NORA BARRY FISCHER, District Judge.
In this Memorandum Opinion, the Court addresses the narrow question of whether Iraqi law should be applied to certain of Plaintiffs Cheryl Harris and Douglas Maseth's ("Plaintiffs") claims in this case, as requested by Defendant Kellogg, Brown & Root Services, Inc. ("KBR"). KBR's motion for the application of Iraqi law has been fully briefed and the Court has entertained oral argument from counsel. (Docket Nos. 215, 216, 218, 221, 229, 231). The parties have also supplied the Court with evidence of the potentially applicable Iraqi law; KBR has presented an expert report and a supplemental expert report describing Iraqi law under the Iraqi Civil Code while Plaintiffs have submitted Coalition Provisional Authority 17, an Order which governed United States-Iraqi relations for a period starting in late 2003 until 2008. (Docket Nos. 216-1, 218, 221-1). Upon consideration of the parties' submissions and arguments, KBR's motion to apply Iraqi law is DENIED.
Plaintiffs Cheryl Harris and Doug Maseth are the parents of Staff Sergeant Ryan Maseth and administratrix and administrator, respectively, of his estate. (Docket No. 209). Both are domiciled in Pennsylvania. (Id. at ¶¶ 1-2). Staff Sergeant Maseth's estate is being administered in the state of Tennessee, where he had purchased a home shortly before commencing his second tour in Iraq. Defendant is a domiciliary of Texas, where its principal place of business is located, and Delaware, where it is incorporated. (Id. at ¶ 3). Plaintiffs allege that KBR's negligent conduct caused injuries to Staff Sergeant Maseth and his death in Iraq, resulting in damages. (Id. at ¶¶ 11-30). Plaintiffs also allege that KBR's negligent conduct caused them damages in Pennsylvania, including that:
(Id. at ¶ 31).
At the time of his death, Staff Sergeant Maseth was serving his second tour in Iraq as an "active duty Army Ranger and Green Beret, serving in the 5th Special Forces Group (Airborne) of the United States Army." (Id. at ¶ 6). Staff Sergeant Maseth was housed at a building known as LSF-B1. (Id. at ¶ 11). KBR provided operations and maintenance services to the RPC and LSF-B1 pursuant to the LOGCAP III contract with the United States Army. (Id. at ¶¶ 8-10).
The parties do not dispute that, on January 2, 2008, Staff Sergeant Maseth was electrocuted while showering in his living quarters in building LSF-B1 at the RPC. Harris v. Kellogg, Brown & Root Services, Inc., 618 F.Supp.2d 400, 414 (W.D.Pa. 2009). Staff Sergeant Maseth's exposure to electric current caused him to suffer cardiac arrest, which resulted in his death. Id. The source of the electric current was determined to be a water pump located on the roof of LSF-B1. Id. at 414-15.
Plaintiffs allege that KBR's negligence in performing its operations and maintenance services, particularly, its negligent performance or non-performance of electrical maintenance services at LSF-B1, including same as to the malfunctioning water pump, was the proximate cause of Staff Sergeant Maseth's death. (Docket No. 209 at ¶¶ 11-30). Plaintiffs' claims sound in negligence and are brought under Pennsylvania's wrongful death and survival statutes. (Id. at ¶¶ 32-39). KBR argues that it is not liable to Staff Sergeant Maseth's estate and contends, among other things, that its responsibilities to perform electrical maintenance at the base were limited under the LOGCAP III contract and relevant Task Orders. (Docket No. 217).
In his expert report, Professor Haider Ala Hamoudi
If applicable, Professor Hamoudi posits that Plaintiffs' common law tort claims would arise under the Iraqi Civil Code articles governing "wrongful actions."
Professor Hamoudi highlights the limitations of "causation" under the Iraqi Code. He quotes Article 211, as follows:
(Id. at ¶ 35). Under Iraqi law, joint and several liability may apply to harm caused by multiple actors, subject to exceptions. (Id.). As described by Professor Hamoudi, "one party is released from liability to the extent that the harm caused by the wrongful act of another, whether subsequent or precedent, `drowns out' the first party's wrongful act." (Id. at ¶ 36). Under the "drowning out" exception, an intentional act will "drown out" the negligent act and the negligent party will not be held responsible. Also, a negligent party will not be responsible if "one of the causes is the result of the other" or, stated differently, "where there are two negligent acts, one built upon and the product of another, the second negligent act is `drowned out' by the first, and is no longer considered a cause of harm." (Id. at ¶¶ 38-40).
Article 205(2)-(3) provides that:
(Id. at ¶ 41). According to Professor Hamoudi, leading commentators agree that these sections "preclude the possibility of moral harm recovery on the part of a decedent victim as opposed to his family members." (Id. at ¶ 42). In addition, "compensation for material harm that has befallen a decedent victim, such as hospital or funeral expenses, is recoverable under Iraqi law, but compensation for moral harm such as pain and suffering or emotional distress on the part of the decedent (as opposed to his family members), is not." (Id. at ¶ 44). Under Iraqi law, the decedent's claim for moral harm remains inchoate at the time of his death and the right to recovery cannot be transferred to another person unless it is first determined by agreement or final judicial ruling. (Id. at ¶ 42). Among the reasons for this legal principle is that there are no estates under Iraqi law and the intestacy rules permit only a dividing of property amongst one's heirs at the time of his death. (Id.).
Under Iraqi law, "the purpose of a civil trial cannot involve punishment or deterrence in any form." (Id. at ¶ 50). Thus, he opines, consistent with leading commentators on Iraqi law, that compensation available under the Iraqi Civil system is solely for harm suffered and punitive damages are unavailable. (Id. at ¶ 49). The reasons for this rule are that punishment for a wrong is "solely within the ambit of the Penal Code and the criminal courts responsible for interpreting and applying it," while the civil system is meant to compensate victims, only. (Id. at ¶ 56). This policy is furthered by a number of procedural rules which essentially stay a civil proceeding in the wake of a criminal case arising out of the same facts. (Id.). Moreover, if there is a finding of guilt, that finding remains binding in the civil courts. (Id.).
Kalasho v. Republic of Iraq, 2007 WL 2683553, at *6 (E.D.Mich., Sept. 7, 2007).
Coalition Provisional Authority Order Number 17 ("Order 17") "was issued by Paul Bremer, the head of the Coalition Provisional Authority, during the early days of the U.S. occupation of Iraq." Galustian v. Peter, 591 F.3d 724, 728 (4th Cir.2010). A revised Order 17 was later issued and the terms of Order 17 remained in place after the transfer of sovereignty to the Iraqis in 2004. Id. Pertinent here, section 4.2 of Order 17 provides that:
(Docket No. 218-2 at § 4.2) (emphasis added). In addition, section 4.3 of Order 17 states:
(Id. at § 4.3) (emphasis added). Finally, Section 18 provides that:
(Docket No. 218-2 at § 18) (emphases added).
Galustian v. Peter, 750 F.Supp.2d 670, 678, n. 17 (E.D.Va.2010) (quoting SOFA Art. 12, § 2).
Although he did not address Order 17 in his initial expert report, Professor Hamoudi admits in his supplemental report that "Iraqi practitioners and legal academics all concede that CPA Orders are a valid part of Iraqi law unless repealed." (Docket No. 220-1 at ¶ 2). However, he claims that CPA Orders are "often ignored" by Iraqi courts because these provisions were drafted by "non-Iraqi lawyers with little or no knowledge of the Iraqi legal system." (Id.). Professor Hamoudi opines that the language of sections 4.2 and 4.3 of Order 17 suggests that these provisions were not drafted in a manner consistent with Iraqi law under its Civil Code. (Id. at ¶¶ 3-5). He posits that sections 4.2 and 4.3 of Order 17 apply different legal standards: under section 4.2, Iraqi law may not apply to "matters relating to terms and conditions of a contract"; and, pursuant to section 4.3, "Contractors are immune from Iraqi legal process." (Id. at ¶¶ 6-7). Professor Hamoudi makes no reference to section 18 of Order 17 in his Supplemental Expert
On March 31, 2009, this Court denied KBR's motion to dismiss Plaintiffs' claims relying on the political question doctrine and combatant activities exception to the Federal Tort Claims Act, without prejudice. Harris v. Kellogg, Brown & Root Services, Inc., 618 F.Supp.2d 400, 434 (W.D.Pa.2009). This Court later denied KBR's motion requesting that the Court certify the legal questions presented by these defenses and to authorize the filing of an interlocutory appeal. Harris, 2009 WL 1248060 (W.D.Pa. Apr. 30, 2009). Despite the denial of an interlocutory appeal, KBR appealed the Court's March 31, 2009 ruling to the United States Court of Appeals for the Third Circuit on April 30, 2009. (Docket No. 166). The Court of Appeals dismissed KBR's appeal and remanded the case for further proceedings. Harris, 618 F.3d 398 (3d Cir.2010).
