Henry Ruppel v. CBS Corporation

Filing

Filed opinion of the court by Judge Flaum. We REVERSE the district court's decision and REMAND for ffurther proceedings consistent with the opinion. Joel M. Flaum, Circuit Judge; Diane S. Sykes, Circuit Judge and Rudolph T. Randa, District Court Judge. [6446516-1] [6446516] [12-2236]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 12-2236
H ENRY R UPPEL,
Plaintiff-Appellee,
v.
CBS C ORPORATION,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:12-cv-00293—G. Patrick Murphy, Judge.

A RGUED O CTOBER 23, 2012—D ECIDED N OVEMBER 30, 2012

Before F LAUM and SYKES, Circuit Judges, and R ANDA,
District Judge.Œ
F LAUM, Circuit Judge. Henry Ruppel filed suit against
CBS in Illinois alleging CBS’s predecessor-in-interest,
Westinghouse Corporation, caused the mesothelioma

Œ

The Honorable Rudolph T. Randa, United States District
Court for the Eastern District of Wisconsin, sitting by designation.

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from which he currently suffers. Westinghouse had
included asbestos in the turbines it supplied to the
United States Navy, and Ruppel was allegedly exposed
to it during his Naval service and later when he
worked on an aircraft carrier as a civilian. CBS removed
Ruppel’s suit to the Southern District of Illinois under
the federal officer removal statute, which permits
removal of certain suits where a defendant that acted
under a federal officer has a colorable federal defense.
28 U.S.C. § 1442(a)(1). Ruppel moved to remand and,
without giving CBS a chance to respond, the district
court granted the motion. The district court concluded
Ruppel only sued CBS for failing to warn about the dangers of asbestos for which there is no federal defense.
CBS appeals the district court’s order, and we reverse.
CBS’s relationship with Ruppel arises solely out of CBS’s
duties to the Navy. It also has a colorable argument for
the government contractor defense, which immunizes
government contractors when they supply products
with specifications approved by the government.

I. Background
In early 2012, Ruppel sued CBS and forty other defendants in Illinois. Ruppel alleged that he developed mesothelioma due to his exposure to asbestos products manufactured, sold, distributed, or installed by defendants.
CBS had included asbestos in turbines it supplied to
the Navy, which Ruppel encountered during his service
on the U.S.S. Fall River between 1946 and 1954 and
when he oversaw the construction of the U.S.S. Enterprise, as a civilian, from 1957 to 1971.

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CBS removed the proceeding to federal court under
the federal officer removal statute. 28 U.S.C. § 1442(a)(1).
This statute allows defendants to remove suits for
certain actions that they took while acting under
federal officers. Among the requirements for removal is
a colorable federal defense, and CBS asserted it was
entitled to government contractor immunity. Its notice
of removal alleged it supplied asbestos under the
Navy’s direction and in accordance with detailed Navy
specifications, the Navy closely controlled the process,
and the Navy was aware of asbestos’s health hazards.
Although CBS only submitted a short, plain statement
of the grounds for removal, see 28 U.S.C. § 1446(a), it
offered to respond more fully to a motion to remand,
which Ruppel filed shortly thereafter. Ruppel implied
his complaint asserted only failure-to-warn claims
against CBS and argued that, because the military
did not “preclude” adequate warnings, the government
contractor defense was inapplicable. The local rule provided CBS thirty days to respond to Ruppel’s motion,
S.D. Ill. R. 7.1(c)(1), but the district court remanded the
case after only nine days and before CBS responded.
The district court largely adopted Ruppel’s arguments.
It held that CBS’s relationship with the Navy lacked
a “causal nexus” to Ruppel’s claims because the Navy
did not prevent CBS from providing adequate warnings.
On the day after the district court’s order, CBS filed
an “emergency motion for a vacatur or stay pending
remand order,” arguing the court should have provided
CBS the opportunity to respond to Ruppel’s motion. CBS
also asked the district court to refrain from sending a

