Holdren v. Buffalo Pumps, Inc., Civil Action No. 08cv10570-NG.

Citation614 F.Supp.2d 129
Decision Date04 May 2009
Docket NumberCivil Action No. 08cv10570-NG.
PartiesFranklin D. HOLDREN, et al., Plaintiffs, v. BUFFALO PUMPS, INC., et al., Defendants.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

Brian P. Barrow, Simon, Eddins & Greenstone, LLP, Long Beach, CA, Christopher P. Duffy, David W. Fanikos, Edward P. Coady, Coady & Associates Boston, MA, Jonathan A. George, Simon, Eddins & Greenstone, LLP, Richmond, VA, for Plaintiffs.

Marianne E. Brown, David M. Governo, Bryna Rosen Misiura, Michael D. Simons, Governo Law Firm LLC, Lynda R. Jensen, Peter C. Netburn, Hermes, Netburn, O'Connor & Spearing, April M. Luna, Katharine S. Perry, Adler, Pollock & Sheehan PC, Daniel P. McCarthy, Cooley, Manion, & Jones, LLP, Boston, MA, Mark 0. Denehy, Adler Pollock & Sheehan PC, Providence, RI, for Defendants.

MEMORANDUM AND ORDER RE: MOTION TO REMAND

NANCY GERTNER, District Judge.

I. INTRODUCTION

The plaintiffs in this product-liability lawsuit have brought claims against a number of manufacturers for their failure to warn of the dangers of asbestos associated with their products. Defendants include both commercial manufacturers, who produced goods for the general market, and a smaller subset of companies who contracted with the United States Navy ("the Navy") to supply pumps, oil heaters, and other equipment. See, e.g., Notice of Removal ¶ 5 (document # 1). This Memorandum Re: Motion to Remand concerns the second set of defendants who produced machinery for Navy ships from 1957 to 1979. Although the failure-to-warn claims against both sets of defendants are all but identical, the latter group has sought the protections of a federal forum. If they failed to warn about asbestos hazards in violation of Massachusetts law, they claim it was because they were acting at the behest of the Navy. On this basis, these manufacturers argue that they are entitled to the "federal contractor defense" and, consequently, to removal under the federal officer removal statute. 28 U.S.C. § 1442(a)(1); see Notice of Removal.

In reply, the plaintiffs have filed a Motion to Remand the case to state court (document # 10). However the motion is resolved, this Court is merely a temporary way station for the underlying litigation: If remand is granted, this action will return to the Massachusetts courts to be heard expeditiously alongside the plaintiffs' claims against the other manufacturers.1 If denied, the case will join thousands of other asbestos cases waiting to be resolved by the Multidistrict Litigation Panel in Philadelphia.2

In a multitude of suits like this one, courts across the country have split on whether failure-to-warn cases against these private government contractors justify removal to federal court. See Harris v. Rapid American Corp., 532 F.Supp.2d 1001, 1004 (N.D.Ill.2007) (collecting cases on both sides). Some courts have found similar evidentiary materials submitted by the same defendants sufficient; others have disagreed.3 Precisely because district courts have differed in their application of the removal statute, it is not enough to recite general standards followed by specific facts, as many decisions have done. Rather, the Court must consider the underlying purposes of the federal officer removal statute, with its long history, and the context in which the defendants now seek removal.

Looking to these purposes, it is clear that private government contractors—particularly those in failure-to-warn cases—are several degrees distant from the paradigmatic federal officer protected by 28 U.S.C. § 1442(a)(1). Federal customs officials and tariff collectors, beset by state civil suits and criminal prosecutions in the early eighteenth century, were the original recipients of these protections. See Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 127 S.Ct. 2301, 2304-07, 168 L.Ed.2d 42 (2007). Since then, this right to a federal forum has been afforded to federal prohibition agents, federal judges, and federal immigration officers, among others. See Colorado v. Symes, 286 U.S. 510, 52 S.Ct. 635, 76 L.Ed. 1253 (1932); Jefferson County, Ala. v. Acker, 527 U.S. 423, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999); Arizona v. Manypenny, 451 U.S. 232, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981). Here, the removal statute has served to insulate national policy from state interference, to shield federal officers and their agents from the potential bias of state courts, and to promote consistent application of official immunity doctrines.