On remand, KBR attempted to limit discovery to the defenses it raised in its earlier motion to dismiss, but the Court ordered the parties to commence discovery as to Plaintiffs' claims and KBR's defenses. Harris, 2010 WL 4614694 (W.D.Pa. Nov. 5, 2010). However, the Court permitted KBR to bring the present motion while discovery was ongoing. (Docket No. 198).
KBR filed its motion for the application of Iraqi law, brief in support and expert declaration on February 4, 2011. (Docket Nos. 215, 216). Plaintiffs responded by filing a brief in opposition and exhibits on February 21, 2011. (Docket No. 218). After receiving leave of court, KBR filed its reply brief and a supplemental expert declaration on March 10, 2011. (Docket No. 221). The Court heard oral argument from counsel during a motion hearing on April 5, 2011. Subsequent to the argument, the parties submitted supplemental briefing; KBR filed its supplemental brief on April 27, 2011 while Plaintiffs filed their supplemental brief on May 5, 2011. (Docket Nos. 229, 231). Because the Court has heard oral argument and reviewed all of the parties' submissions, KBR's motion is now ripe for disposition.
In its motion for the application of Iraqi law, KBR has requested that this Court apply the laws of a foreign country to Plaintiffs' claims in his case. (Docket Nos. 215, 216). To this end, Rule 44.1 of the Federal Rules of Civil Procedure provides that:
Fed.R.Civ.P. 44.1. "The parties ... generally carry both the burden of raising the issue that foreign law may apply in an action, and the burden of adequately proving foreign law to enable the court to apply it in a particular case." Bel-Ray Co., Inc. v. Chemrite (Pty) Ltd., 181 F.3d 435, 440 (3d Cir.1999). "Where parties fail to satisfy either burden the court will ordinarily apply the forum's law." Id. at 441. Thus, Rule 44.1 imposes no obligation on this Court to determine foreign law on its own accord, but this Court also possesses "broad authority to conduct [its] own independent
The threshold issue raised by the parties is whether the provisions of the Iraqi Civil Code are potentially applicable to this case as KBR suggests or if Plaintiffs' view that Order 17 supplants the provisions of the Iraqi Civil Code in favor of the laws of the United States of America or one of its States should be adopted. (Docket Nos. 216, 218, 221). As discussed above, KBR has supplied the Court with an expert report from Professor Hamoudi summarizing the potentially relevant provisions of the Iraqi Civil Code. (Docket No. 216-1). Plaintiffs do not quarrel with his summary; instead, they argue that the provisions of Order 17 should govern. Specifically, section 18 of Order 17 provides that:
(Docket No. 218-2 at § 18) (emphases added). They also point to sections 4.2 and 4.3 of Order 17 for further support of their position.
Professor Hamoudi's initial report made no reference to Order 17. (See Docket No. 216-1). However, in his supplemental report, he admitted that Order 17 was a "valid part of Iraqi law unless repealed" and that the CPA was not repealed until November 17, 2008, eleven months after Staff Sergeant Maseth's death, which is the subject of this lawsuit. (Docket No. 220-1 at ¶¶ 1, 8). He further acknowledged that section 4.2 provides that government contractors are not subject to Iraqi laws regarding the terms and conditions of their contracts and that government contractors are immune from Iraqi legal process pursuant to section 4.3. (Id.). Therefore, despite the apparent consensus that Order 17 was incorporated into Iraqi law and applied to government contractors, Defendant's Iraqi law expert only addressed same in response to the Plaintiffs' arguments. In addition, Professor Hamoudi's supplemental expert report ignores section 18, despite the fact that Plaintiffs relied on that section in their opposition. (See Docket Nos. 220-1; 218). Hence, the Court questions the credibility of the defense expert, given the lack of any reference to Order 17 in his initial report and the lack of completeness in his supplemental report. See BP Chemicals Ltd. v. Formosa Chemical & Fibre Corp., 229 F.3d 254, 268 (3d Cir.2000) (holding that under Rule 44.1 "the District Court is in the best position to determine what at this point is essentially a credibility issue—i.e., which expert to believe.").
As Professor Hamoudi did not address section 18, the Court is left with only legal argument from the parties regarding the proper interpretation of that provision.
Aside from these decisions, KBR's primary argument against the application of Order 17 is that KBR's services provided to the Army in Iraq "arise in connection with military operations" and, thus, section 18 of Order 17 does not apply. This Court rejects such a broad interpretation of section 18, which ignores the preceding clause of the provision. See Abbott v. Abbott, ___ U.S. ___, 130 S.Ct. 1983, 1990, 176 L.Ed.2d 789 (2010) (quoting Medellín v. Texas, 552 U.S. 491, 506, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008)) ("The interpretation of a treaty, like the interpretation of a statute, begins with its text."). Again, section 18 provides that the sending state's laws apply to third party personal injury claims, including those resulting in death, from acts or omissions of the Contractor "for activities relating to performance of their Contracts ... and that do not arise in connection with military operations." CPA Order 17, § 18. The reason for the enactment of Order 17 was to provide some governance of the Coalition Provisional Authority, a transitional government put in place after the United States' invasion of Iraq and continued military operation there. Kalasho, 2007 WL 2683553, at *6. The Contracts entered into with government contractors referenced in this Order (which would include the LOGCAP III Contract under which KBR operated in Iraq) all necessarily supported this mission. Considering this background, the adoption of KBR's interpretation, i.e., that the instant case "arises in connection with military operations" because its contract supported the military base, would encompass virtually all claims, rendering the language concerning "for activities relating to performance of their Contracts" under section
In sum, given KBR's admissions, through Hamoudi, that Order 17 precluded claims against contractors related to their contracts under Iraqi law, and that contractors were immune from suit in Iraqi courts, as well as the Court's interpretation of section 18 of Order 17, KBR has failed to meet its burden to persuade this Court that the recited portions of the Iraqi Civil Code possibly govern this litigation. Accordingly, KBR's motion for the application of Iraqi law is denied. Thus, the law of the forum must apply. Bel-Ray Co., Inc., 181 F.3d at 441.
Notwithstanding that the Court has concluded that KBR has failed to meet its burden under Rule 44.1, and KBR's motion fails on this basis alone, the Court will continue with its analysis of the remainder of the parties' arguments. In so doing, the Court must first determine whether the instant matter is controlled by the federal statute relied upon by KBR, 16 U.S.C. § 457 or Pennsylvania choice of law rules, as are generally applied in choice of law disputes by a district court sitting in Pennsylvania. See Cruz v. Chesapeake Shipping, Inc., 932 F.2d 218, 224-225 (3d Cir. 1991) (analyzing whether a federal law, the Fair Labor Standards Act, or common law choice of law standards governed dispute).
