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

Filing 165

MEMORANDUM-DECISION and ORDER denying 52 Motion by Plaintiff's to Remand to State Court. Signed by Senior Judge Frederick J. Scullin, Jr on 2/18/2014. (bjw, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________________
DWIGHT CREWS and PEGGY CREWS,
Plaintiffs,
v.
AIR & LIQUID SYSTEMS CORPORATION;
ARMSTRONG INTERNATIONAL, INC.;
BW/IP INTERNATIONAL, INC., individually
and as successor-in-interest to Byron Jackson
Pumps; CARVER PUMP COMPANY; CBS
CORPORATION, formally known as Viacom,
Inc., successor-by-merger to CBS Corporation
formerly known as Westinghouse Electric
Corp.; CLARK RELIANCE CORPORATION;
CRANE CO.; ELLIOT TURBOMACHINERY
COMPANY; FLOWSERVE CORPORATION,
also known as BW/IP International, Inc., as
successor-in-interest to Byron Jackson Pumps;
FOSTER WHEELER ENERGY CORPORATION;
GENERAL ELECTRIC COMPANY; ICON
MANAGEMENT SERVICES, LLC, individually
and as successor in interest to Jerguson
Valve and Gauge Company; IMO INDUSTRIES,
INC., individually and as successor-in-interest to
Delaval Steam Turbine, Inc.; INGERSOLL-RAND
COMPANY; JOHN CRANE, INC.; NATIONAL
SERVICE INDUSTRIES, INC., formerly known
as North Brothers, Inc.; PNEUMO ABEX
CORPORATION; ROCKWELL INTERNATIONAL
CORP.; SEQUOIA VENTURES, INC. also known
as Bechtel Corporation; UNION CARBIDE
CORPORATION; WARREN PUMPS, LLC;
WEINMAN PUMP AND SUPPLY COMPANY;
and YARWAY CORPORATION,
Defendants.
____________________________________________________

7:12-CV-1678
(FJS/DEP)

APPEARANCES

OF COUNSEL

NAPOLI BERN RIPKA
SHKOLNIK & ASSOCIATES LLP
350 Fifth Avenue, Suite 7413
New York, New York 10118
Attorneys for Plaintiffs

MICHAEL COHAN, ESQ.
KARDON A. STOLZMAN, ESQ.

K & L GATES LLP
599 Lexington Avenue
New York, New York 10020-6030
Attorneys for Defendant Crane Co.

ANGELA DIGIGLIO, ESQ.
ERIC R.I. COTTLE. ESQ.
NICOLE M. KOZIN, ESQ.

SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On May 21, 2012, Plaintiffs filed a complaint in New York Supreme Court, Jefferson
County. See Dkt. No. 55 at 6; Dkt. No. 1 at Exhibit 2. On November 13, 2012, Defendant Crane
Co. filed a notice of removal based on federal officer jurisdiction under 28 U.S.C. § 1442(a)(1).
See Dkt. No. 1. On February 13, 2013, Plaintiffs filed the pending motion to remand on the
ground that the Court lacked subject matter jurisdiction over this action. See Dkt. No. 52.

II. BACKGROUND
Plaintiffs allege that Plaintiff Dwight Crews (hereinafter "Plaintiff") acquired cancer as a
result of asbestos exposure while serving in the United States Navy from 1965 to 1971. See Dkt.
No. 55, Plaintiffs' Remand Memorandum of Law, at 6; Dkt. No. 1 at ¶ 5. Plaintiffs assert six
causes of action.1 See Dkt. No. 1 at Exhibit 2. The first cause of action sounds in negligence,
1

