staff.

……………………………………………………………………………In my mind, it was criminally negligent of the KBR HSE and P

management to make a decision to continue to expose personnsodium dichromate poisoning at the Qarmat Ali water treatment when they knew of the exposure and knew of the absence of any perprotective gear whatsoever. I understand that KBR and Halliburtonthe position that the air was tested at the plant and showed low levchromium, however, those tests were apparently done when the aistill, not during one of the frequent dust storms in which all omaterials on the ground became airborne. Furthermore, the lev

chromium from the ground samples show that the plant was a hdangerous and unsafe and contaminated facility, and these facts objective facts known by KBR management, in the face of whichmade the conscious decision to continue to expose the American wothe Iraqi workers, the American military personnel, and the Bmilitary personnel at the plant to these horrifically unsafe conditionsoutrageous that American tax dollars are the source of the funding

Iraqi operation of Halliburton and KBR when those companies demonstrated such total and complete disregard for the health and of the workers for whom they are responsible.

Statement of Ed Blacke, The United States Senate Hearing, June 2




contamination, Halliburton/KBR not only failed in its duty to alert the Men

Halliburton/KBR’s Qarmat Ali project of the known danger presented

dichromate, but actually knowingly conveyed to the Men Exposed at Hallibu

Qarmat Ali project the false impression that there were no dangers at Qar

noted above, Halliburton/KBR apparently deliberately conveyed false inform

British Forces about the health effects. In addition, each morning, Halli

participated in “battle update briefs” wherein employees of Halliburton

expected to inform the military and Tell City, Indiana Guardsmen of kno

Also, Halliburton/KBR employees attended pre-mission meetings wherei

expected to inform the Tell City, Indiana Guardsmen of known dange

confirmed by Lieutenant Colonel James Gentry before his death:

Question: If the private contractors have information that would that a U.S. soldier would be put in any type of danger, i

the forum for them to communicate that to U.S. soldiers

Answer: It is. It is.

Question: And, they’re asked to do that, are they not?

Answer: Yeah. When they attend—when they attend that.

4.10 Demonstrative of Halliburton/KBR’s failure to inform the Tell C

Guardsmen of the known danger presented to sodium dichromate, on Aug

l h h f ll b / Y f




Exhibit I. Incredibly, not only had Halliburton/KBR failed to provide the m

this information prior to the military’s August 15, 2003 request but

responded to the military “that test results were preliminary and could not

until the final results are confirmed.” Id.

4.11 Hexavalent Chromium is one of the most potent carcinogens kno

Humans exposed to hexavalent chromium often exhibit the nasal bleedin

with “chrome nose,” confirming the specific injurious impact on t

individual. It can produce any type of cancer depending upon genetic su

quantity, and route of exposure. It is important that humans not be exp

carcinogen since it can enter the human body by inhalation, ingestion, and

the skin. Hexavalent Chromium can cause severe damage to the liver a

depress the immune system, and can enter every cell of the body and

produce widespread injury to every major organ in the body. This is bec

the same as the nutrients sulphate and phosphate and is actively sucked up

carriers that would normally transport these essential nutrients. It is ver

for humans to become exposed to even small amounts of hexavalent chro

most common cancer that develops following inhalation exposure to

chromium is lung cancer. Studies have also shown elevations of stomac

l k l h k l bl dd d b




and has also been reported to have effects on sperm in animals. Hexavalen

is the substance made notorious by the Erin Brockovich story and movie.

4.12 In practical terms, this means that, based upon the best scientif

persons exposed to injurious levels of hexavalent chromium can expec

substantially elevated cancer rate. Once hexavalent chromium has damag

and in particular at the cellular level, there is no “fix.” Instead, vigilant hea

early treatment, if possible, is the only protection that medicine science

exposed individuals from the anticipated future consequences.

FIRST CAUSE OF ACTION—NEGLIGENCE

5.1 The Men Exposed at Halliburton/KBR’s Qarmat Ali project re

incorporate each allegation contained in Paragraphs 1 to 4.12 of this Secon

Complaint as if fully set forth herein.

