NORA BARRY FISCHER, District Judge.
Plaintiffs, the parents and administrators of the Estate of Staff Sergeant Ryan Maseth, seek damages against government contractor Kellogg, Brown and Root Services, Inc. ("KBR"), claiming that KBR's alleged negligence in the performance or non-performance of electrical services at a military base during the Iraq War was the proximate cause of his electrocution and death while showering at the Radwaniyah Palace Complex ("RPC"). (Docket No. 209). The crux of Plaintiffs' case is that KBR failed to employ certain safety procedures in conjunction with electrical maintenance services it provided at the RPC. (Id.). The use of grounding and bonding techniques as suggested by Plaintiffs is standard practice by electricians in the United States and other Western countries. (Id.). According to Plaintiffs, the use of these safety precautions may have prevented their son's death, which they maintain resulted from the failure of a water pump installed without it being grounded or bonded. (Id.). KBR does not challenge the merits of Plaintiffs' claims at this time. Instead, KBR has filed a renewed motion to dismiss, arguing that this case is barred by the political question doctrine under Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and, alternatively, that Plaintiffs'
This Court previously denied a motion to dismiss brought by KBR raising these same defenses, holding that, as pled, Plaintiffs' claims did not raise non-justiciable political questions and were not preempted by the combatant activities exception. See Harris v. Kellogg, Brown & Root Services, Inc., 618 F.Supp.2d 400 (W.D.Pa.2009). The United States Court of Appeals for the Third Circuit dismissed KBR's appeal of this decision without addressing the merits and the case was remanded to this Court. Harris v. Kellogg, Brown & Root Services, Inc., 618 F.3d 398 (3d Cir.2010). Upon remand, the parties were ordered to conduct discovery regarding Plaintiffs' claims and KBR's defenses, which they did. Extensive discovery has been undertaken by the parties. KBR's renewed motion to dismiss has been fully briefed and argued by the parties. (See Docket Nos. 260-279, 282-285, 294).
The Court has carefully considered all of the parties' arguments and the detailed factual record in this case. (See id.). After conducting a "discriminating inquiry into the precise facts" of this case as established through a lengthy period of discovery and having heard the parties' arguments outlining the claims and defenses that they intend to present at trial, the Court finds that further adjudication of this dispute will inextricably lead to consideration of sensitive military judgments for which no judicially manageable standards exist. Baker, 369 U.S. at 217, 82 S.Ct. 691. Specifically, further adjudication of this case will require evaluation of the military's decision to continue to house soldiers in hardstand buildings with hazardous electrical systems even though the military was aware that the buildings lacked grounding and bonding and the military possessed specific knowledge that such electrical deficiencies had resulted in electrocutions to military personnel, causing injuries and even deaths, prior to the events of this case.
The Court finds that the issues which Plaintiffs seek to try — whether KBR was negligent in failing to install grounding and bonding features on the malfunctioning water pump, failing to install grounding and bonding features on the electrical system, or failing to properly bond the pipes at Legion Security Forces Building 1 ("LSFB1") — cannot be answered without first considering the wisdom of military judgments, thus taking this case beyond judicial review. In this Court's view, KBR has also presented sufficient evidence from which it may legitimately argue that the military exposed soldiers to what its commanders determined to be an acceptable level of risk after considering all of the other hazards of war which were faced by soldiers in the Iraq war theatre and its ability to fund the electrical upgrades and safety features which are admittedly standard here in the United States. (See Def. Ex. 2, Docket No. 263-2:11; Def. Ex. 6, Docket No. 263-15; Def. Ex. 7, Docket No. 263-16; Def. Ex. 22, Docket No. 263-33; Def. Ex. 24, Docket No. 263-35). This evidence supports its position that despite the known risk presented by electrical deficiencies at the RPC, the military did not contractually require KBR or prior contractors to complete upgrades to the electrical facilities there. (Def. Ex. 26, Docket No. 263-37:48; Def. Ex. 43, Docket No. 263-69; Pl. Ex. A, Docket No. 266). The military also declined KBR's offer to upgrade the electrical facilities for cost reasons. (Docket Nos. 262 at ¶ 135; 265 at § I, ¶ 135).
The level of safety provided to soldiers at a military base is a decision which
For these reasons, and as is further detailed below, the Court now concludes that this case is barred by the political question doctrine and preempted by the combatant activities exception to the FTCA and must be dismissed.
The factual record in this case is extensive. As much of the evidence was previously considered by the Court in the decision denying KBR's initial motion to dismiss, see Harris, 618 F.Supp.2d at 403-15, the Court recounts here only those facts necessary to resolve the pending motion.
KBR's provision of operations and maintenance services to the United States Army during the Iraq War pursuant to the Logistics Civil Augmentation Program ("LOGCAP") is central to this case. (Docket Nos. 262 at ¶¶ 1-10; 265 at § I, ¶¶ 1-10). As noted, the relevant events occurred at the RPC. (Docket Nos. 262 at ¶¶ 28-30; 265 at § I, ¶¶ 28-30). The RPC was the headquarters for Special Operations Forces operating in Iraq. (Docket Nos. 262 at ¶ 29; 265 at § I, ¶ 29). The military had overall responsibility for, and authority and control of, the activities and operations that took place at the RPC, including the decisions as to which buildings were used as housing. (Def. Ex. 7, Docket No. 263-16, Satterfield Depo at 102 ("Commanders authorize soldiers, and when I say commanders I'm talking now all services, told the troops where they were allowed to live or not live."); Docket Nos. 262 at ¶¶ 51-52; 265 at § I, ¶¶ 51-52).
The RPC consists of approximately 144 separate buildings. (Docket Nos. 262 at ¶ 125; 265 at § I, ¶ 125). Due to its size, the RPC was divided into compounds or areas. (Docket Nos. 262 at ¶ 46; 265 at § I, ¶ 46). One such area was known as the Legion Security Forces Compound ("LSF"). Id. Staff Sergeant Maseth was housed in one of the buildings within the LSF, known as LSFB1. Id. Other inhabitants of the LSF buildings were Special Forces troops who conducted midnight raids on enemy forces or provided security at the heavily-guarded entry control point which was located near LSFB1. (Docket Nos. 262 at ¶¶ 35-39, 47; 265 at § I, ¶¶ 35-39, 47). The soldiers housed in the LSF buildings also provided intelligence for the war effort in Iraq. (Docket Nos. 262 at ¶ 38; 265 at § I, ¶ 38).
The RPC buildings were initially constructed by Iraqis prior to the U.S. led invasion of Iraq. (Docket Nos. 262 at ¶ 45; 265 at § I, ¶ 45). The military referred to these buildings as "hardstands." (Id.). Some of the buildings had internal restroom and shower facilities which were likewise constructed by Iraqis. (See Docket Nos. 262 at ¶¶ 70, 172, 178, 187; 265 at § I, ¶¶ 70, 172, 178, 187). Soldiers living in these buildings often showered in these facilities. (Id.). LSFB1 had two such internal restroom facilities which were used by the inhabitants. (See Def. Ex. 31, Docket No. 263-54 at 14, Figure 2, Floor
Shortly after the occupation, in 2003, the Army made a decision to renovate and refurbish the hardstand LSF buildings, including LSFB1. (Docket Nos. 262 at ¶ 99; 265 at § I, ¶ 99). Prior to the renovations, LSFB1 was completely looted and it had no electrical power, electrical components, internal plumbing, doors or windows. (Docket Nos. 262 at ¶ 100; 265 at § I, ¶ 100). Lieutenant Colonel Richard Cote was the project manager for the renovation project and he was directed to engage a local Iraqi contractor, rather than an American contractor, to perform the renovations. (Docket Nos. 262 at ¶ 101; 265 at § I, ¶ 101). Local contractors were used in order to improve U.S. — Iraqi relations and to support the local economy which had been devastated by the war. (Docket Nos. 262 at ¶¶ 103-04; 265 at § I, ¶¶ 103-04). The original intent of the project was for LSFB1 to be used as office space and a command post rather than living quarters. (Docket Nos. 262 at ¶¶ 105-06; 265 at § I, ¶¶ 105-06). Hence, making the building safe for living quarters was not considered a priority during the renovations. (Id.).
The contractual agreement with the Iraqi contractor provided that it was to rewire the building using supplies and materials from the local economy and to include grounding and bonding for all electrical work. (Docket Nos. 262 at ¶¶ 107-09; 265 at § I, ¶¶ 107-09). The contract further directed that acceptance of the contractor's work would be conditioned on a successfully completed test of the grounding system. (Docket Nos. 262 at ¶ 110; 265 at § I, ¶ 110). However, no such test was ever completed, (id.), even though it was well known within the military chain of command that Iraqi contractors did not ground and bond their electrical work. (Docket Nos. 262 at ¶¶ 102, 113; 265 at § I, ¶¶ 102, 113). In fact, military personnel testified that the work was "bad news" and "jerry-rigged." (Docket Nos. 262 at ¶ 113; 265 at § I, ¶ 113). Thus, the work performed at LSFB1 was no exception.
Subsequent to the renovations, it was generally accepted that the buildings in the RPC did not meet Western construction standards and that there were deficiencies in the electrical systems, including a lack of proper grounding and bonding. See Harris, 618 F.Supp.2d at 405. Despite the known presence of deficient electrical systems, the military made a decision to house soldiers in these buildings as they were considered safer than manufactured housing, given the risk of mortar attacks and shelling. Id.; (see also Docket Nos. 262 at ¶ 91; 265 at § I, ¶ 91 ("As General Vines acknowledged: `We chose to assign personnel to live in these pre-existing structures, notwithstanding their electrical deficiencies. All of us, including myself, lived in buildings with similar deficiencies.'")). Indeed, despite the initial mandate that LSFB1 would not be used to house soldiers, the building was continuously occupied by soldiers from its acceptance by the military in May of 2004 through 2008. (Docket Nos. 262 at ¶¶ 112, 114; 265 at § I, ¶¶ 112, 114). The evidence also shows that the military never
The United States Army Corps of Engineers ("USACE") engaged Washington Group International
The USACE next contracted with KBR to provide operations and maintenance services at the RPC under the CENTCOM contract for the period of April 2006 through February 2007. (Docket Nos. 265 at § II, ¶ 1; 283 at ¶ 1). Like the contracts with WGI, this agreement with KBR also provides that "[e]xisting interior and exterior electrical systems are in poor condition. The Contractor shall support
The parties dispute which provisions of the CENTCOM contract were applicable to the present circumstances. KBR contends that § 34, Requirements for Electrical, which contained no explicit standard for electrical work, applied while Plaintiffs take the position that § 44, Requirements for Low Voltage Electric System Maintenance and Repair, which specified that the National Electrical Code ("NEC") standards govern KBR's work, applied. (Docket No. 262 at ¶¶ 118, 119; 265 at § I, ¶¶ 118, 119). The parties have not presented any evidence outside of this contract to support their positions with respect to which provision of the CENTCOM contract controlled KBR's relationship with the Army Corps of Engineers, i.e., if § 34 rather than § 44 applied.
During the period of 2004-2006, there were several reports of injuries and deaths
To this end, the United States Army Safety Center publishes a monthly magazine, "Countermeasures," which focuses on Army ground risk-management advice.
