Gordon v. Air & Liquid Systems Corporation et al

Filing 85

ORDER denying 12 Motion to Remand. IT IS HEREBY ORDERED that, for the reasons contained herein, plaintiff's motion to remand is denied. SO ORDERED. Ordered by Judge Joseph F. Bianco on 1/6/2014. (Lamb, Conor)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 13-CV-969 (JFB)
_____________________

LAURA GORDON, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF JAMES GORDON,
Plaintiff,
VERSUS

AIR & LIQUID SYSTEMS CORP., a/k/a BUFFALO PUMPS, INC., CBS CORP., f/k/a
Viacom, Inc., Successor by merger to CBS Corp. f/k/a Westinghouse Electric
Corp., FOSTER WHEELER ENERGY CORP., GENERAL ELECTRIC CO., ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
January 6, 2014
___________________

JOSEPH F. BIANCO, District Judge:
On December 26, 2012, plaintiff Laura
Gordon (“plaintiff”), individually and as
personal representative of James Gordon,
filed this action in the Supreme Court of the
State of New York, County of Nassau. The
complaint alleges that Mr. Gordon
developed lung cancer as a result of his
exposure to asbestos-containing products
manufactured and supplied by several
entities, including the defendants. Plaintiff
seeks damages for defendants’ defective
products and their failure to warn under state
law negligence and strict liability theories.
On February 22, 2013, defendants CBS
Corp., Foster Wheeler Energy Corp., and
General Electric Co. filed their Notice of
Removal, asserting that this Court has
subject matter jurisdiction, pursuant to the

federal officer removal statute, 28 U.S.C. §
1442(a)(1), which provides, in part, for
removal of civil actions against private
parties acting under federal officers.1
1

Defendants CBS Corp., Foster Wheeler Energy
Corp., and General Electric Co. removed this action
and opposed plaintiff’s motion to remand, and they
are referred to collectively as “defendants.” A single
federal officer defendant may remove an entire
action. See Bradford v. Harding, 284 F.2d 307, 30910 (2d Cir. 1960). The Bradford rule also forecloses
plaintiff’s alternative argument that removal by one
of the three defendants was untimely. In other words,
even if the Notice of Removal by Westinghouse was
untimely by one day as plaintiff asserts, the other two
moving defendants—Foster Wheeler and GE—filed
the Notice in a timely manner on February 22, 2013,
because they were not served until January 23, 2013,
and January 29, 2013, respectively. Thus, even if
plaintiff is correct as to the untimeliness as to
Westinghouse’s removal, the entire case could still be

Defendants assert that such removal is
warranted because defendants were acting
under an officer or agency of the United
States when they manufactured equipment
for the USS Cadmus and USS Detroit.

the design and manufacture of, and failure to
warn about, their products.
B. Defendants’ Removal
Defendants removed this action under 28
U.S.C. § 1442(a)(1), the federal officer
removal statute. Federal officer removal has
three requirements, one of which is the
central focus of the parties here: whether
defendants have raised a “colorable” federal
defense.
Defendants argue that their
colorable federal defense is the government
contractor defense as set forth in Boyle v.
United Techs. Corp., 487 U.S. 500 (1988).
That defense extends immunity to certain
contractors
performing
discretionary
functions for the federal government.

Plaintiff moves to remand this action to
the Supreme Court of the State of New
York, County of Nassau, where it was
initiated. In her remand motion, plaintiff
argues that defendants are not entitled to
federal officer removal because they cannot
raise a colorable federal defense. As set
forth below, based upon the current record,
the Court concludes that defendants have
met the requirements of the federal officer
removal statute, including the assertion of a
colorable federal defense, and thus the
action was removable to federal court.
Accordingly, plaintiff’s motion to remand is
denied.

