December 2017

A federal district court in the Eastern District of Louisiana recently held that it continued to have federal jurisdiction under the federal officer removal statute, even after the plaintiffs amended their petition to delete claims that gave rise to federal subject matter jurisdiction. The court reasoned that the original removal satisfied the proper requirements to invoke federal subject matter jurisdiction and exercised its discretion to retain the case.

This case, Pitre v. Huntington Ingalls, et al,[i]  arose out of lung cancer allegedly caused by asbestos exposure while the decedent was employed at Avondale Shipyard in Avondale, Louisiana. The initial petition named numerous defendants and included, among other causes of action, failure to warn and other negligence claims against Avondale, as well as strict products liability and failure to warn claims against Foster Wheeler. The plaintiffs filed a first amended petition adding an additional defendant, Occidental Chemical, and asserting strict liability claims against the new defendant and against Avondale.

In discovery, a former coworker of the decedent testified that the decedent worked on U.S. navy ships built by Avondale, Destroyer Escorts. Within 30 days of this testimony, defendants Avondale and Lamorak removed the case to federal court and asserted that they were entitled to removal under the federal officer removal statute, 28 U.S.C. 1442(a)(1), as the plaintiffs’ claims were related to acts performed under color of federal office. After a federal magistrate judge granted the plaintiff’s motion for leave to file an amended complaint deleting their strict liability claims against Avondale, the defendants appealed the ruling to the district court. In their response to the appeal, plaintiffs moved to remand the action to state court.

The defendants argued that the effort to amend the original petition by deleting strict liability claims was a bad faith attempt to defeat federal jurisdiction. The district court denied defendants’ appeal and concluded that there was no error in granting the plaintiffs leave to amend, as courts are freely permitted to give leave to amend when justice so requires. However, that still left open the issue of the plaintiffs’ motion to remand.

The court cited Fifth Circuit opinions, IMFC Prof. Servs. of Fla. v. Inc. v. Latin Am. Home Health, Inc.[ii] and Bartel v. Alcoa S.S. Co., Inc.,[iii] in support of the principle that jurisdiction “is based on notice of removal, not the amended complaint.” Therefore, “although an amended complaint deleting federal claims may permit a discretionary remand, it does not destroy federal jurisdiction over a validly removed case.” The appellants’ original removal to federal court was properly supported by a colorable defense of federal contractor immunity. The plaintiffs did not seriously contest that their original claims were removable, arguing only that their strict liability claims were brought in error. The court held that though “a good faith error may justify granting leave to amend,” in this matter “plaintiffs’ error does not create a jurisdictional defect in notice of removal.” Furthermore, the court held that Foster Wheeler, a boiler manufacturer defendant, also had a colorable defense under the federal contractor defense, and that therefore there was proper federal officer removal jurisdiction based on the plaintiffs’ design defect claims.  For these reasons, the court denied the plaintiffs’ motion to remand.

The holding in this case demonstrates a federal court’s use of its discretion to retain jurisdiction over properly removed cases, even after the deletion of removal of claims giving rise to federal jurisdiction. The court’s refusal to interpret the amendment of a complaint as hindering proper removal is the type of ruling that should deter plaintiffs from forum shopping by amending their original petitions. The decision also is consistent with language of the Fifth Circuit, which stated that, “policy favors the retention of jurisdiction.”[iv]

[i]  Pitre v. Huntington Ingalls, Inc. 2017 WL 6033032, (E.D. La. Dec. 6, 2017).

[ii] IMFC Prof. Servs. of Florida, Inc. v. Latin Am. Home Health, Inc., 676 F.2d 152, 159 (5th Cir.1982).

[iii] Bartel v. Alcoa S.S. Co., Inc., 805 F.3d 169, 172 (5th Cir.2015)

[iv] IMFC Prof. Servs. of Fla,,676 F.2d at 159.

In 2015, the Florida Supreme Court issued a decision in Aubin v. Union Carbide, which mandated that juries be instructed on the “consumer expectations test.” On November 28, 2017, seven years after initially filing her lawsuit, a plaintiff in  Miami-Dade County won a $6.9 million asbestos verdict in a retrial based on the Aubin decision, in Font v. Union Carbide, Case No. 2010-041578-CA-01, This was the plaintiff’s second “bite at the apple,” as the first trial had resulted in a defense verdict for Union Carbide.


