Civil Practice – Contractor Defense May Work in Asbestos Cases

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Ripley v. Foster Wheeler LLC (Lawyers Weekly No. 001-149-16 , 9 pp.) (Thacker, J.) No. 15-1918, Nov. 1, 2016; USDC at Newport News, Va. (Allen, J.) 4th Cir.

Holding: The 4th Circuit reverses a district court order remanding to Virginia state court an asbestos products liability suit removed to federal court pursuant to the federal officer removal statute; the district court erred in remanding the case under precedent denying the government contractor defense in failure to warn cases, as the Eastern District of Virginia is “clearly an outlier” in so ruling.

A former boilermaker at Norfolk Naval Shipyard, who was diagnosed with malignant mesothelioma in 2014, sued in Newport News state court alleging failure to warn of asbestos hazards in products manufactured for the Navy by Foster Wheeler LLC and Foster Wheeler Energy Corp.

The federal officer removal statute allows a defendant to remove a case from state to federal court if the defendant establishes 1) it is a federal officer or a person acting under that officer; 2) a “colorable federal defense”; and 3) the suit is for an act under color of office, which requires a causal nexus between the charged conduct and asserted official authority.

The government contractor defense only applies if a contractor’s obligations to the government conflict with state law such that the contractor may not comply with both. We must decide whether the Supreme Court’s pronouncement in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), holding the government contractor defense applicable in design defect cases, likewise shields defendants against failure to warn claims and thus provides a basis for federal jurisdiction pursuant to 28 U.S.C. § 1442.

In this case, given the “thousands of asbestos cases that have preceded” it in the Eastern District of Virginia, the district court determined that the government contractor defense is not available in failure to warn cases.

However, the Eastern District of Virginia is clearly an outlier in this regard. No other jurisdiction in the country to have considered the issue is in accord with the Eastern District of Virginia. Indeed, the 2nd, 5th, 6th, 7th, 9th and 11th Circuits have all applied the defense to failure to warn cases. Although we have not yet had the opportunity to consider this issue directly, we have recognized that these decisions of our sister circuits are reasoned soundly. The multidistrict litigation court for asbestos products also has applied the defense and allowed removal on this basis in failure to warn cases. The rationales identified in Boyle remain applicable in failure to warn cases.

Given the weight of opposing precedent and the rationales supporting the defense, we now join the chorus and hold that the government contractor defense is available in failure to warn cases. We leave it to the district court to decide whether appellants have presented sufficient proof to warrant removal pursuant to § 1442.

Reversed and remanded.