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certified copy of its remand order because the copy
would permit the state court proceedings to resume.
The next day, however, the district court made a docket
entry noting it sent the certified copy to the state court.
Later, it denied CBS’s motion, noting 28 U.S.C. § 1447(d)
stripped it of jurisdiction to reconsider the remand
order. The district court did not address the exception
in that subsection for cases, like this one, removed
under section 1442.
CBS next filed a motion to alter or amend the judgment under Rule 59(e), raising most of the arguments
it now raises on appeal and supporting its factual assertions with affidavits and exhibits. Namely, this material
supported CBS’s assertions that the Navy required CBS
to use asbestos, the Navy controlled the content of
any warnings, and the Navy knew of asbestos’s health
risks. The district court never responded to this motion.
The state court proceedings had already resumed, and,
fearing a final judgment in state court, CBS withdrew
its Rule 59(e) motion and filed a notice of appeal.
Although 28 U.S.C. § 1447(d) generally prevents this
Court from reviewing a district court’s remand order,
it permits appellate review of cases removed under
section 1442.

II. Discussion
Congress has passed versions of the federal officer
removal statutes since 1815 to provide a federal forum
for officers whose duties under federal law conflict with

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state law. Willingham v. Morgan, 395 U.S. 402, 405 (1969).
The statute evinces concern that “unfriendly” states
will impose state-law liability on federal officers and
their agents for actions “done under the immediate direction of the national government.” Tennessee v. Davis,
100 U.S. 257, 263 (1879). Because the federal government “can act only through its officers and agents,”
the removal statute promotes litigating federal defenses
(like official immunity) in a federal forum so that “the
operations of the general government [are not] arrested
at the will of one of [the states].” Id.; see Willingham,
395 U.S. at 406-07. Although the views expressed in
these cases may have been more applicable in the nineteenth century than today, the statute’s current text
continues to permit “any officer . . . of the United States
or . . . person acting under” them to remove actions “for or
relating to any act under color of such office.” 28 U.S.C.
§ 1442(a)(1). Importantly, the “under color of office”
component encom passes an additional requirement—defendants must have a colorable federal defense to
the plaintiff’s action. Mesa v. California, 489 U.S. 121, 132-34
(1989). This requirement creates Article III jurisdiction, id.
at 136 (because section 1442(a) is purely jurisdictional, “the
raising of a federal question in the officer’s removal
petition . . . constitutes the federal law under which the
action against the officer arises for Art[icle] III purposes”); see generally Osborn v. Bank of U.S., 22 U.S.
(9 Wheat.) 738, 820-27 (1824), and it represents an exception to the well-pleaded complaint rule, which would
ordinarily defeat jurisdiction when the federal question
arises outside of the plaintiff’s complaint, Mesa, 489 U.S.

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at 136; see generally Louisville & Nashville R.R. Co. v.
Mottley, 211 U.S. 149, 152 (1908).
“We review the legal question of whether there [is]
federal jurisdiction” de novo. Franciscan Skemp Healthcare,
Inc. v. Cent. States Joint Bd. Health & Welfare Trust Fund,
538 F.3d 594, 596 (7th Cir. 2008). The party seeking
removal bears the burden of proving the grounds for
its motion. Shah v. Inter-Continental Hotel Chi. Operating
Corp., 314 F.3d 278, 280 (7th Cir. 2002); Chase v. Shop ‘N
Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir.
1997). Ruppel incorrectly argues that private parties (as
opposed to federal officers) invoking this statute carry
a “special burden.” See Williams v. Gen. Elec. Co., 418
F. Supp. 2d 610, 614 (M.D. Pa. 2005). To the contrary,
“[t]he federal officer removal statute is not ‘narrow’ or
‘limited,’ ” Willingham, 395 U.S. at 406, and Ruppel’s
reading also finds no support in the statute’s authorization of removal by private persons alongside federal
officers, drawing no distinction between governmental
and private parties, see 28 U.S.C. § 1442(a)(1). Indeed, the
statute has historically authorized removal by private
parties without qualification. See Maryland v. Soper (No. 1),
270 U.S. 9, 30 (1926) (private individual acting as
chauffeur for agents entitled to removal, although the
Court denied removal for other reasons); Davis v. South
Carolina, 107 U.S. 597, 600 (1883) (noting “the protection
which the law thus furnishes to the marshal and his
deputy, also shields all who lawfully assist him in the
performance of his official duty”). With this in mind,
we turn to the statute’s four requirements. CBS must
show it was a (1) “person” (2) “acting under” the United

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States, its agencies, or its officers (3) that has been sued
“for or relating to any act under color of such office,”
and (4) has a colorable federal defense to the plaintiff’s
claim. See 28 U.S.C. § 1442(a); Mesa, 489 U.S. at 132-34.

