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Dugger v. Air & Liquid Systems Corp.

United States District Court, D. Maryland

May 5, 2017

JOHN C. DUGGER, JR., as Personal Representative of the Estate of JOHN C. DUGGER, SR., et al.
v.
AIR & LIQUID SYSTEMS CORPORATION, as successor in interest to Buffalo Pumps, Inc., et al.

          MEMORANDUM

          CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.

         In this products liability case, the estate of John C. Dugger and others have sued various manufacturers and distributors of asbestos-containing products and insurer Metropolitan Life Insurance Co. (Compl., ECF No. 2; Mot. for Remand Mem. Law, ECF No. 338-1, 2). The plaintiffs filed suit in the Circuit Court for Baltimore City on October 26, 2016. (Compl.). On December 7, 2016, one defendant - Crane Co. - removed the case to the United States District Court for the District of Maryland. (Notice of Removal, ECF No. 1). The plaintiffs moved to remand the case to state court on January 6, 2017. (Mot for Remand, ECF No. 338). Crane Co. responded, (Resp. in Opp'n to Mot. for Remand, ECF No. 351), and the plaintiffs replied, (Reply, ECF No. 355).[1] No oral argument is necessary. See Local Rule 105.6 (D. Md. 2016). For the reasons set forth below, the court will deny the plaintiffs' motion for remand.

         BACKGROUND

         John C. Dugger, Sr. (“Dugger”) served in the United States Navy during the 1960s. On November 2, 2015, he was diagnosed with malignant pleural mesothelioma; according to the plaintiffs, he contracted this form of cancer “as a result of being exposed to and inhaling asbestos-containing dust while serving in the United States Navy.” (Mot. for Remand Mem. Law 1-2). Dugger died on February 17, 2016; after his death, his estate filed suit in state court based on various causes of action, including state common-law products liability claims of strict liability and negligence against the manufacturers and distributors of asbestos-containing products. (Id.). Crane Co. allegedly manufactured and sold rope and valves to the Navy that were designed to be used with asbestos-containing packing, rope, and gaskets. (Id. 2). The complaint alleges Crane Co. failed to warn Dugger about the hazards associated with asbestos-containing products and/or products designed to be used with asbestos-containing components. (See Id. 2- 3).

         According to Crane Co., removal is proper under 28 U.S.C. § 1442(a)(1), partly because Crane Co. has successfully invoked the government contractor defense to tort liability. (Notice of Removal ¶¶ 3, 7). To support its claim that this federal defense applies, Crane Co. has submitted affidavits from Anthony D. Pantaleoni (“Pantaleoni”), David P. Sargent, Jr. (“Sargent”), and Dr. Samuel A. Forman (“Dr. Forman”) as attachments to its notice of removal. (Notice of Removal Exs. B, C, D, ECF Nos. 1-3, 1-4, 1-5).

         LEGAL STANDARD

         Under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), a defendant may remove a case to federal court if that defendant establishes (1) the defendant is either a federal officer or a “person acting under that officer, ” 28 U.S.C. § 1442(a)(1); (2) a “colorable” federal defense to the plaintiff's claims; and (3) the suit is “for a[n] 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) (quoting Jefferson Cty., Ala. v. Acker, 527 U.S. 423, 431 (1999)).[2] One of the purposes of federal officer removal is to provide a federal forum for a federal defense. Id. at 210 (citing Willingham v. Morgan, 395 U.S. 402, 407 (1969)). Accordingly, a defendant's use of § 1442(a)(1) “should not be frustrated by a narrow, grudging interpretation” of the statute. See Willingham, 395 U.S. at 406-07; see also Kolibash v. Comm. on Legal Ethics of W.Va. Bar, 872 F.2d 571, 576 (4th Cir. 1989) (“[T]he right of removal conferred by § 1442(a)(1) is to be broadly construed.”). To defeat a motion for remand, a defendant need only plausibly allege the existence of each element under § 1442(a)(1). See Joyner v. A.C. & R. Insulation Co., 2013 WL 877125, at *6 (D. Md. Mar. 7, 2013), aff'd sub nom. Wood v. Crane Co., 764 F.3d 316 (4th Cir. 2014); cf. Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 199-200 (4th Cir. 2008) (a notice of removal need not “meet a higher pleading standard than the one imposed on a plaintiff in drafting an initial complaint”).

         ANALYSIS

         On at least two separate occasions, the district court in Maryland has examined asbestos products-liability claims against Crane Co. similar to those here. In both of those cases, the court has denied a motion for remand after considering evidence similar to the evidence Crane Co. now offers. See Joyner, 2013 WL 877125; Rhodes v. MCIC, Inc., 210 F.Supp.3d 778 (D. Md. 2016). Circuit courts also have examined similar claims against Crane Co. and similar evidence, and they also have concluded removal was permissible. See, e.g., Cuomo v. Crane Co., 771 F.3d 113 (2d Cir. 2014); Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014). For the reasons explained below, the court also will deny the motion for remand here.

         Although Crane Co. must satisfy all three elements under § 1442(a)(1), the primary issue is whether it has raised a colorable federal defense. Accordingly, the court will examine that issue first.

         a. Colorable Federal Defense

         In order for removal to be proper, Crane must establish a “colorable” federal defense. The defense in question here is the government contractor defense, which precludes state-law tort liability for a contractor's failure to warn if (1) the federal government exercised its discretion and approved certain warnings for the products supplied by the contractor; (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.[3] Rhodes, 210 F.Supp.3d at 781. Although the government contractor defense may apply in failure-to-warn products liability cases, see Ripley, 841 F.3d at 210-11, the plaintiffs claim the defense as raised by Crane Co. is not “colorable, ” (see Mot. for Remand Mem. Law 21).

         A “colorable” federal defense is one that is plausible. See, e.g., Bennett v. MIS Corp., 607 F.3d 1076, 1089 (6th Cir. 2010). To prove the government contractor defense is “colorable, ” Crane Co. must allege facts that demonstrate the defense plausibly shields it from liability for its alleged failure to warn Dugger of the dangers associated with asbestos exposure. See Joyner, 2013 WL 877215, at *8. “Proof of a ‘colorable' federal defense thus does not require the defendant to ‘win his case before he can have it removed' nor even establish that the defense is ‘clearly sustainable.'” Ripley, 841 F.3d at 210 (quoting Willingham, 395 U.S. at 407). That is, a court need not “dissect the facts” or “weigh the quantum of evidence, ” because “[i]t is the sufficiency of the facts stated - not the weight of the proof presented - that matters.” Hagen v. Benjamin Foster Co., 739 F.Supp.2d 770, 782-83 (E.D. Pa. 2010); see also Rhodes, 210 F.Supp.3d at 782 (D. Md. 2016) (“Cases dwelling on the exactness of ‘proof' or ‘evidence' to support the defense are not persuasive.”).

         Crane Co. has plausibly alleged the three elements of the government contractor defense. First, it has plausibly alleged the government exercised its discretion and approved warnings (if any) for products that Crane Co. supplied to the Navy. In its notice of removal, Crane Co. states that “the Navy provided Crane Co. with precise specifications regarding its products.” (Notice of Removal ¶ 11). Sargent, a retired Rear Admiral of the United States Navy, stated in his affidavit that “the Navy developed precise specifications as to the nature of any markings, communication or directions affixed to or made a part of any equipment supplied . . . for ultimate use aboard Navy ships.” (Sargent Aff. ¶¶ 1, 58). Sargent further attested that “[m]anufacturers of components and equipment were not permitted, under the specifications, associated regulations and procedures, nor under the actual practice as it evolved in the field, to include any type of warning or caution ...


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