Later, in 2006, Lieutenant Colonel Brent Carey, a LOGCAP support officer who reported directly to Jana Weston within the DCMA, observed electrical hazards at hardstand buildings on the bases within Iraq where soldiers were housed and prepared a presentation describing same. (Def. Ex. 2, pts 2-10, Docket No. 263). The purpose of LTC Carey's presentation titled "Sub-Standard Electric Wiring Conditions" was to bring attention to a "serious threat to the life, health and safety of our soldiers." (Docket Nos. 262 at ¶ 69; 265 at § I, ¶ 69). His briefing provided a warning that soldiers could be electrocuted in the shower and pointed out that a soldier had died in a shower in a hardstand building in the summer of 2005. (Docket Nos. 262 at ¶ 70; 265 at § I, ¶ 70). LTC Carey intended his presentation "to make a case for having soldiers leave the hardstand buildings or releasing the funding so that KBR or another contractor could fix the wiring." (Docket Nos. 262 at ¶ 71; 265 at § I, ¶ 71). LTC Carey testified that he discussed his concerns with various individuals throughout the military chain of command. (Docket Nos. 262 at ¶ 72; 265 at § I, ¶ 72).
Major James Harvey also served in the LOGCAP support unit and received LTC Carey's presentation. (Docket Nos. 262 at ¶ 73). In 2006, Major Harvey forwarded the briefing up the chain of command to a number of other high-ranking individuals, including "Brigadier General Satterfield, Colonel Jack O'Connor, General Kathleen Gainey, General Joseph Anderson, Major John Stewart, Colonel Jacque Azmar, possibly Colonel Jake Hanson, Colonel Thad Hartman, Jana Weston, Headquarters of Army Sustainment Command in Rock Island, someone within Fort Belvoir, Don Anderson, the LOGCAP office, Colonel
Subsequently, Major Harvey identified the electrical hazards as critical issues in situational weekly reports that he prepared for an additional four to six weeks. (Docket Nos. 262 at ¶ 78; 265 at § I, ¶ 78). These reports were also provided to military commanders. (Id.). In addition to the briefings, LTC Carey gave photographs of widespread electrical hazards to base camp Mayors at meetings which were held for the purpose of identifying additional services needed at the base camps. Neither Harvey nor Carey received any significant response to their concerns. (Docket Nos. 262 at ¶¶ 82-83; 265 at § I, ¶¶ 82-83). Indeed, LTC Carey testified that the base camp Mayors who received his report seemed "annoyed" by it. (Docket Nos. 262 at ¶ 84; 265 at § I, ¶ 84).
Brigadier General Douglas Satterfield was one of the senior commanding officers who received LTC Carey's briefing on potential electrical hazards at the bases. (Docket Nos. 262 at ¶ 84; 265 at § I, ¶ 85). General Satterfield testified that it was well known throughout the military that the electrical systems presented hazards. (Docket Nos. 262 at ¶¶ 86-87; 265 at § I, ¶¶ 86-87). He also explained that he was likewise housed in one of the hardstand buildings and was exposed to these risks. (Docket Nos. 262 at ¶¶ 88-89; 265 at § I, ¶¶ 88-89). He further confirmed that shocking incidents of soldiers occurred regularly and admitted that he was shocked "many times." (Docket Nos. 262 at ¶ 89; 265 at § I, ¶ 89). However, General Satterfield considered the shocking incidents to be "minor" as compared to other more pressing military issues such as power generation and the protection of base residents from indirect enemy fire. (Docket Nos. 262 at ¶ 90; 265 at § I, ¶ 90). Lieutenant General John Vines, former Commander of the Multi-National Force — Iraq, declared that the military chose to house soldiers in the hardstand buildings despite the known electrical risks and that all of the soldiers who were housed there — including him — were exposed to such risks. (Def. Ex. 6, Docket No. 263-15, Docket Nos. 262 at ¶ 91; 265 at § I, ¶ 91). General Vines further opined that the tragic incident involving Staff Sergeant Maseth could have occurred at any of the bases in Iraq where existing hardstand structures were used to house soldiers, because they all suffered from the same electrical deficiencies and subjected soldiers to similar risks. (Id.).
Additional internal military documents demonstrate further awareness of the electrical problems at U.S. bases in Iraq. For example, on February 1, 2007, Paul W. Dickinson of the DCMA issued a Memorandum for the Commander of DCMA Iraq, in conjunction with an audit he was conducting for the purpose of establishing contractual standards for a future contract with KBR under LOGCAP IV.
(Def. Ex. 24, Docket No. 263-35; Docket Nos. 262 at ¶ 94; 265 at § I, ¶ 94). Dickinson also noted that the "[p]rimary safety threat, theater wide, is fire due to the inferior 220 electrical fixtures found throughout Iraq. Improper installation, substandard equipment purchases (such as light fixtures), and heavy usage appear to be the three primary causes of these fires." (Def. Ex. 24, Docket No. 263-35; Docket Nos. 262 at ¶ 95; 265 at § I, ¶ 95).
In February of 2007, the military desired to shift KBR's limited maintenance responsibilities under the CENTCOM contract to the LOGCAP program. (Docket Nos. 262 at ¶¶ 127, 128; 265 at § I, ¶¶ 127, 128). There were several reasons identified for the transition, including an effort to reduce the overall cost of maintaining the RPC and the fact that the CENTCOM contract was near expiration. (Docket Nos. 262 at ¶ 227; 265 at § I, ¶ 227). Negotiations ensued between the parties regarding the details of the transition, including the timing of same and the scope of the services KBR was to provide under the LOGCAP program.
The transition from CENTCOM to LOGCAP was accomplished in a few short weeks as documents provided to the Court show that the formal request for a project planning estimate was made by the military on February 8, 2007 and KBR responded to same on February 19, 2007, with subsequent revisions submitted on February 20 and 23, 2007. (Def. Ex. 3, Docket No. 263-12 at 26-48). One of the initial requirements that the military imposed on KBR prior to the transition was the completion of technical inspections of the RPC buildings. (Docket Nos. 262 at ¶ 129; 265 at § I, ¶ 129). The documents suggest that KBR was expected to accomplish the inspections within the short time frame allotted by the military. (Docket Nos. 262 at ¶ 130; 265 at § I, ¶ 130). For practical purposes, the completion of full technical inspections of all of the 126 buildings was not possible during the two-week time frame. In this regard, the military officer in charge of the transition, LTC Donna Williams, testified that the time frame permitted to complete the technical inspections was "unrealistic" given the number of buildings at the RPC. (Id.). KBR made a request for additional time to complete the inspections but military commanders rebuffed this request, and LTC Williams testified that she believed that the transition was "rushed." (Docket Nos. 262 at ¶¶ 130, 132; 265 at § I, ¶¶ 130, 132). She also felt that the transition was expedited because of exigent battlefield needs of the military and in order to avoid a break in KBR's services. (Docket Nos. 262 at ¶¶ 129, 131; 265 at § I, ¶¶ 129).
The hurried nature of the transition is also demonstrated by KBR's project planning estimate, wherein KBR states that:
(Project Planning Estimate "PPE", attached to Def. Ex. 3, Weston Depo, Docket No. 263-12 at 30-31 (emphasis added)). Despite this language, KBR did complete a "limited" technical inspection of some of the RPC buildings and prepared a February 10, 2007 technical inspection report which identified several electrical deficiencies at "Radwaniyah Palace D9" and "LSF Office." (Pl. Ex. W, Docket No. 277 at 2-3). The problems identified in the report included, inter alia: a lack of grounding of a main distribution panel; incorrectly sized and not properly grounded wires on secondary feeder wire circuits; and, an improperly grounded water heater tank. Id. at 2. As set forth on the report, despite the noted deficiencies, the main distribution panel for the "Radwaniyah Palace D9" was identified by KBR with an equipment condition code ("CC") of "B5 Serviceable — used, fair (w/ qualifications)." Id. Other options on the form included "Unserviceable" — a code which testimony demonstrates if selected may have resulted in condemnation of a building. Id. at 3. This technical inspection was provided to the military a second time in November of 2007, after military personnel requested KBR to provide it with another copy of the report. (Docket Nos. 262 at ¶¶ 169-170; 265 at § I, ¶¶ 169-170).
During the initial negotiations, KBR proposed that it be engaged to provide Level A maintenance at the RPC under Task Order 139.
(PPE, Def. Ex. 3, Docket No. 263-12 at 31). On February 23, 2007, the military approved funding for KBR's project planning estimate and issued an administrative change letter authorizing KBR to commence work under the LOGCAP III program in exchange for compensation in excess of three million dollars. (2/23/07 ACO Change Letter, attached to Def. Ex. 3, Docket No. 263-12 at 26-27).
Prior to January 2, 2008, the military never directed KBR to repair the electrical deficiencies identified in the technical inspection for LSFB1 or to issue an administrative change letter authorizing KBR to upgrade or rewire LSFB1. (Docket No. 262 at ¶ 166). In addition, after its initial offer to complete Level A maintenance was rejected by the military, KBR never requested that it be permitted to upgrade the electrical facilities of LSFB1 and never explicitly sought the military's approval to upgrade or rewire the buildings. (Docket No. 265 at § I, ¶ 161). Nor did the military ask KBR to do so.
The Court previously detailed the relevant terms and conditions of the LOGCAP III Contract between KBR and the military, which consists of the LOGCAP base contract, Statement of Work and Task Order 139.
The relationship between the military and KBR is established in the contract. To this end, the military controlled the terms and conditions of the contract and mandated strict compliance. See Task Order 139 at §§ 1.1, 7.1. As such, KBR was obligated to perform in line with the terms of the Statement of Work and Task Order 139. Id. at § 7.1. KBR was not permitted to engage in any work which was outside the scope of the contract without prior approval from the military contracting authorities. Id. at § 7.1. However, KBR was responsible for the quality of its work and the coordination of all aspects of its performance, including supervision of its employees. Id. at §§ 1.11, 1.14, 7.1. The agreement makes clear that the military was not required to supervise KBR's work, other than to monitor performance under the contract to ensure that KBR did not submit any false claims for compensation to the government.
Task Order 139 "governs the base life support functions" to be performed by KBR at military bases in Iraq and specifies the services to be provided thereto including Facilities and Operations & Maintenance Services. Task Order 139 at
While Level A maintenance was not selected, it is important to note that this level of maintenance would have required the contractor to provide preventative maintenance services at the base every 60 days, including a requirement to conduct grounding checks on equipment and major electrical appliances. See Id. at § F.4.1.1 Indeed, the provision governing preventative electrical maintenance required the contractor to "[c]heck for damage or tampering with switches, outlets, junction boxes, control panels, circuit breakers, fuses, grounding rods, and overloading." Id. Another option which was not selected, "Refurbishment," would have required that upgrades to the facilities be performed to Western construction standards. See id. at § 8.2.1.
The Court detailed the procedures for the processing of service order requests at the RPC in its prior decision. Harris, 618 F.Supp.2d at 412. Relevant here, all service order requests were initiated by soldiers on the ground, funneled through the Mayor's Cell
Colonel Kirk Vollmecke provided a sworn statement to the Department of Defense Inspector General ("DODIG") in conjunction with its investigation of the circumstances of this case. (Def. Ex. 29, Docket No. 263-52 at 12-85).
