French et al v. A.W. Chesterton Company et al

Filing 250

Memorandum Opinion and Order denying plaintiffs' Motion to remand case (Related Doc #167 ). Judge Donald C. Nugent 11/10/16(C,KA)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DONALD R. FRENCH, et al.,
Plaintiffs,
v.
A. W. CHESTERTON COMPANY, et al.,
Defendants.

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CASE NO. 1:16 CV 1777
JUDGE DONALD C. NUGENT

MEMORANDUM OPINION AND
ORDER

This matter is before the Court on Plaintiffs’ Motion to Remand this action to the Court
of Common Pleas for Cuyahoga County, Ohio. (ECF #167). Defendants General Electric
Company (“GE”) and CBS Corporation (“Westinghouse”)1 removed this action pursuant to 28
U.S.C. § 1442(a)(1). Plaintiffs Donald French and his wife, Charlene French, have moved to
remand the action to state court. Defendants have filed an opposition and Plaintiffs have filed a
reply brief in support. Counsel for Plaintiffs and removing Defendants GE and Westinghouse
participated in oral argument before the Court on October 12, 2016. Following argument, the
Court granted the parties leave to file supplemental briefs, if desired. No supplemental briefs
were filed. The motion to remand is now fully briefed and ready for decision.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs filed this action on December 1, 2015, against multiple defendants including
the removing defendants GE and Westinghouse. The Complaint states that Donald French was
exposed to the Defendants’ asbestos and asbestos-containing materials by virtue of working with
or around asbestos and asbestos-containing materials, and that such exposures were substantial

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CBS Corporation (a Delaware corporation) is a successor by merger to CBS
Corporation, a Pennsylvania corporation f/k/a Westinghouse Electric Corporation.

factors which directly and proximately caused him to develop mesothelioma. (Compl. ¶ 6, ECF
#2, Ex.A) Plaintiffs filed an Amended Complaint adding additional defendants on May 2, 2016.
(ECF #2, Ex.B) The Amended Complaint asserts the following eight claims against all of the
defendants: negligence (failure to warn), strict liability (design defect), breach of express
warranty, breach of implied warranty, statutory products liability under Ohio R.C. § 2307.71,
punitive damages and loss of consortium. Neither complaint provides any details concerning any
specific product manufactured or supplied by GE or Westinghouse to which Mr. French was
allegedly exposed or identifies any specific site(s) at which Mr. French encountered the
Defendants’ products.
The removing Defendants state that they first learned that this case was removable on
June 13, 2016 when Mr. French was deposed. At his Deposition Mr. French testified that
beginning in 1965 he was a machinist’s mate aboard the U.S.S. Forrestal and his primary duty
station was in the Forrestal’s Number 2 main engine room. He further testified that either GE or
Westinghouse manufactured the turbine located in that compartment. GE and Westinghouse
removed the action on July 12, 2016, within 30 days of that deposition as required by 28 U.S.C.
§ 1446(b)(3). Plaintiffs assert that Defendants should have been aware that the case may have
been removable on May 31, 2016, when Plaintiffs submitted written discovery responses which
indicated that Mr. French had served as a machinist’s mate aboard the Forrestal and was exposed
to asbestos on that ship. The discovery responses did not identify GE or Westinghouse as a
supplier of any equipment aboard the Forrestal.
Defendants assert that this case was removable because GE and Westinghouse–in all
relevant aspects of their design, manufacture, and supply of any Navy turbine(s) aboard the