In the case underlying the Font appeal, Aubin, the Florida Supreme Court rejected sole reliance on the Third Restatement of Torts’ “risk utility test,” under which a plaintiff must demonstrate that “the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” Aubin v. Union Carbide Corp., 177 So.3d 489, 505 (Fla. 2015). Instead, the Florida Supreme Court required courts to use the Second Restatement of Torts’ consumer expectations test, which asks whether a product is unreasonably dangerous in design because it failed to perform as safely as an ordinary consumer would expect when used as intended or in a reasonably foreseeable manner. Id. at 503. As described by the Florida Supreme Court in Aubin, “[t]he critical difference regarding design defects between the Second Restatement and the Third Restatement is that the Third Restatement not only replaces the consumer expectations test with the risk utility test but also requires the plaintiff to demonstrate the existence of a ‘reasonable alternative design.’ Id. at 505.


In rejecting sole reliance on the Third Restatement’s risk utility test, the Florida Supreme Court in Aubin explained that the original reason for imposing strict liability for defective and unreasonably dangerous products was to relieve injured consumers from the difficulties of proving negligence by the product manufacturer. Id. at 506-507. However, the Third Restatement eliminates consideration of consumer expectations, and, in fact, “imposes a higher burden on consumers to prove design defect than exists in negligence cases” by adding the additional requirement that an injured consumer “prove that there was a ‘reasonable alternative design’ available to the product’s manufacturer.” Id. at 506.


Two years later, the potential impact of the Aubin decision on asbestos litigation in Florida has become apparent in cases such as  Font v. Union Carbide. In Font, the plaintiff, individually and on behalf of her father’s estate, filed a wrongful death action against Union Carbide and other asbestos manufacturers and distributors for negligence and strict liability based on an alleged failure to warn, and for the manufacture of an allegedly defective product. The plaintiff alleged that her father died of malignant pleural mesothelioma as a result of exposure to joint compound products and texture sprays designed, manufactured, and supplied by the defendants that contained Union Carbide’s asbestos.


At trial, the plaintiff requested that the standard jury instruction provided by the Supreme Court Committee on Standard Jury Instruction in Civil Cases be given to the jury verbatim. That instruction defined “unreasonably dangerous” under both the risk utility and consumer expectations tests and states in pertinent part: “A product is unreasonably dangerous because of its design if the product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer or the risk of danger in the design outweighs the benefits.” The plaintiff argued that she was entitled to submit her case to the jury on both theories of strict liability; however, Union Carbide argued that the Third District had previously rejected the consumer expectations test and determined that the appropriate standard was the risk utility test. Therefore, Union Carbide requested that the case be submitted to the jury only on the risk utility theory. The trial court denied the plaintiff’s request to include the consumer expectations instruction, and the jury returned a verdict in favor of Union Carbide, which the plaintiff appealed.


On appeal, the plaintiff sought reversal because the trial court did not instruct the jury on the consumer expectations test. The Third District affirmed the lower court’s decision, and the plaintiff petitioned the Florida Supreme Court for review. The Florida Supreme Court accepted jurisdiction of the matter, quashed the lower court’s decision, and remanded to the Third District for reconsideration in accordance with Aubin. Ultimately, on July 27, 2016, the Third District reversed the judgment in favor of Union Carbide and remanded to the trial court, with directions that the plaintiff’s strict liability claim be retried before a jury instructed on both the consumer expectations test and the risk utility test as alternative definitions of design defect.


The second trial was interrupted by the Thanksgiving holiday which, significantly, allowed for long closing arguments to refresh the jury’s memory after an 11-day break between the majority of the trial and closings.  On retrial, the jury returned a verdict for the plaintiff to the tune of $6.9 million ($2.8 million of which was assigned to Union Carbide).


In Aubin, the Florida Supreme Court discussed the premise that the “consumer expectations test does not inherently favor either party.” Based on the outcome in Font, that may not necessarily be true, and the Aubin decision could have far-reaching effects on asbestos litigation.  Nevertheless, at this juncture, the full impact of Aubin remains to be seen.



