Citrano v. John Crane-Houdaille, Inc.

1 F.Supp.3d 459

Dennis C. CITRANO, et al., Plaintiffs,

v.JOHN CRANE–HOUDAILLE, INC., et al., Defendants.

Civil No. WDQ–13–2158.

United States District Court,

D. Maryland,

Northern Division.

Signed Feb. 26, 2014.

Filed Feb. 27, 2014.

Gary J. Ignatowski, Charles Albert Candon, James Edward Garland, James Steven Zavakos, Law Offices of Peter G. Angelos, Baltimore, MD, for Plaintiffs.

Peter Allan Woolson, Kathryn T. Kozero, P.A. Woolson PA, David W. Allen, Goodell DeVries Leech and Dann LLP, Clare Marie Maisano, Philip A. Kulinski, Evert Weathersby Houff, David J. Quigg, Donald S. Meringer, Meringer Zois and Quigg LLC, Alicia N. Ritchie, Leianne S. McEvoy, Douglas B. Pfeiffer, Miles and Stockbridge PC, Joel D. Newport, Moore and Jackson LLC, Thurman W. Zollicoffer, Jr., Danielle Grilli Marcus, Peter Woodward Sheehan, Whiteford Taylor and Preston LLP, Thomas Peter Bernier, Benjamin D. Whetzel, Segal McCambridge Singer and Mahoney Ltd., Patrick C. Smith, R. Thomas Radcliffe, Jr., Dehay and Elliston LLP, Baltimore, MD, Louis E. Grenzer, Jr., Bodie Dolina Smith and Hobbs PC, Theodore F. Roberts, Brendan Henderson Fitzpatrick, Scott Mason Richmond, Venable LLP, Keith R. Truffer, Royston Mueller McLean and Reid LLP, Towson, MD, Katherine S. Duyer, Gavett Datt and Barish PC, Rockville, MD, Richard Damon Albert, Steptoe and Johnson LLP, Washington, DC, Neil Joseph MacDonald, MacDonald Law Group, LLC, Beltsville, MD, Jennifer M. Alexander, Jason A. Steinhardt, Brassel Alexander & Rice LLC, Annapolis, MD, for Defendants.

MEMORANDUM OPINION

WILLIAM D. QUARLES, JR., District Judge.

Dennis C. Citrano, now deceased,¹ sued General Electric Company (“GE”) and others ² for strict liability and other state law tort claims. ECF No. 2. GE removed to this Court. ECF No. 1. Pending is the plaintiffs' motion to remand or to sever and remand the claims of the non-removing defendants. ECF No. 78. No hearing is necessary. Local Rule 105.6 (D.Md.2011). For the following reasons, the motion will be denied.

I. Background ³

On March 17, 2011 and September 11, 2012,⁴ the plaintiffs sued GE and the non-removing defendants in the Circuit Court for Baltimore City for injuries ⁵ resulting from Citrano's exposure to asbestos from 1960 to the late 1970s while working as an electrician. See ECF No. 2–1 at 2, 5. They asserted the following state law claims: (1) strict liability; (2) breach of warranty; (3) negligence; (4) fraud; (5) conspiracy; (6) market share liability; and (7) wrongful death. ECF No. 2 at 9.

On June 26, 2013, the plaintiffs filed answers to the defendants' joint interrogatories. ECF No. 3 at 2. In one response, the plaintiffs note that “Mr. Citrano was potentially exposed to the asbestos products for which the direct Defendants are responsible from approximately the 1960's to the 1970's.” Id. at 3. A different interrogatory asked the plaintiffs to provide identifying information “[f]or each job at which you allege [Citrano was] exposed ... to asbestos-containing products manufactured, distributed or sold by this Defendant.” Id. at 39. Among several other jobs, the plaintiffs stated that Citrano worked from 1968 to 1971 in Baltimore, Maryland as an electrician second class at the Bethlehem Steel Sparrows Point Shipyard in the U.S.S. Santa Barbara engine rooms. Id. at 40–41. The plaintiffs asserted that Citrano was exposed to asbestos at this job from “[p]ipecovering, block, and cement supplied, installed, and/or manufactured by McCormick Asbestos Company, Wallace & Gale; asbestos panels supplied, installed and/or manufactured by International Paper Company, CBS Corporation, Hopeman Brothers.” Id.

Twenty-nine days later, on July 25, 2013, GE removed to this Court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1).⁶See ECF No. 1 at 1–2. In its notice of removal, GE states that “[t]hese discovery responses” indicated, for the first time, that the plaintiff was asserting “a claim against GE for Mr. Citrano's alleged exposure to [asbestos in] GE equipment or other products during the time he worked aboard a U.S. Navy ship.” See id. at 3. GE notes that the products it manufactured under contract with the Navy, including marine steam turbines, “were subject to strict Navy control and supervision over all aspects of the products' design and manufacture, including ... the presence of asbestos in such products and the existence of any warnings affixed to or issued in connection with the turbines or other products.” Id. at 3–4.

