After the plaintiff commenced an action alleging asbestos exposure in connection with Air Force aircraft engines, the defendants removed the action to federal court under 28 U.S.C. 1442(a)(1), which permits removal “by federal officers or any persons acting under a federal officer for any act under color of such office where such person asserts a colorable defense.” The plaintiff moved to remand the case, claiming the defendants could not establish a colorable defense in accordance with the U.S. Supreme Court decision in Boyle, which requires “a government contractor defendant to establish three required elements for a colorable defense on a use-of-asbestos claim — namely, (1) that the United States approved reasonably precise specifications, (2) that the equipment conformed to those specifications, and (3) that the supplier warned the United States about the dangers in the use of the product that were known to the supplier but not known to the United States.”
To satisfy the first element, the defendants submitted “a Declaration of Allan J. Shiffler, a retired engineer who worked in the development and manufacture of Pratt & Whitney engines for the United States military. Shiffler details his familiarity with these engines and the manner in which these engines were designed, built and supplied to the military as well as the system for submission and approval by the military.”
To satisfy the second element, “Shiffler’s affidavit states that any engines that did not meet the Air Force’s standards and specifications were rejected by the Air Force.”
To satisfy the third element, the defendants submitted an affidavit of industrial hygienist Donna Ringo, who stated “there have never been any published articles suggesting that aircraft mechanics or persons working in the vicinity of aircraft mechanics are at an increased risk of asbestos-related disease from work on aircraft engines, nor are they epidemiological studies suggesting an increased risk.” Ringo also stated “that there is no reason to suspect that a manufacturer or designer of aircraft engines would have considered that asbestos-containing materials presented a health hazard to employees working on aircraft engines.” Based on this proof, the district court concluded that the defendants met their burden and refused to remand the case.
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