David Montoya, 44, of Farmington is one of newest litigants suing the companies. Cancer that started in his colon has spread to his lungs, and his doctor told him in February that he had about two years to live. Montoya says the cause of his cancer was contaminated water supplied by the military contractors, and from breathing in smoke from the burn pits.
Montoya filed his lawsuit last week in state District Court in Santa Fe against Halliburton Co., KBR Inc. and Kellogg, Brown & Root Services LLC. In doing so, he joined almost 250 other former and active military personnel who are suing the companies, which provided water treatment and waste disposal services in Iraq and Afghanistan. Two other soldiers from New Mexico, both in poor health, jointly filed a suit against the companies six years ago. At one point, a federal judge in Maryland rejected suits against the military contractors, but an appeals court reversed that decision. With the case alive, soldiers who are dying say they have a chance to shed light on wartime actions that placed profits over people.
Burn pits were part of the American war effort as a means of keeping bases functional. Afire constantly, they burned plastics, metals, chemicals and every form of waste, say soldiers who served at the outposts. Contaminated jet fuel often ignited the burn pits.
The companies being sued say their work was critical to America’s war effort, not a detriment to American soldiers. One company summed up its position in an email last week: “KBR provided a critical service to the Army under dangerous conditions, and to the exacting standards of the Army’s guidelines and contract for waste disposal. KBR personnel performed admirably under extreme conditions to safely and effectively dispose of tons of waste material. We will vigorously defend any allegations to the contrary.”
The company has argued in court that it can’t be held liable for wartime decisions made by the U.S. military, and that it was essentially following orders given by the government when it created the burn pits.
Army National Guard 1st Sgt. Montoya says the pits were an obvious health hazard.
On battlefields in Iraq between 2003 and 2005, and again in 2007 and 2008, he evacuated wounded soldiers who then were transported to hospitals by aircraft. His life in a combat zone also meant living near one of the burn pits. He says junk and waste of every type landed in the pits. They included trucks, Styrofoam, ammunition, paints, tires, solvents, asbestos insulation, pesticides, animal carcasses and even human remains.
Flames from the pits shot hundreds of feet into the sky. Heavy smoke was the norm, Montoya says in his lawsuit.
“The flames were often colored blue or green from the hazardous chemicals that were put on the burn pit. The smoke from the pit also turned a thick black or white depending on what was being burned. The smell from the pit was often of plastic or chemicals burning and was extremely noxious. The smoke from the enormous burn pit close to Camp Cropper and Camp Victory was often so thick it filled the nearby living quarters with smoke and haze.”
At times, wild dogs raided the burn pit, he says in his complaint. The dogs “could be seen roaming the base with body parts in their mouths, to the great distress of the U.S. Forces.”
Montoya says the smoke from the burn pit was pulled into the barracks through the air-conditioning system. He and his fellow soldiers woke each morning spitting black and gray mucus. “Sometimes it was so bad, we’d sleep without the air conditioner and suffer through the heat so that it wouldn’t get into our living quarters,” he says. Montoya alleges in his complaint that KBR knew the hazards associated with the burn pits and also “knowingly exposed troops and civilians to contaminated water from the Euphrates and Tigris Rivers.”
Similar lawsuits, originating in 42 states — including a complaint filed in 2009 by soldiers Jessey Joseph Philip Baca of Albuquerque and Daniel Tijerina of Santa Fe — have been consolidated in a U.S. District Court in Maryland.
Susan L. Burke, a Baltimore attorney who is representing service members in the multidistrict suit against the companies, said “thousands” of victims, including more in New Mexico, have contacted her because they want to be part of the case. A judge will decide next month how those individual complaints will be included. Burke said Montoya’s lawsuit will likely become part of the larger suit, too.
According to plaintiffs’ claims in the consolidated case, the contractors created “literally hundreds” of burn pits at military bases throughout Iraq and Afghanistan. They say the health repercussions from the burn pits are like the effects of Agent Orange — an herbicide used during the Vietnam War — in that thousands of former soldiers who survived combat later became sick or died from something to which they were exposed by their own government.
In 2013, a bill by U.S. Sen. Tom Udall, D-N.M., created a federal burn pit registry to track the symptoms of soldiers in Iraq and Afghanistan. The registry is open to any veteran or active-duty service member who served in the Southwest Asia theater after Aug. 2, 1990, or in Afghanistan or Djibouti, Africa, after Sept. 1, 2001. This could cover 3.5 million people, according to a U.S. Department of Veterans Affairs report published in June.