 (AP Photo/The Boston Globe, Frank O’Brien) 

In a unanimous decision, a three-judge panel of the Massachusetts Appeals Court affirmed summary judgment against the estate of former Detroit Tigers’ pitcher, Mark Fidrych, in Pantazis v. Mack Trucks, Inc., Mass. App. Ct., No. 16-P-1497 (Nov. 27, 2017).  On appeal, the Court rejected the Estate’s argument that a component part manufacturer had a duty to warn end-users of foreseeable hazards and risks associated with a non-defective component part installed into a completed end product.


In April of 2009, approximately 30 years after throwing his last pitch in Major League Baseball, Fidrych’s lifeless body was found under a dump truck at his farm in Massachusetts. A witness had observed Fidrych working under the truck, and a medical examiner later determined the cause of death to be accidental asphyxiation.


Mack Trucks, Inc. (“Mack”) had manufactured an incomplete vehicle, consisting only of a chassis, cab, and engine. Fidrych purchased that incomplete vehicle and later converted it into a dump truck by installing a piece of equipment manufactured by a co-defendant. That second piece drew power from the vehicle’s power system to raise and lower the truck bed.


Ann Pantazis, executrix of Firdych’s estate, filed a wrongful death lawsuit against the two entities, among others, alleging that both entities failed to adequately warn end-users about foreseeable risks posed by certain components. She argued that both defendants knew of the dangers posed by unguarded drive shifts, but failed to provide adequate warnings to end users.


Both defendants conceded that the truck’s power system could have been designed and installed differently to avoid certain potential dangers. Nevertheless, the Court held that the “potential dangers…arose from the assembly of the component parts into the finished auxiliary power system. As the manufacturers of mere components that were not themselves defective, the defendants had no duty to warn assemblers or end users of the risks presented by such systems.” In citing the seminal case of Mitchell v. Sky Climber, Inc., 396 Mass. 629 (1986) (adopting the component parts doctrine), the Court expressly rejected the plaintiff’s foreseeability argument and held that the validity of the component part doctrine does not turn “on the factual unforeseeability of such harms.”


In summary, the Court declined to read a foreseeability exception into the component parts doctrine and affirmed the vitality of the doctrines efficacy as a defense for manufacturers of non-defective component parts.  As stated by the Pantazis Court, there is “no underlying duty to warn of risks posed by the assembled product that arose out of the addition of other components and the decisions made, and actions taken, by downstream actors.”  While Pantazis breathes fresh air into the component parts doctrine, the Court left future challenges open by noting, in dicta, “[n]one of this is to say that appellate courts should never recognize exceptions to the component parts doctrine.”

For the first time since 1989[1], Connecticut’s Supreme Court addressed the plaintiff’s burden of proof in the asbestos context, in Wayne Bagley v. Adel Wiggins Group et al, SC 19835 (11/7/17).  In a win for defendants facing such claims, the court found that plaintiffs bringing claims pursuant to the Connecticut Product Liability Act (under both strict liability and negligence theories) require expert testimony to prove exposure at levels sufficient to cause their asbestos-related disease, and not merely general testimony that an asbestos-containing product generated an indefinite amount of dust in the plaintiff’s vicinity.


The decedent, Wayne Bagley (“Bagley”) worked at Sikorsky Aircraft Corporation (“Sikorsky”), and alleged exposure to an adhesive product used to bind interior components of helicopter blades. The material, an epoxy, came in the form of a sheet with strippable release paper, it contained 8.6 percent asbestos, and was manufactured by Wyeth Holdings’ predecessor. Employees removed any excess epoxy with chisels or by sanding. The Bagley estate called a former co-worker to testify that Bagley’s work area overlooked the blade shop, that Bagley’s daily responsibilities required him to enter the sanding room frequently, and that the sanding process created visible dust to which Bagley and he would have been exposed to.


At trial, the plaintiff presented causation expert testimony from Dr. Arnold Brody and Dr. Jerrold Abraham. Dr. Brody testified in detail regarding the process by which asbestos causes mesothelioma. However, he acknowledged on cross-examination that his testimony was based upon the assumption that a person has already been exposed to respirable asbestos fibers.


Dr. Abraham, a pulmonary pathologist testified that a proximate cause of the decedent’s mesothelioma was the exposure to asbestos fibers from the epoxy while the decedent passed through the sanding room of the blade shop. While discussing causation, Abraham was given a hypothetical scenario that reflected Bagley’s alleged exposure during his ten-month tenure as the manufacturing engineer. In response, Abraham testified that the scenario was a clear description of an exposure to asbestos fibers emitted from working with epoxy, and that the mere presence of dust indicated inadequate control of the product. On cross-examination, Abraham acknowledged that he never inspected the epoxy, that he did not speak with anyone at Sikorsky about the ventilation in the sanding room, and that he did not know of any studies concerning fiber release of the product when manipulated.


