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.

Washington

• McCROSSIN v. Imo Industries, Inc. (2015). Summary judgment fails where plaintiff offers testimony and expert opinion creating a genuine dispute whether the defendant's asbestos materials were on the ship and were a substantial factor in causing mesothelioma, under either state or maritime law. A defendant's superseding-cause and derivative sovereign immunity defenses also fail at this stage where factual disputes remain.
• McMann v. Air & Liquid Systems Corp. (2014). Under the federal officer removal statute, which is liberally construed, a defendant need only prove by a preponderance of the evidence a colorable government contractor defense and a causal nexus to federal direction. A plaintiff's disclaimer of claims subject to that defense does not defeat removal.
• McMann v. Air & Liquid Systems Corporation (2013). A defendant removing under the federal officer removal statute must show a causal nexus between its actions under federal direction and the claims, and a colorable federal defense; speculative evidence about Navy control and warnings does not meet that burden.
• Stevens v. CBS Corporation (2012). Circumstantial evidence can let a jury reasonably infer that a worker was exposed to a defendant's original or replacement asbestos-containing parts. Where the facts are disputed, summary judgment is not available on causation, the government contractor defense or assumption of risk. Under maritime law, Washington substantive law applies because it does not conflict with maritime law.
• Arnold v. Saberhagen Holdings, Inc. (2nd Division, 2011). Under the law of the case doctrine, a second appellate court will not revisit the first appeal's holding absent manifest error or an intervening change in law, so reversing the denial of the motion would give the plaintiffs no relief.
• Morgan v. Aurora Pump Co. (1st Division, 2011). A plaintiff may prove exposure to a defendant's asbestos product by circumstantial evidence, including witnesses who saw him or others near him work on that defendant's equipment. Under the Lockwood factors, such evidence can create a fact question on exposure and substantial-factor causation. The government-contractor defense is a fact-intensive affirmative defense for the jury.
• IN the Matter of Estate OF Foster (1st Division, 1989). Willful violation of a discovery order justifies excluding evidence only if it substantially prejudices the opponent's preparation for trial. RCW 7.72.050(2) gives an absolute defense for compliance with a specific mandatory government contract specification, and that defense is not lost merely because the government consulted the manufacturer about the specification.

West Virginia

• Siders v. 20th Century Glove Corporation OF Texas (2016). A plaintiff's express disclaimer of all claims for asbestos exposure during Navy service removes the basis for a government contractor defense, so a defendant cannot show the colorable federal defense that federal officer removal under 28 U.S.C. § 1442(a)(1) requires.
• Hamrick v. A & I Company (2009). Subject matter jurisdiction is governed by federal law, and tort claims arising from asbestos exposure on federal enclaves such as Air Force bases fall within federal question jurisdiction, so the action was properly removed.

Wisconsin

• Spychalla v. Boeing Aerospace Operations Inc. (2015). The court did not decide whether Wisconsin recognizes the bare metal defense. Even assuming it does, it would not apply to makers of completed aircraft and engines when unrebutted expert evidence showed they specified asbestos-containing replacement parts. Issues already decided by the MDL court on product identification and causation would not be reopened.