VEST et al v. ALLIED PACKING & SUPPLY et al

Filing 94

MEMORANDUM AND OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 5/25/11. 5/26/11 ENTERED AND COPIES MAILED, E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
IN RE: ASBESTOS PRODUCTS
:
LIABILITY LITIGATION (No. VI) :
:
:
TIMOTHY AND CAROLINE VEST
:
:
:
v.
:
:
:
:
VARIOUS DEFENDANTS
:

Consolidated Under
MDL DOCKET NO. 875

Civil Action No. 11-cv-63520
Transferred from the Northern
District of California

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

MAY 25, 2011

Before the Court is Plaintiffs’ Motion to Remand (doc.
no. 4) and removing Defendant, McDonnell Douglas Corporation’s,
Response (doc. no. 13.)

I.

BACKGROUND
Plaintiff, Timothy Vest, was diagnosed with

mesothelioma in October of 2009.

(Pl.’s Mot., doc. no. 4, at 5.)

Caroline Vest is Plaintiff Timothy Vest’s wife.

Together,

Timothy Vest and Caroline Vest are referred to as “Plaintiffs.”
Plaintiffs filed the instant action in California
Superior Court on December 17, 2009.

Id.

Timothy Vest alleges

that various Defendants’ asbestos-containing products caused his
injuries, which he was exposed to while present at Hangar 110,
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where his father, Warren Vest, worked from 1973-1983.

(Pl.’s

Mot., doc. no. 4, at 5.) Timothy Vest asserts that he was present
at Hangar 110 often, and additionally, that his father brought
home asbestos on his clothing and person, and therefore that he
was exposed to asbestos both at the worksite and in the home.
(Id. at 7.)

Plaintiffs assert that Defendant McDonnell Douglas

Corporation (“MDC”) manufactured airplanes that contained
asbestos, which were present at Hangar 110.
On January 28, 2010, Plaintiffs amended their complaint
to add Defendant MDC, alleging that asbestos-containing
components on MDC planes were a substantial contributing factor
to Mr. Vest’s asbestos-related injuries.

MDC filed the notice of

removal at issue on January 6, 2011, almost a year after being
added to the action.

The basis of MDC’s removal is the federal

officer removal statute, 28 U.S.C. § 1442(a)(1), as MDC asserts
that it has a “colorable” government contractor defense for any
claims related to military aircraft, namely the KC-10 and B-23,
that were present at Hangar 110.

See Hagen v. Benjamin Foster

Co., No. 07-63346, 2010 WL 3745297 at *20 (E.D. Pa. Sept. 24,
2010) (Robreno, J.)(finding that removal is appropriate under
Section 1442(a)(1) when “defendant identifies facts which, in the
light most favorable to the defendant, entitle him or her to a
complete defense.”).
Plaintiffs advance two grounds for remand.

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First,

Plaintiffs assert that Defendant’s notice of removal was
untimely, and alternatively, Plaintiffs now waive any claims for
exposure to asbestos on military aircraft, purportedly removing
the federal officer basis for federal jurisdiction.

II.

ANALYSIS
A.

Timing for Removal

The timeliness of removal is an issue of federal law.
In the context of a Multidistrict Litigation case, issues of
federal law are governed by the law of the circuit in which the
MLD court sits.

In Re Asbestos Prods. Liab. Litig. (“Oil Field

Cases”), 673 F.Supp. 2d 358, 362 (E.D. Pa. 2009).
The timing for removal is controlled by 28 U.S.C. §
1446.

Section 1446 states that an action that is not removable

on the face of the pleadings may be removed “within thirty 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 in which
is or had become removable . . . .”

The first thirty-day window

for removal is only triggered when “the four corners of the
pleading . . . informs the reader, to a substantial degree of
specificity, [that] all the elements of federal jurisdiction are
present.”