In 2010, plaintiff’s father died of lung
cancer, which plaintiff contends was the
result of his breathing asbestos dust and
fibers while working near defendants’
products on Navy ships. Plaintiff’s legal
theory is that defendants were negligent in

To prove that they performed a
discretionary function under the direction of
federal officers, defendants have submitted
affidavits from engineers who are
knowledgeable about the design and
manufacture of the products at issue, and the
Navy’s specifications for them. They have
also submitted affidavits from physicians
knowledgeable
about
asbestos.
The
affidavits generally state that the Navy had
precise specifications for the products it
included in the construction of its ships, and
subjected those products to a rigorous
approval process. Defendants were not
permitted to include asbestos warnings, even
though the Navy possessed extensive
knowledge about the health risks and effects
of exposure to asbestos.
Two of the
physicians’ affidavits conclude that the
Navy knew more about asbestos than
defendants.

properly removed by the two defendants who met the
30-day deadline imposed by 28 U.S.C. § 1446(b).
2
Plaintiff’s father served in the U.S. Navy from 1955
to 1975. He was stationed aboard the USS Cadmus
and the USS Detroit, and also worked in several
shipyards.

Plaintiff’s motion to remand is based
largely on her evidentiary objections to the
affidavits. She argues that they contain
hearsay and speculation, and should be
given little weight. Moreover, plaintiff also
relies on the declaration of William Lowell,

I. BACKGROUND
A. Factual Background
According to the complaint, plaintiff’s
father was exposed to asbestos aboard
various ships during a twenty-year career in
the U.S. Navy.2 Those ships contained
turbines and steam generators (“products”)
that defendants manufactured and supplied
to the Navy.

2

A. Evidentiary Objections

who, based upon his Navy and merchant
seaman background, opined that the military
specifications at issue “demonstrate that the
Navy did not discourage or prohibit
equipment manufacturers from warning
about hazards associated with the
foreseeable use of their equipment.”
(Declaration of William Lowell, at ¶ 12.)

As a threshold matter, plaintiff objects to
the evidentiary submissions by defendants
as “nothing more than speculative and
hearsay assertions that the government had
reasonably precise specifications about the
use of the materials found in Defendants’
equipment.” (Pl. Mem. at 6.) However, the
Court concludes that the affidavits submitted
by defendants can be considered by the
Court for purposes of determining whether
removal is warranted. The affidavits set
forth the basis for the statements that each
affiant offers with respect to the Navy’s
control over equipment manufactured by
Foster Wheeler and GE for the Navy, and
the Court concludes that such affidavits are
admissible for purposes of the remand
motion. Plaintiff’s generalized objections,
although characterized as evidentiary in
nature, relate solely to the weight that the
evidence should be given, not to its
admissibility. Thus, any objection to the
admissibility of these affidavits for purposes
of the remand motion is denied. See, e.g.,
Leite v. Crane Co., 868 F. Supp. 2d 1023,
1036-37 (D. Haw. 2012) (“These experts’
extensive experiences in the Navy provide
the basis and foundation for their opinions
regarding what the Navy would, or would
not, have allowed as to asbestos warnings,
and take this testimony outside the realm of
unsupported speculation.
And such
testimony is certainly helpful in determining
whether Defendants have established a
colorable federal defense, and in particular
whether the government exercised its
discretion in determining the warnings to
provide.”)

C. The MDL Decision
These affidavits appear to be the same as
those submitted in similar lawsuits around
the country, in which plaintiffs have leveled
the same evidentiary criticisms. Many of
these cases were consolidated in MDL-875
in the Eastern District of Pennsylvania, and
certain decisions of that court have been
highlighted by the Judicial Panel on
Multidistrict Litigation as useful examples
for courts to follow in future asbestos cases.
In re Asbestos Prods. Liab. Litig. (No. VI),
830 F. Supp. 1377, 1379 n.5 (J.P.M.L.
2011). One of those opinions, authored by
Judge Robreno, decided a remand motion
involving the same experts’ affidavits
submitted in this case. See Hagen v.
Benjamin Foster Co., 739 F. Supp. 2d 770
(E.D. Pa. 2010). That court denied the
motion because the plaintiff’s evidentiary
arguments, though potentially valid at a later
stage of trial, were inconsistent with the
Supreme Court’s “expansive interpretation”
of Section 1442 as a statute encouraging
removal. Id. at 778-79.
II. DISCUSSION
The Court finds Hagen persuasive, and
after independently analyzing plaintiff’s
motion for remand in this case, likewise
concludes that defendants have satisfied the
requirements of the federal officer removal
statute.

