Viale v. Air & Liquid Systems Corp. (N.D. Cal., Mar. 11, 2019)

Our plain-English summary of Viale v. Air & Liquid Systems Corp. (U.S. District Court, Northern District of California, March 11, 2019).

Debbie Viale, the surviving spouse of Ronald Viale, and their daughter Amber Jacob sued several companies in California state court. They alleged that Mr. Viale was exposed to asbestos products while serving in the U.S. Navy as a steamfitter/firefighter from 1968 to 1970, that he developed mesothelioma, and that he died in July 2018. Their eight state-law claims included allegations that the defendants failed to warn him or the Navy about asbestos hazards. Foster Wheeler removed the case to federal court under the federal officer removal statute, and Buffalo Pumps' successor, Air & Liquid Systems, joined. The plaintiffs asked the court to send the case back to state court, arguing the removing defendants lacked evidence of a causal nexus or a colorable federal defense. The court denied the motion. Relying on Leite v. Crane, it found the evidence nearly the same as in that case. Navy officers' declarations said the Navy controlled warnings and did not require asbestos warnings. A historian's declaration said the Navy knew as much about asbestos hazards as its contractors. The defendants also showed their equipment met Navy specifications. The court found a colorable government contractor defense and a causal nexus, so removal was proper.

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, Northern District of California
• Decided: March 11, 2019
• Docket: Case No. 19-cv-00038-MMC
• Stage: Jurisdiction, venue or removal
• State: California

Outcome. The court denied the plaintiffs' motion to remand, holding that Foster Wheeler and Air & Liquid Systems (successor to Buffalo Pumps) properly removed the case under the federal officer removal statute.

What the court held. A defendant sued under state law over asbestos warnings can remove under 28 U.S.C. § 1442(a)(1) by showing it is a covered person, that a causal nexus exists between the claims and acts done at a federal officer's direction, and that it has a colorable federal defense such as the government contractor defense.

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

The people and their exposure

• Ronald Viale: mesothelioma; died

Who	Work	Where	When	Products
Ronald Viale	steamfitter/firefighter (the Navy); military service		1968 to 1970

The defendants

• Foster Wheeler LLC (manufacturer)
• Air & Liquid Systems Corporation, successor by merger to Buffalo Pumps, Inc. (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Viale v. Air & Liquid Systems Corp. (May 21, 2019). The court granted plaintiffs' motion for leave to file a Second Amended Complaint over Foster Wheeler's objection, and directed plaintiffs to file it by May 31, 2019.
• Viale v. Air & Liquid Systems Corp. (July 3, 2019). The court denied the plaintiffs' renewed motion to remand, keeping the case in federal court against Foster Wheeler, Buffalo Pumps (Air & Liquid Systems), Calaveras, GE and the other defendants.
• Viale v. Air & Liquid Systems Corp. (July 6, 2020). The district court granted Foster Wheeler LLC's motion for summary judgment against the plaintiffs, the widow and daughter of Ronald Viale, because they lacked admissible evidence that Viale was exposed to a Foster Wheeler product.
• Viale v. Air & Liquid Systems Corp. (July 6, 2020). The court granted Union Carbide's motion for summary judgment against plaintiffs Debbie Viale and Amber Jacobs because they offered no evidence that Ronald Viale was exposed to a product containing asbestos supplied by Union Carbide.
• Viale v. Air & Liquid Systems Corp. (July 7, 2020). The court granted Foster Wheeler's motion for summary judgment against plaintiffs Debbie Viale and Amber Jacobs because they lacked admissible evidence that Ronald Viale was exposed to a Foster Wheeler boiler.
• Viale v. Air & Liquid Systems Corp. (July 7, 2020). The court granted SPX Cooling Technologies' motion for summary judgment against the plaintiffs (the wife and daughter of Ronald Viale) because they lacked evidence that Viale was exposed to asbestos from a Marley cooling tower.
• Viale v. Air & Liquid Systems Corp. (July 14, 2020). The court granted Exxon Mobil's motion for summary judgment against the wife and daughter of Ronald Viale, finding they lacked evidence that Exxon was negligent as a premises owner or hirer of contractors at the Benicia Refinery.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Leite v. Crane Co. (U.S. Court of Appeals, Ninth Circuit, 2014). The Ninth Circuit affirmed the district courts' denial of the plaintiffs' motions to remand, holding Crane Co. had shown by a preponderance of the evidence a colorable government contractor defense and a causal nexus supporting federal officer removal.

