Rhodes v. MCIC, Inc.

210 F.Supp.3d 778

Esther RHODES, as Surviving Spouse and Personal Representative of the Estate of Earl J. Rhodes, deceased, et al., Plaintiffs,

v.MCIC, INC., et al., Defendants.

CIVIL NO. JKB-16-2459

United States District Court, D. Maryland.

Signed September 29, 2016

Michael Timothy Edmonds, Peter T. Nicholl, Teresa Epps Cummings, Law Office of Peter T. Nicholl, Baltimore, MD, for Plaintiffs.

Louis E. Grenzer, Jr., Bodie, Dolina, Hobbs, Friddell & Grenzer, PC, John Stewart Cobb, North and Cobb PA, Scott Mason Richmond, Theodore F. Roberts, Venable LLP, Towson, MD, Thomas M. Hanna, McMahon Berger Hanna Linihan Cody McCarthy PC, St. Louis, MO, Philip A. Kulinski, Clare Marie Maisano, Evert Weathersby Houff, David W. Allen, Malcolm Sean Brisker, Terri Lynn Goldberg, Goodell DeVries Leech and Dann LLP, Douglas B. Pfeiffer, Robin Silver, Leianne S. McEvoy, Joshua Franklin Kahn, Michael Alan Brown, Michael L. Haslup, Matthew Thomas Wagman, Alicia N. Ritchie, Jonathan James Huber, F. Ford Loker, Jr., Miles and Stockbridge PC, Patrick C. Smith, R. Thomas Radcliffe, Jr., Steven J. Parrott, DeHay and Elliston LLP, Thurman W. Zollicoffer, Jr., Warren N. Weaver, Michelle Noorani, Whiteford Taylor and Preston LLP, Thomas Peter Bernier, Scott J. McDowell, Goldberg Segalla LLP, David J. Quigg, Donald S. Meringer, Meringer Zois and Quigg LLC, Helyna M. Haussler, Wilson Elser Moskowitz Edelman and Dicker LLP, Baltimore, MD, Richard Damon Albert, Jamie Michelle Hertz, Steptoe and Johnson LLP, Washington, DC, Neil Joseph MacDonald, MacDonald Law Group, LLC, Beltsville, MD, Thomas L. Doran, DeCaro Doran Siciliano Gallagher and DeBlasis LLP, Bowie, MD, Jason Richard Waters, Wilson Elser Moskowitz Edelman and Dicker, McLean, VA, for Defendants.

MEMORANDUM AND ORDER

James K. Bredar, United States District Judge

I. Background

Plaintiffs, who are surviving family members of Earl J. Rhodes, deceased, filed their complaint in this asbestos case against thirty-two Defendants in the Circuit Court for Baltimore City. (Compl., ECF No. 2.) The case has been removed to this Court by Crane Co. pursuant to 28 U.S.C. § 1442, which permits removal to federal court for cases involving the "federal officer defense." (Notice of Removal, ECF No. 1.) Now pending before the Court is Plaintiffs' motion to remand or, in the alternative, for severance of all claims other than Plaintiffs' claims against Crane Co. and to remand all other severed claims. (ECF No. 154.) The motion has been briefed (ECF Nos. 185, 186), and no hearing is required, Local Rule 105.6 (D. Md. 2016). The motion will be denied.

II. Applicable Law

As pertinent to the instant case, the federal officer defense is set forth in 28 U.S.C. § 1442(a), which provides,

A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) The 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 or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

When applied to contractors that supply goods to the federal government, the federal officer defense is also referred to as the government contractor defense. That extension of the federal officer defense was recognized in Boyle v. United Technologies Corp. , 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). There, the Supreme Court set forth the defense's contours:

Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (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, 108 S.Ct. 2510. "[W]hether the facts establish the conditions for the defense is a question for the jury." Id. at 514, 108 S.Ct. 2510.

Although the Boyle case only dealt with design defects, the defense has also been applied to failure-to-warn cases. See, e.g. , Cuomo v. Crane Co. , 771 F.3d 113, 116–17 (2d Cir.2014) ; Leite v. Crane Co. , 749 F.3d 1117, 1123 (9th Cir.2014), cert. denied , ––– U.S. ––––, 135 S.Ct. 361, 190 L.Ed.2d 252 (2014) ; Citrano v. John Crane – Houdaille, Inc. , 1 F.Supp.3d 459, 467 (D.Md.2014). See also Emory v. McDonnell Douglas Corp. , 148 F.3d 347, 349–50 (4th Cir.1998) (agreeing with soundness of reasoning in cases applying defense to failure-to-warn claims). To establish the defense in a failure-to-warn case,

the defendant must show: "(1) the government exercised its discretion and approved certain warnings for the products; (2) the warnings provided by the contractor conformed to the federal specifications; and (3) the contractor warned the government about dangers known to the contractor but not to the government."

