Walkup et al v. Air & Liquid Systems Corporation et al

Filing 128

REPORT AND RECOMMENDATIONS - DENYING #13 MOTION to Remand to State Court- filed by Larry Walkup, Betty Walkup. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), briefing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 10/15/2013. Signed by Judge Sherry R. Fallon on 9/26/13. (rwc) Modified on 9/27/2013 (lih).

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

LARR Y WALKUP and
BETTY WALKUP,
Plaintiffs,
v.
AIR & LIQUID SYSTEMS CORP.,
AKA BUFFALO PUMPS, INC., et aI.,
Defendants.

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Civil Action No. 12-1635-SLR-SRF

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REPORT AND RECOMMENDATION
I.

INTRODUCTION
Presently before the court in this diversity action is a Motion to Remand filed by the

Plaintiffs, Larry and Betty Walkup ("Plaintiffs"), on the ground that the removing party,
Defendant Foster Wheeler Energy Corporation ("Foster Wheeler"), did not meet the
requirements for removal under 28 U.S.C. § 1442. (D.1. 13) Foster Wheeler opposes Plaintiffs'
Motion. (D.l. 20) For the reasons which follow, I recommend that the court DENY Plaintiffs'
Motion to Remand.

II.

BACKGROUND
The Plaintiffs filed this personal injury action against Foster Wheeler and other

defendants on June 14,2012, in the Superior Court of Delaware. (D.!. 1, Ex. A) The Complaint
alleges that Larry Walkup ("Mr. Walkup") was exposed to asbestos through personal
construction work from 1954 to 1959, personal automotive work from 1958 to 1980, and
employment as an engineman in the U.S. Navy from 1959 to 1962, as a laborer and engineer at
National Electric Coil/Copper Industries from 1963 to 1980, as an industrial engineer at West
Virginia Armature Co. from 1980 to 1981, and as a plant manager at Baker Mine Service from

1981 to 1985. (D.I. 1, Ex. A -,r 47)
On December 3, 2012, Foster Wheeler removed the action to this court. (D.I. 1) Plaintiffs
filed the pending Motion to Remand on December 18, 2012. (D.I. 13) On December 19, 2012,
Plaintiffs filed Evidentiary Objections to affidavits of defense witnesses submitted by Foster
Wheeler in support of removal. I (D.I. 16)

III.

LEGAL STANDARD
The federal officer removal statute, 28 U.S.C. § 1442(a)(l), provides, in pertinent part:
(a) A civil action ... commenced in State court against any of the following may
be removed by them to district court of the United States for the district and
division embracing the place where it is pending.
(1) The United States or an agency thereof of any officer (or any person
acting under that officer) of the United States or of any agency thereof,
sued in an official or individual capacity for any act under color of such
office ....

28 U.S.c. § 1442(a)(l). The party removing an action to federal court bears the burden of
proving that removal is appropriate. 2 See Boyer v. Snap-On Tools Corp., 913 F.2d 108, III (3d
Cir. 1990). In the Third Circuit, the provisions of the federal officer removal statute are to be
"broadly construed." Sun Buick, Inc. v. Saab Cars USA. Inc., 26 F.3d 1259, 1262 (3d Cir. 1994).

See also Megill v. Worthington Pump, Inc., 1999 WL 191565, at *2 (D. Del. Mar. 26, 1999). The

1 Specifically, Plaintiffs move to strike portions of the affidavits of J. Thomas Schroppe (D.I. 1,
Ex. K) and Admiral Ben J. Lehman (Jd., Ex. L) and various related exhibits. (D.I. 16 at 1)

2 The Third Circuit draws a distinction between the removal provisions of section 1441, which
"'are to be strictly construed against removal and all doubts should be resolved in favor of
remand,'" Boyer v. Snap-On Tools Corp., 913 F.2d 108, III (3d Cir. 1990) (quoting Steel Valley
Auth. v. Union Switch & Signal Div., 809 F.2d 1006, 1010 (3d Cir. 1987)), and the provisions of
the federal officer removal statute, which are to be "broadly construed." Sun Buick. Inc. v. Saab
Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994). See also Deuley v. Dyncorp Int'l, Inc., 588 F.
Supp. 2d 539, 542 (D. DeL 2008) ("It is recognized that this provision [§ 1442(a)(l)] is not to be
construed narrowly."); Parlin v. Dyncorp Int'l, Inc., 579 F. Supp. 2d 629, 634 (D. Del. 2008)
(explaining that Section 1442(a) is "liberally construed").

