Cheryl A. HARRIS, Co-Administratrix of the Estate of Ryan D. Maseth, deceased, and Douglas Maseth, Co-Administrator of the Estate of Ryan D. Maseth, deceased, Plaintiffs, v. KELLOGG, BROWN & ROOT SERVICES, INC., Defendant, 878 F. Supp. 2d 543

MEMORANDUM OPINION NORA BARRY FISCHER, District Judge. I. INTRODUCTION 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’ claims are preempted by the combatant activities exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680®. (Docket No. 260). 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; PI. 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 is constitutionally committed to members of the Executive Branch while the funding of the military is constitutionally committed to the Legislative Branch. See Lane v.

Halliburton, 529 F.3d 548, 559 (5th Cir.2008) (“[T]he Constitution commits to Congress the power to raise .and support an army and navy, and to the Executive the responsibilities of commanding those armed forces.”)- In this Court’s estimation, following the Supreme Court’s dictates in Baker, the judgments of these officials on such sensitive military and legislative policy issues cannot be evaluated in a court of law without violating the doctrine of separation of powers.

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. II. FACTUAL BACKGROUND 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.

A The RPC and LSFBl 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 LSFBl. 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 LSFBl. (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.).

LSFBl 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 Plan of LSFB1). However, there were containerized showering facilities known as ablution units, which were made available to soldiers at the RPC. (Docket Nos. 262 at ¶ 49; 265 at ¶ 49). Military commanders were responsible for directing, soldiers to use ablution units, if they deemed it appropriate. (Def. Ex. 7, Docket No. 263-16, Satterfield Depo at 102-104).

As a contractor, KBR had no authority to order military personnel to do anything, including to direct soldiers where to live or shower. (Docket Nos. 262 at ¶¶ 54-55; 265 at § I, ¶¶ 54-55). B. Renovations to LSF Buildings by Iraqi Subcontractor 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 remedied the faulty electrical work in LSFB1 completed by the Iraqi subcontractor nor did it engage another contractor to fix the problems. (Docket Nos. 262 at ¶¶ 117, 188, 190; 265 at § I, ¶¶ 117, 188, 190). C. CENTCOM Contracts with Washington Group and KBR The United States Army Corps of Engineers (“USACE”) engaged Washington Group International (“WGI”) to provide operations and maintenance services at the RPC from April 2003 through April 2006 under a series of contractual agreements. (Docket Nos. 262 at ¶ 117; 265 at ¶ 117).

These contracts provided that the buildings be maintained “as is” and noted that “[e]xisting interior and exterior electrical systems are in poor condition. The Contractor shall support existing electrical systems.” (Id. (emphasis added)). During its term as service provider at the base, WGI never upgraded the deficient electrical work which was completed by the Iraqi subcontractor. (Docket Nos. 262 at ¶¶ 188,190; 265 at § I, ¶¶ 188,190).

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 existing electrical systems.” (Docket Nos. 262 at ¶ 118; 265 at § I, ¶ 118 (emphasis added)).

Services were provided under the USACE contract as directed by the military in order to “restore a facility or component thereof, to a condition substantially equivalent to its original intended and designed capacity ... or is restored to its ‘as built’ condition.” (Docket Nos. 262 at ¶ 119; 265 at § I, ¶ 119). 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. (See Docket No. 294 at 94,, 106). D. Warnings Concerning the Risks to Soldiers of Potential Electrical Hazards at Military Bases in Iraq During the period of 2004-2006, there were several reports of injuries and deaths of United States soldiers after sustaining electrical shocks in the Iraq war theatre. (See Def.

Exs. 2, pts 2-10, 22, 24, Docket Nos. 262-2:262-11, 262-33, 262-35). Many of these shocks were attributed to improper grounding of electrical systems. (Id.). As is detailed below, this information pertaining to the specific risk of electrical shocks to soldiers was then publicized within the military, including distribution to many high-ranking officials in the chain of command. These warnings emanated from the Army Safety Center, the Defense Contract Management Agency (“DCMA”) and other military personnel.

