U.S. District Court for the District of Maryland, September 10, 2021
In 2019, plaintiff Robert Murphy was diagnosed with mesothelioma. After being diagnosed, the plaintiff sued the defendants, claiming that his mesothelioma was caused by his exposure to asbestos at the Key Highway Shipyard where the plaintiff worked in 1973 and 1974.
With respect to Hopeman Brothers, Inc., the plaintiff alleged that he was exposed to asbestos-containing dust from Micarta paneling which was cut, manipulated and applied by employees of Hopeman Brothers. The plaintiff also gave deposition testimony that his work at the Key Highway Shipyard more generally involved working on oil tankers and some passenger ships but not on American navy ships. The plaintiff’s supervisor testified that he and the plaintiff had worked down at Fort McHenry yard on the Westwind for the Coast Guard, including working on the anodes on the side of the ship. Based on this testimony, defendant Hopeman Brothers, Inc. removed the case to federal court, relying on the federal officer removal statute, 28 U.S.C. § 1442(a)(1). The plaintiff moved for remand.
In the motion for remand, the plaintiff argued that Hopeman cannot establish the third element required for federal officer removal, which is the existence of a causal nexus between the charged conduct and asserted official authority because the defendant failed to establish a causal nexus between the plaintiff’s claims and the defendant’s federal defense. In opposition, Hopeman framed the issue in terms of prong two, that is whether Hopeman raised a “colorable federal defense” to the plaintiff’s claims.
To prevail on such a defense, a defendant must show (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States. Here the court found the defendant raised a colorable government contractor defense with respect to an asbestos exposure the plaintiff suffered while working on the Coast Guard vessel.
In regards to the plaintiff’s argument that the defendant failed to establish a causal nexus, the court noted the standard has shifted to only require a connection or association between the act in question and the federal office. When looking at the record, the court found the evidence developed did not establish that the claims in the plaintiff’s complaint related to the Coast Guard’s directive to use asbestos products aboard the ship. Nor did the court find the defendant could use the plaintiff’s supervisor’s testimony alone to sufficiently show the plaintiff was exposed to asbestos from Hopeman products used during the time that he worked aboard the Westwind. The court also found the plaintiff’s testimony did not provide a link between the plaintiff’s time working on the Westwind and the claimed asbestos exposure. As such, the court found the evidence did not allow it to bear the burden of establishing that removal was proper and granted the plaintiff’s motion for remand.