The decedent in this case died of mesothelioma and his representatives filed an action in state court. Defendant Foster Wheeler removed this case to federal court under the officer removal statute. The plaintiff moved to remand, which the court granted.
The plaintiffs alleged exposure during the decedent’s work at Bethlehem Steel Sparrows Point Shipyard, while working as a boiler maker from 1948-1970s. Foster Wheeler removed on the basis that it was acting under an officer or agency of the United States, because it made boilers for Naval ships pursuant to naval specifications. The plaintiffs argued the removal was untimely, and Foster Wheeler failed to meet the requirements for a federal officer. The plaintiffs claimed the boilers were made in the shipyard under the direction of Foster Wheeler, and were only installed on the ships after they were made. Further, the plaintiffs argued the Navy did not restrict Foster Wheeler’s ability to warn its employees in the shipyard.
The court assumed the removal was timely but remanded due to lack of jurisdiction. To invoke the federal contractor defense against a failure-to-warn products liability claim, defendants must show: (1) the government exercised discretion and approved certain warnings for products; (2) warnings provided by the contractor conformed to federal specifications, and (3) contractors warned the government about dangers known to the contractor but not to the government. Foster Wheeler provided two affidavits to support its argument that the Navy provided Foster Wheeler with precise specifications, including all warnings related to the boilers. However, no evidence was provided to show the Navy exercised any discretion over Foster Wheeler’s ability to warn its workers in the shipyard. The court stated: “The Navy could not have been exercising its discretion where, as here, there is no evidence that it considered warnings during Foster Wheeler’s manufacturing process. Because Foster Wheeler did not suggest warnings to the government, it is impossible that warnings in the shipyard’s boiler shop were ‘considered by a Government officer, and not merely by the contractor itself.’” Therefore, Foster Wheeler did not establish a colorable federal defense. Further, since no federal officer provided any direction regarding whether to warn workers in Foster Wheeler’s boiler shop, Foster Wheeler did not establish a causal nexus between their actions and the plaintiffs’ claims sufficient to satisfy the requirements of this defense.