Machnik v. Buffalo Pumps Inc. (2007)

Our plain-English summary of Machnik v. Buffalo Pumps Inc. (U.S. District Court, District of Connecticut, September 17, 2007).

Edward Machnik and his wife sued General Electric, Viad Corp. and other defendants in Connecticut Superior Court. Machnik was diagnosed with malignant mesothelioma in December 2006. He served as a machinist's mate in the U.S. Navy from 1949 to 1952, working in the engine room and boiler room of the U.S.S. Vogelgesang. He alleged that asbestos-containing products made by the defendants caused his disease and that they failed to warn him of the dangers. Viad removed the case to federal court under the federal officer removal statute, and GE joined. Machnik asked to send it back to state court. The court denied the request. Relying on affidavits from a retired Navy rear admiral and a Navy historian, it found GE had a colorable military contractor defense. The Navy controlled the specifications and warnings for equipment, and the Navy knew of asbestos hazards. GE therefore acted under the Navy's direction, and the claims arose from that conduct. Machnik offered no evidence to rebut this, so the case stayed in federal court.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, District of Connecticut
• Decided: September 17, 2007
• Citation: 506 F.Supp.2d 99
• Docket: Civil Action No. 3:07cv357 (CFD)
• Stage: Jurisdiction, venue or removal
• State: Connecticut

Outcome. The court denied Machnik's motion to remand to state court, finding that General Electric had justified federal officer removal, so the case stayed in federal court.

What the court held. A government contractor may remove under the federal officer removal statute if it shows a colorable federal defense, that it acted under a federal officer, and a causal nexus to the claims. It need not fully prove the defense on the merits at that stage.

Issues decided: Failure to Warn, Government Contractor Defense and Removal, Venue, Removal and Transfer.

The people and their exposure

• Edward Machnik: mesothelioma

Who	Work	Where	When	Products
Edward Machnik	machinist's mate (the Navy); military service	U.S.S. Vogelgesang	1949-1952

The defendants

• General Electric Co. (manufacturer)
• Viad Corp. (manufacturer)
• Buffalo Pumps Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Feldman v. Owens-Illinois (In re Brooklyn Navy Yard Asbestos Litigation) (U.S. Court of Appeals, Second Circuit, 1992). The Second Circuit affirmed the plaintiffs' verdicts on causation, failure to warn and the dismissal of the design defect claim, but reversed the prejudgment interest awards on survival-action and future damages. It set out a method for combining the settlement set-off with the cap on non-economic damages, remanded the question of aggregating set-offs, and remanded the Barone pain-and-suffering award for a new trial. It affirmed the defense verdict against Feldman.
• Grispo v. Eagle-Picher Indus. (In re Joint E. & S. Dist. New York Asbestos Lit.) (U.S. Court of Appeals, Second Circuit, 1990). The Second Circuit affirmed the denial of Eagle-Picher's summary judgment motion on the military contractor defense, vacated the grant of summary judgment for the workers striking that defense, and remanded for further proceedings.
• Nesbiet v. General Electric Co. (U.S. District Court, Southern District of New York, 2005). The court denied Nesbiet's motion to remand to state court, holding that General Electric properly removed the case under the federal officer removal statute, and ruled GE's stay motion moot.

Later decisions citing this one

17 later decisions in our library cite this one:

• Monlux v. 3M Company (U.S. District Court, Western District of Washington, 2024). The district court granted Elaine Monlux's motion to remand and sent the case back to King County Superior Court, ruling that Foster Wheeler had not shown that federal officer removal was proper.
• Donohue v. CBS Corporation (U.S. District Court, Southern District of New York, 2017). The district court denied the Donohues' motion to remand the case to New York state court, allowing removal by CBS Corporation (Westinghouse) and Crane Co. under the federal officer removal statute to stand.
• Dougherty v. AO Smith Corporation (U.S. District Court, District of Delaware, 2014). The magistrate judge recommended granting the Doughertys' motion to remand to Delaware Superior Court, finding Crane's federal officer removal proper but declining supplemental jurisdiction after Plaintiffs disclaimed all Navy and federal-site claims.
• Willis v. Buffalo Pumps, Inc. (U.S. District Court, Southern District of California, 2013). The district court denied the plaintiffs' motions to remand, holding the defendant pump and equipment makers properly removed the cases under the federal officer removal statute because they raised a colorable government contractor defense.
• Brantley v. Borg-Warner Morse Tec, Inc. (U.S. District Court, Southern District of California, 2012). The court denied Gerald Brantley's motion to remand, holding that Westinghouse and its co-defendants properly removed the case under the federal officer removal statute.
• Corley v. Long-Lewis, Inc. (U.S. District Court, Northern District of Alabama, 2010). The magistrate judge denied the Corleys' motion to remand, holding that Garlock and Owens-Illinois properly removed on federal enclave grounds and CBS/Westinghouse on federal officer grounds, so the case stayed in federal court.
• Hagen v. Benjamin Foster Co. (U.S. District Court, Eastern District of Pennsylvania, 2010). The court denied plaintiff Donna Hagen's motion to remand to New Jersey state court, holding that defendants Foster Wheeler and General Electric properly removed under the federal officer removal statute.
• Holdren v. Buffalo Pumps, Inc. (U.S. District Court, District of Massachusetts, 2009). The court granted the plaintiffs' motion to remand to state court, finding that the Navy-contractor defendants (Buffalo Pumps, Foster Wheeler, Viad, GE and Elliott Turbo Machinery) had not shown a colorable federal contractor defense or a causal connection to support federal officer removal.
• Kirks v. General Electric Company (U.S. District Court, District of Delaware, 2009). The district court denied the plaintiffs' motions to remand both cases to Delaware state court, holding that General Electric had established federal officer removal jurisdiction.
• Kotecki v. Buffalo Pumps, Inc. (U.S. District Court, District of Connecticut, 2009). The court denied the Koteckis' motion to remand, keeping the case in federal court because Buffalo Pumps and General Electric showed a colorable federal officer (military contractor) defense.
• Murphy v. General Electric Company (U.S. District Court, District of Connecticut, 2009). The court denied the plaintiffs' motion to remand to state court, holding that General Electric and Buffalo Pumps could remove the case under the federal officer removal statute.
• Carroll v. Buffalo Pumps, Inc. (U.S. District Court, District of Connecticut, 2008). The district court denied the Carrolls' motion to remand, holding that defendants Viad, General Electric and Buffalo Pumps properly removed the case under the federal officer removal statute.
• Hilbert v. McDonnell Douglas Corp. (U.S. District Court, District of Massachusetts, 2008). The court granted the Hilberts' motion to remand and sent the whole case back to Massachusetts state court, finding that McDonnell Douglas, Northrop Grumman and Raytheon had not shown a colorable federal contractor defense; the removing defendants lost.
• O'connell v. Foster Wheeler Energy Corp. (U.S. District Court, District of Massachusetts, 2008). The court denied O'Connell's motion to remand, holding that Buffalo Pumps properly removed the case under the federal officer removal statute because it showed a colorable military contractor defense.
• Pantalone v. Aurora Pump Co. (U.S. District Court, District of Connecticut, 2008). The court held that Buffalo Pumps satisfied the federal-officer removal requirements but removed too late under § 1446(b), so it granted Margaret Pantalone's motion to remand to Connecticut state court.
• Contois v. Able Industries Inc. (U.S. District Court, District of Connecticut, 2007). The court denied the executrix's motion to remand, holding that Buffalo Pumps' removal was timely and that Buffalo Pumps and General Electric satisfied federal officer removal requirements, so the case stays in federal court.
• Sweredoski v. Alfa Laval, Inc. (Rhode Island Superior Court, 2013). The court denied plaintiff Rosie Sweredoski's motion for summary judgment against Crane Co. on its government contractor defense, finding triable fact issues on all three prongs for both the design defect and failure-to-warn claims.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

506 F.Supp.2d 99 (2007)

Edward MACHNIK et al., Plaintiffs

v.

BUFFALO PUMPS INC., etal., Defendants.

Civil Action No. 3:07cv357 (CFD).

September 17, 2007.

United States District Court, D. Connecticut.

[*100] [*101] Brian P. Kenney, Christopher Meisenkothen, Early, Ludwick & Sweeney, New Haven, CT, for PlaintiffS. Geoffrey Lane Squitiero, Maher & Murtha, Bridgeport, CT, James R. Oswald, Adler, Pollock & Sheehan, Providence, RI, Dan E. Labelle, Halloran & Sage, Westport, CT, Timothy E. Kapshandy, Sidley Austin LLP, Chicago, IL, James M. Celentano, Halloran & Sage, Hartford, CT, for Defendants.