Private military contractors sued in state court for design defects have also been brought within the ambit of the federal officer removal statute, but only under certain circumstances. See Ryan v. Dow Chemical Co., 781 F.Supp. 934, 939 (E.D.N.Y.1992) (suggesting that private actors seeking to invoke the federal officer removal statute "bear a special burden"). After all, these contractors, sued by plaintiffs from the same state, hardly face the kind of state-court bias with which the federal officer removal statute was originally concerned. What they do face, however, is state tort liability stemming from the execution of federal duties—much like the federal tariff officer who acted at the behest of the national government. See In re Joint Eastern and Southern Dist. New York Asbestos Litigation, 897 F.2d 626, 630 (2d Cir.1990). Thus, a contractor may assert the "federal contractor defense" only insofar as it has acted as the federal government's agent by complying with "reasonably precise" design specifications. See Boyle v. United Technologies Corp., 487 U.S. 500, 507-08, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). And, like the federal officer, it may remove the action only if the federal government was the source of the specific act for which the contractor now faces suit. See Mesa v. California, 489 U.S. 121, 131-32, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989).

By virtue of their limited federal role, the private contractors in this failure-to-warn case are different from the prototypical federal officer but, just as critically, they also stand apart from military contractors sued for design defects. When the military commissions a product, its design specifications reflect a trade-off between safety and performance that trumps conflicting state law. Warnings, by themselves, do not necessarily jeopardize that basic policy judgment. Rather, the decision not to warn about a particular hazard involves a separate discretionary judgment and requires separate proof. See Tate v. Boeing Helicopters, 55 F.3d 1150, 1156 (6th Cir.1995). In order for a contractor to avoid liability, the decision not to warn must be the government's, not the contractor's, and it must reflect a federal interest incompatible with the important health and safety requirements of state law. While the Court recognizes the significant national interests on which the removal statute is premised, comity and federalism require a careful determination of whether there is a meaningful conflict between state law and federal policy. See Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003 (7th Cir. 1996). If there is not—if both federal policy and state law can be satisfied at the same time—removal may well be inappropriate.

The removing defendants have together submitted volumes of evidence seeking to show that the Navy would not have permitted them to warn about the dangers of asbestos, if they had tried. But the Court's decision rests ultimately on what is missing from the record. The defendants have submitted no evidence that the Navy expressly prohibited asbestos warnings by manufacturers; no evidence that they ever attempted to warn about asbestos on products destined for the Navy; no evidence that the Navy ever rejected any other manufacturer's proposed asbestos warning; and no evidence that defendants warned of asbestos on other, non-military equipment they produced during the same period, by contrast to the equipment they supplied to the Navy. Finally, they offer no persuasive evidence of an overall Navy-wide policy that would have conflicted with manufacturer asbestos warnings.

All told, the manufacturers do not claim that the Navy ever offered them any guidance on asbestos warnings, nor that they themselves ever contemplated warning about the dangers of asbestos. Their defense, instead, rests entirely on an untested hypothetical: If they had made such a proposal, the Navy would have refused that recommendation. This account rings of post-hoc justification.

Under the circumstances, the Court finds that defendants have not shown the type of genuine and "significant conflict" between federal policy and state law that would support the federal contractor defense. See Boyle, 487 U.S. at 511-12, 108 S.Ct. 2510. Nor have they shown any causal relationship between the Navy's directives and their failure to warn about asbestos. See Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989); Hilbert v. McDonnell Douglas Corp., 529 F.Supp.2d 187 (D.Mass.2008). Both are required to justify removal jurisdiction here. Given the purposes of the federal officer removal statute and the federal contractor defense, removal in this case is not warranted. The plaintiffs' Motion to Remand (document # 10) is GRANTED.

II. BACKGROUND

This is an asbestos personal injury action. Plaintiff Franklin Holdren ("Mr. Holdren") worked as a boiler technician onboard various Navy ships, and in Navy shipyards, from 1957 to 1979.4 See Compl. ¶ 9, Ex. 1 to Notice of Removal (document # 1-2). Thereafter, he inspected and maintained residential and commercial boilers at power plants, paper mills, and other industrial sites. Pl. Disclosures at 4-5, Ex. 2 to Notice of Removal (document # 1-3). Mr. Holdren's exposure to asbestos during the course of his employment allegedly caused him to develop malignant mesothelioma. See Compl. ¶ 11.

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