Najolia v. Northrop Grumman Ship Systems, Inc. et al

Filing 43

ORDER AND REASONS: ORDERED that Plaintiff Frank Najolia, Jr.'s 21 Motion to Remand is DENIED. Signed by Judge Carl Barbier. (gec, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

NAJOLIA

CIVIL ACTION

VERSUS

NO: 12-821

NORTHROP GRUMMAN SHIP
SYSTEMS, INC. ET AL

SECTION: “J”(2)

ORDER AND REASONS
Before the Court are Plaintiff Frank Najolia, Jr.’s Motion
to Remand (Rec. Doc. 21) and oppositions to same filed by
Defendant General Electric Company (Rec. Doc. 40) and Defendant
CBS Corporation (Rec. Doc. 41).

The motion is set for hearing on

May 23, 2012, on supporting memoranda and without oral argument.
Having considered the motion and legal memoranda, the record, and
the applicable law, the Court now issues its ruling.

PROCEDURAL HISTORY AND BACKGROUND FACTS
Plaintiff Frank Najolia filed a petition in state court

1

against numerous defendants1 alleging that he contracted
malignant pleural mesothelioma due to exposure to asbestos.
Defendants General Electric Company (“GE”) and CBS Corporation
(“Westinghouse”) (collectively, “Defendants”) removed the case to
this Court on March 28, 2012.

GE and Westinghouse, in their

notice of removal, aver that Najolia’s pre-removal deposition
revealed that Najolia was a machinist mate in the United States
Navy aboard the USS Uhlmann, a destroyer vessel.

In his

petition, Najolia avers that he was enlisted in the Navy as a
mate from 1964 until 1968.

Rec. Doc. 1-1, at 6, ¶ 32.

He

alleges that during this time period, he “daily and routinely
worked with asbestos-containing products and materials and had
occasion to cut, saw, tear, sweep and otherwise manipulate
friable asbestos-containing insulation and other products and
materials.”

Id., ¶ 33.

Najolia asserts that his exposure was in

part due to “asbestos fibers released from installation and
removal of heat insulation, boiler insulation, insulation pads,
pumps, gaskets, boiler lagging, boiler jackets, wellboards and

1
Named as defendants are General Electric Company, CBS Corporation,
Eagle, Inc., McCarty Corporation, Reilly-Benton Company, Inc., Hopeman
Brothers, Inc., McDermott International Inc., Air & Liquid Systems
Corporation, Owens-Illinois, Inc., Bayer CropScience, Uniroyal, Inc., TaylorSeidenbach, Inc., IMO Industries, Inc., Foster Wheeler, Inc., OneBeacon
America Insurance Company, Warren Pumps, LLC, and Huntington Ingalls
Incorporated.

2

other asbestos insulation on the boilers, turbines, walls,
ceilings, and piping systems” of the naval vessels that were
under construction, maintenance, and repair work.

Id., ¶ 34.

Defendants removed the case under Title 28 U.S.C. § 1442, the
federal officer removal statute.

Plaintiff filed the instant

motion to remand.

THE PARTIES’ ARGUMENTS
GE and Westinghouse aver that to the extent Najolia alleges
that he was exposed to asbestos associated with their products
aboard the Uhlmann, the asbestos would have been associated with
marine turbines designed and manufactured by them at the
direction of the Navy and pursuant to a contract with the Navy to
construct the Uhlmann, specifically, turbines on the vessel.
Accordingly, GE and Westinghouse in their notice of removal
assert that removal is proper due to the Court’s subject matter
jurisdiction under Title 28 U.S.C. § 1442, the federal officer
removal statute, because the manufacture and sale of the marine
turbines and/or other equipment for the Navy, which Najolia
alleges was the source of his asbestos exposure, were performed

3

under the direction of an officer of the United States.2
Najolia argues that GE and Westinghouse’s removal was
improper because they cannot qualify for federal officer immunity
as a matter of law.

Najolia argues that GE and Westinghouse have

failed to come forward with any competent proof establishing that
they acted under a federal officer.

He argues that Defendants

fail to show that they have a colorable federal defense because
they offer no proof that the government provided reasonably
precise specifications and that their products conformed to those
specifications.

Najolia cites the three-part test set forth in

Mesa v. California, 489 U.S. 121 (1989) for federal officer
removal:

(1) the defendant’s action under the direction and

control of a federal officer, (2) the existence of a colorable
federal defense, and (3) a causal nexus between the tortious

2

The statute provides:

(a) A civil action or criminal prosecution that is commenced in a
State court and that is against or directed to any of the
following may be removed by them to the district court of the
United States for the district and division embracing the place
wherein it is pending:
(1) The 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 or on account of
any right, title or authority claimed under any Act of Congress
for the apprehension or punishment of criminals or the collection
of the revenue.
28 U.S.C. § 1442(a)(1).

