Defendant Establishes Colorable Defense Under Federal Law, Plaintiff’s Motion to Remand Denied

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The plaintiff filed this action in Madison County, Illinois, alleging injury due to asbestos exposure. The defendants, CBS and General Electric, removed the action to federal court under federal officer removal statute 28 U.S.C. 1442. The plaintiff filed a motion to remand, which the court denied. The court cited the United States Supreme Court in listing the three elements required to establish a colorable defense to the use-of-asbestos claim: (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; (3) the supplier warned the United States about the dangers in the use of the product that were known to the supplier but not known to the United States. CBS submitted 90 pages of military specifications showing that the military approved reasonably precise specifications for the turbines made by CBS. These specifications also state that equipment not meeting the minimum requirements shall be rejected. To satisfy the third element, medical reports show that the Navy recognized health hazards associated with asbestos.

Further, although the plaintiff asserted CBS had no colorable defense for the alleged failure to warn about asbestos dangers, the plaintiff does have a colorable defense to the use-of-asbestos claim. The court stated:  “If CBS has a colorable defense as to either claim, the entire case is removable.”

Read the full decision here.