Hagen v. Benjamin Foster Co.

Decision Date24 September 2010
Docket NumberCivil Action No. 07-63346,MDL No. 875
Citation739 F.Supp.2d 770
PartiesDonna L. HAGEN, Individually and as Executrix of the Estate of Malcolm Hagen, Plaintiff, v. BENJAMIN FOSTER CO., et al., Defendants.
CourtU.S. District Court — Eastern District of Pennsylvania

Michael J. Zukowski, K & L Gates, Pittsburgh, PA, Christopher J. Keale, Sedgwick Detert Moran & Arnold LLP, Michael Alan Tanenbaum, Sedgwick Detert Moran & Arnold Esqs., Gina Calabria, Joseph A. Gallo, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Newark, NJ, Edward Michael Keating, III, Hollstein Keating Cattell Johnson & Goldstein P.C., Brady L. Green, Morgan, Lewis & Bockius, Charles F. Forer, Eckert Seamans Cherin & Mellott LLC, Daniel J. Ryan, Jr., Joshua D. Scheets, Joan P. Depfer, Marshall, Dennehey, Warner, Coleman & Goggin, P.C., Barbara K. Gotthelf, McCarter & English, Theresa M. Mullaney, Kent & McBride PC, Frank C.B. Friestedt, Joshua H. Beisler, McGivney & Kluger, P.C., Tracey M. McDevitt, Reilly, Janiczek & McDevitt, P.C., Philadelphia, PA, Lisa M. Pascarella, Pehlivanian Braaten & Pascarella, Manasquan, NJ, John J. Fanning, Raghu N. Bandlamudi, Cullen and Dykman Bleakley Platt LLP, Brooklyn, NY, for Defendants.


EDUARDO C. ROBRENO, District Judge.

A. Plaintiff's Suit 772
B. Defendants' Removal and Plaintiff's Motion to Remand 773
1. Affidavit of J. Thomas Schroppe 774
2. Affidavit of David Hobson 774
3. Affidavit of Admiral Ben J. Lehman 774
4. Affidavit of Admiral Roger B. Horne 775
5. Affidavit of Captain Lawrence Stilwell Betts 775
A. The Colorable Federal Defense Requirement 778
1. Legal Standard 778
i. Supreme Court Decisions 778
ii. Lower Court Decisions 779
iii. Standard to be Applied 781
2. Application 783
i. Elements of the Government Contractor Defense 783
ii. Applying the Defense to Defendants' Facts 783
B. The Acting Under Requirement 784
C. The Causal Nexus Requirement 785


Donna L. Hagen, individually and as executrix of the estate of Malcolm Hagen ("Plaintiff"), has moved to remand this action—which is consolidated as part of the MDL-875 asbestos products liability litigation—to New Jersey state court. Plaintiff argues the Court should remand due to lack of subject matter jurisdiction. Defendants Foster Wheeler Corporation and General Electric Company (collectively, "Defendants") filed timely responses in opposition to Plaintiff's motion.

Since MDL-875 was certified by the Judicial Panel on Multidistrict Litigation (the "Panel") in 1991, thousands of individual plaintiffs have had their cases consolidated in the Eastern District of Pennsylvania for coordinated pretrial proceedings.1 A common path to consolidation in MDL-875 is removal by one or more defendants to an appropriate federal district court, followed by transfer by the Panel to the Eastern District of Pennsylvania. In many of the MDL-875 cases, the jurisdictional basis for removal is the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which allows a defendant to remove a suit to federal court following a preliminary showing of a federal defense. This memorandum evaluates the contours of the showing required by Section 1442(a)(1) and concludes Defendants have sufficiently established the jurisdictional predicate to avail themselves of this forum. Thus, for the reasons set forth below, Plaintiff's motion to remand will be denied.

A. Plaintiff's Suit

Malcolm Hagen ("Hagen") was exposed to asbestos while working as an outsidemachinist in close proximity to asbestos-containing machinery and insulation aboard the U.S.S. Kitty Hawk. Hagen's responsibilities included assisting mechanics as they installed and repaired machinery aboard ships at the shipyard. Hagen worked in this capacity from 1958-1961. Plaintiff alleges that, on or around February 7, 2006, Hagen was diagnosed with mesothelioma allegedly caused by exposure to asbestos while aboard the U.S.S. Kitty Hawk.

Plaintiff filed suit on July 11, 2006 in the Superior Court of New Jersey, Middlesex County, alleging products liability claims for failure to warn against thirteen named defendants and fifty unnamed defendants. Specifically, each defendant manufacturer is alleged to have carelessly or negligently processed, manufactured, packaged, distributed, delivered and sold asbestos products without warnings.2 (Compl. ¶ 8.) Plaintiff further alleges that this failure to warn was the actual and proximate cause of Hagen's mesothelioma. ( Id. ¶ 9.) On May 28, 2008, Hagen died of mesothelioma. Donna Hagen, who was already a named plaintiff in the suit, was named executrix of Hagen's estate and substituted as plaintiff in Hagen's stead.