KBR argues, in part, that the Court should apply Iraqi law to Plaintiffs' claims in this case based on its interpretation of the doctrine of federal enclave jurisdiction as codified at 16 U.S.C. § 457. (Docket No. 229). KBR reasons that section 457 requires courts to apply the law of the surrounding state in negligence or wrongful death cases which occur within a place
The Court turns to section 457, which provides that:
16 U.S.C. § 457. The term "State" is undefined in the statute. However, the legislative history provided by the parties indicates that "State" refers to one of the 50 States in the Union. (See Docket No. 229-3)
Having concluded that section 457 does not govern, the Court must turn to a traditional choice of law analysis. In determining which jurisdiction's laws to apply to Plaintiffs' wrongful death and survival claims, this Court applies Pennsylvania's choice of law rules. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In the past, Pennsylvania adhered to the principle of lex loci delicti, and applied the law of the place of the wrong in tort cases. See Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (Pa.1964). However, Pennsylvania has long since abandoned this approach. Id. Instead, Pennsylvania conflicts law has combined a "governmental interest analysis" with the Restatement (Second) of Conflicts theory, thereby adopting a "hybrid" approach. Hammersmith v. TIG Ins. Co., 480 F.3d 220, 230 (3d Cir.2007) (citing Melville v. American Home Assur. Co., 584 F.2d 1306 (3d Cir. 1978) and Griffith, 416 Pa. 1, 203 A.2d 796).
This approach requires the Court to first determine whether there is a relevant difference between the law of the jurisdictions whose laws potentially apply, i.e., whether there is a conflict. Hammersmith, 480 F.3d at 230. If their respective laws are the same, there is no conflict at all and the choice of law analysis ends; the law of the forum, Pennsylvania law here, would apply. Id. If the laws differ, the Court must examine the policies underlying the law of each jurisdiction and determine whether the conflict is "true," "false," or "unprovided for." Id.
"A true conflict exists when the governmental interests of [multiple] jurisdictions would be impaired if their law were not applied." Budget Rent-A-Car Sys. v. Chappell, 407 F.3d 166, 170 (3d Cir.2005) (quoting Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 & n. 15 (3d Cir.1991)). If a true conflict exists, the Court must then determine which state has the "greater interest in the application
A false conflict exists only if one jurisdiction's governmental interests would be impaired by the application of another jurisdiction's law. Budget Rent-A-Car, 407 F.3d at 170. When there is a false conflict, the court must apply the law of the only interested jurisdiction. Id. If no jurisdiction's interests would be impaired if its laws were not applied, there is an "unprovided for" conflict and lex loci delicti (the law of the place of the wrong) continues to govern. Budget Rent-A-Car Sys., 407 F.3d at 170 (citing Miller v. Gay, 323 Pa.Super. 466, 470 A.2d 1353 (1983)).
Restatement (Second) of Conflict of Laws § 6 (1971).
Taylor v. Mooney Aircraft Corp., 265 Fed. Appx. 87, 91 (3d Cir.2008).
Our Court of Appeals has reasoned that Pennsylvania choice of law analysis "employs depecage,
There is an actual conflict of laws between the laws of Iraq, Pennsylvania, Tennessee and Texas as to causation and, more specifically, whether a second negligent actor may be liable if the negligence caused by the first actor would have caused the harm to the plaintiff without the second negligent act.
Under Iraqi law, a second negligent party will not be held responsible if "one of the causes is the result of the other" or, stated differently, "where there are two negligent acts, one built upon and the product of another, the second negligent act is `drowned out' by the first, and is no longer considered a cause of harm." (Id. at ¶¶ 38-40). In his reports, Professor Hamoudi does not provide a precise opinion
Under Pennsylvania law, a defendant is liable if his negligent conduct was a "factual cause" of the harm to the plaintiff. Pa. SSJI (Civ), § 3.15. "Conduct is a factual cause of harm when the harm would not have occurred absent the conduct. To be a factual cause, the conduct must have been an actual, real factor in causing the harm, even if the result is unusual or unexpected. A factual cause cannot be an imaginary or fanciful factor having no connection or only an insignificant connection with the harm." Id. However, "[t]o be a factual cause, the defendant's conduct need not be the only factual cause. The fact that some other causes concur with the negligence of the defendant in producing an injury does not relieve the defendant from liability as long as [his or her] own negligence is a factual cause of the injury." Id. In addition,
Pa. SSJI (Civ), § 3.17. The explanatory comments note that "[a] defendant cannot escape liability where his or her negligent conduct would have brought about the harm by itself simply because another force coincidentally would also have brought about the harm if acting alone." Id.
Pennsylvania law also employs a comparative negligence regime whereby a plaintiff is not barred from recovery based on his or her own contributory negligence "where such negligence is not greater than the causal negligence of the defendant or defendants against whom recovery is sought." 42 Pa.C.S. § 7102(a). If multiple defendants are found liable for the harm caused to the plaintiff, they are each held responsible for damages to the extent of their proportional responsibility for the harm caused to the plaintiff. 42 Pa.C.S. § 7102(b). However, they remain jointly and severally liable for the full amount of damages owed to the plaintiff. Id. Under this scheme, "[t]he plaintiff may recover the full amount of the allowed recovery from any defendant against whom the plaintiff is not barred from recovery." Id. But, "[a]ny defendant who is so compelled to pay more than his percentage may seek contribution" from any other defendants, up to their proportionate amount of the damages. Id. The policies underlying Pennsylvania's scheme both as to causation and damages protect plaintiffs to greater ensure that they will receive full recovery of their damages for harm suffered.
"Under Texas law, if a plaintiff has evidence that a defendant's negligence is a proximate cause of an accident, the plaintiff need not make any attempt to rule out other proximate causes of the accident because `[t]here can be more than one
Texas law also has a system of proportionate responsibility under which "a claimant may not recover damages if his percentage of responsibility is greater than 50 percent," but, if the claimant's responsibility is 50 percent or less, the trier of fact is tasked with determining the percentage of responsibility for the harm among the relevant parties. Tx.Civ.Prac. & Rem. Code §§ 33.001, 33.003. Each defendant is liable only for the percentage of damages equal to the defendant's percentage of responsibility as found by the trier of fact, except that a defendant who is found responsible for greater than 50 percent of the harm is held jointly and severally liable with the other responsible defendants. Id. at § 33.013. However, if this defendant pays a judgment in excess of its percentage of responsibility, it can assert a claim for contribution against the other responsible party. Id. Like Pennsylvania's causation's laws, Texas law protects plaintiffs to ensure that all individuals responsible for negligent conduct are liable for same and also ensures that plaintiffs will be compensated for their injuries.
Tennessee law embodies similar principles to the laws of Pennsylvania and Texas. Tennessee employs a three-prong test for assessing proximate cause:
Russell v. Anderson County, 2011 WL 486900, at *11-12 (Tenn.Ct.App. Feb. 11, 2011) (quoting McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn.1991)). Further, pursuant to Tennessee law, "[a]n injury may be proximately caused by more than one negligent act or omission[;] [t]hus, a negligent act or omission need not be the sole cause of an injury to be a proximate cause." Id. (citing Kelley v. Johnson, 796 S.W.2d 155, 159 (Tenn.Ct.App.1990) and McClenahan, 806 S.W.2d at 775). In addition, "it is not necessary that tortfeasors or concurrent forces act in concert, or that there be a joint operation or a union of act or intent, in order for the negligence of each to be regarded as the proximate cause of the injuries, thereby rendering all tortfeasors liable." McClenahan, 806 S.W.2d at 775. Tennessee operates a modified comparative fault system whereby a plaintiff may not recover in tort against a defendant if he was over 50 percent at fault. See McIntyre v. Balentine, 833 S.W.2d 52, 57 (Tenn.1992). If a plaintiff is less than 50 percent at fault, his damages are reduced in proportion to the percentage of the total recovery against the responsible parties. Id. As a consequence, "the proximate contributory negligence of the plaintiff is no longer a bar to recovery." Reed v. McDaniel, 2010 WL 623619 (Tenn.Ct.App. Feb. 23, 2010) (citing McIntyre, 806 S.W.2d at 57). Also under this regime, a defendant is "liable only for the percentage of a plaintiff's damages occasioned by that defendant's negligence," rendering contribution claims between co-defendants obsolete. McIntyre, 833 S.W.2d at 58.
In light of the foregoing, there is an actual conflict between the laws of causation
Having found that there is an actual conflict between the potentially applicable laws, the Court must next classify the conflict in laws as either "true", "false" or "unprovided for". To do this, the Court looks to the policies underlying the laws of each jurisdiction and determines whether each jurisdiction has a governmental interest in applying its own laws. Budget, 407 F.3d at 170.
