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.

Other federal courts

• Feldman v. Owens-Illinois (In re Brooklyn Navy Yard Asbestos Litigation) (1992). Plaintiffs could prove causation in the Brooklyn Navy Yard cases without identifying the exact product that injured each person, and the Navy's failure to warn did not relieve manufacturers of their own duty to warn. Under New York law, the settlement set-off and the cap on non-economic damages operate independently, each calculated from the original verdict, and a settlement occurs only when the plaintiff gives a release.
• Sawyer v. Fibreboard Corp. (In re Hawaii Federal Asbestos Cases) (1991). The military contractor defense does not shield suppliers of ordinary commercial asbestos insulation sold to the Navy, and it would not bar a failure-to-warn claim even if the insulation were military equipment. Under Hawaii law, state-of-the-art evidence is inadmissible in strict liability, and joint and several liability applies to asbestos torts.
• Dorse v. Eagle-Picher Industries, Inc. (1990). Under Boyle, state failure-to-warn law is displaced only if it significantly conflicts with a federal contract duty. No conflict existed because the Navy specifications did not prohibit health warnings, so the contractor could comply with both.
• Dube v. Pittsburgh Corning (1989). The FTCA discretionary function exception covers only conduct involving a permissible exercise of policy judgment; the Navy's negligent failure to warn domestic bystanders of asbestos dangers, made without any policy decision while operating a shipyard like a private owner, is not shielded.
• Hansen v. Johns-Manville Products Corp. (1984). Applying Texas law, the court held that Texas courts would not bar punitive damages in a mass asbestos products case, that punitive damages in a private suit do not raise double jeopardy, and that no government specification defense was recognized or applicable. Awards found excessive must be reduced to the maximum the jury could properly have awarded.

Pennsylvania

• Gay v. AO Smith Corporation (2024). A contractor operating a government-owned laboratory under government contract and direction is derivatively immune from a failure-to-warn claim under either the Yearsley test or the Boyle government contractor test, where the government approved and controlled its work and GE had no superior knowledge of asbestos hazards.
• Data v. Pennsylvania Power Company (2023). Under the Commonwealth Court's Herold decision, mesothelioma that develops more than four years after last workplace asbestos exposure is outside the ODA's exclusive-remedy provision. Once the federal-officer defendants were dismissed, the court declined to keep supplemental jurisdiction because fairness, convenience and judicial economy did not favor it.
• Gorton v. Warren Pumps, LLC (2023). The federal common-law government contractor defense from Boyle applies in a case governed by maritime law. It bars design and failure-to-warn claims where the Navy approved reasonably precise specifications, the equipment conformed, and the contractor did not know more about the hazard than the Navy did.
• Hilster v. Air & Liquid Systems Corporation (2022). Under either maritime or Connecticut law, a pump maker is not liable for asbestos in third-party external gaskets and insulation it did not require, and a plaintiff must offer non-speculative evidence of exposure to the defendant's own asbestos-containing product. The government contractor defense under Boyle also barred the design defect and failure-to-warn claims on this record.
• Hilster v. Air & Liquid Systems Corporation (2022). Under either maritime or Connecticut law, a pump maker is not liable for third-party external asbestos gaskets it did not specify, supply or require, and a plaintiff needs non-speculative evidence of exposure to the defendant's own asbestos-containing product. The government contractor defense also applied, because the Navy approved the specifications and warnings and knew of the asbestos hazards.
• Kraus v. Alcatel-Lucent (2018). A defendant may remove under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), if it is a person acting under a federal officer, the claims relate to that federal act, and it raises a colorable federal defense. At the removal stage, the Boyle government contractor defense need only be colorable, not proven.
• Mehnert v. Agilent Technologies, Inc. (2018). Timeliness of removal is judged by what the complaint and other papers objectively state, not what defendants knew or could have found out. A complaint that did not identify the worksite as a federal enclave did not start the 30-day removal clock; the later interrogatory answers did.
• George v. AW Chesterton Co. (2016). Even assuming consent-by-registration survives Daimler, Pennsylvania's registration statute limits general jurisdiction to acts occurring during the period of registration, so a registration that began after the alleged injury does not support jurisdiction.
• Schwartz v. Abex Corp. (2015). Under Pennsylvania law, a product manufacturer is not strictly liable for aftermarket asbestos-containing component parts it neither made nor supplied. It can be liable in negligence for failing to warn only if it knew its product would be used with that type of asbestos component and knew when it sold the product that asbestos was hazardous.
• Donn v. AW Chesterton Co., Inc. (2012). Federal war powers, procurement law and regulations do not occupy the field of state tort law on failure to warn of asbestos on Navy ships, and conflict with federal interests is addressed through the Boyle government contractor test rather than preemption. A failure-to-warn suit between private parties against Navy equipment suppliers is also not a non-justiciable political question.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (2012). Under the Third Circuit's four-corners test, the 30-day removal period starts only when the pleading or other paper shows with substantial specificity that federal jurisdiction exists. Defendants who submit evidence of Navy control and a colorable government contractor defense satisfy the federal officer removal statute, 28 U.S.C. § 1442(a)(1).
• Vest v. McDonnell Douglas Corp. (In re Asbestos Products Liability Litigation) (2011). When removal rests on the federal officer removal statute, the thirty-day removal window begins once the record shows facts supporting the statute's requirements, such as specific military product identification and a causal nexus. A defendant cannot wait for later expert testimony or depositions that add no new facts.
• Willis v. BW IP International Inc. (2011). To win summary judgment on the government contractor defense, a defendant must show no genuine factual dispute on all three Boyle elements, including that the government approved reasonably precise specifications reflecting considered judgment about warnings. Conflicting evidence on those points precludes summary judgment.
• Faddish v. General Electric Co. (2010). The government contractor defense applies to failure-to-warn claims. A contractor need not show the government expressly prohibited warnings; it must show the government exercised discretion over warnings, the contractor complied, and the government knew as much or more about the hazards.
• Hagen v. Benjamin Foster Co. (2010). A defense is colorable for federal officer removal under 28 U.S.C. § 1442(a)(1) if the defendant identifies facts which, viewed in the light most favorable to it, would establish a complete defense at trial. The court need not weigh the evidence at the remand stage.
• Chenot v. AP Green Services, Inc. (2006). A landowner that possesses superior knowledge of asbestos hazards owes a duty to warn an independent contractor's employees, and the landowner bears the burden of showing the contractor or employee knew as much or more. A peculiar-risk theory may also present a triable issue.
• Chicano v. General Electric Company (2004). Under Pennsylvania law, a component manufacturer's duty to warn turns on factors including foreseeability and whether the part was designed for a particular finished product, so a turbine maker that knew its turbines would be insulated with asbestos may owe a duty to warn; the government contractor defense fails at summary judgment where a fact issue exists on conformity to specifications.

