Court Finds Case Timely Removed within Thirty Days of Production of Plaintiffs’ Products Disclosure List

U.S. District Court for the Northern District of Ohio, Eastern Division, August 13, 2021

The plaintiffs, Lee Kallsen and his wife, Mary Lou, filed a complaint in the Cuyahoga County Court of Common Pleas against various defendants alleging Mr. Kallsen was exposed to the defendants’ asbestos and asbestos-containing materials, which caused him to develop mesothelioma. Specifically, he alleges he was exposed to asbestos and asbestos-containing materials while aboard the U.S.S Hornet.

One week prior to Mr. Kallsen’s deposition, the plaintiffs tendered a preliminary product identification disclosure which listed the types of Westinghouse products which were alleged to have exposed the plaintiff to asbestos. The plaintiffs allege Westinghouse is a manufacturer of turbines that were present during Mr. Kallsen’s dates of service. Mr. Kallsen testified during his deposition that he was present while others performed unspecified repair work on the turbines.

Defendant Westinghouse removed this matter to the United States District Court for the Northern District of Ohio. Westinghouse’s position was that it was acting under an officer or agency of the United States when it manufactured the turbines. The plaintiffs filed a motion to remand arguing Westinghouse’s removal was not timely filed within the thirty-day limitation from which a defendant is served. Westinghouse contends removal was proper because Westinghouse removed the case within thirty days after the plaintiffs clearly disclosed information that revealed its grounds for removal.

In analyzing whether removal was proper, the court looked to whether Westinghouse’s notice of removal was timely. The plaintiffs contend Westinghouse knew or was able to ascertain it possessed the government contractor defense well before Westinghouse filed its notice of removal. However, the court disagreed with this and was not persuaded that Westinghouse could reasonably ascertain the case was removable. In the complaint, the plaintiffs only alleged Mr. Kallsen was exposed to asbestos-containing materials. The plaintiffs failed to identify the specific Westinghouse product to which the plaintiff was exposed. Westinghouse did not receive information identifying the U.S.S Hornet as a jobsite until the exchange of discovery. The court found this negated the plaintiffs’ contention.

Based on this, the court found Westinghouse’s notice of removal was within the 30-day limitation after two possible points in time: the plaintiffs’ preliminary product identification disclosure and Mr. Kallsen’s deposition. The court found the product disclosure triggered the thirty-day removal period. As such, Westinghouse’s notice of removal was timely filed. The court denied the plaintiff’s motion to remand to state court.

Read the full decision here.