Both parties initially argued that this case presented a "true conflict"; however, the Court believes that this case actually presents a false conflict when comparing the proffered Iraqi law with the laws of the interested states. (See Docket Nos. 216, 218). KBR argues that Iraq has the greatest interest in its law being applied because it is the place of the wrong. (See Docket No. 221 ("Plaintiffs fail to address the long line of Pennsylvania cases holding that where the accident and all alleged tortious conduct took place in a particular forum, that forum's law will almost always apply.")). However, KBR seemingly ignores that Pennsylvania long ago abandoned the doctrine of lex loci delicti, and does not currently apply the law of the place of the wrong in tort cases. Griffith, 416 Pa. 1, 203 A.2d 796.
To this end, this case is analogous to Budget Rent-A-Car System, Inc. v. Chappell, 407 F.3d 166 (3d Cir.2005). That decision involved a vehicle accident in Pennsylvania wherein the plaintiff, a New York resident, was injured after her boyfriend, a Michigan resident, fell asleep at the wheel of the car. Id. Plaintiff was paralyzed as a result of the accident and brought suit against Budget, a Michigan corporation which had rented the vehicle involved in the accident, under a theory of vicarious liability. Id. The Court of Appeals applied Pennsylvania choice of law rules and noted that:
Budget Rent-A-Car System, 407 F.3d at 177, n. 9. A survey of decisions applying Pennsylvania choice of law rules clearly demonstrates that the law of the place of the wrong no longer governs. See e.g., Kunreuther v. Outboard Marine Corp., 749 F.Supp. 658 (E.D.Pa.1990) (applying Pennsylvania law to a products liability action wherein a resident of Pennsylvania was injured by a product manufactured and sold by an Illinois defendant in the United States but the injury occurred in Jamaica); Manning v. Richards, 15 Pa. D. & C. 4th 91, 1992 WL 524239 (Pa.C.P. Jun. 19, 1992) (Pennsylvania law governed a lawsuit arising from an accident in Ocean City, Maryland between two Pennsylvania residents); Davis v. Sch. Dist. of Philadelphia, 91 Pa.Cmwlth. 27, 496 A.2d 903 (1985) (Pennsylvania law applied to an action wherein the plaintiffs and defendant were Pennsylvania residents but the accident occurred in Virginia); Farrell v. David Davis Enterprises, Inc., 1996 WL 21128 (E.D.Pa. Jan. 19, 1996) (Pennsylvania law applied to a case where an accident occurred in New Jersey involving New Jersey plaintiffs and Pennsylvania defendants because the case involved a "false conflict"); Carter v. Nat'l R.R. Passenger Corp., 413 F.Supp.2d 495 (E.D.Pa.2005) (Pennsylvania law applied to case involving an injury in Maryland, plaintiff from Pennsylvania
As discussed above in reference to the applicability of 16 U.S.C. § 457, KBR cites a number of decisions involving injuries on military bases and several arising under the Federal Tort Claims Act for support of its position that Iraqi law should be applied, including Jenkins v. Whittaker, 785 F.2d 720 (9th Cir.1986); Burgio v. McDonnell Douglas, Inc., 747 F.Supp. 865, 867-68 (E.D N.Y.1990); Shankle v. United States, 796 F.2d 742, 744 (5th Cir.1986) (military base); Lutz v. United States, 685 F.2d 1178, 1182 (9th Cir.1982) (military base). However, those decisions are distinguishable because none of them applied Pennsylvania choice of law rules. The wrongful death decisions applied the choice of law rules of the jurisdiction where the lawsuit was filed and none of the cases were filed in Pennsylvania. On the other hand, the FTCA requires that courts apply the choice of law rules of the location of the injury.
The Court now returns to Pennsylvania choice of law rules. Here, the Court has not been presented with any evidence of the policies underlying the causation law proffered by KBR. (See Docket No. 216-1). Professor Hamoudi's expert reports do not address such policies. (Id.; Docket No. 220-1). However, even assuming that among Iraq's reasons for adopting such a law is to protect a second actor from being held liable when the first actor's negligence would have caused the injury in the first instance, it is not clear that this policy will even be implicated in this case. Based on the prior arguments that have been presented to the Court in this case, the Court understands that 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. By advancing the causation law under the Iraqi Civil Code, KBR argues that if that law were applied, the Army's negligence would subsume its own negligence, if any. But, as this Court has recognized in its prior decisions, Plaintiffs allege that KBR was negligent not only in its failure to act and to warn Staff Sergeant Maseth of known electrical hazards, but also for its negligent performance of maintenance services on LSF-B1 and the malfunctioning water pump. (See Docket No. 209). The evidence previously presented to the Court suggests that KBR fixed the actual water pump on more than one occasion and was aware that it had caused other soldiers to be shocked in the same shower where Staff Sergeant Maseth was killed. See Harris, 618 F.Supp.2d at 413-14. Thus, while Plaintiffs' failure to act and/or warn claims may be implicated by the stated Iraqi policy, it does not appear to apply to the negligent performance claims.
Iraq's interest in applying its law in this case is also questionable, at best. KBR argues generally that Iraqi has a strong interest in applying its laws to government contractors given the language in the recent Status of Forces Agreement removing the immunities previously afforded to government contractors and to situations wherein wrongful conduct occurs within its borders. (Docket Nos. 216, 221). KBR also implies that Iraq's laws are designed to foster investment in its nation by foreign companies, such as KBR, and to encourage such businesses to operate in Iraq.
This Court, however, does not believe that any of the interests identified by KBR
KBR relies heavily on Tonkon v. Denny's, Inc., 650 F.Supp. 119 (E.D.Pa.1986) in support of its position, but Tonkon is easily distinguishable from this case. In Tonkon, a Pennsylvania resident fell on a public sidewalk outside a Denny's restaurant in Mexico City, Mexico. Denny's is a California corporation. The Court in Tonkon applied Pennsylvania choice of law rules and, despite not referencing the actual laws of Mexico, found that Mexican law should be applied to Denny's alleged negligent conduct because "Mexico ... has a strong interest in regulating the conduct of corporations in its country, particularly foreign companies who invest in Mexican enterprises and, therefore, bolster its troubled economy." Id. at 122.
KBR's business operations in Iraq were not akin to Denny's operations in Mexico. KBR operated in Iraq under a contract with the United States Army to provide services in support of the United States' military mission. The Court agrees that, in 2008, that mission may have benefited Iraq in some fashion, including, among other things, rebuilding Iraq's infrastructure and providing additional security. But, KBR certainly was not invited nor encouraged by Iraq's government to engage in business there. Instead, KBR's presence in Iraq was solely attributable to the United States' continued presence in that country after the initial invasion.
Further, Order 17 undermines Iraq's supposed interests in this litigation. See CPA Order 17. Pursuant to the CPA, Iraq agreed that government contractors such as KBR would not be subject to Iraq's laws in relation to their contracts, were immune from Iraqi process and that third party claims for personal injury and death should be resolved under the laws of the Sending State, i.e., the laws of the United States of America. CPA Order 17, §§ 4.2, 18. In addition, even though the immunity granted to government contractors was lifted by the execution of the Status of Forces Agreement, Order 17 was in effect on the date of Staff Sergeant Maseth's death, January 2, 2008. See CPA Order 17 § 20 (Effective Period, "This Order shall enter into force on the date of signature. It shall remain in force for the duration of the mandate ... and shall not terminate until the departure of the final element of the MNF from Iraq, unless rescinded or amended by legislation duly enacted and having the force of law.").
For these reasons, Iraq does not have any interest in applying its laws of causation to this case.
