Joyner v. A.C. & R. Insulation Co.
| Decision Date | 07 March 2013 |
| Docket Number | Civil No. CCB-12-2294 |
| Court | U.S. District Court — District of Maryland |
| Parties | JAMES E. JOYNER v. A.C. & R. INSULATION CO., et al. |
Plaintiff James Joyner, a twenty-two-year veteran of the United States Coast Guard, was diagnosed with malignant pleural mesothelioma in March 2012. Three months later he brought this asbestos products-liability action in the Circuit Court for Baltimore City. The defendants,1 with the exception of Metropolitan Life Insurance Co., manufactured and distributed various products that contained asbestos—the principal known cause of mesothelioma. Some of these products allegedly were sold to the United States Navy and United States Coast Guard. Invoking the government contractor defense to tort liability, defendant Crane Co. removed Joyner's action to this court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Two motions are pending before this court. Joyner first asks the court to remand the entire case to the Circuit Court for Baltimore City. In the event that motion fails, Joyner moves to sever one piece of his claim against Crane Co. from the rest of the suit and to remand the other claims to the state court. A hearing on both motions was held on February 8, 2013. For the reasons set forth below, this court will grant the motion to sever and will grant in part and deny in part the motion to remand.
According to the complaint, Joyner spent about two years as an electrician's assistant at the Charleston Navy Shipyard before joining the Coast Guard in 1944. During twenty-two years of service in the Coast Guard, Joyner worked as an electrician and boiler tender on numerous ships and in several shipyards throughout the United States. Upon his retirement from the Coast Guard in 1966, Joyner continued performing electrical work in Charleston, South Carolina, before moving to Kansas and opening his own electrical business. While in Kansas he earned a master's degree in industrial design and worked as a teacher until his retirement in the 1990s.
Joyner, now almost ninety years old, was diagnosed with malignant pleural mesothelioma in March 2012. The mesothelioma allegedly was caused by Joyner's inhalation of and exposure to asbestos dust during his long career in the Coast Guard and as a civilian electrician. Joyner filed this suit in the Circuit Court for Baltimore City in June 2012, alleging four counts under the laws of Maryland: strict liability for the asbestos products' defective design and failure to warn (Count I); breach of implied warranty (Count II); negligence products-liability claims (Count III); and aiding-and-abetting and conspiracy claims related to defendants' alleged participation in a scheme to conceal and manipulate information about the dangers of asbestos (Count IV).
The complaint expressly disclaimed "any federal cause of action or any claim that would give rise to federal jurisdiction." (Compl. ¶ 2, ECF No. 2.) Specifically:
Due to the rapidly declining condition of Joyner's health, his attorney filed an unopposed motion on July 11, 2012, to expedite Joyner's deposition. The circuit court granted the motion the next day. Between July 24 and July 26, counsel for Crane Co. deposed Joyner for about five hours.2 On July 27 the circuit court held a telephone conference with all counsel to determine the appropriate amount of additional deposition hours. At the conclusion of that hearing the court instructed plaintiff's counsel to conduct the direct de bene esse deposition on August 1 and insisted that defense counsel complete their discovery deposition and de bene esse cross-examination on August 2. The attorneys completed their direct and discovery depositions as instructed. On the afternoon of August 2, however, before conducting its de bene esse cross-examination, Crane Co. removed the case to this court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), on the basis of the government contractor defense.3 No other defendant joined in Crane Co.'s removal to federal court.4
In its notice of removal, Crane Co. alleges that "several of the ships identified by Plaintiff were specifically designed for the United States Navy" and "were built pursuant to Navy specifications and later transferred to the Coast Guard." (Notice ¶ 6 n.1, ECF No. 1.) The notice further states that "Crane Co. valves were designed and manufactured pursuant to precise contracts and specifications approved by the Navy." (Id. ¶ 10.) More specifically, Crane Co. claims that certain Navy specifications "required that internal gaskets in the valves be 'asbestossheet gaskets.'" (Id. (citing March 2012 Sargent Aff. ¶¶ 26-27, 32, ECF No. 1-4).) Naval Machinery Inspectors purportedly monitored all equipment for compliance with Navy specifications and would have rejected any effort by Crane Co. to install nonconforming equipment. (Id. (citing March 2012 Sargent Aff. ¶ 29).) Finally, the notice alleges that the Navy "possessed knowledge regarding the hazards of asbestos equal to or superior to its equipment suppliers, such as Crane Co." (Id. (citing Forman Aff. ¶¶ 21-23, ECF No. 1-5).)
