Donohue et al v. CBS Corporation et al

Filing 99

OPINION & ORDER re: 55 MOTION to Remand . MOTION to Remand to State Court filed by Michael B Donohue. For the foregoing reasons, Plaintiffs' motion to remand is denied. In view of the Plaintiffs' representa tions that, absent removal, this case would have been accepted into the New York state court's in extremis trial cluster of asbestos cases, this Court is prepared to expedite this action to trial. Accordingly, the parties are directed to prov ide this Court with a status update on any remaining pre-trial discovery by December 1, 2017. A status conference shall be held on December 5, 2017 at 11:30 a.m. The Clerk of Court is directed to terminate the motion pending at ECF No. 55. ( Status Conference set for 12/5/2017 at 11:30 AM before Judge William H. Pauley III.) (Signed by Judge William H. Pauley, III on 11/27/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

MICHAEL B. DONOHUE, et al.,
Plaintiffs,
-againstCBS CORPORATION, et al.
Defendants.

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17cv7232
OPINION & ORDER

WILLIAM H. PAULEY III, United States District Judge:
Plaintiffs Michael and Anne Donohue move to remand this action back to New
York State Supreme Court, New York County. For the reasons that follow, Plaintiffs’ motion is
denied.
BACKGROUND
This is a product liability action arising from Michael Donohue’s exposure to
asbestos in connection with his work as a fireman and machinist in the United States Navy
(“Navy”) and later as a wiper and assistant marine engineer with the New York City Fire
Department (“NYFD”). Donohue’s complaint alleges that the Defendants in this action—
manufacturers of asbestos-containing equipment used by the Navy and the NYFD—failed to
warn Donohue of the dangers of asbestos. 1 During his time in the Navy, for example, Donohue
alleges asbestos exposure in connection with repairing, maintaining, inspecting, and cleaning

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While the Defendants’ joint brief opposing Donohue’s motion to remand addresses colorable federal
defenses to defective design claims, Donohue has made clear that this case “is not based on an alleged design-defect,
but instead based on the defendants’ failure to warn Mr. Donohue regarding the dangers of asbestos.” (Donohue’s
Reply in Support of Motion to Remand, ECF No. 97, at 1 (emphasis original); see also Mot. at 9 (addressing only
the “so-called ‘government contractor’ defense in a case asserting a strict liability claim for failure to warn of the
dangers posed by use of its products.” (emphasis added).) Accordingly, this Opinion and Order analyzes the
propriety of remand based on whether the Defendants have asserted a colorable federal defense specifically with
regard to a failure to warn claim.

equipment such as pumps, valves, boilers, and turbo-generators. At the NYFD, Donohue alleges
that he repaired, maintained, inspected, and cleaned asbestos-containing equipment located in the
engine rooms of NYFD fireboats.
On May 30, 2017, Donohue was diagnosed with malignant mesothelioma, a fatal
cancer caused by exposure to asbestos. On August 15, 2017, Donohue and his wife, Anne,
commenced this action in New York State Supreme Court, New York County. Due to the
exigent nature of his situation, Donohue asked the state court to include his case in the April
2018 in extremis trial cluster on the New York County Asbestos Litigation docket.
With Donohue’s health rapidly deteriorating, the parties deposed him over five
days in August and September 2017. Moreover, on September 21, 2017, the parties took
Donohue’s videotaped de bene esse trial preservation testimony.
On September 22, 2017, Defendant CBS Corporation (“Westinghouse”) removed
the case to this Court pursuant to 28 U.S.C. § 1442(a)(1), which provides that a civil action
originating in state court may be removed to a federal district court if such action is 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.” 28 U.S.C. § 1442(a)(1). Thereafter, Defendant Crane Co.
(“Crane”) joined in the removal. (ECF No. 8.) In availing themselves of removal under § 1442,
Defendants invoke the “government contractor” defense—that is, as manufacturers of equipment
designed in accordance with the Navy’s specifications, they acted under the authority, direction,
and control of a federal agency and/or officer.

