Charles Brinkman v. General Dynamics Corporation

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:14-cv-00142-AWA-LRL Copies to all parties and the district court/agency. [999991741].. [15-1752]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1752

CHARLES B. BRINKMAN; LOUISE K. BRINKMAN,
Plaintiffs – Appellees,
v.
GENERAL DYNAMICS CORPORATION; ELECTRIC BOAT CORPORATION,
Defendants – Appellants,
and
JOHN CRANE INCORPORATED; J. HENRY HOLLAND CORPORATION;
METROPOLITAN LIFE INSURANCE COMPANY; WACO, INCORPORATED;
UNION CARBIDE CORPORATION; NOLAND COMPANY; CLEAVER-BROOKS
COMPANY, a division of Aqua-Chem, Inc.; AURORA PUMP, CO;
AIR & LIQUID SYSTEMS CORPORATION, successor by merger to
Buffalo Pumps, Inc.; IMO INDUSTRIES, INCORPORATED; GOULDS
PUMPS,
INCORPORATED;
INGERSOLL-RAND
COMPANY;
NASH
ENGINEERING COMPANY; WARREN PUMPS, INCORPORATED; CRANE
COMPANY; GRINNELL CORPORATION; J.R. CLARKSON COMPANY,
individually and as successor by mergers to Kunkle
Industries, Inc.; VELAN VALVE CORP.; TRANE U.S. INC.,
formerly known as American Standard, Inc.,
Defendants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Arenda L. Wright Allen,
District Judge. (4:14-cv-00142-AWA-LRL)

Submitted:

November 3, 2016

Decided:

December 21, 2016

Before TRAXLER, KEENAN, and WYNN, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

Melissa A. Murphy-Petros, WILSON ELSER MOSKOWITZ EDELMAN &
DICKER LLP, Chicago, Illinois, for Appellants.
William W.C.
Harty, Robert R. Hatten, Hugh B. McCormick, III, PATTEN, WORNOM,
HATTEN & DIAMONSTEIN, L.C., Newport News, Virginia, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Plaintiffs

Charles

Brinkman

(“Brinkman”)

and

Louise

Brinkman filed suit in Circuit Court for the City of Newport
News,

Virginia,

defendants.

asserting
The

state

suit

law

alleged

claims

that

against

Brinkman

several
developed

mesothelioma as a result of exposure to asbestos in 1966 and
1967

while

serving

submarine.

in

the

United

States

Navy

on

a

nuclear

It is undisputed that defendants General Dynamics

Corporation

and

Electric

Boat

Corporation

(“Appellants”)

constructed the submarine pursuant to a contract with the Navy.
General Dynamics timely filed a notice of removal in the
United

States

District

Court

for

the

Eastern

District

of

Virginia pursuant to the federal officer removal statute, 28
U.S.C. § 1442(a)(1).
colorable

federal

government

General Dynamics asserted that multiple

defenses

contractor

supported

immunity

its

under

Technologies Corp., 487 U.S. 500 (1988).

removal,
Boyle

including

v.

United

Electric Boat joined

the notice of removal.
The district court subsequently granted a motion to remand
filed by the Brinkmans, concluding that Appellants had failed to
allege

facts

state

law

asserting

claims

a

“colorable

asserted

against

federal
them.

defense”

to

Regarding

the
the

government contractor defense, the district court followed “a
decades-old practice in the [Eastern District of Virginia] that
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denies

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the

cases.”

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government

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contractor

defense

in

failure

to

warn

Ripley v. Foster Wheeler LLC, ___ F.3d ___, 2016 WL

6441049, at *1 (Nov. 1, 2016).

However, after the district

court issued its decision, we decided for the first time “that
the government contractor defense is available in failure to
warn cases.”

Id. at *3 (emphasis added).

In light of this

recent holding, we vacate the district court’s order and remand
for further proceedings.

We dispense with oral argument because

the facts and legal contentions are adequately presented in the
materials

before

this

court

and

argument

would

not

aid

the

decisional process.
VACATED AND REMANDED

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