Murphy v. Union Carbide Corp.
| Decision Date | 09 September 2021 |
| Docket Number | CIVIL JKB-21-0814 |
| Parties | ROBERT MURPHY, Plaintiff, v. UNION CARBIDE CORPORATION, etal., Defendants. |
| Court | U.S. District Court — District of Maryland |
In 2019, Plaintiff Robert Murphy was diagnosed with mesothelioma, a terminal cancer commonly caused by inhalation of asbestos. After being diagnosed, Plaintiff sued Defendants, claiming that his mesothelioma was caused by his exposure to asbestos at the Key Highway Shipyard where Plaintiff worked in 1973 and 1974. On March 30, 2021 Defendant Hopeman Brothers, Inc. ("Hopeman") removed the case to this Court relying on the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Now pending before the Court is Plaintiffs Motion for Remand (ECF No. 49) and Hopeman's Motion for Leave to File a Surreply (ECF No. 70).[1] The Motions are fully briefed, and no hearing is required. See Local Rule 105.6 (D. Md 2021). For the following reasons, Plaintiffs Motion will be granted, Hopeman's Motion will be denied, and the case will be remanded to the Circuit Court for Baltimore City.
On or around August 25, 2020, Plaintiff filed a short form Complaint in the Circuit Court for Baltimore City. (See ECF No. 7 at 6.) The short form Complaint cites to the applicable paragraphs of a Master Complaint in order to bring claims for strict liability, breach of warranty, negligence, fraud, conspiracy, and market share liability against all Defendants. (Id. (citing ECF No. 10).) An attachment to the short form Complaint elaborates that Plaintiff had worked as a "Shipyard worker - helper, electrical equipment" at the "Key Highway Shipyard" from "1973 through 1974" and that he was diagnosed with mesothelioma on October 19, 2019. (ECF No. 7-1 at 1.)
In response to interrogatories, Plaintiff answered that he was exposed to asbestos in various ways while working at the Key Highway Shipyard. (See Resp. to Interrogatory No. 91, Mot. Remand Ex. 1, ECF No. 49-1 at 35.) With respect to Hopeman, Plaintiff responded that he "was exposed to asbestos containing dust from Micarta paneling which was cut, manipulated and applied by employees of Hopeman Brothers." (Id.) Plaintiff also gave deposition testimony that his work at the Key Highway Shipyard more generally involved working on "[o]il tankers, some passenger ships" but not on "American navy ships ... none of that." (See R. Murphy Dep. at 69, Mot. Remand Ex. 2, ECF No. 49-2.) However, Norman Lang, Plaintiffs supervisor during the time he worked as an apprentice electrician, had a different recollection of the scope of Plaintiff s work. During his March 1, 2021 deposition, Lang recalled that he and Plaintiff had "worked down at Fort McHenry yard on the WESTWIND for the Coast Guard." (N. Lang Dep. at 77, Mot. Remand Ex. 3, ECF No. 49-3.) Lang testified that Plaintiff had spent about "three weeks" working on the West wind, specifically "working on the anodes on the side of the ship ... we were working around the shipfitters." (Id. at 78.) Based on Plaintiffs testimony regarding his work generally, and Lang's testimony regarding Plaintiffs work specifically on the Westwind, Hopeman removed the case to this Court pursuant to 28 U.S.C. § 1442(a)(1). (See Not. Removal at 3-4.) Plaintiff timely moved to remand (ECF No. 49).
Hopeman's notice of removal relies exclusively on 28 U.S.C. § 1442(a)(1), "commonly referred to as the federal officer removal statute." Cnty. Bd. of Arlington Cnty., Va. v. Express Scripts Pharm., Inc., 996 F.3d 243, 247 (4th Cir. 2021). Section 1442(a)(1) permits removal of "[a] civil action or criminal prosecution that is commenced in a State court and that is against [inter alia]: any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office." 28 U.S.C. § 1442(a)(1). Establishing that removal is proper under this statute requires a removing defendant to show "(1) it is a federal officer or a person acting under that officer; (2) a colorable federal defense; and (3) the suit is for an act under color of office, which requires a causal nexus between the charged conduct and asserted official authority." Ripley v. Foster Wheeler LLC, 841 F.3d 207, 209-10 (4th Cir. 2016) (internal quotation marks and citation omitted).
