Shipyard Defendants Establish a Colorable Federal Defense in Mesothelioma Case; Remand Denied United States District Court, D. New Jersey. July 31, 2018

NEW JERSEY — The plaintiff filed suit on behalf of her decedent Robert Fish alleging he developed mesothelioma as a result of exposure to asbestos products of the defendants. Specifically, the plaintiff believed Mr. Fish was exposed to joiner panels while working onboard the USS Savannah for New York Shipbuilding and Drydock Company. The dfendants removed the matter to federal court asserting the federal officer removal statute. The plaintiff moved to remand.

The court began its review by noting the standard for federal officer removal. The statute permits removal when a person was acting under the color of office of the federal government. The plaintiff immediately took exception to the “acting under” portion of the statute. The plaintiff conceded that the defendants were persons for purposes of the test. However, the plaintiff argued that the Good opinion required the defendants to show they were “acting under” the direct and detailed control of a federal officer. The court disagreed and pointed out that the Good opinion was more than 10 years old and that the Papp opinion was controlling. In fact, the court stated that Papp was analogous with this case. The plaintiff also argued that Defendants did not establish any specifications or contracts related to the USS Savannah. Although the court agreed that the defendants had not yet produced such material it pointed out that the defendants had submitted a maritime report from Dr. Fisher on this issue. The plaintiff also argued that the defendants did not illustrate that they were “acting under” a federal agency with respect to the allegations of the complaint. Specifically, the defendants did not put forth evidence that the government prohibited them from providing warnings to the plaintiff. The court was not persuaded and stated that defendants had already established the “acting under” requirement similar to the standard in Papp. Moreover, the defendants argued that construction occurred under the “direction and control” of the government and that the government chose the asbestos containing products used therein. As far as removal, the court noted that the defendants only need show a “colorable” federal defense at this stage rather than prove all of it as suggested by the plaintiff. Accordingly, the motion to remand was denied.

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