Foster v. Mutual Fire Marine & Island Ins. Co., 986

F.2d 48, 53 (3d Cir. 1993) rev’d on other grounds, Murphy Bros.,

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Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999).
When removal is based on the federal officer removal
statute, the thirty-day window is not triggered until plaintiff
provides facts to support all four prongs of the federal officer
removal statute.1

Durham v. Lockheed Martin Corp., 445 F.3d 1247

(9th Cir. 2006); see also Barnes v. Various Defendants, 10-67141,
2011 WL 925414 at *2 (E.D. Pa. Mar. 16, 2011)(Robreno,
J.)(“[d]efendant does not have a basis for removal until the
nexus between [p]laintiff’s claims and actions allegedly taken by
[d]efendant under the direction of a federal officer [is]
established”).
In Durham, the Ninth Circuit Court of Appeals held that
the case was not removable until plaintiff’s answers to
interrogatories revealed, for the first time, that plaintiff was

1

The federal officer removal statute requires a showing
that (1) defendant is a person within the meaning of the statute;
(2) the conduct at issue occurred while defendant was “acting
under” the direction of a federal office; (3) defendant has a
colorable federal defense; and (4) there is a causal nexus
between plaintiff’s claims and acts performed under color of
federal office. 28 U.S.C. § 1442(a)(1); Jefferson County v.
Acker, 527 U.S. 423, 431 (1999).
The colorable federal defense at issue is the government
contractor defense, which shields a company from liability for a
defective equipment if it can be shown that (1) the United States
approved reasonably precise specifications for the equipment; (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 Tech. Corp., 487 U.S. 500, 512
(1988).
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alleging exposure to the SR-71 Blackbird and C-141 Starlifter,
for which defendant asserted a federal officer defense.

The

court held that:
Until [plaintiff] revealed which aircraft he had
worked on during his Air Force career, [defendant]
couldn’t assert either that its actions were taken
pursuant to a federal officer’s directions, or that
it had a colorable federal defense. Id. at 1251.
Defendant in Durham manufactured various products, some
of which were related to government contracts and some of which
were purely commercial products.

Until the military products

were specifically identified, defendant had no basis for removal.
Similarly, in Barnes, this Court held that the thirty-day window
was not triggered until plaintiff’s interrogatories identified
that the specific product at issue were defendant’s turbines on
naval ships; merely naming the defendant, general equipment and
identifying the Naval yard worksite in the complaint was
insufficient.

Barnes, 2011 WL 925414 at *2.

Therefore, in the instant case, the inquiry is when the
record revealed that the allegations against MDC satisfied the
federal officer removal statute, showing that: (1) MDC was acting
under the direction of a federal office with respect to the
military planes at issue; (2) MDC has a colorable government
contractor defense based on the military specifications for the
planes; and (3) there is a causal nexus between Timothy Vest’s
asbestos-related injuries and MDC’s military planes.
5

Once facts

supporting these three points were revealed, MDC was obligated to
file a notice of removal within thirty days.
Plaintiffs do not contend that the case was removable
on the face of the complaint.

However, Plaintiffs assert that

Mr. Vest’s exposure to asbestos on military aircraft was revealed
during discovery, “as early as June 2010 and no later than August
2010,” and therefore MDC’s Defendant was far outside the thirtyday window provided by 28 U.S.C. § 1446.
4, at 5.)

(Pl.’s Mot., doc. no.

MDC responds that Mr. Vest’s exposure to asbestos on

military aircraft was not revealed until Plaintiffs’ Response to
MDC’s Motion for Summary Judgment, and that MDC removed within
one week of Plaintiffs’ Response.

(Def.’s Resp., doc. no. 13, at

6.)2

B.

