Service Members Ask Appeals Court to Revisit Burn Pit Lawsuits
More than sixty lawsuits have been filed alleging KBR, Inc. dumped batteries, medical waste, tires, and other hazardous materials into open burn pits leading to toxic smoke which caused gastrointestinal and neurological issues, respiratory problems, cancers, and other health concerns to more than 800 service members during the Iraq and Afghanistan wars, an issue they are hoping to revisit. In the beginning of this year a Judge under the U.S. Department of Labor ruled that the pits were in fact connected to lung disease and other health issues. The decision was a victory for the service members who added their names on a Burn Pit Registry created by the Veterans Administration, bringing them one step closer to getting adequate medical coverage.
However, the cases had already been dismissed in 2017, and now veterans and their families are asking a federal appeals court to reinstate them. The lawsuits were filed in numerous districts around the United States and later consolidated. The suits also alleged that at least twelve service members died from their illnesses, and civilian workers and private contractors in the area also suffered similar issues.
In 2017, U.S. District Judge Roger Titus in Maryland, nominated to his position by former President George W. Bush, dismissed the lawsuits, not because the pits didn’t cause the issues identified, but because he found the U.S. military made all of the key decisions and had control over KBR’s use and operation of burn pits. In arguments before the 4th U.S. Circuit Court of Appeals, an attorney for the victims, Susan Burke, asked the court to revisit the ruling. Burke said KBR repeatedly violated the terms of its contract with the U.S. military to properly handle waste disposal and operated burn pits at 119 locations when it only had permission to use the pits at 18 sites. At all of these locations, KBR “negligently burned substances they were directly told not to.”
KBR’s attorney, Warren Harris, countered that the three-judge panel should uphold dismissal. He said the company controlled only 31 burn pits, while the remainder were in fact operated by the military. “The decision to use burn pits was made by the military,” Harris said, adding that the military decided where the pits would be located, what hours they would be operating, and what would be burned in them.
KBR had previously released the following statement: “At the limited number of bases where KBR operated burn pits in Iraq and Afghanistan, KBR personnel did so safely and effectively at the direction and under the control of the U.S. military. KBR complies with all applicable laws and contractual obligations, which includes providing the federally mandated and specified insurance coverage required for employees working overseas supporting the U.S. government.”
In his decision to dismiss, Titus had indicated the military recognized there were health risks associated with burn pits but balanced those risks “against the greater risk of harm to military and other personnel should other methods of waste management be utilized.” The judge found the use of open burn pits “was a quintessential military decision made by the military, not KBR, and was a decision driven by the exigencies of war.”
A decision from the 4th Circuit Court regarding whether it will agree to revisit the lawsuits is still pending.