Government Contractor Defense and Removal in Asbestos Cases

Decisions in our library in which the court ruled on government contractor defense: 310 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

About this issue

Companies that made products for the military, especially ships and equipment for the Navy, have raised two related federal protections.

The government contractor defense comes from the U.S. Supreme Court's decision in Boyle v. United Technologies Corp. (1988). For a design-defect claim, it can shield a contractor when the government approved reasonably precise specifications, the product conformed to them, and the contractor warned the government about dangers it knew of and the government did not. In asbestos failure-to-warn cases, courts ask a related question: whether the government exercised its own discretion over warnings, approving reasonably precise requirements about them, rather than simply accepting whatever the contractor chose. Courts differ on what evidence that takes.

The federal officer removal statute (28 U.S.C. § 1442) lets a contractor move a case from state court to federal court if it was acting under a federal officer, the claims relate to what it did under that direction, and it has a colorable federal defense. Removal decides only which court hears the case, not whether the defense succeeds. Many decisions in this section are rulings on motions to send a removed case back to state court.

Alabama

• Craig v. AW Chesterton Co. (2023). The 30-day removal period under 28 U.S.C. § 1446(b)(3) did not begin until a paper unambiguously tied the defendants' products to a Navy vessel, and federal-officer removal is construed liberally. Earlier papers that listed Navy ships and the defendants' products separately did not start the clock.
• Bobo v. Agco Corporation (2013). The discretionary function doctrine applies to TVA's power-generation activities, but it does not shield TVA from claims that it violated mandatory OSHA regulations or its own mandatory policies, or that it negligently carried out safety procedures it had adopted. Decisions not to warn employees' spouses and on the content of training are discretionary and protected.
• Kite v. Bill Vann Company, Inc. (2011). A plaintiff's disclaimer of claims arising on a 'federal enclave' or under color of federal office is circular and ineffective to bar federal officer removal. Removal is proper if one claim qualifies under 28 U.S.C. § 1442(a), where the defendant shows it acted under direct federal control and has a colorable government contractor defense.
• Corley v. Long-Lewis, Inc. (2010). A defendant may remove under federal enclave jurisdiction when part of an asbestos plaintiff's alleged ongoing exposure occurred on a federal enclave, such as a naval shipyard, and a disclaimer of federal claims does not defeat that. A contractor may remove under the federal officer statute by showing a colorable government contractor defense and a causal connection to its work for the Navy.

Arizona

• Hatten v. Grobet USA (2020). A removing defendant claiming fraudulent joinder must show there is no possibility a state court would find the complaint states a cause of action against the non-diverse defendant, and a removing defendant asserting federal enclave jurisdiction bears the burden of showing the events occurred on land under exclusive federal jurisdiction.
• Coulbourn v. Crane Co. (2018). Under Arizona law, where several defendants' asbestos products may have caused an indivisible injury, a defendant's product is a causal factor if it was a substantial factor, meaning it was independently sufficient to cause the disease. Evidence that a manufacturer knew its gaskets would expose workers to fatal dust can support punitive damages.

