Killam v. Air and Liquid Systems, Inc. et al

Filing 164

ORDER denying (Doc. # 103 ) Motion to Remand to State Court. See Order for details.Signed by Judge Virginia M. Hernandez Covington on 12/27/2016. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MARC KILLAM,
Plaintiff,
v.

Case No.: 8:16-cv-2915-T-33TBM

AIR AND LIQUID SYSTEMS, INC.,
ET AL.,
Defendants.
________________________________/
ORDER
This cause is before the Court pursuant to Plaintiff Marc
Killam’s Motion to Remand (Doc. # 103), filed on November 14,
2016. On November 30, 2016, Defendant Crane Co. filed a
Response to the motion. (Doc. # 143).

For the reasons that

follow, the Motion to Remand is denied.
I.

Procedural History
Killam served in the U.S. Navy from 1973 to 1977, aboard

the USS McCandless while at sea and in the Philadelphia Navy
Yard. (Doc. # 2 at ¶ 3).

He alleges that, as a Boiler Tender,

he “removed and replaced asbestos gaskets, block, refractory,
castable, pipe covering, insulating cement, packing and/or
spray from valves, boilers, pumps, and/or other miscellaneous
machinery, and/or worked near others who did.” (Id.).

In the

performance of his duties, he “cut, scraped, chipped, mixed,
pulled and/or sawed these items,” and during each job he

“regularly inhaled” asbestos dust. (Id.).

He also “ingested

or otherwise absorbed large amounts of asbestos fibers.” (Id.
at ¶ 4).
Killam alleges that Air and Liquid Systems, Inc., Aurora
Pump Company, Carrier Corp., CBS Corporation, Crane Co.,
Cochrane

Corporation,

Dravo

Corporation,

Electrolux

Home

Products, Inc., Flowserve US, Inc., Foster Wheeler Energy
Corporation, General Electric Company, G.G. of Florida, Inc.,
Gould

Pumps,

Inc.,

IMO

Industries,

Inc.,

Ingersoll-Rand

Company, ITT Corporation, John Crane, Inc., Johnson Controls,
Inc., Metropolitan Life Insurance Co., Strahman Valves, Inc.,
Velan Valve Corp., and Warren Pumps, L.L.C. “manufactured,
sold,

distributed,

installed

or

promoted”

the

asbestos

products that he came into contact with. (Id.). He also
alleges that from 1978, to 1980, he was an auto mechanic and
“breathed asbestos dust emanating from products for which
Defendants Honeywell International, Inc. and Flowserve USA,
Inc. have responsibility.” (Id. at ¶ 5).
In

December

of

2015,

Killam

learned

that

he

has

“Asbestosis, and at a subsequent time, learned said disease
was wrongfully caused.” (Id. at ¶ 55). On September 26, 2016,
Killam

filed

a

Complaint

against

the

above-captioned

Defendants in the Thirteenth Judicial Circuit in and for
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Hillsborough County, Florida. (Doc. # 2).

Killam’s Complaint

contains the following counts, each asserted against all
Defendants:

(1)

negligence,

“Conspiracy

Against

All

(2)

strict

Defendants

in

liability,
Collusion

(3)
with

Metropolitan Life Insurance Company,” and (4) fraudulent
inducement. (Id.).

Crane Co. removed the case to this Court

on October 13, 2016, pursuant to 28 U.S.C. §§ 1442(a)(1) and
1446. (Id.).

At this juncture, Killam seeks an Order of

remand.
II.

