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.

Louisiana

• Morgan v. Huntington Ingalls, Incorporated (2018). The 30-day removal clock under 28 U.S.C. § 1446(b)(3) starts when the defendant receives the deposition transcript, not when the deposition testimony is given, because oral testimony is not an "other paper."
• Rivera v. Huntington Ingalls, Inc. (2018). A court decides a motion to remand under the federal officer removal statute on the claims pleaded at the time of removal, so a post-removal disclaimer of strict liability claims does not defeat the causal nexus. Avondale showed a colorable government contractor defense, and strict liability claims based on mere use of asbestos satisfy the causal nexus requirement.
• Templet v. Huntington Ingalls, Incorporated (2018). Negligence claims for failure to warn, train or adopt asbestos safety procedures do not show the causal nexus needed for federal officer removal when the defendant does not show it was prevented from adopting those safety measures.
• Uzee v. Huntington Ingalls Incorporated (2018). Under Fifth Circuit precedent, federal officer removal's causal nexus is met for strict liability claims based on mere use of asbestos required by government contracts, but not for negligent failure to warn, train or adopt safety procedures; plaintiffs who disclaim strict liability cannot be forced into such claims.
• Bell v. Foster Wheeler Energy Corp. (2017). Under the court's narrowed bare metal defense, a component maker can be liable under general maritime law if it substantially participated in integrating its part with asbestos products or recommended asbestos for use with its part. A manufacturer is not liable merely because asbestos ended up on its product, or because asbestos use was foreseeable.
• Blouin v. Huntington Ingalls Inc. (2017). Federal officer removal under 28 U.S.C. § 1442(a)(1) requires a colorable federal defense even after the 2011 amendment. A defendant sued only for negligent failure to warn, where government contract specifications did not stop it from following state-law duties, has no such defense.
• Legendre v. Huntington Ingalls Inc. (2017). Under Fifth Circuit law (Bartel, Savoie, Zeringue), a Louisiana wrongful death claim against a shipyard sounds in negligence, and the government's requirement to use asbestos does not create a causal nexus to the shipyard's discretionary safety decisions, so federal officer removal fails.
• Mayeaux v. Taylor-Seidenbach, Inc. (2017). To remove under the federal officer removal statute, a contractor must show a causal nexus between its acts under color of federal office and the plaintiff's claims. Negligence claims over a shipyard's own safety and warning decisions do not meet that test where the government is not shown to have controlled those decisions.
• Morgan v. Dow Chemical Company (2017). The 30-day removal period under 28 U.S.C. § 1446(b)(3) runs from the date a plaintiff gives deposition testimony revealing removability, not from the date the defendant receives the transcript. Fees are denied where the removing party had an objectively reasonable basis for removal.
• Savoie v. Pennsylvania General Insurance Co. (2017). A removing defendant under the federal officer removal statute need only show a colorable government contractor defense under Boyle, and may supplement its removal notice with affidavits under 28 U.S.C. § 1653 when they clarify grounds already stated in the notice.
• Templet v. Avondale Industries, Inc. (2017). Under the federal officer removal statute, even as amended in 2011, a defendant must show a causal nexus between its acts under federal direction and the claims. Negligence claims for failure to warn or take safety measures lack that nexus when the government did not control the defendant's safety practices.
• Loupe v. Pennsylvania General Insurance Company (2016). Under 28 U.S.C. § 1446(b)(3), a deposition transcript that is unequivocally clear and certain about facts supporting federal officer removal is "other paper" that starts the 30-day removal clock, and first-hand knowledge by the witness is not required.
• Weis v. Dsm Copolymer, Inc. (2016). A defendant removing under the federal officer removal statute must show a causal nexus between its actions under a federal officer's direction and the plaintiff's claims, and for failure-to-warn and premises claims this requires evidence that the government controlled warnings or required the asbestos use, plus a colorable federal defense.
• Boyd v. Boeing Co. (2015). A government contractor may remove under the federal officer removal statute when it acted under federal direction, there is a causal nexus to the claims, and it has a colorable federal defense such as the government contractor defense. A petition disclaimer of federal-direction claims does not, by itself, require remand.
• Hayden v. 3M Company (2015). Federal officer removal requires a colorable defense to a claim actually pursued. Where plaintiffs expressly disclaimed all claims arising from Navy service, deposition testimony about Navy exposure did not revoke the disclaimer or support removal, and a co-defendant's comparative-fault pleading did not provide a basis for removal.