Colonel Vollmecke also stated that the contracts did not include any provisions specifying that KBR only hire employees who were certified to perform electrical work. (Id. at 41-42). He said that the lack of such requirements was possibly the result of an assumption that the individuals KBR hired would be qualified to perform electrical work. (Id.). But, he did not believe that such an assumption was realistic because the contractor staff of approximately 68,000 individuals was over 60 percent foreign national-based and generally unfamiliar with Western electrical standards. (Id. at 41). He faulted several individuals within DCMA for failing to include explicit electrical performance standards and requirements for certifications in the contract. (Id.). But, he explained that the DCMA was under tremendous pressure during the events in question which coincided with the "Surge",
Colonel Vollmecke stated that the contracts were not initially developed for a semi-occupation environment and worked well at the beginning of the war when only a limited number of bases were involved. However, he testified that "holistic" changes were not made to the contract as the war shifted toward semi-permanent occupation of Iraq by the joint forces with the assignment of soldiers to live in thousands of Iraqi hardstand buildings. (Id. at 43). As is set forth in the DODIG's Report, Colonel Vollmecke instituted several changes to the contracts after the accident to Staff Sergeant Maseth. (Id. at 26-27). The later adopted terms included explicit standards for electrical work and technical inspections and required that all contractor personnel be qualified to perform electrical work. (Id.).
The evidence demonstrates that certain military personnel expected that KBR would perform its electrical work safely and in accordance with Western electrical standards. These individuals, however, had limited knowledge of the actual requirements that the military set forth in the contract with KBR.
Among them, Brigadier General Satterfield testified that he had limited knowledge of Task Order 139, indicating that he had "read" the task order but was not directly involved in contracting. (Satterfield Depo at 141, Pl. Ex. E, Docket No. 268 at 7). Despite same, he provided testimony concerning his understanding of KBR's agreement with the military. (Id.). General Satterfield believed that the electrical standard required under the contract was the British standard. (Id. at 146-147). He further explained that the military's "good enough" standard did not apply to electrical safety issues and that the military's election of Level A or Level B maintenance should not have lowered the contractual performance requirements imposed on KBR under the contract. (Id.). General Satterfield also testified that he did not believe that rewiring the RPC buildings or upgrading the electrical facilities would be new work outside of Level B maintenance permitted without further direction by the military under the LOGCAP contract. (Id. at 158-160, 162-163).
The base camp mayors at the RPC, SSG Skaggs and CW2 David Carrier, both testified that their expectations were that KBR would have performed grounding and bonding on its work at the RPC in response to service order requests as a part of KBR's general performance duties. (Docket No. 265 at § II, ¶¶ 79-82). They also confirmed that KBR neither requested that it be authorized to rewire LSFB1 nor sought authorization to perform grounding and bonding at the base because such duties were outside the scope of KBR's contract. (Docket No. 265 at § II, ¶¶ 74, 77). For his part, SSG Skaggs testified that he was unaware of the scope of the electrical deficiencies at LSFB1 and claimed that if he would have been made aware of such deficiencies, he would have initiated the process to have the building rewired or repaired. (Docket No. 265 at § II, ¶¶ 54, 74, 77, 78).
The evidence shows that KBR was never specifically directed to repair the deficiencies in LSFB1 which were identified in the technical inspection report, (Docket No. 262 at ¶ 166), despite the fact that KBR
With respect to service order requests, Plaintiffs have identified nine work orders which they argue have some relevance to the instant case, including:
(See Docket No. 265 at § II, ¶ 87; Pl. Ex. U, Docket No. 276). The work order documents do not explicitly state that work was to be performed by KBR in accordance with any electrical standards. (Id.). KBR responded to the identified service order requests and the documents are marked as if the work was completed. (Id.). KBR disputes the relevance of these work orders because none of them refer to a complaint that the water pump on the roof at LSFB1 caused an electrical shock and also argues that certain of them did not even pertain to LSFB1. (Docket No. 283 at ¶ 87). To this end, Juan Castellanos testified that the work orders from June of 2007 describing the installation of grounding and wires on the "panel" did not pertain to LSFB1 but to an exterior main distribution panel for which KBR had full maintenance responsibilities. (See Docket No. 283 at ¶ 87.f., 87.g; Castellano Depo at 142, Def. Reply Ex. 8, Docket No. 284-8). Castellanos' account is the only witness testimony in the record to which the parties have directed the Court to substantiate these work orders. In fact, the only competing evidence that Plaintiffs have cited is their experts' interpretations of the work orders, but these individuals have no actual knowledge of what area or building of the RPC the work orders described.
Several soldiers testified that they were shocked in the shower and bathroom facilities in LSFB1, including Sergeant First Class Justin Hummer, and MSG Mark Layman. (Docket No. 265 at § II, ¶¶ 88, 90, 91, 94). There is also evidence that another soldier, Faris Shamoon,
In November of 2007, the military, through base camp Mayor SFC Skaggs, requested that KBR install a generator near LSFB1 to power an ECCM jamming device
Prior to the accident, Staff Sergeant Maseth was warned by two of his fellow soldiers of the electrical hazards present at LSFB1 during October of 2007. SFC Hummer testified that he told Maseth that electrical shocks "had been an ongoing problem." (Docket Nos. 262 at ¶ 178; 265 at § I, ¶ 178). Hummer specifically referenced shocks in the shower to Maseth. (Id.). Hummer also warned Maseth to "watch himself" and to "make sure that he checked the water with his hand before he got in" the shower. (Id.). Similarly, Staff Sergeant Matthew Newsom testified that he recalled warning Maseth of the electrical problems in the shower around the time that Maseth arrived at the base. (Docket Nos. 262 at ¶ 179; 265 at § I, ¶ 179). Beyond warning of the risk of electrical shock, SSG Hummer testified that he also told Maseth that the entire building needed rewired in order to fix the electrical shock problem. (Docket Nos. 262 at ¶ 180; 265 at § I, ¶ 180).
The evidence presented to the Court also demonstrates that Staff Sergeant Maseth received and acknowledged a fire inspection report of LSFB1 dated November 19, 2007. (Def. Ex. 34-B, Docket No. 263-59 at 5-9). The report was prepared by KBR employee, Inspector Captain James Cook, and identifies certain electrical deficiencies at LSFB1. (Id. at 8). A chart titled "BUILDING — FIRE RISK MANAGEMENT SURVEY" identifies electrical deficiencies including frayed and improper wiring. (Id. at 5). A report titled "HAZARD/DEFICIENCY INSPECTION RECORD" states that Kitchen Room B has "spliced wires near stove/ oven" and that Room H had a "Hot Water Heater hard wired into outlet" and "Dryer unit hard wired into outlet." (Id. at 7). Both of these documents were signed by Staff Sergeant Maseth as Fire Marshall. (Id. at 7, 9).
The parties do not dispute that, on January 2, 2008, Staff Sergeant Maseth was tragically electrocuted while showering in his living quarters in building LSFB1 at the RPC. (Docket Nos. 262 at ¶ 187; 265 at § I, ¶ 187). Staff Sergeant Maseth's exposure to electric current caused him to suffer cardiac arrest, which resulted in his death. See Harris, 618 F.Supp.2d at 414. The source of the electric current was determined to be a water pump located on the roof of LSFB1. (Docket Nos. 262 at ¶ 189; 265 at § I, ¶ 189). "The insulation on wires inside the pump had melted and the conductors came into contact with the metal casing of the pump, which energized the metal casing of the motor pump and attached water pipes." (Id.).
The parties agree that LSFB1 lacked a grounding and bonding system and that
In any event, the parties agree that "[t]he completed discovery has not uncovered any evidence that, prior to January 2, 2008, the pump was the source of any electrical shock." (Docket Nos. 262 at ¶ 191; 265 at § I, ¶ 191). Indeed, Plaintiffs admit that they "are not aware of whether the specific pump that caused the shock on January 2, 2008 ... had ever previously been the source of a shocking incident at LSFB1." (Id.; Def. Ex. 36, Docket No. 263-61 at ¶ 22). KBR admits that it replaced a pressure switch on the subject water pump in July of 2007. (Docket No. 262 at ¶ 198). However, Plaintiffs and their expert witnesses concede that the pressure switch was not a casual factor in the failure of the water pump and the subsequent electrocution. (Docket No. 265 at § I, ¶ 198). Instead, Plaintiffs take the position that when installing the pressure switch on the water pump, "KBR employees should have seen that the water pump was not grounded" and installed such grounding materials to make the water pump safe. (Id.).
On July 24, 2009, the DODIG issued a comprehensive report discussing the circumstances of the January 2, 2008 accident, titled "Review of Electrocution Deaths in Iraq: Part I-Electrocution of Staff Sergeant Ryan D. Maseth, U.S. Army." (Def. Ex 31, Docket No. 263-54; Docket Nos. 262 at ¶ 201; 265 at § I, ¶ 201). This report concluded that "[w]ith respect to the death of SSG Maseth, multiple systems and organizations failed, leaving him and other U.S. Service members exposed to unacceptable risk of injury or death." (Id.). The DODIG identified problems with all entities involved at the base, including the military chain of command, the contracting community and the defense contractors such as KBR. (Id.). The DODIG commented that: the military chain of command did not properly ensure that the initial renovations of the base facilities were free of electrical hazards and did not identify the potential risks posed by the remaining electrical hazards; the civilian contracting agencies failed to include explicit electrical standards in their contracts with KBR and did not establish minimum requirements for the contractor's electrical work force and training; and KBR perpetuated electrical hazards by failing to ground equipment it installed at the base, did not bring grounding issues at other facilities to the attention of the military command, did not maintain sufficient operating procedures for conducting technical inspections and did not properly train its personnel on electrical safety issues. (Id. at ¶¶ 201-03).
The Department of the Army also issued its Final 15-6 Report in July of 2009. (Def. Ex. 39, Docket No. 263-64, Docket No. 265 at ¶ 205). The Army concluded that "there was no single person or organization entirely responsible for electrical safety in RPC, and whose act or omission caused SSG Maseth's death. His death resulted from a series of causal factors that are not attributable to a single person or organization." (Id.). This report highlights problems caused by failures of the DCMA, KBR and the U.S. Army. (Def. Ex. 39, Docket No. 263-64 at 4-5). Regarding its own role, the Army pointed out
On August 7, 2009, the Department of the Army Criminal Investigative Command issued a press release outlining the findings of its criminal investigation into the circumstances of Staff Sergeant Maseth's death. (Docket No. 262 at ¶ 206; Def. Ex. 40, Docket No. 263-65). This publicly available document states that "[t]he investigation revealed that there were numerous entities and individuals, both contractors and government employees, who breached their respective duties of care. However, none of those breaches, in and of themselves, were the proximate cause of [SSG Maseth's] death. The investigation was closed with a finding that there is insufficient evidence to prove or disprove any criminal negligence in [SSG Maseth's] death." (Id.).
KBR was issued a Level III Corrective Action Request ("CAR") by the DCMA on September 11, 2008. DCMA initially claimed that KBR's contract required that it perform its electrical maintenance services according to National Electrical Code ("NEC") standards. (Id. Docket Nos. 262 at ¶ 209; 265 at § I, ¶ 209). However, as is noted above, the former Commander of DCMA Iraq-Afghanistan during 2006 and 2007, Colonel Kirk Vollmecke, disagreed with this assessment, testifying that the NEC did not apply to KBR's work. (Docket Nos. 262 at ¶ 210; 265 at § I, ¶ 210). Moreover, the DODIG reviewed the CAR and concluded that there were no explicit electrical standards set forth in KBR's contracts with the military. (Id.).