4

conduct that resulted in the plaintiff’s injuries and the alleged
federal authority.3

Najolia purports to apply the test with

respect to both (1) a failure-to-warn claim, and (2) a designdefect claim.
As to the first prong, Najolia argues that Defendants have
not shown that they were acting under federal direction at the
time they allegedly committed the tort.

Najolia asserts that to

meet the first prong, the defendant must have acted under an
officer’s direct orders or pursuant to comprehensive and detailed
regulations, which Defendants fail to show.

He argues that

Defendants have not presented any evidence that the federal
government controlled or restricted their ability to warn
employees of the dangers associated with asbestos or required
Defendants to use asbestos in the design and manufacture of their
products.
Concerning the second prong, Najolia argues that Defendants
have no colorable federal defense, namely, the government
contractor immunity that they assert.

First, Najolia argues that

the government contractor defense must be predicated upon a
federal interest and a conflict between duties imposed by state
law and duties imposed by federal authority.

3

Najolia argues that

See Rec. Doc. 21-1, at 3 (citing Mesa, 489 U.S. at 124-25).

5

Defendants have not satisfied this initial burden of proving a
conflict between their duties under state products liability law
and their federal duty under their contracts with the Navy.
Specifically, Najolia argues that Defendants have not shown that
the Navy imposed a duty that prohibited them from providing
appropriate safety warnings as required by state law, or that the
Navy required Defendants to use asbestos in their products.
Second, with respect to proving a colorable defense of government
contractor immunity, Najolia argues that Defendants cannot meet
the requirements of the three-part test set forth in Boyle v.
United Technologies Corp., 487 U.S. 500 (1988) for invoking such
immunity.4

Defendants cannot, Najolia argues, meet the Boyle

test because there is no evidence that the Navy exercised its
discretion regarding the type and content of warnings that could
be placed on the products containing asbestos, or that the Navy
imposed design specifications that included asbestos.
Finally, regarding the third prong for federal officer
removal, Najolia argues that Defendants have not shown a nexus
between the federal government’s control and Najolia’s legal

4

Under the Boyle test as described by Najolia, a defendant must show
that (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 the United States. Rec. Doc. 21-1, at 10 (citing Boyle,
487 U.S. at 512).

6

theories of recovery.

He asserts that this third prong to some

extent collapses into the first:

a causal nexus is predicated

upon the existence of federal authority.

Here, he argues, the

third prong is not established where no federal officer attempted
to restrict or control the warnings that Defendants provided
concerning asbestos.

Accordingly, Najolia requests that the

Court remand his case to state court because of improper removal
based on the federal officer removal statute.
GE and Westinghouse submitted separate opposition memoranda,
in each of which Defendants argue that the Court has subject
matter jurisdiction and that they properly removed the case under
the federal officer removal statute.5

As an initial matter,

Defendants state that they were not required to submit evidence
at the time of removal, but that they now carry their burden by
supplementing the record in opposition to Najolia’s motion to
remand.

Defendants aver that the relevant conduct was their

manufacture of propulsion turbines and auxiliary turbines in
accordance with military specifications for building the USS
Uhlmann.

They argue that this case presents the quintessential

“government contractor” scenario, and that they have a statutory

5

The memoranda are largely similar and certain portions are even
identical. They differ in terms of the evidence, affidavits and otherwise,
submitted and cited in conjunction with each memorandum.

7

right to have a federal court decide whether the immunity
applies.
Defendants argue that the Court has jurisdiction over both
the design-defect and failure-to-warn claims.

First, as to the

design-defect claim, they argue that the three-prong statutory
test is met.

They argue that as to the first prong, they acted

under the Navy’s direction in designing and manufacturing
turbines, in that the Navy directly and in great detail
controlled the design and manufacture of the turbines.
Concerning the second prong, they argue that they state a
colorable government contractor immunity defense, in that
military equipment design is a discretionary governmental
function and there is significant conflict between the Navy’s
requirement of the use of asbestos in turbines and Najolia’s
effort to impose tort liability on Defendants due to their use of
asbestos.

With respect to the third prong, Defendants argue that

a causal nexus exists, in that the design-defect claim arises
solely from their performance of their contractual duties to the
Navy.
Second, Defendants argue that the failure-to-warn claim
provides independent grounds for removal.

They argue that even

where a specific warning is not expressly preempted by government

8

specifications, the government contractor defense may still be
applicable where the government was involved in the decision of
which warnings, if any, were to be provided.

In this case, they

assert that the Navy’s direct, ongoing participation in the
decision of what warnings to include with GE’s and Westinghouse’s
turbines supports a colorable federal defense.

LEGAL STANDARD
Generally, a defendant may remove a civil action filed in
state court if a federal court would have had original
jurisdiction.

See 28 U.S.C. § 1441(a).

