Bixby v. KBR, Inc. (893 F. Supp. 2d 1067, 2012)

OPINION AND ORDER

PAUL PAPAK, United States Magistrate Judge:

Plaintiffs Rocky Bixby, Lawrence Roberta, Scott Ashby, Charles Ellis, and Matthew Hadley filed this action against defendants KBR, Inc., Kellogg, Brown & Root Service, Inc., KBR Technical. Services, Inc., Overseas Administration Services, Ltd., and Service Employees International, Inc. (collectively,’ the “KBR defendants”), on June 8, 2009. On September 8, 2009, plaintiffs amended their complaint, adding Carlos Avalos, Jesus Bruno, Colt Campredon, Stephen Foster, Byron Greer, Kelly Hafer, Dennis Jewell, Stephen Mueller, Vito Pacheco, John Rydquist, and Kevin Stanger as additional plaintiffs. Plaintiffs amended their pleading a second time on February 2, 2010, adding Ronald Bjerklund, Adanrolando Garcia, Brian Hedin, Lewis Martin, and Charles Seamon as additional plaintiffs. On June 25, 2010, plaintiffs amended their complaint a third time, adding Randy Keiper; Matt Kuhnel, Dennis Rosgen, Aaron St. Clair, and Kevin Wilson as further additional plaintiffs. On October 27, 2010, plaintiffs amended their complaint a fourth time, adding Jason Blain, James Borja, Devon Fields, Leslie Ing, Richard Lawrence, Jay Louisiana, James McGowan, and Donald Yeargin as further additional plaintiffs, and adding Halliburton Company and Halliburton Energy Services, Inc. (collectively, the “Halliburton defendants”), as additional defendants. Plaintiffs amended their complaint a fifth time on January 10, 2011, adding as additional plaintiffs Jason Arnold, Thomas Barella, Daniel Grover, Christopher Wangelin, and Michael O’Rielly. Plaintiffs voluntarily dismissed Barella as a plaintiff in this action on the following day, January 11, 2011, and voluntarily dismissed Grover as a plaintiff in this action on February 25, 2011. The parties stipulated to the dismissal of Avalos, Martin, and Wangelin as plaintiffs in this action, on December 16, 2011, and to the dismissal of O’Rielly as a plaintiff on April 4, 2012. In their fifth amended complaint, plaintiffs allege defendants’ liability for negligence and for fraud arising out of plaintiffs’ exposure to sodium dichromate and subsequent hexavalent chromium poisoning while stationed as Oregon National Guardsmen in Iraq and assigned to duty at the Qarmat Ali water plant in May-September 2003.

Throughout the course of this action, defendants have brought various jurisdictional challenges, most of which have been denied. On April 12, 2010, 2010 WL 1499455, this court denied the KBR defendants’ motion to dismiss for lack of personal jurisdiction, concluding that the court may exercise specific personal jurisdiction over each of the KBR defendants on the grounds that plaintiffs had sufficiently alleged that the KBR defendants intentionally withheld information regarding the alleged sodium dichromate contamination at Qarmat Ali from the plaintiffs, whom they knew to be Oregon residents. On August 30, 2010, 2010 WL 3418340, this court denied the KBR defendants’ motion to dismiss for lack of subject-matter jurisdiction. In so doing, I rejected defendants’ arguments that the court lacks subject-matter jurisdiction by operation of the political question doctrine, the government contractor defense, or the combat activities exception the Federal Tort Claims Act. On June 16, 2011, 2011 WL 2971848, this court recommended that plaintiffs’ claims be dismissed to the extent alleged against the Halliburton defendants for lack of personal jurisdiction, and on July 20, 2011, 2011 WL 2970926, Judge Hernandez adopted that recommendation as his own opinion. On August 29, 2012, 2012 WL 3776473, I denied defendants’ renewed motion to dismiss for lack of subject-matter jurisdiction, again rejecting defendants’ arguments regarding the political question doctrine and the combat activities exception to the Federal Tort Claims Act.

On April 4, 2012, the following twelve plaintiffs were designated as the “Group I” plaintiffs for trial set to commence on October 9, 2012: Jason Arnold, Rocky Bixby, Ronald Bjerklund, Colt Campredon, Charles Ellis, Byron Greer, Matthew Hadley, Brian Hedin, Vito Pacheco, Lawrence Roberta, Charles Seamon, and Aaron St. Clair.

Now before the court is defendants’ motion for summary judgment (#344) on plaintiffs’ fraud and negligence claims. For the reasons discussed below, the motion is denied.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, 516 U.S. 1171, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). In evaluating a motion for summary judgment, the district courts of the United States must draw all reasonable inferences in favor of the nonmoving party, and may neither make credibility determinations nor perform any weighing of the evidence. See, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

FACTUAL BACKGROUND

A brief sketch of the parties basic background facts appears below. The parties dispute virtually all other factual evidence, so that evidence is discussed where relevant to the particular claims at issue. Kellogg, Brown & Root Service, Inc. (“KB & RS”) entered into Contract No. DACA6303-D-0005 — known as the “Restore Iraqi Oil” or “RIO” contract — with the U.S. Army Corps of Engineers on March 8, 2003, pursuant to which KB & RS would perform tasks as ordered by the U.S. Army Corps of Engineers in connection with efforts to restore the infrastructure underlying the Iraqi oil industry.

Combat operations in Iraq began on March 19, 2003.

On March 20, 2003, the Corps of Engineers issued “Task Order 3,” which governed the services to be provided by KBR and its subsidiaries at Qarmat Ali and other facilities. Under Task Order 3, the U.S. military would declare a given work-site to be “benign” before KBR would begin operations there. In addition, the RIO contract provides that the U.S. government will indemnify KBR for any claims involving bodily injury or death arising out of KBR’s provision of services under the contract.

In April 2003, the KBR defendants began operations at Qarmat Ali.

In May 2003, the Oregon National Guard was assigned to the Doha Operations Center in Kuwait. Beginning some time after May 1, 2003, the KBR defendants, or some of them, would contact the Doha Operations Center and request assistance with security issues on a regular, perhaps daily basis, in accordance with the provisions of the RIO contract and Task Order 3. On some occasions, members of the Oregon National Guard would receive security assignments to the Qarmat Ali water plant, where they were allegedly exposed to sodium dichromate, a chemical corrosion inhibitor used to treat water in oil wells, but which is also an irritant and carcinogen.

