Military contractor can be held liable, court rules

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A lawsuit against a Houston-based defense contractor accused of negligence in the death of a Pittsburgh-area native was resurrected Thursday by three appeals court judges. The decision could change the way courts view such cases regionally, or even nationally.

Staff Sgt. Ryan Maseth was stationed in Iraq at the Radwaniyah Palace Complex in a barracks with known electrical problems that was maintained by Texas-based Kellogg Brown & Root Services. An underground water pump electrocuted him in 2008. He was 24.

Last year, U.S. District Judge Nora Barry Fischer dismissed the case filed by his parents. In her 87-page decision, she found, among other things, that the court could not decide whether KBR was negligent because it is not allowed to pass judgment on military and political decisions under the separation of powers doctrine.

Three judges of the 3rd U.S. Circuit Court of Appeals disagreed in a 55-page precedential opinion that is now the law of Pennsylvania, New Jersey and Delaware.

"Defense contractors do not have independent constitutional authority and are not coordinated branches of government to which we owe deference," the judges wrote. They added that the accusations made by Maseth's parents don't require an evaluation of the military's decisions.

"I am so relieved and thankful that the 3rd Circuit made the decision that they did, and I am very hopeful and looking forward to the case heading to trial," said Maseth's mother, Cheryl Harris of Cranberry.

"It's not about money," she added. "It's about contractors really doing the work that they're paid to do, and that's taking care of our soldiers. ... If anything, I'm just hoping for justice for Ryan and all of the soldiers serving in Iraq and Afghanistan."

KBR is "disappointed in the court's decision and are reviewing it to determine the appropriate next steps," the company indicated in a written statement. "KBR continues to believe that District Judge Fischer's meticulous analysis of the facts and law, and her dismissal of the suit, was correct. During the war in Iraq, KBR was fully integrated into the military's combatant activities and acted under the direction of the military."

KBR can now seek a review by the entire 3rd Circuit, appeal to the U.S. Supreme Court, or let the matter return to Judge Fischer's courtroom, Downtown.

"There is a long way to go, and that's OK," Ms. Harris said. "We've waited five years and the outcome [Thursday] was positive."

The Circuit Court judges told Judge Fischer to decide a contested legal point in the case -- whether the laws of Pennsylvania, Tennessee or Texas apply -- before weighing whether KBR's defenses would prevail. Maseth's parents live in the Pittsburgh area, he lived in Tennessee and KBR is based in Texas.

"If Pennsylvania law applies, then this case ... may proceed," the judges wrote. The case might be dismissed or go forward with a greatly reduced damages claim, however, if Tennessee or Texas laws apply, the judges continued.

KBR had at one point argued that the case should be heard under Iraqi law, but Judge Fischer dismissed that motion.

The gist of the appeals court's decision, according to William S. Stickman IV, one of the attorneys for Maseth's parents: "KBR's a company, not a branch of the federal government."

That means the firm can't successfully argue that questioning its performance of "routine tasks under its contracts with the military" is equivalent to challenging decisions made in the political realm or in the heat of combat, he said.

Mr. Stickman said the 3rd Circuit's decision will be "strongly persuasive" in cases in other areas of the country regarding defense contractors. That means it could help many families who have lost loved ones as a result of military contractor errors.

"He was a soldier who put his life on the line to defend our country," Mr. Stickman said, "and never expected to die in the shower."

nation

Rich Lord: rlord@post-gazette.com, 412-263-1542 or Twitter @richelord.


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