Plaintiffs originally sued twenty-three Defendants. However, only four Defendants
(continued...)
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part of which is based on negligent design, see id. at ¶ 58, and failure to warn, id. at ¶¶ 64-65,
against all Defendants. Their second cause of action alleges breaches of implied and express
warranties and is "against all Defendants, except for those asbestos exposures which are alleged
to have occurred aboard any military vessel or vehicle, on or at any shipyard or on or at any
governmental facility or location." See id. at ¶¶ 77-82. Their third cause of action asserts a
failure to warn claim "against all Defendants except no claims alleging a manufacture or design
defect other than failure to warn are made for any asbestos exposures, which are alleged to have
occurred aboard any military vessel or vehicle on or at any shipyard or on or at any governmental
facility or location." See id. at ¶¶ 83-92. Their fourth cause of action asserts a claim based on
fungible products and is asserted "against all Defendants except no claims alleging a manufacture
or design defect other than failure-to-warn are made for asbestos exposures, which are alleged to
have occurred aboard any military vessel or vehicle, on or at any shipyard on or at any
governmental location." See id. at ¶¶ 93-103. Their fifth cause of action is based on a claim of
unsafe workplace and is asserted against all Defendants. See id. at ¶¶ 104-122. Their sixth cause
of action is for loss of consortium. See id. at ¶¶ 123-126.
Defendant Crane Co. (hereinafter "Defendant") is a small sub-manufacturer that produced
valves and gaskets for the Navy during Plaintiff's time in service. See Dkt. No. 1 at ¶ 5; Exhibit
2, at Response No. 22 and Chart A. Plaintiff alleges that he was exposed to products that
Defendant manufactured and supplied while working aboard the USS Wright and USS
Bainbridge. See id.
1

(...continued)
remain: (1) Crane Co.; (2) IMO Industries, Inc.; (3) Ingersoll-Rand Co.; and (4) Warren Pumps,
LLC. Of these Defendants, only Defendant Crane Co. has a pending summary judgment motion.
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III. DISCUSSION
A.

Standard for removal under 28 U.S.C. § 1442(a)
Generally, removal of an action from state court to federal court is only permissible if the

action could have been brought initially in federal court. See Hagen v. Benjamin Foster Co., 739
F. Supp. 2d 770, 775 (E.D. Pa. 2010) (citing 28 U.S.C. § 1441). Furthermore, a defendant
usually may not remove a suit to federal court on the basis of a federal defense. See id. at 776
(citation omitted). However, the federal officer removal statute, 28 U.S.C. § 1442(a)(1),2 which
confers jurisdiction over cases in which a federal officer is a defendant, explicitly allows
defendants to remove such actions and, thus, is an exception to this general rule. See id.
(citations omitted).
To establish subject matter jurisdiction under § 1442(a)(1), a defendant must demonstrate
that
"(1) it is a 'person' within the meaning of the statute; (2) the
plaintiff's claims are based upon the defendant's conduct 'acting
under' a federal office; (3) it raises a colorable federal defense; and
(4) there is a causal nexus between the claims and the conduct
performed under color of a federal office."
Id. (quoting Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998)).
2

The federal officer removal statute allows the following group of defendants to remove
a state action to federal court:
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, sued in an official or individual capacity for 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).
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In this case, Defendant raises the government contractor defense "which, based on
principles of preemption, cloaks government contractors like Defendant[] from ordinary statelaw liability." Id.
In situations such as this one, in which "the government contractor defense is the basis for
invoking this Court's jurisdiction . . . against [a] non-government entit[y] who furnished
equipment to the military, resolution of Plaintiff's motion to remand effectively turns on how
colorable Defendant['s] federal defense really is." Id. Furthermore, as the court noted in Hagen,
"unlike the analysis undertaken with respect to other removal statutes, . . . the Court must broadly
construe Defendant['s] ability to remove under Section 1442(a)(1) as to avoid frustrating its
policy objective of 'hav[ing] the validity of the defense of official immunity tried in a federal
court' by applying a 'narrow, grudging interpretation.'" Id. at 777 (quoting Willingham v.
Morgan, 395 U.S. 402, 407, 89 S. Ct. 1813, 23 L. Ed. 2d 396 (1969)) (internal citation and other
citation omitted).
When addressing a motion to remand where the defendant has removed the case based on
§ 1442(a), the court must first determine what constitutes a "colorable" federal defense. In
Willingham v. Morgan, 395 U.S. 402 (1969), the Supreme Court explained that
[t]he federal officer removal statute is not "narrow" or "limited." . .
. At the very least, it is broad enough to cover all cases where
federal officers can raise a colorable defense arising out of their
duty to enforce federal law. One of the primary purposes of the
removal statute as its history clearly demonstrates was to
have such defenses litigated in the federal courts.
Id. at 406-07 (internal quotation omitted) (emphasis added); see also Arizona v. Manypenny, 451
U.S. 232, 241(1981) (stating that the purpose of "ensur[ing] a federal forum in any case where a
federal official is entitled to raise a defense arising out of his official duties" is to permit a
defendant to have its defense adjudicated in federal court (footnote omitted)); Jefferson Cnty. v.
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Acker, 527 U.S. 423, 431 (1999) ("recognizing that 'one of the most important reasons for
removal is to have the validity of the defense of official immunity tried in a federal court'"
(quotation omitted)).
In other words, an "officer need not win his case before he can have it removed." Willingham,
395 U.S. at 407.
The Court agrees with the Hagen court's conclusion that, "applying the Supreme Court's
clear teaching that a colorable defense need not be proven at [the remand] stage of the litigation
due to the broad removal right the statute creates," Hagen, 739 F. Supp. 2d at 781, although 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[,]" id. at 782.3
Applying the Hagen court's analysis to the present case, the Court must determine
whether Defendant has "a colorable claim that the government contractor defense shields [it]
from liability to Plaintiff." Id. at 783. In doing so, the Court reviews the facts in the light most
favorable to Defendant without addressing the merits of the defense. See id. at 783-84.

