Pizarro v. Astra Flooring Company

Background

Renato C. Pizarro alleged that he developed mesothelioma from asbestos exposure while serving as a mechanic aboard United States Navy ships from 1975 through 1998. He and Mercedita D. Pizarro sued companies that allegedly manufactured asbestos-containing products or operated and controlled asbestos-containing workspaces. Their claims against National Steel and Shipbuilding Company (NASSCO) included general negligence, vicarious liability, premises liability, failure to warn, and loss of consortium. The complaint stated that the claims against NASSCO did not concern its design or manufacture of military equipment.

NASSCO did not remove the case within 30 days after receiving the complaint. After receiving the plaintiffs’ unverified interrogatory responses on December 23, NASSCO learned that Renato had apparently been exposed to asbestos while working aboard the USS BRISTOL COUNTY during an overhaul at NASSCO’s premises. NASSCO filed its notice of removal on December 26. John Crane, Inc. also removed the case, and Spirax Sarco, Inc. joined NASSCO and John Crane in the removals. The plaintiffs later dropped all claims against John Crane, but Spirax Sarco remained joined as to NASSCO’s removal.

Motion to Remand

The plaintiffs argued that NASSCO’s removal was untimely, that the Federal Officer Removal Statute did not apply, that NASSCO could not claim derivative sovereign immunity under the rule discussed in Yearsley, and that the federal-enclave defense did not apply. They also objected to declarations submitted by NASSCO. The court explained that remand can be required for a procedural defect or because federal jurisdiction is lacking.

Timeliness

The court held that NASSCO’s removal was timely. The ordinary 30-day removal period begins when the initial pleading affirmatively reveals facts supporting federal jurisdiction. A separate 30-day period applies when the initial pleading lacks enough information and a later pleading, motion, order, or other paper shows that the case is removable.

The complaint did not identify particular job sites or vessels and did not provide enough information for NASSCO to determine from the complaint that federal-officer removal was available. The interrogatory responses identified the USS BRISTOL COUNTY and the overhaul at NASSCO’s premises. The court therefore held that the removal period began when NASSCO received those responses and that its December 26 notice was timely.

Federal Officer Removal

The Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), allows a person acting under a federal officer to remove a civil action concerning acts performed under that federal authority. The court stated that NASSCO had to show three things: it was a person covered by the statute; it had a colorable federal defense, meaning a defense that was reasonably supported rather than clearly meritless; and there was a causal connection between conduct taken under Navy direction and the plaintiffs’ claims. The parties did not dispute the first requirement.

NASSCO relied on the government-contractor defense. That defense can protect a contractor from state tort liability when the government made a discretionary, safety-related military procurement decision that conflicted with state-law requirements and directed the contractor to follow that decision. For the plaintiffs’ failure-to-warn claim, NASSCO had to show that the Navy exercised discretion and approved certain warnings, that NASSCO provided the warnings required by the Navy, and that NASSCO warned the Navy about asbestos hazards known to NASSCO but not to the Navy.

The court found that NASSCO had met the requirements at the removal stage. Retired Admiral Roger B. Horne stated that the Navy dictated the design, manufacture, installation, overhaul, repair, documentation, safety conditions, and warnings associated with its ships and equipment, and that contractors could not deviate from those requirements. NASSCO Program Manager Stephen B. Severs stated that NASSCO complied with Navy specifications and that Navy vessels would not be accepted without compliance with requirements concerning hazard information. The court concluded that these declarations sufficiently supported the government-contractor defense, even though they did not identify a particular military specification for the USS BRISTOL COUNTY.

The court also found a causal connection between NASSCO’s conduct and the plaintiffs’ claims because NASSCO’s work was allegedly performed under Navy directions governing warnings and safety requirements. Under the court’s reading of controlling appellate precedent, a qualifying failure-to-warn claim allowed NASSCO to remove the entire action, even if the other claims were not independently removable. The court acknowledged misgivings about allowing general declarations instead of specific citations to Navy specifications but stated that controlling precedent permitted that approach at the removal stage.

Because the court found that the Federal Officer Removal Statute applied, it did not reach NASSCO’s arguments concerning derivative sovereign immunity or the federal-enclave defense.

Evidentiary Objections

The plaintiffs objected to the Horne and Severs declarations under several Federal Rules of Evidence, arguing that the declarations were conclusory, speculative, unsupported, and hearsay. The court overruled those objections. It found that Horne’s training and experience provided an adequate foundation and that his statements could be admitted as expert opinion. It found that Severs’s professional experience provided a basis for percipient testimony under the rule concerning opinion testimony by a nonexpert witness.

The court stated that these evidentiary rulings applied only to the motion to remand and did not prevent future evidentiary objections. NASSCO’s objections to the plaintiffs’ declaration by retired Navy Captain Francis J. Burger were overruled as moot because NASSCO could remove the action under Section 1442(a)(1) without resolving those objections.

Disposition

The court held that NASSCO properly removed the action under 28 U.S.C. § 1442(a)(1) and denied the plaintiffs’ motion to remand. This was a ruling on whether the case could remain in federal court, not a final decision on the plaintiffs’ asbestos claims.