In contrast, Pennsylvania, Tennessee and Texas have pro-plaintiff causation laws, wherein negligent actors are held responsible for tortious conduct in proportion to the percentage of their negligence. Plaintiffs are Pennsylvania citizens. Staff Sergeant Maseth's estate is being administered in Tennessee. Thus, both Pennsylvania
In sum, Iraq has no interest in applying its causation law to this litigation, Texas has little interest in its law being applied, while the laws and policies of Pennsylvania and Tennessee would be impaired if Iraqi law was applied. Therefore, after applying Pennsylvania's choice of law principles, the Court finds that the conflict in laws results in a "false conflict" between the proffered Iraqi law and the laws of the interested states. When there is a false conflict, the court must apply the law of the only interested jurisdiction. Budget Rent-A-Car, 407 F.3d at 170. Here, Pennsylvania and Tennessee are both interested jurisdictions. There are subtle differences between the laws of Pennsylvania and Tennessee which potentially impact the present litigation. The present arguments, however, only tangentially address whether Pennsylvania or Tennessee law should be applied. Thus, the Court expresses no opinion regarding whether there is an actual conflict between these laws, or the classification of any potential conflict. At this juncture, the Court holds only that Iraqi causation law, as proffered by KBR, will not be applied.
Under Iraqi law, "compensation for material harm that has befallen a decedent victim, such as hospital or funeral expenses, is recoverable under Iraqi law, but compensation for moral harm such as pain and suffering or emotional distress on the part of the decedent (as opposed to his family members), is not." (Id. at ¶ 44). The proffered reasons or policies for this law include that Iraq's Civil System does not employ any procedure akin to the system of estates used in the United States after one's death and that under Iraqi legal theory the value of the pain and suffering of a decedent remains inchoate until a judicial ruling or agreement by parties. (Id.). Thus, if the individual dies, his heirs cannot claim a right to compensation for these injuries and damages. (Id.). Undoubtedly, this is a pro-defendant law and permits an otherwise negligent actor to be free from liability if his or her negligent conduct results in the death of the harmed individual.
However, Iraq has no interest in restricting the potential damage award against KBR in this case. Particularly apt here is holding by the Pennsylvania Supreme Court in Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (Pa. 1964). The Griffith Court held that "the state in which injury occurred [. . .] has relatively little interest in the measure of damages to be recovered unless it can be said with reasonable certainty that defendant acted in reliance on that state's rule. Moreover, where the tort is unintentional, the reliance argument is totally untenable." Griffith, 416 Pa. at 24, 203 A.2d 796.
For the same reasons set forth above, KBR did not rely on Iraq's laws when deciding whether to do business there. Instead, it decided to do business with the United States Army. Its contracts with the Army, including the LOGCAP III base contract and Task Order 139 at issue here, make no reference to Iraqi law or Iraqi standards for construction, electrical work
In sum, Iraq has no interest in protecting a foreign corporation from liability or damages to a non-citizen under a survival-type theory and KBR cannot be said to have relied on Iraq's laws because there is no evidence of actual reliance. For these reasons, Iraq's laws will not be impaired if the laws of another jurisdiction are applied.
Pennsylvania, Tennessee and Texas law clearly permit recovery for a decedent's pain and suffering and consequent damages. See 42 Pa.C.S. §§ 8301, 8302; Tex. Civ.Prac. & Rem.Code.Ann. §§ 71.002, 71.021; Tenn.Code.Ann. §§ 20-5-106-113, 20-5-101-105 and 114-120. The right to compensation in these jurisdictions accrues immediately on injury and survives the death of the decedent. Id. The policy reasons for these laws are to compensate the decedent's heirs for the harm suffered by the decedent while he or she was alive. The compensation is paid into the decedent's estate and, through the administration of the estate, those funds are used to pay off the decedent's creditors and the remaining funds are passed onto the decedent's beneficiaries. Here, again, Plaintiffs are Staff Sergeant Maseth's parents, who are also the administratrix and administrator of his estate. Plaintiffs have asserted claims against KBR in their own right under Pennsylvania's wrongful death statute. See Baumgart v. Keene Building Products Corp., 430 Pa.Super. 162, 633 A.2d 1189, 1191-92 (1993) ("in a wrongful death cause of action, recovery depends upon the rights of action that the beneficiaries, as named by statute, possess. Moreover, recovery amounts to the pecuniary loss suffered by the beneficiaries by being deprived of the part of the decedent's earnings they would have received had the decedent lived."); Moyer v. Rubright, 438 Pa.Super. 154, 651 A.2d 1139, 1141 (1994) ("wrongful death is not the deceased's cause of action. An action for wrongful death may be brought only by specified relatives of the decedent to recover damages in their own behalf, and not
Like the causation issue, the Court is presented with a "false conflict." Iraq and Texas have no interest in the application of their respective laws, but the laws of Pennsylvania and Tennessee would be impaired if Iraqi law were applied. Accordingly, KBR's motion to apply Iraqi survival law is denied.
Punitive damages are not available under Iraqi law. (Docket No. 216-1 at ¶ 49). The reasons proffered for the lack of punitive damages are that: the Iraqi Civil System permits damages for the purposes of compensation and making a victim whole, only; the Iraqi Criminal System is designed to punish and deter conduct; and, the Iraqi Criminal System takes precedence above all civil actions to the extent that a civil action is stayed pending any criminal prosecution resulting from the same set of facts and circumstances. (Docket No. 216-1 at ¶¶ 49-56).
In contrast, punitive damages are available under the laws of Texas, Tennessee and Pennsylvania. See Hutchison ex rel. Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766 (Pa.2005) ("Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others"); Tex. Civ. Prac. & Rem.Code § 41.001(5) ("`exemplary damages' means any damages awarded as a penalty or by way of punishment but not for compensatory purposes ... `exemplary damages' includes punitive damages."); Sanford v. Waugh & Co., Inc., 328 S.W.3d 836, 849 (Tenn.2010) (quoting Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 (Tenn.1992). ("To be entitled to an award of punitive damages, a plaintiff must prove by clear and convincing evidence that the defendant `acted either (1) intentionally, (2) fraudulently, (3) maliciously, or (4) recklessly.'")). The laws of these jurisdictions permit punitive damages in order to punish conduct that rises to the levels of culpability needed to sustain a claim for punitive damages. See e.g., Hutchison, 582 Pa. at 121-22, 870 A.2d 766 ("The purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others like him from similar conduct."); Tex. Civ. Prac. & Rem.Code § 41.001(5); Sanford, 328 S.W.3d at 849 (internal quotations omitted) ("punitive damages are intended to punish a defendant, to deter him from committing acts of a similar nature, and to make a public example of him"). The purposes for punitive damages under Pennsylvania and Tennessee law also include deterrence, while Texas appears to have abandoned deterrence as a reason for punitive damages. See Fairfield Ins. Co. v. Stephens Martin Paving, LP, 246 S.W.3d 653, 676-77 (Tex.2008) ("In 1995, the Legislature renumbered the provision Section 41.001(5) and amended it to delete the phrase, `as an example to others', leaving punishment as the sole purpose of punitive damages." and "[t]he Legislature's enlargement of the scope of Chapter 41 over time reflects its intent to establish punishment of the defendant as the sole purpose of punitive damages in Texas.").
At the outset, the Court notes that it expresses no opinion regarding whether an award of punitive damages would be proper at this early juncture of the litigation, or which state's laws governing punitive damages apply here. However, weighing the policies and respective interests of the relevant jurisdictions, the Court is again faced with a "false conflict" between the laws of Iraq vis-à-vis the laws of Texas, Tennessee and Pennsylvania. The reasoning employed above regarding the potential recovery of pain and suffering damages is equally applicable here.
In addition, KBR is an American corporation (Texas) and American laws (Texas law) generally authorize an award of punitive damages if the circumstances permit same. As such, KBR should expect that it may be liable for punitive damages if its conduct supports such an award, regardless of where it occurs and especially in instances where claims are brought against it by fellow Americans. A leading
Id. at § 17.50.
The proffered policy underlying the lack of punitive damages in Iraq, i.e., the relationship between the criminal and civil laws of Iraq, is not violated by the application of punitive damages laws of another jurisdiction in this case. There has been no suggestion that Iraqi authorities undertook a criminal investigation of any kind arising from the facts and circumstances of this case. However, as the parties are well aware, the United States Army investigated the facts and circumstances of this case and declined to bring criminal charges against KBR. (See Docket No. 186-3, Army Completes Staff Sgt. Maseth Death Investigation; August 7, 2009). Indeed, the fact that the United States undertook the criminal investigation undermines Iraq's supposed interest in administering its laws in the manner described by Professor Hamoudi. In addition, as a government contractor, KBR was immune from suit in Iraq at the time of Staff Sergeant Maseth's death. See CPA Order 17, § 4.3. Thus, Iraq's interest in administering its criminal and civil laws in the manner described by Professor Hamoudi is not implicated.
