MARGUERITE MACQUEEN, Individually and as the Surviving Spouse of David MacQueen, Deceased, Plaintiffs,
UNION CARBIDE CORPORATION, et al., Defendants.
REPORT AND RECOMMENDATION
CHRISTOPHER J. BURKE, UNITED STATES MAGISTRATE JUDGE
This matter arises out of an asbestos-related personal injury action filed by Plaintiff Marguerite MacQueen ("Plaintiff), individually and as the surviving spouse of the late David MacQueen, against numerous Defendants in the Superior Court of Delaware, in and for New Castle County ("Superior Court"). (D.I. 1, ex. 1 (hereinafter, "Complaint")) Defendants Crane Company ("Crane") and Elliott Company ("Elliott") (collectively, "Removing Defendants") filed notices of removal, arguing, as the basis for removal, that any actions they took relating to Plaintiffs claims came when they were acting under an officer or agency of the United States within the meaning of the federal officer removal statute, 28 U.S.C. § 1442(a)(1) ("Section 1442"). (D.I. I) Presently pending before the Court is Plaintiffs motion to remand this action back to the Superior Court, on the grounds that Removing Defendants did not meet the requirements for removal under Section 1442 (the "motion to remand" or "Motion"). (D.I. 35) For the reasons that follow, I recommend that the motion to remand be DENIED.
On March 28, 2013, Plaintiff filed this lawsuit in the Superior Court. (See Complaint) In the Complaint, Plaintiff asserted state law causes of action based on David MacQueen's ("MacQueen") alleged exposure to asbestos and asbestos-containing products while employed (1) by the United States Navy as a welder/machinist aboard the U.S.S. Randolph and the U.S.S. Independence from 1956 to 1960; and (2) as a salesman by Union Carbide Corporation from 1961 to 1980. (Complaint at ¶ 11; D.I. 36, ex. 2) On May 10, 2013, Removing Defendants filed their respective notices of removal in this Court.
On June 7, 2013, Plaintiff filed the motion to remand. (D.I. 35) The Motion was fully briefed as of July 12, 2013, (D.I. 92), and on August 9, 2013, oral argument was heard regarding the Motion, (D.I. 190 (hereinafter, "Tr.")). The parties thereafter submitted several supplemental letters to apprise the Court of recent opinions issued with respect to purportedly similar motions to remand, which the Court has reviewed. (D.I. 141, 146, 188, 189) The Motion is now ripe for decision.
II. STANDARD OF REVIEW
The federal officer removal statute permits removal of a state court action to federal court when, inter alia, such action is brought against "[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office[.]" 28 U.S.C. § 1442(a)(1). In order to remove pursuant to Section 1442(a)(1), a defendant such as those here must establish the following: (1) it is a "person" within the meaning of the statute; (2) the plaintiffs claims are based upon the defendant's conduct "acting under" a federal office; (3) it raises a colorable federal defense; and (4) there is a causal nexus between the claims and the conduct performed under color of a federal office. Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d Cir. 1998); Kirks v. Gen. Elec. Co., 654 F.Supp.2d 220, 223 (D. Del. 2009).
Unlike the case with the general removal statute, 28 U.S.C. § 1441, which courts must construe strictly in favor of remand, the federal officer removal statute is to be construed broadly, in order to effectuate Congress' intent that federal officers have access to a federal forum in which they can litigate the validity of their defense of official immunity. Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994); In re Asbestos Prods. Liab. Litig. (No. VI), 770 F.Supp.2d 736, 741 (E.D. Pa. 2011); Walkup v. Air & Liquid Sys. Corp., Civil Action No. 12-1635-SLR-SRF, 2013 WL 5448623, at *1 & n.2 (D. Del. Sept. 26, 2013), report and recommendation adopted, 2013 WL 5798701 (D. Del. Oct. 24, 2013). To that end, the United States Supreme Court has explained that "the right of removal is absolute for conduct performed under color of federal office, and has insisted that the policy favoring removal 'should not be frustrated by a narrow, grudging interpretation of [Section] 1442(a)(1).'" Arizona v. Manypenny, 451 U.S. 232, 242 (1981) (citation omitted). Nevertheless, it remains well-settled that the party removing an action to federal court bears the burden of proving that removal is appropriate. Kirks, 654 F.Supp.2d at 222 (citing Boyer v. Snap-On Tools Corp., 913 F.2d 108, 111 (3d Cir. 1990)).
