Leite v. Crane Co., 868 F. Supp. 2d 1023

Background

Plaintiffs filed suit September 6, 2011 in Hawaii state court against 18 defendants for asbestos exposure at Pearl Harbor Naval Shipyard from 1966–1972.
Crane removed the case October 21, 2011 to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), with joinders by IMO, Warren Pumps, and Buffalo Pumps.
Magistrate Judge Puglisi entered a Findings and Recommendation January 23, 2012 granting remand on colorable federal defense grounds.
The court now reviews de novo the objections to the F&R and holds removal proper, finding a colorable federal defense and a causal nexus.
Evidence includes Navy MILSPECs, technical manuals, and Navy oversight of warnings; Plaintiffs challenge Rule 702 arguments; the court overrules those objections for purposes of this removal-stage analysis.
Conclusion: Defendants properly removed under § 1442(a)(1) and Plaintiffs’ remand motion is denied.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether removal under § 1442(a)(1) was proper.	Plaintiffs contend no colorable federal defense exists.	Defendants argue government contractor framework and Navy discretion support removal.	Removal found proper; colorable federal defense shown.
Whether Defendants have a colorable government contractor defense to failure-to-warn claims.	Plaintiffs contend the Navy did not require or preclude asbestos warnings, so defense fails.	Defendants show Navy approvals and discretion over warnings, with warnings required or influenced by government deliberations.	Colorable government contractor defense established.
Whether a causal nexus exists between actions taken under the Navy’s directions and Plaintiffs’ claims.	Navy directions did not preclude warnings; defendants’ actions were not dictated by federal duty.	Defendants acted under Navy direction and warnings were approved or conflicted by government discretion.	Causal nexus established; action removable under § 1442(a)(1).
Whether the government contractor defense applies despite variations in Boyle, Butler, and Hawaii Federal Asbestos precedents.	Precedent limits defense to prohibitions or content diktats by government.	Getz clarifies the standard; government discretion suffices.	Getz governs; defense held colorable under government discretion standard.
Whether the court should apply Daubert-style scrutiny to defendants’ evidence at the removal stage.	Daubert objections should bar consideration of expert evidence.	Limited Daubert analysis appropriate for removal stage to assess colorable defense.	Court conducts limited Daubert inquiry focusing on reliability and fit at this stage; objections overruled for purposes of colorable defense.

Key Cases Cited

Getz v. Boeing Co., 654 F.3d 852 (9th Cir. 2011) (government contractor defense in failure-to-warn context; elements including government discretion, warnings provided, and known dangers)
Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (government contractor defense framework: approved precise specifications, conformance, and government warning of known dangers)
In re Hawaii Federal Asbestos Cases, 960 F.2d 806 (9th Cir. 1992) (early formulation of government contractor defense in asbestos context)
Oliver v. Oshkosh Truck Corp., 96 F.3d 992 (7th Cir. 1996) (recasts Boyle for failure-to-warn; government discretion suffices)
Tate v. Boeing Helicopters, 140 F.3d 654 (6th Cir. 1998) (recognizes government discretion in warnings analysis)
Willingham v. Morgan, 395 U.S. 402 (1969) (removal policy favors broad interpretation to aid enforcement of federal duties)
Acker v. Durham, 527 U.S. 423 (1999) (colorable defense standard; narrow factual showing sufficient at removal)
Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770 (E.D. Pa. 2010) (recognizes colorable defense and de novo review at removal)
Holdren v. Buffalo Pumps, Inc., 614 F. Supp. 2d 129 (D. Mass. 2009) (discussion of government contractor defense in asbestos context)