2

Supreme Court has explained that "the right of removal is absolute for conduct performed under
color of federal office, and has insisted that the policy favoring removal 'should not be frustrated
by a narrow, grudging interpretation of § 1442(a)(1).'" Arizona v. Manypenny, 451 U.S. 232, 242
(1981 ) (citation omitted).
To establish federal officer removal jurisdiction under Section 1442(a)(1), a defendant
must show the following:
(1) it is a "person" within the meaning of the statute;
(2) the plaintiffs claims are based upon the defendant's conduct "acting under" a
federal office;
(3) it raises a colorable federal defense; and
(4) there is a causal nexus between the claims and the conduct performed under
color of a federal office.

Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998) (citing Mesa v.
California, 489 U.S. 121, 129 (1989).
With respect to the first element of the statute, this court has held that "defendants, as
corporations, are 'persons' within the meaning of [Section 1442(a)(l)]." In re Asbestos Litig.

(Seitz), 661 F. Supp. 2d 451, 454 (D. Del. 2009) (citing Good v. Armstrong World Indus., Inc.,
914 F. Supp. 1125, 1128 (E.D. Pa. 1996). See also Kirks v. GE, 654 F. Supp. 2d 220, 223 (D.
Del. 2009).
To satisfy the second element, the defendant "must demonstrate that a 'federal office'
was the source of the specific act for which the contractor now faces suit." In re Asbestos Litig.

(Seitz), 661 F. Supp. 2d at 454 (citing Holdren v. Buffalo Pumps, Inc., 614 F. Supp. 2d 129, 138
(D. Mass. 2009). "The second factor has been described as requiring 'a showing that the acts
forming the basis of the state suit were performed pursuant to an officer's direct orders or
comprehensive and detailed regulations. '" Id. (citing Good, 914 F. Supp. at 1128).
The third element "requires a moving defendant to demonstrate that there is a colorable

3

defense to a plaintiffs claims." Id. (citing Megill, 1999 WL 191565, at *3). The colorable
defense asserted here is the federal common law government contractor defense. According to
the Supreme Court, a federal contractor will not be liable for design defects in military
equipment3 under state tort laws 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. 4
Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988).

Although the Boyle decision applied the government contractor defense to a design defect
products liability claim, federal courts have recognized the defense's applicability to state law
failure-to-warn clams. See, e.g., In re Asbestos Litig. (Seitz), 661 F. Supp. 2d at 454; Kirks, 654
F. Supp. 2d at 224-25; Megill, 1999 WL 191565, at *4. 5 '''Indeed, the determination of whether
defendant has demonstrated a colorable defense under Boyle collapses into the analysis required
for determining whether defendant has shown a causal connection between plaintiff s claims and

In the Third Circuit, the government contractor defense is "available to all contractors who are
'compelled by a contract to perform an obligation for the United States,' even where a
nonmilitary product is at issue." Megill, 1999 WL 191565, at *3 nJ (quoting Carley v. Wheeled
Coach, 991 F.2d 1117, 1120 (3d Cir. 1993»).

3

"The first two of these conditions assure that ... the design feature in question was considered
by a Government officer, and not merely by the contractor itself. The third condition is necessary
because, in its absence, the displacement of state tort law would create some incentive for the
manufacturer to withhold knowledge of risks, since conveying that knowledge might disrupt the
contract but withholding it would produce no liability." Boyle v. United Techs. Corp., 487 U.S.
500, 512-13 (1988).
4

5 See also Oliver v. Oshkosh Truck Corp., 96 F .3d 992, 1003 (7th Cir. 1996) ("It is well
established that the government contractor defense ... may operate to defeat a state failure-to­
warn claim." (citing Butler v. Ingalls Shipbuilding, Inc., 89 F.3d 582, 586 (9th Cir. 1996»; Tate
v. Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995); In re Joint E. & s. Dist. N. Y Asbestos
Lilig., 897 F.2d 626, 629 (2d Cir. 1990).