B. Federal Officer Removal
Pursuant to the federal officer removal
provision set forth in Section 1442(a)(1), a
case may be removed from state to federal
3

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.
Thus, the Court
concludes that a defense is colorable
for
purposes
of
determining
jurisdiction under Section 1442(a)(1)
if the defendant asserting it identifies
facts which, viewed in the light most
favorable to the defendant, would
establish a complete defense at trial.

court when the case is brought 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 officer.” 28 U.S.C. §
1442(a)(1).
As a general matter, “the defendant
bears the burden of demonstrating the
propriety of removal.” Grimo v. Blue
Cross/Blue Shield of Vt., 34 F.3d 148, 151
(2d Cir. 1994). Plaintiff characterizes that
burden as “heavy” (Pl. Mem. at 1), but in
doing so she misses the distinction between
the general removal statutes, which are to be
strictly construed, and federal-officer
removal, which “should not be frustrated by
a
narrow,
grudging
interpretation.”
Willingham v. Morgan, 395 U.S. 402, 407
(1969).

Hagen, 739 F. Supp. 2d at 782-83 (citation
omitted); accord Clayton v. Air & Liquid
Sys. Corp., No. 13-CV-847-A, 2013 WL
6532026, at *6 (W.D.N.Y. Dec. 12, 2013)
(agreeing with Hagen that plausibility for
removal purposes is less exacting than the
Twombly standard for motions to dismiss).

The federal officer removal statute must
be construed broadly because “one of the
most important reasons for removal is to
have the validity of the defense of official
immunity tried in a federal court.” Id.
Thus, at this phase of trial, “we are
concerned with who makes the ultimate
determination, not what that determination
will be.” Ruppel v. CBS Corp., 701 F.3d
1176, 1182 (7th Cir. 2012). A federal
officer, or his agent, “need not win his case
before he can have it removed.”
Willingham, 395 U.S. at 407. As the Court
in Hagen explained, and this Court agrees:

C. The Isaacson Test for Federal
Officer Removal by a Private Party
In the Second Circuit, private contractors
may avail themselves of federal officer
removal if they meet a three-part test:
First, they must show that they are
“person[s]” within the meaning of
the statute who “act[ed] under [a
federal] officer.” . . . Second, they
must show that they performed the
actions for which they are being
sued “under color of [federal]
office.” . . . Third, they must raise a
colorable federal defense.

While the Court must require that the
facts identified by the defendant
support the federal defense, 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

Isaacson v. Dow Chem. Co., 517 F.3d 129,
135 (2d Cir. 2008) (internal citations
4

omitted). Below, each element is discussed
in turn.

naval authorities to ensure compliance with
exacting technical demands.

1. Person Acting Under a Federal
Officer

2. Actions Under Color of Federal
Office

The parties do not dispute the
personhood of defendants in this case for
purposes of the remand issue. The Second
Circuit has previously held that corporate
entities like defendants are “person[s]”
under § 1442. In re Methyl Tertiary Butyl
Esther Prods. Liab. Litig., 488 F.3d 112,
124 (2d Cir. 2007).

The second element requires defendants
to show that they performed the actions at
issue under color of federal office. “Over
time, this second prong has come to be
known as the causation requirement.”
Isaacson, 517 F.3d at 137 (citing Maryland
v. Soper (No. 1), 270 U.S. 9, 33 (1926)).
Private parties, like defendants here, “must
demonstrate that the acts for which they are
being sued. . . occurred because of what they
were asked to do by the Government.” Id.
(emphasis in original).

In addition, there is evidence that
defendants acted under a federal officer.
“The words ‘acting under’ are to be
interpreted broadly.” Isaacson, 517 F.3d at
136 (citing Watson v. Philip Morris Cos.,
551 U.S. 142, 147 (2007)). An entity acts
under a federal officer when it helps with or
carries out that officer’s duty, often under
close supervision. Id. at 137; see also
Ruppel, 701 F.3d at 1181 (“Cases in which
the Supreme Court has approved removal
involve defendants working hand-in-hand
with the federal government to achieve a
task that furthers an end of the federal
government.”).