Plaintiffs are members of the Oregon National Guard allegedly exposed to sodium dichromate at Qarmat Ali in 2003 who have allegedly been harmed by their exposure.

DISCUSSION

Defendants seek summary judgment on plaintiffs’ claims for fraud and negligence. Defendants argue that summary judgment is appropriate on the fraud claim because plaintiffs have failed to provide satisfactory evidence of any false representations, intent to defraud, reliance, or causation. Defendants contend that they are entitled to summary judgment on the negligence claim because KBR owed no duty to the plaintiffs.

I. Fraud

In order to bring an action for fraud under Oregon law, plaintiffs must establish, by clear and convincing evidence, each of the following elements:

(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the person and in the manner reasonably contemplated; (6) the hearer’s ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury.

Rice v. McAlister, 268 Or. 125, 128, 519 P.2d 1263 (1974), citing Conzelmann v. N.W.P. & D. Prod. Co., 190 Or. 332, 350, 225 P.2d 757 (1950); see also Pollock v. D.R. Horton, Inc.-Portland, 190 Or.App. 1, 20 n. 22, 77 P.3d 1120 (2003) (noting that at times Oregon courts list five elements for fraud, but that there is no substantive difference between the two sets of elements).

Here, the parties disagree only over whether defendants made any false misrepresentations, whether defendants did so with an intent to deceive, whether there was any reliance on these representations, and whether the plaintiffs’ injuries were proximately caused by these representations. Specifically, defendants contend that plaintiffs’ evidence falls short of establishing each of these elements by clear and convincing evidence. Defendants also contend that summary judgment is appropriate because plaintiffs have failed to supply the necessary particularity required by Fed.R.Civ.P. 9(b) in order to plead a fraud claim.

A. Compliance with Fed.R.Civ.P. 9(b)

As a preliminary matter, defendants argue that the court should dismiss plaintiffs’ fraud claim because they have failed to plead fraud with the requisite particularity required by Fed.R.Civ.P. 9(b). “Rule 9(b) demands that the circumstances constituting the alleged fraud ‘be specific enough to give defendants notice of the particular misconduct ... so that they can defend against the charge and not just deny that they have done anything wrong.’ ” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir.2009), quoting Bly-Magee v. Cal., 236 F.3d 1014, 1019 (9th Cir.2001). “Averments of fraud must be accompanied by ‘the who, what, when, where, and how of the misconduct charged.’ ” Id., quoting Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.2003). “A party alleging fraud must set forth more than the neutral facts necessary to identify the transaction.” Id., quoting In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1548 (9th Cir.1994).

Defendants assert that plaintiffs’ complaint does not satisfy the heightened pleading standards of Rule 9(b) because it fails to identify who said what to whom. Notwithstanding the fact that the purpose of the heightened pleading standard is merely to give defendants sufficient notice so that they can defend the charge, Kearns, 567 F.3d at 1124, and the fact that defendants have litigated this case extensively even prior to filing the current dis-positive motions, a review of the operative complaint reveals that plaintiffs’ fraud allegations are pled with sufficient particularity. The complaint identifies specific KBR employees who allegedly knew about the sodium dichromate at Qarmat Ali, identified specific dates that they allegedly possessed this knowledge or took particular action, and alleges that despite this knowledge, at least two employees met with and told the workers that the sodium dichromate was, at most, a mild irritant. Fifth Am. Compl. ¶¶ 13, 19, 20. While the complaint does not set forth specific statements made to each individual plaintiff, it certainly sets forth more than the “neutral facts necessary to identify the transaction,” and thus, satisfies Rule 9(b)’s heightened pleading requirements. Kearns, 567 F.3d at 1124. Accordingly, I decline to dismiss plaintiffs’ fraud claim on this basis.

B. False Representations

“Actionable fraud may be committed by a concealment of material facts as well as by affirmative and positive misrepresentations.” Musgrave v. Lucas, 193 Or. 401, 410, 238 P.2d 780 (1951). Generally, a plaintiff cannot bring an action based on nondisclosure unless defendant had a duty to speak. Paul v. Kelley, 42 Or.App. 61, 65-66, 599 P.2d 1236 (1979). “Nondisclosure of material facts can be a form of misrepresentation where the defendant has made representations which would be misleading without full disclosure.” Meade v. Cedarapids, Inc., 164 F.3d 1218, 1223 (9th Cir.1999), citing Elizaga v. Kaiser Foundation Hospitals, 259 Or. 542, 546, 487 P.2d 870 (1971). Often, “[t]he extent to which a misrepresentation is misleading and, therefore, imposes a duty of disclosure, is a question of fact.” Id., citing Gregory v. Novak, 121 Or.App. 651, 655, 855 P.2d 1142 (1993).

However, when there is “active concealment, as opposed to simple nondisclosure,” the plaintiff does not need to prove that defendant had a duty to speak. Caldwell v. Pop’s Homes, Inc., 54 Or.App. 104, 113, 634 P.2d 471 (1981). “This distinction is made clearer by Prosser’s classification of active concealment with affirmative statements as follows:

Any words or acts which create a false impression covering up the truth, * * * or which reihove an opportunity that might have otherwise lead to the discovery of a material fact as by floating a ship to conceal defects in her bottom, * * * sending one who is in search of information in a direction where it cannot be obtained, * * * or even a false denial of knowledge by one in possession of the facts * * * are classed as misrepresentations, no less than a verbal assurance that the fact is not true.”

Paul, 42 Or.App. at 65-66, 599 P.2d 1236, quoting Prosser, Law of Torts § 106 at 695 (4th ed. 1971).

Plaintiff must also prove that the representations were false. Nisson v. Tillman, 213 Or. 133, 137-38, 323 P.2d 329 (1958). However, representations that are “literally true” may be actionable if the representation “creates a false impression under the circumstances.” Arboireau v. Adidas-Salomon AG, 347 F.3d 1158, 1168 n. 12 (9th Cir.2003), citing Heverly v. Kirkendall, 257 Or. 232, 234, 478 P.2d 381 (1970); see also Sheets v. B & B Personnel Systems, 257 Or. 135, 145, 475 P.2d 968 (1970) (“Fraud may be predicated upon an equivocal, evasive or misleading answer calculated to convey a false impression even though it may be literally true as far as it goes.”).

