Electrocution case against KBR can be tried in US court, judge rules
By CHARLIE REED | STARS AND STRIPES Published: October 4, 2011
YOKOTA AIR BASE, Japan — A civil lawsuit brought against KBR by the parents of a U.S. soldier electrocuted in Iraq can go forward in U.S. court, after a federal judge ruled the case should not be governed by Iraqi laws.
Attorneys for the defense contractor had argued that Iraqi laws should apply to the case because Army Staff Sgt. Ryan Maseth’s death in 2008 occurred on a military base in Iraq. But, for the second time in four months, Judge Nora Barry Fischer sided with Maseth’s family, saying U.S. law is applicable because the base was under American control, according to an Associated Press report.
The 24-year-old Maseth, a Green Beret, died in January 2008 while showering at the Radwaniyah Palace Complex in Baghdad, a facility maintained by KBR. A Defense Department investigation concluded that KBR workers failed to properly ground a water pump, which led to his electrocution.
Fischer’s ruling — handed down last month in the U.S. District Court of Western Pennsylvania — means KBR could be found liable and ordered to pay punitive damages to the plaintiffs, Cheryl Harris and Douglas Maseth.
“I’m very pleased. It’s been a long 3½ years,” Harris, Maseth’s mother, told Stars and Stripes from her Pennsylvania home Monday. “KBR is trying to prolong the case and argue everything they can.”
In her ruling, the judge 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,” according to the AP report.
Fischer had made the same ruling in June, but KBR lawyers had asked her to reconsider.
She 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, according to the AP.
Daniel Russell, an attorney for KBR, said Monday the contractor had no immediate comment on the decision, the AP said.
Following a string of other fatal and nonfatal electrical incidents involving U.S. personnel in Iraq, it was Maseth’s death that spurred a DOD investigation into the widespread electrical problems at bases throughout the country. Both KBR employees and military commanders failed to ensure the safety of troops at the base where Maseth was electrocuted in the shower, according to a July 2009 inspector general report.
KBR reported electrical problems at the palace complex to the military before Maseth was killed, yet was never told to fix the problems until after his death, a KBR spokeswoman told USA Today that same month.
The IG report found that electrical shocks were so commonplace that many incidents went unreported and were considered to be just part of duty in Iraq.
Despite the IG’s findings, the Army decided no one should be held criminally liable for Maseth’s electrocution.
While many contractors and government employees “breached their respective duties of care … none of those breaches in and of themselves were the proximate cause of his death,” the Army said in a statement released after the IG report came out.
The Army’s handling of the case disturbs Harris as much as KBR’s failure to take responsibility in the case.
“Soldiers are shocked and shocked and then one is killed, and it’s no one’s fault?” Harris said Monday.
Fischer now must determine whether to apply liability laws from Pennsylvania, Maseth’s home state; Tennessee, where Maseth’s unit was based; or Texas, where KBR is headquartered, AP reported.