5.2 Halliburton/KBR’s managers undertook to inspect and direct the si

where the Men Exposed at Halliburton/KBR’s Qarmat Ali project worke

exposed to hazardous dust(s) for conformance with safety practices and

and/or otherwise undertook supervision of the same. As a result of t

Halliburton/KBR is liable to the Men Exposed at Halliburton/KBR’s Qarma

under RESTATEMENT (SECOND) OF TORTS § 324A as well as any othe

b d f l I h l i j i l H llib /KBR k h ld




5.3 The acts and omissions of Halliburton/KBR constitute negligen

Halliburton/KBR failed to exercise ordinary care in their assumption of th

health responsibilities, as well as direct oversight of the work activities, the M

at Halliburton/KBR’s Qarmat Ali project, and these breaches proximately

injuries to the Men Exposed at Halliburton/KBR’s Qarmat Ali project

Exposed at Halliburton/KBR’s Qarmat Ali project suffered direct impacts, i

minimum, nose bleeds and skin lesions they suffered while guarding this pla

Defendants negligently inflicted emotional distress upon the Plaintiffs for wh

should be compensated.

SECOND CAUSE OF ACTION—GROSS NEGLIGENCE

6.1 The Men Exposed at Halliburton/KBR’s Qarmat Ali project e



6.2 The acts and omissions of Halliburton/KBR constitute gross neglect, a

defined by law. Viewed objectively from the standpoint of Halliburton/KB

of the occurrences, the acts and omission of Halliburton/KBR involved an ex

of risk, considering the probability and magnitude of the potential harm to

Halliburton/KBR had actual, subjective awareness of the risk involved, but

d d i h i i diff h i h f d lf f




deaths of James Gentry and David Moore. Accordingly, the Men

Halliburton/KBR’s Qarmat Ali project seek an award of exemplary damages.

THIRD CAUSE OF ACTION – FRAUD




7.2 Halliburton/KBR was in contact with the United States Army and B

regarding the dangers present at Qarmat Ali and materially misrepresented th

to the United States Army and British Forces by denying any knowl

contamination until July 2003, failing to inform the United States Army and B

of the dangers at Qarmat Ali while both forces were of the understandin

dangers would be conveyed, and otherwise concealing evidence of sodium

exposure even though Halliburton/KBR managers were aware of the sodium

contamination from at least May 2003 and the dangers associated therewith.

7.3 The Men Exposed at Halliburton/KBR’s Qarmat Ali project were

sodium dichromate despite the afore-referenced representations from Halli

officials that falsely conveyed the impression and explicit understanding tha

was safe.

7 4 H llib /KBR h d d b i ll




project by allaying any fears that they or the United States Army might hav

their exposure to such a potent carcinogen.

7.5 Had Halliburton/KBR not made these misrepresentations, actions

been undertaken to protect the Men Exposed at Halliburton/KBR’s Qarma

from the sodium dichromate contamination and/or to otherwise remove this

7.6 The Men Exposed at Halliburton/KBR’s Qarmat Ali project suffere

physical pain and mental anguish as a result of Halliburton/KBR’s abo

conduct and misrepresentations.

7.7 Halliburton/KBR intended to deceive the United States Army and B

and ultimately the Men Exposed at Halliburton/KBR’s Qarmat Ali projec

Halliburton/KBR knew, significant delays would have been incurred

neutralize the danger posed by sodium dichromate contamination at the

would have interfered with Halliburton/KBR’s “award payments” for tim

Qarmat Ali back on line.

7.8 As demonstrated by KBR spokeswoman Heather Browne while com

Halliburton/KBR’s actions at Qarmat Ali, Halliburton/KBR publically holds

having a commitment to the servicemen and women and publicly stat

commitment has always been Halliburton/KBR’s “top priority.”

9 ll b / ’ bl l d




Halliburton/KBR were aware of a significant dangers the Men

Halliburton/KBR’s Qarmat Ali project, Halliburton/KBR would not fail to

United States Army and British Forces of the danger and would otherw

appropriate action to remove the danger.

7.10 Halliburton/KBR’s actions constitute fraud and constructive fraud, a

Exposed at Halliburton/KBR’s Qarmat Ali project are entitled to recover

sustained as a result thereof.