California

• Holste v. 3M Company (2025). A plaintiff's waiver of government or military-based claims can defeat federal officer removal, and a removing defendant must offer evidence that the government directed the use of asbestos to show a causal nexus and a colorable government contractor defense. A cross-claim by a co-defendant does not support removal.
• Dunlavey v. 3M Company (2024). A defendant removing under the federal-officer statute must show with competent proof that the claims concern conduct done while acting under a federal officer, and an "other paper" must make removability unequivocally clear and certain from its face; an ambiguous email did not.
• Elorreaga v. Viacomcbs Inc. (2024). Boyle v. United Technologies is a preemption case and does not supply the government contractor standard for federal maritime claims. Contractors may instead assert the Yearsley government contractor defense against such claims, so the district court had to consider it.
• Marcus v. Air & Liquid Systems Corporation (2024). Under maritime law, plaintiffs can reach a jury on substantial-factor causation with testimony about the work done on a product, evidence the product contained asbestos, and expert estimates of exposure from that work, without relying on an "every exposure" theory. The government contractor defense does not apply to federal maritime claims, and loss of consortium and punitive damages are unavailable under maritime law.
• Smargisso v. Air & Liquid Systems Corporation (2024). Under maritime law, plaintiffs must show actual exposure to the defendant's asbestos products and that the exposure was a substantial contributing factor; circumstantial shipmate and records evidence can meet this. Non-pecuniary damages are not recoverable in a maritime wrongful death action based on negligence and strict liability absent historical support.
• Speck v. CBS Corporation (2024). Under federal maritime law a plaintiff must show actual exposure to the defendant's asbestos-containing product and that the exposure was a substantial contributing factor in causing the injury, and expert testimony is not required to prove this. The government contractor defense fails where the product was substantially the same as one sold commercially or the contractor did not show the Navy required asbestos.
• Elorreaga v. Rockwell Automation, Inc. (2023). The Boyle government contractor defense rests on preemption of state law, so it does not apply to claims brought under federal maritime law. Plaintiffs' evidence of exposure to each defendant's products and of a substantial contributing factor was enough to create a genuine factual dispute.
• Gemaehlich v. Air & Liquid Systems Corporation (2023). When the only defendants asserting federal officer removal jurisdiction have been dismissed, a district court may exercise its discretion under 28 U.S.C. § 1367(c) to decline supplemental jurisdiction over the remaining state-law claims and remand, especially where little judicial resources have been committed.
• Marcus v. Air & Liquid Systems Corporation (2023). A defendant removing under the federal officer removal statute must show by a preponderance of the evidence that it acted under a federal officer's direction and has a colorable government contractor defense; it need not prove the defense is meritorious. Defendants' evidence of Navy specifications, control over warnings and Navy knowledge of asbestos hazards met that standard.
• Ollerton v. National Steel and Shipbuilding Company (2023). A military contractor may assert the Boyle/Yearsley government contractor defense, and so remove under the federal officer statute, when the claim arises from negligence in performing a services contract rather than supplying a product. The defendant must show the defense is colorable and that a causal nexus exists to acts taken at federal direction.
• Dietrich v. Boeing Company (2021). Under 28 U.S.C. § 1446(b)(3), the 30-day removal clock starts only when an amended pleading, motion, order or other paper makes a ground for removal "unequivocally clear and certain." Oral deposition testimony is not an "other paper."
• Pizarro v. National Steel and Shipbuilding Company (2021). A contractor asserting Yearsley or Boyle government contractor defenses must show it complied with the government's specifications, and a genuine dispute over that compliance requires a jury. Under California law, evidence that a retailer knew of asbestos dangers and sold asbestos-containing brakes without warning can create a jury question on malice for punitive damages.
• Spurlin v. Air & Liquid Systems Corporation (2021). Yearsley government-contractor immunity is an affirmative defense on which the contractor bears the burden, not a bar to subject matter jurisdiction. It also did not apply here because no government instruction prevented the manufacturers from giving asbestos warnings.
• Spurlin v. Air & Liquid Systems Corporation (2021). Under federal maritime law, a manufacturer has a duty to warn when its product requires incorporation of a part, it knows or has reason to know the integrated product is likely dangerous, and it has no reason to believe users will realize the danger. Punitive damages and loss of consortium are not available in a maritime negligence action.
• Kruse v. Actuant Corporation (2020). A defendant removing under the federal officer removal statute need only show a person under the statute, a colorable federal defense (here the Boyle government contractor defense to design defect claims) and a low-threshold causal nexus between its acts under federal direction and the plaintiff's claims.
• Pizarro v. Astra Flooring Company (2020). A defendant may remove an entire action under 28 U.S.C. § 1442(a)(1) if it shows by a preponderance of the evidence a colorable government contractor defense to a failure-to-warn claim, and declarations from a retired Navy admiral can suffice at the removal stage under Leite v. Crane Co.
• Viale v. Air & Liquid Systems Corp. (2019). Federal courts have federal question jurisdiction over tort claims arising on federal enclaves, and Mare Island Naval Shipyard was a federal enclave at the time of the alleged exposure, so claims based on work there stay in federal court even after the Navy-service claims were dropped.
• Viale v. Air & Liquid Systems Corp. (2019). A defendant sued under state law over asbestos warnings can remove under 28 U.S.C. § 1442(a)(1) by showing it is a covered person, that a causal nexus exists between the claims and acts done at a federal officer's direction, and that it has a colorable federal defense such as the government contractor defense.