A. CBS Is a Person Under the Statute.
CBS easily satisfies the person requirement. In construing statutes, “unless the context indicates otherwise”
the “words ‘person’ and ‘whoever’ include corporations
[and] companies . . . as well as individuals.” 1 U.S.C. § 1.
There is no indication that Congress meant to exclude
corporations. Furthermore, we have previously noted
in dicta that corporations were persons under section
1442(a). See Pollitt v. Health Care Serv. Corp., 558 F.3d
615, 616 (7th Cir. 2000) (per curiam).

B. CBS Was Acting Under a Federal Officer.
CBS satisfies the second element because Ruppel’s
injury occurred while it “acted under” a federal officer.
We liberally construe this term. Watson v. Phillip Morris
Cos., 551 U.S. 142, 147 (2007). In Watson, the Supreme
Court rejected a cigarette manufacturer’s argument that
it acted under the federal government because it was
subjected to heavy regulation. Id. at 152. Drawing on
its previous federal officer removal cases, the Court
held that “ ‘acting under’ must involve an effort to assist,
or to help carry out, the federal superior’s duties or
tasks.” Id. (emphases in original). Cases in which the
Supreme Court has approved removal involve de-

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fendants working hand-in-hand with the federal government to achieve a task that furthers an end of the
federal government. See, e.g., Soper (No. 1), 270 U.S. at 30
(chauffeur assisting prohibition agents in distillery raid
“has the same right to the benefit” of the federal officer
removal statute as the agents); Davis v. South Carolina,
107 U.S. at 600 (permitting removal by Army corporal
who assisted federal revenue officers in distillery raid);
Tennessee v. Davis, 100 U.S. at 261 (permitting removal
by federal revenue officer that shot and killed victim
during a federal distillery raid). Here, CBS worked
hand-in-hand with the government, assisting the federal
government in building warships. “Acting under” covers
situations, like this one, where the federal government
uses a private corporation to achieve an end it would
have otherwise used its own agents to complete.

C. CBS Was Acting Under Color of Federal Authority.
CBS also satisfies the third element which requires the
gravamen of the claim against CBS occur while it acted
under color of federal authority. As CBS explains,
this requirement is distinct from the “acting under”
requirement in the same way a bona fide federal officer
could not remove a trespass suit that occurred while
he was taking out the garbage—there must be a “causal
connection between the charged conduct and asserted
official authority.” Jefferson Cnty., Ala. v. Acker, 527 U.S.
423, 431 (1999) (internal quotations omitted). CBS can
satisfy this requirement if its relationship with Ruppel
“derived solely from [its] official duties” for the Navy.

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See Willingham, 395 U.S. at 409. Here, CBS acted under
the Navy by installing asbestos. This duty gave rise to
Ruppel’s complaint. Thus, the gravamen of Ruppel’s
complaint occurred while CBS acted under color
of federal authority.

D. CBS Has a Colorable Federal Defense.
The parties primarily focus on the final requirement
for removal—that CBS has a colorable federal defense.
As we noted above, this requirement not only satisfies
Article III jurisdiction, it also encapsulates Congress’s
desire to have federal defenses litigated in federal forums. Mesa, 489 U.S. at 127-34; Willingham, 395 U.S.
at 406-07. Requiring the defense only be colorable,
instead of “clearly sustainable,” advances this goal. Id.
at 407. At this point, we are concerned with who makes
the ultimate determination, not what that determination will be. If defendants had to “virtually . . . win
[their] case before [they] can have it removed,” we would
leave nothing for the eventual trial court to decide.
Acker, 527 U.S. at 431 (internal quotations omitted);
see Willingham, 395 U.S. at 407. The validity of the
defense will present “complex issues, but the propriety
of removal does not depend on the answers.” Venezia
v. Robinson, 16 F.3d 209, 212 (7th Cir. 1994). Instead, the
claimed defense need only be “plausible.” Id.
Preliminarily, we must determine what kind of claims
Ruppel’s complaint alleges. Both parties agree he alleges
failure-to-warn claims against CBS, but CBS argues the

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complaint also asserts liability based on its mere use of
asbestos. If CBS has a colorable defense as to either
claim, then the entire case is removable. See 28 U.S.C.
§ 1367; see also Rockwell Int’l Corp. v. United States, 549 U.S.
457, 474 n.6 (2007) (a party cannot amend the complaint after removal to defeat jurisdiction). After addressing this issue, we turn to the applicability of the government contractor defense.

