United States District Court, D. Maryland
MEMORANDUM AND ORDER
K. Bredar Chief Judge.
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
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.
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.
. Federal Officer Defense
Applicable Legal Standard
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.
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
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."
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
(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 ...