Update: Open Pit Burn Lawsuits

Washington, DC"We are pushing the open pit burn litigation as fast as possible," says attorney Susan Burke, Burke PLLC. "Unfortunately no lawsuit can reverse the course of a disease. It breaks your heart, especially because these people fought for us—it's not like they have been killed by enemy fire." Burke has filed claims for hundreds of people who were deployed to Iraq and Afghanistan; a few have already died.

"It is so sad to see these people, to see their quality of life destroyed," says Burke, who filed the first open pit burn case (Eller v. KBR, Inc.) in Texas in 2008. Joshua Eller accused KBR of exposing thousands of people to unsafe conditions due to "faulty waste disposal systems." The suit asks that both Halliburton and KBR concede all revenue and profits earned "from their pattern of constant misconduct and callous disregard to the welfare of Americans serving and working in Iraq." (For further details read the Army Times online.)

According to the Houston Chronicle, Feb 2010, 43 federal lawsuits with more than 300 plaintiffs, including family members of 12 dead workers, claim that KBR and other companies with US military contracts poisoned military personnel and civilian workers by burning toxic waste—including a human arm, asbestos, batteries and more—in open pits. (The lawsuits have been consolidated into one class action in the US District Court for the District of Maryland, with Susan Burke as lead counsel for plaintiffs.)

KBR officials said that their company operated only 10 of the sites named in the lawsuits. "The company disputes that any burn pit directly harmed the health of soldiers or others, saying litigants have failed to prove exposure to burn pits caused the many symptoms they later reported suffering," said Mark Lowes, vice president of litigation for KBR.

Burke said that aside from Balad, all of those pits named in the suits "apparently remain in operation." And people are still calling her office with serious respiratory issues or cancers "that their physicians think arose from Iraq or Afghanistan," she says. "We see young people who were healthy before they were deployed, and coming back home they can't even climb up a flight of stairs because their lungs are failing."

Burke says that respiratory problems have likely developed from burn materials that have caused the destruction of small airways in the lungs. And there is a growing body of scientific literature, including that of Dr. Miller at Vanderbilt University, linking open burn pits with respiratory illnesses and other serious issues.

At what stage is the open pit burn litigation?

Burke says that KBR "is asserting a derivative sovereign immunity defense," meaning that the company is trying to place itself in the shoes of the military and enjoy the same type of immunity from lawsuits that the military enjoys. The doctrine of derivative sovereign immunity applies to government contractors and gives them immunity; KBR argues they are immune from liability under derivative sovereign immunity; therefore they should be protected from these lawsuits.

"This legal issue is the first issue to be litigated," Burke explains, "so there is a period of discovery and we are beginning the discovery process linked to this issue. Then the court will rule and the case will proceed to the merits discovery."

Who can make an open pit burn claim?

"There have been a broad array of things burned so the combination of these [waste products] make it particularly toxic and they burnt everything, from plastic water bottles to medical waste," says Burke. "The real issue was how close the living quarters were and where people worked to the proximity to the smoke. Some pits operated around the clock so there is also an issue of quantity of smoke; even someone with a short deployment in an area constantly filled with smoke could be at risk."