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DISCUSSION
Removal under § 1442(a)(1) requires three elements: the removing defendant
(1) is a federal agency or officer, or acted under the direction of one; (2) has a colorable federal
defense; and (3) can establish a causal connection between the conduct in question and the
federal directive. New York v. Grasso, 350 F. Supp. 2d 498, 500 (S.D.N.Y. 2004). While the
burden of establishing federal jurisdiction lies with the party seeking removal, “the Supreme
Court has held that federal officer removal should not be constrained by a narrow, grudging
interpretation.” Allen v. CBS Corp., 2009 WL 4730747, at *2 (D. Conn. Dec. 1, 2009) (citing
Jefferson Cnty. v. Acker, 527 U.S. 423, 431 (1991)).
I.

Removal Under § 1442(a)(1)
A. Persons “Acting Under” a Federal Officer or Agency
Westinghouse and Crane are “persons” under the federal removal statute, which

includes corporate entities. Isaacson v. Dow Chem. Co., 517 F.3d 129, 136 (2d Cir. 2008) (in
analyzing § 1442, the “term ‘person’ includes corporate persons”). But because neither
Defendant is a federal officer, each must also demonstrate that its actions—designing and
manufacturing asbestos-laden equipment—were taken “under color of [federal] office.” See
Isaacson, 517 F.3d at 137. An entity “acts under a federal officer when it assists, or helps carry
out, the duties or tasks of the federal superior.” Isaacson, 517 F.3d at 137 (citing Watson v.
Philip Morris Cos., 551 U.S. 142, 152 (2007)). For purposes of assessing removal, the
Defendants need only show that “the acts for which they are being sued . . . occurred because of
what they were asked to do by the Government.” Isaacson, 517 F.3d at 137 (emphasis original).
Here, both Defendants assert, in their respective notices of removal, that they
manufactured equipment for, and under the auspices of, the Navy. Westinghouse states that it

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manufactured and designed the equipment “in accordance with precise, detailed, specifications
promulgated by the Navy Sea Systems Command,” which were “approved for use on military
vessels.” (Westinghouse Notice of Removal, ECF No. 1, ¶ 14.) Crane also claims that it
contracted with the Navy to build equipment for use on Navy ships. (Crane Notice of Removal,
ECF No. 8, ¶¶ 11–12.) Thus, each Defendant “received delegated authority to complete [its]
contracts and were therefore helping carry out the duties of [its] federal superior.” Allen, 2009
WL 4730747, at *2.
B. Colorable Federal Defense
The second element under § 1442(a)(1) requires the defendant to raise a colorable
federal defense. Jefferson Cnty., 527 U.S. at 431. “Courts have imposed few limitations on
what qualifies as a colorable federal defense. At its core, the defense prong requires that the
defendant raise a claim that is defensive and based in federal law.” Isaacson, 517 F.3d at 137
(internal quotation marks and citation omitted). More specifically, the defense must “aris[e] out
of [the party’s] official duties.” Arizona v. Manypenny, 451 U.S. 232, 241 (1981). To be
“colorable,” the “defense need not be clearly sustainable, as the purpose of the statute is to secure
that the validity of the defense will be tried in federal court.” Isaacson, 517 F.3d at 137.
The government contractor defense in a failure to warn case requires the
Defendants to show: (1) government control over the nature of the product warnings;
(2) compliance with the Government’s directions; and (3) communication to the Government of
all product dangers known to it but not to the Government.” Densberger v. United Techs. Corp.,
297 F.3d 66, 75 (2d Cir. 2002). The Defendants may satisfy these requirements through facts
alleged in their notice of removal and supporting affidavits.