To support its notice of removal, GE included several declarations which discuss the nature of its relationship with the Navy. David Hobson, a GE employee from 1969 until 1996, declared that he “held various product support and managerial positions” at GE “involving steam turbines intended for installation aboard U.S. Navy vessels.” ECF No. 1–6 at 3. Throughout his time at GE, he “had frequent and extensive business dealings” with Navy employees “in connection with the Navy's purchase and use of” GE turbines. Id. at 3–4. He gained “personal knowledge of the great extent of Navy control over GE's design and manufacture of Navy turbines” through first-hand experience as a GE employee and through outside “education, training and experience accumulated throughout [his] career.” Id. at 4.

Hobson declared that GE's turbines were designed, tested, and manufactured under the close control and precise specifications of the Navy. See id. at 7–11. GE's Navy turbines were not manufactured using any material containing asbestos—the turbines were “bare metal” with only a coat of paint. See id. at 12. Thermal materials that may have contained asbestos were supplied by separate manufacturers and installed in the turbines after they left GE's manufacturing plant. Id.

In addition to the precise specifications governing the construction of Navy turbines, “the Navy had precise specifications, practices, and procedures ... that governed the content of any communication affixed to machinery purchased by the Navy” and any “written materials that the manufacturer was required to deliver” with the turbines. See id. at 13. GE could not, without the Navy's permission, affix warnings to its turbines, or include warnings in the product manuals, “that addressed the alleged hazards of products that were not supplied by GE, such as thermal insulation materials.” See id. at 13–14. If GE had included such “extraneous matter,” the Navy would have rejected the manual or item with the affixed warning. See id. Based on his experience, Hobson declared that “the Navy, not individual equipment manufacturers like GE, exercised absolute authority to determine precisely what hazards aboard its ships would be subject to warnings” and those warnings' content. See id. at 15–16.

Ben J. Lehman, a U.S. Navy Rear Admiral, also attested to his extensive experience with naval ship-building practices. See ECF No. 1–7 at 3. At various times from 1942 through 1975, Lehman served as a Navy Ship Superintendent, worked as an engineer for GE, and served as a director for two major ship building companies. See id. He declared that from at least the 1940s onward, “[m]ilitary specifications governed every characteristic of” equipment used on Navy ships, including “the decision of what warnings should ... be included.” See id. at 4–5. The Navy also exercised close control and final approval authority of all “written information that accompanied a piece of equipment,” including manuals and “precautionary labeling.” See id. at 5. Equipment manufacturers could not provide any warnings without Navy approval, and certain warnings—including warnings of risks from asbestos exposure—were not approved by the Navy. See id. If a manufacturer like GE had affixed warnings about asbestos to its products, or included such warnings in its manual, the Navy would have rejected the product and the manual. See id. at 6.

GE also submitted the declaration of Lawrence Stilwell Betts, a medical doctor and scientist, who served in the U.S. Navy from 1972 to 2001. See ECF No. 1–8 at 3. Based on his extensive “scientific and medical training, and experience as a Navy officer,” he is “generally familiar with the industrial products and equipment” used by the Navy and the Navy's “occupational health program” from before World War II until 2009. See id. at 3–4, 29.

Betts declared that turbine manufacturers did not furnish or install thermal insulation in turbines, and “military necessity” drove the Navy to use this asbestos-carrying material. See id. at 5–6. From at least the early 1920s, however, the Navy knew that exposure to asbestos could lead to pulmonary disease and other health hazards. See id. at 6–7, 20. As a result, the Navy developed an “occupational safety and health program that addressed asbestos and other health hazards ... [u]sing established scientific and medical knowledge.” See id. at 20. Thus, based on the information available at any time, “the Navy was fully aware of the recognized health hazards of asbestos.” See id. at 28. The Navy's knowledge of asbestos health effects “represented the state of the art,” and “far exceeded any information that possibly could have been provided by a turbine manufacturer.” ⁷Id. at 20, 23.

On August 23, 2013, the plaintiffs moved to remand the case or to sever the claims against GE and remand the claims against the non-removing defendants to state court. ECF No. 78. To support their motion, the plaintiffs attached several different versions of Navy military specifications (“milspecs”)—dated from 1936 through 1961—for mechanical and electrical equipment. See, e.g., ECF Nos. 78–1, 78–5. The milspecs include detailed specifications for manuals that accompany machinery produced by third party manufacturers for use on Navy ships,⁸ and the “procedures for submission, review, approval and revision of the service manual.” See ECF No. 78–5 at 2. The milspecs also discuss the format and content of safety warnings, which they note...