RULING ON MOTION TO REMAND

DRONEY, District Judge.

The plaintiffs, Edward Machnik ("Machnik") and his wife, Elizabeth Machnik, brought this action against General Electric Co. ("GE"), Viad Corp. ("Viad"), and several other defendants in Connecticut Superior Court on February 7, 2007. Machnik was diagnosed with malignant mesothelioma in December, 2006. Machnik served as a machinist's mate in the U.S. Navy from 1949 to 1952, where he worked in the engine room and boiler room of the U.S.S. Vogelgesang. His complaint alleges that he developed mesothelioma because he was exposed to asbestos-containing products manufactured by the defendants during his Navy service. Machnik claims [*102] that the defendants violated their duty under Connecticut law to warn him of the dangers of asbestos exposure. Viad filed a notice of removal pursuant to 28 U.S.C. § 1442(a)(1), which GE joined, on March 7, 2007. Machnik now seeks to remand the case back to state court. For the following reasons, Machnik's motion is denied.

A. Legal Standard for Removal under 28 U.S.C. § 1442(a)(1)

Section 1442(a) of Title 28 of the United States Code provides for the removal of any civil action against "the United States or any agency thereof or any officer (or any other person acting under that officer) of the United States. . . sued. . . for any act under color of such office." 28 U.S.C. § 1442(a)(1). Removal of cases against government contractors is proper under this statute where three requirements are met. Specifically, the government contractor must prove (1) that it has a colorable federal defense, (2) that it acted under the direction of a federal officer or agency, and (3) that a causal nexus exists between the plaintiffs' claims and "what the [contractor] has done under asserted official authority." Mesa v. California, 489 U.S. 121, 131, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989); Nesbiet v. Gen. Elec. Co., 399 F.Supp.2d 205, 210 (S.D.N.Y. 2005). The statute creates an exception to the well-pleaded complaint rule; even if a plaintiffs complaint does not, on its own, raise a federal question, federal jurisdiction is proper where a defendant establishes these three requirements. Jefferson County, Alabama v. Acker, 527 U.S. 423, 430-31, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999). Although the defendant seeking removal bears the burden of proving federal jurisdiction through these requirements, "the policy [underlying the statute] favoring removal should not be frustrated by a narrow, grudging interpretation" of the statute. Arizona v. Manypenny, 451 U.S. 232, 242, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981) (citation and quotation marks omitted); see Jefferson County, 527 U.S. at 431, 119 S.Ct. 2069 ("We. . . do not require the officer virtually to win his case before he can have it removed." (quotation marks omitted)).

B. Analysis

1. Colorable Federal Defense

GE claims that it is immune from state tort liability on the ground that it was serving as a military contractor at the time of Machnik's claimed exposure to asbestos. This "military contractor defense," if established, presents a colorable federal

