Hilbert v. Aeroquip, Inc., Civil Action No. 07-10205-NG.

• Decision Date: 12 April 2007
• Docket Number: Civil Action No. 07-10205-NG.
• Citation: 486 F.Supp.2d 135
• Parties: William J. HILBERT, Jr. and Pamela R. Hilbert, Plaintiffs, v. AEROQUIP, INC., et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

486 F.Supp.2d 135

William J. HILBERT, Jr. and Pamela R. Hilbert, Plaintiffs, v. AEROQUIP, INC., et al., Defendants.

Civil Action No. 07-10205-NG.

United States District Court, D. Massachusetts.

April 12, 2007.

COPYRIGHT MATERIAL OMITTED

Erika A. Olson, Michael C. Shepard, The Shepard Law Firm, P.C., Boston, MA, for Plaintiffs.

Sheryl A. Koval, Shepard M. Remis, Marcy D. Smirnoff, Goodwin Procter LLP, Boston, MA, for Defendants.

Robert J. Muldoon, Jr., Sherin & Lodgen, Boston, MA, Lawrence G. Cetrulo, Cetrulo & Capone, LLP, Boston, MA, for Third-Party Plaintiff.

ORDER

GERTNER, District Judge.

I adopt Judge Dein's Report and Recommendation in all its particulars: there is no colorable military contractor defense as Judge Dein found; nor is there a colorable derivative sovereign immunity defense. Finally, there is no basis for staying this order.

REPORT AND RECOMMENDATION ON MOTION FOR REMAND AND MOTION TO STAY

DEIN, United States Magistrate Judge.

I. INTRODUCTION

The plaintiff, William J. Hilbert, Jr., was diagnosed with mesothelioma, a terminal cancer, in August 2005. He contends that his illness was caused by his exposure to asbestos through everyday contact with asbestos-containing aircraft components. Mr. Hilbert and his spouse commenced this action against 29 defendants in the Middlesex Superior Court Department of the Massachusetts Trial Court on December 21, 2006. Northrop Grumman Corporation ("Northrop" or the "defendant") removed the action to this court on February 2, 2007 under 28 U.S.C. § 1442(a)(1) (federal officer or agency removal).

This matter is presently before the court on Plaintiffs' Motion for Remand (Docket No. 3) by which the plaintiffs are seeking to remand the action to state court or, in the alternative, sever the case against Northrop and remand the case against the other defendants. In addition to opposing the remand, Northrop, on March 1, 2007, filed a Motion to Stay (Docket No. 15) requesting that this court stay all proceedings, including consideration of the Motion for Remand, pending transfer of the case by the Panel on Multidistrict Litigation ("MDL") to the asbestos docket in the Eastern District of Pennsylvania. A hearing on these motions was held on March 2, 2007 and, by agreement, briefing was completed by the close of business on March 9, 2007. For the reasons detailed herein, this court recommends that Northrop's supporting affidavit be stricken as it is not based on personal knowledge. Even if the affidavit is considered, this court concludes that the defendant has failed to establish a causal nexus between its actions under asserted federal authority and the plaintiffs' claims, or the existence of a colorable federal defense. Therefore, and after consideration of the pleadings and arguments of counsel, this court recommends to the District Judge to whom this case is assigned that the Plaintiffs' Motion to Remand (Docket No. 3) be ALLOWED and that Northrop's Motion to Stay (Docket No. 15) be DENIED.

II. STATEMENT OF FACTS

Mr. Hilbert was diagnosed in August 2005 with mesothelioma, a terminal cancer. He contends that his condition was caused by his exposure to asbestos-containing aircraft components. Northrop is an aircraft manufacturer. According to his complaint and Disclosure Form, Mr. Hilbert was employed by the United States Navy as an aircraft mechanic from 1955 to 1974 and it was during this employment that he would have been exposed to Northrop's products. Mr. Hilbert's complaint asserts claims of negligence and breach of warranties against all the defendants, including Northrop. The claims against Northrop are limited to claims for failure to warn. Specifically, plaintiffs describe their claims as being "based upon two main premises: (1) the plaintiff William Hilbert was exposed to asbestos from brakes, clamps and gaskets used on Northrop Grumman aircraft, and (2) that Northrop Grumman failed to warn about the health hazards associated with asbestos exposure from these products."¹ Remand Memo (Docket No. 7) at 13.