4

the conduct perfonned under color of federal office. ", In re Asbestos Litig. (Seitz), 661 F. Supp.
2d at 454-55 (quoting Megill, 1999 WL 191565, at *4).
The Supreme Court in Boyle held that the government contractor defense pre-empts state
tort law when "the state-imposed duty of care that is the asserted basis of the contractor's
liability ... is precisely contrary to the duty imposed by the government contract." Boyle, 487
U.S. at 509. Thus, in actions, such as the present case, involving allegations of failure to warn of
the dangers of asbestos, the removing defendant
must show that the applicable federal contract includes warning requirements that
significantly conflict with those that might be imposed by state law. Moreover, it
seems clear to us(J that Boyle's requirement of government approval of
"reasonably precise specifications" mandates that the federal duties be imposed
upon the contractor. The contractor must show that whatever warnings
accompanied a product resulted from a determination of a government official, ..
. and thus that the government itself "dictated" the content of the warnings meant
to accompany the product.
In re Asbestos Litig. (Seitz), 661 F. Supp. 2d at 455 (quoting In re Joint

&

s.

Dist. N. Y

Asbestos Litig., 897 F.2d 626, 630 (2d Cir. 1990)). "'A crucial element of both the Boyle
decision and the removal requirements is missing if the contractor fails to establish a causal
connection between the conduct being supervised by the [federal office] and the conduct deemed
offensive in the plaintiff's complaint. ", Id. (alteration in original) (quoting Megill, 1999 WL
191565, at *4).
IV.

DISCUSSION

The dispute in this case turns on whether Foster Wheeler's evidence supporting the
government contractor defense is sufficient to meet the requirements for removal under Section
1442(a)(1). Foster Wheeler contends that its affidavits and supporting materials demonstrate that
the Navy exercised control over the manufactured products and that, consequently, the
government contractor defense precludes state-law liability for defective product design and

5

failure to warn. (D.!. 20 at 2, 4, 5)
On the other hand, Plaintiffs claim that Foster Wheeler's evidence is "speculative and
hearsay conjecture" that does not establish a colorable federal defense or satisfy the elements for
removal. (D.I. 14 at 1, 3) In support of this contention, Plaintiffs point to a series of decisions
that reject Section 1442(a)(l) removal after considering similar (and in some instances, the same)
affidavits to those offered here. 6 (ld. at 2 n.1)
However, this court has previously noted in Kirks v. GE,
there are decisions rejecting evidence such as that proffered by [the defendant],
instead requiring a higher threshold of evidence to establish federal officer
removal jurisdiction. For instance, in Holdren v. Buffalo Pumps, Inc., the district
court not only required the contractor to demonstrate that "the decision to warn
must be the government's, not the contractor's," but that the decision also "reflect
a federal interest incompatible with the important health and safety requirements
of state law." While these considered opinions have merit, given that the
provisions of the federal officer removal statute are to be construed broadly, and
given that [the defendant] has produced evidence demonstrating a significant
degree of control by a federal office over the warnings related to the dangers of
asbestos, I respectfully reach a contrary conclusion.

Kirks, 654 F. Supp. 2d at 225-26 (citations omitted).
A. Analysis of Colorable Federal Defense Standard
This court's ruling in Kirks illustrates the trend in this Circuit to broadly construe the
federal officer removal statute. More recently, in Hagen v. Benjamin Foster Co., 739 F. Supp. 2d

