Iraqi law should not govern a lawsuit brought by the mother of a Pittsburgh-area soldier electrocuted in a barracks shower at an Army base in Iraq, a federal judge has ruled.
Attorneys for Houston-based military contractor KBR Inc. had asked U.S. District Judge Nora Barry Fischer to apply Iraqi law to the ongoing lawsuit in the January 2008 death of Pittsburgh-area Staff Sgt. Ryan Maseth. But Fischer agreed with attorneys for the soldier's parents who argued that United States law should hold sway because the base was under American control _ and could provide for punitive damages and other advantages to the plaintiffs not recognized by Iraqi law.
Fischer's decision was the second time she ruled in favor of the plaintiffs. The 24-page opinion handed down Sept. 23 was in response to KBR attorneys who asked her to reconsider a June decision that U.S. law should apply.
Instead, Fischer found that KBR's attorneys were trying to have it both ways. The judge said in a footnote that, in her view, KBR's litigation strategy "is one that constantly shifts to a point where it eventually takes contradictory positions."
Fischer noted that KBR first argued it couldn't be sued because the Army exercised an "envelope of control" over the contractor and its work at the base, so the judge shouldn't even have jurisdiction or, at least, KBR shouldn't bear any ultimate responsibility for anything that went wrong there. But later, the judge said, KBR argued that Iraqi law should hold sway because the country's laws dictated much of what went on at the base _ including the sometimes shoddy construction of Iraqi buildings that were commandeered and used to house soldiers like Maseth.
Daniel Russell, an attorney for KBR, said Monday the contractor had no immediate comment on the decision. William Stickman, an attorney for the soldier's parents, Cheryl Harris and Douglas Maseth, said he was pleased with the ruling but otherwise declined to comment.
Stickman said the case is continuing in the "discovery" phase, during which both sides exchange evidence and take depositions so each can determine what evidence is likely to be used at trial. When that concludes, both sides can ask the judge to issue a summary judgment in their favor based on that evidence. If that doesn't happen, the case will be scheduled for trial.
Harris, the mother of the late 24-year-old Green Beret, and her attorneys said at an April hearing on the Iraqi law issue that they believe KBR is trying to delay the lawsuit and evade responsibility.
Fischer was more blunt in her assessment at the hearing, saying, "The big nut is whether or not you can apply for punitive damages. You can't get punitives in Iraq."
The lawsuit contends KBR is responsible for Maseth's death because KBP maintained the barracks where the Army determined a water pump shorted out and electrified his shower water.
KBR attorneys have argued that three military investigations determined no one agency or company is to blame for Maseth's death.
Fischer reiterated in her latest opinion that she understands "KBR's position in this litigation is that the Army was allegedly negligent in its decisions and actions related to housing soldiers in Iraqi buildings with known substandard electrical systems."
But the judge said evidence already in the record shows that KBR made repairs when another soldier reported he was shocked four or five times between June 2007 to October 2007 while showering in the restroom where Maseth eventually was electrocuted.
The judge said evidence suggests that KBR made repairs each time and that the electric shock problems subsided for a time after each repair.
KBR, a Halliburton Co. spinoff, has been the military's largest support contractor in Iraq, providing everything from mail service to meals to housing for troops.
Although Fischer said Iraqi law shouldn't apply, she must still decide whether liability laws in Maseth's home state of Pennsylvania; those in Tennessee, where Maseth's unit was based; or the laws of Texas, where KBR is headquartered, will apply.