MDC’s Triggering Event
MDC asserts that three witnesses were disclosed in

Plaintiffs’ Reponse to MDC’s Motion for Summary Judgment which,

2

Plaintiffs speculate that MDC only sought to remove the
case after an adverse ruling by the state court, and that MDC’s
removal is merely an attempt to delay trial and “deny Timothy
Vest his right as a living plaintiff to recover substantial painand-suffering damages.” (Pl.’s Mot. to Remand, doc. no. 4, at
5.) MDC responds that “Plaintiffs’ counsel actively concealed
Plaintiffs’ military aircraft claims in the hopes of ambushing
MDC at trial.” (Def.’s Resp., doc. no. 13, at 6.) Of course,
the motivations of the parties are irrelevant to the question
before the Court. The only relevant issue is at what point in
the litigation did the facts making the case removable come to
light.
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for the first time, revealed the removability of the case.
First, the testimony of expert witness John Templin, industrial
hygienist, who discussed “re-entrainment,” which is the movement
of asbestos fibers in the air. (Def.’s Opp., doc. no. 13, at 12 ¶
14)(citing Declaration of John Templin, doc. no. 8-1)(“In sum,
the respirable asbestos fibers that are released into the air
will remain in the air for some time before they alight on
surfaces.

Those fibers, once they do come to rest, are then

subject to re-entrainment.”) Defendant asserts that the theory
that all aircraft maintenance at Hangar 110 could have
contributed to Mr. Vest’s asbestos-related injuries was
introduced for the first time by John Templin’s “re-entrainment”
theory, and that this was the “linchpin for triggering [their]
right to removal.”

(Def.’s Opp., doc. no. 13, at 13.)

MDC is

essentially asserting that the third prong of the federal officer
removal test, the causal nexus requirement, was not established
prior to John Templin’s testimony.
However, John Templin’s declaration does not provide
any new factual information about the case, but merely relies on
the already-developed factual record from the depositions
completed in the case.

There is no specific discussion of

military aircraft in John Templin’s declaration.

MDC’s averment

that John Templin’s general testimony regarding the nature of the
way that asbestos fibers move through the air, for the first
time, put them on notice of a potential government contractor
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defense is unavailing.

While his declaration might have

buttressed Plaintiff’s theory of the case, both Durham and Barnes
stand for the proposition that specific military product
identification is the linchpin of federal officer removal in the
asbestos context.

It would run counter to the very idea of

“colorability” and liberal removal standards if a defendant was
expected to wait until a plaintiff’s expert testimony regarding
causation put together all of the pieces of the puzzle before it
could remove.

Therefore, John Templin’s testimony summarizing

the evidence and explaining general principles of asbestos
exposure did not trigger the thirty-day removal window.
Second, MDC points to the depositions of David Miller
and Michael Pociecha, which were apparently taken after
Plaintiff’s Response to Defendant’s Motion for Summary Judgment
was filed.

(Def.’s Opp., doc. no. 13, at 13.)

The relevant

portions of the depositions highlighted by Defendant to support
its proposition are as follows:
Deposition of Michael Pociecha, January 4, 2011 (doc.
no. 23-9):
A.

I think that’s all I can remember offhand, oh, except
for Daly’s bomber.3 I can’t even remember what kind it
was. And we had a DC-3 in there, too. (220:1-3.)
...

Q:

3

Okay. Sounds like a good-looking plane. Did you
observe anyone do maintenance work on that particular

“Daly’s bomber” refers to a privately-owned B-23 bomber
that belonged to Edward Daly, the owner of World Airways.
8

bomber?
A:

Yeah, There was mechanics that would work on it.

Q:

Is it fair to say there were mechanics who worked on
other – all planes you mentioned, including the
military planes?

A:

Yes. (220:16-221:24.)
...

Q:

Back to Mr. Daly’s bomber for just another minute. I’m
sorry. Did you observe maintenance work being done on
the bomber? And I apologize if I’ve asked this
already.

A:

Yes, I did.

Q:

What type of work did you observe being done on the
bomber?

A:

I’m not familiar with what aircraftwork mechanicalwise
is being done, although I seen the engine being worked
on and also the landing gear and all that kind of
thing. He actually had one particular mechanic who – I
can’t recall his name – was the main mechanic for that
plane. Actually, when Mr. Daly flew anywhere, he used
to grab that mechanic and take him with him. (235:621).
Deposition of David L. Miller, December 29, 2010 (doc.
no. 23-8):

Q.

