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Barrett v. A.W. Chesterton Co.

United States District Court, D. Maryland

April 12, 2019

PATRICIA BARRETT et at., Plaintiffs
v.
A.W. CHESTERTON CO. et al., Defendants

          MEMORANDUM AND ORDER

          James K. Bredar Chief Judge.

         I. Background

         This suit alleging personal injury and wrongful death caused by mesothelioma was filed April 4, 2018, in the Circuit Court for Baltimore City, No. 24-X-18-000150. (Compl., ECF No. 1-2.) The case was brought against Westinghouse and thirty other Defendants by the decedent's family members: Patricia Barrett, individually and as administratrix of the estate of Vincent James Barrett, Jr.; Karen Weddle; Laura Rollins; Jennifer Harrison; Christopher Barrett; and the Estate of Traci Ward. Plaintiffs alleged that Mr. Barrett's "exposure to asbestos and asbestos-containing products and/or machinery [that] required the use of asbestos and/or asbestos-containing products . . . may have occurred while [he was] working on, inspecting, maintaining and constructing ships at the Coast Guard Yard at Curtis Bay, Maryland." (Id. ¶ 4.) The complaint provided no time frame during which Mr. Barrett may have been exposed to asbestos, nor did it provide any specifics as to products to which he was exposed or identify ships on which he may have worked. Further, Plaintiffs alleged,

In order to comply with the statute of limitations, the Plaintiffs have sued all those corporations that the Plaintiffs and their counsel believe, in good faith, may be responsible for the Plaintiffs' injuries. Once discovery in this case is complete, the court and jury will determine whether the proof as to the liability of any or all of the named corporations is adequate.

(Id.¶2.)

         On December 18, 2018, Defendant CBS Corporation ("Westinghouse") removed the case to this Court within thirty days of receiving information in discovery that led it to conclude it was entitled to claim the federal officer defense. (Notice of Removal, ECF No. 1.) The removing Defendant states that it is "(a Delaware corporation f/k/a Viacom Inc.) [and] is a successor by merger to CBS Corporation (a Pennsylvania corporation f/k/a Westinghouse Electric Corporation)." (Id. 1 n.1.) Now pending before the Court is Plaintiffs' motion for remand (ECF No. 77) for which Westinghouse's opposition (ECF No. 80) and Plaintiffs' reply (ECF No. 82) have been filed. Plaintiffs contend Westinghouse did not timely remove the case and further assert Westinghouse is not entitled to the federal officer defense. Plaintiffs' arguments are without merit. No. hearing is necessary. Local Rule 105.6 (D. Md. 2018). The motion will be denied.

         II . Federal Officer Defense

         A. Applicable Legal Standard

         One sued in state court may remove a civil action to federal court under the statute that grants the federal officer defense, 28 U.S.C. § 1442(a):

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.

         Contractors who supply goods to the federal government may be entitled to claim this defense, sometimes referred to as the government contractor defense. To remove a case under § 1442(a)(1), a government contractor must show, owe, it acted under a federal officer, two, it has a colorable federal defense, and three, the conduct for which a plaintiff alleges the contractor is liable was carried out for or in relation to the federal officer's authority. Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 254 (4th Cir. 2017). The Supreme Court recognized extension of the federal officer defense to government contractors in Boyle v. United Technologies Corp., 487 U.S. 500 (1988):

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 United States.

Id. at 512. "[W]hether the facts establish the conditions for the defense is a question for the jury." Mat 514.

         Although the Boyle case only dealt with design defects, the federal officer defense also applies to failure-to-warn cases. See Ripley v. Foster Wheeler LLC, 841 F.3d 207, 211 (4th Cir. 2016). To establish the defense in a failure-to-warn case, the government contractor must show the following elements:

(1) the government exercised its discretion and approved certain warnings; (2) the contractor provided the warnings required by the government; [and] (3) the contractor warned the government about dangers in the equipment's use ...

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