FOURTH CAUSE OF ACTION – INTENTIONALINFLICTION OF EMOTIONAL DISTRESS




8.2 Halliburton/KBR knew its above and below-listed knowing acts an

would result in exposure of the Men Exposed at Halliburton/KBR’s Qarmat A

sodium dichromate and the significant medical dangers associated therewith.

8.3 Halliburton/KBR undertook this behavior with reckless disregard for

and severe emotional distress that would befall the Men Exposed at Hallibu

Qarmat Ali project as a result of being exposed to such a potent carcinogen.

8.4 Halliburton/KBR’s actions were extreme and outrageous.




Halliburton/KBR’s actions.

8.6 Halliburton/KBR’s actions constitute intentional infliction of emotio

and the Men Exposed at Halliburton/KBR’s Qarmat Ali project are entitled t

damages sustained as a result thereof.

RESULTING LEGAL DAMAGES

9.1 The acts and omissions of Halliburton/KBR’s corporate managers ca

the Men Exposed at Halliburton/KBR’s Qarmat Ali project to sustain actu

The Men Exposed at Halliburton/KBR’s Qarmat Ali project are en

compensated for the personal injuries and damages they sustained to the var

each has experienced and will likely experience in the future. The Men

Halliburton/KBR’s Qarmat Ali project each sustained physical pain and me

and, in reasonable probability, will continue to suffer physical pain and ment

the future. To varying degrees, the Men Exposed at Halliburton/KBR’s

project have suffered and will continue to suffer physical impairment and di

The Men Exposed at Halliburton/KBR’s Qarmat Ali project are reasonably

sustain a loss of earning capacity before the time of trial and a loss of future w

capacity. Because of the nature and severity of the injuries, to varying deg

Exposed at Halliburton/KBR’s Qarmat Ali project required medical treatmen

d ill i bl b bili i ddi i l di l i




Men Exposed at Halliburton/KBR’s Qarmat Ali project have sustained dama

of the minimum jurisdictional limits of this Court.

9.2 Through the unlawful conduct set forth in the preceding paragrap

Exposed at Halliburton/KBR’s Qarmat Ali project have been physically imp

injurious effect of hexavalent chromium contained within the sodium di

which they were exposed. Unfortunately, the acute effects, and even

allergenic effects (rashes, inflammatory reactions, and unnatural sensitivity

present in their day to day exposures) are not the only reasonably anticipat

the exposures. Due to the unprotected exposures to this toxic chemical o

Halliburton/KBR’s misconduct, the Men Exposed at Halliburton/KBR’s

project face a higher risk of cancers and other harmful health effects than

population, especially with regard to respiratory system (including the n

cancers. The only medically-accepted method of treating this greatly enh

medical surveillance for the Men Exposed at Halliburton/KBR’s Qarmat Ali

ongoing basis.

9.3. As a direct and proximate result of the conduct of Halliburton/K

above, the Men Exposed at Halliburton/KBR’s Qarmat Ali project have suffe

injuries including, but not necessarily limited, to acute effects such as imm

h d d d f d




greater risks of severe injury and death. The Men Exposed at Halliburton/K

Ali project's increased risk of additional and serious injury is a direct and pro

of Halliburton/KBR’s liability as set forth above. In the absence of the injurio

the Men Exposed at Halliburton/KBR’s Qarmat Ali project would not be at t

risk of additional and serious injury. The Men Exposed at Halliburton/KBR’

project would also not be forced to expend additional monies and incu

economic damages for appropriate medical monitoring, including at least a

(computerized axial tomography) scan and sputum pathology screening.

9.5. As a direct and proximate result of Halliburton/KBR’s liability,

indicated monitoring regime is reasonably necessary and supported by c

scientific principles. As a direct and proximate result of Halliburton/KBR

conduct, the Men Exposed at Halliburton/KBR’s Qarmat Ali project have su

will continue to sustain direct physical impacts from the injurious exposure

damaged immune systems and emotional distress and physical manifestat

mental anguish, economic losses and other damages for which they ar

compensatory and equitable damages and declaratory relief in amounts to

trial, to monitor the health of the Men Exposed at Halliburton/KBR’s Qarma

and to pay or reimburse the Men Exposed at Halliburton/KBR’s Qarmat Ali p

l d d d l




9.6 As a result of Defendants’ acts and/or omissions, the Men

Halliburton/KBR’s Qarmat Ali project have sustained damages in ex

minimum jurisdictional limits of this Court.

