United States District Court, D. Maryland
ESTHER RHODES, as Surviving Spouse and Personal Representative of the Estate of Earl J. Rhodes, deceased, et al., Plaintiffs
MCIC, INC., et al., Defendants
MEMORANDUM AND ORDER
K. Bredar United States District Judge.
who are surviving family members of Earl J. Rhodes, deceased,
filed their complaint in this asbestos case against
thirty-two Defendants in the Circuit Court for Baltimore
City. (Compl., ECF No. 2.) The case has been removed to this
Court by Crane Co. pursuant to 28 U.S.C. § 1442, which
permits removal to federal court for cases involving the
“federal officer defense.” (Notice of Removal,
ECF No. 1.) Now pending before the Court is Plaintiffs'
motion to remand or, in the alternative, for severance of all
claims other than Plaintiffs' claims against Crane Co.
and to remand all other severed claims. (ECF No. 154.) The
motion has been briefed (ECF Nos. 185, 186), and no hearing
is required, Local Rule 105.6 (D. Md. 2016). The motion will
pertinent to the instant case, the federal officer defense is
set forth in 28 U.S.C. § 1442(a), which provides,
A civil action or criminal prosecution that is commenced in a
State court and that is against or directed to any of the
following may be removed by them to the district court of the
United States for the district and division embracing the
place wherein it is pending:
(1) The United States or any agency thereof or 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 or on account of any right, title or authority claimed
under any Act of Congress for the apprehension or punishment
of criminals or the collection of the revenue.
applied to contractors that supply goods to the federal
government, the federal officer defense is also referred to
as the government contractor defense. That extension of the
federal officer defense was recognized in Boyle v. United
Technologies Corp., 487 U.S. 500 (1988). There, the
Supreme Court set forth the defense's contours:
Liability for design defects in military equipment cannot be
imposed, pursuant to state law, when (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
Id. at 512. “[W]hether the facts establish the
conditions for the defense is a question for the jury.”
Id. at 514.
the Boyle case only dealt with design defects, the
defense has also been applied to failure-to-warn cases.
See, e.g., Cuomo v. Crane Co., 771 F.3d
113, 116-17 (2d Cir. 2014); Leite v. Crane Co., 749
F.3d 1117, 1123 (9th Cir.), cert. denied, 135 S.Ct.
361 (2014); Citrano v. John Crane-Houdaille,
Inc., 1 F.Supp.3d 459, 467 (D. Md. 2014). See also
Emory v. McDonnell Douglas Corp., 148 F.3d 347, 349-50
(4th Cir. 1998) (agreeing with soundness of reasoning in
cases applying defense to failure-to-warn claims). To
establish the defense in a failure-to-warn case,
the defendant must show: “(1) the government exercised
its discretion and approved certain warnings for the
products; (2) the warnings provided by the contractor
conformed to the federal specifications; and (3) the
contractor warned the government about dangers known to the
contractor but not to the government.”
Citrano, 1 F.Supp.3d at 467 (quoting Joyner v.
A.C. & R. Insulation Co., Civ. No. CCB-12-2294, 2013
WL 877125, at *7 (D. Md. Mar. 7, 2013), aff'd sub
nom., Wood v. Crane Co., 764 F.3d 316 (4th Cir.
2014), cert. denied, 135 S.Ct. 1426 (2015)).
justify removal to federal court, the defense must be
“colorable, ” see Mesa v. California,
489 U.S. 121, 129 (1989), and the removing defendant must
establish a causal connection between the allegedly wrongful
conduct and “asserted official authority, ”
Willingham v. Morgan, 397 U.S. 402, 409 (1969). The
Supreme Court has “rejected a ‘narrow, grudging
interpretation' of the statute, recognizing that
‘one of the most important reasons for removal is to
have the validity of the defense of official immunity tried
in a federal court.'” Jefferson Cty., Ala. v.
