Gordon v. Air & Liquid Sys. Corp.

• Decision Date: 06 January 2014
• Docket Number: No. 13–CV–969 (JFB).,13–CV–969 (JFB).
• Citation: 990 F.Supp.2d 311
• Court: U.S. District Court — Eastern District of New York
• Parties: Laura GORDON, Individually and as Personal Representative of the Estate of James Gordon, Plaintiff, v. AIR & LIQUID SYSTEMS CORP., a/k/a Buffalo Pumps, Inc., CBS Corp., f/k/a Viacom, Inc., Successor by merger to CBS Corp. f/k/a Westinghouse Electric Corp., Foster Wheeler Energy Corp., General Electric Co., et al., Defendants.

990 F.Supp.2d 311

Laura GORDON, Individually and as Personal Representative of the Estate of James Gordon, Plaintiff,

v.AIR & LIQUID SYSTEMS CORP., a/k/a Buffalo Pumps, Inc., CBS Corp., f/k/a Viacom, Inc., Successor by merger to CBS Corp. f/k/a Westinghouse Electric Corp., Foster Wheeler Energy Corp., General Electric Co., et al., Defendants.

No. 13–CV–969 (JFB).

United States District Court, E.D. New York.

Jan. 6, 2014.

Kardon Aaron Stolzman, Napoli Bern Ripka Shkolnik LLP, New York, NY, for Plaintiff.

John Samuel Howarth, Wilbraham, Lawler & Buba, Philadelphia, PA, Michael A. Tanenbaum, Matthew R. Straus, Sedgwick, LLP, Newark, NJ, Theodore Michael Eder, Segal McCambridge Singer & Mahoney, Angela Digiglio, Nicole M. Kozin, K & L Gates LLP, Jason T. Cohen, Grant Alan Shehigian, Flemming, Zulack Williamson Zauderer LLP, New York, NY, for Defendants.

MEMORANDUM AND ORDER

JOSEPH F. BIANCO, District Judge:

On December 26, 2012, plaintiff Laura Gordon (“plaintiff”), individually and as personal representative of James Gordon, filed this action in the Supreme Court of the State of New York, County of Nassau. The complaint alleges that Mr. Gordon developed lung cancer as a result of his exposure to asbestos-containing products manufactured and supplied by several entities, including the defendants. Plaintiff seeks damages for defendants' defective products and their failure to warn under state law negligence and strict liability theories. On February 22, 2013, defendants CBS Corp., Foster Wheeler Energy Corp., and General Electric Co. filed their Notice of Removal, asserting that this Court has subject matter jurisdiction, pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which provides, in part, for removal of civil actions against private parties acting under federal officers.¹ Defendants assert that such removal is warranted because defendants were acting under an officer or agency of the United States when they manufactured equipment for the USS Cadmus and USS Detroit.

Plaintiff moves to remand this action to the Supreme Court of the State of New York, County of Nassau, where it was initiated. In her remand motion, plaintiff argues that defendants are not entitled to federal officer removal because they cannot raise a colorable federal defense. As set forth below, based upon the current record, the Court concludes that defendants have met the requirements of the federal officer removal statute, including the assertion of a colorable federal defense, and thus the action was removable to federal court. Accordingly, plaintiff's motion to remand is denied.

I. Background

A. Factual Background

According to the complaint, plaintiff's father was exposed to asbestos aboard various ships during a twenty-year career in the U.S. Navy.² Those ships contained turbines and steam generators (“products”) that defendants manufactured and supplied to the Navy.

In 2010, plaintiff's father died of lung cancer, which plaintiff contends was the result of his breathing asbestos dust and fibers while working near defendants' products on Navy ships. Plaintiff's legal theory is that defendants were negligent in the design and manufacture of, and failure to warn about, their products.

B. Defendants' Removal

Defendants removed this action under 28 U.S.C. § 1442(a)(1), the federal officer removal statute. Federal officer removal has three requirements, one of which is the central focus of the parties here: whether defendants have raised a “colorable” federal defense. Defendants argue that their colorable federal defense is the government contractor defense as set forth in Boyle v. United Techs. Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). That defense extends immunity to certain contractors performing discretionary functions for the federal government.

To prove that they performed a discretionary function under the direction of federal officers, defendants have submitted affidavits from engineers who are knowledgeable about the design and manufacture of the products at issue, and the Navy's specifications for them. They have also submitted affidavits from physicians knowledgeable about asbestos. The affidavits generally state that the Navy had precise specifications for the products it included in the construction of its ships, and subjected those products to a rigorous approval process. Defendants were not permitted to include asbestos warnings, even though the Navy possessed extensive knowledge about the health risks and effects of exposure to asbestos. Two of the physicians' affidavits conclude that the Navy knew more about asbestos than defendants.

