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Hagen v. Benjamin Foster Co.

September 24, 2010

DONNA L. HAGEN, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF MALCOLM HAGEN, PLAINTIFF,
v.
BENJAMIN FOSTER CO., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Eduardo C. Robreno, J.

CONSOLIDATED UNDER MDL 875

MEMORANDUM

TABLE OF CONTENTS

I. INTRODUCTION...............................................2

II. BACKGROUND.................................................3

A. Plaintiff's Suit......................................3

B. Defendants' Removal and Plaintiff's Motion to Remand................................................4

1. Affidavit of J. Thomas Schroppe.........................................5

2. Affidavit of David Hobson........................6

3. Affidavit of Admiral Ben J. Lehman...............7

4. Affidavit of Admiral Roger B. Horne..............9

5. Affidavit of Captain Lawrence Stilwell Betts.....9

III. LEGAL STANDARD............................................10

IV. DISCUSSION................................................14

A. The Colorable Federal Defense Requirement............16

1. Legal Standard..................................16

i. Supreme Court Decisions....................16

ii. Lower Court Decisions......................18

iii. Standard to be Applied.....................24

2. Application.....................................27

i. Elements of the Government Contractor Defense....................................27

ii. Applying the Defense to Defendants' Facts......................................29

B. The Acting Under Requirement.........................31

C. The Causal Nexus Requirement.........................32

V. CONCLUSION................................................34

I. INTRODUCTION

Donna L. Hagen, individually and as executrix of the estate of Malcolm Hagen ("Plaintiff"), has moved to remand this action-which is consolidated as part of the MDL-875 asbestos products liability litigation-to New Jersey state court. Plaintiff argues the Court should remand due to lack of subject matter jurisdiction. Defendants Foster Wheeler Corporation and General Electric Company (collectively, "Defendants") filed timely responses in opposition to Plaintiff's motion.

Since MDL-875 was certified by the Judicial Panel on Multidistrict Litigation (the "Panel") in 1991, thousands of individual plaintiffs have had their cases consolidated in the Eastern District of Pennsylvania for coordinated pretrial proceedings.*fn1 A common path to consolidation in MDL-875 is removal by one or more defendants to an appropriate federal district court, followed by transfer by the Panel to the Eastern District of Pennsylvania. In many of the MDL-875 cases, the jurisdictional basis for removal is the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which allows a defendant to remove a suit to federal court following a preliminary showing of a federal defense. This memorandum evaluates the contours of the showing required by Section 1442(a)(1) and concludes Defendants have sufficiently established the jurisdictional predicate to avail themselves of this forum. Thus, for the reasons set forth below, Plaintiff's motion to remand will be denied.

II. BACKGROUND

A. Plaintiff's Suit

Malcolm Hagen ("Hagen") was exposed to asbestos while working as an outside machinist in close proximity to asbestos-containing machinery and insulation aboard the U.S.S. Kitty Hawk. Hagen's responsibilities included assisting mechanics as they installed and repaired machinery aboard ships at the shipyard. Hagen worked in this capacity from 1958-1961. Plaintiff alleges that, on or around February 7, 2006, Hagen was diagnosed with mesothelioma allegedly caused by exposure to asbestos while aboard the U.S.S. Kitty Hawk.

Plaintiff filed suit on July 11, 2006 in the Superior Court of New Jersey, Middlesex County, alleging products liability claims for failure to warn against thirteen named defendants and fifty unnamed defendants. Specifically, each defendant manufacturer is alleged to have carelessly or negligently processed, manufactured, packaged, distributed, delivered and sold asbestos products without warnings.*fn2 (Compl. ¶ 8.) Plaintiff further alleges that this failure to warn was the actual and proximate cause of Hagen's mesothelioma. (Id. ¶ 9.) On May 28, 2008, Hagen died of ...


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