defense in both design defect and failure to warn cases. Boyle v. United Techs., Corp., 487 U.S. 500, 512, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988); Grispo v. Eagle-Picher Indus., Inc., 897 F.2d 626, 629 (2d Cir.1990). "The military contractor's defense is premised on federal displacement of state law where state law significantly conflicts with the federal interest embodied in the federal government's sovereign immunity for discretionary functions." In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 839 (2d Cir.1992). To show such a conflict, and hence to assert this federal defense, a defendant must prove three elements: (1) "the United States approved reasonably precise specifications" for the military equipment supplied by the contractor; (2) "the equipment conformed to those specifications; and (3) the [military contractor] warned the United States about the dangers in the use of the equipment that were known to the [contractor] but not to the United States." Boyle, 487 U.S. at 512, 108 S.Ct. 2510. In a failure to warn case, to defendant must establish the first prong of this test by showing that "whatever warnings accompanied a product resulted from a determination of a government official, and thus that the Government itself `dictated' the content of the warnings [*103] meant to accompany the product." Grispo, 897 F.2d at 631. In accordance with the policy underlying the removal statute, the defendant need not fully prove its federal defense on the merits to justify removal.[1] Nesbiet, 399 F.Supp.2d at 210-11 (citing Jefferson County, 527 U.S. at 431, 119 S.Ct. 2069). The Court finds that GE has established a colorable military contractor defense. To prove the "reasonably precise specifications" requirement, GE must show that the government actively participated in creating the specifications for the products and warning labels GE supplied, and that the government imposed these specifications on GE. In re Agent Orange Product Liab. Litig., 304 F.Supp.2d 404, 434 (E.D.N.Y.2004). GE satisfied this burden through the Affidavit of Ben J. Lehman, Rear Admiral U.S. Navy, Retired, which avers that the Navy exercised complete control over every aspect of all equipment supplied by contractors, including warnings, and that any materials or equipment supplied that was inconsistent with the Navy's specifications would have been rejected. Affidavit of Ben J. Lehman, October 6, 2004, at ¶¶ 3-5 ("Lehman Aff."). Lehman, who worked as a Ship Superintendent and Planning Officer at the Brooklyn Navy Yard between 1942 and 1944, an engineer at GE from 1946 to 1948, and as a Ship Superintendent at the San Francisco Naval Shipyard from 1950 to 1952, has personal knowledge of the contracts that existed between the Navy and its contractors during the period of Machnik's Navy service. Lehman Aff., at ¶ 1. At this preliminary stage, Lehman's affidavit sufficiently establishes that the U.S. Navy imposed "reasonably precise specifications" on GE, both in the design of the equipment it supplied and in the content of the accompanying written materials, including warnings. See Nesbiet, 399 F.Supp.2d at 207-09 (finding Lehman possessed sufficient personal knowledge of military contracts during 1940s to establish first prong of colorable federal contractor defense).

To prove the second prong of the military contractor defense, GE must show that the products it supplied to the Navy conformed to the Navy's specifications. In re Agent Orange, 304 F.Supp.2d at 434. "As a matter of law, satisfaction of [this element] of the government contractor defense requires accurate conformity with specifications or government approval of the delivered product." Id. at 435. Essentially, GE must demonstrate that the navy "received exactly what it sought." Lewis v. Babcock Indus., Inc., 985 F.2d 83, 89 (2d Cir.1993). Again, the Lehman affidavit satisfies this element; the affidavit states that any materials supplied by a contractor that were not entirely consistent with the Navy's extensive specifications probably would have been rejected. Lehman Aff., at ¶ 3. From this, the inference can be drawn that if Machnik was exposed to GE's products while on board a Navy ship, that equipment fully complied with the Navy's detailed specifications concerning both design and warnings. See Lehman Aff., at ¶ 5 ("In short, the Navy [*104] dictated every aspect of the design, manufacture, installation, overhaul, written documentation and warnings associated with its ships and did not permit deviation from any of its contractors.").

The third prong of the military contractor defense requires GE to show that, at the time of Machnik's alleged exposure to asbestos, GE did not fail to warn the Navy of any dangers associated with asbestos that were known to GE but not to the Navy. Boyle, 487 U.S. at 512, 108 S.Ct. 2510. GE satisfies this element through the affidavit of Lawrence Stilwell Betts, which establishes that the Navy "was well aware of the health hazards associated with the use of asbestos from the early 1920s" through a review of available military documents and other relevant publications. Affidavit of Lawrence Stilwell Betts, March 21, 2007, at ¶¶ 27-33 ("Betts Aff."). Further, Betts's affidavit provides a basis for concluding that the Navy, and not military contractors, was in the best position to know of the health hazards related to asbestos. Id.; see Nesbiet, 399 F.Supp.2d at 209, 212 (discussing Betts affidavit and finding it sufficient to establish third prong of colorable federal defense).

In light of the above evidence, GE has established a colorable federal defense.