Rhode Island

• Moore v. Crane Company (2021). A private contractor removing under the federal officer statute on a premises-liability failure-to-warn claim must show the government's control interfered with its ability to warn at the worksite itself; proof of Navy control over product specifications and labeling is not enough.
• Mannix v. CBS Corporation (2019). The 30-day removal clock runs only from a plaintiff's papers that give enough facts to show removability under 28 U.S.C. § 1442, not from what the defendant knew or should have known. A defendant needs only a colorable government contractor defense to remove, and the merits of that defense are left for trial.
• Stevens v. Air & Liquid Systems Corporation (2017). Under an exception to the bare metal defense, a manufacturer may be liable where its product necessarily contained asbestos components essential to its function that would necessarily be replaced with other asbestos materials. Genuine factual disputes also barred summary judgment on the sophisticated user and government contractor defenses, and general maritime law does not bar loss of consortium damages.
• Sweredoski v. Alfa Laval, Inc. (2013). A defendant asserting the government contractor defense must show, for design defect claims, that the government approved reasonably precise specifications, that the product conformed, and that the contractor warned the government of dangers it alone knew. Failure-to-warn claims require a parallel showing about government-approved warnings. Evidence on each element here raised triable issues of fact.
• Sweredoski v. Alfa Laval, Inc. (2013). Rule 8(c) does not automatically bar adding an omitted affirmative defense; under Rule 15(a), leave to amend is freely given and may be denied only if the nonmoving party shows undue prejudice, and delay alone is not enough.

South Carolina

• Warren v. 3M Company (2021). When removal rests on the federal officer statute, the thirty-day period starts when a paper contains unequivocal facts alerting the defendant to a federal officer claim; here the discovery answers served April 8, 2020 did so, so removal in September was late.
• Bradley v. Richland County Landfill, Inc. (2014). A private entity does not act under a federal officer merely by complying with federal regulations that set minimum standards. To show a causal connection, defendants must show federal control prevented them from meeting their state law duties.

Texas

• Madden v. Able Supply Co. (2002). A corporation is a "person" under the federal officer removal statute, and a contractor that acted under Navy direction and raises a colorable military contractor defense may remove; the court may decline supplemental jurisdiction over the remaining state-law claims and remand them.

Utah

• Hipwell v. Air & Liquid Systems Corp. (2022). Under maritime law, a plaintiff must show exposure to the defendant's asbestos-associated product that was a substantial factor in causing the injury, and a boiler maker may owe a duty to warn under DeVries if it directed that asbestos be incorporated. The court treated the substantiality of exposure, the duty to warn, the government contractor defense and warning causation as disputed fact questions, with Utah's heeding presumption applying to the causation question.
• Hipwell v. Air & Liquid Systems Corp. (2022). A party seeking to exclude an entire category of evidence without specifying the particular items cannot show irrelevance or unfair prejudice, and whether an intervening cause was foreseeable is generally a jury question. The Navy's knowledge of asbestos hazards is relevant to the failure-to-warn claim and to the government contractor and DeVries defenses.
• Anderson v. Asbestos Defendants (In re Asbestos Cases OF Hatch) (2007). A conditional transfer order from the MDL panel does not divest the district court of jurisdiction over pending pretrial motions, but the court may in its discretion defer a remand motion to the MDL court for efficiency, even when the plaintiff is terminally ill.