B. Defendants' Removal and Plaintiff's Motion to Remand

On October 12, 2006, Defendants removed this case to federal court under 28 U.S.C. § 1442(a)(1). As explained below, removal under Section 1442(a)(1) is only appropriate where, amongst other things, a so-called "colorable" federal defense is raised. Plaintiff, arguing removal under Section 1442(a)(1) was improper based on this standard, filed a motion to remand to state court on October 19, 2006. Before Plaintiff's motion was ruled upon, Plaintiff's case was transferred to the Eastern District of Pennsylvania and consolidated under MDL-875. Upon transfer, Plaintiff's motion was denied without prejudice. ( See doc. no. 2.) On June 10, 2009, Plaintiff renewed her motion to remand before this Court. ( See doc. no. 41.)

Defendants oppose Plaintiff's motion and submit several affidavits in opposition.3 Specifically, Defendants contend these affidavits establish the subject matter jurisdiction predicate under Section 1442(a)(1) insofar as they entitle Defendants to the "government contractor defense" set forth in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). Thus, the affidavits all make the same basic point: that Plaintiff's failure to warn claim against Defendants relates to the government's control over the allegedly tortious product's design. These affidavits—namely, those of (1) J. Thomas Schroppe; (2) David Hobson; (3) Admiral Ben J. Lehman; (4) Admiral Roger B. Horne, Jr.; 4 and (5) Captain Lawrence Stilwell Betts—are discussed in turn.5

1. Affidavit of J. Thomas Schroppe

J. Thomas Schroppe ("Schroppe") is a former employee of Foster Wheeler Corporation ("Foster") who began his career at Foster as a proposal engineer in the marine department and ultimately became President of Foster. (Schroppe Aff. ¶ 1.) Over the course of his employment, Schroppe avers that he became "personally familiar with the degree of supervision and control exercised by the Navy and its agencies in procurement contracts with Foster." ( Id. ¶ 2.) According to Schroppe, the control exercised required Foster to comply with precise ship specifications for each individual project, as well as military specifications. ( Id. ¶¶ 5, 6.) These specifications covered all specific components of boilers built for use by the Navy. ( Id.)

Schroppe further avers that Foster was obliged to provide technical manuals relating to the operation of naval boilers which included safety information. ( Id. ¶ 21.) According to Schroppe, the Navy exercised "intense direction and control" over the documents and "participated intimately in the preparation of this kind of information and exercised ... control over its contents." ( Id.) Further, Schroppe represents that "the Navy had precise specifications, practices and procedures that governed the content of any communication affixed to machinery supplied by Foster Wheeler to the Navy" which would not permit Foster to include "any type of warning or caution statement to a piece of equipment intended for installation onto a Navy vessel." ( Id. ¶ 22.)

2. Affidavit of David Hobson

David Hobson ("Hobson") is a former employee of General Electric Company ("GE") who joined GE in 1969 and worked there until his retirement in 1996. (Hobson Aff. ¶ 1.) During his tenure, he worked as the manager of Navy customer service for GE's Navy and small steam turbine business. ( Id. ¶ 1.) In this capacity, Hobson had "frequent and extensive business dealings" with the Navy regarding the Navy's purchase and use of marine steam turbines. ( Id. ¶ 3.) According to Hobson, all such turbines were supplied to the Navy pursuant to a contract with the Navy Sea Systems Command ("NSSC") whereby NSSC's officers supervised and specified the requirements for "[a]ll aspects of the design, performance requirements and materials used for construction." ( Id.¶¶ 6, 7.)

Hobson states that any thermal insulation materials, whether or not containing asbestos, were applied to GE products after they were turned over to the Navy, and were supplied or installed by entities other than GE. ( Id. ¶ 7.) Further, each turbine manufactured by GE was specifically and uniquely manufactured for the vessel or class of vessels which that contract pertained to. ( Id. ¶ 10.) And, ultimately, the Navy exercised complete oversight over both the manufacture and safety testing phases of the process. ( Id. ¶ 13-14.)

3. Affidavit of Admiral Ben J. Lehman

Admiral Ben J. Lehman ("Admiral Lehman") is a retired Rear Admiral of the United States Navy. (Lehman Aff. ¶ 1.) Admiral Lehman details the level of control that the Navy asserted over all aspects of the equipment that was supplied pursuant to government contracts. ( Id. ¶ 2.) He corroborates Hobson and Schroppe's averments, emphasizing the importance of adhering to government directives. ( See id. ¶ 6 ("I can attest that the military specifications for boilers and other equipment intended for use on vessels of the U.S. Navy ... were drafted,approved, and maintained by the U.S. Navy ... to encompass all aspects of shipboard equipment, including the material requirements.").)

In fact, Admiral Lehman states that "[m]ilitary specifications governed every significant characteristic of the equipment used on the U.S. Navy ships,...

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