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.

Delaware

• Cox v. Foster Wheeler (In re Asbestos Litigation) (2021). Under maritime law, a plaintiff must show exposure to the defendant's product that was a substantial factor in causing the injury, and a manufacturer may owe a duty to warn about third-party replacement parts when its product requires them, it knows or has reason to know of the danger, and it has no reason to believe users will realize that danger. Disputed facts on these elements and on the Boyle elements preclude summary judgment.
• Evans v. Foster Wheeler Energy Corp. (In re Asbestos Litigation) (2017). Under maritime law a plaintiff must show exposure to the defendant's own product that was a substantial factor in causing the injury, and under the bare metal defense a manufacturer is not liable for asbestos-containing parts it did not make or supply.
• Tallman v. Foster Wheeler Energy Corp. (In re Asbestos Litigation) (2017). Under maritime law a plaintiff must show exposure to the defendant's product and that it was a substantial factor in causing the injury, and the bare metal defense bars liability for asbestos materials the defendant did not make or supply. Speculation does not create a genuine factual dispute on these points.
• Evans v. Foster Wheeler Energy, Corporation (2016). Under the federal officer removal statute, a defendant need only identify facts that, viewed in its favor, would establish a colorable government contractor defense, not prove the defense by a preponderance; the statute is broadly construed.
• Hillyer v. Mine Safety Appliances Co. (In re Asbestos Litigation) (2016). Under maritime law, a plaintiff must show exposure to the defendant's asbestos-containing product and that the exposure was a substantial factor in causing the injury. A manufacturer is not liable for asbestos-containing parts it did not make or supply, and speculation cannot create a fact issue on product identification.
• Malone v. Air & Liquid Systems Corporation (2016). Under Mississippi law a plaintiff must show exposure to the defendant's asbestos-containing product with sufficient frequency, regularity and proximity, even in a mesothelioma case. A manufacturer of bare-metal equipment has no duty to warn about asbestos insulation made and supplied by others, and foreseeability of such use alone does not create that duty.
• Wines v. Abb, Inc. (2016). A defendant removing under the federal officer removal statute must show it acted under direct federal orders or detailed regulations and that its challenged conduct is causally linked to that federal direction. Evidence that the Navy did not approve the asbestos-containing products at issue defeats removal.
• Dougherty v. AO Smith Corporation (2014). A complaint's jurisdictional disclaimer does not defeat federal officer removal, but a post-removal express disclaimer of the claims supporting removal can be given effect, and the court then must decline supplemental jurisdiction over the state-law claims absent affirmative justification, favoring remand.
• In re Asbestos Litigation v. Adel Wiggins Group (2009). A defendant removing under the federal officer statute must show a causal connection between the federal direction it acted under and the claim; for a failure-to-warn claim, it must show the government directed or restricted warnings, which the affidavits did not do, so no colorable government contractor defense existed.
• Kirks v. General Electric Company (2009). A contractor may remove under the federal officer removal statute, construed broadly, when affidavits show the Navy controlled the warnings on its equipment, so that the failure-to-warn claims arise from acting under a federal office. The contractor must also raise a colorable federal contractor defense.

Florida

• Batchelor v. American Optical Corp. (2016). A defendant has no colorable federal defense supporting federal officer removal when the plaintiff has expressly disclaimed all claims based on asbestos exposure during military service, because the defense would address claims that do not exist.
• Faddish v. Buffalo Pumps (2012). Under maritime law, applying Florida substantive law, a manufacturer that sold 'bare metal' equipment and was not in the chain of distribution of the asbestos-containing insulation, gaskets or packing used with it has no duty to warn, in negligence or strict liability, about hazards from those third-party products.
• Marley v. Elliot Turbomachinery Co., Inc. (2008). For federal officer removal under 28 U.S.C. § 1442(a)(1), a defendant need only advance a colorable federal contractor defense and show a causal nexus to its official duties, without proving the defense on the merits. General affidavits from Navy admirals suffice at the removal stage.

Georgia

• Cabasug v. Crane Company (2013). Under maritime law the sophisticated user defense applies to both negligence and strict liability failure-to-warn claims. The sophisticated purchaser defense requires that the defendant knew the intermediary (the Navy) was aware of the asbestos dangers and reasonably concluded it would warn its employees, and the intermediary's knowledge alone is not enough.

Hawaii

• Cabasug v. Crane Co. (2013). Under maritime law the sophisticated user defense applies to both negligence and strict liability failure-to-warn claims. The sophisticated purchaser defense requires proof that the defendant knew the intermediary (the Navy) was aware of asbestos dangers and reasonably concluded it would warn its employees; the intermediary's knowledge alone is not enough.
• Nobriga v. Raybestos-Manhattan, Inc. (1984). Adherence to government specifications is not an absolute defense to strict liability where the product is inherently dangerous because of the specified material. Under HRS § 663-14, multiple separate releases must be treated collectively, so the verdict is reduced by the total consideration paid or the releasees' total liability share, whichever is greater.