Udall said via email last week that he wrote the legislation after learning about the issue from Master Sgt. Baca of Albuquerque.
Doctors diagnosed Baca with skin cancer and a host of other health problems after two tours in Iraq. He was stationed at Camp Anaconda, home to one of the largest pits. In all, Baca served in the military for more than 35 years.
Baca and his wife, Maria, were among nine families claiming negative effects from burn pits who traveled to Washington, D.C., to support Udall’s bill. As of December, more than 28,000 service members had listed their health problems on the registry.
The main defendants in the litigation — KBR and Kellogg, Brown & Root — were, until 2007, subsidiaries of Halliburton. According to Montoya’s suit, the companies received $8.2 billion in government contracts to support military operations in the Middle East in 2006 alone. That amount represented more than 45 percent of all their revenue for that year, the suit says.
The companies’ argument that they were merely following orders given by the government when they created the burn pits was accepted by a judge in Maryland who dismissed suits against the companies in February 2013.
“This case is about war, in fact two wars,” U.S. District Judge Roger W. Titus wrote in his opinion. “It has sometimes been said that ‘war is hell.’ … Especially during times of war, the military frequently calls upon civilians and civilian contractors to aid in the fulfillment of its missions under often hellacious combat conditions.”
Titus found that laws that afford immunity to public employees also extend to others in times of war. He wrote that exposing wartime contractors to the threat of too much liability could make it impossible for the military to find companies willing to do necessary work. He concluded that controlling — and correcting, if need be — the actions of the contractors was a function of the executive branch of government.
But the 4th Circuit Court of Appeals disagreed. It found that there were issues of jurisdiction and governmental immunity that still needed to be explored through discovery before the case could be decided. The appeals court reversed Titus’ decision and sent the case back to him in March 2014.
KBR asked the U.S. Supreme Court to review the appellate court decision, but the request was turned down in January.
Titus has since ordered the parties to begin preparing their arguments regarding discovery of evidence.
“Finally, the many victims of KBR’s negligence will have their day in court,” Burke said last week, noting that the first burn pit lawsuit was filed in 2008. “It’s been a long process, but hopefully we’ll move forward quickly from here to a trial before jury.”
Meanwhile, Montoya, Baca and Tijerina are disillusioned.
“It definitely changes your outlooks and views on a lot of things,” said Montoya, who said he joined the National Guard before he was even out of high school because he was a patriot and wanted to serve his country, like his father and uncles had. “You just kind of feel betrayed by corporate America, you know? Regardless of your beliefs on the war, when it comes down to corporate America profiting so much and the amount of money they make, they can take the time and right steps to ensure the safety of the service member.”
Montoya told his children — ages 20, 17 and 15 — about his terminal diagnosis earlier this year.
“I’ve gone through several different opinions and emotions,” he said. “Of course you blame the government. Then you come back to the ground to say, ‘Well, you know what, this was my choice. No one forced me to do this.’ ”
As for his children, “They saw me go from being such a big, strong soldier to just a crumpled down man dying of cancer.”
Tijerina, 61, of Santa Fe, says he feels “kind of let down because the military and the VA really haven’t been there to acknowledge that this has happened to thousands of troops.”
A former National Guard chief warrant officer, he served 33 years in the military before being medically discharged in 2008. Tijerina said he had a recurring staph infection that caused cysts in his underarms and buttocks that had to be lanced, drained of puss and packed with gauze. The infection has “quieted down,” but his respiratory problems have gotten worse, he said. He now uses oxygen at home to breathe. He never smoked.
Tijerina said he believes KBR executives knew the pits were harmful but didn’t care. “They just thought, ‘Fine. If we get fined, we’ll pay the penalty and move on,’ ” he said.
Maria Baca and Tijerina have both created Facebook pages dedicated to the burn pit issue — Burn Pit Families and Burn Pit Voices, respectively — where people from around the country commiserate and share information.
“My long-term goal is to spread the news far and wide to help people make the connection between their health problems and the burn pits,” Tijerina said of his page, Burn Pit Voices.
“I advise them to just stay on it. A lot of people would like to see it just go away, like with Agent Orange.”