To conclude, the issue of punitive damages presents yet another "false conflict" between the laws of Iraq and the laws of the interested states. The purposes underlying the absence of punitive damages in Iraqi law will not be impaired if the laws of one of the interested states is applied. In contrast, the laws of the interested states will be impaired if Iraqi law is applied. Finally, as noted above, KBR is a Texas corporation and should expect that punitive damages may be awarded against it as a result of its conduct both here and abroad, especially in cases involving plaintiffs from the United States.
Even if KBR had met its burden to demonstrate Iraqi law to the Court, after applying Pennsylvania choice of law rules to this action, the Court finds that Iraq has no interest in the application of its laws of causation, survival and punitive damages to this litigation. Accordingly, KBR's motion to apply Iraqi law fails under this Court's analysis.
Based on the foregoing, KBR's motion to apply Iraqi is denied. The Court's holding is limited to this issue and the Court expressly reserves ruling as to which of the interested states' laws apply to Plaintiffs' claims and KBR's defenses in this action going forward. An appropriate Order follows.
Presently before the Court are Defendant Kellogg, Brown & Root Services, Inc.'s ("KBR") motion for reconsideration of the Court's June 17, 2011 Memorandum Opinion and Order denying its motion for the application of Iraqi law to this case (Docket No. 241) and Plaintiffs Cheryl A. Harris and Douglas Maseth's ("Plaintiffs") response thereto (Docket No. 244). KBR asserts that the Court committed numerous errors in resolving its motion for the application of Iraqi law, while Plaintiffs find no errors in the Court's discussion. (Docket Nos. 242, 244). Upon consideration of the parties' submissions and the relevant standard governing motions for reconsideration, and for the following reasons, KBR's motion [241] is denied.
This action arises out of the tragic death of Staff Sergeant Ryan D. Maseth, who was electrocuted while showering at a military base in Iraq. Harris, 796 F.Supp.2d at 646-47, 2011 WL 2462486, at *1. His parents, who are administering his estate, brought this action against KBR, the private defense contractor that contracted with the United States Army to provide maintenance services at the base, alleging, among other things, that KBR's negligence in its performance or non-performance of certain maintenance services was the proximate cause of Staff Sergeant Maseth's death. Id. at 646-48, at *1-2.
Pertinent here, KBR filed a motion requesting that Iraqi law be applied to this case, citing three separate provisions of the Iraqi Civil Code. (Docket No. 215). After considering the parties' extensive briefing, evidentiary submissions and hearing oral argument from counsel at a motion hearing on April 5, 2011, the Court denied KBR's motion for the application of Iraqi law on June 17, 2011. Harris v. Kellogg, Brown and Root Services, Inc., 796 F.Supp.2d 642, 2011 WL 2462486 (W.D.Pa. Jun. 17, 2011). In its decision, the Court denied KBR's motion on two, alternative bases, holding that: (1) KBR
Dissatisfied with the Court's decision, KBR filed the instant motion for reconsideration on July 1, 2011. (Docket No. 241). Along with its motion, KBR submitted a brief in support, a third affidavit from Professor Hamoudi and an amicus brief submitted by the Solicitor General's Office to the Supreme Court in Saleh et al. v. Titan Corp. et al. (Docket No. 242). KBR alleges that the Court committed numerous errors in its decision and also requested that the Court schedule oral argument on its motion. (Id.). Plaintiffs filed their brief in opposition to KBR's motion for reconsideration on July 11, 2011, opposing both reconsideration and the request for an additional hearing. (Docket No. 244). The Court denied KBR's request for a hearing on August 24, 2011 (Docket No. 245) and notified the parties that the motion would be submitted on the briefs. As all briefing has concluded, the motion is now ripe for disposition.
It is well settled that reconsideration of a prior order is only warranted if the moving party demonstrates: (1) an intervening change in the controlling law; (2) the availability of new evidence which was not available when the court issued its order; or (3) the need to correct a clear error of law or fact or to prevent a manifest injustice. Max's Seafood Café by Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir.1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir.1995)); see also Bootay v. KBR, Inc., 437 Fed.Appx. 140, 146-47, No. 10-4028, 2011 WL 2713804, at *5 (3d Cir.2011) (noting same legal standard on a motion for reconsideration).
A party's mere disagreement with the Court does not translate into the type of clear error of law which justifies reconsideration of a ruling. Miller v. Lamas, 2011 WL 398408, at *1, Civ. Act. No. 10-51 (M.D.Pa. Feb. 2, 2011) (citing Dodge v. Susquehanna Univ., 796 F.Supp. 829, 830 (M.D.Pa.1992)). Furthermore, "because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Id. (quoting Continental Casualty Co. v. Diversified Indus., Inc., 884 F.Supp. 937, 943 (E.D.Pa.1995)). It is evident that a motion for reconsideration is not a tool to re-litigate and reargue issues which have already been considered and disposed of by the Court. Id. (citing Dodge, 796 F.Supp. at 830). Rather, such a motion is appropriate only where the court misunderstood a party or where there has been a significant change in law or facts since the Court originally ruled on that issue. Id. (citing Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983)).
In light of the aforementioned legal standard, the Court will first address the alleged changes in law and/or new evidence presented by KBR and will then discuss KBR's claims that the Court committed legal and factual errors.
First, the Court finds that the two documents KBR has attached to its motion for
To this end, the Solicitor General's brief in the Saleh case was filed in May of 2011. (Docket No. 242-2). Thus, it was available prior to the Court's disposition of the motion for application of Iraqi law on June 17, 2011. Harris, 796 F.Supp.2d 642, 2011 WL 2462486. Although the brief is filed by the Solicitor General on behalf of the United States, it is not binding authority. It simply represents the position of that Office on behalf of the United States in the Saleh litigation. (See Docket No. 242-1). Specifically, it addresses the issue of whether the Supreme Court should grant a writ of certiorari and review the Saleh decision. (Id.). Therefore, the Solicitor General's brief constitutes neither a change in the law nor new evidence that was unavailable prior to the Court's disposition of the present motion.
A third affidavit from Professor Hamoudi is also now before the Court. (Docket No. 242-1). It contains further analysis of CPA Order 17, particularly section 18. (Id.). As the Court noted in the Opinion denying KBR's motion for the application of Iraqi law, Hamoudi's analysis of this section was absent from his first and second affidavits. Harris, 796 F.Supp.2d at 650-51, 652-54, 2011 WL 2462486, at *5, 7-8. But, from the Court's view, Hamoudi's analysis could have and should have been included given that the interpretation of section 18 was contested by the parties. Id. at 652-54, at *7-8. Hamoudi actually admits that he previously offered expert opinions in federal litigation about CPA Order 17 prior to his engagement in this case. (Docket No. 242-1). But, Hamoudi explains that he only offered his opinions regarding CPA Order 17 in his second affidavit in this case because he thought that it did not apply in any fashion. (Id.). Therefore, the evidence presented in the third affidavit is not "newly discovered" as it was available prior to the Court's disposition of the subject motion. See Max's Seafood Café, 176 F.3d at 677. For reasons left unstated, KBR and Hamoudi apparently decided not to include this information in their earlier submissions. As the evidence is not newly discovered, KBR's reliance on same does not support its motion for reconsideration.
The Court further notes that both KBR and Hamoudi appear to misunderstand why the Court questioned his "credibility" in the Opinion. (Docket Nos. 242, 242-1). It had nothing to do with his qualifications, as they suggest. (Id.). His qualifications were accepted by Plaintiffs and the Court. See Harris, 2011 WL 2462486 at n. 1 ("Plaintiffs have not contested that Professor Hamoudi is properly qualified as an
For these reasons, KBR's motion for reconsideration is denied to the extent that it has not sufficiently demonstrated any change in the applicable law or presented any new evidence which support reconsideration of the Court's Memorandum Opinion. See Max's Seafood Café, 176 F.3d at 677.
