It is no secret that, in many instances, injured tort plaintiffs would prefer to file their cases in state court as opposed to federal court. One of the many reasons for this preference is that the Federal Rules of Civil Procedure place express limits on the amount of discovery available to parties. Further, the Federal Rules of Evidence tend to be more stringent, as are requirements for expert witnesses. These, and the notion that federal courts tend to grant motions to dismiss and motions for summary judgment more frequently and award lower verdicts, means that plaintiffs would often rather file their cases in state court and conversely, defendants often prefer to litigate these cases in federal court. Consequently, when possible, defendants often will remove a case filed in state court to the applicable U.S. District Court where the state action was pending. One such method of removal is found in 28 U.S.C. § 1442(a)(1), the federal-officer removal statute. Specifically, § 1442(a)(1) allows a defendant that acted under any United States agency or officer to remove a plaintiff’s suit to federal court if any of the alleged claims or defenses relate to “any act under color of such office.” This is a frequently used tool of military contractors to get their government contractor defense heard by a federal court.
Government contractor immunity is a recognized federal defense based on public policy (See Boyle v. United Technologies Corp., 487 U.S. 500 (1988)). It is an offshoot of the governmental immunity doctrine codified in 28 U.S.C. § 2680, which insulates the federal government from suit in relation to the performance of its discretionary actions. Military contractors may be extended the benefits of §2680 in a product liability action if they can demonstrate that: (1) the government “approved reasonably precise specifications” for their product; (2) the product conformed to those specifications; and (3) the contractor warned the government about the dangers in the use of the product that were known to it but not to the government.” Boyle, 487 U.S. at 512.
Military contractors of all stripes expressed a collective sigh of relief on January 20, 2017, when the Fifth Circuit Court of Appeals fortified the federal officer removal statute in Zeringue v. Crane Co., 2017 WL 279496 (5th Cir. 2017), a decision which overturned the Eastern District of Louisiana’s remand of an asbestos plaintiff’s suit to Orleans Parish District Court. In Zeringue, the Plaintiff filed suit in Louisiana state court alleging that he first was exposed to asbestos while serving aboard U.S. Navy ships during the 1950s. Crane, one of more than twenty defendants in the case, was a major supplier of asbestos-containing valves, among other equipment, to the Navy. Accordingly, Crane invoked the federal officer removal statute so that it could litigate the case in federal district court. It argued that removal was proper because “any product [Zeringue] alleges Crane Co. manufactured for or supplied to the Navy (and any product literature, labeling, or warnings
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