The record reflects that the military commissioned KBR to upgrade the electrical facilities at LSFB1 approximately one month after the accidental death of Staff Sergeant Maseth pursuant to an administrative change letter issued on February 1, 2008. (Docket Nos. 262 at ¶ 199; 265 at § I, ¶ 199). Specifically, KBR was directed to "rewire the building and ensure proper grounding of all electrical units, systems and components." (Id.). The contractual provisions at issue in this case were also revised. To this end, the DODIG report explains that after the accident the following changes were made to the LOGCAP III Statement of Work:
(Def. Ex 31, Docket No. 263-54 at 58).
Plaintiffs bring wrongful death and survival claims against KBR seeking both compensatory and punitive damages. (Docket No. 209). Plaintiffs have repeatedly argued that their claims are "narrow," focusing on KBR's alleged negligence. (See Docket No. 264 at 5, 21, 23, 36, 39, 43, 57). However, Plaintiffs' challenges to KBR's conduct are numerous
(Id. at ¶ 33). From Plaintiffs' perspective, "the core issue of this case [is] why KBR failed to properly ground and bond LSFB1 when it had both ample opportunity and contractual authority to do so." (Docket No. 285 at 1).
Plaintiffs have submitted two expert reports in support of their claims. James Childs is proffered as an expert in electrical codes and electrical safety. (Pl. Ex. AA, Docket No. 279-1). He is a licensed Master Electrician, certified electrical inspector, and has extensive experience in both the private and public sectors, including serving as the Senior Master Electrician on Task Force Safe, a group tasked with investigating electrical issues in Iraq in 2008 by General David Petraeus. (Id.
(Id. at 5-6).
Dr. John Tobias is an electrical engineer and scientist proffered as an expert in electrical safety. (Pl. Ex. BB, Docket No. 279-2). Plaintiffs state that Dr. Tobias was engaged "to provide an opinion, from an electrical engineering perspective, about the quality of KBR's electrical work at LSFB1 and whether anything could have been done, short of rewiring the entire facility, to make the facility safe and avoid the death of SSG Maseth." (Docket No. 299 at 7). Among his conclusions, Dr. Tobias found that:
(Pl. Ex. BB, Docket No. 279-2 at 8). Ultimately, Dr. Tobias concludes that:
(Id. at 7).
KBR has denied liability in this case and raised numerous affirmative defenses to
Most recently, KBR has challenged the expert testimony of both of Plaintiffs' experts, Childs and Tobias via a Daubert motion, which is presently pending before the Court. (Docket No. 290). In its motion, KBR argues that the proffered expert opinions "lack foundation and fail to meet the standards of reliability and fit established by Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 [113 S.Ct. 2786, 125 L.Ed.2d 469] (1993), and incorporated into Federal Rule of Evidence 702." (Id. at 2). In part, KBR relies on the testimony of its own expert witness on electrical safety, John Loud. (Def. Ex. 32, Docket No. 263-55). Loud is an electrician who is currently employed by Exponent, Inc. as a Principal Engineer. (Id.). He has extensive practical experience and has lectured on electrical injuries and electrocutions and testified in numerous court proceedings. (Id.). Loud rejects the opinions of Childs and Tobias to the extent that they believe that the electrical shock risk at LSFB1 could have been eliminated without rewiring the entire building. (Id.). In brief summary, Loud suggests that:
(Id. at 11).
After the parties completed a period of limited discovery, this Court denied KBR's initial motion to dismiss Plaintiffs' claims relying on the political question doctrine and combatant activities exception to the Federal Tort Claims Act, without prejudice, in a Memorandum Opinion and Order issued on March 31, 2009. Harris, 618 F.Supp.2d at 434. 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 v. Kellogg, Brown & Root Services, Inc., 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, without addressing the merits of KBR's arguments as to the political question doctrine and/or the combatant activities exception
Shortly after the matter was remanded from the Court of Appeals, KBR attempted to limit discovery to the defenses it raised in its earlier motion to dismiss. Harris v. Kellogg, Brown & Root Services, Inc., 2010 WL 4614694 (W.D.Pa. Nov. 5, 2010). The Court denied KBR's motion and ordered the parties to complete discovery as to Plaintiffs' claims and KBR's defenses but again stated that KBR was free to bring the present motion at the conclusion of discovery. Id.
Plaintiffs were granted leave to submit an Amended Complaint, which was filed on January 26, 2011. (Docket No. 209). KBR then filed an Answer to same on February 15, 2011. (Docket No. 217). While discovery was ongoing, KBR brought a motion seeking the application of substantive Iraqi law to the legal issues in this case, rather than the state laws under which Plaintiffs' claims are based. The Court denied KBR's motion after considering all of the parties' evidence and arguments on whether Iraqi law should be applied to this matter but declined to further rule on whether the laws of Pennsylvania, Texas or Tennessee should apply to particular legal issues in this case going forward. See Harris v. Kellogg, Brown & Root Services, Inc., 796 F.Supp.2d 642 (W.D.Pa.2011). KBR sought reconsideration of this ruling, which was again denied by the Court. (Docket No. 248).
The Court has held periodic telephone status conferences to address the status of discovery in this case. At the conference on November 28, 2011, the parties advised that fact discovery was completed regarding KBR's defenses under the political question doctrine and the combatant activities exception to the FTCA.
After receiving leave of court to do so, KBR filed its supplemental brief on May 30, 2012. (Docket No. 298). The Court provided Plaintiffs the opportunity to file a supplemental brief by June 6, 2012, but Plaintiffs declined such invitation. Hence, all briefing on the pending motion has now concluded.
Because the Court has heard oral argument and reviewed all of the parties' submissions, KBR's renewed motion is ripe for disposition.
KBR has again moved to dismiss Plaintiffs' Amended Complaint under Rule
Like its initial motion, KBR's renewed motion asserts a factual attack on the pleadings. When a defendant launches a factual attack on subject matter jurisdiction, "no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Petruska, 462 F.3d at 302 (quoting Mortensen, 549 F.2d at 891). In a factual attack, the court must weigh the evidence relating to jurisdiction, with discretion to allow affidavits, documents, and even limited evidentiary hearings. Atkinson v. PA. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007).
The Court now turns to KBR's renewed motion to dismiss, which marks the second occasion that the Court has been tasked with analyzing KBR's defenses under the political question doctrine and the combatant
At this juncture, the record before the Court is much more robust as fact discovery on KBR's present defenses has been completed.
This Court has presided over this matter since its initial removal from the Court of Common Pleas in 2008 and has reviewed all of the parties' pleadings, briefing and evidence throughout this case and provided counsel with every opportunity to present their arguments, including the most recent oral argument on the motion to dismiss. (See Docket No. 286, 294). Given same, the Court is well versed in the parties' positions vis-à-vis liability in this case and, as framed, it appears that if it would go to trial, the case would largely be tried as a battle of electrical experts — with Plaintiffs' experts offering their opinions that KBR could have made the shower in LSFB1 safe from electrical shocking hazards when it responded to certain work orders in 2006 and 2007 and KBR's expert opining that the entire building needed rewired in order to eliminate the risk of electrical shocks in the showers. (See e.g., Childs Report, Pl. Ex. AA, Docket No. 279-1; Tobias Report, Pl. Ex. BB, Docket No. 279-2; Loud Report, Def. Ex. 32, Docket No. 263-55). Plaintiffs have alleged that KBR negligently responded to these work orders, in violation of its contracts with the military. (Docket Nos. 209, 264, 285). KBR has countered that its negligence, if any, was not the proximate cause of Staff Sergeant Maseth's accident and that the Plaintiffs' negligence claims are barred by assumption of the risk and contributory negligence or limited by comparative negligence principles. (Docket Nos. 261, 282). KBR's liability position is further buttressed by evidence that the military was aware of the specific risk of electrical shocks in the showers in Iraqi hardstand buildings throughout the Iraq war theatre yet did not direct KBR or prior contractors to bring the electrical systems in the buildings up to Western construction standards nor contractually require KBR to perform its electrical services in accordance with the NEC or British standards. (See Def. Exs. 2, 22, 24;
In this Court's estimation, the military presence looms large over nearly every aspect of this case. Specifically, the military exerted control over all aspects of the RPC, including: base security; base life activities; the designation of buildings as living quarters; assignment of soldiers to certain living quarters; the availability of alternative housing and showering facilities; and the terms and conditions of the engagement of government contractors, like KBR, to perform discrete support functions at the base. (Docket Nos. 262 at ¶¶ 51-52, 54-55; 265 at § I, ¶¶ 51-52, 54-55; Def. Ex. 7, Docket No. 263-16; Task Order 139 at §§ 1.1, 7.1).
There is still no binding precedent from the Supreme Court of the United States or the United States Court of Appeals for the Third Circuit analyzing the political question doctrine or the combatant activities exception to the FTCA as applied to a government contractor providing logistical support services to the military in an active war zone. See Harris, 618 F.3d 398 (appeal dismissed for lack of jurisdiction); see also Bootay v. Kellogg, Brown & Root Services, Inc., 437 Fed.Appx. 140 (3d Cir. 2011) (affirming dismissal on other grounds).
With respect to the preemption defense under the combatant activities exception to the FTCA, the United States Court of Appeals for the D.C. Circuit has given much broader application than did this Court in its prior analysis of this defense, which was based largely on the Koohi decision. See Saleh v. Titan, 580 F.3d 1 (D.C.Cir.2009) (finding that claims by detainees alleging mistreatment by contractors were preempted), cert. denied, ___ U.S. ___, 131 S.Ct. 3055, 180 L.Ed.2d 886 (2011). Saleh remains the leading case in this area because two other Courts of Appeals have followed our Circuit and dismissed appeals challenging denials of the
With this background, the Court will now address the parties' arguments and the evidence presented related to KBR's defenses under the political question doctrine and combatant activities exception, in turn.
In Marbury v. Madison, the United States Supreme Court held that "[q]uestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court." Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 170, 2 L.Ed. 60 (1803). "The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch." Japan Whaling Assn. v. Am. Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986). To determine if a case or controversy constitutes a non-justiciable political question, the Court must ascertain "whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded." Baker, 369 U.S. at 198, 82 S.Ct. 691. In Baker, the Supreme Court set forth the following factors to be analyzed in this determination:
369 U.S. at 217, 82 S.Ct. 691. "A finding of any one of the six factors indicates the presence of a political question." Gross v. German Foundation Indus. Initiative, 456 F.3d 363, 377 (3rd Cir.2006) (citing INS v. Chadha, 462 U.S. 919, 941, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983)). However, "[u]nless one of these formulations is inextricable from the case at bar, there should be no non-justiciability on the ground that a political question is present." Baker, 369 U.S. at 217, 82 S.Ct. 691 (emphasis added). In evaluating whether a case presents a political question, a court must "undertake a `discriminating inquiry into the precise facts and posture of the particular case.'" Gross, 456 F.3d at 378 (quoting Baker, 369 U.S. at 217, 82 S.Ct. 691); see also Lane, 529 F.3d at 568 ("different cases involving different claims require their own discriminating inquiry under Baker"). Further, the case must be evaluated as it would be
"[T]he first Baker formulation is primarily concerned with direct challenges to actions taken by a coordinate branch of the federal government." Lane, 529 F.3d at 560 (citing McMahon, 502 F.3d at 1359). KBR, a private corporation, is not a coordinate branch of the federal government. Therefore, in order for KBR to invoke the "textual commitment" factor, it faces a "double burden." Id. KBR must first "demonstrate that the claims against it will require reexamination of a decision by the military. Then, it must demonstrate that the military decision at issue is ... insulated from judicial review." Id. (quoting McMahon, 502 F.3d at 1359-60 (emphasis in original; citation omitted)).