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Donohue contends that the Defendants’ papers are “devoid of any documents or
other evidence that could potentially establish a colorable ‘government contractor’ defense,” and
that the affidavits, in particular, are bereft of “a sufficient factual foundation to support [the]
assertion that the Navy prevented [the defendants] from warning end-users of [their] products.”
(Pl. Memo. of Law in Support of Motion to Remand (“Mot.”), ECF No. 94, at 14.) Indeed,
Donohue is correct to the extent that the affidavits submitted by Defendants in support of their
removal notice do not specifically address the vessels on which Donohue worked or the asbestoscontaining equipment that allegedly contributed to his injury.
But at this juncture, the inquiry whether Defendants have asserted a colorable
defense does not require this Court to determine the merits. While Donohue takes issue with the
admissibility of the affidavits—claiming that they were submitted by individuals who lack
“firsthand knowledge of the specifications relating to any specific piece of equipment on”
Donohue’s vessel (Mot. at 14)—Defendants “need not prove [their] defense to the level [they]
would at trial.” Clayton v. Air & Liquid Sys. Corp., 2013 WL 6532026, at *7 (W.D.N.Y. Dec.
12, 2013). Rather, they “need only make a colorable showing of this defense to support removal
of this case (and to resist its remand at this time).” Clayton, 2013 WL 6532026, at *7; see also
Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770, 782 (E.D. Pa. 2010) (“The Court, therefore,
can balance the interest in broadly construing removal under Section 1442(a)(1) against its
statutory limits and any associated constitutional concerns without requiring defendants to make
such a significant showing of the merits of their defense at this early stage.”). If, later on, it
“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.

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The point “of removal is to litigate the defense in federal court.” Crosby v. A.O.
Smith Water Prods. Co., 2014 WL 4059815, at *5 (S.D.N.Y. Aug. 15, 2014). Thus, “imposing
an evidentiary burden to get into federal court is putting the cart before the horse.” Crosby, 2014
WL 4059815, at *5. Here, the Defendants have established a colorable federal defense based on
their supporting papers. The first two requirements—the Government’s control over the nature
of the product warnings and the Defendants’ compliance with the Government’s directions—are
present. (See Westinghouse Notice of Removal, ¶¶ 13–14; Crane Notice of Removal, ¶¶ 13–14,
Ex. 4, Affidavit of Rear Admiral David P. Sargent, Jr., ¶¶ 23–32, 59.) And the third
requirement—that the Defendants warned the Navy of the risks that were possibly unknown to
the Navy—is satisfied through the affidavit of Samuel A. Forman, who attested that the Navy
possessed “state of the art” knowledge regarding the hazards of asbestos “equal to or superior to
its equipment suppliers.” (Crane Notice of Removal, ¶ 18 (citing Ex. 5, Affidavit of Samuel A.
Forman, ¶¶ 21–23).); see also Machnik v. Buffalo Pumps Inc., 506 F. Supp. 2d 99, 104 (D.
Conn. 2007) (“[Defendant] satisfies this element through the affidavit [of a qualified witness],
which establishes that the Navy was well aware of the health hazards associated with the use of
asbestos from the early 1920s through a review of available military documents and other
relevant publications.”).
C. Causal Nexus
The final element under § 1442(a)(1) is whether there is a “causal nexus between
the sale of [Westinghouse and Crane’s] equipment to the Navy pursuant to its specifications and
[Donohue’s] alleged injuries.” Clayton, 2013 WL 6532026, at *8. Put another way, a causal
nexus exists when “the very act that forms the basis of plaintiffs’ claims—[Defendants’] failure