A defendant bears the

burden of proving by a preponderance of the evidence that
jurisdiction exists.
1412 (5th Cir. 1995).

De Aguilar v. Boeing Co., 47 F.3d 1404,
The jurisdictional facts supporting

removal are examined as of the time of removal.

Gebbia v. Wal-

Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000).

The

removal statute should be strictly construed in favor of remand.
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002).

Although a defendant faced with a motion to

remand bears the burden of establishing the existence of federal
jurisdiction, because the right of removal under the federal
officer statute permits a federal court to determine the validity

9

of an asserted official immunity defense, the “color of federal
office” requirement should be afforded a broad reading.

Winters

v. Diamond Shamrock Chem. Co., 149 F.3d 387, 397-98 (5th Cir.
1998).

The Supreme Court has cautioned against a narrow reading

of the federal officer removal statute:
The officer need not win his case before he can have it
removed. In cases like this one, Congress has decided
that federal officers, and indeed the Federal
Government itself, require the protection of a federal
forum. This policy should not be frustrated by a
narrow, grudging interpretation of § 1442(a)(1).
Willingham v. Morgan, 395 U.S. 402, 407 (1969).

DISCUSSION
The federal officer removal statute permits a defendant to
remove a civil action filed in state court to federal court where
the action is against or directed to the federal government, an
agency thereof, or any federal officer or person acting under
that officer for or relating to any act under color of such
office.

28 U.S.C. § 1442(a)(1).

This removal statute is an odd

one in that it permits removal where the defendant properly
invokes a federal defense, as opposed to the general rule that a
federal question must be evident from the face of the complaint
for removal to be proper.

Jefferson County, Ala. v. Acker, 527

10

U.S. 423, 431 (1999).

The statute is intended to maintain

important principles of federalism and supremacy:

federal

officers and agents who act within the scope of their authority
should not be prosecuted in a state court for a violation of
state law in a way that would leave the federal government
powerless to intervene to protect its officers who exercised
federal authority.

Willingham, 395 U.S. at 406 (quoting

Tennessee v. Davis, 100 U.S. 257, 263 (1880)).

To remove a case

based on the statute, the removing defendants must (1) be persons
(2) who acted under color of federal authority when they
committed the acts that led to the plaintiff’s injuries, and (3)
must have a colorable federal defense.

Winters, 149 F.3d at 397

(approving and applying district court’s test).
The first prong is satisfied:

Westinghouse and GE are

“persons” within the meaning of the statute.

The Fifth Circuit

has found that corporate entities may qualify as such persons.
Winters, 149 F.3d at 398; see also Dupre v. Todd Shipyards Corp.,
No. 11-2097, 2011 WL 4551439, at *5 (E.D. La. Sept. 29, 2011)
(finding that CBS Corporation and General Electric Company are
incorporated businesses and thus “persons” under § 1442(a)(1)).
The parties do not dispute that Defendants are “persons.”
Rather, they cite case law which effectively expands the second

11

and third prongs into a separate three-prong test:

(1) action by

the defendant under the direction of a federal officer, (2)
existence of a colorable federal defense to the plaintiff’s
claims, and (3) a causal nexus between plaintiff’s claims and
acts it performed under color of federal office. See Crocker v.
Borden, Inc., 852 F. Supp. 1322, 1325 (E.D. La. 1994).

Before

applying this separate three-part test to this case, the Court
notes the existence of jurisprudence in this district similar to
the litigation at bar.
Another section of this Court has had occasion twice within
the past year to render decisions concerning the federal officer
removal statute in the context of Navy specifications regarding
asbestos.

In Francis v. Union Carbide Corp., No. 11-2695, 2011

WL 6180061 (E.D. La. Dec. 13, 2011), the Court granted the
plaintiff’s motion to remand where plaintiff alleged that he
contracted malignant mesothelioma as a result of secondary
exposure to asbestos originating with the defendant’s shipyard
facility where Navy ships were built.

Id. at *1, 4.

The

defendant removed the case, alleging that at the time of the
alleged failure to warn of asbestos hazards, it was acting under
the direction and control of the Navy as a wartime government
contractor.

Id. at *2.

The Court noted that the case was not

12

one involving design-defect claims, but rather a claim based on
an alleged failure to provide a safe working environment and a
failure to warn.

Id. at *3.

The Court found that the defendant

had not shown that the government’s control directly interfered
with the defendant’s ability to fulfill its state law duty to
warn.

Id.

Although the defendant cited to vessel construction

contracts requiring it not to depart from plans developed by the
government, the Court found that nothing about the government
supervision prevented the defendant from warning the plaintiff’s
father about the dangers of asbestos, and thus there was no
causal connection between the failure to warn and defendant’s
acts under the direction of the Navy or a marine commission.

