March 27, 2006
Dear Gulf War veteran client:
The first test case trial is scheduled to occur in Angleton, Texas next April, 13 months from now. We are in the same semi-rural town southwest of Houston, and we have the same judge, the Honorable Ben Hardin, that you may have seen in the news seven months ago in the famous Vioxx products liability trial ( . A specific schedule of interim deadlines will be issued by the Court in the next 2-3 weeks. The Texas case has not been certified as a class action, but it has not been decertified as one either, which will be helpful if there is ever a settlement. There have been no settlements of any cases yet. The first trial will be a test case of one, two, or perhaps three, individuals (the Court has not decided yet) against the remaining defendants in Texas.
The New York case, filed in 2003, is still awaiting the Court (http://www.msnbc.msn.com/id/9006921/) decision on the preliminary joint motion of the 26 bank defendants to dismiss the case against them. We believe that the evidence from the Iraqi documents will show that the defendant banks were a vital part of the international transactions in which Saddam was supplied with the chemical warfare precursor and specialized equipment that were necessary to make his chemical warfare gases. A copy of our response to the bank defendants’ motion to dismiss is posted on this website. We are also waiting on the Court’s decision concerning the motion of several of the supplier defendants to dismiss on personal jurisdictional grounds.
Though the litigation in Texas has gone on since 1994, we have only been ready to push it toward trial since 2003, when we finally obtained the “smoking gun” evidence. It was then that we obtained the Iraqi documents and admissions to the U.N. Special Commission concerning the Iraqi weapons of mass destruction program. How we obtained those records, and the companies that they reveal, and what they did, are covered in detail in my previous update report letters posted on this litigation website.
The worst problem in the Texas case, so far, and a problem that we will have to deal with in the New York case also, is getting personal jurisdiction over the supplier companies. These are the companies that supplied Saddam with the chemical precursors and specialized equipment to make poison gas, or that actually built the nerve gas and mustard gas factories that he made it in. As you will see from the previous update report letters on this website, almost all of the supplier companies are located in Europe. There are also companies in Egypt, Singapore, and India. As a matter of law, we can only legally sue companies that have “continuous and systematic” contacts with a State here in the U.S. The vast majority of the potential defendants do not do business in the U.S., or enough business, that we can get personal jurisdiction over them. For those viable defendants that appear to be in the “gray area” as far as personal jurisdiction, we have tried to get jurisdiction over them.
Here in Texas, for example, we sued Preussag, A.G., a German company, which the Iraq documents show was one of the largest suppliers. There were prosecutions in Germany of Preussag employees, over what they supplied Saddam. Preussag has a number of subsidiaries here in Texas that it owns. The District Court held that we had jurisdiction over the company. Over many years, the matter went up the appellate ladder, and it ultimately went to the Texas Supreme Court. It was held by the Texas Supreme Court that we did not have personal jurisdiction over Preussag in Texas. We have since sued them in New York.
The only defendants that we have left in Texas, that we have evidence on, and that we have been able to hold personal jurisdiction over here, are the Alcolac defendants and the Kellogg defendants. We may also be able to get a company by the name of Preussag Iraq, but that is unclear. Alcolac appears in the Iraqi records. They supplied 400 tons of the essential chemical, thiodyglycol, needed to make mustard gas. They were found guilty of export violations under U.S. law. The middleman between Alcolac and Saddam was a Dutchman by the name of Frans van Anraat. Four months ago, he was found guilty by the Dutch government for selling those chemicals to Saddam ( http://news.bbc.co.uk/2/hi/europe/4555000.stm ), and also, thereby, for complicity in war crimes. He was given the maximum penalty allowed of 15 years in prison. The Dutch government brought me over last April to coordinate with them, and I am happy to inform you that information from your case helped to convict Mr. Anraat.
The other defendant group, the Kellogg defendants, does not appear in the chemical weapons portion of the Iraqi documents that were produced to the U.N. We have evidence concerning them, however, that I discovered from getting access to, and going through, tens of thousands of documents left over from their projects during Saddam’s regime stored in the basement of their London facility.
Obviously for security reasons, since the other side will also be able to read this litigation website, we will not be able to discuss details of litigation strategy, tactics, experts, or trial preparation. In the future, information here will necessarily be somewhat abbreviated from what was posted in the past. Postings will be more frequent than the usual one per year, however. All status reports will continue to be on this website from here on out.
The German and U.K. law firms that we have spoken to, and gone over to present to more than once, have not been willing to undertake litigation in Germany or the U.K. Since we are not licensed to practice outside of our country, we cannot litigate in Europe ourselves. As discussed in my previous report letters, the difficulties in successfully and economically bringing a mass tort lawsuit in Europe are immense. One of the biggest impediments is that they have a “loser pays” system in both countries, and they do not allow contingency attorneys fees. In other words, you would have to pay for a European attorney on an ongoing time basis, whether you win or lose (and they are expensive); and if you lose, you also have to pay all of the defendant’s attorney’s fees, which are likely to be immense for the large corporation defendants that we are after. Neither country has class actions; and even if someone is totally disabled by the defendants’ negligence, the legal damage recovery available in both countries is relatively small. So, we shall do what we can in our country.