KBR next claims that the Court made a number of erroneous legal conclusions and factual findings during its analysis of whether Iraqi law should apply to this case. (Docket No. 242). Specifically, KBR challenges the Court's analysis of CPA Order 17, its application of Pennsylvania choice of law rules and essentially all other aspects of the Court's decision. Plaintiffs find no error with the Court's analysis. (Docket No. 244). From the Court's view, KBR "protests too much" and, for the following reasons, has not demonstrated that reconsideration of the Court's decision is warranted.
KBR asserts a number of arguments denigrating the Court's analysis of CPA Order 17. (Docket No. 242). Before addressing KBR's specific positions, the Court notes that KBR's arguments suggest that its counsel simply misreads the Court's June 17, 2011 Memorandum Opinion. The only relief that KBR requested in its motion was that three specific Iraqi legal principles should be applied in this case, i.e., those set forth in Articles 205, 207 and 211 of the Iraqi Civil Code. (Docket No. 215). As a result, the Court limited its holding to whether the three provisions of the Iraqi Civil Code cited by KBR applied to this litigation. See Harris, 796 F.Supp.2d at 646-47, 2011 WL 2462486, at *1 ("In this Memorandum Opinion, the Court addresses the narrow question of whether Iraqi law should be applied to
KBR claims that the Court's reasoning offered in support of its holding is "internally inconsistent"
KBR further claims that the Court's analysis of CPA Order 17 ignored Pennsylvania choice of law rules. (Docket No. 242 at 2). However, KBR presented this identical argument in its Reply Brief, submitted before the Court's Memorandum Opinion was issued, as follows:
(Docket No. 220 at 1-2). As this argument was presented to the Court and soundly rejected, it should not be reconsidered because parties are not permitted to use a motion for reconsideration to simply "re-litigate old matters." See Miller, 2011 WL 398408, at *1.
In any event, KBR's argument is misplaced. KBR had the burden to establish foreign law under Rule 44.1 which was independent of any choice of law analysis. See Fed.R.Civ.P. 44.1. As this Court recognized, Rule 44.1 places the burden on the parties to both present evidence of the foreign law and to persuade the Court that such foreign should be applied. Id. In its initial motion, KBR only requested that three specific Iraqi Civil Code provisions be applied. (Docket No. 215). Therefore, it was entirely appropriate and consistent with the Federal Rules of Civil Procedure and Third Circuit precedent for the Court to first consider whether KBR had met its burden to present Iraqi law before considering Pennsylvania choice of law rules. If KBR failed to meet its burden to present Iraqi law, the substance of Iraqi law would not be established and Pennsylvania choice of law rules would be applied, without consideration of any Iraqi laws. See Harris, 796 F.Supp.2d at 651-54, 2011 WL 2462486, at *6-8. But, in this case, even though the Court found that Iraqi law (under its Civil Code) was not established by KBR, the Court assumed that it had met its burden and considered each of the provisions of the Iraqi Civil Code proffered by KBR in its choice of law analysis. See Harris, 796 F.Supp.2d at 654, 2011 WL 2462486, at *9 ("Notwithstanding that the Court has concluded that KBR has failed to meet its burden under Rule 44.1, and KBR's motion fails on this basis alone, the Court will continue with its analysis of the remainder of the parties' arguments.").
In his third affidavit, Hamoudi finally offers his opinion regarding section 18 and posits that it is a choice of law provision rather than a provision of substantive law.
(Docket No. 242-1 at ¶ 7 (emphasis added)). This is exactly how the Court proceeded in the second half of the Memorandum Opinion, which undermines KBR's argument to the contrary.
KBR next complains that the Court erred by not applying CPA Order 17 in its choice of law analysis but fails to mention how the Court's analysis under Pennsylvania choice of law rules would be any different if CPA Order 17 was considered in the second portion of the Court's decision. (Docket No. 242). Again, the Court's interpretation of CPA Order 17 is that the laws of the sending states, rather than Iraqi laws, apply to personal injury claims for death. See Harris, 796 F.Supp.2d 642, 2011 WL 2462486. Based on this interpretation, the Court would apply Pennsylvania choice of law rules to determine the applicable substantive law. If Iraqi law was not considered, the Court would then analyze the laws of Texas, Pennsylvania and Tennessee in its choice of law analysis. Instead of proceeding in this regard, the Court assumed that KBR had met its burden under Rule 44.1 and analyzed whether the laws of Iraq, Texas, Pennsylvania or Tennessee should be applied. It appears that KBR simply disagrees with the Court's conclusion that Pennsylvania choice of law rules do not dictate that Iraqi law should be applied. See Miller, 2011 WL 398408, at *1 ("A party's mere disagreement with the Court does not translate into the type of clear error of law which justifies reconsideration of a ruling."). And, as discussed below, the Court does not find that KBR has met its burden to demonstrate that reconsideration of this aspect of the Court's holding is warranted.
In yet another challenge to the Court's analysis of CPA Order 17, KBR suggests that the Court held that it is immune under Iraqi law and states that the Court should dismiss the case on this basis. (Docket No. 242 at 4, n. 1). To the extent that KBR makes such suggestion, the Court does not agree. To the contrary, the Court finds that CPA Order 17 provides only that government contractors such as KBR are "immune from Iraqi legal process" and does not provide any immunity from the present lawsuit. (Docket No. 218-2 at § 4.3 ("Contractors shall be immune from Iraqi legal process with respect to acts performed by them pursuant to the terms and conditions of a Contract or any sub-contract thereto.")). Therefore, the Court will not dismiss this case on this basis.
KBR also contests the Court's choice of law analysis, arguing that the Court erred in its balancing of the interests between the potential jurisdictions. (Docket No. 242). It argues that the Court misapplied the facts and gave improper weight to certain of the facts of this case. (Id.). The Court again disagrees.
KBR contends that the Court failed to consider the interests of Iraq. (Id.). However, in this Court's estimation, KBR conflates two separate issues: (1) the interests of the jurisdiction in the application of its law, which focuses on the policies underlying the legislation of the interested jurisdiction; with (2) the factual circumstances of the present case before the Court. On this first point, as the Court clearly noted in its earlier decision, KBR did not present the Court with any specific
Turning to KBR's present arguments regarding the Court's consideration of Iraq's interests, the Court finds that all of KBR's contentions were previously presented in conjunction with their initial motion. (See Docket Nos. 220 at 8; 229 at 2). KBR's own filing demonstrates that its position as to these facts has already been considered. Specifically, KBR argues now that:
(Docket No. 242 at 8 (emphasis added)). The Court dedicated several pages of its Memorandum Opinion analyzing Iraq's interests in this case and a fair reading of the discussion demonstrates that all of these facts were considered. Harris, 796 F.Supp.2d at 654-63, 2011 WL 2462486, at *9-17. Indeed, the Court specifically noted, among other things, that "[b]ased on the prior arguments that have been presented to the Court in this case,
In addition, KBR has repeatedly interjected the first four facts it raises now into this litigation. (Docket No. 20, KBR's Brief in Support of Motion to Dismiss; Docket No. 35, KBR's Reply Brief; Docket No. 122, KBR's Supplemental Brief). However, before filing its motion for the application of Iraqi law, KBR has always taken the position that the United States' involvement at the RPC and LSF-1 far outweighed any interests of the Iraqis. Id. Indeed, KBR has continually argued that the United States controlled its conduct in relation to the LOGCAP III contract
To reiterate, from this Court's view, the United States' interests in this litigation far outweigh the supposed interests of Iraq raised by KBR. While Iraq may have initially erected the buildings
Further, this Court remains convinced that CPA Order 17 wholly undermines any tangential interest that Iraq may have had in its laws applying to government contractors such as KBR during the time in question. To this end, "Order 17 expressly provides that such contracts may be awarded in accordance with the laws of the United States. CPA Order 17, § 4.1. Order 17 also states that government contractors were: not subject to Iraqi laws or regulations in relation to the terms and conditions of their contracts; immune from Iraqi legal process; and that certain claims by third parties should be dealt with in accordance with the laws of the United States. CPA Order 17, §§ 4.2, 4.3, 18."