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to warn about asbestos hazards—is an act that [Defendants] contend[] [they] performed under
the direction of the Navy.” Leite v. Crane Co., 749 F.2d 1117, 1124 (9th Cir. 2014).
Both Westinghouse and Crane’s affidavits provide enough facts—at least for
purposes of removal—for this Court to credit their theory of the case and marshal it forward to a
stage in which that theory will be put to the test under a much more rigid standard of review.
Westinghouse attests that “[i]n designing, manufacturing and supplying the turbines at issue in
this case to the United States Navy, [it] acted under the detailed and ongoing direction and
control of one or more federal officers.” (Westinghouse Notice of Removal, ¶ 14.) “[A]n
Inspector of Naval Machinery [ ], who was resident at Westinghouse’s manufacturing facility,
personally oversaw the manufacturing process and enforced compliance with the Navy’s design
specifications.” (Westinghouse Notice of Removal, ¶ 14.) Such oversight, according to
Westinghouse, dictated the types of labels that were emblazoned on its products. (See
Westinghouse Notice of Removal, ¶¶ 12–13.)
Crane also furnishes a basis to establish the causal nexus between its purported
failure to warn and its compliance with the Navy’s directions. Crane, relying heavily on the
affidavit of retired Naval Rear Admiral David P. Sargent, contends that the “Navy’s
specifications governed not only the design and construction of Crane Co. products, but also the
form and content of any labeling, product literature, or warnings [ ] with the products. The Navy
reviewed the proposed product literature and labeling that accompanied products like those
supplied by Crane and Co. and, at its discretion, edited the wording of instructional material and
warnings, approving certain warning language and disapproving other language.” (Crane Notice
of Removal, ¶ 13.)

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The Plaintiffs appear to argue that the Defendants are required to offer more
evidence to establish a causal nexus—that is, the Defendants’ removal applications “fail[ed] to
establish that any federal officer or agent prohibited [them] from warning potential end-product
users about the dangers associated” with the use of their products. (Mot. at 16.) But this is
“more than [the Defendants] are required to do.” Nesbiet v. Gen. Elec. Co., 399 F. Supp. 2d 205,
212 (S.D.N.Y. 2005). “Just as requiring a clearly sustainable defense 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.” Jefferson Cnty., 527 U.S. at
432. While both Westinghouse and Crane’s representations regarding the scope of the Navy’s
control, supervision, and direction over what was (and was not) labeled on their products could
be overstated, it is not appropriate to make such a detailed inquiry at this stage of the litigation.
Rather, in assessing the three elements to removal under § 1442(a), this Court simply concludes
that the question of “whether the challenged act was outside the scope of [the Defendants’]
official duties, or whether it was specifically directed by the federal Government, is one for the
federal—not state—courts to answer.” Isaacson, 517 F.3d at 138.
II.

Removal of All Defendants
While Westinghouse and Crane are the only defendants that filed their notices of

removal, there are nearly two dozen other defendants involved in this action. As a general
matter, “the consent of all defendants in a multiparty case is a precondition to removal.” Green
v. Nat’s Assoc. of Prof’l and Executives, 1992 WL 212348, at *2 (S.D.N.Y. Aug. 21, 1992);
Codapro Corp. v. Wilson, 997 F. Supp. 322, 325 (E.D.N.Y. 1998) (“[I]t is . . . well settled in this
jurisdiction that all defendants must join a removal petition or else the petition is defective and
the case must be remanded.”).

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Removal under § 1442, however, is “an exception to the general rule that all
defendants must join in a notice of removal.” Torres v. CBS News, 854 F. Supp. 245, 246 n.2
(S.D.N.Y. May 27, 1994). When a federal officer removes a case under § 1442, “the entire case
against all defendants, federal or non-federal, is removed to federal court regardless of the wishes
of his [sic] co-defendants.” Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1376 (5th
Cir. 1980); see also Dist. of Columbia v. Merit Sys. Prot. Bd., 762 F.2d 129, 132 (D.C. Cir.
1985).
Accordingly, because Westinghouse and Crane have sufficiently satisfied the
requirements under § 1442(a), the remaining defendants are also removed to this Court.
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion to remand is denied. In view of the
Plaintiffs’ representations that, absent removal, this case would have been accepted into the New
York state court’s in extremis trial cluster of asbestos cases, this Court is prepared to expedite
this action to trial. Accordingly, the parties are directed to provide this Court with a status
update on any remaining pre-trial discovery by December 1, 2017. A status conference shall be
held on December 5, 2017 at 11:30 a.m.
The Clerk of Court is directed to terminate the motion pending at ECF No. 55.
Dated: November 27, 2017
New York, New York

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