Plaintiffs Successfully Disclaim Naval Exposure, Divesting Federal Court of Subject Matter Jurisdiction

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U.S. District Court for the Western District of Pennsylvania, October 1, 2020

Plaintiffs David Martincic and Merl Williams alleged that Mr. Martincic was diagnosed with mesothelioma as a result of his exposure to asbestos brought home on the clothing, body, and person of several family members who worked at American Cyanamid in Bridgeville, Pennsylvania from 1946 through the 1970s. The plaintiffs filed suit against 173 defendants, including Foster Wheeler, LLC in the Court of Common Pleas of Allegheny County, Pennsylvania. In June 2020, Foster Wheeler removed the case to U.S. District Court for the Western District of Pennsylvania based on the federal officer removal statute (28 U.S.C. § 1442(a)(1)). The plaintiffs subsequently moved to remand the case back to state court, arguing that there was no basis for federal jurisdiction, because although Mr. Martincic had served in the United States Navy from 1966 to 1969, the plaintiffs did not allege that he was exposed to asbestos during his service. Specifically, paragraph 180 of the plaintiffs’ complaint stated, “Plaintiff is not bringing any claims in the instant complaint for exposure to asbestos-containing products during his service in the United States Navy.”

In opposition to the plaintiffs’ motion to remand, Foster Wheeler argued that the only plausible exposure that could be attributable to it would have occurred within the scope of Mr. Martincic’s naval service, and therefore, since the federal contractor defense was plausible, removal was appropriate. The court was thus called upon to decide if the plaintiffs’ purported disclaimer of claims arising from asbestos exposure during Mr. Martincic’s naval service was sufficient to preclude the governor contractor defense, and thus divest the court of subject matter jurisdiction.

To begin, the court noted that federal district courts review disclaimers under the good faith test. For instance, in Dougherty v. A.O. Smith Corp., the U.S. District Court for the District of Delaware found the plaintiff’s disclaimer ambiguous, because he had asserted injuries as a result of exposure to asbestos while serving in the navy in the preceding paragraphs of his complaint. 2014 U.S. dist. LEXIS 96290 (D. Del. July 16, 2014). The court thus found the disclaimer to be in bad faith, or an “artful pleading to circumvent federal officer removal.” Id. However, once the case was removed to federal court by defendants, the plaintiffs in Dougherty included a post-removal disclaimer in their brief for remand, stating that they “hereby waive all claims…stemming from Mr. Dougherty’s asbestos exposure from any federal government job site, and aboard Navy ships or any other military vessel.” Id. On these facts, the court found the express post-removal disclaimer effective, and remanded the case back to state court.

Here, the court found that the disclaimer in the plaintiffs’ complaint, as quoted above, was unequivocal, as the only reference to Mr. Martincic’s naval service was in the disclaimer itself. However, the court further held that even if the disclaimer included in the complaint was ambiguous, here, like in Dougherty, the plaintiffs had included a post-removal disclaimer in their brief for remand, stating that they “have expressly stated that they are b[r]inging no claims for any asbestos exposure suffered by Mr. Martincic during his naval career.” This post-removal disclaimer, the court found, was also sufficient. Therefore, the court held that the plaintiffs’ disclaimer effectively divested the court of subject matter jurisdiction, and remand to state court was appropriate.