Plaintiffs’ Motion to Remand Granted Based on Claim Disclaimer in Action against Boiler Manufacturer

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U.S. District Court for the Middle District of Pennsylvania, August 2, 2022

Plaintiffs Kathryn and Earl Heilner filed a lawsuit against Foster Wheeler and 71 other defendants in the Dauphin County Court of Common Pleas to recover damages Earl allegedly sustained due to asbestos exposure, which caused him to develop lung cancer. The complaint asserted claims for product liability, breach of implied warranty, negligence, fraudulent concealment of the harmful nature of asbestos, conspiracy, and loss of consortium. Specifically, the plaintiffs alleged that Earl was exposed to asbestos while employed as an insulator and asbestos technician from approximately 1969 to 2001, and while serving in the United States Navy from 1960 through 1964, aboard the USS Wasp and USS Lake Champlain. Notably, the plaintiffs did not implicate any particular defendant or product in Earl’s alleged Navy exposure. 

On April 28, 2022, Foster Wheeler filed a notice of removal to the U.S. District Court for the Middle District of Pennsylvania. In support of such notice, Foster Wheeler stated that it intended to raise the “federal officer” defense pursuant to 28 U.S.C. § 1442(a)(1) to the plaintiffs’ failure to warn negligence claim. In addition, Foster Wheeler submitted that it manufactured boilers for use by the Navy, including some aboard the USS Wasp. In response, the plaintiffs filed a motion for remand on May 23, 2022, arguing that they waive any claim against Foster Wheeler for Earl’s alleged exposure in the U.S. Navy, and that Foster Wheeler cannot present a “federal officer” defense because the complaint does not include any facts implicating Foster Wheeler in the U.S. Navy exposure. Foster Wheeler contended that the plaintiffs could not “disclaim any particular asbestos exposure based on the indivisible nature of [Earl’s] injury.” 

Pursuant to 28 U.S.C. § 1442(a)(1), “A defendant can remove a case to federal court if it asserts that a claim is brought against ‘[t]he United States or an agency thereof or any officers (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office.’” 

At the outset, the court noted that Third Circuit precedent permits claim disclaimers in asbestos cases. Therefore, the plaintiffs were allowed to waive or disclaim any claim they had against Foster Wheeler with respect to Earl’s alleged asbestos exposure in the U.S. Navy. The court noted a lack of “judicial manipulation or forum shopping” and reiterated that there was “never a clear claim against Foster Wheeler for [Earl’s] alleged exposure in the Navy.” Following acceptance of the plaintiffs’ claim disclaimer, the court noted there was “no longer any claim that could serve as a jurisdictional hook” and thus granted the motion to remand. 

Read the full decision here