In both of the following cases, the federal court remanded the actions back to state court. In the first action, the plaintiffs, the adult children of the decedent, alleged their father was exposed to asbestos while serving in the Navy as a boiler technician from 1960 to 1988. Several defendants moved to remove the case to federal court at the same time that the plaintiffs moved to amend their complaint, seeking to disclaim any claim regarding design-defect or strict-liability where defendants’ actions were compelled by, or at the direction, of a federal officer.
The court did not agree with the defendants’ argument that the plaintiffs’ disclaimer was ineffective because it was not in the petition at the time of removal. The court relied on the decision in Sheppard v. Northrop Grumman Systems Corp., 07-2208, 2007 WL 1550992 (E.D. La. May 24, 2007) in holding: “Just as in Sheppard, Plaintiffs here sought to add the disclaimer in state court prior to removal, as well as later in federal court. All parties, therefore, were on notice at the time of removal that Plaintiffs were asserting the disclaimer of the strict-liability and design-defect causes of action. Effectively, then, at the time of removal, the complaint must be read as incorporating the disclaimer. Indeed, Plaintiffs are the master of their own complaint. As explained herein, Defendants cannot ignore the disclaimer here when asserting a jurisdictional basis for removal. Therefore, Defendants cannot remove based on Plaintiffs’ disclaimed strict-liability and design-defect claims.”
The court also looked at the plaintiffs’ failure to warn claim and the defendants’ argument that the Navy prohibited defendants from providing asbestos warnings, and held: “This evidence is speculative, at best, as to the Navy’s prohibition of asbestos warnings. Although Defendants assert that the Navy would have prohibited warnings, it had not demonstrated that the Navy actually did prohibit warnings. Stated differently, nothing about the Navy’s oversight prevented the Defendants from complying with any state law duty to warn. Thus, there is no conflict between federal policy and state law. See Kestetter v. Pacific Scientific Co., 210 F.3d 431, 438 (5th Cir. 2000) (explaining that a central purpose of the Federal Officer Removal Statute is to protect against a conflict between state law and federal law). Therefore, Defendants have not met their burden to show that a federal officer prohibited them from complying with their duty to warn under state tort law.”
Read the full decision here.
In the second case, the plaintiff brought an action claiming that her mesothelioma was a result of her laundering the work clothes of her father, two brothers, and husband, all of whom worked at the Avondale shipyard. The defendant, Avondale, removed the action under the Federal Officer Removal Statute 28 U.S.C. 1442(a), based on the fact that Avondale built two vessels for the U.S. Marine Commission during 1943-45, the same time that the plaintiff’s father worked at the yard. Avondale claimed the federal court had jurisdiction under the statute because the plaintiff asserted claims based on Avondale’s “‘mere use and installation of asbestos,’ and the ‘use and installation of asbestos-containing products to those vessels was done pursuant to orders from the United States Marine Commission.’” Avondale also claimed that the U.S. government promulgated specific safety rules, regulations, and requirements for ship building.
The court remanded the case, finding: “Plaintiff’s claims do not hinge on the fact that Avondale possessed asbestos, as the mere possession of asbestos did not allegedly cause Plaintiff’s injury, but Plaintiff rather claims that Avondale’s failure to properly handle the asbestos material caused her injury. In other words, Avondale’s failure to use the asbestos safely, and not the mere use of asbestos, gives rise to Plaintiff’s claims. This distinction, as highlighted by this Court in Granier and the Savoie court, takes the claims out of strict liability and renders them claims based on negligence. Since these claims center on how Avondale chose to handle the asbestos, the evidence put forth by Avondale fails to satisfy the causal nexus requirement for these theories of liability. It is evident that the U.S. Navy mandated the materials used in constructing the vessels, and Avondale asserts that the federal government owned the Facilities. Nevertheless, Avondale fails to present the Court with evidence that the Navy mandated how Avondale handle these materials. Avondale’s supplemental opposition in which it emphasizes the Federal Government’s alleged ownership of the Facilities does not substantiate any claim of government control over Avondale’s use of asbestos” (citations omitted).
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