Specifically, Plaintiffs cite the following decisions: Adams v. Armstrong Int'l, Inc., 2012 WL
76159 (S.D. Ill. Jan. 10,2012); Rinier v. A. W Chesterton, Inc., 2010 WL 289194 (S.D. Ill. Jan.
19,2010); Stephens v. A.W Chesterton, Inc., 2009 WL 3517560 (S.D. Ill. Oct. 22, 2009);
Prewett v. Goulds Pumps (IPG), 2009 WL 2959877 (W.D. Wash. Sept. 9, 2009); Holdren, 614
F. Supp. 2d 129; Sether v. AGCO Corp., 2008 WL 1701172 (S.D. Ill. Mar. 28, 2008); Barrett v.
CLA-VAL Co., No. 07-7774 (C.D. Cal. Feb. 5, 2008); Westmiller v. IMO Indus., Inc., 2005 WL
2850334 (W.D. Wash. Oct. 20, 2005); Westbrook v. Asbestos Defendants (BHC) , 2001 WL
902642 (N.D. Cal. July 31, 2001); Nguyen v. Allied Signal, Inc., 1998 WL 690854 (N.D. Cal.
Sept. 29, 1998); Arness v. Boeing N Am., Inc., 997 F. Supp. 1268 (C.D. Cal. 1998); Overly v.
Raybestos-Manhattan, 1996 WL 532150 (N.D. Cal. Sept. 9, 1996).
6

6

770 (E.D. Pa. 2010), District Judge Robreno (presiding in MDL No. 875 -- the multidistrict
asbestos products liability litigation7) conducted a comprehensive analysis of the law and the
conflicting precedent relative to federal officer removal jurisdiction in asbestos actions. Judge
Robreno observed that the split in authority "boils down to an argument over what a defendant
must proffer to defeat a plaintiffs motion for remand." Hagen, 739 F. Supp. 2d at 777. The
divergent views are a consequence of two clashing objectives a court must consider in deciding a
plaintiffs motion to remand: "(1) the Supreme Court's mandate to broadly construe a
defendant's removal under Section 1442(a)(1); and (2) the bounds of federal subject matter
jurisdiction imposed by both the Constitution and the removal statute itself." Id. at 778.
On one side of the split, "the colorable defense standard is not an onerous one to satisfy."
Id. at 780. For example, some courts require only that a colorable defense be plausible in order to
meet the requirements for removal under Section 1442(a)(1 ). Id. "Yet other courts ... [,] albeit
not explicitly -- apply a heightened standard at the remand stage that requires courts to 'carefully
weigh the plausibility of the proffered defense.'" Id. (quoting Holdren, 614 F. Supp. 2d at 140).8
Judge Robreno rejected the latter approach, citing the Supreme Court's mandate to
broadly construe the federal officer's right of removal, id. at 781, and ultimately held that "a
defendant is entitled to removal under Section 1442(a)(1) where the defendant identifies facts

7 "For approximately two decades, all asbestos-related personal injury and wrongful death
actions were consolidated in the Eastern District of Pennsylvania as MDL No. 875. Judge
Eduardo Robreno has presided over MDL No. 875 since 2008." Joyner v. A. C. & R. Insulation
Co., 2013 WL 877125, at *4 n.6 (D. Md. Mar. 7,2013) (citing In re Asbestos Prods. Dab. Litig.
(No. VI), 830 F. Supp. 2d 1377, 1377-78 (J.P.M.L. 2011)).

8 In Holdren, the court granted the plaintiffs' motion to remand because the evidence presented
by the defendants purportedly did not show "that the Navy ever exercised its final authority in
any fashion that either expressly barred or broadly preempted the inclusion of asbestos
warnings." Holdren, 614 F. Supp. 2d at 139.