• Meyers v. Chesterton (2015). A Rule 59(e) motion cannot be used to rehash arguments already decided, and once the clerk mails a certified copy of a remand order under 28 U.S.C. § 1447(c) the federal court is divested of jurisdiction to stay it.
• Meyers v. Chesterton (2015). Plaintiffs' verified, binding disclaimer of strict-liability and design-defect claims was effective, and for failure-to-warn claims a federal officer removal defendant must show direct government control that prevented it from giving warnings, which was not shown.
• Savoie v. Pennsylvania General Insurance Co. (2015). To remove under the federal officer removal statute, a defendant must show a causal nexus between its actions under federal direction and the claims; for failure-to-warn and strict-liability claims, that requires showing the government directly controlled warnings or how asbestos materials were handled, not just that it mandated the materials. A federal defense such as the LHWCA cannot independently support removal.
• Wilde v. Huntington Ingalls Inc. (2015). Under the federal officer removal statute, a contractor must show the government directed or controlled the acts alleged to cause the injury; building vessels to Navy specifications, without government control over warnings or how asbestos was handled, does not satisfy the causal nexus requirement.
• Zeringue v. Allis-Chambers Corp. (2015). A defendant removing under the federal officer removal statute need not prove its federal defense but must still support its jurisdictional facts with competent evidence. Generalized affidavits about Navy practice did not show that the government exercised discretion over the specific design and warnings at issue.
• Bartel v. Alcoa Steamship Co. (2014). Jones Act claims cannot be removed under the general removal statute, and a defendant seeking federal officer removal must show with evidence that a federal officer directed its conduct and that this conduct is causally connected to the plaintiff's claims.
• Bartel v. Alcoa Steamship Company (2014). A properly pleaded Jones Act claim is non-removable under § 1445(a), and without a federal question claim § 1441(c) does not allow removal. Federal officer removal under § 1442(a)(1) requires evidence that a federal officer directed the defendant's actions with a causal nexus to the claims, and a contractor sued for failure to warn of asbestos must show such direction.
• Comardelle v. Pennsylvania General Insurance Company (2014). A company that acquires assets is not liable as successor for the transferor's liabilities unless it expressly assumed them; the unambiguous Contribution Agreement transferred only liabilities connected to the listed assets, so under either Texas or Louisiana law P2S did not assume SECO's employer liability.
• Comardelle v. Pennsylvania General Insurance Company (2014). A contractor may remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), if it is a person, acted under a federal officer's direction with a causal nexus to the claims, and raises a colorable federal defense. Removal proper as to one claim makes the whole case removable.
• Humphries v. OneBEACON America Insurance Company (2014). A defendant may remove under the federal officer removal statute if it is a person, acted under a federal officer's direction with a causal nexus to the claims, and raises a colorable federal defense; a colorable government contractor defense need not be proven at the removal stage.
• Humphries v. OneBEACON America Insurance Company (2014). A stay of a remand order pending appeal requires a strong showing of likely success on appeal and favorable equities. Elliott did not show a substantial case on the merits, and the harm a stay would cause to a gravely ill plaintiff weighed strongly against it.
• Laurent v. City of New Orleans (2014). A defendant may remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), if it is a person, 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 defense at the removal stage.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2014). A federal court may keep state-law claims under supplemental jurisdiction after the federal-officer claims are dismissed. Here no novel or complex state-law issue was present, and the case had been pending for years, discovery was closed, and the court had already decided many motions.
• Najolia v. Northrop Grumman Ship Systems, Inc. (2012). 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's direction, has a colorable federal defense, and there is a causal nexus between plaintiff's claims and its federal acts; a design-defect claim satisfying this makes the whole action removable.
• Bradley v. Northrop Grumman Systems Corporation (2007). Removal under the federal officer statute requires that defendants acted under a federal officer's direction, with a causal nexus to the claims and a colorable federal defense. Defendants did not show government control over their safety and warning practices, so failure-to-warn claims lacked the required nexus and the federal defenses were not colorable.
• Lerille v. Monsanto Corporation (2007). Under Louisiana law, state-court consolidation of two suits does not merge them unless the record shows intent to do so, so the 30-day removal period for one suit is not restarted by service in the other. The earlier suit's removal was therefore untimely under 28 U.S.C. § 1446(b).