Federal Officer Jurisdiction Analysis
A federal court has jurisdiction under 28 U.S.C. §

1442(a)(1) to hear an action against any person acting under
the direction of the United States or its agencies, so long as
all statutory requirements are satisfied. Magnin v. Teledyne
Cont’l Motors, 91 F.3d 1424, 1427 (11th Cir. 1996). “Removal
under 28 U.S.C. § 1442(a)(1) is an exception to the wellpleaded complaint rule, and a case can be properly removed
even where the federal question does not appear on the face of
a plaintiff’s complaint.” Batchelor v. Am. Optical Corp., No.
1:16-cv-21235, 2016 U.S. Dist. LEXIS 65220, at *6 (S.D. Fla.
May 9, 2016)(citing Jefferson Cty., Ala. v. Acker, 527 U.S.
423, 431 (1999)(“Under the federal officer removal statute,
suits against federal officers may be removed despite the
3

nonfederal cast of the complaint; the federal-question element
is met if the defense depends on federal law.”).
“The right of removal is made absolute whenever a suit in
a state court is for any act under color of federal office,
regardless of whether the suit could originally have been
brought

in

a

federal

court.”

Magnin,

91

F.3d

at

1427.

“[D]efendants enjoy much broader removal rights under the
federal officer removal statute than they do under the general
removal statute.” Leite v. Crane Co., 749 F.3d 1117, 1122 (9th
Cir. 2014).
Removal by a private party defendant is appropriate under
the

federal

officer

removal

statute

when

the

removing

defendant shows: (1) the defendant is a person acting under
the statute; (2) the defendant was acting under the direction
of a federal officer when it engaged in the allegedly tortious
conduct; (3) there is a causal nexus between the plaintiff’s
claims and the defendant’s actions under federal direction;
and (4) the defendant has raised a colorable defense based on
federal law. See Mesa v. Ca., 489 U.S. 121, 124-45 (1989);
Ruppel v. CBS Corp., 701 F.3d 1176, 1180-81 (7th Cir. 2012).
As discussed below, the Court finds that all elements are
satisfied.
1.

Crane Co. is a “Person”
4

Killam

does

not

dispute

that

the

first

element

is

satisfied and, because a “person” includes a corporation, such
as Crane Co., the Court finds that the first element is met.
See Winters v. Diamond Shamrock Co., 149 F.3d 387, 398 (5th
Cir. 1998)(“[C]orporate entities qualify as ‘persons’ under §
1442(a)(1).”); Leite, 749 F.3d at 1122 (“Crane, a private
contractor producing equipment for the Navy, qualifies as a
‘person’ under § 1442(a)(1).”).
2.

Crane Co. Acted at the Direction of the U.S. Navy

The Court also finds that Crane Co. has met the second
element - that it was acting under the direction of a federal
officer when it engaged in the allegedly tortious conduct
alleged in the Complaint. As stated in the Notice of Removal,
Crane Co.’s products were designed and manufactured pursuant
to precise terms and specifications approved by the Navy.
(Doc. # 1 at ¶ 8).
Crane

Co.

has

filed

the

affidavit

of

Anthony

D.

Pantaleoni, the Vice-President of Environmental, Health and
Safety for Crane Co. (Doc. # 1 at 84-85).

Among other sworn

statements, Pantaleoni indicates:
Crane Co. made and supplied equipment, including
valves, for Navy ships under contracts between
Crane Co. and the shipyards and/or the United
States
of
America,
specifically
the
Navy
Department. The manufacture of equipment for use
5

on Navy vessels was governed by an extensive set of
federal standards and specifications, chiefly
military
specifications
known
as
Navy
Specifications and later “MilSpecs.” The MilSpecs
governed all aspects of a piece of equipment, such
as a valve’s design and construction and specified
the materials to be used, including materials such
as gaskets and packing used in equipment. . . . All
equipment supplied by Crane Co. to the Navy was
built in accordance with the Navy specifications.
(Id. at 85).
In addition, the affidavit of Rear Admiral David P.
Sargent, Jr., a retired Navy Rear Admiral, contains a detailed
discussion regarding the manner in which the Navy controlled
every aspect of building warships, including all parts and
supplies of such ships. (Id. at 156-191).

These authorities

establish that Crane Co. was acting under the direction of a
federal officer with respect to asbestos-related actions.
See also Ruppel, 701 F.3d at 1181 (reversing district court’s
order granting motion to remand in federal officer removal
case because “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.”).
3.

