Plaintiff’s Motion to Remand Case Removed under Federal Officer Removal Statute Denied

Goldberg Segalla

Goldberg Segalla

In this asbestos action, plaintiff Michael Marcus alleged that he developed mesothelioma from working with or around asbestos-containing products while serving in the United States Navy. The plaintiff brought claims of design defect and failure to warn against numerous defendants. Defendant Greene Tweed removed this case to federal court under the federal officer removal statute. The plaintiffs moved to remand the case to state court.

Under the federal officer removal statute, doubt is construed in favor of removal. A state court case may be removed to federal court if a defendant can show that:

(1) they are persons within the meaning of the statute,

(2) a causal nexus exists between plaintiffs’ claims and the actions [defendants] took pursuant to a federal officer’s direction, and

(3) they have a colorable federal defense to plaintiffs’ claims.

Ultimately, the court determined that the defendants met the foregoing elements. There was no dispute as to subsection (1). With regard to subsection (2), a defendant can show a federal officer’s “direct and detailed control” when “the government consistently monitors a contractor’s performance; requires it to comply with specifications; performs tests to ensure compliance; and subjects its supplies to inspection, test, and approval.” Here, the court set forth several examples of documents setting forth the defendant’s relationship with the Navy, including the following: defendant Buffalo Pumps submitted drafts of proposed technical drawings and manuals to the Navy, the Navy retained discretion to determine whether submissions complied with specifications and requirements, and that “Buffalo could not finalize design drawings, manuals or other documentation, or proceed with the manufacturing of equipment until it first received written approval to do so from the Navy and/or its shipbuilders or design agents.” In addition, the “the Navy exercised considerable control over all contractors and subcontractors working on its ships in that it issued Military Specifications and Qualified Products Lists for all aspects of the ships and mandated a certain degree of compliance with these requirements.”

Thereafter, the court analyzed subsection (3) as to both the plaintiffs’ design defect and failure to warn claims. With regard to the plaintiffs’ design defect claim, the court determined that the defendants met all three Boyle elements. Here, the defendants submitted evidence showing “how the Navy issued detailed specifications governing the design, manufacturing, and installation of various materials and tools used by Defendants.” Next, the defendant submitted evidence showing how the product supplied conformed to the government’s specifications. Last, the defendant submitted “declarations from experts such as Dr. Forman, who ran occupational health clinics at naval stations, explaining that the Navy was aware of, studying, and discussing the potential health effects of working with and around asbestos.”

The court similarly determined that the defendants met all three Leite elements with regard to the plaintiffs’ failure to warn claim. First, the defendants proffered “declarations stating that the Navy issued detailed specifications governing the form and content of all warnings, that such specifications did not require warnings about asbestos hazards, and that contractors were not allowed to include warnings beyond those specifically required and approved by the Navy.” The defendants also submitted a declaration from Dr. Forman who opined “that the Navy at all times knew at least as much about asbestos hazards as its contractors, and was committed to maintaining complete control over the policies, and procedures with respect to asbestos-containing materials and the corresponding warnings.” As such, the court set forth that Dr. Forman’s affidavit made “a colorable showing that the Navy at all times knew at least as much about asbestos hazards as the equipment manufacturers, leaving nothing for Defendants to warn the Navy about.”

Thus, the court denied the plaintiffs’ motion to remand.

Read the full decision here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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