Harris v. CBS Corporation, 5:12-cv-00049

Plaintiffs William L. Harris and Jean Harris sue CBS Corporation for state-law tort claims arising from alleged exposure to friable asbestos at a Navy facility in Idaho during 1964-65.
Plaintiff Admiral Harris allegedly developed malignant mesothelioma as a result of that exposure; Westinghouse Electric Corporation is cited as predecessor in interest.
The case is filed in the Northern District of California, San Jose Division, with diversity jurisdiction alleged for federal jurisdiction.
CBS moved under Rule 12(b)(3) to dismiss for improper venue or, alternatively, to transfer to the District of Idaho; CBS also moved under Rule 12(b)(1) to dismiss for lack of subject-matter jurisdiction based on preemption/nonjusticiability.
The court considered affidavits and held the motions ripe for decision; the court denied CBS’s venue transfer/dismissal and denied the Rule 12(b)(1) lack-of-subject-matter-jurisdiction motion, allowing discovery to proceed.
The court noted ongoing ambiguity over the applicable law (California vs. Idaho) and left open issues regarding preemption defenses and Navy policy questions, permitting further discovery.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether venue is proper in ND Cal or should transfer to Idaho	Harris choice of forum in California favored; transfer would be inconvenient.	Idaho forum more convenient due to Navy facility origin of exposure.	Venue proper in ND Cal; transfer denied.
Whether field preemption bars the state-law claims	Field preemption could foreclose state tort claims related to war-time naval operations.	Field preemption may preempt plaintiff claims against contractor.	Field preemption denied at this stage.
Whether conflict preemption precludes the claims	Navy mandates may conflict with state tort duties; preemption should apply.	Regulatory conflict could preempt some claims; needs case-by-case analysis.	Conflict preemption acknowledged as possible but not dispositive; claims may be preempted in part; discovery warranted.
Whether the combatant activities defense precludes the claims	No combatant-activities defense applicable to Admiral Harris’ Idaho exposure training.	Combatant activities defense may bar the claims.	Combatant activities defense denied; defense not applicable to this factual context.
Whether the political-question doctrine bars the action	Private tort dispute; not a government-policy challenge.	Discretionary Navy judgments implicated by military policy could raise political questions.	Nonjusticiable political questions not bar to suit; discovery to resolve Navy policy-related issues permitted.

Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000) (multifactor venue inquiry guidance)
Donn v. A.W. Chesterton Co., Inc., 842 F. Supp. 2d 803 (E.D. Pa. 2012) (field preemption and discovery context in asbestos cases)
Cipollone v. Liggett Group, Inc., 505 U.S. 504 (Supreme Court 1992) (preemption concepts and implied conflicts with state tort law)
Koohi v. United States, 976 F.2d 1328 (9th Cir. 1992) (combatant activities defense and time-of-war concept)
Bentzlin v. Hughes Aircraft Co., 433 F. Supp. 1486 (C.D. Cal. 1993) (combatant activities defense applied in private contractor context)
Saleh v. Titan Corp., 580 F.3d 1 (D.C. Cir. 2009) (combatant activities defense applicability)
McMahon v. Presidential Airways, Inc., 502 F.3d 1331 (11th Cir. 2007) (political-question doctrine and private tort suits)
Baker v. Carr, 369 U.S. 186 (1962) (six Baker factors for political questions)