The Causal Nexus Element is Satisfied

Killam disputes whether there exists a causal nexus

6

between Crane Co.’s actions under the direction of the Navy
and Killam’s injuries. Among other arguments, Killam contends
the causal nexus is absent because the Navy did not forbid
Crane Co. from issuing warnings regarding asbestos. (Doc. #
103-1 at 6-7).
In determining whether the causation element is satisfied
in this case, the Court finds the analysis in Isaacson v. Dow
Chemical Co., 517 F.3d 129 (2d Cir. 2008), instructive.
There, veterans sought damages for failure to warn against the
chemical companies that manufactured Agent Orange for use by
the U.S. Military during the Vietnam War. Id. at 133.

The

chemical companies removed the suit under the federal officer
removal statute and the veterans filed a motion to remand,
which the district court denied. Id.

The Second Circuit

affirmed. Id. Discussing causation, the court explained: “To
show causation, Defendants must only establish that the act
that

is

the

subject

of

Plaintiffs’

attack

(here,

the

production of the byproduct dioxin) occurred while Defendants
were performing their official duties.” Id. at 137-38.

Along

these lines, Crane Co. persuasively submits that its supply of
asbestos-containing products to the Navy that did not feature
a warning was an act performed as a part of its official duty
to the Navy.
7

Under similar circumstances, a number of courts have held
that the provision of asbestos-containing products at the
direction of the Navy supplies a causal connection between a
plaintiff’s injury and the defendant’s actions, particularly
with respect to a failure to warn. See Marley v. Elliot
Turbomachinery Co., 545 F. Supp. 2d 1266, 1273 (S.D. Fla.
2008)(denying

motion

to

remand

in

asbestosis

case

after

finding that a causal nexus was present because “defendants
manufactured and supplied the asbestos containing products in
the course of their contractual relationship with the Navy.”);
Leite, 749 F.3d at 1124 (denying motion to remand filed by
plaintiff

with

asbestosis

because

Crane

Co.’s

supply

of

asbestos containing products to the Navy that did not feature
warnings are acts that Crane Co. did as a part of its official
duties); Ruppel, 701 F.3d at 1180 (“[T]here must be a causal
connection between the charged conduct and asserted official
authority.

CBS

can

satisfy

this

requirement

if

its

relationship with Ruppel derived solely from its official
duties for the Navy. 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.”).

Based

on these authorities and others, the Court determines that
8

Crane Co. has satisfied its burden regarding causation.
4.

Crane Co. has a Colorable Federal Defense

Finally, the Court finds that Crane Co. has asserted a
colorable federal defense: the government contractor defense.
“[A]t this stage of the litigation, there is no need to decide
whether defendants will prevail on [their] defenses. The only
issue is whether one or both of the[] defenses is colorable.”
In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 342 F.
Supp. 2d 147, 158 (S.D.N.Y. 2004); Jefferson Cty., Ala., 527
U.S. at 431 (“In construing the colorable federal defense
requirement,

we

have

rejected

a

‘narrow,

grudging

interpretation’ of the statute . . . [and] do not require the
officer virtually to ‘win his case before he can have it
removed.’”)(quoting Willingham v. Morgan, 395 U.S. 402, 407
(1969); Magnin, 91 F.3d at 1427 (the federal defense “need
only

be

plausible;

its

ultimate

validity

is

not

to

be

Crane Co. asserts the government contractor defense.

As

determined at the time of removal.”)).

stated by the United States Supreme Court, the elements of
this defense are “(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 on the use of the equipment that were known
9

to the suppliers but not to the United States.” Boyle v.
United Techs. Corp., 487 U.S. 500, 512 (1988).
In failure to warn cases, the elements are slightly
different: “(1) the Navy exercised its discretion and approved
certain warnings for Crane’s products, (2) Crane provided the
warnings required by the Navy, and (3) Crane warned the Navy
about any asbestos hazards that were known to Crane but not to
the Navy.” Leite, 749 F.3d at 1123. See also Ruppel, 701 F.3d
at

1185

(“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. Boyle’s
interest in ‘insulating’ contractors from suits when the
‘government exercises its discretion and approves designs’
extends to situations where it ‘approves warnings intended for
users.’”)(citing Oliver v. Oshkosh Truck Corp., 96 F.3d 992,
1003 (7th Cir. 1996)).
Crane Co. has met its burden and has shown a colorable
federal defense.

