Hilbert v. McDonnell Douglas Corp.

• Decision Date: 03 January 2008
• Docket Number: Civil Action No. 07CV11900-NG.
• Citation: 529 F.Supp.2d 187
• Parties: William J. HILBERT, et al., Plaintiffs, v. McDONNELL DOUGLAS CORP., et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

529 F.Supp.2d 187

William J. HILBERT, et al., Plaintiffs, v. McDONNELL DOUGLAS CORP., et al., Defendants.

Civil Action No. 07CV11900-NG.

United States District Court, D. Massachusetts.

January 3, 2008.

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Erika A. Olson, Michael C. Shepard, Shepherd Law Group P.C., Boston, MA, for Plaintiffs.

James Pettis, Robert E. Boone, III, Bryan Cave LLP, Santa Monica, CA, Katy Ellen Koski, Robert J. Muldoon, Jr., Sherin & Lodgen LLP, Marcy D. Smirnoff, Goodwin Procter LLP, Shepard M. Remis, Sheryl A. Koval, Goodwin Procter, LLP, Brian D. Gross, Cooley, Manion & Jones, PC, Michael R. Brown, Seyfarth Shaw, LLP, Boston, MA, L. Michael Brooks, Wells, Anderson & Race, Denver, CO, for Defendants.

ORDER ON MOTION TO REMAND

NANCY GERTNER, District Judge.

William J. Hilbert ("Hilbert") and his wife, Pamela, brought, a civil action for damages in state court, stemming from Hilbert's contraction of a fatal, asbestosrelated disease, namely mesotheliotha. The defendants, Hilbert alleges, failed to warn him about the hazards of asbestos exposure, while he was working on military aircraft over a twenty-year period. Although the state action was brought in early 2007, state discovery is underway. The plaintiffs represent that because Hilbert is gravely ill, their motion for an expedited trial date has been granted. The matter is on track for a trial in the spring of 2008.

Certain of the defendants seek to remove the case to federal court based on what has come to be known as the "federal contractor defense." Arid once in federal court, the defendants will seek even further "removal" in a sense: a transfer to the Panel on Multidistrict Litigation ("MDL"), and specifically the asbestos docket in the Eastern District of Pennsylvania, where the matter will likely be substantially delayed.

This is the second time defendants have tried to remove this case from state court. The first effort, on February 2, 2007, was unsuccessful; Magistrate Judge Dein held a hearing and issued a lengthy decision recommending remand, which I adopted. The case was returned to state court on April 13, 2007. See Order Granting Motion to Remand, Hilbert v. Aeroquip, Inc., No. 07-CV-10205-NG (Apr. 13, 2007), opinion at 486 F.Supp.2d. 135 (D.Mass. 2007).

Six months later, on October 5, 2007, the defendants tried again to effect removal. On October 15, the plaintiffs countered with a Motion to Remand (document # 11); five defendants have opposed the remand. As to those defendants who did not oppose remand, their cases were severed and returned to state court. See Order re: Severance (document # 41). On November 1, 2007, this Court held a hearing on the Motion to Remand and took the matter under advisement.

The defendants base removal on the "federal contractor defense." The argument is straightforward: The federal officer removal statute, 28 U.S.C. § 1442(a)(1),¹ grants officers of the federal government the right to remove civil and criminal actions brought against them in state court on account of their official acts. In Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989), the Supreme Court construed the statute to permit removal by federal employees who were charged with state criminal offenses (deriving from traffic offenses while they were on duty) so long as they alleged a colorable federal defense.

This body of law was applied to private contractors working for the federal government, so defendants argue, in Boyle v. United Technologies Corp., 487 U.S. 500, 511-12, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). In Boyle, a diversity action, the plaintiffs estate alleged that a design defect in a helicopter manufactured by the defendant caused the plaintiffs death. The Court held that private military contractors could claim protection against state tort law liability for injury caused by the products they manufactured according to the federal government's explicit specifications. While the Court acknowledged the state's interests in adjudicating state tort law, the unique federal interests implicated in Boyle displaced that law.

