Federal Court Refuses to Remand Coast Guard Ship Exposure Complaint, Removed Under Federal Officer Removal Statute
The plaintiff commenced this action in Baltimore state court alleging exposure to asbestos, in part, while working on a U.S. Coast Guard ship from 1964 to 1974. He subsequently developed head and neck cancer, asbestosis, and pleural plaques. Two of the defendants “removed the case from the Circuit Court of Baltimore City, asserting this court’s federal officer jurisdiction under 28 U.S.C. § 1442(a)(1) on the basis of the federal contractor defense.” The court described the doctrine as follows: “Under that doctrine, ‘[l]iability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.’”
While the court noted that these defendants did not assert the federal contractor defense with respect to all of the plaintiff’s claims, it nevertheless denied the plaintiff’s motion to remand because under the federal officer removal statute, the defendants met their burden of satisfying the “acting under” requirement of the statute. They also established a sufficient causal connection, which the court described as follows:
To establish a causal nexus between conduct performed under federal direction and the plaintiff’s claims, “‘a defendant seeking removal must ‘by direct averment exclude the possibility that [the defendant’s action] was based on acts or conduct of his not justified by his federal duty.’” Id. at 785 (alteration in original) (quoting Mesa, 489 U.S. at 132). Again,“[t]he causal connection requirement ‘is ordinarily satisfied whenever the removing defendant is able to establish a colorable government contractor defense.” Citrano, 1 F. Supp. 3d at 469 (internal quotation marks and citation omitted). So, too, here. Wayne and Lofton allege that they supplied under federal direction asbestos paneling that Smith, in turn, believes caused his disease.
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