Defendants take the position that plaintiffs cannot prove that KBR made any false representations for two reasons. First, plaintiffs cannot prove that the statements made directly to the individual plaintiffs were false because the statements prove that defendants actually warned the soldiers to stay away from the contaminated soil. Second, all of plaintiffs’ remaining allegations relate to statements KBR allegedly made to the Army rather than to plaintiffs themselves, and since plaintiffs may not “bootstrap” their claims to the allegedly false representations made to the Army, plaintiffs have failed to establish this element of their fraud claim.

1. Statements to Individual Plaintiffs

[5] Plaintiffs assert that defendants made false representations about the hazards posed by sodium dichromate to several individual guardsmen. Sometime in late April or early May 2003, plaintiff MSgt. Stanger and Capt. Chatterji took their first trip to Qarmat Ali and asked KBR personnel about what they knew about the discolored soil. Stanger Depo. at 98-99. A KBR representative responded that “it was a mild irritant, and that [the soldiers] should try to stay away from it, but other than that, [the soldiers would] be okay.” Id. According to Stanger, the KBR representative also mentioned that it could irritate noses and throats. Id. at 102. Sometime thereafter, yellow ribbon was placed around an area that had a large pile of discolored soil and the message to “stay away from the stuff’ was passed down the Chain of Command. Id. at 103, 282-283. During Battle Update Briefs (“BUBs”), the message to “stay away from the chemical that is surrounded by the tape” was passed along to the Oregon National Guard leaders, who then passed it along to the soldiers themselves. Id.

In addition to Stanger, defendants told at least three more individual plaintiffs, Jason Arnold, Aaron St. Clair, and Dennis Rosgen, that the powder was merely an irritant. Arnold stated that when he asked KBR employees whether there were any hazards at Qarmat Ali, they responded by saying that there were “certain chemicals, but that the only thing they found [were] mild irritants.” Arnold Depo. at 127-28. St. Clair testified that while he was at Qarmat Ali, he went to touch some orange dust on the side of a building, but a KBR employee told him “[d]on’t touch that. That’s a skin irritant. Try not to touch that stuff.” St. Clair Depo. at 93. After that, he made an active effort to avoid the yellowish-orange powder, though he admits that he did not know anything about it other than that it was a skin irritant. Id. at 96, 141. Rosgen testified that he observed “blown open bags” outside of a building, which he tried to avoid as much as possible, even though he was not sure what it was. Rosgen Depo. at 117. At some point Rosgen said he asked some KBR employees about the bags and “all this crud on the ground,” and they responded that “it was fine. Don’t worry about it.” Id. at 118.

Defendants contend that KBR never made any false statements to any plaintiff, as evidenced by the fact that the vast majority of the plaintiffs (30 out of 34, by defendants’ count) provided testimony that they could not recall KBR ever mentioning anything about sodium dichromate. In support, defendants provide evidence from plaintiff Charles Ellis who testified that during his deployment, he was never provided any reports from any source about chemical or environmental hazards at Qarmat Ali. Ellis Depo. at 92. Defendants also provide brief excerpts from various plaintiffs’ deposition testimony and interrogatory responses, where plaintiffs state that they never communicated with any KBR employees about chemical hazards whatsoever, and that they did not learn of the presence of sodium dichromate from anyone at KBR. Carter Aff. Exh. 23-49, 56.

As for those four plaintiffs who claim that KBR made such misrepresentations directly to them, defendants claim their testimony actually proves that the Army gave accurate information to the soldiers by warning them to stay away from the contaminated soil. According to defendants, St. Clair testified that after being told about the yellowish-orange powder being a skin irritant, he made an effort to avoid it. St. Clair Depo. at 93, 96. Similarly, Rosgen acknowledged that even though “the KBR guys” told him not to worry about the “crud” on the ground, he avoided it anyway. Rosgen Depo. at 117-120. Defendants also provide some evidence that even when KBR allegedly made statements about the discolored soil, plaintiffs did not recall that KBR told them what particular chemical was causing the discoloration. Id. Finally, defendants point out that Stanger, who claimed that someone had told him that sodium dichromate was just a “mild irritant,” later testified that he received the CHPPM Risk Factor Fact Sheet sometime in April 2004, and that this sheet actually corroborated the information that the KBR representative had told him about the sodium dichromate, namely that it was not hazardous. Stanger Depo. at 104-105; Carter Aff. Exh. 20.

The fact that only four plaintiffs recall that KBR made statements to them about the hazards posed by the discolored soil does not undermine plaintiffs’ fraud claim. Nor does it matter that the plaintiffs did not recall that the KBR employees ever specifically told them that the discolored soil was sodium dichromate. It is enough that plaintiffs have provided evidence that the KBR employees’ statements gave the false impression that the soil was not a serious hazard when it was, in fact, the opposite. The fact that the plaintiffs elected to avoid direct contact with the soil anyway does not render the statement any less misleading. Consequently, plaintiffs have set forth sufficient evidence that defendants made false representations to several individual plaintiffs about the hazards presented by the discolored soil.

2. Statements to the Army

In support of the argument that plaintiffs may not sustain their fraud claim based on statements made to the Army, defendants primarily rely on Bootay v. KBR, Civil No. 2:09-1241, 2010 WL 3632720, *11 (W.D.Pa. Sept. 9, 2010), aff'd 437 Fed.Appx. 140, 146 (3rd Cir.2011), a similar case involving an Army sergeant assigned to provide protection at Qarmat Ali in April 2003 and who alleged that he was exposed to and injured by sodium dichromate contamination. There, the court noted that under Pennsylvania law, one cannot rely on misrepresentations made to a third party in order to state a claim for fraud, and since the plaintiff failed to allege that KBR made any misrepresentations directly to him, the fraud claim was dismissed. Id. Defendants also cite an Oregon case where the court affirmed a directed verdict against a defendant’s fraud defense. Vasquez-Lopez v. Beneficial Oregon, Inc., 210 Or.App. 553, 578-79, 152 P.3d 940 (2007). There, the defendant-lender attempted to avoid liability on the grounds that the plaintiff-homeowners had fraudulently induced the lender into the loan transaction by submitting their federal tax returns which presumably did not include a full picture of their undisclosed financial liability. Id. The appeals court upheld the directed verdict for the plaintiffs on the grounds that defendants failed to prove that plaintiffs’ tax returns were, in fact, false. Id. at 579, 152 P.3d 940.