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.

DEBBIE L. VIALE, etal., Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORP, etal., Defendants.

Case No. 19-cv-00038-MMC.

March 11, 2019.

United States District Court, N.D. California.

Debbie L. Viale, Individually and as Personal Representative of the Estate of Ronald Viale, Deceased & Amber Jacobs, Plaintiffs, represented by Joshua Samuel Paul, The Paul Law Firm, Bryon Josselyn, The Paul Law Firm, Nectaria Belantis, The Paul Law Firm & Peter Christopher Beirne, The Paul Law Firm.

Air & Liquid Systems Corp, sued individually and as successor-in-interest to Buffalo Pumps, Inc., Defendant, represented by James G. Scadden, Gordon Rees Scully Mansukhani LLP.

Allied Packing & Supply, Defendant, represented by Theodore Thomas Cordery, Imai Tadlock Keeney & Cordery, LLP. AMEC Foster Wheeler USA Corporation, formerly known as Foster Wheeler Corporation, Defendant, represented by Charles S. Park, Hugo Parker, LLP & Edward R. Hugo, Hugo Parker, LLP.

A.W. Chesterton Company, Defendant, represented by Anthony Sinclair Miller, Manning Gross + Massenburg LLP & Stephen Lindsay Jenkins, Manning Gross + MassenburgLLP.

CBS Corporation, successor by merger to CBS Corporation, a Pennsylvania corporation, Defendant, represented by Kevin Douglas Jamison, Kevin Jamison Law, PC, Erin Nicole Empting, Kevin Jamison Law, PC & Justin Finnell Cronin, Kevin Jamison Law, PC.

Calaveras Asbestos Ltd, Defendant, represented by Jennifer M. McCormick, Foley & Mansfield, PLLP, Andrew Livingston Sharp, Foley & Mansfield PLLP & Gary David Sharp, Foley and Mansfield.

Calaveras Natural Resources Inc, (sued individually and as successor-in-interest to and alter-ego to Calaveras Asbestos Ltd), Defendant, represented by Jennifer M. McCormick, Foley & Mansfield, PLLP & Gary David Sharp, Foley and Mansfield.

Certainteed Corporation & Metalclad Insulation Corporation, Defendants, represented by Kathy Mai Huynh, Dentons US LLP, Lisa Lurline Oberg, Dentons US LLP & Michelle Christian Jackson, Dentons US LLP.

Chevron U.S.A. Inc. & Union Oil Company, Defendants, represented by Arpi Galfayan, Prindle, Goetz, Barnes and Reinholtz LLP, Andy Justin Goetz, Prindle, Goetz, Barnes and Reinholtz LLP, Michael Howard Schuck, Prindle, Goetz, Barnes and Reinholtz LLP & Thomas Alan Steig, Prindle, Goetz, Barnes & Reinholtz LLP.

Elementis Chemicals Inc, formerly known as Hacros Chemical Inc sii to Harrisons & Crossfields (Pacific) Inc, Defendant, represented by Jennifer Denise Fitzpatrick, Dehay & Elliston, LLP.

Exxonmobile Corporation, Defendant, represented by Susan A. Ogdie, DeHay & Elliston LLP.

General Electric Company, Defendant, represented by Derek S. Johnson, WFBM, LLP, Charles T. Sheldon, WFBM, LLP, Emily Elizabeth Anselmo, WFBM, LLP & Katherine Paige Gardiner, WFBM, LLP.

Goulds Pumps LLC, formerly known as Goulds Pumps Inc., Grinnell LLC, doing business as Grinnell Corp & Johnson Controls Inc, successor in interest to Grinnell LLC d/b/a Grinnell Corpr, Defendants, represented by Amy Jo Talarico, Morgan Lewis & Bockius, LLP, Joseph Duffy, Morgan, Lewis & Bockius LLP & Michael Quinn Eagan, Jr., Morgan Lewis and Bockius LLP.