Although this element requires a factual
showing, Isaacson clarified that “[t]he
hurdle erected by this requirement is quite
low.” Id. Plaintiff argues at various points
that defendants have not identified
regulations or contract terms in which the
Navy mandated the use of asbestos, but
defendants may satisfy this element without
reference to specific Navy requirements.
Instead, “[t]o show causation, Defendants
must only establish that the act. . . occurred
while Defendants were performing their
official duties.”
Id. at 137-38 (citing
Willingham, 395 U.S. at 409; Soper, 270
U.S. at 33) (emphasis in original). In
Isaacson, it was enough that the contractual
relationship gave rise to the Agent Orange
contamination, even if the contract did not
call for it. Here, defendants have put forth
evidence that the contractual relationship is
similarly causal: defendants made their
products because the Navy agreed to procure
them. Thus, there is evidence in the record
that would allow defendants’ conduct to fall
under the color of a federal office regardless
of whether there were contractual terms
concerning asbestos.

Isaacson found this element satisfied
where the defendant was a private contractor
supplying the Government with a product it
needed during war—“a product that, in the
absence of Defendants, the Government
would have had to produce itself.” 517 F.3d
at 137. In Isaacson, that product was Agent
Orange; here, the products are Navy ship
components that are of the same necessary
character, especially when considering the
vital role of warships in our nation’s
defense. As is discussed infra, there is
colorable evidence that defendants acted
“under” the Navy in building these warship
components by working hand-in-hand with
5

low. In Hagen, Judge Robreno concluded
that courts should consider facts in the light
most favorable to defendants. 739 F. Supp.
2d at 783. At least two courts in this circuit
have held that “[a]dequately supported
affidavits are sufficient to establish a
colorable federal defense.” Depascale v.
Sylvania Elec. Prods. Inc., 584 F. Supp. 2d
522, 527 (E.D.N.Y. 2008) (citing Viscosi v.
Am. Optical Corp., No. 3:07-CV-1559, 2008
WL 4426884, at *4 (D. Conn. Sept. 29,
2008)).

3. Colorable Federal Defense
The principal dispute between the parties
is whether defendants have shown a
colorable federal defense, namely the federal
contractor defense. “The rationale for this
defense is not to protect the contractor as a
contractor, but ‘solely as a means of
protecting the government’s discretionary
authority over areas of significant federal
interest.’” McCue v. City of New York, 521
F.3d 169, 194 (2d Cir. 2013) (quoting In re
“Agent Orange” Prod. Liab. Litig., 517
F.3d 76, 89-90 (2d Cir. 2008)).

These decisions undoubtedly serve the
purpose of § 1442(a)(1) and follow the
Supreme Court’s guidance not to interpret
that statute “narrow[ly]” or “grudging[ly].”
Willingham, 395 U.S. at 407. With that
guidance in mind, it is apparent, based upon
the current record, that defendants’ evidence
is colorable under all three elements of
Boyle. First, multiple affidavits by experts
knowledgeable about the products and the
Navy’s procurement of them support
defendants’
position
that
design,
manufacture, and delivery were governed by
reasonably precise Navy specifications.3
Those specifications were conveyed in
engineering drawings and technical manuals
prepared and approved by Navy personnel,
as part of a process in which the Navy
exercised tight control over both the design
of the products themselves and the written
material that accompanied them. There is
evidence in the record that warnings of any
type were expressly forbidden.4 Although

The federal contractor defense displaces
state-law design and manufacturing duties
“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, 487 U.S. at 512. The Second Circuit
has also applied Boyle to the duty to warn,
requiring defendants to show that federal
government officials “dictated” the contents
of any warnings that would accompany the
product. Grispo v. Eagle-Pitcher Indus.
Inc., 897 F.2d 626, 630 (2d Cir. 1990).
Boyle and Grispo both examined the
merits of the federal contractor defense at a
later stage of trial. Thus, although they
define the elements of the defense at issue,
the evidentiary burden is lower here. For
the purposes of this remand motion, the
federal contractor defense need only be
“colorable,” not “clearly sustainable.”
Willingham, 395 U.S. at 406-07.

