Gordon v. Air & Liquid Systems

Civil Practice

, New York Law Journal


Judge Joseph Bianco

Plaintiff's father died, in 2010, of lung cancer allegedly arising from exposure to asbestos on U.S. Navy ships containing defendants' machinery. District court denied the action's remand to state court. CBS Corp., Foster Wheeler Energy Corp. and General Electric Co. had removed suit under 28 USC §1442(a)(1), arguing that they acted under an officer or agency of the United States when making equipment for the subject ships. Persuaded by Hagen v. Benjamin Foster Co., the court independently found defendants met the test in Isaacson v. Dow Chem. for federal officer removal by a private party, and the three elements for a federal contractor defense in Boyle v. United Techs. Defendants made their products because the Navy agreed to procure them. Thus the record evidence would allow defendants' conduct to fall under the color of a federal office regardless of whether there were formal contractual terms concerning asbestos. Further the Navy's acceptance and use of defendants' products after rigorous testing and approval processes supported their asserted conformance to reasonably precise Navy specifications. Also, certain affidavits provided colorable evidence that the Navy knew far more about asbestos than did the defendants.

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