Brinkman v. General Dynamics Corporation (2016)

Our plain-English summary of Brinkman v. General Dynamics Corporation (U.S. Court of Appeals, Fourth Circuit, December 21, 2016).

Charles Brinkman and his wife Louise sued General Dynamics, Electric Boat and many other companies in a Virginia state court. They alleged he developed mesothelioma from asbestos exposure in 1966 and 1967 while serving in the Navy on a nuclear submarine. General Dynamics and Electric Boat, which built the submarine under a Navy contract, removed the case to federal court under the federal officer removal statute and raised the government contractor defense. The district court sent the case back to state court, finding no colorable federal defense. It followed a long-standing local practice of denying the government contractor defense in failure-to-warn cases. After that ruling, the Fourth Circuit decided in Ripley v. Foster Wheeler that the defense is available in failure-to-warn cases. Because of that decision, the Fourth Circuit vacated the remand order and returned the case to the district court for further proceedings. It did not decide whether the defense succeeds.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. Court of Appeals, Fourth Circuit
• Decided: December 21, 2016
• Docket: No. 15-1752
• Stage: Appeal from jurisdiction, venue or removal
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: Virginia

Outcome. The Fourth Circuit vacated the district court's order remanding the case to state court and sent it back for further proceedings, in light of its new ruling that the government contractor defense is available in failure-to-warn cases; this favored General Dynamics and Electric Boat over the Brinkmans.

What the court held. The government contractor defense is available in failure-to-warn cases, so a district court may not remand a federally removed case for lack of a colorable federal defense based on a practice of denying that defense in failure-to-warn cases.

Issues decided: Failure to Warn, Government Contractor Defense and Removal, Venue, Removal and Transfer.

The people and their exposure

• Charles Brinkman: mesothelioma

The defendants

• General Dynamics Corporation (contractor)
• Electric Boat Corporation (contractor)

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

CHARLES B. BRINKMAN; LOUISE K. BRINKMAN, Plaintiffs-Appellees,

v.

GENERAL DYNAMICS CORPORATION; ELECTRIC BOAT CORPORATION, Defendants-Appellants,

and

JOHN CRANE INCORPORATED; J. HENRY HOLLAND CORPORATION; METROPOLITAN LIFE

INSURANCE COMPANY; WACO, INCORPORATED; UNION CARBIDE CORPORATION; NOLAND

COMPANY; CLEAVER-BROOKS COMPANY, a division of Aqua-Chem, Inc.; AURORA PUMP, CO;

AIR & LIQUID SYSTEMS CORPORATION, successor by merger to Buffalo Pumps, Inc.; IMO

INDUSTRIES, INCORPORATED; GOULDS PUMPS, INCORPORATED; INGERSOLL-RAND

COMPANY; NASH ENGINEERING COMPANY; WARREN PUMPS, INCORPORATED; CRANE

COMPANY; GRINNELL CORPORATION; J.R. CLARKSON COMPANY, individually and as successor

by mergers to Kunkle Industries, Inc.; VELAN VALVE CORP.; TRANE U.S. INC., formerly known as

American Standard, Inc., Defendants.

No. 15-1752.

Submitted: November 3, 2016.

Decided: December 21, 2016.

United States Court of Appeals, Fourth Circuit.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. Arenda L. Wright Allen, District Judge, (4:14-cv-00142-AWA-LRL).

Melissa A. Murphy-Petros, WILSON ELSER MOSKOWITZ EDELMAN & DICKER LLP, Chicago, Illinois, for Appellants. William W.C. Harty, Robert R. Hatten, Hugh B. McCormick, III, PATTEN, WORNOM, HATTEN & DIAMONSTEIN, L.C., Newport News, Virginia, for Appellees.

Before TRAXLER, KEENAN, and WYNN, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

UNPUBLISHED

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Plaintiffs Charles Brinkman ("Brinkman") and Louise Brinkman filed suit in Circuit Court for the City of Newport News, Virginia, asserting state law claims against several defendants. The suit alleged that Brinkman developed mesothelioma as a result of exposure to asbestos in 1966 and 1967 while serving in the United States Navy on a nuclear submarine. It is undisputed that defendants General Dynamics Corporation and Electric Boat Corporation ("Appellants") constructed the submarine pursuant to a contract with the Navy.

General Dynamics timely filed a notice of removal in the United States District Court for the Eastern District of Virginia pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1). General Dynamics asserted that multiple colorable federal defenses supported its removal, including government contractor immunity under Boyle v. United Technologies Corp., 487 U.S. 500 (1988). Electric Boat joined the notice of removal.

The district court subsequently granted a motion to remand filed by the Brinkmans, concluding that Appellants had failed to allege facts asserting a "colorable federal defense" to the state law claims asserted against them. Regarding the government contractor defense, the district court followed "a decades-old practice in the [Eastern District of Virginia] that

denies the government contractor defense in failure to warn cases." Ripley v. Foster Wheeler LLC, ___ F.3d ___, 2016 WL 6441049, at [*1] (Nov. 1, 2016). However, after the district court issued its decision, we decided for the first time "that the government contractor defense is available in failure to warn cases." Id. at [*3] (emphasis added). In light of this recent holding, we vacate the district court's order and remand for further proceedings. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

VACATED AND REMANDED.

Sources

• The opinion on Google Scholar
• Virginia asbestos laws
• Virginia asbestos exposure sites