3

The Court acknowledges, as the Hagen court did, that there is a split in authority
regarding the issue of what "a defendant [who is asserting a colorable federal defense under
§ 1442] must proffer to defeat a plaintiff's motion for remand." Hagen, 739 F. Supp. 2d at 777
(footnote omitted). Nonetheless, the Court finds the Hagen court's analysis of these differences
and the reasons for its decision persuasive and, therefore, concludes, as the Hagen court did, 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." Id. at 783 & n.13 (noting that, "[p]resumably, the
merits of Defendants' defense will be tested on a motion for summary judgment or at trial. By
allowing Defendants' defense to be resolved in this forum, the Court adheres to Section
1442(a)(1)'s clear mandate.").
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B.

Application to Plaintiff's claims
1. Defective design claim
To assert a "colorable" federal defense to a design defect claim, the defendant must show

that there is a significant conflict between state and federal law. See Boyle v. United Techs.
Corp., 487 U.S. 500, 512 (1988). The defendant's state tort law design duty is displaced "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." Id.; In re Joint E. &
S. Dist. New York Asbestos Litig. v. Eagle Picher Indus., Inc. ("Grispo"), 897 F.2d 626, 629 (2d
Cir. 1990) (quotation omitted).
Despite Plaintiff's contention that there is no "uniquely federal" interest at play and that
the Navy did not dictate to Defendant the precise specifications, the record is to the contrary.
The affidavits of Anthony D. Pantaleoni ("Pantaleoni Aff."), see Dkt. No. 1-5; David P. Sargent,
Jr.4 ("Sargent Aff."), see Dkt. No. 1-6; and Dr. Samuel Forman ("Forman Aff."), see Dkt. No. 3-6
demonstrate that, in this case, Defendant's state tort law design duty has been displaced.
Mr. Pantaleoni stated that the Navy provided detailed instruction in the pertinent Military
Specifications ("MILSPECS"). Specifically, in Section A of the "Bureau of Engineering
Specification Valves, Gate, for Air Exhaust Steam, Oil, or Water Services (Shipboard Use)," the
types of packing available are delineated

33P14 (Packing, asbestos, valve stem, symbol 1101),

33P16 (Packing, asbestos, rod, high pressure, symbol 1100), and 3317 (Packing, metallic,

4

David P. Sargent, Jr. is a retired Rear Admiral of the United Stats Navy. He served
from 1967 to 1999. See Dkt. No. 1-6 at ¶ 1.
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flexible, symbols 1430 and 1431) (emphasis added). See Dkt. No. 1-5 at 17. Later in the same
document, D-17 states, "[v]alve stems shall be packed with one of the packings conforming to
N.D. Specs. 33P14, 33P16, or 33P17, referred to in Section A." See id. at 20. Further, in
accordance with MIL-V-22052D (SH), other specifications using asbestos are included

