Venue, Removal and Transfer in Asbestos Cases

Decisions in our library in which the court ruled on venue: 496 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

• Barlow v. Colgate Palmolive Co. (2014). 28 U.S.C. § 1447(d) bars review of remand orders but does not stop a district court from deciding Rule 11 sanctions motions after remand, or from vacating a remand order under Rule 60(b)(3) because it was obtained through misrepresentation, since vacatur on that ground is not review of the order's merits.
• Leite v. Crane Co. (2014). When a plaintiff factually challenges federal officer removal jurisdiction under 28 U.S.C. § 1442(a)(1), the Rule 12(b)(1) framework applies and the defendant must prove by a preponderance of the evidence a colorable federal defense and a causal nexus to acts taken at a federal officer's direction.
• Wood v. Crane Co. (2014). After the thirty-day removal window closes, a defendant may amend a notice of removal only to correct allegations already made, not to add a new ground for federal jurisdiction. A defendant who chose not to assert a federal defense for the gasket claims could not rely on it after the plaintiff dropped the valve claims.
• Ruppel v. CBS Corporation (2012). A private contractor may remove under the federal officer removal statute if it was a person acting under a federal officer, the suit relates to acts under color of office, and it has a colorable federal defense; the government contractor defense can be colorable for both use-of-asbestos and failure-to-warn claims without proof that the government prohibited warnings.
• Kurns v. AW Chesterton Inc. (2010). The Locomotive Inspection Act preempts the field of locomotive parts and appurtenances, so state-law design defect and failure-to-warn claims against makers of locomotive parts over asbestos exposure are preempted. The Federal Railroad Safety Act did not narrow that preemption.
• In re Federal-Mogul Global, Inc. (2002). Under 28 U.S.C. §§ 1447(d) and 1452(b), orders remanding removed cases to state court for lack of "related to" bankruptcy jurisdiction are not reviewable by appeal or mandamus. Denial of a transfer is reviewable only by mandamus, which requires a clear and indisputable right, and under Pacor claims whose indemnification claims have not yet accrued are not "related to" the bankruptcy.
• Harder v. ACandS (1999). Under Iowa law, asbestos insulation blankets attached to power plant turbines became improvements to real property and kept that status when temporarily detached for maintenance, so Iowa's fifteen-year repose statute for improvements barred claims against their supplier.
• White v. Celotex Corp. (1990). A plaintiff must produce evidence of exposure to a particular defendant's asbestos product, and market share liability, adopted for fungible DES, is inappropriate in asbestos litigation and unlikely to be adopted by Arizona.
• Lac D'Amiante du Quebec v. American Home Assur. (1988). Under Burford abstention, a federal court should decline to adjudicate, even in a declaratory action, a suit against an insurer already in a state's insurance liquidation proceeding, because doing so would disrupt the state's complex regulatory scheme for liquidating insolvent insurers.
• Eagle-Picher Industries, Inc. v. Liberty Mut. Ins. (1982). Under these liability policies, an asbestos-related disease "results" (and so triggers coverage) when it becomes clinically evident, meaning reasonably capable of medical diagnosis, not at initial exposure or on actual diagnosis. Ambiguous policy language is construed in favor of the insured.