Id.

at *4.
To be contrasted is the decision in Dupre, 2011 WL 4551439,
in which the same section of this Court denied a motion to remand
filed by a plaintiff suing for mesothelioma allegedly contracted
due to asbestos exposure.

A key difference from the facts of

Francis was that the plaintiff in Dupre alleged not only the
failure to warn, but also that the asbestos-containing products
were defective in design.

Id. at *1.

The removing defendants in

Dupre asserted that at the time of the allegedly tortious
activities they had acted under the control and direction of the

13

Navy as government contractors.

Id. at *2.

Defendants had

contracted with the Navy to provide parts for ships.

Id. at *6.

The Court found that the evidence indicated that “the Navy
maintained strict control over the design, manufacture, and
warnings associated with the asbestos-containing products at
issue.”

Id.

Federal interests were strongly implicated because

the Navy had issued detailed and direct orders for the supply of
products, and the ability of the federal government to order and
obtain military equipment at a reasonable cost is a federal
concern.

Id.

The Court held that a causal nexus existed between

the defendants’ actions taken under color of federal office and
the plaintiffs’ claims, and there was a sufficiently colorable
defense that permitted removal under the federal officer removal
statute.

Id. at *6-7.

Notably, the instant case is more like

Dupre than Francis, in that Defendants have submitted evidence of
the Navy’s detailed specifications for the products manufactured
and evidence of the Navy’s intimate involvement with the
determination of the warnings that could be attached to such
products.

Furthermore, Dupre involved the same Defendants as

this case and involved related turbine manufacture for the Navy.

14

1.

Action Under the Direction of a Federal Officer
The first element of the federal officer removal statute

requires Defendants to prove that they acted under the direction
of a federal officer.

Crocker, 852 F. Supp. at 1325.

The

requisite showing is more than just action under a federal
officer’s “general auspices” or within a regulated industry.
Overly v. Raybestos-Manhattan, No. C-96-2853 SI, 1996 WL 532150,
at *3 (N.D. Cal. Sept. 9, 1996).

The inquiry has been described

as whether the action was performed “pursuant to an officer’s
direct orders or to comprehensive and detailed regulations.”
Ryan v. Dow Chem. Co., 781 F. Supp. 934, 947 (E.D.N.Y. 1992).
First of all, as a general matter, Defendants have offered proof
of the Navy’s intimate involvement with the design and
manufacture of the turbines that allegedly contained harmful
asbestos.

David Hobson, former employee of GE as the Manager of

Navy Customer Service for GE’s Navy and Small Steam Turbine
Department, states in his declaration that GE’s manufacture of
Navy turbines was done pursuant to government contracts
administered by the Secretary of the Navy.
¶ 1; at 3, ¶ 5; at 4, ¶ 7.

Rec. Doc. 40-1, at 1,

Hobson states that “[n]o aspect of

the design, manufacture, and testing of Navy turbines escaped
this close control.”

Id. at 4, ¶ 7.

15

The declaration of Navy

Rear Admiral Ben Lehman is to the same effect.

Rec. Doc. 40-5,

at 2, ¶ 6 (“[T]he Navy had complete control over every aspect of
each piece of equipment used on Navy ships.

Military

specifications governed every characteristic of this equipment,
including the instructions and warnings for equipment.”).

These

allegations constitute evidence of comprehensive federal
involvement and oversight in Defendants’ action of manufacture
and design of products.

Defendants also submit evidence that

more specifically addresses whether direct Navy orders required
certain asbestos use and warnings (or lack thereof), with respect
to Najolia’s design-defect and failure-to-warn claims under state
law.
With respect to the design-defect claim, Defendants have
submitted evidence indicating that the Navy imposed specific
obligations upon them to use asbestos in the manufacture of
products pursuant to military contracts.

Former GE manager

Hobson asserts that government contracts incorporate pertinent
military specifications.

Rec. Doc. 40-1, at 4, ¶ 8.

As part of

the construction of a Navy ship, the Navy directs shipbuilders to
install thermal insulation materials throughout the vessel.
at 10, ¶ 19.

Id.

The nature of those materials was specified by the

Navy through military specifications.

16

Id.

There is record

evidence of such specifications for machinery requiring that
asbestos be used in certain products manufactured by Defendants.
The Navy’s General Specifications for Machinery include
Subsection S41-1, regarding turbines and propulsion, that
incorporates subsection S39-1 in the context of heat insulation.
Rec. Doc. 40-2, at 2.

Subsection S39-1, entitled “Heat

insulation and lagging for piping and machinery,” provides that
“[t]he type and thickness of insulating material used shall
conform to the following requirements for the temperatures
indicated,” and then states that the insulation for all of
several ranges of temperatures must contain “85 per cent
magnesia.”

Rec. Doc. 40-3, at 5.

Magnesia, 85% insulation was a

pipe covering and block form insulation that contained asbestos
fibers (12 to 18%).