Federal officer removal is an exception to the ordinary rule that district courts must "strictly construe the removal statute and resolve all doubts in favor of remanding the case to state court." Richardson v. Phillip Morris, Inc., 950 F.Supp. 700, 701 (D. Md. 1997). Rather, "the Supreme Court has provided clear instructions that... the federal officer removal statute must be 'liberally construed.'" Express Scripts, 996 F.3d 243 at 250 (citing Watson v. Phillip Morris Cos., Inc., 551 U.S. 142, 150 (2007)). This liberal construction is intended to "ensure[] a federal forum in any case where a federal defendant is entitled to raise a federal defense." State v. United States, 7 F. 4th 160, 162 (4th Cir. 2021) (emphasis in original) (citation omitted). Though a removing defendant benefits from a liberal construction of the federal officer removal statute, it still "bear[s] the burden of establishing jurisdiction as the party seeking removal." Express Scripts, 966 F.3d at 250 (citation omitted).
In his Motion to Remand, Plaintiff argues that Hopeman cannot establish the third element required for federal officer removal, i.e., a causal nexus between the charged conduct and asserted official authority. (Mot. Remand at 9.) In opposition, Hopeman frames the issue in terms of prong two, that is whether Hopeman raises a "colorable federal defense" to Plaintiffs claims. (See Hopeman Opp'n at 4-8, ECF No. 59.) Although the Court believes that the core factual dispute between the parties is better characterized under the causal nexus prong, it will address whether Hopeman has met its burden of establishing both prongs. Failure to establish any of the statutory prerequisites for removal under § 1442(a)(1) requires remand. See Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 254 (4th Cir. 2017) ().
"Courts have imposed few requirements on what qualifies as a colorable federal defense" requiring only "that the defendant raise a claim that is 'defensive' and 'based in federal law.'" Express Scripts, 996 F.3d at 254. Hopeman argues that it has raised a colorable government contractor defense with respect to any asbestos exposure Plaintiff suffered while working on the Westwind, a Coast Guard vessel. See Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988). To prevail on such a defense, a defendant must show "(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States." Id. Plaintiff does not seriously contest that such a defense would be colorable with respect to any asbestos exposure stemming from the Micarta paneling installed by Hopeman on the Westwind. Given that a colorable defense "does not require the defendant to win his case . . . nor even establish that the defense is clearly sustainable," the Court agrees. Ripley, 841 F.3d at 210.[2]
Plaintiff's Motion for Remand instead focuses on arguing that Hopeman fails to establish a causal nexus between Plaintiff s claims and Hopeman's federal defense because the record shows that Plaintiff was not exposed to asbestos during the time he worked on the Westwind. Although courts still often use the phrase "causal nexus," the standard has shifted to only require a "connection or association between the act in question and the federal office," which is a standard "broader than the old causal nexus test." Express Scripts, 996 F.3d at 256 (internal quotation marks and citation omitted). Under the modern test, "the conduct charged in the Complaint need only 'relate to' the asserted official authority." Mayor and City Council of Bait. v. BP P.L.C., 952 F.3d 452, 466 (4th Cir. 2020) (citation omitted), vacated on other grounds sub nom. BP P.L.C. v. Mayor and City of Bait., 141 S.Ct. 1532 (2021). In determining whether there is a relationship between Plaintiffs claim and asserted federal authority, courts "[g]enerally [ ] credit Defendants' . theory of the case when determining whether there is such a connection or associations." Express Scripts, 996 F.3d at 256.
Hopeman's theory of the case, at least with respect to the pending motion, is that Plaintiff was exposed to asbestos during the three weeks he worked aboard the Westwind. However, the evidence developed in this case-which was set to be tried in state court on July 13, 2021, does not establish that the claims in the Complaint relate to the Coast Guard's directive to use asbestos products aboard the Westwind. Even crediting Hopeman's theory of the case, the evidence does not allow it to bear its burden of establishing that removal was proper in this case.
Hopeman argues that Lang's testimony establishes that Plaintiff was exposed to asbestos aboard the Westwind while (1) working on the heeling tank and (2) while waiting inside the Westwind. Plaintiffs Motion to Remand argues that Lang's testimony does not establish that Plaintiff was exposed to asbestos aboard the Westwind and attaches an affidavit from Lang clarifying various points he made during his deposition. (See Lang Aff, Mot. Remand Ex. 4, ECF No. 49-4.) Most critically here, Lang's affidavit avers that "[t]he work...
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