United States District Court, M.D. Florida, Tampa Division
D. MERRYDAY UNITED STATES DISTRICT JUDGE
Donson sues (Doc. 2) Crane Co. for negligence, strict
liability, and fraudulent inducement. Crane removed the
action under 28 U.S.C. § 1442(a)(1), which allows the
removal of an action against “[t]he United States or
any agency thereof or any officer (or any person acting under
that officer) of the United States or of any agency thereof,
in an official or individual capacity, for or relating to any
act under color of such office.” Donson moves (Doc. 71)
Colorable Federal Defense
remove under Section 1442(a)(1) the defendant must qualify as
a “person” under the statute, must act under the
direction of a federal officer at the time the defendant
engaged in the allegedly tortious act, and must advance a
“colorable federal defense.” Also, a causal
connection must appear “between what the officer has
done under asserted official authority and the state
prosecution.” Mesa v. California, 489 U.S.
121, 124-25, 129-32 (1989). Donson argues that Crane fails to
demonstrate a colorable federal defense. (Doc. 71-1 at 2)
Crane asserts the federal contractor defense, which is
available if “(1) the United States approved reasonably
precise specifications; (2) the equipment conformed to those
specifications; and (3) the supplier warned the United States
about the dangers in the use of the equipment that were known
to the supplier but not to the United States.”
Boyle v. United Tech. Corp., 487 U.S. 500, 512
v. Eagle-Picher Indus. Inc., 898 F.2d 1487, 1489 (11th
Cir. 1990), extends Boyle, which concerns a design
defect, to a failure-to-warn:
[In a] ‘failure to warn' case, Boyle's
two-pronged analysis guides the court. The first prong, that
the case concern an area of uniquely federal interest, is
similarly satisfied in this failure to warn case. As in
Boyle's design defect case, the procurement of
asbestos . . . for naval ships is undeniably an area of
uniquely federal interest. Having satisfied this threshold
requirement, the court must address the more difficult
question of whether a significant conflict exists between an
identifiable federal policy and the operation of state law.
three-part Boyle inquiry “elaborates the
‘significant conflict' prong of the test and the
scope of the displacement of state law.” Glassco v.
Miller Equipment Co., Inc., 966 F.2d 641, 642 (11th Cir.
circuits directly address a failure to warn claim:
a defendant may not defeat a state failure-to-warn claim
simply by establishing the elements of the government
contractor defense with respect to a plaintiff's design
defect claim . . . when state law would otherwise impose
liability for a failure to warn, that law can be displaced
when the contractor can show that: (1) the government
exercised its discretion and approved certain warnings; (2)
the contractor provided the warnings required by the
government; (3) the contractor warned the government about
dangers in the equipment's use that were known to the
contractor but not to the government.
Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003-04
(7th Cir. 1996).
To establish [the government contractor] defense in the
context of plaintiffs' failure-to-warn claims, [the
defendant will] ultimately have to prove that (1) the Navy
exercised its discretion and approved certain warnings for
[the defendant's] products, (2) [the defendant] provided
the warnings required by the Navy, and (3) [the defendant]
warned the Navy about any asbestos hazards that were known to
[the defendant] but not to the Navy. See Getz v. Boeing
Co., 654 F.3d 852, 866 (9th Cir.2011); accord Tate
v. Boeing Helicopters, 140 F.3d 654, 658-60 (6th
Cir.1998); Oliver v. Oshkosh Truck Corp., 96 F.3d
992, 1003-04 (7th Cir.1996).
Leite v. Crane Co., 749 F.3d 1117, 1123 (9th Cir.
asserts a colorable federal defense. Anthony D. Pantaleoni,
Vice-President of Environment, Health and Safety for Crane,
states that “[t]he manufacture of equipment for use on
Navy vessels was governed by an extensive set of federal
standards and specifications . . . . All equipment by Crane
Co. to the Navy was built in accordance with the Navy
specifications.” (Doc. 1 at 77) Rear Admiral David P.
Sargent Jr., who “had overall responsibility for all
matters relating to both the technical and programmatic
details of [the Navy's ships], ” states that
“[t]he Navy maintained the responsibility to develop .
. . standards for the manufacture and supply of equipment
used in . . . ships. Specifications . . . were drafted,
approved and maintained by the Navy . . . only the Navy could
make changes or modifications to those specifications.”
(Doc. 1-2 at 39) Crane's equipment purportedly conformed
to the Navy's specifications. Rear Admiral Samuel A.
Forman, “a licensed professional engineer (mechanical)
with extensive operational experience in [ships], ”
the Navy's programs in these areas [industrial hygiene
and occupational health] have paralleled, and at times led .
. . asbestos-related issues in particular. The Navy's
knowledge in the areas of asbestos and associated health
conditions has been quite complete when compared to available
knowledge over time, and at least by the early 1940s, the
navy had become a ...