3

The Court notes particularly the affidavits of J.
Thomas Schroppe, Admiral Ben Lehman, David
Hobson, and Admiral Roger Horne, all of which were
discussed in greater detail in Hagen, 739 F. Supp. 2d
at 774-75.
4
See, e.g., Affidavit of David Hobson, dated
February 4, 2005 (“GE would not have been
permitted, under the specifications, associated
regulations and procedures, and especially under the
actual practice as it evolved in the field, to affix any
type of warning….”).

The Second Circuit has not defined
“colorable” beyond Willingham’s distinction
with “clearly sustainable,” but the decisions
of other courts confirm that defendants’
burdens of persuasion and production are
6

plaintiff has submitted an affidavit to the
contrary, that single affidavit does not
prevent defendants from clearing the low
hurdle of raising a colorable defense.

defense.
As noted supra, plaintiff’s
arguments to the contrary rely on
characterizations of the affidavits as
containing hearsay and speculation, and seek
to draw fine distinctions concerning how
reasonably precise the Navy’s regulations
and contract terms were. For example,
plaintiff relies heavily on Holdren v. Buffalo
Pumps, Inc., 614 F. Supp. 2d 129, 144-45
(D. Mass. 2009) to support its argument that
the Court should look past the affidavits and
consider whether the text of specific
documents expressly prohibited asbestos
warnings. The MDL Court concluded that
Holdren’s evidentiary standard was simply
too high at the remand stage, given that the
purpose of federal officer removal was to
encourage the trial of such complex
evidentiary questions in federal court.
Hagen, 739 F. Supp. 2d at 781-82. This
Court agrees. Those arguments may have
merit later in this litigation, but they ask
more of defendants at this stage than Section
1442(a)(1) requires. As the court in Hagen
noted, “if it later becomes evident that the
relevant facts developed in the litigation do
not support jurisdiction, the Court will do
what it would do in any removed case:
dismiss and remand the action based on lack
of subject matter jurisdiction.” Hagen, 739
F. Supp. 2d at 782.

Second, the evidence of the Navy’s
acceptance and use of defendants’ products,
after the rigorous trial and approval process
described in the affidavits,5 supports
defendants’ assertion that they conformed to
the reasonably precise specifications. See
Lewis v. Babcock Indus., Inc., 985 F.2d 83,
89 (2d Cir. 1993) (finding conformity based
on the Government’s order and subsequent
approval process).
Finally, the affidavits provide at least
colorable evidence that the Navy knew far
more about asbestos than the defendants.6
Where the government has an informational
advantage, Boyle’s third prong does not
require evidence that defendants warned the
government. See, e.g., Beaver Valley
Contracting Co. v. Nat’l Eng’g &
Contracting Co., 883 F.2d 1210, 1216 (3d
Cir. 1989); see also In re “Agent Orange”
Prod. Liab. Litig., 534 F. Supp. 1046, 1055
(E.D.N.Y. 1982) (formulating the third
prong as “the government knew as much as
or more than the defendant about the
hazards to people that accompanied use of
‘Agent Orange’”).
In sum, defendants have submitted
evidence to support their position that they
can satisfy all three elements of Boyle, and
have raised a colorable federal contractor
5

See, e.g., Affidavit of Admiral Ben Lehman, dated
October 6, 2004 (“[T]he Navy had complete control
over every aspect of each piece of equipment.
Military specifications governed every characteristic
of the equipment used on Navy ships, including the
instructions and warnings.”).
6
The Court notes particularly the affidavits of
Captain Lawrence Stillwell Betts, which was
discussed in greater detail in Hagen, 739 F. Supp. 2d
at 775, and of Dr. Samuel Forman, M.D.

7

III. CONCLUSION
For
the
foregoing
reasons,
defendants’ removal of this action to federal
court was proper under 28 U.S.C. §
1442(a)(1), and accordingly, plaintiff’s
motion to remand is denied.

SO ORDERED.

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: January 6, 2014
Central Islip, New York
***
The attorney for plaintiff is Kardon Aaron
Stolzman of Napoli Bern Ripka Shkolnik,
LLP, 350 Fifth Avenue, Suite 7413, New
York, NY 10118.
The attorneys for
defendants are Michael A. Tanenbaum and
Matthew R. Straus, Sedgwick LLP, Three
Gateway Center, 12th Floor, Newark, NJ
07102.

8