Maine

• In re All Maine Asbestos Litigation (1986). Following First Circuit precedent, a vessel-owner claim under LHWCA section 905(b) reaches only maritime torts, and asbestos injuries to shipyard workers are not maritime torts. Claims against the United States under the FTCA are barred by the discretionary function exception where the government made policy-based safety decisions, but not where facts are disputed about whether Navy personnel had discretion.

Maryland

• Murphy v. Union Carbide Corporation (2021). A defendant removing under the federal officer removal statute bears the burden of showing a connection between the plaintiff's claimed asbestos exposure and the federal authority asserted; speculative or attenuated links, such as possible time waiting aboard a Coast Guard vessel, do not suffice.
• Barrett v. AW Chesterton Co. (2019). A defendant may remove under the federal officer statute once grounds for removal become apparent from the pleading or later papers, and it need only plausibly assert a colorable federal defense. A vague complaint or discovery answers that do not reveal removability do not start the 30-day clock.
• Sawyer v. Union Carbide Corporation (2018). Under 28 U.S.C. § 1446(b)(3), the 30-day removal clock starts when a paper first shows within its four corners the nexus among the decedent, the defendant and Navy work, without inquiry into the defendant's subjective knowledge.
• Dugger v. Air & Liquid Systems Corporation (2017). A defendant may remove under the federal officer removal statute if it plausibly alleges that it acted under a federal officer, that it has a colorable federal defense such as the government contractor defense, and that there is a causal nexus to the charged conduct. It does not have to prove the defense to keep the case in federal court.
• Sawyer v. Foster Wheeler LLC (2017). A government contractor may remove under the federal officer removal statute if it acted under a federal officer, has a colorable government-contractor defense (shown where the government exercised discretion in approving warnings, the contractor gave them, and the government knew the hazards as well as the contractor), and the claims are connected to or relate to the federal act; a strict causal nexus is not required.
• Oliver v. Campbell McCORMICK, Inc. (2016). A federal court may decline supplemental jurisdiction under 28 U.S.C. § 1367(c) and sever and remand state-law claims that substantially predominate over a federal contractor defense raised only by removing third-party defendants, and such a request is not subject to the 30-day limit in § 1447(c).
• Sawyer v. Union Carbide Corporation (2016). To remove under the federal officer removal statute, a defendant must show a colorable federal defense and a causal nexus to conduct under federal direction; Navy control over warnings on delivered boilers did not extend to warnings for workers in the shipyard boiler shop.
• Citrano v. John Crane-Houdaille, Inc. (2015). A cross-claim against a federal-officer defendant does not create federal subject matter jurisdiction. After all claims with independent federal jurisdiction were dismissed, the court declined supplemental jurisdiction over the state-law claims because economy, fairness and comity favored remand.
• May v. Air & Liquid Systems Corp. (2015). A manufacturer has a duty to warn in negligence and strict liability about asbestos-containing replacement parts it did not supply when its product contains asbestos and no safer material is available, asbestos is critical to the product, periodic maintenance involving asbestos parts is required, and the manufacturer knows or should know of the risk.
• Sherin v. John Crane-Houdaille, Inc. (2015). A cross-claim for contribution does not give rise to independent federal jurisdiction, but a federal court that has federal officer or enclave jurisdiction over some claims may keep supplemental jurisdiction over related state claims when economy, convenience, fairness and comity favor retaining them.
• Sroka v. Union Carbide Corp. (2015). To remove under the federal officer removal statute, a defendant must raise a colorable federal defense and show a causal connection to acts done under federal office. A failure-to-warn contractor defense requires showing that the government approved warnings, that the warnings conformed to specifications, and that the government knew as much as the contractor about the hazard.
• Citrano v. John Crane-Houdaille, Inc. (2014). A defendant can remove under the federal officer removal statute if it has a colorable federal contractor defense and a causal connection to the federal contract. Its 30-day removal period can start when discovery responses name the Navy ship where the plaintiff worked. Claims against non-removing defendants may stay in federal court where severance would prejudice the removing defendant's contribution claims.
• Joyner v. AC & R. Insulation Co. (2013). A plaintiff may use a Rule 15(a) amendment to disclaim damages for one product and so avoid federal officer jurisdiction. A defendant that did not raise a federal defense for another product in its notice of removal within thirty days cannot rely on it later, and contribution cross-claims that depend on the plaintiff's recoverable damages do not create federal jurisdiction.
• Joyner v. AC & R. Insulation Co. (2013). A removing government contractor need only plausibly allege that it acted under federal direction, has a colorable government contractor defense, and has a causal nexus to the claims; the court may sever the removed claims and remand the remaining state-law claims by declining supplemental jurisdiction.
• Dilks v. 4520 Corp., Inc. (2012). The 30-day removal period under 28 U.S.C. § 1446(b) runs from when removability is first ascertainable from the pleading or other papers, not from a later paper that makes it uncontestable. Here, discovery responses naming the Navy submarines triggered the clock.
• Jones v. John Crane-Houdaille, Inc. (2012). A notice of removal need only give a short and plain statement of the grounds for removal, judged by the Twombly plausibility standard, so it need not plead the state's consent to exclusive federal jurisdiction to allege that a site is a federal enclave.

Massachusetts

• Cook v. Foster Wheeler Energy Corporation (2023). Asbestos exposure claims arising from repair and maintenance aboard a Navy ship on navigable waters fall within admiralty jurisdiction, so substantive maritime law applies, with state law only supplementing where maritime law is silent. General maritime law does not bar loss of consortium, punitive or survival damages against a manufacturer in such a case.
• Cook v. Foster Wheeler Energy Corporation (2023). Summary judgment is not appropriate where significant facts are genuinely in dispute, such as whether gaskets contained asbestos, what the Navy permitted regarding warnings, and whether DCo supplied asbestos gaskets.