• Livernois v. National Ship and Shipbuilding Company (2018). Under Rule 41(a)(2), a court may allow voluntary dismissal without prejudice when the defendant identifies no cognizable prejudice, even if the plaintiff's motive involves forum shopping.
• Sanchez v. Air & Liquid Systems, Corporation (2018). To remove under the federal officer statute, a defendant must show a colorable federal defense; a government-contractor defense is not colorable where the contractor offers no evidence that it warned the government of dangers it knew of that the government did not.
• Thrash v. Cirrus Enterprises, LLC (2017). A defendant removing under the federal officer removal statute must show it acted under a federal officer's direction with a causal nexus to the claims and has a colorable federal defense; it need not prove the government contractor defense is meritorious, and evidence of detailed military specifications and government control of warnings suffices.
• Ballard v. Ameron International Corporation (2016). A removing defendant bears the burden of showing jurisdiction. Conclusory claims of federal enclave status do not suffice, and enclave jurisdiction is concurrent so all defendants must join in removal. Federal officer removal requires a showing of federal direction, a federal defense and a causal nexus.
• Botts v. US (2016). Under Washington law, expert testimony that asbestos fibers disperse across a whole shipyard can support an inference that a person working there breathed asbestos, so evidence of Navy rule violations, shipyard-wide exposure and a multi-year exposure period was enough for a factfinder to find causation.
• Kelly v. CBS Corporation (2015). Defendants may not base a sophisticated user defense on the Navy's knowledge imputed to the plaintiff; they must show that the plaintiff himself received information that made him know, or should have made him know, of the asbestos dangers.
• Willis v. Buffalo Pumps Inc. (2014). Under California law, a boiler maker can be liable for asbestos components it supplied or specified, and the sophisticated user defense turns on the plaintiff's own sophistication, not the employer's. A Restatement § 402B misrepresentation claim requires an affirmative misrepresentation, not just concealment.
• Lara v. CBS Corp. (2013). A plaintiff's post-removal waiver of all claims arising from exposure at federal government sites and on Navy vessels defeats a government-contractor defense for federal officer removal, and a defendant's possible need to allocate fault to co-defendants under Proposition 51 does not support removal.
• Lee v. Clark Reliance Corporation (2nd Appellate District, 3rd Division, 2013). A manufacturer is not liable in strict liability or negligence for harm caused by another manufacturer's asbestos-containing replacement parts used with its product, and a plaintiff must show exposure to the defendant's own asbestos-containing product to establish causation.
• Pfeifer v. John Crane, Inc. (2nd Appellate District, 4th Division, 2013). When a supplier sells hazardous goods to a sophisticated intermediary that passes them to its employees, the supplier can still be liable for failing to warn those employees unless it has reason to believe the ultimate users know or should know of the hazards. The intermediary's sophistication alone does not shield the supplier.
• Willis v. Buffalo Pumps, Inc. (2013). A defendant is entitled to federal officer removal under 28 U.S.C. § 1442(a)(1) where it identifies facts, viewed in the light most favorable to it, that entitle it to a complete defense; a government contractor need only show a colorable defense based on government discretion over warnings, not that the government dictated exact warnings.
• Brantley v. Borg-Warner Morse Tec, Inc. (2012). A defendant may remove under the federal officer removal statute if it is a person, acted under a federal officer's direction, has a causal nexus to the claims, and raises a colorable federal defense. A plaintiff's disclaimer of claims arising from acts at a federal officer's direction does not defeat removal.
• Brewer v. Crane Co. (2nd Appellate District, 2nd Division, 2012). Under O'Neil, a manufacturer is not liable in strict liability for harm from asbestos-containing replacement gaskets and packing it did not make or supply, unless its own product contributed substantially to the harm or it substantially participated in creating a harmful combined use; mere compatibility with asbestos parts is not a defect.
• Cundiff v. Lone Star Industries, Inc. (2nd Appellate District, 2nd Division, 2012). A defendant asserting the federal enclave defense bears the burden of proving the plaintiff's exposures occurred within the enclave, including the specific location of the injury. Fault allocation and noneconomic damages are upheld if supported by substantial evidence and not shocking to the conscience.
• O'neil v. Crane Co. (2012). A product manufacturer is not strictly liable or negligent for harm caused by another manufacturer's product or replacement parts used with its product, unless its own product contributed substantially to the harm or it participated substantially in creating a harmful combined use. Foreseeability alone does not create a duty to warn.
• Collins v. Plant Insulation Company (1st Appellate District, 1st Division, 2010). Federal sovereign immunity under the FTCA's discretionary function exception is an immunity from suit, not a determination that the government owes no duty or is not at fault, so fault may be apportioned to the Navy under Proposition 51.
• Hall v. Warren Pumps LLC (2nd Appellate District, 2nd Division, 2010). A manufacturer of pumps and valves is not strictly liable or negligent for failing to warn of asbestos hazards from third-party asbestos insulation, gaskets and packing used with its equipment, where it did not make or supply those products and its own equipment did not cause or create the risk.
• Oxford v. Foster Wheeler LLC (1st Appellate District, 1st Division, 2009). The government contractor defense can apply to negligence claims as well as strict liability claims, but satisfying the Boyle elements for design does not by itself bar failure-to-warn claims. A finding of no failure-to-warn product defect is logically inconsistent with a finding of negligent failure to warn, and inconsistent special verdicts require a new trial.
• Ballenger v. Agco Corporation (2007). A defendant may remove under the federal officer removal statute, construed broadly in favor of removal, if it acted under a federal officer's direct and detailed control, has a colorable federal defense, and shows a causal nexus between the claims and acts done under federal direction. A retired admiral's declaration can satisfy the control showing without decades-old contracts.