Basis for Removal

Northrop removed this action to federal court pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1), claiming that "(1) NGC was acting under the direction of a federal officer or agency; (2) NGC has colorable federal defenses arising out of its duties to the federal government; and (3) NGC will demonstrate that there is a causal connection between the acts performed by it under color of federal office and Plaintiffs' allegations in the case at bar." Removal Notice (Docket No. 1) at 9. Specifically, Northrop alleged as follows:²

Plaintiffs base their claims against NGC on alleged exposure to asbestos by William Hilbert while working with "various" products manufactured, sold, or distributed by NGC. On information and belief, to the extent that the design or manufacture of these products included asbestos-containing parts or components, such inclusion was explicitly and directly required by the United States Government in its detailed and precise specifications through and under the direction of the Secretaries of the Departments of Defense and the United States Navy. Any decision regarding asbestos in these products was under the full control and discretion of the United States Government.

Removal Notice ¶ 11. Northrop also contends that it is entitled to federal officer removal "based on the separate and additional federal defense of derivative sovereign immunity" due to the fact that "on information and belief, the acts complained of were performed at the direction of Government officers acting pursuant to Government authorization and if the Government had performed these acts directly, it would be immune from suit." Id. at ¶ 15.

In opposition to the Remand Motion, Northrop has submitted the Affidavit of John F. DeBois (Docket No. 13-2). Plaintiffs have moved to strike this affidavit as not being based on personal knowledge. This court agrees, and recommends that the affidavit be stricken.

Mr. DeBois is currently the Director of Contracts and Pricing for the Airborne Early Warning and Electronic Warfare Systems business of Northrop's Integrated Systems Sector. DeBois Aff ¶ 1. He began his employment with Grumman Aircraft Corporation over 30 years ago and joined Northrop when the companies merged. Id. In his work with Grumman and Northrop he oversaw government contracts to provide military aircraft and required parts. Id. ¶ 2. In describing the basis for his personal knowledge, Mr. DeBois attested:

[In light of my positions] I have personal knowledge of the current and historical procedures relating to contracts with the United States government as well as the terms typically included in such contracts and access to the related records of Grumman and Northrop Grumman Corporation (collectively, "Northrop") and its subsidiaries.

Id. ¶ 3. Although his employment with Grumman and Northrop post-dated the period at issue in this case, Mr. DeBois does not indicate whether he actually reviewed contracts from the relevant period or spoke with anyone with personal knowledge. Nor does he otherwise describe any particular steps that he took in order to obtain knowledge regarding the contents of government contracts in effect during the time period from 1955 to 1974 when Mr. Hilbert was working for the Navy.

Much of Mr. DeBois' affidavit is directed to the Navy's involvement in the design of the aircraft manufactured and supplied by Northrop. See, e.g., id. ¶¶ 5-15. As he summarized the status of such work:

In short, in accordance with contract requirements, the U.S. Navy was directly and intimately involved with development and controlled the design of every aspect of the aircraft, including without limitation the types of materials used in the aircraft and their component parts. U.S. Navy representatives closely monitored Northrop's work at every step in the design process and U.S. Navy evaluation and approval had to occur at every step. Northrop had little or no leeway in determining the required design of the aircraft, including the required materials for the component parts and their painting and marking.

Id. ¶ 14. With respect to warnings, Mr. DeBois attested as follows:

16. In addition, the U.S. Navy had ultimate control over warnings affixed to the Northrop aircraft used by the U.S. Navy, as well as written materials accompanying Northrop aircraft used by the U.S. Navy during this time period.

17. The U.S. Navy had precise specifications as to the nature of any information that was to be affixed to equipment supplied to it by Northrop. Under the U.S. Navy's specifications and procedures, as well as under actual U.S. Navy practice as it evolved in the field, Northrop would not have been permitted to affix any type of warning or caution to a piece of equipment, beyond those expressly specified by the U.S. Navy.

18. The U.S. Navy also had precis specifications as to the nature and con tents of all written materials. These materials included safety and hazard in formation only to the extent directed by the U.S. Navy.

19. Northrop took no action with regard to maintenance manuals provided to U.S. Navy aircraft mechanics, other than under contract with the government and in conformity with government specifications.

20. The U.S. Navy maintained control over the contents of any manuals and made revisions to the contents without the consultation or knowledge of Northrop.

21. U.S. Navy personnel, including users of any manuals, contributed the majority of expertise into the proposed changes to the manuals.

The plaintiffs contend that this affidavit cannot be based on Mr. DeBois' personal knowledge because the language used is identical to the language used in an affidavit of David Hobson, which was submitted by General Electric Co. in the case of Nesbiet v. General Electric Co., 399 F.Supp.2d 205, 207 (S.D.N.Y.2005). Moreover, the plaintiffs note, the Nesbiet court concluded that the affidavit was...