The Third Circuit has reinstated claims against a military defense contractor being sued by the estate of a U.S. Army soldier electrocuted while showering in the Radwaniyah Palace Complex in Iraq.

The court, hearing the case of Harris v. Kellogg Brown & Root Services for the second time, ruled the family's claims are not pre-empted by the combatant-services exception to the Federal Tort Claims Act.

But the three-judge panel did leave room for Kellogg Brown to beat at least some of the claims in the case under the political-question doctrine depending on which state's law applied. The U.S. Court of Appeals for the Third Circuit left that question to the Western District of Pennsylvania court on remand.

In 2008, Staff Sergeant Ryan Maseth was electrocuted while showering in his barracks at the palace complex that served as an Army base of operations. Kellogg Brown had been hired to perform electrical and other maintenance work on the facility. Maseth's family sued the defense contractor for negligence in their son's death.

U.S. District Judge Nora Barry Fischer of the Western District of Pennsylvania initially denied Kellogg Brown's motion to dismiss before discovery took place. The Third Circuit denied the appeal as interlocutory and on remand Fischer dismissed the case against Kellogg Brown after discovery was completed. In Thursday's opinion, the Third Circuit was able to address the merits of the case and reversed and remanded the suit back to the district court.

Judge D. Brooks Smith, writing for the majority, said the combatant-activities pre-emption to the FTCA, which extends tort liability immunity to certain government contractors working in combat zones, does not serve as a complete pre-emption. That meant the court had to first deal with the political-question doctrine, which could completely bar the claims against Kellogg Brown, Smith said.

In Harris, the issue comes down to whether Pennsylvania law applies or if Tennessee or Texas law applies. If Pennsylvania law applies, the case can proceed, Smith said. If Tennessee or Texas law applies, the case would contain nonjusticiable issues that would require the lower court to eliminate any damages based on proportional liability, he said. That will be the analysis the district court must undertake on remand.

The political-question doctrine bars courts from ruling on issues of a purely political nature that should be left to other branches of the government. Typically, the court rarely has to look beyond a complaint when determining whether a case presents a political question. That isn't the case, however, with suits against defense contractors, Smith said, because they aren't one of the three branches of government.

Defense contractor cases rarely, if ever, directly involve a political question, Smith said. Rather, they might present nonjusticiable issues because military decisions might "lie just beneath the surface of the case," he said. That requires the court to look at some of the defenses a contractor raises, he said.

Kellogg Brown argued the case is unreviewable because it involves the military's decisions on where to house soldiers on a battlefield — something solely under the executive branch's purview.

But Smith said the contracts between the military and Kellogg Brown give the contractor considerable discretion over how to complete its work. While military control over Kellogg Brown does not introduce an unreviewable military decision into the case, the claims may still be barred if proving the claims or defenses requires evaluating military decisions, Smith said. That is where the issue of state law comes in.

"While the plaintiffs' liability theories do not implicate strategic military decisions, KBR asserts three defenses that may: assumption of the risk, proximate cause and contributory negligence," Smith said.

The judge said the assumption of the risk defense does not require evaluating military decisions, but the other two defenses may, depending on which state law applies.

Kellogg Brown intends to argue the military was "the," or at least "a," proximate cause in Maseth's death. The district court found that would require evaluating military judgments. Because the military retained authority to do its own maintenance on the facility, that leaves open the possibility that the military was the proximate cause of Maseth's death, Smith said.

Smith said the military knew of the problems with the base's showers and still chose to house soldiers there.

Smith said Kellogg Brown can argue the military was "the" proximate cause of Maseth's death without a review of military decisions coming into play. But arguing the military was "a" proximate cause could require such an evaluation of military decisions, he said.

"The fact-finder cannot decide the respective degrees of fault as between a military contractor like KBR and the military without evaluating the decisions made by each — particularly the military's decisions to house troops in unsafe barracks that would not be repaired," Smith said.

Tennessee and Texas both have proportional liability systems, which would mean damages could not be estimated without evaluating unreviewable military decisions, Smith said.

If Pennsylvania law applies, the state's old joint and several liability law would attach because the legislature's decision to do away with that law in 2011 is not retroactive, Smith noted. Under the joint and several liability law, the plaintiffs would be able to collect all of their damages from one party, eliminating the need to evaluate strategic military decisions.

Even if Tennessee or Texas law applies, however, some of the plaintiffs' claims could remain if the court extracts the nonjusticiable issues by dismissing only the damages claims that rely on proportional liability, Smith said.

The judge ruled similarly as to Kellogg Brown's contributory negligence defense. Not only would negligence need to be apportioned between Maseth for using showers he allegedly knew to be a risk and Kellogg Brown, but also between Kellogg Brown and the military. That would thus require a review of military decisions, Smith said.

This issue deals with whether the applicable state laws allow a nonparty — in this case, the military — to be assigned fault, he said. Pennsylvania does not allow the assignment of fault to nonparties, meaning no judicial review of military decisions would be required if Pennsylvania law applied. Texas and Tennessee laws do, however, allow such assignments of fault, Smith said.

Combatant Activities

The Third Circuit adopted a test outlined by the D.C. Circuit — the combatant-activities, command-authority test.

The first prong of the test asks whether the contractor is integrated into the military's combatant activities, which Smith said ensures pre-emption only occurs when battlefield decisions are at issue. The second prong is whether the contractor's actions were the result of the military's retention of command authority. That prong addresses the need to insulate the military from being sued over battlefield decisions from the regulation of harm solely from contractors' actions, Smith said.

As to the combatant-activities prong, the plaintiffs argued electrical maintenance was not a combatant activity that would make Kellogg Brown immune from liability. The court disagreed, ruling that is too narrow a view of the phrase "combatant activity."

"Maintaining the electrical systems for a barracks in an active war zone is analogous to supplying ammunition to fighting vessels in a combat area and is certainly 'necessary to and in direct connection' to the hostilities engaged in by the troops living in those barracks," Smith said.

While Kellogg Brown won on the first prong, it lost on the second. Smith said the military did not retain command authority over Kellogg Brown's installation and maintenance of the electrical pump at issue given the contract between Kellogg Brown and the government didn't state how Kellogg Brown needed to perform the work.

Judges D. Michael Fisher and Michael A. Chagares joined Smith in the opinion.

William S. Stickman IV of Del Sole Cavanaugh Stroyd in Pittsburgh represented Maseth's family. Lawrence S. Ebner of McKenna Long & Aldridge in Washington, D.C., represented Kellogg Brown.

Stickman said he and his clients were glad to see the case was headed to trial. While there are still choice of law issues involved, Stickman said the court was clear that wouldn't preclude a trial but rather may limit certain damages.

Kellogg Brown spokesman John Elolf said the company was disappointed in the decision and continued to believe Fischer's analysis was accurate.

"During the war in Iraq, KBR was fully integrated into the military's combatant activities and acted under the direction of the military," Elolf said in a statement.

Gina Passarella can be contacted at 215-557-2494 or at gpassarella@alm.com. Follow her on Twitter @GPassarellaTLI.

(Copies of the 55-page opinion in Harris v. Kellogg Brown & Root Services, PICS No. 13-2302, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.)