When evaluating claims against a private military contractor in a war zone, the key question is "whether a court will have to consider the wisdom of military operations and decision-making, or whether it need only consider the private contractor's performance." Getz v. Boeing, Civ. A. No. 07-6396, 2008 WL 2705099, at *6 (N.D.Cal. July 8, 2008). With respect to the types of military decisions that cannot be considered in a court of law, the Supreme Court has recognized that:
Gilligan, 413 U.S. at 10, 93 S.Ct. 2440. In cases arising out of the recent war in Iraq, courts have found that the political question doctrine precluded tort suits against private contractors in situations involving: the operation of a military convoy, see Carmichael, 572 F.3d 1271, see also Whitaker v. Kellogg, Brown & Root, Inc., 444 F.Supp.2d 1277 (M.D.Ga.2006); the provision of power generation services used in the maintenance of war tanks, see Taylor, 658 F.3d 402; and the provision of security services at a military base to protect the occupants from hostile actions, see Smith v. Halliburton Co. et al., Civ. A. No. 06-462, 2006 WL 2521326 (S.D.Tex. Aug. 30, 2006).
In our first decision, this Court reviewed the limited factual record, analyzed the contractual provisions at issue as well as the facts bearing on KBR's performance under those provisions, and determined that the high level military decisions involved in housing soldiers at a military base in Iraq were not textually committed to the Executive Branch. Harris, 618 F.Supp.2d at 422-27. We found that certain contractual provisions granted KBR control over its performance of the work on the base and discretion to decide how and when work was to be performed, permitting judicial evaluation of Plaintiffs' claims. Id. Our analysis then focused on a technical inspection conducted by KBR and its performance of many service order requests instituted by military personnel.
At this stage, KBR contends that the formulations of the political question doctrine set forth in Carmichael and Taylor undermine this Court's earlier analysis and conclusion that it is possible to consider KBR's alleged negligence in isolation from the high level military decisions which precipitated KBR's engagement. (Docket No. 261). KBR further argues that its defenses to Plaintiffs' claims must be considered — in the context of the policies, judgments and decisions of the military — all of which KBR maintains contributed to the death of Staff Sergeant Maseth. (Id.). In reply, Plaintiffs continue to contend that this is a simple tort suit which does not challenge any military judgments and the Court's earlier decision should stand. (Docket No. 264). For the following reasons, the Court now agrees with KBR that given the current record, the Court cannot overlook sensitive military judgments and decisions which are implicated in this case thereby barring this action from further judicial consideration.
Returning to our earlier decision, the underlying theme was that KBR was potentially liable in this case because its contractual agreements with the military provided it with discretion in the manner in which it performed its operations and maintenance functions at the RPC and the control it exerted over its own employees' actions. See Harris, 618 F.Supp.2d at 422. Based on the then limited factual record, the Court hypothesized that KBR's alleged negligence could possibly be considered in isolation from the high level military decisions that KBR had identified. Id. But, Carmichael and Taylor persuade this Court that a broader consideration of Plaintiffs' claims and KBR's defenses is necessary in order to determine if any military decision-making will be implicated at a trial of this case. See Carmichael, 572 F.3d at 1292; see also Taylor, 658 F.3d at 409. Moreover, the facts established through discovery and the opinions of the parties' electrical experts, now demonstrate to this Court that the military's involvement cannot be divorced from any negligent act or omission of KBR.
The Court turns initially to Plaintiffs' arguments and supporting evidence. Plaintiffs' opposition to the present motion is essentially twofold: first, that their claims are narrowly tailored to challenge only KBR's alleged negligent conduct; and second, that KBR's negligence based defenses do not "legitimately implicate" military judgments in this case. (Docket Nos. 264, 285). As set forth below, the Court disagrees that all of Plaintiffs' claims are narrowly tailored but also finds that KBR's defenses to Plaintiffs' remaining claims are properly supported and do legitimately implicate military decision-making.
First, Plaintiffs' claims are not as narrowly tailored as they contend but are very broad in scope. (Docket No. 209). In this regard, their Amended Complaint identifies at least 22 separate duties which were allegedly breached by KBR in this case.
In the Court's view, many of the claims, as pled, directly implicate the sensitive military judgments cited by KBR and are not supported. For example, Plaintiffs allege that KBR was negligent, among other things, "in failing to remedy the electrical grounding conditions at the RPC"; "in failing to rewire the RPC"; "in failing to warn the residents of the RPC of the known hazards posed by the faulty electrical systems"; "in failing to otherwise provide a safe alternative for the use of the soldiers stationed at the complex"; and, "in otherwise failing to maintain the RPC in a reasonable and prudent manner so as to prevent injury to U.S. troops there stationed." (Docket No. 209 at ¶ 33(a), (o), (s), (t), (v)). Despite Plaintiffs' position that these claims relate only to work KBR actually performed at LSFB1, none of the above-cited breaches pertain to any service order request
While the Court finds that these specific claims are not "narrowly tailored" as the Plaintiffs suggest, the Court believes that Plaintiffs have made a strong case that KBR negligently performed its electrical work at the RPC. Taken at face value, their evidence may be sufficient to establish a prima facie case of negligence,
But, Plaintiffs' case is not infallible. Plaintiffs do not have any "smoking gun" evidence which conclusively determines the liability issues in this case in their favor. For example, they have no evidence that the military submitted any work order to KBR which explicitly states that a soldier was shocked in the shower in Room 2 of LSFB1 and also requests that KBR repair the subject water pump on the roof which malfunctioned on January 2, 2008. (See Pl. Ex. U, Docket No. 276). In fact, they admit that the subject water pump was never the source of any prior report of an electrical shock before that date. (Docket Nos. 262 at ¶ 191; 265 at § I, ¶ 191; Def. Ex. 36).
Without this type of direct evidence of KBR's liability, Plaintiffs seek to prove their case circumstantially and through the opinions of their expert witnesses that KBR's responses to the submitted work orders should have caused its workers to ground and bond the water pump, the piping within LSFB1, or the building's entire electrical system, even though none of the submitted work orders expressly requested that this type of work be performed. (See Childs Report, Pl. Ex. AA, Docket No. 279-1; see also Tobias Report, Pl. Ex. BB, Docket No. 279-2). Their experts meticulously detail the steps KBR could have taken in response to these work orders which would have potentially eliminated the risk of electrical shock in the shower. See e.g. Childs at 7 ("KBR could have bonded the water lines with just a few feet of wire and a couple of hours of labor.... [T]his would not have been a separate job, but, rather, a necessary safety component of the work orders that KBR responded to."); Childs at 8 ("the bonding of LSF-1 would have only taken an experienced electrician a couple of hours and less than one hundred dollars of material. This should have been a necessary safety component of KBR's work under the existing work orders."); Tobias at 9 ("While complete rewiring, if done correctly, would [remediate the shock hazard], it was certainly not the only method available. [...] One of these methods, bonding the water piping and electrical ground, would singly have prevented SSG Maseth's death and could have easily been done with far less effort and materials than was expended on other work orders listed."). Plaintiffs argue that KBR should have acted in the manner described by their experts because the military granted KBR discretion to perform its work in the manner it saw fit and did not inspect KBR's work after it was completed. (Docket No. 264 at 48-49). They also point out that KBR was contractually obligated to notify the military if the requested repairs could not be performed, exceeded certain specified cost thresholds, or reached beyond the scope of the contracts. (Id. at 18). The Court acknowledges that Childs and Tobias make a compelling case of how KBR could have performed its maintenance services to eliminate the risk of electrical shock in the shower, however, as we discuss below, their opinions rely on a disputed
The Court also believes that KBR has presented substantial evidence supporting its defenses in this case, thereby undermining Plaintiffs' position that these defenses are not legitimate. Moreover, the evidence that KBR has presented to defend against Plaintiffs' claims directly implicates sensitive judgments of the military which are shielded from judicial review. The Court will address the parties' evidence with respect to each of the proffered defenses.
Most prominent among KBR's defenses is its defense to causation whereby it argues that the military's actions were the sole or superseding cause of the accident. See Lane, 529 F.3d at 561 ("The central issue will be causation. If we must examine the Army's contribution to causation, `political question' will loom large."). Hence, at trial KBR will challenge the military decision making. Admittedly, the Court has not yet resolved the disputed issue of whether the laws of Pennsylvania, Texas, or Tennessee will apply to the substantive issues in this case, including causation. See Harris, 796 F.Supp.2d at 658-660 (citing PA. SSJI (CIV), § 3.17; Michaels v. Avitech, Inc., 202 F.3d 746, 753 (5th Cir.2000), which quoted Coleman v. Equitable Real Estate Investment Management, Inc., 971 S.W.2d 611 (Tex.Ct. App.1998); Russell v. Anderson County, 2011 WL 486900, at *11-12 (Tenn.Ct.App. Feb. 11, 2011), which quoted McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991)). Although there are some differences in the law of causation among these jurisdictions, the laws of each provide that proximate causation sets the boundaries of a defendant's liability in negligence. Id. In each state, a defendant can establish a legitimate defense to a negligence claim by proving that its own conduct was not the proximate cause of the harm to the plaintiff and may do so by pointing to evidence that a third party's actions were the true proximate cause of the harm. Id. Therefore, the Court's analysis "would remain the same regardless of which state's law applied." See Carmichael, 572 F.3d at 1288 n. 13. Here, KBR argues that "[i]f this case goes to trial, [it] will be forced to use military witnesses and documents to prove that SSG Maseth's tragic death was caused by discretionary decisions made by personnel at all levels of the military, from Commanding Generals to SSG Maseth himself. A trial would inevitably pit military personnel against each other and force them to explain or defend their discretionary wartime decisions." (Docket No. 261 at 44).
This is not a hollow position. Indeed, KBR has now presented substantial evidence which demonstrates that the military was aware not only of the fact that the hardstand buildings in the RPC were ungrounded with substandard electrical systems, as the Court recognized in our prior decision, see Harris, 618 F.Supp.2d at 404-05, but also that military personnel were aware of the specific risk of electrocution in shower facilities posed by the deficient electrical systems in hardstand buildings throughout the Iraq war theatre. For example, KBR has submitted the declaration of General Vines, who recounts that "[w]e chose to assign personnel to live in these pre-existing structures, notwithstanding their electrical deficiencies. All of us, including myself, lived in buildings with similar deficiencies." (Docket Nos. 262 at ¶ 91; 265 at § I, ¶ 91). Soldiers and commanders alike were subject to shocking incidents caused by deficient electrical work at the base. But, military commanders felt that the shocking incidents were minor when compared to other pressing
KBR's evidence also shows that a number of soldiers were electrocuted in the Iraq war theatre in 2004 and 2005 due to accidental exposure to ungrounded electrical systems, causing injuries and deaths to soldiers, including two electrocution deaths which occurred in shower facilities. (See Def. Exs. 2, 22, 24). It is important that these incidents all occurred before KBR was engaged to perform operations and maintenance services under either the CENTCOM (2006) or LOGCAP III contracts (February 2007). (See Docket Nos. 262 at ¶ 117; 265 at § I, ¶ 117; see also Task Order 139). The information regarding the specific risk of electrocution from ungrounded electrical systems was then circulated within the military chain of command via all of the following: an Army Safety Publication which warned soldiers of potential electrical hazards; a presentation by LTC Carey outlining the electrical hazards which he provided to base camp mayors and military commanders; and an internal DCMA memo which acknowledged the safety issues presented by the electrical facilities and recommended changes to tighten up ambiguous contractual provisions. (Def. Exs. 2, 22, 24). The dissemination of these warnings all predate the military's engagement of KBR pursuant to the LOGCAP III contract in February of 2007. Hence, the duties that the military did and did not assign to KBR under that contract cannot be analyzed without considering the facts which precipitated the military's decisions. See Task Order 139. Because there is evidence that the military was aware of the potential risk posed by deficient electrical systems before KBR was engaged as a contractor at the base, the Court believes that KBR has presented a sufficient factual foundation from which it can reasonably argue that the military's actions in knowingly exposing soldiers to the risk of electrical shock in the showers of Iraqi hardstand buildings were the proximate cause of harm to Staff Sergeant Maseth in this case, rather than KBR's own actions.