In response, plaintiffs argue that under Oregon law, they need not show that defendants made the representations directly to them in order to maintain their fraud claim. In support, they rely on the exception announced in Handy v. Beck, 282 Or. 653, 663-65, 581 P.2d 68 (1978), where the court concluded that a third party may bring a fraud action under certain circumstances if the third party is a member of a protected class and is injured as a result of a misrepresentation made to someone else. In Handy, the defendant constructed a well on the private property of plaintiffs’ predecessor in interest and filed a false drilling log with the state engineer, a report which was required by state regulations. Id. at 655, 581 P.2d 68. Despite this false filing, the defendant represented that the well was “legally constructed” to the landowner. Id. Several years later, the plaintiffs purchased the property and subsequently learned that the well did not meet state standards after it suffered damage. Id. at 656, 581 P.2d 68. The Oregon Supreme Court determined that under the circumstances, the defendant’s misrepresentations did not need to have been made directly to the plaintiffs in order to state a claim for fraud. Id. at 665, 581 P.2d 68. In so finding, the court concluded that even though the filing of the drilling log with the state engineer was required by statute for administrative reasons rather than for purposes of public notice, “any person having a lawful purpose was entitled to review that record and to rely on its having been lawfully prepared and filed.” Id. at 658, 581 P.2d 68. Moreover, a purchaser of residential property that is served by a well rather than the public water supply, “is certainly a transaction in which a prospective purchaser might review the record and rely upon the truth of its contents.” Id. Also, there was evidence in the record to establish that the defendant had actively concealed the improper construction of the well and that the plaintiff had no practical means of otherwise discovering the truth. Id. at 661, 581 P.2d 68. Therefore, the court rejected the “narrow rule” that required proof that the misrepresentation had been communicated to and relied upon by the plaintiff, instead concluding that “where the actor has prevented the correction of the illegal condition and a member of the protected class has been injured as a consequence,” then “the right to recover [is] not dependent on a misrepresentation being conveyed to [the plaintiff].” Id. at 665, 581 P.2d 68.

Defendants contend that Handy is inapplicable because here there was no statute governing defendants’ actions, nor was there any pecuniary loss. Defendants correctly point out that the holding in Handy was premised on Restatement (Second) of Torts § 536, which applies where “a statute requires information to be furnished, filed, recorded or published for the protection of a particular class of persons,” and pertains to pecuniary loss, not physical harm. However, the Handy court specifically noted that § 536 is merely an application of the general rule stated in § 531, which is much broader and provides:

One who makes a fraudulent representation is subject to liability to the persons or class of persons whom he intends or has reason to expect to act or to refrain from action in reliance upon the misrepresentation, for pecuniary loss suffered by them through their justifiable reliance in the type of transaction in which he intends or has reason to expect their conduct to be influenced.

Handy, 282 Or. at 664 n. 6, 581 P.2d 68, citing Restatement (Second) of Torts § 531.

Moreover, the Oregon Supreme Court in Handy did not single out the statutory requirement which required the defendant file a drilling log with the state as the primary basis for its ruling. Handy, 282 Or. at 665, 581 P.2d 68. Instead, the court focused on the particular circumstances of the case, which included the defendant’s misrepresentations to the plaintiffs predecessor in interest, the false log filed with the state, the fact that the log was a public record that the public had a right to rely upon, the fact that defendants had actively concealed the improper drilling, and that plaintiffs had no other practical means of determining the truth. Id.

In a case from this district, the court employed similar reasoning to allow plaintiffs to bring a fraud-on-the-FDA claim without proving that they relied upon the defendants’ alleged misrepresentations to the FDA. Swain v. Danek Med., Inc., Civil No. 96-1515-JO, 1999 WL 551127, *4 (D.Or. July 23, 1999). While the court noted that the plaintiffs alleged that “they belong to the class of persons to be protected by the statute that defendant violated,” this was just one of the many similarities between the Swain plaintiffs and the Handy plaintiff that lead the court to conclude that the fraud-on-the-FDA claim is cognizable under Oregon law by way of Restatement (Second) of Torts § 310, “which allows recovery where plaintiff relied on misrepresentations made by defendant to a third party.” Id. at **2, 4.

The limited number of Oregon cases which have addressed the Handy exception focus on whether plaintiffs actually relied on the information communicated to the third party, not whether there was an underlying statutory duty. See e.g., Strawn v. Farmers Ins. Co. of Oregon, 350 Or. 336, 373-78, 258 P.3d 1199 (2011); Bartlett v. Crook County, Oregon, Civil No. 07-716-SU, 2009 WL 1176465, *4 (D.Or. April 28, 2009); Burns v. MBK Partnership, Civil No. 03-3021-CO, 2003 WL 23979014, *12 (D.Or. Nov. 5, 2003); Jesuit High School v. General Ins. Co., Civil No. 95-563-RE, 1995 WL 854773, *2-3 (D.Or. Aug. 18, 1995). Consequently, I conclude that the exception in Handy does not hinge on the existence of a statute governing defendants’ actions. Rather, the inquiry is focused on whether, based on the particular circumstances presented, the defendant’s misrepresentation to a third party was such that plaintiffs could be reasonably expected to rely on it.

Additionally, in a case not cited by either side, the Oregon Court of Appeals stated that in order to prove the representation element for a fraud claim, a plaintiff must prove that defendant “(1) made a representation to plaintiff, or (2) made a representation to an agent of plaintiff or (3) made a representation to [a third party] with the intention that it be communicated to and acted upon by plaintiff, or under circumstances that entitled plaintiff to believe that defendant had authorized [the third party] to communicate the representation to plaintiff.” Johnsen v. Mel-Ken Motors, Inc., 134 Or.App. 81, 90, 894 P.2d 540 (1995). There, the court concluded that material issues of fact precluded summary judgment where plaintiff alleged that defendant employer made misrepresentations to a vocational expert employed by the defendant’s insurer with the intention that the misrepresentation be communicated to and acted on by the plaintiff. Id. at 90-91, 894 P.2d 540.

The Ninth Circuit applied this principle to permit an employee’s spouse to bring a claim against an employer for misrepresentations made to the employee during the hiring process for a job which required the employee to relocate. Meade, 164 F.3d at 1223. There, the employer allegedly made misrepresentations involving the employer’s financial situation and future growth prospects, thereby inducing the employee to accept the position and relocate. Id. at 1220-21. In allowing the fraud claim to go forward, the court noted that where an employee has a spouse, the decision to relocate is often a family decision rather than an individual one, so the employer should have known that misrepresentations made to the employee would be communicated to and relied upon by the spouse. Id. In a similar case from this court, the court applied the above principles to conclude that the plaintiffs wife had standing to bring a fraud claim against an employer who allegedly made misrepresentations to her husband with regard to the terms of a potential job offer. Herron v. Wells Fargo Financial, Inc., Civil No. 05-659-ST, 2006 WL 2422831, *11-12 (D.Or. May 22, 2006).