Next week, I get the opportunity to speak at a conference of judges and lawyers in New Orleans concerning workers’ compensation for DoD civilians injured in the current war in Iraq and Afghanistan. The following is an extract from that conference paper concerning the fact that there has not been a Gulf War Syndrome II. I thought you might like to see it:
INJURIES & ILLNESSES FROM THE WAR IN IRAQ & AFGHANISTAN: CIVILIAN CONTRACTORS WORKING WITH OUR TROOPS, AND THE DEFENSE BASE ACT
By Gary B. Pitts, Houston, Texas, April 6, 2006
http://www.defensebasecomp.com/
There has not been a Gulf War Syndrome II. There was fear that there would be (1). Everything in the environment is essentially the same between the two wars, Americans exposed to the same heat, endemic diseases, sand-flies, depleted uranium use, diesel fumes, multiple vaccinations, stressful circumstances, and even oil fire smoke for a while. In what is about as close to a controlled experiment as can be done on a massive scale, there has been only one major difference between the Gulf War and the Iraq War, and it is the consensus reason for Gulf War Syndrome having occurred. Our troops in the Gulf War, and the few contractors that were with them then, were repeatedly exposed to chemical warfare agent fallout, in particular, Sarin nerve gas and mustard gas, from the detonations of Saddam‘s extensive chemical warfare stockpile from aerial bombardment and at Khamisiyah (2). In contrast, our troops and contractors have not been exposed to chemical warfare agents in this war, thank God.
The Centers for Disease Control gave Gulf War Syndrome a case definition in 1998 (3). It is a multi-symptom neurological disorder. The 13 categories of symptoms associated with Gulf War Syndrome were established in the Code of Federal Regulations in 2001 (4). Which personnel acquired Gulf War Syndrome has been discovered to be associated with a genetic susceptibility to Sarin nerve gas exposure, such that low-level exposures had devastating effects on the hippocampus neurons in the brains of those most genetically vulnerable (5). This explains why some have been ill and others are not from the same exposures. It was also discovered after the Gulf War that the pyridostigmine bromide ("p.b.") anti-nerve gas pills that our troops and contractors took during the Gulf War, while protecting them against a kind of nerve gas that they were not exposed to, Soman, made them more susceptible to the low-level fallout exposures to the kind of nerve agent that they were exposed to, Sarin (6). In September 2005, the Veterans Administration Research Advisory Committee on Gulf War Veterans’ Illnesses concluded that Gulf War Syndrome was probably caused by our troops being exposed to chemical agents (7).
Gulf War Syndrome was established as an occupational illness with the U.S. Department of Labor through the litigation of six very ill DoD contractors that I have had the honor to represent (8).
There have been some known toxic exposures in the current war in Iraq and Afghanistan. I am representing seven contractors, for example, that were repeatedly exposed to large amounts of sodium dichromate at a water treatment plant that had been vandalized in Iraq. This is the same toxic chemical that was the subject of the Erin Brockovich movie in 2001 (9).
Our military appears to have absorbed some lessons learned about toxic exposures from the massive chemical casualties of the First Gulf War. We may discover additional toxic mishaps coming from the current war, but so far, thankfully, we have not seen the theater-wide scale of toxic exposures as occurred in the First Gulf War.
FOOTNOTES FOR THE EXTRACT:
1. Enserinck, M., "War in Iraq. Bracing for Gulf War Syndrome II," Science, 299 (5615): 1966-7 (2003).
2. During the Gulf War air campaign, coalition aircraft flew 990 sorties against 23 Iraqi chemical and biological weapons research, production and storage facilities. U.S. Department of Defense, Gulf News, 4(2): at p. 1 (March, 2000). Three months before the air war began, Livermore National Laboratory predicted that chemical warfare agent fallout would cover the positions of U.S. troops in Saudi Arabia. USA Today, p. 1 (August 14, 1997). Though this classified research was performed for the U.S. Air Force, the study never reached General Schwarzkopf during the Gulf War. USA Today, p. 1 (August 15-17, 1997). From the beginning of the air war until its end, each of the nearly 14,000 M8A1 chemical alarms deployed in the war went off an average of two or three times a day. U.S. Congress, Committee on Government Reform and Oversight, Gulf War Veterans’ Illnesses: VA, DoD Continue to Resist Strong Evidence Linking Toxic Causes to Chronic Health Effects, at p. 18 (November 17, 1998). The most sophisticated chemical detection equipment in the Gulf War was with the Czech Republic chemical detection forces. They detected the nerve agent Sarin on January 19, 1991, near Hafir al Batin where hundreds of thousands of U.S. troops were massed. Ibid, at pp. 15 & 17. The U.S. Department of Defense has admitted that the Czech detections were valid. Ibid, p. 15. French forces also detected nerve gas during the air bombing campaign. Ibid, p. 17. The U.S. Department of Defense has admitted that approximately 100,000 U.S. troops were exposed to low-level Sarin nerve gas from the destruction of just one Iraqi ammunition dump in March, 1991, at Khamisiyah. Ibid. On 6/1/04, the General Accounting Office (the U.S. Congress research arm) strongly criticized the Pentagon’s previous plume models of chemical fallout that occurred during and in the weeks after the Gulf War. The DoD underestimated the exposure of chemical warfare agents, such as nerve gas and mustard gas. DoD models of the effects of toxic plumes of chemical agents did not realistically simulate actual bombings or demolitions, the GAO report said. The DoD http://www.gao.gov/docdblite/details.php?rptno=GAO-04-821T models underestimated the plume heights and the extent of the hazard areas. A copy of the GAO report can be seen at:
3. Fukuda, K., "Chronic Multi-symptom Illness Affecting Air Force Veterans of the Gulf War," Journal of the American Medical Assn., 28:981-988, at 983 (9/16/98).
