Bixby v. KBR, Inc.
895 F. Supp. 2d 1075
D. Or.2012Background
- Plaintiffs, Oregon National Guard members, sue KB&R entities and Halliburton defendants for negligence and fraud related to sodium dichromate exposure at Qarmat Ali, Iraq (2003).
- RIO contract and Task Order 3 governed operations; site could be declared benign but environmental hazards still existed.
- KBR was responsible for environmental assessments and safety measures; US government indemnified KBR for certain bodily injury claims.
- Exposure occurred in 2003; KBR allegedly failed to warn or protect Guard personnel, with later discovery of the hazard and KBR’s role.
- Plaintiffs’ claims are examined for timeliness under Oregon law; the court must assess discovery and accrual principles to determine if time-barred.
- Court denied summary judgment on the timeliness issue for all subject plaintiffs; issues include when plaintiffs reasonably discovered or should have discovered their injuries and the cause.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether discovery rule tolls the two-year statute of limitations | Arnold and others assert delayed discovery. | KBR argues accrual when injury is known. | Genuine fact question; not time-barred as to several plaintiffs. |
| Whether the discovery rule aligns with accrual for fraud and negligence under Oregon law | Plaintiffs contend discovery governs both fraud and negligence claims. | Defendants contend standard discovery rule applies; accrual matched to harm and tortious conduct. | Disputed; court denies summary judgment for many plaintiffs. |
| Whether plaintiffs knew or should have known causation and tortious conduct more than two years before filing | Most plaintiffs had plausible medical explanations not implicating dichromate. | Plaintiffs should have discovered causal link earlier. | Question of fact for jury as to most plaintiffs. |
| Whether evidence of USACHPPM fact sheets affected the reasonableness of plaintiffs’ discovery | Fact sheets suggested no long-term risk, supporting later discovery. | Fact sheets provided, but do not bar discovery analysis. | Question of fact; not time-barred for several plaintiffs. |
| Whether Oregon choice-of-law governs the timeliness analysis | Oregon law applies; Oregon statute of limitations governs. |
Key Cases Cited
- Gaston v. Parsons, 318 Or. 247 (Or. 1994) (discovery rule for accrual of claims; threshold knowledge required)
- Murphy v. Allstate Ins. Co., 251 Or.App. 316 (Or. Ct. App. 2012) (discovery rule for fraud and tort claims; accrual principles)
- Doe v. American Red Cross, 322 Or. 502 (Or. 1996) (objective standard for discovery; not determinative by plaintiff's beliefs)
- Keller v. Armstrong World Indus., 197 Or.App. 450 (Or. Ct. App. 2005) (reasonable-diligence standard for discovery of causal link)
- American Red Cross, 322 Or. 502 (Or. 1996) (principles on subjective belief vs. objective discovery)