1.

Ruppel Seeks Recovery for CBS’s Use of Asbestos
and Its Failure to Warn.

Ruppel’s primary argument on appeal is his complaint contains only failure-to-warn claims, presumably,
because he thinks the government contractor defense is
less applicable to these suits. Turning to the complaint,
paragraph eleven alleges the:
Defendants failed to exercise ordinary care and caution
for the safety of the Plaintiff in one or more of the
following respects:
(a) Included asbestos in their products, even though
it was completely foreseeable and could or should
have been anticipated that persons working
with or around them would inhale asbestos fibers;
(b) Included asbestos in their products when the
Defendants knew or should have known that
said asbestos fibers would have a toxic, poisonous
and highly deleterious effect upon the health
of persons inhaling them;

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(c) Included asbestos in their products when adequate
substitutes for the asbestos in them was available;
(d) Failed to provide any or adequate warnings to
persons working with and around the products of
the dangers of inhaling the asbestos fibers contained in them;
(e) Failed to provide any or adequate instructions
concerning the safe methods of working with and
around the products, including specific instructions on how to avoid inhaling the asbestos fibers
in them; and
(f) Failed to conduct tests on the asbestos containing
products manufactured, sold, delivered or installed
by the Defendants in order to determine the hazards to which workers might be exposed while
working with the products.
(g) Designed, manufactured and sold equipment,
vehicles, machinery, technologies and systems that
included asbestos-containing components and
required and/or specified the use of asbestos-containing replacement components.
(Dkt. 3-1 at 5).
Subparagraphs (a), (b), (c), and (g) plainly allege
liability based on the mere use of asbestos. First, the
introductory clause states Ruppel could recover “in one
or more of the following [subparagraphs],” indicating
that Ruppel alleges the facts in each subparagraph independently give rise to liability. Second, the language
in those four subparagraphs contain the hallmarks
of negligence liability. See Jablonski v. Ford Motor Co.,

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955 N.E.2d 1138, 1153-54 (Ill. 2011) (“A product liability
action . . . is based upon fundamental concepts of common
law negligence,” which require the plaintiff to show “the
manufacturer knew or should have known of the risk
posed by the product design at the time of manufacture of the product” and that “the risk of harm outweighs the utility of a particular design.” (internal quotations omitted)). Accordingly, Ruppel’s complaint alleges
CBS was negligent because it “[i]ncluded asbestos in
their products”—i.e., because it used asbestos. To be
sure, the complaint also contains failure-to-warn claims
in subparagraphs (e) and (f). Ruppel counters that the
use-of-asbestos subparagraphs were only “foundational
to the failure to warn claim that was being made; if
CBS never used a hazardous material in its manufacture
of its products, there would have been no need to warn
of same.” However, Ruppel’s reading is inconsistent
with the introductory “one or more” clause. Additionally, subparagraph (g), which comes after the two
failure-to-warn subparagraphs, asserts liability because
CBS “included asbestos-containing components” in its
products—another use-of-asbestos claim. We decline to
counterintuitively read that claim as “foundational”
given its position in the complaint. We conclude that
Ruppel’s complaint contains use-of-asbestos and failure-to-warn claims.

2.

CBS Has a Colorable Argument for the Government Contractor Defense.

The government contractor defense, developed in Boyle
v. United Technologies Corp., immunizes government con-

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tractors from state tort law when the government had
a hand in a defendant’s allegedly defective design. 487
U.S. 500, 511-12 (1988). The Court noted that, “[i]t
makes little sense to insulate the Government against
financial liability,” through sovereign immunity and
the Federal Tort Claims Act (“FTCA”), “for the judgment
that a particular feature of military equipment is necessary when the Government produces the equipment
itself, but not when it contracts for the production.” Id.
at 512. Drawing on the FTCA, the Court held federal
interests preempt state law duties and immunize defendants 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.
While the third element ensures the manufacturer does
not withhold useful safety information, the first two
elements capture the government’s discretion in the
design. After all, Boyle is premised on the conflict
between the “peculiarly federal concern” regarding the
design of military equipment, on the one hand, and state
tort law duties, on the other. See id. at 505, 511. Only
when the government exercises discretion in the design
feature does a preemptive federal interest exist. Thus, if
the federal government “purchas[ed] . . . an air condition-unit, specifying the cooling capacity but not the
precise manner of construction” the defendant could not
assert the defense because the “contractor could comply
with both its contractual obligations and [a hypothetical]
state-prescribed duty” to “include a certain safety fea-