Pennsylvania

• 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.
• Smith v. Beckman Coulter, Inc. (2023). A trial court does not abuse its discretion in transferring venue under Rule 1006(d)(1) when the chosen forum is more than 100 miles from the site of exposure, witnesses and documents, because that distance can make trial there oppressive to the defendant.
• Gay v. AO Smith Corporation (2022). Under Pennsylvania law, a landowner owes no duty to an independent contractor's employee for a danger the contractor knows of, and the retained-control and peculiar-risk exceptions did not apply because the owner did not control the contractor's methods and asbestos exposure was an ordinary risk of construction work.
• Data v. AO Smith Corporation (2021). Under Pennsylvania law, a worker whose occupational disease first appears more than 300 weeks after his last exposure may bring common law claims against his employer, and a foreign corporation registered in Pennsylvania when the asbestos cause of action accrued (at injury) consents to general jurisdiction under 42 Pa.C.S. § 5301.
• Gay v. AO Smith Corporation (2021). Under Pennsylvania law (frequency, regularity and proximity) and maritime law (a high enough level of exposure), proof that a defendant's product was merely present at a worksite, with only de minimis exposure, does not show the product was a substantial factor in causing the disease.
• Shook v. Avon Products, Inc. (2019). A defendant removing under bankruptcy "related to" jurisdiction must show the action itself affects the debtor's rights or liabilities without further litigation; contingent indemnification agreements and shared insurance are not enough. Remand was also supported on equitable grounds.
• Youse & Youse v. Johnson & Johnson (2019). Complete diversity exists where the party challenging it offers no evidence that a corporate defendant is a citizen of the forum state. Under Bane, registration to do business in Pennsylvania is sufficient for general personal jurisdiction, absent Third Circuit or Supreme Court direction to the contrary after Daimler.
• Gorton v. Air & Liquid Systems Corp. (2018). A foreign corporation registered in Pennsylvania consents to general personal jurisdiction under 42 Pa. C.S. § 5301 for acts or omissions occurring while it was registered after that statute took effect, and Bane remained good law after Daimler. A federal court applies Iqbal/Twombly pleading standards to a removed case, and conclusory asbestos allegations fail them.
• 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.
• Herman v. Ametek (In re Asbestos Products Liability Litigation (NO. VI)) (2017). On a remand motion after removal for fraudulent joinder, defendants must show there is no reasonable basis for the successor liability claim; if there is a possibility a state court could find successor liability under the de facto merger or mere continuation factors, remand is required.
• 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.
• Hassell v. The Budd Co. (In re Asbestos Products Liability Lit.(no. VI)) (2016). A court deciding a Rule 12(b)(6) motion may consider only the complaint's allegations, and if the motion is treated as one for summary judgment, preemption cannot be found where the movants offered no evidence and the record shows a genuine factual dispute.
• Ney v. Owens-Illinois (In re Asbestos Products Liability Litigation) (2016). Removal more than one year after commencement is allowed where the plaintiff acted in bad faith to prevent removal; joining a non-diverse defendant with no reasonable basis in fact or law, such as one shielded by a binding successor-liability statute, supports that finding.
• Abbott v. the Boeing Company (2015). Claims by a worker diagnosed with mesothelioma years after the defendant employer's completed bankruptcy did not arise under, arise in, or relate to that bankruptcy, so 28 U.S.C. § 1334 gave no basis for federal jurisdiction over the removed state-law claims.
• Stellar v. Allied Signal, Inc. (2015). A state-law claim against an employer for asbestos exposure is not completely preempted by LMRA § 301 where the duty arises from state common law independent of the collective bargaining agreements and resolving the claim does not require interpreting any CBA provision.
• Gillen v. Boeing Company (2014). Applying the Althaus factors, the court predicted that Pennsylvania's highest court would not hold an employer and premises owner owes a duty to an employee's spouse for take-home asbestos exposure from laundering work clothes.
• Crawford v. Alcoa (In re Asbestos Products Liability Litigation) (2014). A district court in an asbestos MDL does not abuse its discretion by dismissing a case under Rule 41(b) when the plaintiff fails to submit a medical report meeting the court's AO 12 requirements, even without expressly applying the Poulis factors. Strict compliance with MDL case management orders is especially important.
• Kurns v. Soo Line RR (2013). When a case is removed to federal court, earlier state-court interlocutory orders become orders of the federal district court, so an appellant who does not challenge them in the federal appeal cannot raise them in a later state appeal.