You mentioned earlier that there were military aircraft
being worked on –

A.

Yes.

Q.

–- at hangar 110.

A.

Yes.

Q.

You mentioned the KC-10 which had a rope around it. Do
you know what type of work was being done on the KC-10?

A.

We had a contract to do like heavy checks, like a C
check. There’s many different types of checks in
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aviation.

(273:14-19.)

Defendant avers that it did not know of potential
exposure to asbestos on military aircraft until these depositions
were taken.

(Def.’s Opp., doc. no. 13.)

It is true that neither

Plaintiffs’ complaint nor Plaintiffs’ answers to interrogatories
discussed the KC-10 or the B-23.

However, these depositions do

not discuss anything specific with respect to Timothy Vest and
provide no new information to Defendant that would trigger
removal.

The fact that MDC-manufactured military planes were

present at Hangar 110, and that maintenance was performed on
them, was established in the record as early as August 19, 2010,
roughly six months prior to Defendant’s removal, during the
course of Warren K. Vest’s deposition.4

The relevant portions are

as follows:
A:

...We [Timothy and Warren Vest] used to fly in it [Mr.
Daly’s airplane].

...
Q:

Okay. And by Mr. Daly’s airplane, which airplane are
you referring to?

A:

We had two.

Q:

And those were kept parked outside the hangar?

A:

Yes.

4

We had the conveyor 340 and he had a B-23.

On October 21, 2010, Timothy Vest testified that he
recalled Ed Daly’s B-23 being present at Hangar 110, but could
not recall if maintenance was done on the plane. (Dep. of
Timothy Vest, doc. no. 8-7, at 168:13-16.)
10

Q:

And if [Timothy] went on those planes that would have
been while he was outside the hangar, correct?

A:

Most likely, but they may have had one of them in the
airplane – in the hangar for maintenance or something.
(124:10-25)(emphasis added).

...
Q:

...Were there aircrafts serviced that belonged to the
government?

A:

Yes.

Q:

Which ones were those?

A:

The KC-10 and the E-4, which is the 747.
147:4)(emphasis added.)

(146:24-

...
Q:

...When you were assistant vice president of flight
operations and executive – and senior vice president of
flight operations and executive vice president, did you
delegate that task to the chief engineer?

A:

Normally we would –- our offices were right next
together, so a lot of times we would just walk out
there together to see what the progress, because the
maintenance people had a big obligation to the
military, and sometimes they would get priority. So we
were always concerned that our aircraft were getting
done on time. So you go out there. It might be for
five minutes.

Q:

Okay. And this you would do then principally when your
aircraft were also on the hangar to be –- World Airways
aircraft were being serviced at the same time as the
military aircraft?

A:

Yes.

Q:

How often did that occur?

A:

Probably every day.

Q:

Every day in the course of these years from 1976 to
1985?
11

A:

Yeah.

(151:15-152:12.)

Based on the above, the depositions of Michael Pociecha
and David L. Miller contained no new information about Timothy
Vests’s potential exposure to asbestos from MDC’s military
aircraft at Hangar 110.

Warren Vest had previously testified

that maintenance was done on military aircraft along with
commercial planes, and that he was present for the maintenance.
Timothy Vest’s complaint alleged that he was exposed to dust on
Warren Vest’s clothing, thereby providing the causal nexus
between military plane maintenance and Plaintiffs’ claims.
Therefore, based on Warren Vests’s earlier testimony,
Defendant’s assertion that Plaintiffs’ Response to its Motion for
Summary Judgment and corresponding depositions for the first time
triggered a right to removal is not persuasive.

III. CONCLUSION
As Defendant did not remove the case within thirty days
from the date on which the case became removable Plaintiffs’
motion to remand will be granted.
An appropriate order follows.

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