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

Filing 97

ORDER denying 71 --motion to remand to state court. Signed by Judge Steven D. Merryday on 1/9/2017. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RALPH DONSON,
Plaintiff,
v.

CASE NO. 8:16-cv-3022-T-23MAP

AIR AND LIQUID SYSTEMS, INC.,
et al.,
Defendants.
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ORDER
Ralph Donson sues (Doc. 2) Crane Co. for negligence, strict liability, and
fraudulent inducement. Crane removed the action under 28 U.S.C. § 1442(a)(1),
which allows the removal of an action against “[t]he 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.” Donson moves (Doc. 71) to remand.
1. Colorable Federal Defense
To remove under Section 1442(a)(1) the defendant must qualify as a “person”
under the statute, must act under the direction of a federal officer at the time the
defendant engaged in the allegedly tortious act, and must advance a “colorable
federal defense.” Also, a causal connection must appear “between what the officer
has done under asserted official authority and the state prosecution.” Mesa v.
California, 489 U.S. 121, 124–25, 129–32 (1989). Donson argues that Crane fails to
demonstrate a colorable federal defense. (Doc. 71-1 at 2) Crane asserts the federal

contractor defense, which is available if “(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 v. United Tech.
Corp., 487 U.S. 500, 512 (1988).
Dorse v. Eagle-Picher Indus. Inc., 898 F.2d 1487, 1489 (11th Cir. 1990), extends
Boyle, which concerns a design defect, to a failure–to–warn:
[In a] ‘failure to warn’ case, Boyle's two-pronged analysis guides the court.
The first prong, that the case concern an area of uniquely federal interest, is
similarly satisfied in this failure to warn case. As in Boyle's design defect
case, the procurement of asbestos . . . for naval ships is undeniably an area
of uniquely federal interest. Having satisfied this threshold requirement,
the court must address the more difficult question of whether a significant
conflict exists between an identifiable federal policy and the operation of
state law.
The three-part Boyle inquiry “elaborates the ‘significant conflict’ prong of the test and
the scope of the displacement of state law.” Glassco v. Miller Equipment Co., Inc., 966
F.2d 641, 642 (11th Cir. 1992).
Other circuits directly address a failure to warn claim:
a defendant may not defeat a state failure-to-warn claim simply by establishing
the elements of the government contractor defense with respect to a plaintiff's
design defect claim . . . when state law would otherwise impose liability for a
failure to warn, that law can be displaced when the contractor can show that: (1)
the government exercised its discretion and approved certain warnings; (2) the
contractor provided the warnings required by the government; (3) the contractor
warned the government about dangers in the equipment's use that were known to
the contractor but not to the government.

Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003-04 (7th Cir. 1996).

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To establish [the government contractor] defense in the context of plaintiffs'
failure-to-warn claims, [the defendant will] ultimately have to prove that (1) the
Navy exercised its discretion and approved certain warnings for [the defendant’s]
products, (2) [the defendant] provided the warnings required by the Navy, and (3)
[the defendant] warned the Navy about any asbestos hazards that were known to
[the defendant] but not to the Navy. See Getz v. Boeing Co., 654 F.3d 852, 866
(9th Cir.2011); accord Tate v. Boeing Helicopters, 140 F.3d 654, 658–60
(6th Cir.1998); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003–04 (7th Cir.1996).

Leite v. Crane Co., 749 F.3d 1117, 1123 (9th Cir. 2014).
Crane asserts a colorable federal defense. Anthony D. Pantaleoni,
Vice-President of Environment, Health and Safety for Crane, states that “[t]he
manufacture of equipment for use on Navy vessels was governed by an extensive set
of federal standards and specifications . . . . All equipment by Crane Co. to the Navy
was built in accordance with the Navy specifications.” (Doc. 1 at 77) Rear Admiral
David P. Sargent Jr., who “had overall responsibility for all matters relating to both
the technical and programmatic details of [the Navy’s ships],” states that “[t]he Navy
maintained the responsibility to develop . . . standards for the manufacture and
supply of equipment used in . . . ships. Specifications . . . were drafted, approved and
maintained by the Navy . . . only the Navy could make changes or modifications to
those specifications.” (Doc. 1-2 at 39) Crane’s equipment purportedly conformed to
the Navy’s specifications. Rear Admiral Samuel A. Forman, “a licensed professional
engineer (mechanical) with extensive operational experience in [ships],” states that:
the Navy’s programs in these areas [industrial hygiene and occupational health]
have paralleled, and at times led . . . asbestos-related issues in particular. The
Navy’s knowledge in the areas of asbestos and associated health conditions has
been quite complete when compared to available knowledge over time, and at
least by the early 1940s, the navy had become a leader in the field of occupational
medicine relating to . . . asbestos dust inhalation exposure.