Virginia

• Gehant v. Foster Wheeler Energy Corporation (2022). Under Air & Liquid Systems v. DeVries, a manufacturer's duty to warn depends on whether its product required incorporation of an asbestos-containing part, not merely heat insulation generally. Disputed facts on each DeVries prong, on the Boyle/Sawyer government contractor test, and on substantial-factor causation preclude summary judgment.
• Mullinex v. John Crane, Inc. (2022). Under the third element of the government contractor defense (Boyle and Sawyer), the contractor must show the government knew of the asbestos hazard presented by the contractor's specific product, not merely of asbestos hazards in general.
• Brinkman v. General Dynamics Corporation (2016). 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.
• Ripley v. Foster Wheeler LLC (2016). The government contractor defense is available in failure-to-warn cases, not only design defect cases, so it can supply the colorable federal defense needed for federal officer removal under 28 U.S.C. § 1442.
• Anderson v. Crown Cork & Seal (2000). A vessel is not itself a federal enclave. Where a Navy seaman's asbestos exposure occurred aboard ship and not in the shipyard, the ship's occasional docking in a federal enclave does not create federal enclave jurisdiction, and doubts about removal are resolved in favor of remand.
• McCormick v. CE Thurston & Sons, Inc. (1997). A Navy vessel is not a federal enclave, and federal officer removal fails without a colorable federal defense; the government contractor defense is not available in failure-to-warn cases in this district.

Washington

• Johnson v. Air & Liquid Systems Corporation (2024). The 30-day removal clock under 28 U.S.C. § 1446(b)(3) starts only when a paper makes the ground for federal officer removal unequivocally clear and certain. Here that was Robert Stubblefield's declaration and deposition, not the earlier pleadings or discovery.
• Monlux v. 3M Company (2024). A defendant removing under the federal officer statute must allege facts linking the plaintiff's asbestos exposure to military equipment or work. The presence of the defendant's Navy-supplied equipment at a shipyard that also served civilian vessels does not show a causal nexus, and counsel's refusal to disclaim exposure on Navy ships does not fill that gap.
• Perkins v. United States (2024). The discretionary function exception does not apply where a mandatory and specific directive prescribes a course of action, and factual disputes over whether Navy asbestos directives were mandatory and followed preclude dismissal. Under Washington law, duty turns on foreseeability of a general field of danger, and disputed expert evidence on substantial-factor causation precludes summary judgment.
• Perkins v. United States (2023). Under the FTCA's discretionary function exception, the government must show no mandatory directive governed the challenged conduct and that the decision was susceptible to policy analysis. Mandatory Navy directives on coveralls for asbestos ripout work removed that claim from the exception, while the laundry and warning decisions were discretionary and policy-based.
• Kraemer v. Lone Star Industries (2021). A defendant invoking federal officer removal on the military contractor defense must show its product was military equipment made with the military's special needs in mind; supplying products to the Navy under detailed specifications is not enough where the same product was sold commercially.
• Welch v. Air & Liquid Systems Corporation (2021). Under Washington CR 41(a)(1)(B), a plaintiff's right to voluntary dismissal is absolute and fixed when the motion is filed, so no claims against the defendant remained pending to be removed, and removal without an objectively reasonable basis supports fees under 28 U.S.C. § 1447(c).
• Clayton v. Air & Liquid Systems Corporation (2019). Strict liability under Restatement (Second) of Torts § 402A requires that the defendant be a seller or manufacturer, and a subcontractor that fabricated insulation pads only for immediate installation is neither. The government contractor defense failed because the cited military standards govern sellers' and manufacturers' shipping labels, not an installer's duty to warn, and Syd Carpenter did not show it provided the required warnings.
• Deem v. Air & Liquid Systems Corporation (2019). After Air & Liquid Systems v. DeVries, a manufacturer in maritime tort law 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. The court deferred applying this standard pending further briefing.
• Mikelsen v. Air & Liquid Systems Corporation (2018). Maritime law did not apply because the worker's exposure was mainly in a land-based shipyard machine shop, so Washington law governed. A jury could find causation even without proof the worker handled the defendant's product, and the government contractor defense was not shown as a matter of law.
• Griffin v. CBS Corporation (2016). In a case removed from state court under the federal-officer removal statute, venue is proper in the district where the state action was pending, so transfer is considered under § 1404(a) rather than § 1406(a), even if the case has no connection to that district.
• McCROSSIN v. Imo Industries, Inc. (2015). A defendant asserting that a third party's negligence was a superseding cause bears the burden of showing it, and the Navy's negligence must have been shown and unforeseeable. The government contractor defense in a failure-to-warn case requires that the government approved reasonably precise specifications limiting the contractor's ability to warn.