Products Liability Law Reporter

A federal district court held that remand of an asbestos liability case was warranted where the plaintiff’s complaint and deposition testimony did not show a causal link between the defendant’s alleged acts and the plaintiff’s claims.

Here, Aubrey Dutschmann was allegedly exposed to asbestos-containing products through numerous avenues, including his and his stepfather’s service in the U.S. Navy, his mother’s work at a glass plant, his own work as a carpenter and tiler, and his personal home construction and automotive work. After he developed lung cancer, he sued various defendants, including Goulds Pumps, LLC, which he listed on his work history sheet as one of the pump manufacturers on the USS Morton, where he worked as a boiler technician. Goulds Pumps removed the case to federal court under 28 U.S.C. §1442(a)(1), which provides for removal when a defendant is sued for acts undertaken at the direction of a federal officer. The plaintiff then amended his work history sheet to remove Goulds as a pump manufacturer on the USS Morton. The plaintiff was deposed after the removal, and he did not testify that there had been military exposure to Goulds products.

The plaintiff moved to remand, arguing there was no basis for removal under §1442(a)(1) because he did not allege that he had been exposed to any Goulds products in a military context.

Granting the motion, the district court noted that removal is proper under §1442(a)(1) where a defendant establishes that it is a person within the meaning of the statute; is acting under the United States, its agencies, or its officers; is acting under color of federal authority; and has a colorable federal defense. Here, the court said, the complaint did not include Goulds among the asbestos-
containing products to which he was exposed while serving in the military. The court rejected the defendant’s argument that the unamended work history sheet provided a basis for removal. Citing case law, the court found that federal officer jurisdiction requires a causal nexus between the acts a defendant performed at the government’s direction and the plaintiff’s claims. Here, the court said, such a causal nexus was lacking based on the plaintiff’s complaint and deposition testimony.

Consequently, the court remanded.

Citation: Dutschmann v. 84 Lumber Co., 2024 WL 2991049 (S.D. Ill. June 14, 2024).

Plaintiff counsel: AAJ members Benjamin R. Schmickle and Stephanie L. Gold, both of St. Louis.

Comment: In Gomez v. Huntington Ingalls, Inc., 2024 WL 3496523 (E.D. La. July 22, 2024), David Gomez was allegedly exposed to asbestos through his stepfather, who worked at Avondale Shipyard during the 1960s. Gomez later developed mesothelioma. He sued Huntington Ingalls, Inc., and other manufacturers and distributors of asbestos-containing products, including Hopeman Brothers. Hopeman Brothers removed the case to federal court, invoking the government contractor defense. The plaintiff moved for partial summary judgment to preclude Huntington Ingalls and Hopeman Brothers from invoking certain affirmative defenses. Granting the motion as to Huntington Ingalls, the court found that the defendant had failed to meet its burden to show that Gomez’s motion should be denied as premature or that the court should defer ruling on the motion until additional discovery had been conducted. The court agreed with the analyses of other courts that have held consistently that Huntington Ingalls was not entitled to certain government contractor immunity defenses. AAJ members David Cannella and Kristopher L. Thompson, both of New Orleans; AAJ member Emily C. LaCerte, Baton Rouge, La.; and AAJ member Christopher C. Colley, Dallas, represented the plaintiff.