Given the above precedent, I conclude that Oregon law does not require that the alleged misrepresentations be made directly to the plaintiffs in order to state a claim for fraud so long as the plaintiff is within the class of people whom defendants should have expected to rely on those misrepresentations or defendants intended that plaintiffs should rely on the misrepresentations. In so concluding, I am not persuaded by the cases cited by defendants. Bootay, though very similar on its facts and claims, relied on Pennsylvania law which differs in important respects from Oregon law, specifically with regard to what is a permissible “representation” for purposes of a fraud claim. Apparently, unlike Oregon, Pennsylvania courts strictly adhere to the general rule that requires misrepresentations be made to the plaintiff directly, not to a third party. 2010 WL 3632720, at * 11. Vasquez-Lopez is similarly unpersuasive since it is factually distinguishable and does not address in any way whether a misrepresentation need to be made directly to the plaintiff to be actionable. 210 Or.App. at 578-79, 152 P.3d 940. Moreover, the court’s holding turned on the truth or falsity of the alleged misrepresentation, not the identify of the person to whom the misrepresentation was allegedly made. Id. Here, plaintiffs allege that they were damaged as a result of misrepresentations made to a third party, the Army, and that the plaintiffs, as National Guard soldiers under the control of the Army, are within of the class of people whom defendants should have expected to rely on those misrepresentations. Therefore, plaintiffs’ fraud claim is cognizable under Oregon law. I next turn to whether there exists sufficient evidence that defendants made any false representations to the Army.

a. Factual Allegations

Defendants contend that plaintiffs cannot establish by clear and convincing evidence that defendants made any false representations because there is no evidence that defendants ever told the Army that there was no sodium dichromate at Qarmat Ali or that it was not potentially hazardous. Plaintiffs respond that there is ample evidence that defendants made many fraudulent statements to various military personnel, and they intentionally failed to fully disclose the existence or extent of sodium dichromate contamination at Qarmat Ali. Keeping in mind that fraud “may be committed by a concealment of material facts as well as by affirmative and positive misrepresentations,” I will consider plaintiffs’ evidence of affirmative misrepresentations as well as their evidence of concealment and nondisclosure. Musgrave, 193 Or. at 410, 238 P.2d 780.

i. Misrepresentations to CHPPM

Plaintiffs contend that KBR falsely misrepresented to the U.S. Army Center for Health Promotion and Preventive Medicine (“CHPPM”) that it learned of sodium dichromate contamination in late July 2003, despite having knowledge of the contamination much earlier. Sugerman Deck Exh. 7 at 4; Resta Depo. at 110. According to defendants, KBR did not learn that sodium dichromate presented a hazard until July 25, 2003, and thus, did not give any false information to CHPPM. Carter Aff. Exh. 1 at 13.

Plaintiffs present evidence that KBR knew of the dangers posed by sodium dichromate long before July 25, 2003. KBR employee Rod Kimbro wrote a memo on June 21, 2003, about the water treatment chemicals used at Qarmat Ali, noting that he had observed discolored soil near the chlorine tanks, and that “the areas are potentially contaminated with sodium dichromate spilled during the looting activities which occurred at the water treatment plant.” Carter Aff. Exh. 7 at 3 (emphasis added). Kimbro further noted that “[d]ue to the potential toxicity of sodium dichromate, I suggest that the areas of soil stained yellow be cordoned off and that samples be collected and tested ... If it is determined that these yellow soils are contaminated with sodium dichromate, I recommend that these soils be excavated and put in drums[.]” Id. A few days later, on June 25, 2003, KBR’s Mark Daniels spoke to U.S. Army Corps of Engineers safety officer Remington about the presence and potential hazards of sodium dichromate during a site visit to Qarmat Ali. Remington Depo. at 244. The Inspector General at the Department of Defense concluded that KBR had identified the potential contamination by June 8, 2003. Sugerman Deck Exh. 1 at 4, 12. Thus, it appears clear that at least some KBR employees were aware of the hazards presented by the contamination earlier than July 25, 2003. Consequently, plaintiffs have offered sufficient evidence to establish that defendants’ representations to the Army regarding when it became aware of the contamination were false.

ii. Misrepresentations to Army Safety Personnel

Plaintiffs further claim that on August 15, 2003, KBR manager Young Lee misrepresented the extent of KBR’s knowledge of the seriousness of the contamination in response to an inquiry from Army Staff Sgt. Hamilton regarding that very issue. Sugerman Decl. Exh. 14. At some point prior to August 15, 2003, Hamilton contacted Lee because he was concerned about the contamination and “wanted to know all facts such as PPE (personal protective equipment), soil and air test results, and personnel monitoring programs to protect soldiers.” Id. In response to this inquiry, Lee told Hamilton that KBR’s test results were “preliminary and could not be provided until the final results are confirmed.” Id. Plaintiffs assert that this statement was a misrepresentation because at the time Lee told Hamilton that the test result were merely “preliminary,” he knew, as of August 8, 2003, there was a “serious health problem” related to sodium dichromate at Qarmat Ali, that almost 60% of people exhibited symptoms, and that the “problem seems worse than initially considered.” Id., Exh. 15.

It is not clear exactly what test results Lee considered “preliminary” in his August 15 email, since the email also indicates that he had already passed along the soil test results to Jerry Balcom, an environmental officer with the U.S. Army Corps of Engineers. Id., Exh. 14. He also noted that he would send Balcom the air test results, so it appears as though the air and soil test results were not preliminary. Id. Instead, it appears as though plaintiffs believe that Lee provided misrepresentations with regard to medical tests of individuals working in the area, since this was discussed as an “action item” at the August 8, 2003 “Team RIO” meeting with various KBR officials. Id., Exh. 15 at 2. While a review of the minutes from this meeting reveals that “medical tests” were indeed recommended to protect individuals working in the area of exposure, it does not appear that those tests had yet been ordered, so they very well could have been “preliminary” at the time that Lee responded to Hamilton’s inquiry. However, it is clear that there was significant discussion of protective measures for individuals working at the location, including setting up a decontamination station, decontaminating the interior of the trailers and containers, setting up medical testing for people working in the area, and spraying a chemical that would “stop the residue from being dusted,” and to gravel or use a heavy oil to cover the surface and “prevent the wind from dusting and blowing” the chemical around. Id., Exh. 15 at 1-2.

