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Donson v. Air & Liquid Systems, Inc.

United States District Court, M.D. Florida, Tampa Division

January 9, 2017

RALPH DONSON, Plaintiff,
v.
AIR AND LIQUID SYSTEMS, INC., et al., Defendants.

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE

         Ralph 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) to remand.

         1. Colorable Federal Defense

         To 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 (1988).

         Dorse 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.

         The 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. 1992).

         Other 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. 2014).

         Crane 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], ” states that:

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 ...

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