Rec. Doc. 40-4, at 12.

Chapter 39 of the

Bureau of Ships Manual, entitled “Thermal Insulation,” required
the application of thermal insulation to turbines, and encouraged
the use of asbestos.

Rec. Doc. 41-4, at 17-18.

The affidavit of James Gate, a former design manager for
Westinghouse, states that the Navy exercised a high level of
control over Westinghouse’s design and manufacture of turbines
intended for installation on Navy vessels.
2, ¶¶ 3,7.

Rec. Doc. 41-1, at 1-

He states that compliance with Navy specifications

17

was directly enforced and that the specifications could not be
changed without direct approval by the Navy.

Id. at 2, ¶ 7.

He

also avers that “[m]ilitary specifications affirmatively required
the use of asbestos-containing thermal insulation” in relation to
turbines and other equipment.

Id., ¶ 8.

His knowledge derives

from personal participation in the Navy’s testing and sea trials
of Westinghouse’s equipment provided to the Navy.

Id., ¶ 4.

Likewise, the affidavit of Navy Rear Admiral Roger B. Horne
constitutes evidence that turbines were required to comply with
military specifications, and that failure to comply resulted in
rejection of the products by the Navy.
16; at 9, ¶ 21; at 14-15, ¶ 34.

Rec. Doc. 41-2, at 7, ¶

Admiral Horne was responsible

for the maintenance of ship specifications and for monitoring
compliance with the specifications by all contractors of Navy
equipment.

Id. at 7, ¶ 16.

Therefore, his attestation that

“[i]t was the Navy, not contract manufacturers, that required the
use of asbestos thermal insulation with turbines intended for
installation on Navy ships,” carries significant weight.
10, ¶ 25.

Id. at

The Navy insisted on asbestos due to its “optimum heat

retention, low weight, fire resistance, resistance to water
damage and insect infestation, and cost-efficiency.”
¶ 25.

18

Id. at 11,

The Court finds that there is sufficient proof that, for
removal purposes, and without deciding the merits of the proposed
defense, Defendants acted under the direction of the Navy in
designing and manufacturing the products at issue.

This is

especially true in that the specific products at issue have
scarcely been identified in the complaint.

Thus, Defendants

carry their burden by submitting evidence that general Navy
specifications required contractors in their position to
manufacture asbestos-containing ship equipment, failing which the
Navy would have rejected the turbines.

This finding is

consistent with other cases in this district in which the
decision has been to sustain the removal based upon evidence of
the Navy’s involvement with the design specifications of
asbestos-containing products manufactured by the removing
defendants.

See Fink v. Todd Shipyards, No. 04-430, 2004 WL

856734 (E.D. La. Apr. 20, 2004) (GE properly removed action based
on testimony of David Hobson describing historical practices of
GE with regard to steam turbines purchased from GE by the Navy,
where decisions regarding turbine specifications constituted a
governmental exercise of a discretionary function); Crocker, 852
F. Supp. 1322 (Westinghouse properly removed action based on
affidavit of James Gate, which was unrebutted, showing that

19

Westinghouse acted under the direction of the Navy in the
construction of marine turbines).
Defendants argue that not only is the removal proper with
respect to the design-defect claim, but also with respect to the
failure-to-warn claim, because the Navy was comprehensively
involved in the process of deciding what warnings would accompany
ship equipment containing hazardous materials.

GE employee

Hobson avers that the Navy had precise specifications governing
the content of any communication affixed to machinery purchased
by the Navy.

Rec. Doc. 40-1, at 11, ¶ 21.

Based on Hobson’s

experience, GE generally was not permitted to affix any type of
warning to a Navy turbine addressing alleged hazards of certain
products such as thermal insulation materials.

Id.

Hobson avers

that the affixment of such a warning to the turbine would have
taken it out of compliance with the specifications and would have
resulted in the Navy’s rejection of the unit.
applied concerning turbine safety manuals.
23.

Id.

Similar rules

Id. at 11-12, ¶¶ 22-

Admiral Lehman’s statement is to the same effect:

the Navy

specified the content of all written materials delivered with
each piece of equipment, including turbines.

Rec. Doc. 40-5, at

3, ¶ 7.

Westinghouse design manager Gate’s affidavit is also in

accord:

based on his experience, the Navy had precise

20

specifications as to the nature of written materials to be
delivered with its turbines.

Rec. Doc. 41-1, at 6, ¶ 32.

Likewise, Gate asserts that the Navy’s safety manuals include
safety information only to the extent of direction by the Navy.
Id. at 7, ¶ 32.
Further still, there are other declarations in the record
with respect to the Navy’s policies regarding warnings on
shipboard equipment containing asbestos.