To this end, the United States Army Safety Center publishes a monthly magazine, “Countermeasures,” which focuses on Army ground risk-management advice. (Def. Ex. 22, Docket No. 263-33 at 2). An

article titled “Electrocution: The Unexpected Killer” appeared in the October 2004 issue of this publication. (Id. at 20). This

article states that five soldiers had died in Iraq in fiscal year 2004 from electrocutions, including one soldier who was killed while showering in May or June of 2004. (Id.). The author cited “improper grounding of electrical systems” as the cause of that electrocution, and a senior military engineer confirmed that the military had seen “several shocks in showers and near misses here in Baghdad, as well as in other parts of the country.” (Docket Nos. 262 at ¶ 64; 265 at § I, 1164).

Although this is an Army publication and is directed to troop safety, it is unclear from the record how widespread was this publication’s reach. 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 1173).

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 Christianson, Colonel Smith, and Congressman Wayne Gilchrest.” (Docket Nos. 262 at ¶ 74; 265 at § I, ¶ 74).

Major Harvey testified that he submitted this information to these individuals (and possibly others) because they had the authority and ability to take action and make changes regarding the electrical deficiencies. (Docket Nos. 262 at ¶¶ 73-76; 265 at § I, ¶¶ 73-76). 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 fimther 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 ¶ 92; 265 at § I, ¶ 91). The purpose of the Memorandum was “[t]o set a baseline on the safety status and culture, state the way forward to improve status, and develop the measures and timeline to ensure the process is properly aligned to achieve the mission goals.” (Def. Ex. 24, Docket No. 263-35; Docket Nos. 262 at ¶ 93; 265 at § I, ¶ 93).

Dickinson wrote that: KBR has a large professional safety staff and institutionalized safety program. However, the program is based upon U.S. OSHA Safety Standards as required by contract, and is substantially non-achievable due to the war environment. Many 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. (Def. Ex. 24, Docket No. 263-35; Docket Nos. 262 at ¶ 94; 265 at § I, ¶ 94).

Dickinson also noted that the “[pjrimary 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). E.

Transition from CENTCOM Contract to LOGCAP— Technical Inspections 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 buildihgs 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 1Í1Í129, 131; 265 at § I, ¶¶129). The hurried nature of the transition is also demonstrated by KBR’s project planning estimate, wherein KBR states that: 14. The short suspense for the PPE does not allow for a complete TI [technical inspection] of each building.

KBR assumes the buildings are up to the quality standards of LOGCAP and has based the estimate on assuming 0 & M [operations and maintenance services] on buildings and peripheral equipment that are in acceptable condition. 16. KBR assumes the building systems to be in good condition and upon discovery of defective systems (Electrical, Mechanical, or Structural) repairs will be made only at the direction of an ACL [administrative change letter ]. KBR has included the cost of known repairs required at the time of the estimate. (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.” (PI. 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. (Docket Nos. 262 at ¶ 134; 265 at § I, ¶ 134).

Level A maintenance included upgrades to existing facilities and the establishment of a preventative maintenance program, including checks for grounding of electrical systems. (Docket Nos. 262 at ¶¶ 136, 137; 265 at § I, ¶¶ 136, 137). Level B constituted a lower level of maintenance services and expressly excluded upgrades to existing systems and preventative maintenance. (Docket Nos. 262 at ¶¶ 138-139; 265 at § I, ¶¶ 138-139).

After some discussions, the Army determined that the cost associated with Level A maintenance was prohibitive and requested an estimate as to Level B maintenance, only. (Docket Nos. 262 at ¶ 135; 265 at § I, ¶ 135). In its project planning estimate, KBR relied on a series of assumptions which are consistent with the Level of maintenance to be provided, including that: 27. KBR assumes FACILITY MAINTENANCE will be level B. Limited maintenance does not include inspections, preventative maintenance and upgrades. Any repairs that need to be done on the facility will be initiated with a service request by the customer.

Upon receipt of service request, the contractor shall conduct an assessment to determine feasibility of repair or replacement of existing items. The assessment shall be provided by the Mayoral Cell. If the assessment determines repair or replacement is warranted, the contractor shall repair or replace. However, if the assessment exceeds the scope of repair or replacement; the contractor shall return the service request to the Mayoral Cell for disposition. Repairs on emergency items (i.e.

No power or no AC in the summer) will be initiated within two hours of the request.' Normal repairs initiated within 24 hours of the request. (.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. F.

LOGCAP Contract/Statement of Work/Task Order 139 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. (See Task Order 139, Def. Ex. 43, Docket No. 263-69; PL Ex. B, Docket No. 266-1). Thus, the Court focuses its analysis on the provisions which are necessary to the disposition of the present motion, rather than recounting the terms and conditions of the agreement in explicit detail a second time.