The parties dispute whether the military's decision to house soldiers in hardstand buildings was based on a stated military policy, i.e., whether as KBR advocates that this decision involved a calculated war time trade-off between hardstand buildings which provided greater protection to soldiers from attacks than the alternative prefabricated containerized housing units used by the military at other bases or whether, as Plaintiffs advocate, the choice was a result of the failure of the military to appreciate the gravity of the risk posed by the ungrounded electrical systems which, in turn, was compounded by KBR's deficient electrical work. (Docket Nos. 262 at ¶¶ 61, 114; 265 at § I, ¶¶ 61, 114). However, a federal district court is not constitutionally permitted to resolve this type of dispute when, as here, KBR's position is supported by competent evidence such as General Vines' declaration
There are several other aspects of KBR's defense to causation which show that further adjudication of this case will implicate sensitive military judgments. Principally, as this Court interprets the LOGCAP III contract,
On this point, the military command structure at the base cannot be understated. At the RPC, the Mayor's Cell was tasked with the responsibility for all life support functions at the base, including operations and maintenance of electrical and plumbing systems. (Docket Nos. 262 at ¶ 57; 265 at § I, ¶ 57). As a consequence, if a contractor such as KBR was not engaged to perform operations and maintenance services at the base, these tasks would be solely the responsibility of the military through the Mayor's Cell. Further, a government contractor is only able to act when authorized to do so by the military and in the manner set out in the parties' contractual arrangement. See LOGCAP III contract, SOW 7.1 ("The Contractor is obligated to follow and adhere to the Governing directives and applicable documents as listed in the contract and the SOW."). Under Task Order 139, the Mayor's Cell — which oversaw all life support functions at the base — was granted the authority to determine whether Level A or Level B maintenance was appropriate for the buildings. See Task Order 139, Appx F. 1.2 ("Prioritization of facility levels (A, B and C) is the responsibility of the Mayor['s] Cell."). Level A maintenance required preventative maintenance of the facilities and periodic inspections for defects in electrical systems, including checks for grounding. Id. at Appx F.2.1 "Level A, Full Maintenance", F.4, "Preventative Maintenance". The Task Order further provides that "[t]he purpose of these inspections is for safety and to save the government money by identifying deficiencies while they are still small and easy to fix." Id. at Appx F.4.1. On the other hand, Level B maintenance required only that KBR respond to service order
Given these contractual provisions, the military retained considerable control over operations and maintenance services at the base even though it delegated certain work to KBR which, in turn, supervised its own employees' performance without military involvement or inspection of same. Indeed, as the Mayor's Cell was ultimately responsible for base life support functions at the base and through the LOGCAP III contract and Task Order 139 delegated only certain limited maintenance responsibilities to KBR, both the military and KBR effectively shared maintenance and operations responsibilities for the electrical facilities at the base. (Def. Ex. 7, Docket No. 263-16 at 32, ¶ 10 ("In the military, unit commanders have full responsibility for the health, safety and welfare of their unit members.")). It was the military that declined to engage KBR to refurbish the existing buildings by updating the electrical systems, as well as to conduct preventative maintenance services and periodic inspections of the electrical facilities and also decided not to perform these functions using its own personnel. (Docket Nos. 262 at ¶ 135; 265 at § I, ¶ 135). Under this contractual arrangement, the military retained the responsibility for troop safety stemming from its decisions to limit maintenance at the base by maintaining the buildings "as is" without preventative maintenance or inspections while KBR was only responsible to "safely" perform its work on the base — a standard which is undefined in the agreements. See Task Order 139. Thus, this Court cannot find that the military completely shifted to KBR the risk of loss potentially caused by electrical shocks to base camp residents that may have been prevented by the election of a higher level of operations and maintenance services or the direction to refurbish the buildings and upgrade the systems.
A convincing example of the military's retention of control over the level of operations and maintenance services KBR provided at the RPC occurred in late 2007. At that time, base camp Mayor SFC Skaggs directed KBR to install a generator near LSFB1 and also requested that KBR provide "full O & M" services to the generator, meaning that service was to be provided as Level A maintenance under
The evidence surrounding the generator installation also demonstrates that the military ignored warnings from KBR concerning the state of the electrical facilities in the LSFB1 area. In this regard, KBR representatives advised military personnel in person and through written correspondence that the electrical systems in that area were "maxed out" and recommended that the ECCM device be operated through the generator rather than the electrical system. (Docket No. 262 at ¶ 184; Pl. Ex. X, Docket No. 277-1 at 2). The military initially followed KBR's recommendation and ordered KBR to install the generator. (Docket No. 263-51 at 23). However, within a month, military personnel directed KBR to remove the generator and SFC Skaggs and other military personnel installed the ECCM directly into the electrical system, contrary to KBR's recommendation. (Docket No. 262 at ¶ 185). Again, this evidence shows that the military conducted its own risk assessment and would act contrary to KBR's recommendations on electrical safety, if the military believed that it was necessary to do so.
In addition, the evidence of work KBR actually performed at the base does not foreclose KBR's argument that the military's actions alone were the proximate cause of Staff Sergeant Maseth's death because Plaintiffs' case largely relies on circumstantial evidence which is particularly susceptible to KBR's empty chair defense that challenges the military's decisions. For example, the parties dispute whether it was KBR that installed the ungrounded water pump in 2006 at LSFB1 that ultimately failed in this case. Plaintiffs maintain that it did, relying on photographs of LSFB1 from 2006 and 2008 and the corroborating testimony of two soldiers to show that the water pumps and tanks were moved on the roof of the building during that time period. (Def. Ex. 36, Docket No. 263-61 at ¶ 20; Docket No. 295 at § I, ¶ 197). Plaintiffs' evidence supporting their contention that KBR installed the water pump is speculative and weak, at best. Yet, Plaintiffs ask that the Court and a jury infer from the movement of the water pumps and equipment and the fact that KBR had an operations and maintenance contract at the base during this time period, that KBR must have installed the water pump. (Docket No. 265 at § I, ¶ 197). The DODIG investigators apparently found this information
Plaintiffs' remaining claims rely on KBR's failure to properly respond to work orders on the following dates: June 14, 2006; July 4, 2006; February 13, 2007; June 23, 2007; June 26, 2007; and July 8, 2007. (Docket No. 265 at § II, ¶ 87). This evidence is likewise hotly contested between the parties. (Docket Nos. 265 at § II, ¶ 87(a)-(g); 283 at ¶ 87(a)-(g)). While several of these work orders contained complaints of electrical shocks by service members,
In all, Plaintiffs do not have direct evidence creating a causal link between the subject water pump and a prior electrical shock incident. Yet, Plaintiffs and their experts suggest that KBR's workers who responded to the subject work orders should have: bonded the water pipes that became electrified in addition to fixing (or attempting to fix) the reported electrical problems with the lack of grounding on the water heater and electric panels; or, recognized that the water pump was ungrounded when they replaced the pressure switch and, then, either grounded the water pump or sought approval do to so from the Mayor's Cell. (Docket No. 265 at § I, ¶ 198). The former base camp mayors both testified that they would have authorized such work if KBR had presented such a request to them. (Docket No. 265 at § II, ¶¶ 54, 74, 77-82). But, without direct evidence of KBR's performance of faulty work on the subject water pump, KBR's liability position can be fairly defended by pointing to the ambiguities in the contract and the fact that the contract contained provisions which were not elected, like Level A maintenance, which would have explicitly required KBR to conduct periodic checks for grounding of all equipment, including water pumps, every 60 days. See Task Order 139 at Appx F.4.1. ("A Category. Inspection should be conducted every 60 days, but can be modified by the base camp mayor for more or less frequent inspections on an individual basis. The purpose of these inspections is for safety and to save the government money ..."). The subject water pump was last serviced on July 8, 2007, and Staff Sergeant Maseth's death did not occur until January 2, 2008.
Another point of contention between the parties is whether the risk of electrical shock in the shower at LSFB1 could have been eliminated without direction from the military to rewire the entire building. (Docket Nos. 262 at ¶¶ 166-167; 265 at § I, ¶¶ 166-167). This dispute is the center of the battle of electrical experts in this case. (See Docket Nos. 289-293, 299, 302-303). KBR's expert, John Loud, contends that a complete rewire of the building was necessary to eliminate the risk of electrical shock. (Def. Ex. 32). Plaintiffs' experts, Jim Childs and Dr. John Tobias, concede that a complete rewire would eliminate the risk, but they also conclude that the electrical shock risk could have been addressed by KBR within the context of the aforementioned work orders. (Pl. Exs. AA, BB). The facts underlying these competing opinions are disputed although both parties agree that the military never issued an order directing KBR to upgrade the electrical facilities until after the accident. While KBR has moved to exclude the opinions of Plaintiffs' experts under Daubert, (see Docket No. 289), Plaintiffs have not sought to exclude the opinions of Loud, the defense expert, by filing a Daubert challenge, (see Docket No. 255); instead, Plaintiffs will rely on cross examination at trial. Plaintiffs' tactics, while understandable, undermine their position that KBR's defenses do not legitimately implicate military judgments. Without seeking to exclude Loud's testimony, Plaintiffs have, in effect, conceded that his opinions will be placed before the jury. Of note, only the military had the authority to direct KBR to rewire LSFB1, and Loud's opinion that the risk of electrical shock could not have been eliminated absent such an order challenges the sensitive military judgment of whether the military should have commissioned KBR or another contractor to upgrade the electrical systems by rewiring the building. (See Def. Ex. 32 at 11).
The presence of such non-justifiable issues is even more apparent if the Court delves deeper into the disputed facts on the issue of the safety of LSFB1, contractual negotiations with KBR and the limited technical inspection which was completed by KBR before it assumed operations and maintenance responsibility at the RPC. Plaintiffs suggest that KBR should have recognized that the electrical systems posed significant risks to soldiers and that KBR should have marked the building as "unserviceable" — effectively condemning it. (Docket No. 265 at § II, ¶¶ 51-54). KBR cites the same technical inspection report as further evidence of its warnings to the military of the poor condition of the electrical systems and, again, faults the military for not ordering that LSFB1 be rewired. (Docket No. 262 at ¶¶ 152-156). KBR representatives presented the technical inspection report to military officials on two separate occasions, once in February of 2007 and a second time in November of 2007. (Id. at ¶¶ 168-170).