Keenan Properties Inc., formerly known as Keenan Pipe & Supply, Defendant, represented by W. Joseph Gunter, CMBG3 Law LLC.

SPX Cooling Technologies, Inc., successor in interest to Marley Cooling Tower, Defendant, represented by Michael Joseph Estrada, Vasques Estrada Conway LLP.

Sterling Fluid Systems USA LLC, doing business as Peerless Pump Company, Indian Head Inc., Defendant, represented by Marissa Kacy Gittler, Pond North LLP, Frank D. Pond, Pond North LLP & Timothy Carter Pieper, Pond North LLP. Trane USA, formerly known as America Standard Companies sii to American Blower Company, Defendant, represented by Arpi Galfayan, Prindle, Goetz, Barnes and Reinholtz LLP, Carla Lynn Crochet, Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholz LLP, Jeremy David Milbrodt, Prindle, Amaro, Goetz, Hillyard, Barnes & Reinholtz LLP & Thomas Alan Steig, Prindle, Goetz, Barnes & Reinholtz LLP.

Union Carbide Corporation, Defendant, represented by Florence Anne McClain, Lewis Brisbois Bisgaard & Smith LLP. Foster Wheeler LLC, Defendant, represented by Charles S. Park, Hugo Parker, LLP.

Anheuser-Busch, LLC, Defendant, represented by Jonathan J. Kim, Alston Bird LLP, Cristyn Nicole Chadwick, Alston & Bird, LLP, Nell Gibson Moley, Alston & Bird LLP & Robert D. Phillips, Jr., Alston & Bird.

ORDER DENYING PLAINTIFFS' MOTION FOR REMAND TO STATE COURT

Re: Dkt. No. 72

MAXINE M. CHESNEY, District Judge.

Before the Court is plaintiffs Debbie L. Viale and Amber Jacob's Motion for Remand to State Court, filed January 29, 2019, and amended January 30, 2019. Defendants Foster Wheeler LLC ("Foster Wheeler") and Air & Liquid Systems Corporation, successor by merger to Buffalo Pumps, Inc. ("Buffalo") (collectively, "Removing Defendants"), have filed separate oppositions, to which plaintiffs have replied. Having read and considered the papers filed in support of and in opposition to the motion, the Court rules as follows.[1]

In the operative complaint, the Amended Complaint ("AC") filed November 7, 2018, in state court, plaintiffs allege decedent Ronald Viale "used, handled, or was otherwise exposed to asbestos and asbestos containing products provided by or manufactured by the defendants," including when he was employed by the United States Navy as a "steamfitter/firefighter" from 1968 to 1970, that he "contracted the terminal cancer, mesothelioma" as a result of such exposure, and that, in July 2018, he "died as a result." (See AC, Introduction at 4:5-10; Ex. A at 1:2-4, 6-7.)[2] Based on said allegations, plaintiffs assert eight causes of action arising under state law, including claims alleging Removing Defendants failed to warn said decedent or the Navy about the hazards posed by asbestos. (See, e.g., AC ¶¶ 7, 10, 29, 35, 41-42.) On January 3, 2019, Foster Wheeler, citing 28 U.S.C. § 1442(a)(1), removed the action to this District; on January 9, 2019, Buffalo filed a notice of joinder in the removal.

Pursuant to § 1442(a)(1), a civil action filed in state court against the United States, or "any person acting under" an officer of the United States, may be removed to federal court. See 28 U.S.C. § 1442(a)(1). To invoke § 1442(a)(1), a defendant "must show that (1) it is a person within the meaning of the statute,[3] (2) a causal nexus exists between plaintiffs' claims and the actions [the defendant] took pursuant to a federal officer's direction, and (3) it has a colorable federal defense to plaintiffs' claims." See Leite v. Crane, 749 F.3d 1117, 1120 (9th Cir. 2014). In their motion to remand, plaintiffs contend Removing Defendants lack evidence to show a causal nexus exists or that they have a colorable federal defense. For the reasons set forth below, the Court finds the requisite showing has been made.