Once the plaintiff rested, Wyeth moved for a directed verdict, arguing that the estate failed to present any evidence of either a design defect or that asbestos dust from the epoxy caused the decedent’s death. Moreover, the defendant argued that expert testimony is required to prove the dangerousness of the epoxy, as it was a complex product for which an ordinary consumer could not form a safety expectation. The trial court denied the motion for directed verdict reasoning that the plaintiff presented sufficient evidence from which the jury could conclude that the epoxy was unreasonably dangerous and that the defendants were negligent in failing to test the fiber release from the epoxy. The jury returned a verdict for the plaintiff in the amount of $804,777. Wyeth Holdings then filed a motion to set aside the verdict and for judgment notwithstanding the verdict, both of which were denied at trial.


On appeal, Wyeth Holdings argued that the trial court improperly denied its motion to set aside the verdict and judgement notwithstanding the verdict given the lack of expert testimony on actual fiber release and exposure levels experienced by the decedent.  The plaintiff responded that the epoxy was not a complex product because ordinary jurors can understand that sanding a product creates dust and that inhaling asbestos fibers is in fact inherently dangerous. Thus, the plaintiff contended, the ordinary consumer expectation test, which does not require expert testimony, applies. The plaintiff further contended that the evidence showed there is no safe level of exposure to asbestos, and that there was ample circumstantial evidence to show that Bagley was exposed to dust from the sanding of the epoxy.


The Connecticut Supreme Court, however, found that the plaintiff failed to prove that respirable asbestos fibers were emitted from the epoxy during the sanding, and without such proof, there was insufficient evidence to show that the epoxy was either dangerous or the legal cause of the decedent’s mesothelioma. Specifically, the court stated:


“… we conclude that the plaintiff’s case lacked essential expert testi­mony to prove a vital fact in support of her negligence and strict liability claims, namely, that respirable asbes­tos fibers in a quantity sufficient to cause mesothelioma were released from {the epoxy} when it was used in the manner that it was in the Sikorsky blade shop during the decedent’s tenure there. Proof of this fact was nec­essary to prove both that (1) {the epoxy} was dangerous, and (2) the epoxy’s dangerous condition caused the decedent to develop mesothelioma.”


The court also rejected the estate’s argument that in the event the court were to reverse based upon the recent decisions in the Bifolck[2] and Izzarelli[3]cases, she is entitled to a new trial under any newly articulated standards from those cases. The court rejected this argument, stating that the reversal was a result of plaintiff’s failure to present evidence sufficient to prove that respirable asbestos caused injury, rather than a result of newly developed case law. Further, the court stated that because Bagley filed suit before the plaintiffs in the Bifolck and Izzarelli cases, the decisions in those cases will not retroactively have an impact on Bagley’s case.


In sum, Connecticut plaintiffs bringing asbestos claims under the Connecticut Product Liability Act must now prove that the products at issue emitted respirable asbestos fibers in an amount sufficient to cause disease. Moreover, this evidence must come from expert testimony, as fiber release and the causation of asbestos-related disease are matters beyond the ordinary knowledge of lay jurors.


[1] See Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509 (1989).

[2] In Bifolck, the Connecticut Supreme Court held that consumer expectations, as set forth in comment (i) to section of Restatement (Second) of Torts, do not apply to a product liability claim premised on negligence when determining whether a product is unreasonably dangerous. Bifolck v. Philip Morris, Inc., 324 Conn. 402, 152 A.3d 1183 (2016).

[3] In Izzarelli, the Connecticut Supreme Court held that the “modified consumer expectation test” is the primary standard with regard to the “good tobacco” exception to strict liability claims in Connecticut, and that the ordinary test applies only where a product “failed to meet the consumer’s minimum safety expectations, such as res ipsa cases” saying that a jury “could not reasonably conclude that cigarettes that cause cancer fail to meet the consumer’s minimum safety expectations.” Izzarelli v. R.J. Reynolds Tobacco Co., 321 Conn. 172, 136 A.3d 1232 (2016).