Illinois

• Ayotte v. Boeing Co. (2018). The 30-day clock for federal officer removal starts only when the defendant receives a paper that affirmatively and unambiguously shows the grounds for removal; in asbestos cases that means notice of the specific military products at issue.
• Betzner v. Boeing Co. (2018). A notice of removal under the federal officer removal statute, 28 U.S.C. § 1442(a), need only contain a short and plain statement meeting Rule 8(a) pleading standards and need not include evidentiary submissions; plausible allegations of a colorable federal defense suffice.
• Perez v. Air and Liquid Systems Corp. (2016). A defendant does not waive removal by filing a state-court motion to dismiss shortly before removing, and under Ruppel a federal officer removal defendant need only show a colorable government contractor defense, which affidavits from Navy and medical experts can support.
• Speedy v. 3M Company (2015). Under 28 U.S.C. § 1446(b), the 30-day removal clock starts when the defendant receives a pleading or other paper that affirmatively and unambiguously shows the case is removable; here the plaintiffs' interrogatory answers did so, and a later deposition did not restart the clock.
• Burns v. All Acquisitions, LLC (2014). Where the only basis for federal jurisdiction was federal officer removal and the federal grounds have dropped out, the court normally relinquishes jurisdiction over the remaining state-law claims, considering limitations, federal resources spent, and whether the outcome is obvious.
• Hasenberg v. Air & Liquid Systems Corp. (2014). A defendant meets the federal officer removal statute, 28 U.S.C. 1442(a)(1), by showing it is a person acting under a federal officer, sued for acts under color of office, with a colorable federal defense. A plausible government contractor defense is enough, and its validity need not be resolved to decide removal.
• Horrie v. AW Chesterton Company (2014). A defendant removing on the government contractor defense in a failure-to-warn case must show with specifics, such as contracts or Navy warning requirements, that the government controlled the warnings and that this conflicted with state law. Crane's general affidavits did not do so.
• Mohler v. Air & Liquid Systems Corporation (2014). A defendant invoking federal officer removal need only show a plausible, colorable federal defense, such as the government contractor defense, and a defense that applies to one claim makes the whole case removable.
• Smith v. AW Chesterton Company (2014). A private defendant may remove under the federal officer removal statute if it acted under a federal officer, raises a colorable federal defense such as the government contractor defense, and shows a causal nexus. Affidavits that Navy specifications required asbestos-containing materials can satisfy this without a contract with the government.
• Totten v. Crane Co. (2014). A defendant sued over asbestos in products made for the Navy may remove under 28 U.S.C. § 1442(a)(1) if it is a person, acted at a federal officer's direction, has a causal link to the claims, and raises a plausible government contractor defense; it need not prove that defense at the removal stage. Attaching the wrong complaint to the notice of removal is a minor irregularity that does not defeat jurisdiction.
• Adams v. Armstrong International, Inc (2012). A defendant removing under the federal officer statute must show the federal government prevented it from complying with its state-law duty to warn; without that showing, the government contractor defense does not support federal jurisdiction and the case is remanded.
• Ruppel v. AO Smith Corporation (2012). A removing defendant under the federal officer statute must show that a federal officer directed the acts at issue and that it has a colorable federal defense; extensive government supervision alone is not enough, and doubts are resolved in favor of remand.
• Glein v. Boeing Company (2011). A defendant removing under the federal officer statute must show it acted under a federal officer's direction and has a colorable federal defense, which includes evidence that the Navy prevented it from complying with state-law duties to warn. Doubts are resolved in favor of remand.
• Sublett v. Air & Liquid Systems Corporation (2011). A removing defendant must show the Navy prevented it from complying with state-law warning duties to establish federal officer jurisdiction and the government contractor defense. Federal officer removal is read narrowly where only a private company's liability is at issue, and doubts are resolved in favor of remand.
• Vickroy v. AW Chesterton, Inc. (2011). A removing defendant under the federal officer statute must show it acted under a federal officer's direction and has a colorable federal defense. For a failure-to-warn claim, it must show the Navy prevented it from complying with state-law warning duties, and doubts are resolved in favor of remand.
• Glein v. Boeing Company (2010). A defendant removing under the federal officer statute on a failure-to-warn claim must show a causal nexus and a colorable government contractor defense, which requires that the government dictated or prevented warnings; mere Navy approval of warnings is not enough.
• Stephens v. AW Chesterton, Inc. (2009). A defendant removing under the federal officer statute must show it acted under a federal officer's direction and has a colorable federal defense; affidavits without contracts or regulations showing the Navy prevented compliance with state-law warning duties are insufficient.

Indiana

• Castor v. US (1995). The Bureau of Prisons' decisions on how to manage asbestos-containing material in a prison involve judgment grounded in public policy, so the FTCA's discretionary function exception bars the claims and the court lacks jurisdiction.