A review of the August 8, 2003, minutes reveals that Lee had additional responsive information about the contamination yet he failed to provide this information even though Hamilton had specifically inquired about all aspects of the contamination, not just the air and soil testing. According to Lee’s own email memorializing the conversation, this request included whether there was a need for personal protective equipment and information about other personnel safety monitoring programs. It is well-established that once one elects to make representations, there is a duty to tell the truth, even if there was otherwise no duty to speak, and that in such circumstances, concealing facts or providing half-truths can be considered fraudulent. See Donald H. Hartvig, Inc. v. Clackamas Town Center Assoc’s., 101 Or.App. 79, 84-85, 789 P.2d 679, rev. denied, 310 Or. 393, 798 P.2d 672 (1990). Similarly, “[fjraud may be predicated upon an equivocal, evasive or misleading answer calculated to convey a false impression even though it may be literally true as far as it goes.” Sheets, 257 Or. at 145, 475 P.2d 968. Under the circumstances, Lee’s statements created a false impression about the information that KBR had regarding the extent of the contamination as well as KBR’s plan to keep personnel safe while working at the site, yet he failed to disclose this information despite being specifically asked for it. The fact that he did provide the soil and air test results to Balcom, an Army officer, is not material to the court’s determination regarding his communication with Hamilton about other matters relating to the contamination. Consequently, for purposes of this motion, Lee’s August 15, 2003, email provides evidence of false representations made to the Army,

iii. Misrepresentations to British Royal Air Force

Plaintiffs assert that defendants gave misleading information to the British Royal Air Force in the form of “biological monitoring test results ... for contractors and American Forces, [which were] within normal limits.” Sugerman Deck Exh. 17 ¶ 9. According to plaintiffs, this information influenced the Royal Air Force’s decision to forego biological monitoring of its own soldiers. Id. Plaintiffs contend that the information provided by KBR was intentionally misleading because as early as September 9, 2003, defendants were aware that KBR employees were exposed to chromium at “elevated levels.” Id., Exh. 19 at 2. Moreover, on September 16, 2003, defendants received a report from Dr. M. Rao, who had examined several KBR employees, noting that he “found a high level of chrome,” with some people testing four times higher, and others up to 14 times higher than normal. Id., Exh. 18 ¶ 15. He also noted that “14 out of 15 tested showed high chromium blood level[,] while only 1 out of 15 tested showed high urinary level of chrome,” which lead him to assume that there were no current exposures since “high blood level of chrome indicates long term exposure while high urinary level of chrome indicates reduced recent exposure because the body will flush it out.” Id. Overall, he classified the exposure as “less than moderate,” in part because a “duration of a few weeks can be considered okay.” Id.

Defendants respond that KBR did not in any way misrepresent the test results it provided to the Royal Air Force. In support, defendants provide an email from an expert retained by the Royal Air Force who determined that KBR’s test results were actually “lower than the accepted clinical range for both chromium and selenium.” Langham Aff. Exh. 61. Defendants contend that this is evidence that KBR was cautious in its biological monitoring of its employees, reporting elevated blood chromium levels even if the levels were within the normal range.

A close review of the documents relied upon by the parties does not resolve whether KBR indeed provided test results to the Royal Air Force that were falsely characterized by KBR as within “normal limits.” The document referenced by defendants is dated October 8, 2003, which would seem to imply that the test results reviewed by the Royal Air Force’s expert were the ones referenced by plaintiffs on September 16, 2003, where Dr. Rao found high chromium blood levels. However, this is not at all certain from this document, so it is possible that the expert could have been evaluating test results other than the ones from September 2003. Further complicating the issue is the fact that the memo referenced by plaintiffs is dated February 10, 2004, well after the contamination allegedly occurred. Sugerman Deck Exh. 17 ¶ 9. There, the Royal Air Force explained its decision not to recommend further biological monitoring of its own soldiers in part because of the amount óf time that had elapsed since the exposure, and also because “biological monitoring test results to which we have been given access for contractors and American Forces have been within normal limits.” Id. Again, it is not at all clear that the test results referred to here were indeed the ones from September 2003 in which Dr. Rao found high chromium blood levels, whether they were some other test results more recent in time to when the report was written (and which the blood levels were lower than they were in September 2003), whether the overall conclusion that they were “within normal limits” was based on the Royal Air Force’s expert’s earlier conclusion on the matter, or from some other source entirely. Consequently, material issues of fact exist regarding whether defendants made false representations to the Royal Air Force in the form of providing them with KBR’s biological monitoring test results.

iv. Safety Meetings

Plaintiffs contend that defendants omitted mention of the presence or hazards of sodium dichromate at the daily safety meetings KBR had with the Army, and that this omission was equivalent to falsely conveying that there were no hazards presented by the sodium dichromate. Sugerman Decl. Exh. 37 at 7. In support, they provide testimony from General Crear, who stated that the purpose of these meetings was for KBR to share information about all on-site hazards with military personnel. Crear Depo. at 48-49, 58, 143. He testified that dangers presented by chemical contaminates were expected to be shared at these meetings. Id. Plaintiffs contend that from this, a jury could conclude that by failing to mention sodium dichromate during daily safety meetings, defendants implied that it was not dangerous, thereby intentionally misleading the Army.

In this circumstance, plaintiffs are attempting to prove misrepresentation on the basis of silence or nondisclosure. This can be a basis for fraud so long as the person has a duty to speak and “deliberately remains silent” or otherwise fails to disclose a “material fact which [the] person is bound in good faith to disclose.” Musgrave, 193 Or. at 410, 238 P.2d 780 (internal citation and quotation omitted). In such circumstances, the intent to deceive is incorporated into the inquiry of whether, by one’s silence or concealment, the nondisclosure amounts to a false representation necessary to support a claim for fraud. Id.

