Removal Upheld on Government Contractor Defense for Turbine and Gasket Manufacturers U.S. District Court for the Southern District of New York, November 27, 2017

NEW YORK — Plaintiffs Michael and Anne Donohue brought suit against multiple defendants including Westinghouse (CBS) and Crane Co. alleging Mr. Donohue contracted mesothelioma from exposure to asbestos containing products for which the defendants were liable. Mr. Donohue claimed exposure from his time working in the Navy and with the New York Fire Department (NYFD).

CBS removed the case one day after the plaintiff’s trial deposition. Crane quickly joined the removal. Both asserted the government contractor defense which shields liability in certain instances. The plaintiffs moved to remand. In order to invoke the defense, the defendants must show that 1) the defendant is a federal agency or officer, or acted under the control of one 2) the defendant has a colorable federal defense and 3) the defendant can establish a causal connection between the conduct in question and the federal directive. The court began its analysis and reviewed the first prong. First, the court noted that corporate entities are considered persons under the statute. The court also concluded that both CBS and Crane had acted under the directions of Navy specifications. As for the second prong, the court stated that the government contractor defense burdens the defendant in a failure to warn case to show that 1) the government control over the nature of the product warning 2) compliance with the Government’s directions and 3) communication to the government of all product dangers known to the defendant but no to the government. Here, the plaintiff contended that the defendants’ papers were bereft of evidence that could form a colorable government contractor defense. Specifically, the plaintiffs honed in on the fact that the defendants’ affidavits submitted with the removal did not discuss the specific ships Mr. Donohoe served upon or the asbestos equipment that purportedly caused his injury. The court stated that at this “juncture” the question is whether defendants have a colorable defense and not whether the defense would prevail on the merits. As for the final prong, the court stated that CBS and Crane’s affidavits were strong enough to put forward the issue as to whether there was a “causal nexus between sale of Defendants’ equipment to the Navy pursuant to its specifications and Plaintiff’s alleged injuries.” The plaintiffs took the position that the defendants are required to do more than offer evidence to assert the casual nexus. However, the court noted that that is not the case based on the decision in Nesbiet. Consequently, the motion to remand was denied.

Read the full decision here.

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