The Navy provided Crane Co. with precise

specifications regarding its products, which required the use
of asbestos. Crane Co. delivered the products that conformed
to the Navy’s specifications. Details about this relationship
are provided in Rear Admiral Sargent’s affidavit (Doc. # 1 at
165-68) as well as Pantaleoni’s affidavit (Id. at 84-85).
10

In

addition, Crane Co. has filed over 1,000 pages of military
specifications, including illustrations and diagrams. At this
preliminary stage of the litigation, the Court accepts Crane
Co.’s assertion that the Navy did not allow contractors, such
as Crane Co., to independently formulate labels or warnings
for products used on warships.

As stated in Crane Co.’s

response to the Motion to Remand:
The Navy’s specifications governed not only the
design and construction of Crane Co.’s products,
but also the form and content of the labeling,
product literature, and warnings supplied with the
products.
Sargent Aff. at ¶¶ 23-32.
The
specifications did not direct Crane Co. to include
warnings regarding asbestos, and if Crane Co.’s
products deviated from those specifications in any
way, the Navy would reject the product. Id. The
Navy reviewed the proposed product literature and
labeling that accompanied equipment and, at its
discretion, edited the wording of instructional
material and warnings, approving certain warning
language and disapproving other language.
(Doc. # 143 at 6). See also Cuomo v. Crane Co., 771 F.3d 113,
117 (2d Cir. 2014)(“We conclude that Crane’s evidence tending
to prove that the Navy issued precise specifications regarding
its shipboard equipment, that the Navy would not have accepted
Crane’s

equipment

had

it

not

conformed

to

those

specifications, and that the Navy understood the health risk
associated with asbestos easily clears the low threshold for
asserting a federal contractor defense for purposes of removal

11

under § 1442(a)(1).”). Because Crane Co. has a colorable
federal defense to Killam’s asbestos-related claims, the Court
finds that Crane Co. satisfies all requirements for federal
officer removal.
Intertwined with his analysis regarding whether Crane Co.
presents a colorable federal defense, Killam also argues that
remand is required because there is no conflict between state
and federal law regarding asbestos warnings.

In Dorse v.

Eagle-Picher Industries, 898 F.2d 1487, 1490 (11th Cir. 1990),
the court explained that if a defendant cannot show a conflict
between its duties under state tort law and governmental
directives, it cannot assert a valid government contractor
defense.

Killam contends that Crane Co. “has not provided a

good faith foundation to argue that it was unable to comply
with both its contractual obligations with the Navy and the
state duty of care.” (Doc. # 103-1 at 5).

The Court is wary

of deciding fact-intensive issues at the motion to remand
stage, where threshold, jurisdictional issues are presented.
The Court is bound by the Dorse case, and fully intends to
abide by every contour of that opinion.

However, Dorse

addressed a summary judgment issue, and was not decided at the
motion to remand level. At this preliminary juncture, the
Court is satisfied by Crane Co.’s averments that it could not
12

simultaneously abide by state tort law and Crane Co.’s federal
duties.

See Cuomo, 771 F.3d at 117 (“Respecting the policy

behind the federal officer removal statute, we emphasize that
the district court’s role on a remand motion is not to resolve
whether the defendant has established the federal contractor
defense or to resolve factual disputes, but only to ensure the
existence of some competent evidence supporting a ‘colorable’
federal defense.”).
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Plaintiff Marc Killam’s Motion to Remand (Doc. # 103) is
DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 27th
day of December, 2016.

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