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Forrestal, and of any warning or other written materials to be supplied therewith–were acting
under the direction of an officer of the United States within the meaning of 28 U.S.C. §
1442(a)(1).
Plaintiffs filed their Motion to Remand on August 12, 2016, asserting that the removing
Defendants do not meet the requirements for jurisdiction under 28 U.S.C. § 1442(a)(1) and that
in any event, the removal was untimely in that it was outside the 30 day time restriction of 28
U.S.C. § 1446(b)(3).
STANDARD OF REVIEW
28 U.S.C. § 1442(a)(1), known as the federal officer removal statute, permits “any officer
... of the United States or ... person acting under” them to remove actions “for or relating to any
act under color of such office.” 28 U.S.C. § 1442(a)(1). The authorization by Congress of
removal under 28 U.S.C. § 1442(a)(1) is “meant to ensure a federal forum in any case where a
federal official is entitled to raise a defense arising out of his official duties.” Arizona v.
Manypenny, 451 U.S. 232, 241 (1981). Removal of the action, along with the federal-law
defense, from state court to federal court “enables the defendant to have the validity of his
immunity defense adjudicated, in a federal forum .” Id. (citing Willingham v. Morgan, 395 U.S.
402, 407, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969)). While the party seeking removal bears the
burden of proving the grounds for its motion, the Supreme Court has long warned that “[t]he
federal officer removal statute is not ‘narrow’ or ‘limited.” ’ Willingham, 395 U.S. at 406 (citing
Colorado v. Symes, 286 U.S. 510, 517, 52 S.Ct. 635, 76 L.Ed. 1253 (1932)). Rather, “the right of
removal is absolute for conduct performed under color of federal office, and [the Supreme Court]
has insisted that the policy favoring removal ‘should not be frustrated by a narrow, grudging

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interpretation of § 1442(a)(1).” ’ Manypenny, 451 U.S. at 241 (quoting Willingham, 395 U.S. at
407).
To establish removal jurisdiction under the federal officer removal statute, a defendant
must show that it was a (1) “person” within the meaning of the statute; (2) the plaintiff’s claims
are based upon the defendant’s “acting under” the United States, its agencies, or its officers, (3)
there is a causal nexus between the claims and the conduct performed under color of federal
office; and (4) defendant raises a colorable federal defense to plaintiff’s claim. Feidt v. Owens
Corning Fiberglas Corp., 153 F.3d 124, 127 (3rd Cir. 1998) (citing Mesa v. California, 489 U.S.
121, 129 (1989). The requirement that the asserted federal defense need only be “colorable”
rather than successful, advances Congress’s desire to have federal defenses litigated in federal
forums. At this stage, the district court is concerned only with “who makes the ultimate
determination, not what that determination will be.” Ruppel v. CBS Corp., 701 F.3d 1176, 1182
(7th Cir. 2012) If a defendant has a colorable federal defense to any of the claims raised by the
plaintiff, the entire case is removable. Id.
ANALYSIS
Plaintiffs move to remand on two grounds. First that the removal was untimely under 28
U.S.C. § 1446(b)(3); and secondly, that the removing Defendants have not established all of the
elements necessary for federal officer removal under 28 U.S.C. §1442(a)(1). The Court will
address these concerns in reverse order.
1. Federal Officer Removal Requirements
Plaintiffs assert that the removing Defendants have not established the last three elements
of the federal officer removal statute’s four elements. Specifically, Plaintiffs contend that the

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Defendants have not demonstrated the “acting under,” causal nexus, or colorable federal defense
elements required for removal under 28 U.S.C. § 1442(a)(1).
Moving first to the “acting under” element, the Supreme Court has stated that the words
“acting under” are broad but not limitless and that the statute must be liberally construed.
Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 147 (2007). In Watson, after reviewing
the history of the statute and its historical applications, the Court concluded that the “under”
portion refers to a relationship that involves “subjection, guidance, or control” and that “‘acting
under’ must involve an effort to assist, or to help carry out, the duties or tasks of the federal
superior.” Id. at 151-152. The Court rejected the defendant cigarette manufacturer’s argument
that it acted under the federal government because it was subjected to heavy regulation stating
that “the help or assistance necessary to bring a private person within the scope of the statue does
not include simply complying with the law.” Id. at 152. (Emphasis in original) The Court
distinguished the facts in Watson from those of other lower federal court cases that held that
“Government contractors fall within the terms of the federal officer removal statute, at least
when the relationship between the contractor and the Government is an unusually close one
involving detailed regulation, monitoring or supervision.” Id. at 153 (citing Winters v. Diamond
Shamrock Chemical Company, 149 F.3d 387 (5th Cir. 1998). The Court explained that unlike the
cigarette manufacturer in Watson, the private contractors who satisfy the “acting under”
requirement are “helping the Government to produce an item that it needs. The assistance that
private contractors provide federal officers goes beyond simple compliance with the law and
helps officers fulfill other basic governmental tasks.” Watson, 551 U.S. at 153-54. In Winters,
Dow Chemical provided the Government with a product (Agent Orange) that it used to help

