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From Products Liability Law Daily, September 27, 2013

Boiler manufacturer’s federal contractor defense satisfied Federal Officer Removal requirements

By Kathleen Bianco, J.D.

Removal of a product liability action to federal court was warranted under the Federal Officer Removal statute, a federal magistrate in Delaware concluded in a report recommending that plaintiffs’ motion to remand be denied (Walkup v. Air & Liquid Systems Corp., September 26, 2013, Fallon, S.).

Background. Larry and Betty Walkup filed a personal injury action against Foster Wheeler and other defendants in Delaware state court. The complaint alleged that Larry Walkup was exposed to asbestos through personal construction work from 1954 to 1959, personal automotive work from 1958 to 1980, and employment as an engineman in the U.S. Navy from 1959 to 1962, as a laborer and engineer at National Electric Coil/Copper Industries from 1963 to 1980, as an industrial engineer at West Virginia Armature Co. from 1980 to 1981, and as a plant manager at Baker Mine Service from 1981 to 1985.

Foster Wheeler removed the action to federal district court pursuant to the Federal Officer Removal statute. The Walkups filed a motion to remand, along with evidentiary objections to the affidavits of the defense witnesses submitted by Foster Wheeler.

Federal Officer Removal jurisdiction. The boiler manufacturer was able to establish removal jurisdiction under the Federal Officer Removal statute by demonstrating that it was a “person” within the meaning of the statute, that it had been “acting under” a federal office, had a colorable federal defense, and there was a causal connection between the plaintiffs’ claims and the conduct performed under color of a federal office.

In support of its contention that it had been acting under a federal office and was able to assert a colorable federal defense, the boiler manufacturer asserted that its asbestos-containing products were designed and manufactured “pursuant to and in accordance with specifications mandated by the United States government or its agencies” and that the agencies' knowledge of possible health hazards from use of these products was equal to or greater than that of the manufacturer.

The boiler manufacturer submitted three affidavits demonstrating that the plaintiffs’ claims were performed pursuant to direct orders or comprehensive and detailed specifications issued by the office of the Navy and its officer. These specifications included precise instructions over the design, manufacture, and accompanying safety manuals and labeling of the products supplied by the manufacturer. Additionally, they precluded the manufacturer from affixing any type of unauthorized warning or caution statement on the equipment. A failure to conform to the Navy’s specification would have resulted in the Navy’s refusal of the equipment.

Finally, the manufacturer was able to establish a causal connection between its conduct and the plaintiffs’ claims. The design defect claim arose from the use of asbestos in its boilers that had been required by the Navy’s specifications. The failure-to-warn claim arose from the Navy’s alleged involvement in determining what warnings could be included with, or placed upon, the boilers manufactured by the defendant. Based on this evidence, the manufacturer was able to establish Federal Officer Removal jurisdiction. Thus, the plaintiffs’ motion to remand should be denied, according to the federal magistrate.

The case number is 12-1635-SLR-SRF.

Attorneys: Kara Anne Hager (Napoli Bern Ripka Shkolnik & Associates LLP) for Walkup. Beth E. Valocchi (Swartz Campbell LLC) for Foster Wheeler. Barbara Anne Fruehauf (Wilbraham Lawler & Buba) for Air & Liquid Systems Corporation. Paul A. Bradley (Maron Marvel Bradley & Anderson LLC) for Aurora Pump Company. Matthew P. Donelson (Eckert Seamans Cherin & Mellott, LLC) for BorgWarner Morse Tec Incorporated. Joel M. Doner (Eckert Seamans Cherin & Mellott, LLC) for BW/IP International.

Companies: Foster Wheeler; Air & Liquid Systems Corporation; Aurora Pump Company; Aurora Pump Company; BorgWarner Morse Tec Incorporated; BW/IP International

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