7

which, viewed in the light most favorable to the defendant, entitle him or her to a complete
defense." Id. at 778. See also Vedros v. Northrop Grumman Shipbuilding, Inc., 2012 WL
3155180, at *5 (E.D. Pa. Aug. 2,2012).
The standard articulated in Hagen has been adopted by federal district courts in a number
of jurisdictions. 9 See, e.g., Joyner v. A.C & R. Insulation Co., 2013 WL 877125, at *5 (D. Md.
Mar. 7, 2013) ("After reviewing the conflicting cases, this court finds the analysis in Hagen
cogent and consistent with the general removal standard."); Williams v. Aetna Life Ins. Co., 2013
WL 593505, at *5 (S.D. Ala. Jan. 30, 2013); Shepherd v. Air & Liquid Sys. Corp., 2012 WL
5874781, at *3 (D.R.I. Nov. 20, 2012) (finding Hagen "persuasive and reasonable since it
presents a standard which requires a removing defendant to show that its federal contractor
defense is factually supported, i.e., 'colorable,' but does not go so far as to require a defendant to
prove its defense in order to secure removal"); Thompson v. Crane Co., 2012 WL 1344453, at
*19-20 (D. Haw. Apr. 17, 2012) ("Hagen is well reasoned, and this Court finds it to be
particularly persuasive because it comes from the MDL Court, which has dealt with thousands of
similar cases from across the country."); Albrecht v. A.a. Smith Water Prods., 2011 WL
5109532, at *4 (S.D.N.Y. Oct. 21,2011).
Pursuant to Kirks and Hagen, the Plaintiffs' Motion to Remand should be denied if Foster
Wheeler "identifies facts which, viewed in the light most favorable to the defendant, would
establish a complete defense at triaL" Hagen, 739 F. Supp. 2d at 783. As discussed below, Foster
Wheeler has satisfied this standard and each element of federal officer removal jurisdiction.

Notably, when the Judicial Panel on Multidistrict Litigation recently discontinued the transfer
of new asbestos cases to MDL No. 875, it contemplated that district courts presiding over future
asbestos cases "will almost certainly find useful guidance in the many substantive and thoughtful
rulings that have been issued during the lengthy course of the multidistrict proceedings," and
specifically referenced the Hagen decision, among others, relative to federal officer removal. See
In re Asbestos Prods. Liab. Litig. (.7110. VI), 830 F. Supp. 2d 1377, 1379 & n.5 (lP.M.L. 2011).
9

8

B. Analysis of Federal Officer Removal Jurisdiction

In order to establish removal jurisdiction under Section 1442(a)(l), Foster Wheeler must
show the following:
(I) it is a "person" within the meaning of the statute;
(2) the plaintiffs claims are based upon the defendant's conduct "acting under" a
federal office;
(3) it raises a colorable federal defense; and
(4) there is a causal nexus between the claims and the conduct performed under
color of a federal office.
Feidt, 153 F.3d at 127 (citing Mesa, 489 U.S. at 129).
There is no dispute that Foster Wheeler, as a corporation,

IS

a "person" within the

meaning of the statute. See Kirks, 654 F. Supp. 2d at 223.
With respect to the second element, Foster Wheeler has shown that Plaintiffs' design
defect and failure-to-warn claims are based upon Foster Wheeler's conduct "acting under" a
federal office. Specifically, Foster Wheeler has submitted three affidavits to demonstrate "that
the acts forming the basis of [Plaintiffs' claims] were performed pursuant to ... direct orders or
comprehensive and detailed regulations" of the office of the Navy and its officers. See In re
Asbestos Lilig. (Seitz), 661 F. Supp. 2d at 454.
Foster Wheeler's first affidavit is the declaration of J. Thomas Schroppe ("Mr.
Schroppe"). (0.1. 1, Ex. K) Mr. Schroppe is a former Foster Wheeler employee who began his
career as a proposal engineer in the company's marine department, and ultimately became
President of Foster Wheeler. (Id., Ex. K

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1) Mr. Schroppe states that, over the course of his

employment, he became "personally familiar with the degree of supervision and control
exercised by the Navy and its agencies in procurement contracts with Foster Wheeler." (Id., Ex.
K

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2) According to Mr. Schroppe, Foster Wheeler was required to comply strictly with detailed

ship specifications and military specifications for each of its individual products. (Id., Ex. K

9

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5,

6) These specifications "cover[ed] all specific components of the boiler[s]" that Foster Wheeler
built for the Navy. (Id., Ex. K

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6)