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 § 1.0. Applicable to the instant matter,

section 8 of Task Order 139 details Operations and Maintenance Services, which consists of maintenance and repair of facilities and repair or replacement of equipment and major electrical appliances in the RPC. Id. at § 8. The Task Order sets forth three separate levels of maintenance services: Level A — Full Service; Level B— Limited Maintenance; and Level C — No Maintenance. Id. at § F.2. According to the contract, it was the responsibility of the Mayor’s Cell to prioritize the level of maintenance for each facility. Id. at § F.1.2.

However, the evidence presented by the parties shows that the decision to engage KBR to provide only Level B maintenance was made by higher commanders within the military and the contracting authorities at the DCMA and may have been made without consulting the base mayors. In any event, the operative portions of Task Order 139 which applied to Level B maintenance did not explicitly set forth any electrical standards governing KBR’s performance. See Id. at §§ F.2.2, F.4.2. In addition, the contract did not include any specific standards for the completion of technical inspections of the facilities.

See Id. at § 8.1.2. Instead, the terms and conditions of the contract are silent regarding the standard of KBR’s electrical performance under Level B maintenance. See Task Order 139 at § F.2.2. 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 “[cjheck 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. However, no refurbishment of the RPC or LSFB1 was ever ordered by the military. G.

Processing Service Order Requests 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, where the requests were prioritized and then forwarded to KBR for completion. Task Order 139 at § F.2.2.3; (Docket Nos. 265 at § II, ¶¶ 64-65; 283 at ¶¶ 64-65).

Although a working relationship existed between the base camp Mayors and KBR personnel, KBR staff responded to work orders without oversight or inspection by the military. (Docket Nos. 265 at § II, ¶¶ 64, 68; 283 at ¶¶ 64, 68). If KBR believed that the scope of the work Order was outside the parameters of its contract for Level B maintenance, its representatives were not permitted to complete the work but would return the work order to the Mayor’s Cell for further direction and approval. See Task Order 189 at § F.2.2.2.3; (Docket Nos. 265 at § II, ¶¶ 64-65, 69; 283 at ¶¶ 64-65, 69). H. Evidence of

Interpretation ofLOGCAP Contract 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 testified that in his position as Commander of the DCMA, he reviewed all of the relevant contractual provisions. (Id.). His

interpretation of the contract was that it contained no explicit standards for KBR’s performance, including no requirements that electrical work be completed in accordance with NEC or British standards. (Id. at 52). Colonel Vollmecke further explained that by signing the administrative change letter authorizing KBR to commence Level B maintenance at the RPC, the military accepted KBR’s assumptions and thereby waived the requirement that KBR complete full technical inspections of all of the buildings prior to assuming responsibility for same. (Docket No. 263-52 at 32, 36).

From his perspective, DCMA personnel should not have waived the requirement that KBR complete full technical inspections of the facilities prior to initiating Level B maintenance services. (Id.). 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”, a military maneuver wherein 5 brigades of troops (approximately 20,000 soldiers) were added to complete the military’s mission in Iraq, resulting in a corresponding increase in the number of hardstand buildings being occupied by soldiers, the number of contractors engaged in the war theatre and, likewise, the number of contractual changes required of the DCMA in its oversight of the military contractors. (Id. at 42).

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). I.

Service Order Requests / Shocking Incidents 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 presented the technical inspection report to the military in February 2007 and again, on November 5, 2007. (Docket Nos. 262 at ¶¶ 168-170; 265 at ¶¶ 168-170). In addition, like the prior subcontractor, WGI, the military never directed KBR to upgrade the substandard electrical systems in the RPC buildings. (Def. Ex. 26, Docket No. 263-37:48).

KBR did, however, respond to several work orders and complete maintenance work at LSFB1 and in the surrounding area.

With respect to service order requests, Plaintiffs have identified nine work orders which they argue have some relevance to the instant case, including: • Work Order D-1682 (June 14, 2006) stating “Please ground our hot water heater, people are getting shocked while showering”; • Work Order D-1940 (July 4, 2006) stating “install grounding wire for the water heater and motor pump”; • Work Order D-5204 (February 13, 2007) noting a problem at “Pump for LSF Headquarters Inop”; • Work Order 1208997 (June 23, 2007) “pipes (shower and sink) have voltage-got shocked in shower and sink”; • Work Order 120811 (July 8, 2007) (no description); • Work Order 1109481 (June 23, 2007) stating “install grounding on panel”; • Work Order 1109702 (June 26, 2007) describing installation of wire on grounding panel; • Work Order 1205258 (July 8, 2007) “water pump leaking on top of building thru roof’; • Work Order 2193735 (November 2, 2007) “WP pulsating badly.” (See Docket No. 265 at § II, ¶ 87; PI.