In this case, the parties dispute whether Removing Defendants have met their burden with respect to the third and fourth elements of the federal officer removal statute. (D.I. 40 at 8; D.I. 92 at 11) That is, Plaintiff argues that Removing Defendants have failed to establish (1) a colorable federal defense; and (2) the requisite causal nexus between Plaintiffs claims and the conduct performed under color of a federal office. (D.I. 40 at 8; D.I. 92 at 11) Yet the "causal nexus requirement is closely related to evidence supporting a colorable federal defense where a government contractor is the defendant because both elements require the defendant [to] show that it acted at the federal government's command." Hagen v. Benjamin Foster Co., 739 F.Supp.2d 770, 785 (E.D. Pa. 2010) (internal quotation marks and citation omitted). Thus, since that analysis "is essentially the same [as that associated with] the colorable defense requirement[, ]" id. (internal quotation marks and citation omitted), the dispute here really turns on whether Removing Defendants can demonstrate a colorable federal defense under Section 1442. The Court will therefore take that issue up first.
A. Colorable Federal Defense
The applicable federal defense raised by Removing Defendants here is the government contractor defense. (See Civil Action No. 13-831, D.I. 1 at ¶11; Civil Action No. 13-835, D.I. 1 at ¶¶ 11-12) This defense is applicable to both failure to warn and design defect claims, and for purposes of this motion to remand, the Court will focus its analysis on the former type of claim. See, e.g., Walkup, 2013 WL 5448623, at *2. The Court will first examine the legal standard governing the government contractor defense. Then, the Court will apply Crane's evidence to the elements of the defense.
1. Background on Government Contractor Defense
The Supreme Court established the framework of the government contractor defense in Boyle v. United Techs. Corp., 487 U.S. 500 (1988). In Boyle, the Supreme Court explained that procurement of military equipment involves "uniquely federal interests" that, in certain circumstances, shields a government contractor from liability for a plaintiffs product liability claims. Id. at 504, 507 (internal quotation marks and citation omitted). The federal interest in such cases is manifest in the fact that "[t]he imposition of liability on Government contractors will directly affect the terms of Government contracts [in that] either the contractor will decline to manufacture the design specified by the Government, or it will raise its price." Id. at 507.
In Boyle, the Supreme Court held that a government contractor establishes the defense at issue where: "(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." Id. at 512. While the Boyle Court applied the government contractor defense to a design defect products liability claim, federal courts have subsequently recognized the applicability of the defense to state law failure to warn claims. See, e.g., Walkup, 2013 WL 5448623, at *2 (citing cases); Hagen, 739 F.Supp.2d at 783.
However, because design defect and failure to warn claims have theoretical and practical differences, in the failure to warn context, courts have recast these elements a bit. See Leite v. Crane Co., 868 F.Supp.2d 1023, 1029 (D. Haw. 2012); Hagen, 739 F.Supp.2d at 783; see also Joyner v. A.C.&R Insulation Co., Civil No. CCB-12-2294, 2013 WL 877125, at *7 (D. Md. Mar. 7, 2013). In a failure to warn case, the defendant must show that: "(1) the United States exercised its discretion and approved the warnings, if any; (2) the contractor provided warnings that conformed to the approved warnings; and (3) the contractor warned the United States of the dangers in the equipment's use about which the contractor knew, but the United States did not." Hagen, 739 F.Supp.2d at 783; see also Leite, 868 F.Supp.2d at 1029.
Resolution of this motion turns on whether Crane's evidence in support of the government contractor defense (specifically, affidavits and declarations from experts that were either formerly in the Navy or who have worked with the Navy) sufficiently establishes a colorable defense. Plaintiff argues that Crane's evidence fails to do so because it is purely in the form of inadmissible speculative opinion, offered by defense-hired experts. (D.I. 40 at 2; Tr. at 19 (explaining that "the essence of our position ... is that it's speculation, particularly speculative expert testimony is inadmissible" and thus cannot be relied upon in making out a colorable federal defense); see also Tr. at 59) In support of this argument, Plaintiff relies on a series ...