In this Court's estimation, the evidence KBR has submitted with respect to the contractual aspects of the technical inspection
Colonel Vollmecke provided significant context for his testimony as well. He explained that the contracts were not developed to account for the semi-permanent occupation environment that was present at that stage of the war in Iraq and believed that these agreements worked well at the beginning of the war when only a limited number of bases were involved. (Id. at 41-43). But, as the war progressed toward semi-permanent occupation of Iraq by the joint forces and the assignment of soldiers to live in thousands of Iraqi hardstand buildings, "holistic" changes were not made to the contract to keep up with the changing dynamics of the war. (Id. at 43). Moreover, the contractual negotiations with KBR took place in February of 2007, at a time when the United States — at the command of the President — had commenced execution of the "Surge" wherein the troop levels on the ground in Iraq were significantly increased (in excess of 20,000) in order to stabilize the country. (Id. at 42). The "Surge" added tremendous pressure to DCMA as the troop increases resulted in corresponding increases in the number of contractors, which required a significant amount of work from DCMA staff at the time. (Id.).
Much of Colonel Vollmecke's testimony concerning the state of the agreements with contractors at the relevant time is corroborated by the February 1, 2007 Dickinson Memorandum — an audit report wherein Dickinson reports that the safety programs then-present in the war theatre were "substantially non-achievable due to the war environment." (Def. Ex. 24). He added that "[m]any products and facilities available in Iraq do not meet basic U.S. standards nor a military risk analysis based on a generally acceptable `good enough' standard. The LOGCAP contract process influences KBR to inherit many facilities which are not intended for long term usage." (Id.). Dickinson also identified poor electrical conditions as a major safety threat on U.S. bases in his report. (Id.).
This evidence, acquired from internal military sources, lends further credence to KBR's theory that the risk of electrical
KBR further argues that its defense of assumption of the risk bars consideration of this action by this Court. (Docket No. 261). The parties have not briefed the choice of law issue on assumption of the risk, although both have referenced Pennsylvania law during their arguments.
Here, KBR has submitted evidence supporting each of the elements of its assumption of the risk defense. There is certainly circumstantial evidence in the record which shows that Staff Sergeant Maseth had knowledge of the risk posed by the shower. As the Court discussed above, KBR has presented evidence that the military had knowledge that the electrical systems in Iraqi hardstand buildings did not meet Western construction standards as well as the fact that certain individuals within the military chain of command were made aware of the specific risk of electrocution in the shower facilities in Iraqi hardstand buildings. (Def. Exs. 2, 22, 24; Docket Nos. 262 at ¶¶ 86-91; 265 at § I, ¶¶ 86-91). KBR has also submitted evidence that warnings of the risk in the shower were provided to Staff Sergeant Maseth himself.
The issue of whether Staff Sergeant Maseth voluntarily encountered the risk of potential electrocution in the shower involves the consideration of any reasonable alternatives which were available to him at the time of the accident. See Kaplan, 126 F.3d at 226. In this Court's opinion, this issue cannot be decided without implicating sensitive military judgments concerning the facilities made available to soldiers at the RPC for housing and showering. In fact, the Court believes that both parties' positions on voluntariness cannot be resolved without taking into account the military's decision-making which precipitated Staff Sergeant Maseth's own choice to take a shower on January 2, 2008.
From their view, Plaintiffs submit that the act of taking a shower does not involve sensitive military decisions. (Docket Nos. 264, 285). However, the parties do not dispute that the military controlled all aspects of the facilities planning relevant to the RPC, including where soldiers were housed and the showering facilities made available to them. (Docket Nos. 262 at ¶¶ 51-52; 265 at § I, ¶¶ 51-52). There is also no evidence in the record which suggests
From the Court's perspective, neither party can prove its case on the voluntariness issue without implicating the sensitive military judgment of whether reasonable alternatives were available to Staff Sergeant Maseth for showering in LSFB1. Plaintiffs must either admit that Maseth voluntarily encountered the risk in the shower, an admission which would undermine their case, or take the position that his actions were involuntary such that he was acting in response to military orders and directly challenge the military's decisions concerning the shower facilities which were made available to him at the base. On its behalf, KBR argues that the ablution units should have been more widely available at the base and that the military should not have permitted Staff Sergeant Maseth and other soldiers to use the shower facilities within the Iraqi hardstands, but, instead, should have required the soldiers to use the ablution units. To support this argument, KBR would have to put on evidence about the number and placement of the ablution units, as well as evidence concerning the apparent military decision to permit showers in the hardstand buildings. Any decision by this Court resolving these factual and legal disputes would necessarily pass judgment on the military's choices regarding what type of shower facilities it made available to soldiers at the base, something this Court is ill-equipped to evaluate.
Although KBR has specifically argued in its papers that its assumption of the risk defense cannot be further adjudicated given the above-cited evidence, it is apparent to the Court that its other defenses of contributory negligence and comparative negligence present non-justiciable political questions for the same reasons. We simply cannot determine if Staff Sergeant Maseth himself acted negligently with respect to his own safety without evaluating whether the military made alternative showering facilities available to him. And, that decision was solely within the purview of the military. See Taylor, 658 F.3d at 411-412 (analysis of KBR's contributory negligence defense could not be accomplished without reviewing reasonableness of military judgments). We also fail to see any way in which a jury could apportion liability among these parties under a comparative negligence analysis without evaluating the military's role in this case. Indeed, under Texas law, which may ultimately apply here given that it is the state of KBR's headquarters and the location of many of its activities, a jury may be
Considering these facts, the Court holds that this case involves sensitive military judgments which are not subject to judicial review. The funding of the military is committed to the sound discretion of the legislature while the decisions concerning what type of operations and maintenance services to be provided at a military base in a war zone are committed to the executive branch. See Gilligan, 413 U.S. at 10, 93 S.Ct. 2440. The potential trade-offs between the safety of troops from hostile actions and other hazards on a military base in an active war zone versus the condition of electrical facilities on the base and the military's allocation of scarce battlefield resources to enhance the safety of electrical facilities versus using such funds for other wartime activities cannot be determined in a court of law thousands of miles away. (See e.g., Docket Nos. 262 at ¶ 90 (General Satterfield testifying that shocking incidents were minor when compared to other pressing matters such as power distribution and protection from indirect fire); ¶ 91 ("General Vines declaring that `[w]e chose to assign personnel to live in these pre-existing structures, notwithstanding their electrical deficiencies. All of us, including myself, lived in buildings with similar deficiencies.'"); ¶ 204 ("Speaking of safe, from your perspective as a 1 SG or CSM, would you rather have your soldiers live in a hardstand building or a CHU when mortars are going off nearby? Where do the soldiers want to live?")). Weighing these factors requires professional military judgment which this Court is not authorized to review without violating the separation of powers of the three branches of our federal government. See Baker, 369 U.S. at 217, 82 S.Ct. 691.
For these reasons, the Court finds that the first factor under Baker has been established and this case must be dismissed.
With respect to the second Baker factor, "[a] political question looms menacingly when a claim suffers from `a lack of judicially discoverable and manageable standards for resolving it.'" Lane, 529 F.3d at 560 (quoting Baker, 369 U.S. at 217, 82 S.Ct. 691). "One of the most obvious limitations imposed by [Article III, § 1, of the Constitution] is that judicial action must be governed by standard, by rule." Id. (quoting Vieth v. Jubelirer, 541 U.S. 267, 278, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (plurality opinion)) (emphases in original). "Courts have frequently held that certain military judgments are outside the competence of courts" as courts are not equipped with appropriate standards to resolve the questioning of these judgments. McMahon, 502 F.3d at 1363 (discussing Gilligan, 413 U.S. 1, 93 S.Ct. 2440). The type of judgments that are insulated from judicial review involve inherently military activities including combat operations, training exercises, and the
In light of this precedent, the Court's analysis of the second factor under Baker flows from the examination of the first factor. By their nature, sensitive military judgments are without judicially manageable standards as "courts lack standards with which to assess whether reasonable care was taken to achieve military objectives while minimizing injury and loss of life." Aktepe v. United States, 105 F.3d 1400, 1404 (11th Cir.1997). Although we previously found that the flexible standards of negligence law would likely permit the Court to discover and adopt a manageable legal standard in this case, see Harris, 618 F.Supp.2d at 427-30, after consideration of the fully developed factual record, we believe that the military's risk assessment concerning the continued use of the shower facilities in the Iraqi hardstand buildings which posed a known electrocution risk to soldiers cannot be evaluated under traditional state law tort standards. The military's decisions furthered its objective of force protection from hostilities (whether the base was subject to actual attacks or not) and responded to the allocation of scarce defense resources among the many war hazards to which soldiers were possibly subject in Iraq. A federal court lacks the competence to evaluate these policy decisions. See Taylor, 658 F.3d at 412, n. 13 ("Here, we have no discoverable and manageable standards for evaluating how electric power is supplied to a military base in a combat theatre or who should be authorized to work on the generators supplying that power.").
We likewise cannot determine whether KBR acted (or failed to act) with due care toward Staff Sergeant Maseth because the contracts at issue in this case did not shift the risk of loss associated with the soldiers' exposure to known electrical hazards from the military to KBR. Instead, the contracts delegated only certain discrete duties to KBR, and the military necessarily retained the duties which were not assigned under the contracts. See Task Order 139; see also Pl. Ex. A. As such, KBR's activities at the RPC are inextricably intertwined with the policy-based decisions made by the military and the issue of proximate causation cannot be evaluated without questioning these military decisions. See Carmichael, 572 F.3d at 1295 (explaining "it would be impossible to determine that [KBR's conduct] alone was the sole cause of the accident or to possibly apportion blame without ruling out the potential causal role played by pivotal military judgments"). In addition, KBR's defenses of assumption of the risk, contributory negligence and comparative negligence raise further questions which are not suited for judicial review. See Taylor, 658 F.3d at 411-12 (holding that defense of contributory negligence would implicate sensitive military judgment regarding power generation).
This case is even more problematic in that Plaintiffs' liability theory relies primarily on their assertion that KBR was required to perform its electrical work to NEC or British electrical standards but they have been unable to produce evidence which convinces this Court that either of these standards applied to the work that KBR actually performed at LSFB1. (Pl. Exs. AA, BB). The Court previously suggested that Plaintiffs could prove the duty owed by KBR and the standard of care with reference to the terms of its contracts with the military, internal operating procedures, or possibly by undertaking a duty through its performance of service order requests at the base. Harris, 618 F.Supp.2d at 428-29 ("The applicable duty owed by KBR to Staff Sergeant Maseth, if
Without any explicit contractual language supporting their position, or an alternative means of proof to establish the electrical standards used at the base, Plaintiffs and their experts contend that this Court and ultimately, a jury, should evaluate KBR's performance in relation to American and/or British electrical standards, based only on KBR's general duty in the agreements to perform its work in a "safe" manner. (Pl. Exs. AA, BB). This Court cannot hold KBR to a standard of care that was not explicitly present in its contracts with the military. It was the military's responsibility to implement contractor performance requirements by including such electrical standards in the contracts. See Army Reg. 715-9 at 3-2(f) (stating that contractor employees are "not under the direct supervision of military personnel in the chain of command," but that the "contracting officer ... or [his] designated liaison ... is responsible for monitoring and implementing contractor performance requirements"); see also Carmichael, 572 F.3d at 1283 (quoting same). The military (through DCMA) failed to do so. (Docket No. 263-52 at 52). If this Court were to equate the use of the term "safety" in the agreement as a means to import the Western electrical standards into the relationship, it would undermine the military command structure and question the military's decisions in failing to include such explicit language in the agreement. While negligence claims involve inherently flexible standards, without explicit contractual duties requiring KBR to perform its electrical maintenance activities to American or British standards, the standard of care cannot be based on general considerations of "safety," an undefined and ambiguous term. As is demonstrated by the testimony of many military witnesses, and other evidence of record, our civilian society's general understanding of the term "safety" cannot be introduced into combat areas where sensitive military policy-based judgments must be made to shield our troops from all of the hazards that a war presents. (See Docket No. 262 at ¶ 125 (questioning of Skaggs, RPC Mayor at the time of SSG Maseth's accident, "Q: From an electrical standpoint, was [LSFB-1] a safe building? A: I — you would have to define "safe," sir. I — I personally have lived in worse buildings than this ... Q: When you said define "safe," from an electrical standpoint, would this building — LSF-B1, would it conform to the National Electrical Code?... A: No, sir. No, sir. But no building there would. And that's the whole 144 buildings. None of them would conform.")). Hence, the term "safety" as it relates to electrical maintenance on the base cannot be interpreted without questioning the military's discretionary decision to house troops in these facilities with known electrical problems and its awareness of the electrocution risk posed by the electrical system and shower facilities.