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.fi, 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. (See Docket No. 265 at § II, ¶ 87). Thus, because Castellanos’ testimony is uncontroverted, work orders 1109481 (June 23, 2007) and 1109702 (June 26, 2007) may have no bearing on this case. 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, was shocked at LSFB1. (Docket No. 265 at § II, ¶ 92). The last of these shocking incidents was reported in the summer of 2007. However, there is no evidence that links the source of their shocks to the subject water pump. (Docket Nos. 262 at ¶ 191; 265 at § I, ¶ 191; Def. Ex. 36, Docket No. 263-61 at ¶ 22). The soldiers each testified that the shocks subsided for some time after KBR responded to the work orders they submitted. (Docket No. 262 at ¶ 181, n. 2; PI. Ex. U, Work Orders D-1682; D-1940; D-5204; 208997).

But, the soldiers also explained that they did not consider the shocks as a serious issue when compared to the other risks they faced as they served during in the war in Iraq. (Docket Nos. 262 at ¶ 182; 265 at § I, ¶ 182). 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 for protecting against vehicle-borne improvised explosive devices. (Docket No.'262 at ¶ 183; 265 at § I, ¶ 183).

KBR representatives toured thé area with military officials and advised them that “the electrical power system in the area of LSFB1 should not be used to provide power for the generator because the wiring was in ‘very poor condition’ and ‘everything was maxed out.’ KBR and military personnel observed the substandard wiring for LSFB1, including wiring into the building that bypassed the breaker, wiring that had splices that needed to be replaced, and tar on the panel inside LSFB1.” (Docket No. 262 at ¶ 184). KBR provided the military with an “Electrical

Summary” of the area which reflected that the electrical system was operating at 100% capacity, and included pictures of the deficient wiring in the electrical boxes. (PL Ex. X, Docket No. 277-1 at 2). The parties dispute whether KBR requested that it be permitted to rewire the entire area at that time. (Docket Nos. 262 at ¶¶184, 185; 265 at § I, 184, 185). In any event, despite the information provided by KBR, on December 4, 2007, SFC Skaggs specifically requested that KBR immediately “install a generator with full O & M support at ECP 66 (LSF Gate).” (Docket No. 263-51 at 23) (emphasis added).

He added that “[t]he generator is necessary to provide power to a new ECCM device that is integral to force protection” and “[tjhis installation is required due to the inadequate electrical system currently in place.” (Id.). SFC Skaggs’ request was approved and the military directed KBR to perform such work on December 6, 2007. (Id. at 24). Later that month, the military directed KBR to remove the generator. (Docket No. 262 at ¶185). Then, SFC Skaggs and another soldier installed the ECCM jamming device into the existing electrical system, ignoring KBR’s warnings that the system was at full capacity. (Id.). J.

Warnings to Staff Sergeant Maseth Prior to the accident, Staff Sergeant Maseth was warned by two of his fellow soldiers of the electrical hazards present at LSFBl 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 LSFBl 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 LSFBl. (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). K. January 2, 2008 Accident The parties do not dispute that, on January 2, 2008,. Staff Sergeant Maseth was tragically electrocuted while showering in his living quarters in budding LSFBl 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 LSFBl. (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.). L.

LSFBl and the Subject Water Pump The parties agree that LSFBl lacked a grounding and bonding system and that every electrical component of LSFBl was not grounded at the time of the accident. (Docket Nos. 262 at ¶¶ 188, 190; 265 at § I, ¶¶ 188, 190) (emphasis added). Further, the subject water pump which malfunctioned was ' likewise ungrounded and the pipes connecting the water pump to the shower facilities in LSFBl were not bonded. (Docket Nos. 262 at ¶ 190; 265 at § I, ¶ 190)! There is no direct evidence in the record proving that KBR installed the subject water pump.