Here, plaintiffs cite only to one KBR Project Rio Site Report (dated June 13, 2003), to support their claim that KBR intentionally remained silent regarding the sodium dichromate hazards. Sugerman Decl. Exh. 37. A review of that document reveals that upon arrival at the site, the day crew “held [a] safety meting,” but does not otherwise mention the substance of this meeting. Id. at 7. The remainder of the relevant portion of the site report concerns details regarding the filtration and pumping services and whether KBR needed “shooters,” presumably Army personnel, for the next 24-hour period. Id. Though this single document with a three word reference (“held safety meeting”) is not enough to establish that KBR intentionally remained silent about the sodium dichromate exposure at every single daily safety meeting held between May and September 2003, there is evidence from which a jury could conclude that KBR knew about the presence and dangers of sodium dichromate during this time period. This evidence, combined with General Crear’s testimony that the Army expected KBR to share information of on-site hazards at these meetings, establish that KBR was “bound in good faith to disclose” its knowledge of the dangers presented by sodium dichromate during the daily safety meetings. Musgrave, 193 Or. at 410, 238 P.2d 780. Plaintiffs have presented at least some evidence that KBR failed to fully disclose this knowledge during at least some of these meetings. Consequently, plaintiffs have established that material issues of fact exist regarding whether KBR intentionally remained silent about the sodium dichromate during daily safety meetings in order to convey the false representation that the site was safe.

v. Delay in Soil Sampling

Plaintiffs also claim that defendants failed to undertake timely soil testing until after remediation efforts began. Plaintiffs contend that this is circumstantial evidence of active concealment, from which a jury could infer that defendants took deliberate steps to avoid responsibility. Defendants counter that plaintiffs have failed to provide any evidence of this delay, much less how this delay, which essentially amounts to fraud by silence, is supported by evidence of an intent to deceive sufficient to rise to the level of a nondisclosure necessary to support a fraud claim. See Musgrave, 193 Or. at 410, 238 P.2d 780.

While it is true that intent to defraud may be proven by circumstantial evidence of concealment, such evidence is sufficient only where “the circumstances are so strong as to constitute clear, satisfactory, and convincing proof of intent to defraud.” Package Containers Inc. v. Director’s Inc., 270 Or. 845, 852-53, 530 P.2d 40 (1974). Plaintiffs have not set forth any evidence of this supposed concealment with regard to the delay in soil testing, instead relying only on their unsupported accusation that defendants intentionally delayed the soil and air testing in order to skew the results and therefore misrepresent the degree of the contamination and, thus, the danger posed to the plaintiffs. Accordingly, for purposes of this motion, these allegations are insufficient to constitute a false representation.

3. Conclusion

Viewing the facts in the light most favorable to plaintiffs as the nonmoving party, they have set forth sufficient evidence from which a jury could conclude that defendants made affirmative misrepresentations or failed to fully disclose material facts regarding the hazard presented by the sodium dichromate at Qarmat Ali. Plaintiffs have provided evidence that KBR employees provided different information at different times to various members of the military, including the plaintiffs themselves, regarding the presence and hazards of sodium dichromate. While it is true that plaintiffs have failed to set forth any evidence that KBR ever told anyone that there was not any sodium dichromate at Qarmat Ali or that it was completely safe, plaintiffs need not provide this kind of proof because in Oregon, representations may be “implied,” such that even if “literally true,” so long as the statement “creates a false impression under the circumstances,” it maybe considered a misrepresentation for purposes of a fraud claim. Arboireau, 347 F.3d at 1168 n. 12. Consequently, plaintiffs have established that defendants made false representations sufficient to satisfy this element of their fraud claim.

C. Intent

Plaintiffs must also establish that defendants made the statements with an intent to deceive. Rice, 268 Or. at 128, 519 P.2d 1263. Plaintiffs may satisfy the intent element by showing that the misrepresentation was made with knowledge of its falsity or with reckless disregard for the truth, and that defendants made the misrepresentation for the purpose of misleading plaintiffs or with knowledge or reckless disregard that plaintiffs would be misled. See e.g., McFarland v. Carlsbad Sanitarium Co., 68 Or. 530, 535, 137 P. 209 (1913); U.S. Nat’l Bank v. Fought, 291 Or. 201, 223, 630 P.2d 337 (1981). Defendants assert that KBR was forthcoming with information regarding the presence and potential hazard of sodium dichromate, and therefore, cannot have acted with the requisite intent.

According to defendants, KBR did not learn that sodium dichromate had been previously used and stored at Qarmat Ali until June 1, 2003, and did not learn that it presented a hazard until July 25, 2003. Carter Aff. Exh. 1 at 13. After learning about the presence of the chemical in early June, defendants assert that KBR timely disclosed the issue to the military and worked cooperatively with them to address it, including disclosing the hazard potential on July 25, 2003, beginning testing on August 2, 2003, restricting the area to personnel wearing personal protective equipment on August 7, 2003, and beginning remediation efforts on August 12, 2003. Id. at 6,11,13.

The heart of defendants’ argument is that at the time KBR informed the Army of the presence of sodium dichromate in early June, the Army was already aware that there was a “potential sodium dichromate soil contamination issue and potential health hazard,” and so any statements made by defendants could not have been made with an intent to mislead or deceive the Army. Kennedy Depo. at 156. In support, defendants point out that KBR employee Rod Kimbro wrote a memo on June 21, 2003, which mentions that he observed potential sodium dichromate soil contamination (Carter Aff. Exh. 7), but Christopher Kennedy, an environmental specialist with the U.S. Army Corps of Engineers, acknowledged that he had already observed the potential sodium dichromate contamination several weeks before Kim-bro’s memo (Kennedy Depo. at 45-46). A few days later, on June 25, 2003, KBR employee Mark Daniels took Mike Remington, a top safety officer with the U.S. Army Corps of Engineers, on a site visit to Qarmat Ali where they discussed the presence of sodium dichromate, that it was a potential carcinogen, and that it posed potential chemical and health hazards. Remington Depo. at 264-65. In a memo dated that same day, Remington noted the following:

Corps personnel visiting this site should be made aware of the following potential hazards, and should follow the KBR Site Safety Plan[.]

* * *

Sodium dichromate: a common flocculant used by the Iraqi’s. This product was once used in the U.S., but is now considered a Class I Carcinogen. Avoid breathing dust, wear gloves and safety glasses since it has a high skin absorption capacity. Product is reddish to bright orange.

Carter Aff. Exh. 8 at 2.

Consequently, according to defendants, any statements KBR made to the military could not have been made with an intent to deceive since the Army was aware of the presence and potential hazards of sodium dichromate at Qarmat Ali even before KBR. In further support of this position, defendants include evidence from various members of the U.S. Army Corps of Engineers who testified that they believed that defendants “communicated openly and honestly about the sodium dichromate hazard potential at Qarmat Ali,” and that they were otherwise satisfied with KBR’s work in addressing the sodium dichromate issue. Balcom Depo. at 177-78, 180; Kennedy Depo. at 59, 127-28; Remington Depo. at 265.