2. Requirement that GE "Acted Under" a Federal Officer or Agency

To meet this requirement, GE must show that the Navy controlled the warnings it could provide for its products, and that this Navy control prevented GE from fulfilling its state law duty to warn of the hazards related to asbestos exposure. Nesbiet, 399 F.Supp.2d at 212. As discussed above, GE sufficiently established, for purposes of this motion, that the Navy's specifications precluded GE from including warnings with the equipment it supplied. In turn, this establishes that GE did not provide warnings about asbestos because it was acting under the direction of the Navy. Id. ("GE's proffer has established that the Navy determined the nature of warnings to be included on the turbines. . . . This evidence in turn raises an inference that GE's alleged failure to warn of the dangers of asbestos resulted from the Navy's prohibition of any such warning."). Machnik fails to rebut GE's evidence on this point. Although Machnik provided a set of military specifications ("milspecs") for the service and use manuals for electrical and mechanical equipment used aboard Navy ships, these milspecs are insufficient for two reasons. First, they are dated June 6, 1961, several years after Machnik concluded his Navy service. Second, the language used in the milspecs does not support Machnik's argument that "GE could have included warnings on the equipment it supplied.[2] Rather, the milspecs require that warnings concerning equipment must be kept to a minimum and should relate to proper operating procedures. See Military Specification, Manual, Service (Instruction Books) for Shipboard Electrical and Mechanical Equipment, MIL-M-15071D (SHIPS), at § 3.3.6 (June 6, 1961); Betts Aff., at ¶ 32. Accordingly, GE has sufficiently established that it "acted under" the direction of the Navy when it supplied the Navy with equipment without warnings about asbestos exposure.[3]

[*105] 3. "Causal Nexus" Requirement

Finally, to show the existence of a "causal nexus," GE must show that Machnik's claims "[arose] out of the acts done by [the defendant] under color of federal authority." Mesa, 489 U.S. at 131-32, 109 S.Ct. 959. Specifically, GE must show that the "government controlled which warnings [GE] was allowed to provide. . . and thereby precluded the warnings at issue from being given." Densberger v. United Techs. Corp., 297 F.3d 66, 75 (2d Cir.2002). As discussed above, the Lehman affidavit proffers that contractors supplying equipment to the Navy were required to fully comply with all of the detailed specifications set by the Navy, including warnings. Lehman Aff., at ¶¶ 3-5. Machnik provided no evidence to rebut the inference that GE did not include warnings on its equipment because it aimed to comply with the Navy's specifications. Hence, GE sufficiently established the "causal nexus" between its actions and Machnik's claims for purposes of this motion.

C. Conclusion

The Court finds that GE met its burden to justify federal officer removal of this suit from the Connecticut Superior Court. Accordingly, Machnik's motion to remand [docket # 22] is denied, and the case will remain in federal court.[4] [1] Machnik's argument that the suit must be remanded because his complaint disclaimed any federal claims is unavailing for this reason. Subject matter jurisdiction under § 1442(a)(1) is based upon a federal defense, regardless of whether the plaintiff's cause of action rests on state law. 28 U.S.C. § 1442(a)(1). Machnik's claims against GE are based only upon his exposure to asbestos-containing products supplied by GE to the U.S. Navy. Because of this, once GE meets the threshold showing to assert a federal contractor defense, even artful pleading around any federal claims cannot defeat federal subject matter jurisdiction. See Frawley v. Gen. Elec. Co., No. 06 Civ. 15395, 2007 WL 656857, at * 4 (S.D.N.Y. Mar. 1, 2007) (holding that the plaintiff must plead around all claims against federal contractors to avoid federal contractor jurisdiction).

[2] The Court notes that another district court within this Circuit, faced with similar evidence from plaintiffs suing GE on the same theory of liability, also reached this conclusion. Nesbiet, 399 F.Supp.2d at 208-09.

[3] The Court recognizes that another Court in this district, in Fortier v. Ampco-Pittsburgh Corp., Case No. 07-cv-5, 2007 WL 735703, addressed similar issues and nearly identical facts on a motion to remand the case to state court. Although that Court granted the plaintiffs' motion to remand, this Court respectfully disagrees with his decision. GE was also a defendant in that case, and, avers here that it submitted the same evidence of a federal defense in both cases. Fortier, however, did not analyze GE's evidence concerning the specifications the Navy issued to its contractors. Rather, that ruling focused on evidence of the Uniform Labeling Program ("ULP"), which governed the labeling of hazardous chemicals by Naval personnel, not outside product manufacturers. The Court finds the affidavits and other evidence, including milspecs, to be determinative here.

[4] Since the Court finds that GE presented an adequate showing to justify removal pursuant' to 28 U.S.C. § 1441(a), and because the Court may exert supplemental jurisdiction over all remaining claims and defendants in the suit under 28 U.S.C. § 1367(a), the Court does not address defendant Viad's arguments in opposition to Machnik's motion to remand.

Sources

• The opinion on Google Scholar
• Connecticut asbestos laws
• Connecticut asbestos exposure sites