Mr. Schroppe further states that Foster Wheeler was obligated to provide technical
manuals with its products, over which "[t]he Navy exercised intense direction and control." (Id.,
Ex. K ~ 21) Specifically, Mr. Schroppe explains:
The Navy required that every piece of equipment be supplied with a
defined number of copies of one or more technical manuals. Navy personnel
participated intimately in the preparation of this kind of information and exercised
specific direction and control over its contents. These manuals included safety
information related to the operation of naval boilers and economizers only to the
extent directed by the Navy.
Furthermore, the Navy had precise specifications, practices and
procedures that governed the content of any communication affixed to machinery
supplied by Foster Wheeler to the Navy. Foster Wheeler would not be permitted,
under the specifications, associated regulations and procedures, and especially
under actual practice as it evolved in the field, to affix any type of warning or
caution statement to a piece of equipment intended for installation onto a Navy
vessel, beyond those required by the Navy.

(Id., Ex. K ,;~ 21-22)
Foster Wheeler also filed the affidavit of Admiral Ben 1. Lehman ("Admiral Lehman"), a
retired Rear Admiral of the United States Navy. (Id., Ex. L

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1) Admiral Lehman describes the

level of control that the Navy asserted over all aspects of the equipment supplied to the Navy
pursuant to government contracts. (Id., Ex. L

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2) With respect to product design and

manufacture, Admiral Lehman states that "the military specifications for boilers . . . were
drafted, approved, and maintained by the U.S. Navy, ... to encompass all aspects of shipboard
equipment, including the material requirements." (Id., Ex. L

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6) Admiral Lehman avers that

Foster Wheeler was required to comply with these specifications "in every detail," and inspectors
affiliated with the Navy "would report . . . any violations of, or failures to comply with
specifications, ... and not authorize shipment." (Jd., Ex. L ~ 5)
Admiral Lehman further states that
10

[m]ilitary specifications governed every significant characteristic of the
equipment used on U.S. Navy ships, including the instructions and warnings.
Drawings for nameplates, the texts of instruction manuals, and every other
document relating to construction, maintenance, and operation of the vessel was
approved by the U.S. Navy. This control included the decision of which warnings
should or should not be included.
(ld., Ex. L ~ 10) According to Admiral Lehman,
[t]he U.S. Navy would not have allowed its equipment suppliers, such as
Foster Wheeler, to affix any warning related to any asbestos hazards on their
equipment. This would have included boilers. Further, the U.S. Navy would not
have allowed Foster Wheeler to place any warnings related to asbestos hazards in
any written material provided by Foster Wheeler to the U.S. Navy or to a U.S.
Navy contractor in accordance with its contracts, including its technical and
operations manuals. To do so would have interfered with the U.S. Navy's mission
and control of its ships and personnel. 10
(Id., Ex. L ~ 14)
Foster Wheeler also submitted the affidavit of Lawrence Stilwell Betts, MD, PhD, CIH,
FACOEM ("Dr. Betts") to support the proposition that the Navy possessed state of the art
knowledge on the dangers of asbestos. (D.I. 20, Ex. 6) Dr. Betts is a medical doctor and retired
U. S. Navy Captain. (ld., Ex. 6 ~ 1) In his affidavit, Dr. Betts states that,
[d]uring the period from the early 1920s to the late 1960s, there was nothing
about the hazards associated with the use of asbestos containing-products on a
marine steam boiler on United States Navy ships known by a boiler manufacturer,
like Foster Wheeler, that were not known by the United States and the United
States Navy.
(Id., Ex. 6'031) According to Dr. Betts, "[t]he information possessed by the Navy with respect
to the specification and use of asbestos, and the health hazards associated with its use aboard
Navy vessels, ... far exceeded any information that possibly could have been provided by a
boiler manufacturer like Foster Wheeler." (ld., Ex. 6

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31) Dr. Betts further avers that "[t]he

This court in Kirks relied upon a similar affidavit of Admiral Lehman, among others, to find
removal appropriate for failure-to-warn claims relating to asbestos use aboard Navy ships. See
Kirks, 654 F. Supp. 2d at 223-24,225.
10

11

Navy's use of asbestos aboard ships and on boilers, if any, was not by chance or based on any
requirements of Foster Wheeler. The use of asbestos was based upon military necessity."ll (Id.,
Ex. 6 ~ 5)