MM-P-

46 (Packing; Asbestos, Sheet Compressed), MIL-A-7021 (Asbestos Sheet, Compressed, for Fuel,
Lubricant, Coolant, Water, and High Temperature Resistant Gaskets), and MIL-P-24377
(Packing Material, Asbestos, Braided, Impregnated with TPE (Polytetrafluroethylenal), Surface
Lubricated) (emphasis added). These MILSPECS show that, in the manufacture and delivery of
Defendant's valves, the Navy directed the use of asbestos. Furthermore, Mr. Pantaleoni's
affidavit makes clear that "[t]he manufacture of equipment for use on Navy vessels was governed
by an extensive set of federal standards and specifications," which "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." See Dkt. No. 1-5 at
¶ 5.
In order to demonstrate conformity with these specifications, Mr. Sargent states that
"[t]he development of the contract design package involved multiple government decisions[,]"
and "[t]he Navy developed specifications called, since the 1950s, Military Specifications
(MILSPECs) for use in the contract design package." See Dkt. No. 1-6 at ¶¶ 25-26. "These
MILSPECs presented very detailed descriptions of what the government required when procuring
the items covered by the MILSPECs, including requirements such as chemical composition,
dimensions, required testing and performance demonstrations, required labeling, packaging and
shipping requirements, and similar content." See id. at ¶ 26. Notably, Mr. Sargent asserts that
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"[c]ompliance with the standards and specifications issued for equipment supplied for ultimate
use aboard Navy ships was directly monitored by Naval Machinery Inspectors" and "[e]quipment
could not have been installed aboard Navy vessels unless it was first determined by the Navy to
be in conformity with all applicable Navy specifications." See id. at ¶ 29. Lastly, Mr. Sargent
states that "detailed design was typically accomplished by the construction shipyard," and "the
shipyard connected an array of components such as valves . . . by adding gaskets to the flanges of
each piece of equipment and piping." See id. at ¶ 32. Most importantly, "[w]here flange gaskets
contained asbestos, it was because the Navy required it; the manufacturers of valves and pumps
did not manufacture or supply the flange gaskets." See id. (emphasis added).
Finally, Dr. Forman states that the Navy possessed "state-of-the-art knowledge regarding
asbestos-related health hazards" during the time period at issue here." See Dkt. No. 3-6, at ¶ 84.
Dr. Forman's affidavit demonstrates that there was nothing about which Defendant needed to
warn the navy because the Navy knew about the health hazards of asbestos after conducting
studies on work health in the early twentieth century. See Machnik v. Buffalo Pumps Inc., 506 F.
Supp. 2d 99, 104 (D. Conn. 2007).
In this case, Plaintiff has presented evidence, which, if accepted as true, shows that (1) the
Navy provided reasonably precise specifications; (2) Defendant's equipment conformed to those
specifications; and (3) there was no need for Defendant to warn the Navy about the dangers of
the use of asbestos in its products because those dangers were known to the Navy. Accordingly,
the Court finds that Defendant has raised a colorable military contractor defense to Plaintiff's
defective design claim.