Instead, Plaintiffs argue that testimony of SSG Jarvis and MSG Mark Laymon “suggests that KBR installed water tanks and a water pump on the roof of LSFBl after April 2006 but before January 2008.” (Def. Ex. 36, Docket No. 263-61 at ¶ 20; Docket No. 295 at § I, ¶ 197). However, the- testimony of Jarvis and Laymon demonstrates only that water pumps were positioned differently in a photograph taken in 2006 and a later photograph taken in 2008. (Id.).

Plaintiffs have been unable to identify any witness to testify that KBR actually installed the water pump under any work orders issued to KBR. (Docket Nos. 262 at ¶ 197; 265 at § I, ¶ 197). And, KBR’s internal investigation was likewise unable to determine if KBR completed such installation. (Docket No. 265 at § I, ¶ 197; PI. Ex. G, Docket No. 269). 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.). M. Parallel Investigations and Results 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 that “[t]here were systemic failures in U.S. Army training and electrical safety awareness that prevented soldiers from understanding the dangers and potential risk associated with the electrical issues they encountered.” (Id at 5). On August 7, 2009, thé 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 IT 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 Coirective 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). N.

Post-Accident Contractual Changes and Facility Upgrades 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 DO-DIG report explains that after the accident the following changes were made to the LOGCAP III Statement of Work: • Added explicit electrical standards for performance of operations and maintenance work. Prior to the electrocution, the Government relied on the general requirement to meet “Army regulatory standards” and the presumption that a contractor is obligated to provide quality and professional workmanship. • Added minimum requirements for contractor electrical workforce training and certification.

Again, prior to the electrocution, the Government in good faith relied on the contractor to provide a workforce that was qualified to perform electrical tasks assigned. (Def. Ex 31, Docket No. 263-54 at 58). O. Plaintiffs’ Claims and Expert Evidence 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 nümerous and broad.

To this end, they claim that KBR was negligent: a. In failing to remedy the electrical grounding conditions at the RPC; b. In failing to remedy the defective and hazardous condition caused by the electrical service to the water pump at LSFB1; c. In failing to ground and bond the breaker panel box in LSFB1; d. In failing to recognize that the breaker panel box in LSFB1 was ungrounded; e. In failing to institute and follow proper paperwork procedures to ensure that problems, complaints, and work were adequately documented; f.

In hiring workers that it knew or should have known were unskilled and unqualified to perform the tasks they were assigned; g. In failing to properly supervise its workers; h. In failing to order supplies for which it was paid under its contracts with the U.S. government; i. In failing repeatedly to diagnose the electrical hazards in LSFB1; j. In failing to recognize a pattern of electrical hazards in LSFB1 and the RPC in general; k. In failing to recognize the fatal consequences that could result from metal water pipes becoming electrified; l.

In failing to recognize that the electrical hazards in LSFB1 could be fixed without rewiring the building; m. In failing to recognize that the electrical hazards in LSGB 1 could be fixed at a cost of less than $2,500; n. In purchasing and using at the RPC electrical equipment it knew or should have known was counterfeit; o. In failing to rewire the RPC; p. In failing to connect the water pump to a circuit breaker; q. In permitting the use of an unsafe water pump that fell below accepted U.S. safety standards; r. In failing to employ a lock-out / tag-out procedure on the unsafe electrical systems; s.

In failing to warn the residents of the RPC of the known hazards posed by the faulty electrical systems; t. In failing to otherwise provide a safe alternative for the use of the soldiers stationed at the complex; u. In intentionally, willfully, and outrageously ignoring known and preventable hazards with blatant disregard for the safety of SSG Maseth and other members of the United States military; and v. In otherwise failing to maintain the RPC in a reasonable and prudent manner so as to prevent injury to U.S. troops there stationed. (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. at 2-3). With respect to the water pump and electrical work at LSFB1, Childs opines that: • The pressure switch was not properly installed. The grounds were cut. The wires shorted out inside the pump to the metal pump case, energizing the metal pump and associated piping.

This caused the metal water piping of the building to become energized with 200 volts whenever the pressure switch closed energizing the pump. • My inspection of the LSF-1 building and the photographs provides the evidence to establish what caused the electrocution of SSG Ryan Maseth. KBR did not properly bond the metal water piping of the building as required by code, either NEC or British Code. KBR also did not assure the installation of an equipment grounding conductor in the branch circuit to the pump.