• Rabovsky v. Air & Liquid Systems Corp. (2012). A defendant waives the defense of insufficient process by failing to raise it by pre-answer motion or in its answer, and Gregg's frequency, regularity and proximity test does not bar expert 'each and every exposure' opinions on mesothelioma causation under Rule 702.
• 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.
• Graver v. Allentown Cement Co. (In re Liability Litigation) (2011). Under the voluntary/involuntary rule, a case not removable when filed becomes removable only through the plaintiff's voluntary act, so a state court's involuntary summary judgment for a non-diverse defendant does not make it removable. A non-diverse defendant dismissed on summary judgment was not fraudulently joined if the claim against it was colorable.
• 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.
• Peter & Elpis Constantinides v. Alfa Laval, Inc. (2010). Under Florida law a plaintiff must show that asbestos exposure from the defendant's product was a substantial contributing factor; a bare-metal defense not squarely argued before the magistrate panel is waived. Circumstantial and expert evidence of the defendant's valves aboard ship and work on their packing and gaskets can create a genuine issue on product identification.
• Peter & Elpis Constantinides v. Leslie Controls, Inc. (2010). Evidence that Leslie valves were among only two valve types in the boiler room, were specified for asbestos gaskets, packing and insulation, and were likely worked on near the plaintiff raised a genuine fact issue on causation. The unsettled Florida law on the bare-metal defense was left to the transferor court.
• Peter & Elpis Constantinides v. Leslie Controls, Inc. (2010). Expert and co-worker testimony that Leslie valves were in the boiler room, used asbestos gaskets, packing and insulation, and were worked on near the plaintiff raised a genuine fact issue on causation. Whether a Florida component maker is liable for asbestos added by others was left for the transferor court.
• Hogston v. Allis-Chalmers Corp. (2009). Under Virginia law, circumstantial evidence may prove exposure to a defendant's asbestos product, but it must show probability rather than possibility. A distributor's general franchise territory, without evidence of deliveries to the plant and with direct evidence that another distributor supplied it, does not let a jury find exposure or proximate cause without guesswork.
• In re Asbestos Products Liability Litigation (2009). Physicians whose screening diagnoses plaintiffs rely on in asbestos litigation are not covered by HIPAA, cannot claim physician-patient privilege or consulting-expert protection, but subpoenas to them may be narrowed as overbroad and burdensome.
• Kurns v. AW Chesterton (2009). The Boiler Inspection Act (Locomotive Inspection Act) occupies the field of locomotive equipment, parts and appurtenances, so state-law tort claims over asbestos in locomotive brake pads and engine valves are preempted. A federal court may reexamine a state court's interlocutory denial of summary judgment after removal, and federal law governs preemption.
• 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.
• Jessop v. Acf Industries, LLC (2004). A trial court does not abuse its discretion in dismissing a case for forum non conveniens when an alternative forum is available and the private and public factors strongly favor dismissal, even if some discovery has occurred in Pennsylvania.
• In re Collins (2000). The word "claim" in 28 U.S.C. § 1407(a) is broad enough to cover a request for punitive damages. The Panel may therefore remand compensatory claims while retaining punitive damages claims, and mandamus is available only for a clear and indisputable right or a judicial usurpation of power.
• In re Patenaude (2000). Individual settlement negotiations and discovery in an MDL are coordinated pretrial proceedings under 28 U.S.C. § 1407(a), so plaintiffs did not show a clear and indisputable right to remand, and the Panel did not abuse its discretion in refusing it.

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.
• Melford v. Abex Corporation (2012). A plaintiff seeking a stay on forum non conveniens grounds must show that the private- and public-interest factors both favor the stay. Where they stand in equipoise and the first-filed case is well advanced, the stay is denied, and the first-to-file rule also supports keeping the first-filed case.
• Asbury v. AW Chesterton Company (2010). A defendant seeking forum non conveniens dismissal bears a heavy burden, and dismissal is not warranted unless the private and public interest factors strongly favor it. A state whose only tie to the case is a generalized interest in preventing asbestos disease lacks the contacts needed for its law to be applied constitutionally; for a cumulative-exposure disease, the place of longest and most intense exposure weighs most in the interest-weighing analysis.
• Downs v. 3M Company (2010). Under Kedy, a defendant seeking forum non conveniens dismissal must show an available and adequate alternative forum and that the private- and public-interest factors strongly favor it. The court weighs these case by case, gives deference to the plaintiff's forum choice, and may consider how far the litigation has progressed and the plaintiffs' serious illness.

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.