In sum, as the Court previously held, Iraq's negligible interests in this case are far outweighed by those of the United States and the controlling law of the United States will be applied, i.e., the relevant contract and tort law in one of the interested jurisdictions, Pennsylvania, Tennessee or Texas.
KBR also argues that the Court improperly weighed the interests of Pennsylvania and Texas. (Docket No. 242). However, the Court expressly held that it would revisit its conflicts of laws analysis as to the interested states, including Texas, Pennsylvania and Tennessee, at a later date. See Harris, 796 F.Supp.2d at 668, 2011 WL 2462486, at *21 ("Based on the foregoing, KBR's motion to apply Iraqi is denied. The Court's holding is limited to this issue and the Court expressly reserves ruling as to which of the interested states' laws apply to Plaintiffs' claims and KBR's defenses in this action going forward."). Therefore, KBR will be given the opportunity to further address its position as to the applicable laws. But, for clarity, the Court will briefly consider KBR's positions set forth in its motion for reconsideration.
As to the Court's consideration of Pennsylvania's interests, KBR contends that "[b]y looking to the place where the effects of an injury are felt, the Court gave improper weight to the factor of the Plaintiffs' state of residence, and thereby committed legal error. See Blakesley v. Wolford, 789 F.2d 236, 241 (3d Cir.1986) (`In all personal injury actions, the effects of an injury necessarily follow a plaintiff to his or her state of residence . . . looking to the place where the effects of an injury will be felt gives improper additional weight to the factor of the plaintiff's state of residence')." The Court disagrees that any such error was committed.
First, KBR relied on Blakesley in its initial briefing and the Court was not persuaded by this argument at the time. (See Docket No. 216). As a consequence, KBR again misuses a motion for reconsideration to re-litigate old matters. See Miller, 2011 WL 398408, at *1.
KBR further maintains that the Court failed to consider the interests of Texas regarding the causation issue. (Docket No. 242). Specifically, KBR argues that Texas law is not "pro-plaintiff" as the Court states in its Memorandum Opinion and that the Court's holding runs counter to Texas Civil Practice and Remedies Code § 33.004. (Id.). However, KBR again misunderstands the Court's ruling.
To this end, KBR requested that three specific provisions of the Iraqi Civil Code should be applied to this case in its motion for the application of Iraqi law. (Docket Nos. 215, 216). With respect to the causation law proffered by KBR, the Court held the following:
Harris, 796 F.Supp.2d at 657-58, 2011 WL 2462486, at *11 (footnote omitted). The only aspect of Texas law upon which the Court commented as "pro-plaintiff" was the "instant causation issue"—i.e., whether the Court should apply the Iraqi Civil Code section described above, that a second negligent actor has no liability. Id. at 662-63, at *17. None of the potentially interested states, Texas, Pennsylvania or
In addition, the law which is now cited by KBR, Texas Civil Practices & Remedies Code 33.004, was never raised in its initial briefing. (Docket Nos. 215, 216, 220, 229). By virtue of the Court's Order expressly reserving the parties' respective rights to litigate which of the states' laws apply, KBR will be given another opportunity to argue that Texas law, including Texas Civil Practices and Remedies Code § 33.004, should be applied at the appropriate time. However, reconsideration of the prior order is not warranted on this basis at this time.
KBR also maintains that the Court relied on an erroneous finding of fact in support of its decision, i.e., that "[t]
Harris, 618 F.Supp.2d at 413-14 (emphasis added). In opposition to the present motion, Plaintiffs advance additional evidence in support of the Court's statement of facts, including the Office of Inspector General, Department of Defense Report on Staff Sergeant Maseth's death, which stated that:
(Docket No. 244 at 7 (quoting DOD-IG Report, p. 3 (emphasis added by Plaintiffs)).
In light of the foregoing, the Court still believes that its recitation of the evidence is supported by the extensive record in this case. In any event, the Court only noted that the evidence "suggests" that KBR fixed the water pump and was aware of shocking incidents. Harris, 796 F.Supp.2d at 661, 2011 WL 2462486, at *15. The Court recognizes that KBR continues to deny these facts but KBR has offered no hard evidence which refutes the Court's earlier holding or the statement in the DOD-IG's report. (See Docket Nos. 242, 242-1, 242-2). Therefore, KBR has failed to demonstrate to this Court that it committed any factual errors and its motion for reconsideration is denied to the extent that it relies on such arguments.
KBR further notes that the Court should have held off ruling on the choice of law issue until after discovery. (Docket No. 242). In this Court's estimation, this claim is disingenuous and runs counter to its attorneys' multiple requests for early presentation and disposition of this motion, as detailed below.
Upon remand from the United States Court of Appeals for the Third Circuit, this Court ordered the parties to file a joint discovery plan. (Docket No. 195). In response to this Order, the parties filed separate plans and KBR stated in its plan that it "intends to file a motion regarding choice-of-law at an early stage in the discovery period so that, to the extent the applicable law demonstrates that discovery regarding the merits of particular claims asserted by Plaintiffs is warranted, the parties can tailor their discovery efforts as appropriate." (Docket No. 197 at ¶ 13). Regarding this request, the Court and counsel engaged in the following exchange during the second session of the case management conference on November 23, 2010:
(Docket No. 200 at 38-39 (emphasis added)).
Subsequent to the conference, the Court ordered that "any motion by Defendant regarding the choice of law issue shall be filed by 1/28/11 and any response to same by Plaintiffs shall be filed by 2/28/11. Further briefing will be permitted with leave of Court only and oral argument will be scheduled upon the request of the parties." (Docket No. 198). KBR then requested a continuance of said deadline, which the Court granted, and filed its motion, supporting brief and expert affidavit on February 4, 2011. (Docket No. 215, 216). Plaintiffs responded to KBR's motion and KBR then filed a reply brief and a supplemental expert affidavit. (Docket No. 221). Oral argument was held at KBR's request on April 5, 2011. (Docket Nos. 223, 226). At the end of the April 5, 2011 hearing, the Court advised that: "[o]nce again, this presents a very interesting issue. As I said, we've already spent substantial time in looking at this. Once we get the briefing, I would hope that we would be able to render a decision in 30 days or less." (Docket No. 226 at 71-72). No objections were raised to the Court's self-imposed deadline.
Supplemental briefing was submitted by the parties on April 27, 2011 and May 5, 2011, respectively. (Docket No. 229, 231). The Court issued its Opinion on June 17, 2011, approximately 45 days after the matter was fully briefed.
In sum, KBR's request to hold off resolution of its motion for the application of Iraqi law flies in the face of the procedural history of the present motion and the fact that the disposition of the motion was expedited pursuant to KBR's request. Therefore, to the extent that KBR seeks reconsideration of the timing of the Court's decision, said motion is likewise denied.
Based on the foregoing, KBR's motion for reconsideration [241] is DENIED. The Court's prior ruling that Iraqi law will not be applied to this litigation stands. An appropriate Order follows.
Harris, 618 F.Supp.2d at 434. The Court understands that recently the district court in Aiello v. Kellogg, Brown & Root Services, Inc., 751 F.Supp.2d 698, 712-15 (S.D.N.Y.2011), disagreed with this Court's analysis. Although KBR contends that this Court should revisit its earlier holding at this time, the Court has repeatedly held that its prior arguments were dismissed without prejudice, and may be raised again, at the close of discovery. See Harris, 2010 WL 4614694 (W.D.Pa. Nov. 5, 2010). And, despite the decision in Aiello, which is non-binding, the caselaw surrounding tort law claims against government contractors supporting military operations overseas remains unsettled.
(Docket No. 229-3).
(Docket No. 235 at 652).
The Court further notes that in Bootay, the Court of Appeals affirmed Judge McVerry's decision that KBR did not owe a duty to warn Bootay of the hazards of sodium dichromate exposure under general negligence principles, KBR's contract with the government or a third party beneficiary theory. Id. at 141-42, at *1. The Court of Appeals analyzed these claims under Pennsylvania law, which has adopted provisions of the Restatement (Second) of Torts. Id. at 143-46, at *3-4. In so holding, the Court of Appeals also referenced this case and noted that:
Id. at n. 5.