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ture.” Id. at 509. Boyle presented a different scenario.
There, the decedent initially survived a helicopter crash
but ultimately drowned because, plaintiffs alleged, the
escape hatch should have opened outward instead of
inward. Id. at 502-03. The Court found the “significant
conflict” between “the state-imposed duty of care . . . to
equip helicopters with the sort of escape-hatch
mechanism petitioner claims was necessary” and the
“duty imposed by the Government contract . . . to manufacture and deliver helicopters with the sort of escape-hatch mechanism shown by the [military] specifications” immunized the defendant. Id. at 509. We proceed
under this framework and first determine the Navy’s
role in CBS’s inclusion of asbestos. Then, we examine
Boyle’s applicability to Ruppel’s failure-to-warn claims.

i.

The Government Contractor Defense Is Applicable to Ruppel’s Use-of-Asbestos Claims.

Although we established the complaint asserts
use-of-asbestos claims, Ruppel presents no argument disputing the applicability of the government contractor defense to those claims, and we find CBS presents a colorable defense. The exhibits attached to CBS’s Rule 59(e)
motion in the district court support the jurisdictional
allegations in CBS’s notice of removal.1 With respect to

1

CBS’s initial notice of removal contained only a “short and
plain statement of the grounds for removal” without supporting
exhibits. See 28 U.S.C. § 1446(a). And because CBS withdrew its
Rule 59(e) motion, the district court did not transmit it as part
(continued...)

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the first two elements establishing discretion, the
United States not only “approved reasonably precise
[turbine] specifications” with which CBS’s products
conformed, see Boyle, 487 U.S. at 512, the Navy explicitly
required asbestos, making it impossible to comply
with the Navy and state tort law simultaneously. CBS
provided the affidavit of James Gate, a former manager
of design verification for CBS. (Dkt. 47, Ex. A.) His
affidavit states that military design specifications
(“MilSpecs”) required using asbestos, that the Navy

1

(...continued)
of the record on appeal. See 7th Cir. R. 10. Consequently,
Ruppel argues that CBS waived the arguments relying on this
material, while CBS urges us to remand the case for resolution
or decide the issue based only on the notice of removal. However, CBS did designate the Rule 59(e) motion and exhibits as
part of the record under Circuit Rule 10 (permitting parties
to unilaterally designate documents tendered to, but not
considered by, the district court), see (Dkt. 60), although its
appellate brief apparently fails to recognize this. Notwithstanding, CBS could also have amended its notice of removal and
added supporting exhibits under 28 U.S.C. § 1653 (permitting
parties to amend “[d]effective allegations of jurisdiction . . . in
the trial or appellate courts”). See, e.g., Grinnell Mut. Reinsurance
Co. v. Haight, 697 F.3d 582, 584-85 (7th Cir. 2012); see also
Willingham, 395 U.S. at 407 n.3 (citing 28 U.S.C. § 1653) (noting
the material on which it based its removal finding “should
have appeared in the petition for removal,” but “for purposes
of this review it is proper to treat the removal petition as if
it had been amended to include the relevant information
contained in the later-filed affidavits”).