As a result, the Court finds that this case lacks judicially discoverable and manageable standards and must be dismissed based on the application of the second Baker factor to the factual record in this case.
For many of the reasons we have already expressed, the Court believes that the fourth Baker factor, which considers "the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government," also bars consideration of this case. Baker, 369 U.S. at 217, 82 S.Ct. 691. To this end, we share the views of the Court in Aktepe v. United States, that:
105 F.3d at 1404 (citing Tiffany v. United States, 931 F.2d 271, 278 (4th Cir.1991)). Although the United States is not a party to this case and is immune from any lawsuit brought against it by Staff Sergeant Maseth's estate and any contribution action brought against it by KBR, given the facts established by KBR regarding the military's decision-making at the base, the Court cannot preclude KBR from presenting its evidence which attempts to place responsibility on the military for the accident involving Staff Sergeant Maseth. See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) (United States immune from soldier's claim against United States military for injuries incident to service); see also Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977) (Feres doctrine extended to bar third party's claim for contribution or indemnity against United States arising from soldier's injuries incident to service). Simply put, to permit this case to go forward would place the military and its wartime practices on trial. As a consequence, this case must be dismissed.
This holding finds further support in the government agency reports issued by the Department of Defense Inspector General, Department of the Army and Department of the Army Criminal Investigative Division. (Def. Exs. 31, 39, 40, 41). When this Court issued its initial decision in March of 2009, the Executive Branch reports on the death of Staff Sergeant Maseth had not yet been completed and released. See Harris, 618 F.Supp.2d at 431. This Court found that adjudication of this case while those investigations were pending would not express a lack of respect to the coordinate branches of the federal government because those investigations were not evaluating the case under the same legal standards as the negligence principles that would be applied in this forum. Id. While we again acknowledge the different legal standards pertaining to a civil tort action and the findings of these agencies, all of the completed reports point to systemic failures by many entities involved in the operation and maintenance of the RPC, making each significant contributors to Staff Sergeant Maseth's electrocution and death. (Def. Exs. 31, 39, 40, 41; Docket Nos. 262 at ¶¶ 201-206; 265 at § I, ¶¶ 201-206). Indeed, the Executive branch reports
In addition, the Executive reports contain factual findings and legal conclusions which Plaintiffs directly challenge in this case. For example, the DODIG report concludes that the LOGCAP III contract did not contain explicit electrical standards and this report and the Department of the Army 15-6 Report both state that KBR's contracts did not set forth baseline standards for its employees' electrical certifications and/or training. (Def. Exs. 31, 39). Moreover, all of the Executive reports indicate that the military's decisions were causal factors contributing to the accident. (Docket No. 262 at ¶¶ 201-206). To this point, the Army CID report concludes that it could not determine that any single individual or entity's actions were the proximate cause of the accident in this case. (Id. at ¶ 206).
As such, Plaintiffs' claims will test the propriety of the Executive branch's pronouncements regarding the circumstances surrounding Staff Sergeant Maseth's death. It would be incompatible with those Executive findings for this Court to hold KBR to the electrical standards advocated by Plaintiffs — which are not explicitly stated in the contractual agreements and for which the Executive agencies have determined their own personnel shared some fault. Further, whether KBR should have done more to make the base "safe" and prevent Staff Sergeant Maseth's death simply cannot be evaluated in the context of this case without considering the military's initial risk assessment to permit soldiers to live and shower in the Iraqi hardstand buildings which presented a known risk to his safety. With the benefit of hindsight, it is apparent that if greater emphasis had been placed on the potential risk posed by the hardstand buildings, this accident may have been avoided and Staff Sergeant Maseth would likely be alive and well. "But the political question doctrine does not permit us to mimic the constitutional role of the political branches by guessing how they would have conducted the nation's foreign policy had they been better informed." El-Shifa Pharmaceutical Industries, Co. v. U.S., 607 F.3d 836, 845 (D.C.Cir.2010). Given the persuasive precedent we have discussed above, we cannot permit a jury to make such a determination. Accordingly, the Court finds that the fourth Baker factor has also been established precluding further litigation of this case in this Court.
After conducting a "discriminating inquiry" into the detailed factual record in this case, the Court concludes that further consideration of this case would violate the doctrine of separation of powers between the co-equal branches of our federal government. From this Court's perspective, it would be impossible to evaluate this case without questioning sensitive military policy-based decisions over which no judicially manageable standards can be crafted, and requiring military personnel to appear at trial and defend these wartime policies would offend the constitutional principles we have discussed. See Baker, 369 U.S. at 217, 82 S.Ct. 691. As a consequence, this case must be dismissed.
Given that the Court has determined that this case presents non-justiciable political questions, we may decline to consider KBR's alternative basis for dismissal under the combatant activities exception to
As this Court previously recognized, the FTCA authorizes "damages to be recovered against the United States for harm caused by the negligent or wrongful conduct of Government employees, to the extent that a private person would be liable under the law of the place where the conduct occurred." Boyle v. United Technologies Corp., 487 U.S. 500, 511, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988) (citing 28 U.S.C. § 1346(b)). The combatant activities exception to the FTCA, section 2680(j), provides an exception which precludes tort liability for "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." 28 U.S.C. § 2680(j). Although not directly applicable to government contractors, several courts have extended the principles underlying this exception to preempt claims against government contractors. See e.g. Koohi, 976 F.2d 1328; Bentzlin v. Hughes Aircraft Co., 833 F.Supp. 1486 (C.D.Cal.1993); Saleh, 580 F.3d 1; Aiello, 751 F.Supp.2d 698.
In Koohi, the United States Court of Appeals for the Ninth Circuit held that "the combatant activities exception was designed `to recognize that during wartime encounters[,] no duty of reasonable care is owed to those against whom force is directed as a result of authorized military action.'" Koohi, 976 F.2d at 1337. More recently, in Saleh, the Court of Appeals for the D.C. Circuit viewed the defense more broadly and recognized that "[d]uring wartime, where a private service contractor is integrated into combatant activities over which the military retains command authority, a tort claim arising out of the contractor's engagement in such activities shall be preempted." Saleh, 580 F.3d at 9. Modern courts
Id. The Johnson court further explained that:
Id. The Court also noted that "[t]he act of supplying ammunition to fighting vessels in a combat area during war is undoubtedly a `combatant activity.'" Id. at 768, 770.
The parties debate the proper formulation of the test to be applied to evaluate
First, KBR's duties included maintenance of the electrical systems in the 126 buildings at the RPC. See Task Order 139. The evidence also shows that KBR was engaged by the military to ensure the flow of electricity within the base. Id. at §§ 8.1.1 (Operations & Maintenance), 8.3 (Power Generation); 8.1.3.1 (Power Distribution). Electricity was used on the base not only for life support functions like running the water pumps, water heaters and air conditioning equipment, but also to power devices which helped to protect soldiers from enemy attacks. Id. In fact, KBR received orders from the military in November of 2007 to install a generator for the purpose of powering an ECCM jamming device used to protect against vehicle borne improvised explosive devices. (Pl. Ex. X, Docket No. 277). In this order, SFC Skaggs states that "[t]he generator is necessary to provide power to a new ECCM device
Second, the broader definition of the combatant activities exception as formulated by the Aiello Court likewise supports preemption in this case. The District Court in Aiello recognized that there was no evidence that the inhabitants of the base were either receiving or returning enemy fire in active battle, which distinguished that case from the Taylor matter. See Aiello, 751 F.Supp.2d at 713 (citing Taylor, 2010 WL 1707530 at *10 ("[i]f shelling and receiving shelling is not combat, then combat has no meaning.")). Despite the absence of actual fighting on the base, the Court held that:
Id. at 713. The Aiello Court further recognized that maintenance of latrine facilities was directly related to the health of the soldiers inhabiting the base and, thus, "integral to sustaining combat operations." Id. at 714. Here, the parties dispute how much actual combat took place within the walls of the RPC. The evidence shows that, among other things:
(Docket Nos. 262 at ¶¶ 35-39, 47; 265 at § I, ¶¶ 35-39, 47; 265 at § II, ¶¶ 106-114; 283 at ¶¶ 106-114; 263-15 at ¶ 13; 277). The military engaged KBR to provide discrete
For these reasons, the Court alternatively holds that KBR's motion to dismiss under the combatant activities exception is granted.
After carefully considering all of the parties' arguments and the extensive factual record in this case, this Court believes that dismissal is appropriate given the impact of the many military judgments which we have fully described above. While we believe that Plaintiffs and their experts have made a compelling case challenging the safety of KBR's electrical work in LSFB1, we do not believe that this case can be further adjudicated without questioning the military's wartime decisions which directly affected the safety of the electrical facilities in the building. It is not the role of the judiciary to pass judgment on the military's decisions which affect the safety of a military base located in an active war zone and we conclude that an evaluation of KBR's defenses cannot be divorced from these military decisions. The Court points out that KBR's performance has been critically evaluated by the political branches of our government. For example, the DODIG Report found, among other things, that: KBR perpetuated electrical hazards by completing electrical work without proper grounding and bonding; employed personnel with inadequate electrical training and expertise; had deficient standard operating procedures; and failed to bring inconsistent contract specifications to the attention of government officials. Based on the evidence of record before this Court, it appears that the DODIG conclusions are correct.
The Court does not reach its decision lightly. We are certainly mindful of the loss of the Plaintiffs and the ultimate sacrifice made by Staff Sergeant Maseth. Yet, based on the present record before this Court and the foregoing analysis, KBR's Motion to Dismiss [260] must be GRANTED, and this case is DISMISSED, with prejudice. An appropriate Order follows.
President Bush Delivers State of the Union Address, January 23, 2007, available at: http://georgewbushwhitehouse.archives.gov/news/releases/2007/01/20070123-2.html (last visited July 12, 2012).
(Pl. Ex. L, Docket No. 271-1).
Colonel Vollmecke offered further explanation of this distinction during his statements to the DOD investigators. (Docket No. 263-52). To this end, he explained that "anybody knows NEC or British standard really should be host nation driven to the environment, because ultimately you're going to turn the facilities over. And so if they're a quasi-British standard, why wouldn't we want to do that? Why would we want to give the Iraqis NEC when, in fact, their grids aren't even set to that. That's stupid." (Docket No. 263-52 at 54-55).
