770 F. Supp. 2d 736
E.D. Pa.2011Background
- Barnes filed a California state-court action alleging decedent’s asbestos exposure caused lung cancer from multiple defendants, including GE; GE removed under 28 U.S.C. §1442 to the ED Pa MDL coordinated proceeding in 2010; case transferred to MDL No. 875 in May 2010; plaintiffs argued removal was improper for untimeliness and lack of a federal defense; the court applied Third Circuit law in MDL context to assess timeliness; plaintiffs’ interrogatories later identified exposure tied to GE turbines on Navy ships, creating a potential federal officer nexus.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness under federal officer removal in MDL context | Complaint lacked a clear nexus to GE. | Post-answer interrogatories revealed a removable nexus to GE turbines. | Removal timely under §1446(a) once nexus identified. |
| Effect of plaintiffs’ disclaimer of federal claims | Disclaimer defeats federal jurisdiction. | Disclaimer ineffective where a colorable federal defense exists. | Disclaimer does not defeat removal; colorable federal defense exists. |
| Existence of a colorable government contractor defense | GE lacks a colorable federal defense; claims arise under state law. | Government exercised discretion; warning and product use governed by Navy specs; defenses exist. | Colorable government contractor defense established; removal proper. |
Key Cases Cited
- Foster v. Mutual Fire Marine & Inland Ins. Co., 986 F.2d 48 (3d Cir.1993) (analysis of four-corners pleading sufficiency for federal question)
- Jefferson County v. Acker, 527 U.S. 423 (U.S. 1999) (adequate threshold showing to remove under color of federal office)
- Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124 (3d Cir.1998) (federal defense may justify removal even if not on face of complaint)
- In re Columbia Gas Systems, Inc., 997 F.2d 1039 (3d Cir.1993) (federal question considerations in removal)
- Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770 (E.D. Pa.2010) (context of federal officer removal and record viewed favorably to remover)
- United States v. Todd, 245 F.3d 691 (8th Cir.2001) (colorable federal defense can transform state-law action into federal proceeding)