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oversaw the turbines’ production, and the Navy did not
permit deviation from the MilSpecs. (Id. at ¶¶ 6-8, 11, 13,
15, 16-29.) Navy Rear Admiral Roger B. Horne, Jr.’s
affidavit confirms that the MilSpecs required asbestos,
the Navy carefully inspected the turbines, and the Navy
would have rejected a turbine without asbestos. (Ex. B
¶¶ 1, 16-17, 20-22, 34.) CBS also submitted the actual
MilSpecs, which show the Navy required CBS to
use asbestos. (Ex. C.)
With respect to the knowledge element, CBS provided evidence that the Navy knew of all of the hazards
associated with asbestos such that there were no
“dangers in the use of the equipment that were known
to the supplier but not to the United States.” See
Boyle, 487 U.S. at 512. CBS submitted the affidavit of
Dr. Samuel Forman, who undertook a study of the
Navy’s knowledge of asbestos hazards and stated the
Navy knew of the hazards by 1922. (Ex. G ¶ 20.)
Further, Dr. Forman stated that a consultant to highranking Naval health officials told the Navy’s Bureau
of Medicine and Surgery that an insulation supplier
(like Westinghouse) had concluded asbestos presented
serious health risks, but the Navy did not “want[]
any change in the specifications as the performance
with the present materials [was] entirely satisfactory.” (Id.
at ¶¶ 33-34) (original brackets omitted). As such, CBS
has a colorable defense to the use-of-asbestos claims.

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ii. The Government Contractor Defense Is Applicable to Ruppel’s Failure-to-Warn Claims.
“It is well established that the government contractor
defense articulated by the Supreme Court in Boyle may
operate to defeat a state failure-to-warn claim.” Oliver
v. Oshkosh Truck Corp., 96 F.3d 992, 1003 (7th Cir. 1996).
Boyle’s interest in “insulating” contractors from suits
when the “the government exercises its discretion and
approves designs” extends to situations where it “approves warnings intended for users.” Id. (quoting Tate
v. Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995)).
Thus, we have held the government contractor defense is applicable to failure-to-warn claims when the
defendant can show that: (1) “the government exercised
its discretion and approved certain warnings,” which
must “go beyond merely ‘rubber stamping’ the contractor’s choice”; (2) “the contractor provided the
warnings required by the government”; and (3) “the
contractor warned the government about dangers in
the equipment’s use that were known to the contractor
but not to the government.” Id. at 1003-04.2

2

The district court required and Ruppel incorrectly asserts
that the government contractor defense requires the Navy to
have precluded adequate warnings. Ruppel cites In re Hawaii
Federal Asbestos Cases, 960 F.2d 806, 813 (9th Cir. 1992), and
In re Joint Eastern & Southern District New York Asbestos Litigation, 897 F.2d 626, 632 (2d Cir. 1990), for the proposition that
the Navy had to explicitly forbid warnings before a contractor
can raise the Boyle defense against failure-to-warn claims.
(continued...)

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Like the use-of-asbestos claim, the exhibits attached to
CBS’s Rule 59(e) motion establish a colorable argument
for the defense. First, the Navy controlled the content
and placement of warnings. Gate’s affidavit states the
“Navy had precise specifications as to the nature of
any communication affixed to equipment supplied by
Westinghouse to the Navy,” and “Westinghouse would
not have been permitted . . . to affix any type of
warning . . . beyond those required by the Navy, without
prior discussion with, and approval by, the Navy.” (Ex. A
¶ 31.) Instead, the Navy supplied its own instruction
manuals with precautions. (Id. at ¶ 32.) The actual
MilSpecs confirm the Navy’s control over the inclusion
of warnings. See (Ex. E § 3.4). Next, CBS complied with
the Navy’s warning requirements (by affixing none)
because the Navy prohibited warnings. Admiral Horne
stated that the MilSpecs “addressed the instructions
considered essential by the Navy to warn individuals
working with that equipment and material about
potential hazards,” and they did not include warnings
about asbestos. (Ex. B ¶¶ 29-30.) Finally, the third

2

(...continued)
We expressly rejected this standard in Oliver, stating “[w]e
cannot accept as consistent with Boyle the suggestion that
there is any strict requirement that the government ‘prohibit’
warnings altogether or ‘dictate’ the contents of the warnings
actually incorporated.” Oliver, 96 F.3d at 1004 n.8. What is
more, the Ninth Circuit subsequently adopted the Oliver test
and rejected Ruppel’s reading of In re Hawaii. See Getz v. Boeing
Co., 654 F.3d 852, 866-67 (9th Cir. 2011).

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element in Oliver mirrors the third Boyle requirement,
which as explained above, CBS satisfies because there is
nothing CBS knew about asbestos that the Navy did not.
As such, CBS has a colorable defense for the failure-to-warn claims as well.

III. Conclusion
For the foregoing reasons, we R EVERSE the district
court’s decision and R EMAND for further proceedings
consistent with this opinion.

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