Even apart from the codes, these practices are a violation of safe electrical practices and placed inhabitants of LSF-1 at risk for shock or electrocution. (Id. at 5-6). Dr. John Tobias is an electrical engineer and scientist proffered as an expert in electrical safety. (PI. 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 whethér 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: • Incorrect grounding was a primary factor in SSG Maseth’s death.

KBR electricians did not ground and bond the pump and piping system correctly, despite having several opportunities to do so under the auspices of work orders submitted. • KBR did not live up to the electrical standards of either the LOGCAP or CENTCOM contracts, nor did KBR perform its work to a minimal degree of electrical safety. • KBR could have grounded the pump and water pipes within the context of work orders that it received with the same, or substantially less, material and effort than it actually expended in improperly attempting electrical work; and • KBR’s electricians did not exercise a minimally safe level of skill and KBR had no oversight of their work. (PI.

Ex. BB, Docket No. 279-2 at 8). Ultimately, Dr. Tobias concludes that: While complete rewiring, done correctly, would [remediate the shock hazard], it was certainly not the only method available. Earlier in this report I pointed out five techniques for remediating the shock hazard [Tobias Report 4-5]. 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.

Review of the work order history ... shows that significant materials and effort was expended to incorrectly earth (system) ground the pump. If these same- materials and efforts were correctly applied to provide an equipment grounding conductor for the pump, and/or bond the water piping to the electrical ground, the shock hazard would have been averted. (Id. at 7). P. KBR’s Liability Defenses and Expert Evidence KBR has denied liability in this case and raised numerous affirmative defenses to Plaintiffs’ claims. (Docket No. 217).

Among them, KBR has set forth traditional defenses to negligence, i.e., lack of proximate causation, assumption of the risk, contributory negligence and comparative negligence. (Id.). KBR intends to vigorously defend liability in this case if it were to go to trial. (Docket No. 261 at 32, n. 14). Most recently, KBR has challenged the expert testimony of both of Plaintiffs’ experts, Childs and Tobias via a Dauberb 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: Upgrading the system by installing an ad hoc grounding system while performing other repairs was not possible and it was in violation of the KBR contract. Grounding and bonding LSFB-1 in accordance with recent electrical codes required a complete system upgrade. Indeed, such a project was directed in the Military Administrative Contracting Officer’s Change Letter (ACL) issued after this incident at an estimated cost of $50,000. It was not possible to just add a single wire to bond the pipes because there was no grounding system in the main electrical panel to which to attach it.

Simply driving a ground rod would not have been effective or code compliant. Bonding the pipes alone is also not adequate or code compliant because resistive or insulated joints cannot be relied upon to trip protective devices. Without knowing exactly what caused this incident prior to its occurrence, the only way to eliminate electric shock hazards in LSFB-1 was to upgrade and rewire the entire building to comply with the recent electrical codes, which was prohibited by the KBR contract. (Id. at 11). III.

PROCEDURAL HISTORY 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 to the FTCA. Harris, 618 F.3d 398. 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. (Docket No. 252).

As a consequence, the Court set deadlines for the briefing of KBR’s renewed motion and also ordered the parties to submit their evidence and arguments pursuant to the procedural requirements of Local Rule 56. (Docket No. 253). Accordingly, KBR submitted its renewed motion to dismiss, brief in support, concise statement of material facts and appendix on January 20, 2012. (Docket Nos. 260-63). Plaintiffs responded with their brief in opposition, responsive concise statement of material facts and appendix on February 22, 2012. (Docket Nos. 264-79).

KBR brought its reply brief, response to Plaintiffs’ additional facts and supplemental appendix on March 6, 2012. (Docket Nos. 282-84). Plaintiffs, in turn, filed a surreply on March 20, 2012. (Docket No. 285) . The Court then heard oral argument from the parties during a motion hearing on March 30, 2012. (Docket No. 286) . Subsequently, the Court has received and reviewed the transcript of those proceedings. (Docket No. 294). 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. IV. LEGAL STANDARD KBR has again moved to dismiss Plaintiffs’ Amended Complaint under Rule 12(b)(1) of the Federal Rules of Civil Procedure. (Docket No. 260).

Plaintiffs do not dispute that the Rule 12(b)(1) standard should govern the disposition of the instant motion. (Docket Nos. 264, 285). Therefore, the Court will analyze the present motion under Rule 12(b)(1). A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) challenges the lack of subject matter jurisdiction over a plaintiffs claims. See Fed.R.Civ.P. 12(b)(1). “At issue in a Rule 12(b)(1) motion is the court’s ‘very power to hear the case.’ ” Petruska v. Gannon University, 462 F.3d 294, 302 (3d Cir.2006) (quoting Mortensen v.