Kentucky

• Brown v. Kentucky Utilities Company (2015). After severing a federal-officer defendant's third-party claims, a federal court may decline supplemental jurisdiction under 28 U.S.C. § 1367(c)(2) and (4) where state-law claims predominate and a late-removed case was nearly ready for state trial.
• Holland v. Union Carbide Corporation (2013). A defendant asserting the military contractor (government contractor) defense bears the burden of proving it, and general federal oversight of a plant, without proof of approved precise specifications, conformity to them, and warnings to the government, does not establish the defense under Boyle.
• Stallings v. Georgia-Pacific Corporation (2013). A government contractor may remove under the federal officer removal statute if it was acting under a federal agency, there is a causal nexus between its work and the plaintiff's claims, and it raises a plausible (colorable) government contractor defense. A defendant may support removal with declarations and affidavits at an early stage.

Louisiana

• LeBOEUF v. Huntington Ingalls, Incorporated (2025). A federal contractor is immune from failure-to-warn claims under the modified Boyle test only if the government exercised discretion and approved the warnings, and minimum government safety standards are not reasonably precise specifications. Yearsley immunity does not cover a failure to warn or protect that the government did not authorize or direct.
• Constanza v. Sparta Insurance Company (2024). Under the Fifth Circuit's en banc Latiolais test, a shipbuilder removing under 28 U.S.C. § 1442(a)(1) must show a colorable federal defense, that it is a person under the statute, that it acted under a federal officer's directions, and that the charged conduct is connected or associated with that act. The Eleventh Circuit's Meadows decision on former federal officers does not displace that test for a private contractor.
• Ditcharo v. Union Pacific Railroad Company (2024). A defendant that raises a colorable federal contractor defense and acted under a federal officer may remove the whole case under § 1442(a)(1). The court may then exercise supplemental jurisdiction over the related state claims and over FELA claims that § 1445(a) would otherwise make non-removable.
• Gomez v. Huntington Ingalls Inc. (2024). Avondale cannot invoke the Boyle or Yearsley government contractor defenses against failure-to-warn and failure-to-enact-safety-measures claims, following earlier decisions of the same court. A party seeking more discovery before summary judgment must show the discovery will likely create a genuine issue of material fact.
• Jacob v. Louisiana Insurance Guaranty Association (2024). A defendant's ability to remove under the federal officer removal statute does not depend on its acting under a federal officer at the time of removal. The 30-day removal clock starts only when a plaintiff's voluntary act makes removability unequivocally clear, so documents produced by co-defendants or merely showing Navy service did not start it.
• Lagrange v. Eagle, Inc. (2024). The court, relying on its reasoning in Falgout v. Anco Insulations and similar earlier cases, held that defendants were not entitled to use the Government Contractor Defense in this asbestos case.
• Lagrange v. Eagle, Inc. (2024). A federal court that had federal officer removal jurisdiction at the time of removal does not lose it when the federal defense later fails, and it may keep supplemental jurisdiction over the remaining state-law claims where they raise no novel or complex state-law issues.
• Legendre v. Louisiana Ins. Guaranty Association (2024). Avondale cannot use the Boyle or Yearsley government contractor defenses against failure-to-warn and failure-to-implement-safety claims. Intentional tort and fraud claims fail without evidence that injury was substantially certain or of fraudulent intent.
• Marcella v. Huntington Ingalls Inc. (2024). A defendant removing under the federal-officer removal statute need only assert a colorable federal defense, such as Boyle government contractor immunity, and that defense is not defeated because other courts rejected it on the merits at summary judgment. The Eleventh Circuit's Meadows decision on former federal officers does not displace the Fifth Circuit's Latiolais ruling allowing Avondale to remove.
• Matherne v. Huntington Ingalls Incorporated (2024). For the failure-to-warn and failure-to-implement-safety-measures claims, the court followed its earlier Falgout ruling and barred the shipyard and its insurers from asserting the government contractor defense (Boyle/Yearsley). The plaintiffs did not seek judgment on the strict liability or general negligence claims.
• Sentilles v. Huntington Ingalls Incorporated (2024). An expert with a marine engineering background, Navy service and two decades of research into government shipbuilding practices may testify on government asbestos requirements and knowledge. His opinions satisfy Rule 702 and Daubert as relevant, reliable and helpful to the jury.
• Fiffie v. Taylor-Seidenbach (2023). When all federal claims have been dismissed before trial, the general rule is that a district court declines supplemental jurisdiction over the remaining state-law claims. Here the statutory and common-law factors favored remand.
• Hernandez v. Huntington Ingalls, Inc. (2023). After all claims supporting federal-officer removal were dismissed, a federal court may decline supplemental jurisdiction over the remaining state-law claims under 28 U.S.C. § 1367(c) and the common-law factors of judicial economy, convenience, fairness and comity, and remand to state court.