At the outset, the Court, having reviewed the evidence submitted by Removing Defendants,[4] finds such evidence shows each said defendant has a colorable federal defense to plaintiffs' failure to warn claims, specifically, the "government contractor defense." See id. at 1123. Indeed, the evidence submitted is materially indistinguishable from that found sufficient by the Ninth Circuit in Leite v. Crane, in which, as here, plaintiffs alleged a removing defendant sold equipment containing asbestos to the Navy and failed to provide warnings about hazards posed by asbestos. See id. at 1119-20.

In particular, as did the defendant in Leite, see id. at 1123-24, Removing Defendants have offered declarations by Rear Admiral Roger B. Horne, Jr. and Rear Admiral David P. Sargent, Jr., each of whom states the Navy issued detailed specifications governing the form and content of all warnings, that such specifications did not require warnings about asbestos hazards, and that contractors were not allowed to include warnings beyond those specifically required and approved by the Navy. (See Horne Decl., filed February 12, 2019, ¶¶ 18, 26-31; Horne Aff. (Ex. 2 to Buffalo's Joinder), filed January 9, 2019, ¶¶ 12, 14, 24; Sargent Decl., filed February 12, 2019, ¶¶ 24-25, 27, 54-56, 58, 63-64.) Next, Removing Defendants rely on a declaration by Samuel Forman, M.D., who, as the Ninth Circuit observed in Leite, has "conducted extensive research on the extent of the Navy's knowledge of asbestos hazards," see Leite, 749 F.3d at 1120, and who, as he did in Leite, see id. at 1124, opines here that the Navy at all times knew at least as much about asbestos hazards as its contractors (see Forman Decl., filed February 22, 2019, ¶¶ 26-27, 30-31, 36-56, 64, 93-94, 112, 114; see also id. ¶ 69 (averring "in [his] research, [he has] not located a single instance in which the Navy, during the 1930s through the 1960s, instructed or permitted a supplier of engineering equipment to a vessel or facility to affix or provide any asbestos-related warning with its equipment")).[5] In addition, as did the defendant in Leite, each Removing Defendant has offered evidence that the equipment it provided to the Navy was in compliance with the Navy's specifications. See Leite, 749 F.3d at 1124; (Schroppe Aff. (Ex. B to Notice of Removal) ¶¶ 1-2, 21-22; Kraft Aff. (Ex. 3 to Buffalo's Joinder) ¶¶ 1-3, 8, 13-14). Lastly, Removing Defendants have shown a causal nexus between plaintiffs' claims and the acts Removing Defendants state they took pursuant to a federal officer's direction. As discussed above, the alleged acts that form the basis of plaintiffs' failure to warn claims against Removing Defendants, specifically, a failure to warn the decedent or the Navy about asbestos hazards, is the act Removing Defendants contend they performed under the direction of the Navy. See Leite, 749 F.3d at 1124 (holding, in assessing whether causal nexus exists, court "credit[s] the defendant's theory of the case"). Accordingly, Removing Defendants have shown the instant action was properly removed.

CONCLUSION

For the reasons stated above, plaintiffs' motion for remand is hereby DENIED.

IT IS SO ORDERED.

[1] By order filed March 1, 2019, the Court took the matter under submission.

[2] Plaintiffs are, respectively, the decedent's surviving spouse and daughter.

[3] Plaintiffs do not dispute that Removing Defendants are "persons" within the meaning of § 1442(a)(1). [4] Plaintiffs have not offered evidence in support of the instant motion.

[5] Plaintiffs' objections to the above-referenced declarations are hereby OVERRULED. (See Pls.' Reply at 7:26-28 (asserting "each declarant lacks personal knowledge, their statements lack foundation, and are speculative").) As the Ninth Circuit found in Leite, and as this Court finds in the instant action, the declarations by the Rear Admirals are "supported by an adequate foundation based on [their] knowledge of Navy procurement policies," see id. at 1223, and Dr. Forman's opinions are "supported by an adequate foundation based on his years of historical research," see id. at 1224.

Sources

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