4. There are 13 categories of symptoms correlated with Gulf War Illness. These categories track the medical research regarding Gulf War Illness. They are set out at 38 Code of Federal Regulations, Section 3.317 (effective July 1, 2001), and are as follows:
The undiagnosed illness compensation program for Gulf War veterans now include those who have suffered six months or more of disabilities, who are disabled 10% or more, and suffer from signs or symptoms including:
1.) Fatigue
2.) Signs or symptoms involving skin
3.) Headache
4.) Muscle pain
5.) Joint pain
6.) Neurological signs or symptoms
7.) Neuropsychological signs or symptoms
8.) Signs or symptoms involving the respiratory system (upper or lower)
9.) Sleep disturbances
10.) Gastrointestinal signs or symptoms
11.) Cardiovascular signs or symptoms
12.) Abnormal weight loss
13.) Menstrual disorders
5. Mackness, B., et al., "Low Paraoxonase in Persian Gulf War Veterans Self-Reporting Gulf War Syndrome," Biochemical and Biophysical Research Communications, 276:729-733 (2000); and Haley, R.W., Billecke, S., & La Du, B.N., "Association of Low PON1 Type Q (Type A) Arylesterase Activity with Neurologic Symptom Complexes in Gulf War Veterans," Toxicol. Appl. Pharmacol., 157:227-233 (1999).
6. Koplovitz, I., et al, "Reduction By Pyridostigmine Pretreatment of the Efficacy of Atropine and 2-PAM Treatment of Sarin and VX Poisoning in Rodents," Fundamental and Applied Toxicology, 18:102-106 (1992); and U.S. Senate Committee on Veterans’ Affairs Staff Report, Is Military Research Hazardous To Veterans? Heath? Lessons Spanning Half a Century, at p.26 (12/8/94). The U.S. military has been ordered to stop the use of p.b. pills. El Paso Times (8/24/99).
7. Scientific Progress in Understanding Gulf War Veteran's Illnesses: Report and Recommendations. The full text of the report can be found at: http://www1.va.gov/rac-gwvi. Findings 1, 3 & 4 of the V.A. Research Committee are the most relevant ones. They state the following:
"Finding 1 - A substantial proportion of Gulf War veterans are ill with multi-symptom conditions not explained by wartime stress or psychiatric illness.
"Finding 3 - A growing body of research indicates that an important component of Gulf War veterans illnesses is neurological in character.
"Finding 4 - Evidence supports a probable link between exposure to neurotoxins and the development of Gulf War veteran's illnesses. (Emphasis added) [Note: The neurotoxin exposures consisted of: nerve gas, the p.b. pills, and pesticides.]
Pages 47-53 and 59-66 of the report discusses exposure to chemical weapons during the Gulf War, the correlation between low-level exposure to chemical agents and chronic illness, research showing the synergistic effects of combinations of exposures, and the enhanced genetic vulnerability of some individuals to chemical agent exposure.
8. Herman Piceynski v. Dyncorp, BRB No. 97-1451 (7/17/98), 1994- LHC-2387 (10/18/99); Karl Lane v. Bell Helicopter Co., 1998 - LHC-1012 (6/4/99), BRB Nos. 99-1007 & 99-1007A (6/23/00); Donald Frans v. General Dynamics, 2000-LHC-00593 (1/22/01); James Keenan v. General Dynamics, 2000-LHC-00349 (2/22/01); John Knebel v. General Dynamics, 2000-LHC-1290 (3/22/01); and Larry Pascaretti v. General Dynamics, 2002-LHC-792, OWCP No. 2-116652 (4/18/01).
9. http://en.wikipedia.org/wiki/Chromium
Thank you again for your service and sacrifice for our country, and may God bless you.
I look forward to reporting to you further as developments occur.
Sincerely yours,
Gary B. Pitts