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2. Failure to warn claim
In the context of a failure-to-warn case, the defendant must demonstrate that
"(1) the United States exercised its discretion and approved the
warnings, if any; (2) the contractor provided warnings that
conformed to the approved warnings; and (3) the contractor warned
the United States of the dangers in the equipment's use about which
the contractor knew, but the United States did not."
Hagen, 739 F. Supp. 2d at 783 (quoting Tate, F.3d at 1157) (other citation omitted).
To support its position that it has met these requirements, Defendant relies on certain
MILSPECS, as well as the affidavits of Admiral Sargent and Dr. Forman. First, section 3.3.6,
"Notes, Cautions, and Warnings," of MIL-M-15071D provides as follows:
Notes, cautions and warnings should be used to emphasize
important and critical instructions. The use should be as sparing as
is consistent with real need. When used, notes, cautions and
warnings should immediately precede the applicable instructions
and shall be selected in accordance with the following definitions:
(a) "NOTE" An operating procedure, condition, etc., which it is
essential to highlight.
(b) "CAUTION" Operating procedures, practices, etc., when if
not strictly observed, will result in damage or destruction of
equipment.
(c) "WARNING" Operating procedures, practices, etc., which
will result in personal injury or loss of life if not correctly
followed.
See Dkt. No. 3-3 at § 3.3.6.
Second, section 3.6.3.4, "System Hazards and Precautions," of MIL-M-15071H provides
as follows:
Descriptions of system hazards and precautions shall be included,
addressed to system personnel and referenced to particular system
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equipment. The descriptions shall be organized to be consistent
with the operation of the system. The descriptions shall
supplement and extend equipment safety instructions to the system
level, by warning of potential hazards that can be caused during
operation or maintenance.
See Dkt. No. 55-16 at § 3.6.3.4.
Third, section 3.6.3.4.3, "Hazardous Components," of MIL-M-150171H provides as
follows:
Identify and briefly describe the hazardous components including
radioactive devices and elements used with the system and
summarize the general handling precautions for such components.
The description of a hazardous component shall include brief
statements as to the purpose, manner of functioning, nature of
built-in safety devices, and nature of the hazardous element; it shall
also indicate the relative sensitivity of the component to
mechanical shock, vibration, electromagnetic and radioactive
radiation, and electrostatic discharges.
See id. at § 3.6.3.4.3.
Although the first section of MIL-M-1507D, under 1.1, "Scope," states, in pertinent part,
that "[t]he intent is to accept the manufacturer's commercial type of manual or one prepared in
accordance with his commercial whenever it is roughly equivalent to the detail requirements
included herein," this does not mean that the Navy defers to the manufacturer's discretion
regarding warnings. See Dkt. No. 3-3 at § 1.1. Rather, under § 3.1.3, in MIL-M-15071D,
manufacturers are permitted to submit commercial manuals for the Navy's review and subsequent
approval. See id. at § 3.1.3. Together with § 3.3.6 of the same MILSPEC, indicates that the
Navy retained final authority over the nature and content of the warnings.
In addition, Defendant relies on the affidavit of Admiral Sargent to claim it would not
have been allowed to "affix[] any type of warning or caution statement to equipment intended for
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installation in a Navy ship, beyond those specifically required by the navy without prior
discussion and express approval by the Navy." See Dkt. No. 1-6 at ¶ 58. Admiral Sargent goes
on to say, "the Navy would not have permitted equipment suppliers to place asbestos-related
warnings on packaging or containers for valves and pumps or related parts or items supplied
during the 1940s, 1950s, or 1960s." See id. at ¶ 63. Defendant also submitted the affidavit of Dr.
Forman, in which he stated that the Navy took responsibility for the safety and welfare of its
personnel and had extensive knowledge about the damages of asbestos. See Dkt. No. 3-6 at
¶¶ 21-35. Based on the above-cited language from the MILSPECS and the declarations of
Admiral Sargent and Dr. Forman, this Court finds that Defendant has set forth sufficient facts to
state a "colorable" military contractor defense against Plaintiff's failure-to-warn claim.

3. "Acting under" requirement
Since "a defendant's government contractor defense . . . is only colorable if the defendant
identifies facts demonstrating the government's actions 'transcend rubber stamping,' . . . any
defendant who satisfies the colorable defense requirement will necessarily meet the acting under
requirement of Section 1442(a)(1) as well." Hagen, 739 F. Supp. 2d at 784-85. Accordingly, the
Court concludes that, for the same reasons the Court determined that Defendant's federal defense
is colorable, Defendant has also established that it was acting under a federal officer, thus
satisfying § 1442(a)(1)'s "acting under" requirement with respect to both his design defect and
failure-to-warn claim.

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4. Causal nexus requirement
The final requirement for removal under § 1442(a)(1) is that the defendant must show
that there is a causal nexus between the conduct performed under federal direction, in this case,
Plaintiff's defective design and failure-to-warn claims. To satisfy this requirement, a defendant
must "'by direct averment exclude the possibility that [the defendant's action] was based on acts
or conduct of his not justified by his federal duty.'" Hagen, 739 F. Supp. 2d at 785 (quotation
omitted). Furthermore, the causal nexus requirement "'is closely related to evidence supporting a
colorable federal defense' where a government contractor is the defendant because both elements
require the 'defendant [to] show that it acted at the federal government's command.'" Id.
(quotation omitted). In essence, "the causal nexus analysis 'is essentially the same as [that
associated with] the colorable defense requirement.'" Id. (quotation and footnote omitted).
Accordingly, for the same reasons that the Court determined that Defendant's federal defense is
colorable, the Court also finds that Defendant has established that a causal connection exists
between the conduct it performed under the federal direction and Plaintiff's defective design and
failure-to-warn claims.

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IV. CONCLUSION
After reviewing the entire file in this matter, the parties' submissions and the applicable
law, and for the above-stated reasons, the Court hereby
ORDERS that Plaintiff's motion to remand this case is DENIED.

IT IS SO ORDERED.

Dated: February 18, 2014
Syracuse, New York

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