Based on Admiral

Lehman’s experience, professional training, education, and
research, he opines that certain types of warnings, including
those associated with asbestos hazards, were not approved by the
Navy because of the military’s unique interest in performance
needs aboard warships.

Rec. Doc. 40-5, at 3-4, ¶ 8.

Lehman

posits that, for example, possible warnings could have included
recommendations for the use of respiratory protection and for
particular repair and maintenance practices.

Id.

However,

Lehman testified that a requirement for effective respiratory
protection equipment would have required the Navy to furnish
equipment it did not have and would have been impractical to use
under shipboard conditions.

Id.

Additionally, Dr. Lawrence

Stilwell Betts, a retired Navy captain, asserts that the Navy did
not want unsolicited and potentially inconsistent warning

21

information from equipment manufacturers about asbestos
insulation because warnings from various sources would inundate
sailors with inconsistent information.
¶ 30(f).

Rec. Doc. 40-8, at 23-24,

Relatedly, “[i]n the heat of battle, there is simply no

time to be interpreting inconsistent hazard labels.”
¶ 30(c).

Id. at 22,

Moreover, as Lehman states, a requirement for special

repair and maintenance practices might have required the use of
dust removal equipment that the Navy could not have used under
shipboard conditions.

Rec. Doc. 40-5, at 3-4, ¶ 8.

In short:

A Navy warship is a highly regulated workspace, subject
to strict military discipline and chain of command, and
the Navy — not equipment manufacturers — informed
sailors of the hazards the Navy deemed significant in
the special environment of a warship, and did so in a
manner it deemed appropriate to the ship’s mission.
Id.

Lehman concludes his declaration that Navy equipment

suppliers like GE could not simply affix asbestos warnings to
equipment or include similar warnings in manuals because the
supply of such extraneous information not requested by the Navy
would have taken the items and manuals out of compliance with
military specifications and would have resulted in the rejection
of the items and manuals.

Id. at 4, ¶ 9.

The above-described evidence constitutes a showing that Navy
contractors generally could not affix warnings about the hazards
of asbestos to equipment they manufactured for use aboard naval
22

vessels absent Navy approval.

This is highly probative under the

first prong of the federal officer removal statute as proof that
Defendants’ alleged failure to warn was performed under the
direction of the Navy.

On the other hand, what is lacking from

the record is evidence that the Navy forbade warning labels as to
the specific contracts that led to the manufacture of the
specific items containing asbestos that were specifically placed
on the Uhlmann (on which this specific plaintiff served).
Arguably, removal solely based on a failure-to-warn claim may be
improper in this context, specifically, where the contractor who
built asbestos-containing equipment for the Navy does not submit
evidence that the Navy required specific warnings to be imposed
in this case, or that the Navy prohibited the contractor from
complying with its state law duty to give certain warnings that
it could have given in conjunction with the underlying
manufacture relevant to this case.6

However, even if there is a

6
See, e.g., Cardaro v. Aerojet Gen. Corp., No. 05-2684, 2010 WL 3488207
(E.D. La. Aug. 27, 2010) (where naval equipment manufacturers were sued only
for their failure to warn of hazards, no jurisdiction present where defendant
was not specifically prevented from giving adequate warnings and where
plaintiffs submitted evidence that the Navy expected manufacturers to supply
warnings concerning hazardous substances in military equipment in compliance
with state law); Mouton v. Flexitallic, Inc., No. 99-0162, 1999 WL 225438
(E.D. La. Apr. 14, 1999) (where plaintiffs did not argue product liability or
defective design, no jurisdiction present because there were no express
contractual governmental specifications regarding warnings in the context of
asbestos use, and federal governmental direction did not prevent defendants
from taking their own safety precautions above the minimum standards
incorporated in the federal contracts); Gauthe v. Asbestos Corp., No. 96-2454,
1997 WL 3255 (E.D. La. Jan. 2, 1997) (where there were no design-defect

23

requirement that the Navy have prohibited Defendants from
including certain warnings required under state law or that the
Navy have expressly required certain warnings to the exclusion of
others, that does not change the Court’s finding that the “acting
under” prong of federal officer removal is satisfied in this
case.
This is true for several reasons.

First, even if the

failure-to-warn claim does not provide independent grounds for
removal, the action is removable for the independent reason that,
as the Court has already stated, the “acting under” prong is
satisfied as to the design-defect claim.7