Acker, 527 U.S. 428, 431 (1999) (quoting
Willingham, 395 U.S. at 407). A defendant's
theory of the case must be credited by the federal court for
the purposes of determining the existence of the elements of
the jurisdictional inquiry. Id. at 432.
evaluation of the defense's viability at this early stage
of the case, i.e., upon removal, is similar to
evaluation of the adequacy of a complaint for relief when
challenged by a motion to dismiss. See Willingham,
395 U.S. at 408 (noting a removal petition must contain
“a short and plain statement of the facts”);
Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d
192, 199 (4th Cir. 2008) (language in general removal
statute, 28 U.S.C. § 1446(a), “is deliberately
parallel to the requirements for notice pleading found in
Rule 8(a) of the Federal Rules of Civil Procedure”);
Joyner, 2013 WL 877125, at *5-6 (noting parallelism
between plausibility standard for asserting government
contractor defense and plausibility standard for pleading
complaint). A defendant need not prove his entitlement to the
defense in order to remove the case to federal court; he need
only make a plausible showing of it. Willingham, 395
U.S. at 407 (“The officer need not win his case before
he can have it removed.”). Cases dwelling on the
exactness of “proof” or “evidence” to
support the defense are not persuasive. See, e.g.,
Zeringue v. Allis-Chambers Corp., Civ. No. 15-4516,
2015 WL 9311967 (E.D. La. Dec. 23, 2015); Sroka v. Union
Carbide Corp., Civ. No. WDQ-13-3281, 2015 WL 794942 (D.
Md. Feb. 24, 2015); Holdren v. Buffalo Pumps, Inc.,
614 F.Supp.2d 129 (D. Mass. 2009).
Asserted Factual Basis for the Defense
to the complaint, the decedent served in the U.S. Navy as a
laborer and boilermaker from 1952 to 1956 onboard ships,
including the USS Tarawa CV40. (Compl. ¶ 1.) After
discharge from the U.S. Navy, Rhodes was employed as a
laborer, welder, and boilermaker at Bethlehem Steel Sparrows
Point Shipyard from 1956 to 1959, and later, from 1959 to
1963, he was employed as a laborer at Eastern Stainless
Steel. (Id.) He also worked as a laborer, mechanic,
and salesman for several other businesses from 1963 to the
late 1970s. (Id.) Prior to his death, Rhodes
suffered from mesothelioma and asbestos-related diseases.
(Id.) Plaintiffs claim damages “[a]s a direct
and proximate result of Defendants' negligence and strict
liability in causing” Rhodes's death. (Id.
Wrongful Death Count ¶ 4.) The complaint is noticeably
bereft of plausible allegations of fact allowing an inference
of liability as to any Defendant. However, no Defendant has
moved for dismissal for failure to state a claim for relief.
to the notice of removal, Rhodes allegedly was exposed to
Crane Co. products while working aboard a Navy vessel.
(Notice ¶ 3.) Crane Co. then states,
any product that Plaintiffs allege Crane Co. manufactured for
or supplied to the Navy (and any product literature,
labeling, or warnings that accompanied that product) would be
subject to Navy specifications and requirements. Federal
officers exercised their discretion regarding whether (1)
asbestos was used in the product and (2) whether a warning
would accompany the product (and if so, what it would say).
Without approval from a federal officer, Crane Co.'s
products could not have been used by the Navy.
(Id.) Crane Co. also filed an affidavit of Anthony
D. Pantaleoni, who, at the time he made the affidavit in
2011, was the Vice-President of Environment, Health, and
Safety for Crane Co. (Pantaleoni Aff. ¶ 1, June 7, 2011,
ECF No. 2-2.) Pantaleoni stated therein,
Crane Co. made and supplied equipment, including valves, for
Navy ships under contracts between Crane Co. and the
shipyards and/or the United States of America, specifically
the Navy Department.
The manufacture of equipment for use on Navy vessels was
governed by an extensive set of federal standards and
specifications, chiefly military specifications known as Navy
Specifications and later “MilSpecs.” The MilSpecs
governed all aspects of a piece of equipment, such as a
valve's, design and construction and specified the