Citrano , 1 F.Supp.3d at 467 (quoting Joyner v. A.C. & R. Insulation Co. , Civ. No. CCB–12–2294, 2013 WL 877125, at *7 (D.Md. Mar. 7, 2013), aff'd sub nom. , Wood v. Crane Co. , 764 F.3d 316 (4th Cir.2014), cert. denied , ––– U.S. ––––, 135 S.Ct. 1426, 191 L.Ed.2d 365 (2015) ).

To justify removal to federal court, the defense must be "colorable," see Mesa v. California , 489 U.S. 121, 129, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989), and the removing defendant must establish a causal connection between the allegedly wrongful conduct and "asserted official authority," Willingham v. Morgan , 395 U.S. 402, 409, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). The Supreme Court has "rejected a ‘narrow, grudging interpretation’ of the statute, recognizing that ‘one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court.’ " Jefferson Cty., Ala. v. Acker , 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) (quoting Willingham , 395 U.S. at 407, 89 S.Ct. 1813 ). A defendant's theory of the case must be credited by the federal court for the purposes of determining the existence of the elements of the jurisdictional inquiry. Id. at 432, 89 S.Ct. 1813.

Consequently, evaluation of the defense's viability at this early stage of the case, i.e. , upon removal, is similar to evaluation of the adequacy of a complaint for relief when challenged by a motion to dismiss. See Willingham , 395 U.S. at 408, 89 S.Ct. 1813 (noting a removal petition must contain "a short and plain statement of the facts"); Ellenburg v. Spartan Motors Chassis, Inc. , 519 F.3d 192, 199 (4th Cir.2008) (language in general removal statute, 28 U.S.C. § 1446(a), "is deliberately parallel to the requirements for notice pleading found in Rule 8(a) of the Federal Rules of Civil Procedure"); Joyner , 2013 WL 877125, at *5–6 (noting parallelism between plausibility standard for asserting government contractor defense and plausibility standard for pleading complaint). A defendant need not prove his entitlement to the defense in order to remove the case to federal court; he need only make a plausible showing of it. Willingham , 395 U.S. at 407, 89 S.Ct. 1813 ("The officer need not win his case before he can have it removed."). Cases dwelling on the exactness of "proof" or "evidence" to support the defense are not persuasive. See, e.g. , Zeringue v. Allis – Chambers Corp. , Civ. No. 15–4516, 2015 WL 9311967 (E.D.La. Dec. 23, 2015) ; Sroka v. Union Carbide Corp. , Civ. No. WDQ–13–3281, 2015 WL 794942 (D.Md. Feb. 24, 2015) ; Holdren v. Buffalo Pumps, Inc. , 614 F.Supp.2d 129 (D.Mass.2009).

III. Asserted Factual Basis for the Defense

According to the complaint, the decedent served in the U.S. Navy as a laborer and boilermaker from 1952 to 1956 onboard ships, including the USS Tarawa CV40. (Compl. ¶ 1.) After discharge from the U.S. Navy, Rhodes was employed as a laborer, welder, and boilermaker at Bethlehem Steel Sparrows Point Shipyard from 1956 to 1959, and later, from 1959 to 1963, he was employed as a laborer at Eastern Stainless Steel. (Id. ) He also worked as a laborer, mechanic, and salesman for several other businesses from 1963 to the late 1970s. (Id. ) Prior to his death, Rhodes suffered from mesothelioma and asbestos-related diseases. (Id. ) Plaintiffs claim damages "[a]s a direct and proximate result of Defendants' negligence and strict liability in causing" Rhodes's death. (Id. Wrongful Death Count ¶ 4.) The complaint is noticeably bereft of plausible allegations of fact allowing an inference of liability as to any Defendant. However, no Defendant has moved for dismissal for failure to state a claim for relief.

According to the notice of removal, Rhodes allegedly was exposed to Crane Co. products while working aboard a Navy vessel. (Notice ¶ 3.) Crane Co. then states,

any product that Plaintiffs allege Crane Co. manufactured for or supplied to the Navy (and any product literature, labeling, or warnings that accompanied that product) would be subject to Navy specifications and requirements. Federal officers exercised their discretion regarding whether (1) asbestos was used in the product and (2) whether a warning would accompany the product (and if so, what it would say). Without approval from a federal officer, Crane Co.'s products could not have been used by the Navy.

(Id. ) Crane Co. also filed an affidavit of Anthony D. Pantaleoni, who, at the time he made the affidavit in 2011, was the Vice-President of Environment, Health, and Safety for Crane Co. (Pantaleoni Aff. ¶ 1, June 7, 2011, ECF No. 2-2.) Pantaleoni stated therein,

Crane Co. made and supplied equipment, including valves, for Navy ships under contracts between Crane Co. and the shipyards and/or the United States of America,

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