Based on the above affidavits, I find that Foster Wheeler has satisfied its burden to prove
that Plaintiffs' design defect and failure-to-warn claims are based upon Foster Wheeler's conduct
"acting under" the office of the Navy and its officers.
With respect to the third element of removal jurisdiction under Section 1442(a)(1), Foster
Wheeler has raised a colorable federal defense to Plaintiffs' claims, namely, the government
contractor defense. The government contractor defense displaces state tort law where:
(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.
Boyle, 487 U.S. at 512. "However, because 'design defect and failure to warn claims differ

practically as well as theoretically,' courts have required the government approval to 'transcend
rubber stamping' for the defense to shield a government contractor from failure to warn
liability." Hagen, 739 F. Supp. 2d at 783 (quoting Tate v. Boeing Helicopters, 55 F.3d 1150,
1156, 1157 (6thCir. 1995».
The government contractor defense inquiry "is undertaken whilst viewing the facts in the
light most favorable to Defendants, and does not address the merits of the defense." Id. at 783­
84.
The evidence submitted by Foster Wheeler is adequate on its face to make a plausible

This court in Kirks relied upon a similar affidavit of Dr. Betts, (among others, see supra note
10), in detennining that the defendant had established federal officer removal jurisdiction. See
Kirks, 654 F. Supp. 2d at 224,225.
II

12

showing that the Navy "approved reasonably precise specifications," or exercised direction and
control, over the design, manufacture, and accompanying safety manuals and labeling of the
products supplied by Foster Wheeler. For example, the affidavits indicate that Foster Wheeler's
boilers "were designed and manufactured in accordance with detailed specifications written,
approved, and issued by the U.S. Navy." (D.I. 1, Ex. L ~r 3) Furthermore, Foster Wheeler would
not be permitted to include with its products "any type of warning or caution statement." (ld, Ex.
K

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22) This is supported by the assertion that the specifications "governed every significant

characteristic of the equipment used on U.S. Navy ships, including the instructions and
warnings." (Id, Ex. L ~ 10) According to Foster Wheeler's affidavits, the Navy controlled "the
decision of which warnings should or should not be included." (ld, Ex. L ,-; 10) Therefore, the
evidence is sufficient to plausibly show that the Navy was responsible for the product design and
lack of warnings.
The affidavits are likewise adequate to show that Foster Wheeler's products conformed to
the Navy's specifications. With respect to design and manufacture, Foster Wheeler's products
would not be accepted unless the equipment complied with Navy specifications "in every detail."
(Id, Ex. L

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5) Similarly, Foster Wheeler conformed to the Navy's specifications by failing to

include warnings that "would not be permitted[] under the specifications." (ld, Ex. K ~ 22)
Foster Wheeler's evidence also satisfies the third element of the government contractor
defense. Notably, as the language of the third prong suggests, a contractor is not required to warn
the United States of hazards of which the United States was already aware. Dr. Betts' affidavit
addresses this point directly, by stating that "[t]here was no information concerning any asbestos­
containing hazard or danger posed by any asbestos-containing product applied to any marine
boiler on a United States Navy ship known to a boiler manufacturer, like Foster Wheeler, that

13

was not known to the United States and the United States Navy." (D.I. 20, Ex. 6

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32) This

evidence constitutes a plausible showing that the Navy was already familiar with the dangers of
asbestos, such that Foster Wheeler was not obligated to apprise the Navy of those risks. Thus,
Foster Wheeler has satisfied the third element of the government contractor defense and,
consequently, has established a colorable federal defense under Section 1442(a)(1).
With respect to the final element of federal officer removal jurisdiction, Foster Wheeler
has shown a causal nexus between Plaintiffs' claims and Foster Wheeler's conduct performed
under color of a federal office. The design defect claim arises directly out of the Navy's
specifications, which allegedly required Foster Wheeler to use asbestos in the products it
manufactured and designed. The failure-to-warn claim arises directly out of the Navy's alleged
involvement in the process of determining what warnings could be included with, or placed
upon, products manufactured by Foster Wheeler. Consequently, a causal nexus exists because
Foster Wheeler's liability arises from its official duties, performed in accordance with
government contracts. Therefore, Foster Wheeler has established federal officer removal
jurisdiction.
This conclusion is supported by similar decisions, based upon one or more of these
affidavits, that the federal officer removal statute has been satisfied where Navy regulations
required the use of asbestos and mandated what warnings were required concerning asbestos.12
See, e.g., Shepherd v. Air & Liquid Sys. Corp., 2012 WL 5874781 (finding that Foster Wheeler