First Federal Savings and Loan Association, 549 F.2d 884, 891 (3d Cir.1977)). As it is the party asserting jurisdiction, a plaintiff “bears the burden of showing that its claims are properly before the district court.” Development Fin. Corp. v. Alpha Housing & Health Care,. 54 F.3d 156, 158 (3d Cir.1995); see also Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir.1991) (“[w]hen subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff must bear the burden of persuasion”).

In reviewing a motion to dismiss pursuant to Rule 12(b)(1), the court must distinguish between facial attacks and factual attacks. Petruska, 462 F.3d at 302. 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 plaintiffs 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). V. DISCUSSION 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 activities exception to the FTCA. (Docket Nos. 260, 261).

This Court rejected KBR’s initial motion to dismiss advocating these defenses in a Memorandum Opinion issued on March 31, 2009. See Harris, 618 F.Supp.2d at 415-17, 434; see also Harris, 2010 WL 4614694. However, the Court emphasized this decision was not final, permitting reconsideration of these rulings if fact discovery illuminated political questions that were not readily apparent in the limited record which was previously presented or if KBR discovered additional facts necessary to establish its preemption defense under the combatant activities exception to the FTCA. See id.

At this juncture, the record before the Court is much more robust as fact discovery on KBR’s present defenses has been completed. (Docket Nos. 262, 263, 265-279, 283-284). The parties have likewise completed expert discovery and submitted their expert reports for the Court’s consideration on both the motion to dismiss and KBR’s Dauberb challenge brought to exclude the testimony of Plaintiffs’ experts at trial. (See e.g., Childs Report, PI. Ex. AA, Docket No. 279-1; Tobias Report, PI. Ex. BB, Docket No. 279-2; Loud Report, Def. Ex. 32, Docket No. 263-55).

Several Executive agencies have also concluded their investigations into the facts and circumstances of Staff Sergeant Maseth’s death, and many reports produced by these investigations have been publicly released and made a part of this Court’s record. (Def. Exs. 31, 39, 40).

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-a-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 heeded rewired in order 'to eliminate the risk of electrical shocks in the showers. {See e.g., Childs Report, PI. 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; Docket Nos. 262 at ¶¶ 86-91; 265 at § I, ¶¶ 86-91).

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 1S9 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).

However, the legal landscape has shifted considerably since this Court' last analyzed KBR’s defenses in this case. In the prior decision, this Court surveyed the three known decisions of Courts of Appeals which considered the political question defense in this context, see e.g., Koohi v. United States, 976 F.2d 1328, 1330-31 (9th Cir.1992), McMahon v. Presidential Airways, 502 F.3d 1331 (11th Cir.2007), and Lane v.

Halliburton, 529 F.3d 548 (5th Cir.2008), and recognized that no Court of Appeals had dismissed a tort action against a government contractor providing wartime support to the military under the political question doctrine. See Harris, 618 F.Supp.2d at 419 (“The Courts of Appeals that have analyzed the political question doctrine in this context have rejected the theory, at least at the motion to dismiss stage.”).

That statement no longer rings true as the United States Courts of Appeals in the Eleventh and Fourth Circuits have held that cases brought against KBR for alleged negligence toward soldiers in the Iraq war theatre were properly dismissed under the political question doctrine. See Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271 (11th Cir.2009) (affirming district court decision that political question doctrine applied to bar claims against government contractor); see also Taylor v. Kellogg Brown & Root Servs.

Inc., 658 F.3d 402 (4th Cir.2011) (affirming district court decision dismissing case under the political question doctrine). 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.Cf. 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 combatant activities defense as premature. See Martin v. Halliburton, 618 F.3d 476 (5th Cir.2010); see also Al Shimari v. CACI Intern., Inc., 679 F.3d 205 (4th Cir.2012). The Saleh decision has been followed by other district courts, including the Southern District of New York in Aiello v.

Kellogg, Brown & Root Services, Inc., 751 F.Supp.2d 698 (S.D.N.Y.2011), which found that a negligence suit arising out of KBR’s provision of operations and maintenance services under Task Order 139 was preempted under the combatant activities exception to the FTCA. With this background, the Court will now address the parties

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