9.7 The Men Exposed at Halliburton/KBR’s Qarmat Ali project are en

law to the recovery of prejudgment interest at the maximum legal rate.

INAPPLICABILITY OF CERTAIN ALLEGED LEGAL EXCUSES/DEFANTICIPATED TO BE ASSERTED BY HALLIBURTON/KBR

Fraudulent concealment/tolling of statute of limitations/discovery rule

10.1 Halliburton/KBR may be anticipated to claim that some or all

Exposed at Halliburton/KBR’s Qarmat Ali project claims are barred by th

statute of limitations. This excuse is barred by Halliburton/KBR’s active

of its misconduct and the injurious effects of the exposure on the Men

Halliburton/KBR’s Qarmat Ali project. Even as recently as the f

Halliburton/KBR apparently was still providing to the United States Army

dissemination to our soldiers, information denying any kno

Halliburton/KBR of the site contamination until the end of July 2003 (e

Halliburton/KBR managers were admittedly aware by at least May 2003, s

See Exhibit “G”, Chronology. Halliburton/KBR both morally and lega

benefit from fraudulent concealment of its wrongdoing.




actions. Even though soil testing showed almost 1.6 percent of the soil

dichromate at , and most of the civilian workers incompletely tested (as ou

following paragraph) showed elevated chromium levels, Halliburton

reported the flawed results of its air testing, which ostensibly showed only

of chromium exposure. But see, Exhibits “A”-“D”. According to Hallibu

own industrial hygienist, Dr. Sudhir Desai, however, Halliburton/KBR

after the most injurious exposure from the contaminated site, during the “

Iraqi windy season in June and July, to actually conduct any air sampling:

Q. As a industrial hygienist, OSHA professional, how reasonable is

unreasonable, not to take samples during a dust storm when workefrequently working in dust storms?

A. He should have collected. Personal opinion.

Q. Because?

A. It's an ambient condition that can change.

Q. And if you have a work site with identified sodium dichroaround in bags, mixing room, buried in the sludge, how critical is it, really want to know what the risks are, to take samples duringstorms?

A. It's obvious he should have col --collected.

Q. Ever get any explanation from any HSE manager, including DBagnoche /KBR corporate HSE manager/, why Mr. Keyston, whenout there, didn't take samples during dust storms?




10.3 By its nature, hexavalent chromium is quickly introduced and “upta

human body at the cellular level, and it quickly damages the cell at a mos

before being quickly disposed of by the body. The most visible sign of acu

– bleeding from the nose – is apparent at the time of the exposure, and may

continue intermittently thereafter. As a result, there is no test, unless tak

window of time within weeks of the exposure, that can specifically confirm

chromium presence and levels; affected individuals are simply left with a ti

time bomb. Halliburton/KBR conducted incomplete blood testing on civi

exposed at Qarmat Ali, and the blood testing revealed elevated levels of tot

(which includes but is not limited to just hexavalent chromium). Hallibu

medical director, Dr. Robert Conte, confirmed that when confronted with

test results, Halliburton/KBR’s managers made the decision not to have t

done that would be necessary to confirm the presence and extent of

chromium toxicity in the workers who were manifesting symptoms:

Q. You knew the initial human medical monitoring tests did not intests that would identify levels of hexavalent chromium in blood?

