Suit over Pa. soldier's death in Iraq is revived

PITTSBURGH (AP) -- A federal appeals court revived a lawsuit Thursday against a military contractor in the death of a Pittsburgh-area soldier who was electrocuted in his barracks shower at an Army base in Iraq.

Staff Sgt. Ryan Maseth died in 2008 when an improperly grounded water pump electrified his shower water. In the lawsuit, Maseth's parents say Houston-based contractor Kellogg Brown & Root Services Inc. was legally responsible for the shoddy electrical work that was common in Iraqi-built structures taken over by the U.S. military. KBR disputes that claim.

In dismissing the lawsuit last year, U.S. District Judge Nora Barry Fischer found that "As a contractor, KBR had no authority to order military personnel to do anything, including to direct soldiers where to live or shower." She found that Maseth's death was the result of a decision by the military, which she also ruled the court has no power so second-guess under the constitutional separation of powers.

But the contractor had "significant discretion" over how to implement the military's orders, a three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled in Thursday's 55-page opinion reviving the lawsuit. As such, the lawsuit doesn't involve second-guessing the military, but rather assessing the type and quality of KBR's work.

"Military control over KBR's relevant activities therefore does not introduce an unreviewable military decision into the case," the court found.

KBR may appeal by asking the entire appeals court to re-hear the case, or try to get the U.S. Supreme Court to overturn Thursday's ruling. Barring a successful appeal, the decision means the case must go back to Fischer for an eventual trial, unless it is settled, said William Stickman, an attorney representing Maseth's mother, Cheryl Harris.

"We will finally have our day in court for Ryan Maseth," he said. "We're just very pleased."

KBR is disappointed in the court's decision and is reviewing it to determine the next steps, spokesman John Elolf said in a statement. He said KBR believes that Fischer's dismissal of the suit was correct, and that KBR acted under the direction of the military.

The building in which Maseth died was looted by locals and left with "no electrical power, electrical components, internal plumbing, doors or windows" before the military decided to renovate it, Fischer found last year. Local contractors were hired to do that work but didn't work up to American building code standards, the judge wrote.

Stickman contends KBR signed off on work orders to repair electrical problems in the building, which should have prevented Maseth's death had the work been done properly.

But Fischer found the Army's contract required KBR to maintain the "existing electrical systems" — substandard though they were — not to improve them.