had established federal officer removal jurisdiction based, in part, on affidavits from Mr.

12 While this court's prior decisions in Seitz and Megill are contrary to the above conclusion,
those cases were based on a different record. Notably, evidence such as that presented in the
three affidavits filed here was not presented by the defendants in Seitz and Megill. See In re
Asbestos Lilig. (Seitz), 661 F. Supp. 2d at 455; Megill, 1999 WL 191565, at *4.

14

Schroppe, Admiral Lehman, and Dr. Betts); Hagen v. Berifamin Foster Co., 739 F. Supp. 2d 770
(same); Kirks v. GE, 654 F. Supp. 2d 220 (relying, in part, on the affidavits of Admiral Lehman
and Dr. Betts to find removal appropriate for failure-to-warn claims related to asbestos use
aboard Navy ships).

c. Plaintiffs' Evidentiary Objections
Given that Foster Wheeler has satisfied the removal requirements under Section
1442( a)(1), consideration of the Plaintiffs' Evidentiary Objections (D.I. 16) is not warranted at
this early stage of the proceeding. 13 The Supreme Court has
rejected a "narrow, grudging interpretation" of the [federal officer removal]
statute, recognizing that "one of the most important reasons for removal is to have
the validity of the defense of official immunity tried in a federal court." We
therefore do not require the officer virtually to "win his case before he can have it
removed. "
Jefferson County v. Acker, 527 U.S. 423, 431 ( 1999) (emphasis added) (quoting Willingham v.
Morgan, 395 U.S. 402, 407 (1969». Judge Robreno expanded on this point in Hagen, explaining

that
the court is not called upon at this preliminary stage to pierce the pleadings or
dissect the facts stated. Nor is it the Court's function at this stage to determine
credibility, weigh the quantum of evidence or discredit the source of the defense.
It is the sufficiency of the facts stated -- not the weight of the proof presented -­
that matters. For policy reasons, Congress has erected a road to federal court for
litigants who can invoke a federal defense. It is not the Court's role to impose
judicially created tolls on those who seek to travel on it. 14

13 Presumably, the merits of Foster Wheeler's defense will be tested on a motion for summary
judgment or at trial. By allowing Foster Wheeler's defense to be resolved in this forum, the court
adheres to the clear mandate of Section 1442(a)(l). See Hagen, 739 F. Supp. 2d at 783 n.13.

14 See also Albrecht, 2011 WL 5109532, at *4 ("Although the evidence provided by [the
defendant] may ultimately prove insufficient to support its defense on the merits, the Court finds
that Plaintiffs overestimate the demands of § 1442 at this stage of the proceedings. To establish
jurisdiction under § 1442, [the defendant] need not prove its defense but need only show that it
has the underpinnings of a valid federal defense." (citing Hagen, 739 F. Supp. 2d at 782-83».

15

Hagen, 739 F. Supp. 2d at 782-83. Consequently, the court should not consider Plaintiffs'

Evidentiary Objections at this juncture.
V.

CONCLUSION

For the foregoing reasons, I recommend that the court deny the Plaintiffs' Motion to
Remand.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R.
Civ. P. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to ten (10)
pages each. The failure of a party to object to legal conclusions may result in the loss of the right
to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. Appx. 924, 925 n.1
(3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order in Non-Pro Se Matters for
Objections Filed Under Fed. R. Civ. P. 72, dated November 16, 2009, a copy of which is
available on the court's website, www.ded.uscourts.gov.

Dated: September

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2013

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