The U.S. Court of Appeals for the Fourth Circuit issued an opinion in two consolidated appeals upholding the granting of summary judgment to defendants CBS Corporation, General Electric Corporation (GE), MCIC (local insulation contractor), Paramount Packing & Rubber Company, Phelps Packing & Rubber Company, SB Decking, Inc., Wallace & Gale Asbestos Settlement Trust (local insulation contractor), and Foster-Wheeler Energy Corporation. The two consolidated cases involved alleged exposures to dust asbestos-containing products manufactured, supplied, or installed by the defendants at Baltimore, Maryland area shipyards.
On appeal, the appellants argued that the U.S. District Court for Maryland applied the incorrect legal standard to determine whether, under Maryland law, the appellants’ injuries were proximately caused by the Appellees’ asbestos containing products. Appellants position was that the longstanding “frequency, regularity, and proximity” test laid out in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-63 (4th Cir. 1986) (subsequently adopted by Maryland Courts, and repeatedly reaffirmed by the Maryland Court of Appeals for over the last twenty years) was inapplicable in cases of direct-rather than circumstantial-evidence cases. The court rejected this argument, noting that this same argument was previously rejected by the Maryland Court of Appeals.
The Fourth Circuit also rejected the appellants argument that even under the “frequency, regularity, and proximity” test that there was sufficient exposure to the Appellees’ asbestos-containing products to survive summary judgment. The Fourth Circuit disagreed stating that “our review of the record convinces us that Appellants did not make a sufficient showing of exposure to survive summary judgment.”
Finally, the Fourth Circuit affirmed the District Court’s denial of the motion to remand for lack of federal-officer jurisdiction. The court explained that “we conclude that GE satisfied all three requirements for federal-officer removal” because 1) GE is a “person acting under” a federal officer because it was acting under a valid government contract at all times relevant to the litigation; 2) GE raised a colorable federal defense to Appellants’ claims, namely, that GE was protected as a government contractor; and 3) GE established a causal connection between the charged conduct and its asserted official authority — Appellants charge GE with negligence and failure to warn related to GE’s production and installation of turbines and generators, done pursuant to contracts with the Navy.