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conduct a war. Thus, the private contractor performed a job that in the absence of a contract, the
Government itself would have had to perform. Watson, 551 U.S. at 154-155. Using this line of
reasoning, the Seventh Circuit found that government supplier/contractor CBS (Westinghouse),
which had supplied turbines containing asbestos to the Navy, “worked hand-in-hand with the
government, assisting the federal government in building warships” thus meeting the “acting
under” requirement of 28 U.S.C. § 1442(a)(1). Ruppel, supra 701 F.3d at 1181. See also Bennett
v. MIS Corp., 607 F.3d 1076, 1088-89 (6th Cir. 2010)(federal contractor who performed mold
remediation under contract with FAA under close supervision and regulation met “acting under”
element.)
In this case, GE and Westinghouse have submitted the Declaration of David Hobson, a
GE employee from 1969 through 1996, which details the close collaboration, monitoring and
control of the Navy in the design, manufacturing and testing of turbines used in Navy ships. In
addition, Defendants submit the affidavit of Admiral Ben J. Lehman, a former Rear Admiral in
the United States Navy, who describes the strict control and supervision the Navy and its officers
have over all aspects of the design and manufacture of equipment intended for installation on
Navy vessels. Also provided is the Affidavit of retired Rear Admiral Roger B. Horne, Jr, who
was engaged in Navy ship building and design at the time that the ship at issue here, the
Forrestal, was built. Admiral Horne states that the Navy created Military specifications or
MilSpecs for each piece of equipment such as the turbines. The Navy submitted the MilSpecs to
the contractor-Westinghouse or GE-asking the company to incorporate the MilSpecs into its own
detailed design, which would then be reviewed and approved by Navy officers. Further, the
MilSpecs required the use of asbestos gaskets and insulation with all Navy propulsion turbines at

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the time of the Forrestal’s construction. The evidence submitted by GE and Westinghouse
demonstrates that the companies were working “hand in hand with the Navy to build warships”
and thus were “acting under” a federal officer for purposes of § 1442(a)(1) in their design and
manufacture of Navy turbines.
Next, Plaintiffs assert that Defendants cannot establish a causal nexus between their
actions under the control of a federal officer and the Plaintiffs’ claims. Specifically, there must
be a “causal connection between the charged conduct and the asserted official authority.”
Jefferson Cnty., Ala. v. Acker, 527 U.S. 423, 431 (1999). Defendants may satisfy this
requirement if their relationship with Plaintiff “derived solely from their official duties” for the
Navy. See Ruppel, 701 F.3d at 1181. In Ruppel the Court found that Westinghouse acted under
the Navy by installing asbestos, which duty gave rise to Ruppel’s complaint (for design defect
and failure to warn). As such the Court concluded that the gravamen of Ruppel’s complaint
occurred while Westinghouse acted under color of federal authority. Id. As in Ruppel, the
evidence submitted by GE and Westinghouse demonstrates that the Defendants’ designed,
manufactured and installed turbines in Navy ships under close directions and supervision of
Navy officers and that the Navy either directed the use of asbestos with the turbines, or at the
very least knowingly approved all uses of asbestos with the turbines. Consequently, there is a
causal nexus between the Navy’s directions and the Plaintiffs’ claims.
Finally, Plaintiffs contend that Defendants’ assertion of the government contractor
defense is not colorable. Specifically, Plaintiffs assert that Defendants have failed to prove that
all aspects of the design of their turbine engines were controlled by the Navy or provide evidence
that they warned the United States of the hazards of asbestos or alternatively, that the Navy had a