Taken together; Boyle and Mesa, according to the defendants, permit private military contractors to stand in the shoes of federal officers who are sued in state court, allege a colorable "federal contractor defense," and in so doing, remove the action to federal court (and thereafter to the MDL docket). A number of courts around the country have recognized the Boyle federal contractor defense as a substantive rule of law permitting removal under § 1442(a)(1). See, e.g., Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1250-51 (9th Cir.2006); Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir.1998); Machnik v. Buffalo Pumps, Inc., 506 F.Supp.2d 99, 102-03 (D.Conn.2007); In re Agent Orange Product Liability Litig., 304 F.Supp.2d 442, 446-51 (E.D.N.Y.2004); Good v. Armstrong World Indus., Inc., 914 F.Supp. 1125, 1127-28 (E.D.Pa.1996).² Boyle itself, however, emphasized that federal common law does not lightly displace state law. 487 U.S. at 518, 108 S.Ct. 2510. An overly generous interpretation of the Mesa criteria would do just that by permitting private, non-diverse defendants to remove to federal court merely because of their status as government contractors.³ Regardless, this Court need not resolve the precise interaction between Mesa and Boyle. Even under the Mesa "colorable defense" standard, and even assuming that the design defect cases like Boyle apply to a failure to warn case, the defendants' removal does not succeed. While they have provided this Court with more information than in the earlier removal efforts, their conclusory affidavits are not sufficient to demonstrate a colorable federal defense. The Motion to Remand (document # 11) is GRANTED.

I. PROCEDURAL HISTORY

Plaintiff William Hilbert was employed as an aircraft mechanic in the United States Navy from 1955 to 1974, working closely with aircraft and aircraft components, including brakes. See Pl. Disclosure Form at 5, Exh. "E" to Pl. Mot. for Remand (document # 11). During that time, Hilbert was allegedly exposed to asbestos and inhaled it; he claims it is the cause of his mesothelioma. Compl. at 9, Exh. "A" to Notice of Removal (document # 1).

Hilbert now sues a number of manufacturers of aircraft components, as well as contractors who were responsible for the aircraft's assembly and upkeep. He alleges two theories of liability. The first is simple negligence related to the defendants' failure to warn him of the dangers of handling asbestos without proper protection. Id. at 10-12. The second is a strict liability theory, breach of warranty, also based on failure to warn. Id. at 12-13. His wife, Pamela Hilbert, also sues, alleging loss of consortium. Id. at 23. Her allegations are based on the same theories as are her husband's. See id. Collectively, William and Pamela Hilbert will be referred to as "plaintiffs" or "Hilbert."

All of the defendants—29 in Hilbert's original complaint—were served with process on or about January 5, 2007. Notice of Removal at 2 (document # 1). On February 2, 2007, Northrop Grumman Corp. ("Northrop Grumman") filed a notice of removal pursuant to 28 U.S.C. § 1442(a)(1), invoking the jurisdiction of the Court over federal officers. See Docket No. 07-CV-10205-NG. Although the other defendants were aware of the action, they declined to join Northrop Grumman in the removal. The plaintiffs moved to remand to state court. See Motion to Remand (Docket No. 07-CV-10205-NG, document # 3). The Court referred the case for pretrial proceedings to Magistrate Judge Dein.

On March 2, 2007, Magistrate Dein held a hearing on the Motion to Remand. In a lengthy and well-reasoned decision, she recommended to the Court that the Motion to Remand be granted. She concluded that nothing in the defendant Northrop Grumman's presentation was sufficient to meet even a colorable federal contractor defense. Hilbert v. Aeroquip, 486 F.Supp.2d at 148-49. On April 13, 2007, the Court adopted the Report and Recommendation and granted the Motion.

The case proceeded in state court for several months. The plaintiffs filed a motion for an expedited state trial date. At the November 1, 2007, hearing before this Court, the plaintiffs represented that a trial date had been set in state court for May 2008. As part of the state court discovery, William Hilbert was deposed over several days—September 10-12, 2007. In advance of the deposition, on September 7, the plaintiffs provided a list of aircraft Hilbert had serviced while a mechanic for the Navy. See List of Hilbert Aircraft, Exh. "E" to Notice of Removal (document # 1).

That list provided the impetus for a second removal, this one by defendants McDonnell Douglas Corporation, The Boeing Company, and Boeing North American, Inc. (collectively, "McDonnell Douglas") on October 5, 2007. See Notice of Removal (document # 1). They cited 28 U.S.C. § 1442(a)(1) as the basis for removal, as had Northrup Grumman, but claim to have greater factual support. Northrop Grumman also attempted to remove the action on the same day as McDonnell Douglas but, because McDonnell Douglas' removal had already taken effect, Northrop Grumman's removal was, deemed unnecessary. Northrup Grumman then filed a "Notice of Joinder" to assert its federal rights, as did defendant Raytheon Aircraft Company ("Raytheon") See Notice of Joinder (document # 10), Notice of Joinder (document # 14). Collectively, these defendants are referred to as "the removing defendants."

In addition, McDonnell Douglas filed a Notice of Tag-Along Action with the Judicial Panel on Multidistrict Litigation (document # 6). If the case is deemed a "tagalong action," involving questions of fact common to other asbestos personal injury cases ordered transferred to the Judicial Panel pursuant to 28 U.S.C. § 1407, the case will be transferred for coordinated pretrial proceedings. No transfer order has...