Second, Admiral Lehman

declares that the Navy did not permit asbestos warning labels to
be affixed to many of the products at issue, including the

allegations at issue, but only failure-to-apprise claims, failure-to-warn
claims, and claims of failure to provide a safe place to work, no jurisdiction
present because of absence of evidence that the government restricted or
prohibited defendant’s ability to notify individuals of presence of asbestos).
Contra Faddish v. General Elec. Co., No. 09-70626, 2010 WL 4146108, at *9
(E.D. Pa. Oct. 20, 2010) (“The prevailing view is that an independent
contractor does not have to show an express government prohibition on all
warnings, but rather, must establish that the government ‘exercised its
discretion’ regarding warnings to be placed on defendant’s product.”) (citing
Oliver v. Oshkosh Truck Corp., 96 F.3d 992 (7th Cir. 1996); In re Joint E. &
S. Dist. N.Y. Asbestos Litig., 897 F.2d 626, 630 (2d Cir. 1990); Kerstetter v.
Pac. Scientific Co., 210 F.3d 431, 437 (5th Cir. 2000); Tate v. Boeing
Helicopters, 140 F.3d 654, 660 (6th Cir. 1998); Butler v. Ingalls Shipping,
Inc., 89 F.3d 582, 586 (9th Cir. 1996); Crespo v. Unisys Corp., No. 94-2339,
1996 WL 875565, at *15 (D.N.J. June 21, 1996)).
7

See National Audubon Soc. v. Dep’t of Water & Power of City of Los
Angeles, 496 F. Supp. 499, 509 (E.D. Cal. 1980) (“[I]f one claim cognizable
under Section 1442 is present, the entire action is removed, regardless of the
relationship between the Section 1442 claim and the non-removable claims.”).

24

turbines that are the subject of the instant case.

The Court

will not require a detailed breakdown of whether the Navy
prohibited the affixment of warnings as to individual products
manufactured by individual defendants.

Such would go against the

spirit of the removal statute because a defendant need not prove
his defense to be entitled to removal.
at 407.

See Willingham, 395 U.S.

Third, Najolia submits no evidence controverting

Defendants’ evidence.
Finally, perhaps the analysis would differ if a limited,
identifiable set of products were at issue.

In such a case, if

Najolia could demonstrate that the products that he alleges
caused his injury were not the subject of specific and direct
control by the Navy with respect to warnings, there would be a
stronger case for a failure of the “acting under” prong as to the
failure-to-warn claim.
identifications.

However, Najolia makes no specific

Rather, he refers generally to categories of

products to which he was exposed on board the Uhlmann, including
“heat insulation, boiler insulation, insulation pads, pumps,
gaskets, boiler lagging, boiler jackets, wellboards and other
asbestos insulation on the boilers, turbines, walls, ceilings and
piping systems throughout the vessels undergoing construction,
maintenance or repairs . . . .”.

25

Rec. Doc. 1-1, at 6, ¶ 34.

And

while Najolia cannot be faulted for his lack of ability to allege
the specific products that injured him without the benefit of
sufficient discovery, nor can Defendants be deprived of their
federal forum for the resolution of a colorable federal defense
regarding important federal interests.
The Court finds that there is sufficient proof for the
purpose of removal that the Navy imposed a duty on Defendants to
comply with specifications requiring the use of asbestos in
Defendants’ products that allegedly caused Najolia injury while
he served on the USS Uhlmann.

Therefore, Defendants have

satisfied the first prong for removal by showing that they acted
under the direction of a federal officer in manufacturing the
products that allegedly contributed to Najolia’s mesothelioma.
2.

Colorable Federal Defense
Defendants invoke government contractor immunity as set

forth in Boyle:
Liability for design defects in military equipment
cannot be imposed, pursuant to state law, 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.
Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988).

26

One

purpose of this immunity defense is to preserve the government’s
uniquely federal interest in the procurement of equipment; the
government has an interest in the imposition of liability on its
contractors because of the resultant effect on the terms of
government contracts.

Dupre, 2011 WL 4551439, at *7.

Importantly, in order to support removal, the defendant must only
show a colorable defense.

“The officer need not win his case

before he can have it removed.”

Willingham, 395 U.S. at 407.

Preceding its proposed analysis of the three-prong test, Najolia
argues that there is no colorable defense because there is no
significant conflict between federal policy and state law as
applied to this case.

To the contrary, based on the affidavits

submitted, Defendants have made an evidentiary showing of a
potential conflict between state-law duties and contractual
duties imposed via the Navy’s control of manufacturing
specifications for turbines.
For the reasons previously stated in detail, there is
evidence that the government approved reasonably precise
specifications within the meaning of the first prong of Boyle, in
that GE and Westinghouse were required to comply with military
specifications as to the composition of turbines for use on the

27

Uhlmann.8

With respect to whether there is adequate proof under

the first Boyle prong, of reasonably precise specifications
concerning product warnings, there is authority for the
proposition that even if the Navy did not expressly prohibit
asbestos warnings, a finding of a colorable defense may properly
be made.

The Fifth Circuit has stated that the government’s

involvement in the decision of whether or not to give a warning
may state a government contractor defense.