Plaintiff's motion to remand is based largely on her evidentiary objections to the affidavits. She argues that they contain hearsay and speculation, and should be given little weight. Moreover, plaintiff also relies on the declaration of William Lowell, who, based upon his Navy and merchant seaman background, opined that the military specifications at issue “demonstrate that the Navy did not discourage or prohibit equipment manufacturers from warning about hazards associated with the foreseeable use of their equipment.” (Declaration of William Lowell, at ¶ 12.)

C. The MDL Decision

These affidavits appear to be the same as those submitted in similar lawsuits around the country, in which plaintiffs have leveled the same evidentiary criticisms. Many of these cases were consolidated in MDL–875 in the Eastern District of Pennsylvania, and certain decisions of that court have been highlighted by the Judicial Panel on Multidistrict Litigation as useful examples for courts to follow in future asbestos cases. In re Asbestos Prods. Liab. Litig. (No. VI), 830 F.Supp.2d 1377, 1379 n. 5 (J.P.M.L.2011). One of those opinions, authored by Judge Robreno, decided a remand motion involving the same experts' affidavits submitted in this case. See Hagen v. Benjamin Foster Co., 739 F.Supp.2d 770 (E.D.Pa.2010). That court denied the motion because the plaintiff's evidentiary arguments, though potentially valid at a later stage of trial, were inconsistent with the Supreme Court's “expansive interpretation” of Section 1442 as a statute encouraging removal. Id. at 778–79.

II. Discussion

The Court finds Hagen persuasive, and after independently analyzing plaintiff's motion for remand in this case, likewise concludes that defendants have satisfied the requirements of the federal officer removal statute.

A. Evidentiary Objections

As a threshold matter, plaintiff objects to the evidentiary submissions by defendants as “nothing more than speculative and hearsay assertions that the government had reasonably precise specifications about the use of the materials found in Defendants' equipment.” (Pl. Mem. at 6.) However, the Court concludes that the affidavits submitted by defendants can be considered by the Court for purposes of determining whether removal is warranted. The affidavits set forth the basis for the statements that each affiant offers with respect to the Navy's control over equipment manufactured by Foster Wheeler and GE for the Navy, and the Court concludes that such affidavits are admissible for purposes of the remand motion. Plaintiff's generalized objections, although characterized as evidentiary in nature, relate solely to the weight that the evidence should be given, not to its admissibility. Thus, any objection to the admissibility of these affidavits for purposes of the remand motion is denied. See, e.g., Leite v. Crane Co., 868 F.Supp.2d 1023, 1036–37 (D.Haw.2012) ( “These experts' extensive experiences in the Navy provide the basis and foundation for their opinions regarding what the Navy would, or would not, have allowed as to asbestos warnings, and take this testimony outside the realm of unsupported speculation. And such testimony is certainly helpful in determining whether Defendants have established a colorable federal defense, and in particular whether the government exercised its discretion in determining the warnings to provide.”)

B. Federal Officer Removal

Pursuant to the federal officer removal provision set forth in Section 1442(a)(1), a case may be removed from state to federal court when the case is brought against “[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such officer.” 28 U.S.C. § 1442(a)(1).

As a general matter, “the defendant bears the burden of demonstrating the propriety of removal.” Grimo v. Blue Cross/Blue Shield of Vt., 34 F.3d 148, 151 (2d Cir.1994). Plaintiff characterizes that burden as “heavy” (Pl. Mem. at 1), but in doing so she misses the distinction between the general removal statutes, which are to be strictly construed, and federal-officer removal, which “should not be frustrated by a narrow, grudging interpretation.” Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969).

The federal officer removal statute must be construed broadly because “one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court.” Id. Thus, at this phase of trial, “we are concerned with who makes the ultimate determination, not what that determination will be.” Ruppel v. CBS Corp., 701 F.3d 1176, 1182 (7th Cir.2012). A federal officer, or his agent, “need not win his case before he can have it removed.” Willingham, 395 U.S. at 407, 89 S.Ct. 1813. As the Court in Hagen explained, and this Court agrees:

While the Court must require that the facts identified by the defendant support the federal defense, the Court is not called upon at this preliminary stage to pierce the pleadings or dissect the facts stated. Nor is it the Court's function at this stage to determine credibility, weigh the quantum of evidence or discredit the source of the defense.... It is the sufficiency of...