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policy that would have conflicted with manufacturer asbestos warnings.
The government contractor defense is based upon the Supreme Court’s recognition that
“state law which holds Government contractors liable for design defects in military equipment
does in some circumstances present a ‘significant conflict’ with federal policy and must be
displaced.” Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988). When the
government has exercised its discretion and approves designs prepared by private contractors, it
has an interest in insulating its contractors from liability for such design defects. Thus, the
Supreme Court determined that government contractors are immune from state law liability for
design defects in military equipment 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. While third element ensures that the manufacturer does not
withhold useful safety information, the first two elements capture the government’s discretion in
the design, ensuring that the design feature in question was considered by a Government officer
and not merely by the contractor itself. Id.; Tate v. Boeing Helicopters, 55 F3d 1150, 1156 (6th
Cir. 1995)(government’s approval must transcend rubber stamping as government exercises no
discretion when it approves a design without scrutiny.) Again, as noted above, at the motion to
remand stage, the removing Defendants “need not prove the asserted [federal] defense, but need
only articulate its ‘colorable’ applicability to [Plaintiffs’] claims.” Winters, 149 F.3d at 400.
The affidavits and MillSpecs submitted by GE and Westinghouse offer sufficient
evidence to support a colorable federal defense. GE produced the affidavits or declarations of
retired GE turbine engineers David Skinner and David Hobson, retired Navy admiral Ben

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Lehman and retired Navy captain Lawrence Betts and Westinghouse produced the affidavit of
retired Rear Admiral Roger B. Horne, Jr. These unrebutted affidavits show that the Navy
controlled and supervised all aspects of the design and manufacture of the steam turbines
supplied by both GE and Westinghouse. Further, the affidavits assert that the heat insulation
materials (asbestos) were supplied (by other suppliers) and installed pursuant to military
specifications that were part of separate government contracts between the Navy and its
shipbuilders. The affidavits also show that the Navy’s control extended to all writings (e.g.,
stenciling, identification plates and manuals) associated with steam turbines, such that neither
GE nor Westinghouse could supply any warnings that were not specifically authorized or
approved by the Navy without being out of compliance with its government contracts. Finally,
the affidavits detail the Navy’s knowledge of the risks associated with asbestos at the time in
question here and support the Defendants’ position that there were no asbestos-related dangers
known to GE or Westinghouse that were not also known by the Navy. Accordingly, the Court
finds that GE and Westinghouse have produced sufficient evidence to establish a colorable
federal contractor defense for Plaintiffs’ design defect claims and to permit removal under 28
U.S.C. § 1442(a)(1).
Having determined that removal jurisdiction exists in this Court as to Plaintiffs’ design
defect claim, it is unnecessary to determine whether Plaintiffs’ failure to warn claim also falls
within § 1442(a)(1). National Audubon Soc’y v. Department of Water & Power, 496 F.Supp.
499, 507 and 509 (E.D. Cal. 1980)(if one claim cognizable under [§ 1442(a)(1)] is present, the
entire action is removed); Bennett v. MIS Corp., 607 F.3d 1076, 1084, n.7 (6th Cir. 2010);
Ruppel, 701 F.3d at 1182.

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2. Timeliness
Plaintiffs argue that the date on which GE and Westinghouse could have ascertained that
the case could be removed was May 31, 2016 not June 16, 2016, thus removal on July 12, 2016
was untimely under § 1446(b)(3). 28 U.S.C. § 1446(b)(3) provides in relevant part:
if the case stated by the initial pleading is not removable, a notice of
removal may be filed within 30 days after receipt by the defendant,
through service or otherwise, of a copy of an amended pleading, motion,
order or other paper from which it may first be ascertained that the case is
one which is or has become removable.
Plaintiffs argue that the information served on Defendants on May 31, 2016, stating that Mr.
French was in the Navy from May 5, 1956 to June 10, 1968, held the rank of E-4, completed
MMA School (Phase I Basic) and Phase IIb) and was exposed to asbestos on the USS Forrestal
CVA 59 was sufficient information for GE and Westinghouse to search their own records to
ascertain if either had supplied a product that was installed on the Forrestal that Mr. French
would have encountered. Plaintiffs acknowledge that the information served on May 31, 2016,
did not state what equipment, if any, on the Forrestal was supplied by GE or Westinghouse, or
where on the ship Mr. French would have had contact with any GE or Westinghouse product.
Essentially Plaintiffs assert that the information supplied on May 31, 2016 triggered an
obligation on the part of Defendants to search their records to determine if GE or Westinghouse
supplied equipment installed on the Forrestal in the time period at issue. In support of this
proposition, Plaintiffs cite deposition testimony in another case where a Westinghouse
employee, after 20 days of searching, was able to find company records regarding Westinghouse
equipment installed on the Navy ship at issue in that case. In any event, the information given by
Plaintiffs on May 31, 2016 did not, by itself, show that the case was removable.