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(Doc. 1-7 at 213) Sargent contends that the Navy’s specifications governed labeling
and product manuals, both of which the Navy reviews and approves.
(Doc. 1-2 at 38, 52)
To establish federal-officer jurisdiction Crane’s defense must appear plausible.
Mangin, 91 F.3d at 1427 (explaining that a federal defense’s “ultimate validity is not
to be determined at the time of removal”). In summary, Crane asserts that the Navy
provided exact specifications to Crane and dictated the content of any label or
warning affixed to equipment.
2. Causal Connection Requirement
Donson alleges that Crane fails to establish a causal connection between the
Navy’s directive and Crane’s failure to warn. (Doc. 71-1 at 6). “In a civil suit such as
this, it is sufficient for the defendant to show that his relationship to the plaintiff
‘derived solely from [his] official duties.’” Mangin v. Teledyne Continental Motors,
91 F.3d 1424, 1427-28 (11th Cir. 1996). Crane’s experts state that the Navy exercised
detailed supervision over the design and the manufacture of Crane’s products and the
label and warning attached to Crane’s products. Crane meets the causal connection
requirement because Crane’s relation with Donson derived solely from Crane’s
official duty for the Navy.
3. Federal-State Conflict
The government contractor defense applies where “a significant conflict
exists between an identifiable federal policy and the operation of state law.” Dorse,

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898 F.2d at 1489. Crane alleges an inability to comply simultaneously with state and
federal directives because the Navy (1) required the use of asbestos, (2) governed
warnings supplied with the equipment, and (3) banned an asbestos warning.
According to Crane, contractors were strictly constrained by Navy requirements with
priority over conflicting state requirements.
4. Asbestos Warnings
Donson argues that:
The defendant 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 . . . . Crane Co. has produced no evidence
showing that it was unable to comply with both the Navy’s specifications
and Florida’s duty to warn . . . the U.S. Navy did not prohibit its suppliers
from affixing warning labels to its equipment and products . . . . The
defendant has failed to show that naval policy would have prevented it
from complying with state law . . . . The Navy did not implement
specifications that absolved Crane Co. of its state law duty to warn. It is
clear that the choice not to warn was the defendant’s.
(Doc. 71-1 at 6-7)
“[The defendant] need not prove that the Navy would have forbidden it to
issue asbestos warnings had [the defendant] requested the Navy's approval . . . the
government contractor defense isn't limited to ‘instances where the government
forbids additional warning or dictates the precise contents of a warning.’”
Leite, 749 F.3d at 1123-24; accord Ruppel v. CBS Corp., 701 F.3d 1176, 1185 n.2
(7th Cir. 2012) (Flaum, J.).
The plaintiffs suggest that the defendants need to show that the Navy
actually prohibited asbestos warnings to establish a ‘causal nexus’ at the
removal stage. I disagree. ‘Just as requiring a ‘clearly sustainable defense’
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rather than a colorable defense would defeat the purpose of the removal
statute . . . so would demanding an airtight case on the merits in order to
show the required causal connection . . . . All a defendant needs to do to
show a causal nexus is to establish that the plaintiff's claims arise from the
defendants' performance of their duties under their contract with the Navy.
Marley v. Elliott Turbomachinery Co., Inc., 545 F.Supp.2d 1266 (S.D. Fla. 2008)
(Jordan, J.)
The current inquiry is “purely jurisdictional, and neither the parties nor the
district courts should be required to engage in fact-intensive motion practice, prediscovery, to determine the threshold jurisdictional issue.” Cuomo v. Crane Co.,
771 F.3d 113, 116 (2d Cir. 2014) (Lynch, J.). “The inquiry here is only whether
[Crane Co.] has advanced a colorable federal defense (including an assertion that he
complied with all his federal law obligations), not whether his defense will
[succeed].” Magnin v. Teledyne Continental Motors, 91 F.3d 1424 (11th Cir. 1996).
CONCLUSION
Because Crane’s removal under the federal-officer removal statute is proper,
the motion (Doc. 71) to remand is DENIED.
ORDERED in Tampa, Florida, on January 9, 2017.

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