Connecticut

• Kotecki v. Buffalo Pumps, Inc. (2009). A defendant may remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), by showing it acted under a federal officer, that its acts were causally tied to the government's directions, and that it has a colorable federal defense. The defense need not be proven on the merits at the removal stage.
• Murphy v. General Electric Company (2009). A defendant can remove under 28 U.S.C. § 1442(a)(1) if it acted under a federal officer, its acts were causally connected to the claims, and it raises a colorable federal defense. A colorable military contractor defense is enough, and the defendants need not prove it on the merits.
• Carroll v. Buffalo Pumps, Inc. (2008). A defendant may remove under the federal officer statute, 28 U.S.C. § 1442(a)(1), if it is a person acting under a federal officer, acted under color of federal office, and raises a colorable federal defense. Federal officer jurisdiction rests on the defendants' defenses, so plaintiffs cannot disclaim it in their complaint.
• Pantalone v. Aurora Pump Co. (2008). Federal-officer removal under § 1442(a)(1) requires only adequately supported assertions of acting under a federal officer, causation and a colorable federal defense. Removal is still subject to the 30-day limit of § 1446(b), and the defendant bears the burden of showing it could not have ascertained removability earlier.
• Contois v. Able Industries Inc. (2007). A defendant may remove under the federal officer statute when it shows it acted under federal direction, with a causal link to the claim, and has a colorable military contractor defense. The 30-day removal period runs from when the defendant can intelligently ascertain removability from a pleading or other paper.
• Machnik v. Buffalo Pumps Inc. (2007). A government contractor may remove under the federal officer removal statute if it shows a colorable federal defense, that it acted under a federal officer, and a causal nexus to the claims. It need not fully prove the defense on the merits at that stage.

Delaware

• Roadarmel v. Curtiss-Wright Corp. (In re Asbestos Litigation) (2023). Under maritime law a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury. Bystander testimony about dust from repairs of the defendant's engines was enough to create a genuine factual dispute.