Crane Co. substantiated its notice of removal with three affidavits. Anthony Pantaleoni, the Vice President of Environment, Health, and Safety at Crane Co. since 1989, briefly discussed the relevant Navy specifications and attached an example of the Navy's 1938 valve specifications. .) Dr. Samuel Forman, a specialist in preventive and occupational medicine, was heavily involved with the Navy's asbestos medical surveillance program and its response to mass asbestos litigation. He discusses, among other things, the Navy's institutional knowledge about the dangers of asbestos exposure and its rejection of efforts by suppliers and manufacturers to warn of the health effects of such exposure. (Forman Aff. ¶¶ 22, 27, 59-65.)
And finally, Crane Co. included an affidavit of Rear Admiral (Retired) David Sargent, Jr., a mechanical engineer in the Navy from 1967 and 1999 who ultimately oversaw certain ship development and procurement programs. Sargent explained the widespread use of asbestos in the Navy's ships and the Navy's regulation of health warnings. Sargent stated, without mentioning asbestos in particular, that "[m]anufacturers of components and equipment were not permitted, under the [Navy's] specifications, associated regulations and procedures, nor under the actual practice as it evolved in the field, to include any warning or caution statement in instruction books or technical manuals, beyond those required and approved by the Navy withoutprior discussion and approval by the Navy." (March 2012 Sargent Aff. ¶ 60.) The Navy, according to Sargent, "would not have permitted equipment suppliers to place asbestos-related warnings on packaging or containers for valves and pumps or related parts supplied during the 1940s, 1950s, or 1960s," or "in any literature or documentations supplied with its valves or pumps for Navy ships" during that period. (Id. ¶ 63.)
On September 4, 2012, Joyner moved to remand this case to state court. Arguing from the premise that removal jurisdiction must be narrowly construed, Joyner asserts that remand is required because Crane Co. has provided "no evidence" to support its jurisdictional allegations. (Mot. Remand at 6, ECF No. 138-1.) The affidavits attached to Crane Co.'s notice of removal, Joyner notes, pertain exclusively to the Navy, rather than the Coast Guard, and specify no government directive barring Crane Co. from warning of the health hazards of asbestos.
In its opposition brief, Crane Co. argues that its jurisdictional allegations need not be corroborated with admissible evidence at this stage of the litigation. Crane Co. nevertheless attached to its opposition an amended affidavit of Admiral Sargent. The affidavit, dated September 20, largely recycles the testimony of Sargent's earlier affidavit but appends information, pulled from public web sites, about the provenance of several of the Coast Guard ships on which Joyner allegedly served. Those ships, it seems, were designed and constructed for the Navy and subsequently were transferred to the Coast Guard. Crane Co. thus contends that its affiants' knowledge about the Navy is germane to Joyner's case and substantiates its jurisdictional allegations.
In the event the motion to remand is denied, Joyner seeks to sever the removable claim against Crane Co. and to remand all other claims to the state court. Because the other defendants did not join Crane Co.'s notice of removal, Joyner argues, this court should decline to exercisesupplemental jurisdiction over their claims. Joyner also seeks to bifurcate his claim against Crane Co., which allegedly manufactured and sold two products containing asbestos: valves and gaskets. Joyner argues that Crane Co. cannot assert a colorable federal defense with respect to its Cranite gaskets because "[t]he Cranite that Crane sold to the Coast Guard is the same as that which Crane sold in the civilian marketplace." (Mot. Sever at 5.) If his motion to remand the entire case is denied, Joyner asks the court instead to remand both his claims against the other remaining defendants and his claim against Crane Co. related to its Cranite gaskets.
As a general matter, the "well-pleaded complaint rule" precludes federal courts from exercising jurisdiction under 28 U.S.C. § 1331 unless a question of...
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