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Plaintiffs point to the Sixth Circuit’s decision in on Holston v. Carolina Freight Carriers
Corp., No. 90–1358, 1991 WL 112809 (6th Cir. June 26, 1991), as establishing the standard for
determining when the thirty-day removal period begins to run if a removable claim is not clearly
shown in a plaintiff’s own papers. Rejecting other federal circuit court interpretations of
§1446(b) holding that the information establishing removal must come from a source outside of
the defendant’s control, the Holston court held that the thirty-day period begins “running from
the date that a defendant has solid and unambiguous information that the case is removable, even
if that information is solely within [the defendant's] own possession.” Id. at *3. The Court
grounded its holding in the principle that courts are to construe removal statutes “strictly” and
ambiguities “must be resolved in the favor of remand to the state courts.” Id. The Court
recognized the difficulty in ascertaining when a defendant has “solid and unambiguous
information” noting that even if a defendant “may have the papers in its possession as of the
filing of the suit,” a defendant “does not receive notice of the facts contained therein until it
reviews those papers in connection with the suit.” Id.
The Sixth Circuit declined to extend its holding in Holston, that the 30 day removal
period could be triggered by information in the defendant’s possession separate from any paper
furnished by the plaintiff, to removal under the CAFA. Graiser v. Visionworks of America, Inc.,
819 F.3d 277 (2016). The Court stated that its ruling in Holston was based on the strict scrutiny
standard of review favoring remand that applies to most removals. However, there is no
antiremoval presumption in cases invoking CAFA, thus the reasoning underlying Holston’s
holding is not applicable. Id. at 283. Thus, the Court held that in CAFA cases, “the thirty-day
clocks of §1446(b) begin to run only when the defendant receives a document from the plaintiff

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from which the defendant can unambiguously ascertain CAFA jurisdiction. Under this brightline rule, a defendant is not required to search its own business records or ‘perform an
independent investigation into a plaintiff's indeterminate allegations to determine removability.’”
Graiser, 819 F.3d at 285 (emphasis in original, citation omitted.)
While Graiser applies to CAFA cases, the rationale is equally applicable in federal
officer removal cases because, like CAFA removals, the strict scrutiny standard of review
favoring remand does not apply to federal officer removal. Willingham, 395 U.S. at 406. Under
the Graiser bright line test, the defendant is not required to search its own business records or
conduct an independent investigation to determine removability. The removal period is triggered
by some “paper” tendered by the plaintiff revealing a removable claim. In this case Mr. French’s
deposition on June 16, 2016 triggered the 30 day removal period. As such, Defendants’ removal
was timely.
However, even if Graiser does not apply to federal officer removal, there is no evidence
that GE or Westinghouse should have, or actually did, discover the case was removable through
a search of their own records sooner than June 16, 2016. The earliest that Plaintiffs assert that
Defendants had enough information to begin a search was on May 31, 2016. The deposition
testimony cited by Plaintiffs indicated that it took a Westinghouse employee 20 days to find
records relating to Westinghouse equipment on the ship at issue there. Twenty days in this case
would put the triggering date at June 20, 2016, after Mr. French’s deposition. There is no
evidence that GE or Westinghouse had (or should have had) “solid and unambiguous
information” from papers in their own possession prior to June 16, 2016. Accordingly, the Court
finds that Defendants’ removal in this matter occurred within the time requirements of

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§ 1446(b)(3).
CONCLUSION
For the reasons set forth above, Plaintiffs’ Motion to Remand (ECF #167) is denied.
IT IS SO ORDERED.

__/s/Donald C. Nugent______
DONALD C. NUGENT
UNITED STATES DISTRICT JUDGE
DATED:__November 10, 2016_____

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