Plaintiffs dispute defendants’ characterization of when KBR became aware of the presence of sodium dichromate at Qarmat Ali. According to plaintiffs, KBR was aware that the Southern Oil Company had used sodium dichromate at Qarmat Ali as early as January 31, 2003, but at least no later than May 2003, thereby undermining the claim that it did not know this information until June 1, 2003. KBR first visited Qarmat Ali in April 2003, but knew before entering the site that the Southern Oil Company had previously used sodium dichromate at the plant. Sugerman Decl. Exh. 1 at 4; Stephenson Depo. at 72-73, 93. Christopher Kennedy, an environmental specialist with the U.S. Army Corp. of Engineers testified that he alerted defendants to the hazard in May 2003 and expected them to implement procedures necessary to keep workers safe. Kennedy Depo. at 92-93. However, there is some evidence that as of May 19, 2003, defendants did not know what chemicals had been used for chemical injection. Carter Aff. Exh. 2 at 3; Stephenson Depo. at 109. In the record currently before the court, information about the previous use of sodium dichromate was not included in a KBR project report until June 1, 2003 (Carter Aff. Exh. 3 at 3-4), though it appeared in “preliminary notes” on May 31, 2003 (Carter Aff., Exh. 4 at 3). In September 2011, the Inspector General at the Department of Defense released a report regarding the exposure at Qarmat Ali, finding that KBR was aware of the prior sodium dichromate use on May 31, 2003, and identified the potential contamination by June 8, 2003. Sugerman Decl. Exh. 1 at 4, 12. In light of the above, it there is evidence from which a jury could find that at least by May 31, 2003, defendants were aware that sodium dichromate had been previously used at Qarmat Ah.

In a similar vein, plaintiffs dispute defendants’ assertion that KBR timely informed the military of the hazards presented by the contamination, contending that KBR knew of the dangers posed by sodium dichromate long before July 25, 2003, the date that KBR claims it learned that the sodium dichromate presented a hazard. As discussed in detail above with regard to the misrepresentations made to CHPPM, there is ample evidence that KBR was aware of the hazards posed by the contamination much earlier than July 25, 2003. Specifically, KBR employee Rod Kimbro’s June 21, 2003, message about the water treatment chemicals used at Qarmat Ali noted his observation of discolored soil, that he thought it might be evidence of potential contamination, and included his recommendations to determine whether the soil was indeed contaminated by sodium dichromate. See Carter Aff. Exh. 7 at 3. Moreover, during a site visit to Qarmat Ali on June 25, 2003, KBR’s Mark Daniels spoke in detail to U.S. Army Corps of Engineers safety officer Remington about the presence and hazards of sodium dichromate. Remington Depo. at 244.

Plaintiffs further argue that defendants communicated that the chemical was only a “mild irritant,” a statement which is false and misleading, and that KBR did so with an intent to downplay the danger. Coupled with the fact that during this same period, KBR’s internal communications made clear that KBR knew that the chemical was “very dangerous,” and that KBR employees should stay away from the area, it is plaintiffs’ position that defendants intended to misrepresent the truth to the Army. Sugerman Decl. Exhs. 27-28. Also during this time, Ed Blacke, KBR’s area safety supervisor at Qarmat Ali, testified that he was pressured to resign because of his efforts to alert soldiers of the hazard posed by sodium dichromate. Rea Depo. at 45; Blacke Depo. at 6.

Viewing the evidence in the light most favorable to plaintiffs as the nonmoving party, plaintiffs have set forth sufficient evidence from which a jury could conclude that an issue of fact exists regarding defendants’ intent to deceive. At a minimum, the record provides evidence from which a jury could conclude that KBR intentionally attempted to downplay when it became aware of the presence of sodium dichromate and also when it learned of the potential contamination and hazards associated with the contamination. Despite KBR’s claim that it did not know that sodium dichromate had been previously used at Qarmat Ali until June 1, 2003, there is convincing evidence to show that KBR was aware prior to its first site visit, which was sometime in April 2003, and at a minimum, was aware of it by May 31, 2003. Similarly, there is ample evidence to undermine KBR’s claim that it was unaware of the contamination until July 25, 2003, since there is mention of the hazards presented by the discolored soil by KBR employees in internal communications as early as June 21, 2003. While there is conflicting evidence about whether KBR’s employee Ed Blacke was forced to resign or whether he left willingly, and also about whether KBR worked appropriately with the Army to address the contamination issue, the evidence as a whole supports the inference that KBR was not completely forthcoming with the information provided to the Army, and that KBR did so in order to minimize the hazard and danger presented by the sodium dichromate contamination. Such evidence is sufficient to allow a jury to conclude that defendants acted with the requisite intent.

D. Reasonable Reliance

It is well established under Oregon law that, “a party asserting fraud must prove by clear and convincing evidence not only that it relied on the other party’s misrepresentations, but that the reliance was reasonable under the circumstances.” Vasquez-Lopez, 210 Or.App. at 580, 152 P.3d 940. Defendants contend that neither the Army, nor any of the plaintiffs, reasonably relied on any of the misrepresentations.

First, with regard to the Army, defendants contend that the Army knew about the contamination long before KBR did, yet it ultimately decided to continue working at the site, so plaintiffs may not, in hindsight, claim that the Army relied on any information provided by KBR. In support, defendants point out that the Army knew there was sodium dichromate at Qarmat Ali as early as April 2003, when the Army’s infrastructure assessment team noted the presence of orange stains in the soil. Carter Aff. Exh. 11 at 14-15. At that time, the assessment team initially recommended not to restore Qarmat Ali, yet the Army directed defendants to begin work at the site. Id. Several months later, once the Army was fully aware of the sodium dichromate contamination, safety personnel advised against continuing work there, but the military again directed KBR to proceed. Id., Exs. 12 (SEALED), 13. As of mid-May 2003, Christopher Kennedy and Chuck Miles of the U.S. Army Corps of Engineers observed the rust-colored powder, and within a week, had identified it as sodium dichromate. Kennedy Depo. at 18-19. Kennedy alerted his superiors about the presence of sodium dichromate and potential health hazards associated with such a contamination. Id. at 23, 156. According to defendants, since the Army already knew about the dangers posed by the sodium dichromate contamination as of early June 2003, it could not have reasonably relied upon any information subsequently provided by defendants. Finally, defendants p