A. We knew it would involve just total chromium; that's correct.

Q. What –

l h




Q. You knew the tests that were done would not identify the lehexavalent chromium in the blood?

A. That's correct.

Q. You knew the tests that were done would not identify the levhexavalent chromium in the blood?

A. That's correct.

Q. These discussions that you were involved in –

A. Yeah.

Q. -- with managers including by e-mail –

A. Uh-huh.

Q. -- you were always sitting in corporate offices in Houston whewere involved in it?

A. That's correct.

Q. These discussions that you've told us about where –

A. Uh-huh.

Q. -- hexavalent chromium blood tests hasn't yet been donconducted here in Houston, Texas?

A. My -- my -- yeah. Any discussions I would have had would

been by e-mail and discussed out of my office in Houston. That's cor

10.4 The Men Exposed at Halliburton/KBR’s Qarmat Ali project repeate

information in 2003 that their exposure to the chemicals at Qarmat Ali was m




2008, the Commander of the Indiana National Guard was notified, and he s

task of attempting to notify the soldiers who had been exposed, including t

Indiana Guardsmen. Therefore, the Tell City, Indiana Guardsmen did not k

the exercise of reasonable care, could not have known of the basis for this c

has been almost a complete absence of information reported in the Unit

which might have apprised the RAF Ground Regiment Gunners of the

exposures at Qarmat Ali. The West Virginia Guardsmen were also und

concealment.

Government Officer/state secrets/government contractor

10.5 As a private company, Halliburton/KBR charges taxpayers enormo

of money, profits handsomely, and did so for its Qarmat Ali project. Halli

often claims it is immune from being held accountable for its misconduct o

at least one United States Court of Appeals has noted, however, “K

coordinate branch of the federal government.” Lane v. Halliburton, 529 F.3d.

Cir. 2008). No legitimate argument can possibly be made that KBR w

instructed by government officers to expose our soldiers to harm, and n

basis exists for Halliburton/KBR’s claims of immunity.

PRAYER

WHEREFORE th M E d t H llib t /KBR’ Q t A



__________________________MICHAEL PATRICK DOYLS.D. Texas Bar No. 13309 JEFFREY L. RAIZNERS.D. Texas Bar No. 15277PATRICK M. DENNISS.D. Texas Bar No. 578507

One Houston Center1221 McKinney Suite 4100Houston, Texas 77010Phone: (713) 571.1146Fax: (713) 571.1148ATTORNEYS FOR PLAINT




Of Counsel

David J. Cutshaw

Gregory L. LakerGabriel A. HawkinsCohen & MaladOne Indiana Square, Suite 1400Indianapolis, Indiana 46204Phone: (317) 636.2481Fax: (317) 636.2593

Jeffrey V. KesslerBerry, Kessler, Crutchfield, Taylor & Gordon514 Seventh StreetMoundsville, West Virginia 26041Phone: (304) 845-2580Fax: (304) 845-9055

Joseph A. YannyYanny & Smith1801 Century Park, East, 23rd FloorLos Angeles, California 90067Phone: (310) 551-2966Fax: (310) 551-1949

Co-Counsel for West Virginia “Billiter Plaintiffs”

Michael G. SimonCarl N. FrankovitchS. David WilharmFrankovitch, Anetakis, Colantonio & Simon337 Penco Road

Weirton, West Virginia 26062Phone: (304) 723.4400Fax: (304) 723.5892

Co-Counsel for West Virginia “Gallaher Plaintiffs”




JURY DEMAND

Plaintiffs hereby demand a trial by jury and tender the necessary fee, a righthe Constitution of the United States of America and the State of Texas and presacrifices of many.

________________________________MICHAEL PATRICK DOYLE




CERTIFICATE OF SERVICE

I, the undersigned attorney, do hereby certify that a true and correctforegoing document was forwarded to the following counsel of record on thisof September, 2010, via hand delivery, overnight courier, U.S. Mail, certifiedreceipt request, or facsimile, pursuant to the Federal Rules of Civil Procedure:

Geoffrey L. HarrisonVineet Bhatia

J. Hoke Peacock IIIChanler A. LanghamSusman Godfrey L.L.P.1000 Louisiana Street, Suite 5100Houston, Texas 77002

Randall “Randy” Jones

Will WhittakerThree Allen Center333 Clay Street, Suite 3485Houston, TX 77002

_______________________________MICHAEL PATRICK DOYLE

Case 4:10-cv-01044 Document 43-10 Filed in TXSD on 09/10/10 Page 1 of 4

texas complaint - second amended complaint (00135131)

Documents