In re Air Disaster at

Ramstein Air Base, Germany, on 8/29/90, 81 F.3d 570, 576 (5th
Cir. 1996) (“A conflict between federal policy and state law
might arise if there is evidence that the Government was involved
in the decision to give, or not to give, a warning.”); see also
Kerstetter v. Pac. Scientific Co., 210 F.3d 431, 438 (5th Cir.
2000) (where the Navy approved, changed, and edited warnings in a
flight manual, even though the manual contained no express
evaluation of a warning of the specific hazard at issue, the
government contractor defense applied because “the Navy exercised
discretion in approving warnings in the flight manual”); cf. Tate
v. Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995)

8

For example, based on Admiral Lehman’s personal knowledge obtained
while he was a ship superintendent for the Navy, he asserts that “[a]ny
deviation from military specifications of equipment to be installed on ships
would result in significant problems and rejection of the equipment.” Rec.
Doc. 40-5, at 1-2, ¶¶ 3-4.

28

(“Government discretion is required, not dictation or prohibition
of warnings. Where a contractor proposes warnings that the
government substantively approves, and satisfies the second and
third conditions, the defense displaces state law-even if the
government did not ‘prohibit’ the contractor from proposing more
alarming warnings.”).

For the reasons already stated, there is

certainly record evidence that the Navy exercised its discretion
in the warning-creation process, so as to satisfy the first prong
of Boyle.
As to the second prong of the Boyle test, it is too early to
engage in an evidentiary challenge to whether the turbines
conformed precisely to the Navy’s specifications.

The third

prong requires a showing that “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.”
U.S. at 512.

Boyle, 487

Even if GE and Westinghouse did not warn the Navy

about the dangers of asbestos, the third prong only requires that
the contractor “disclose information about which it is more
knowledgeable than the government.”

Haltiwanger v. Unisys Corp.,

949 F. Supp. 898, 904 (D.D.C. 1996).

Defendants have submitted

evidence that the government was more knowledgeable than
Defendants concerning asbestos hazards, at the time of the

29

pertinent conduct of turbine design and manufacture, which
obviated any duty to disclose.

Dr. Betts declares that the Navy

knew of asbestos hazards at least as early as the 1920s and had
an active program to identify hazardous exposures.
8, at 1, ¶ 1; at 4-5, ¶ 7.

Rec. Doc. 40-

Dr. Betts also asserts that the

Navy’s information concerning asbestos health hazards far
exceeded any information that could have been provided by a
turbine manufacturer in the years following World War II.
at18, ¶ 27.9

Id.

Accordingly, Defendants have demonstrated the

existence of a colorable defense based on government contractor
immunity.
3.

Causal Nexus
The third and final prong required to invoke the federal

officer removal statute is a causal nexus between the plaintiff’s
claims and acts the defendant performed under color of federal
office.

Crocker, 852 F. Supp. at 1325.

This final prong is

satisfied as to both the design-defect and failure-to-warn
claims.

The design-defect claim directly arises out of the

Navy’s alleged instructions to Defendants to use asbestos in

9

The basis for his declaration is his personal and professional
knowledge and experience as a physician; his operational experiences from his
Navy career; his review of historical documents; and his own experiences,
research, and communications with others who worked for the Navy and the
Public Health Service. Id. at 3, ¶ 4.

30

turbines manufactured and designed by Defendants.

See Akin v.

Big Three Indus., Inc., 851 F. Supp. 819, 823-24 (E.D. Tex. 1994)
(“Plainly, when a government contractor builds a product pursuant
to Air Force specifications and is later sued because compliance
with those specifications allegedly causes personal injuries, the
nexus requirement is satisfied.”).

The failure-to-warn claim

directly arises out of the Navy’s alleged involvement in the
process of determining what warnings could be placed upon
products manufactured by Defendants for use aboard the Uhlmann.
If the analysis under the third prong seems terse, it is
logically so.

The court in Madden v. Able Supply Co., 205 F.

Supp. 2d 695, 701 (S.D. Tex. 2002) found the causal nexus test
satisfied where the plaintiff’s claims against Westinghouse
pertained to the design, construction, and installation of marine
turbines on Navy vessels and to the lack of warnings affixed to
the turbines.

The turbines were constructed pursuant to

stringent naval specifications, and the warnings were governed by
Navy guidelines.

Id. at 701-02.

was “axiomatic.”

Id. at 702.

As a result, the causal nexus

The same is true in this case.

Because Defendants have demonstrated (1) that they acted under
the direction of a federal officer, (2) that they have a
colorable federal defense, and (3) that there is a causal nexus

31

between Najolia’s claims and acts Defendants performed under
color of federal office, the removal was proper under Title 28
U.S.C. § 1442(a)(1).

Accordingly, and for all of the foregoing

reasons,
IT IS ORDERED that Plaintiff Frank Najolia, Jr.’s Motion to
Remand (Rec. Doc. 21) is DENIED.
New Orleans, Louisiana, this 23rd day of May, 2012.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

32