By Shelby Sebens
PORTLAND, Ore. (Reuters) - The 9th U.S. Circuit Court of Appeals overturned on Thursday a jury verdict awarding $85 million to 12 Army National Guardsmen who accused defense contractor KBR of failing to protect them from cancer-causing chemicals when they served in Iraq.
An Oregon jury awarded each of the guardsmen $850,000 in noneconomic damages and another $6.25 million in punitive damages in 2012 for "reckless and outrageous indifference" to their health while they were providing security for civilian workers restoring an Iraq oil industry water plant in 2003 after the U.S.-led invasion.
KBR has been appealing that decision for the last year, arguing the U.S. District Court in Portland did not have jurisdiction in the case.
The appeals court agreed and referred it back to Oregon district court where it could be either dismissed or transferred to another court, KBR lead trial attorney Geoffrey Harrison said.
“The court of appeals ruling is exactly what KBR asked the district court to do nearly five years ago and it is the exact result that KBR sought in this appeal, which is vacating the legally and factually incorrect judgment of the trial court in its entirety,” Harrison said.
An attorney for the veterans, David Sugerman of Portland, said the guardsmen were disappointed but pursuing options going forward.
"We are not about to give up," he said. "KBR has gotten out from under an $85 million verdict on a technicality."
Harrison said it was possible the case could be moved to a Texas court where approximately 133 similar claims are being heard.
Lawyers for the guardsmen argued in the Oregon case that the soldiers were exposed to cancer-causing chemicals and got sick after the plant was contaminated with sodium dichromate, a chemical used to fight corrosion. Sodium dichromate contains hexavalent chromium, a toxic chemical made famous in the film "Erin Brockovich."
"They have a variety of health problems and they are as well concerned about future health issues from this carcinogen and toxin that they were contaminated by," Sugerman said. "KBR told them it was safe as long as they didn’t bathe in it, and there are a number of guys that have very serious health problems."
KBR dismissed the soldiers’ contentions.
“These plaintiffs were not exposed to dangerous amounts of sodium dichromate and did not suffer any damages as a result of anything KBR did or did not do,” Harrison said.
(Reporting by Shelby Sebens; Editing by Cynthia Johnston and Eric Beech)