Recently, in Sawyer v. Foster Wheeler LLC, the Fourth Circuit held that a government contractor is entitled to federal jurisdiction, even in product liability failure-to-warn actions, based on the contractor’s assertion that it has a colorable federal defense of government contractor immunity. 860 F.3d 249 (4th Cir. 2017). The big takeaway from this case, however, is that the Fourth Circuit has now joined the Second, Third, Fifth, Seventh, and Ninth Circuits in holding that a government contractor need not demonstrate that it attempted to provide a warning, but was prohibited from doing so by the government. Id.; see Cuomo v. Crane Co., 771 F.3d 113 (2nd Cir. 2014); Papp v. Fore-Kast Sales Co., Inc., 842 F.3d 805 (3d Cir. 2016); Zeringue v. Crane Company, 846 F.3d 785 (5th Cir. 2017); Ruppel v. CBS Corp., 701 F.3d 1176 (7th Cir. 2012); Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014). Instead, for the government contractor defense to apply, the contractor is only required to establish that the government dictated or approved the warnings the contractor actually provided.
Sawyer involved the claims of a decedent’s family against Foster Wheeler LLC in Maryland state court, in which they alleged that the decedent’s death was caused by exposure to asbestos while he assembled Foster Wheeler boilers for use aboard Navy vessels in the boiler shop of the Sparrows Point Shipyard, and that the defendants failed to warn him of the dangers associated with asbestos exposure. Sawyer, 860 F.3d at 249. Foster Wheeler removed the case to federal district court based on federal officer jurisdiction conferred as a result of its government contractor defense. Following plaintiffs’ motion, the district court remanded the case and Foster Wheeler appealed. Id.
In support of federal officer jurisdiction, Foster Wheeler asserted that it manufactured boilers for the Navy under the Navy’s strict specifications and that “in the manufacture and sale of boilers and auxiliary equipment for the Navy, including all aspects of warnings associated with that equipment, [it] was acting under an officer or agency of the United States.” Id. In support, Foster Wheeler supplied the affidavits of a former employee and a retired Navy captain, in which they attested: (1) Foster Wheeler designed boilers to match highly detailed ship and military specifications provided by the Navy, that “deviations from these specifications were not acceptable,” and the Navy exercised “intense direction and control over all written documentation to be delivered with its naval boilers;” and (2) “the Navy was well aware of the health hazards associated with the use of asbestos from the early 1920s,” and that the Navy’s information “with respect to the specification and use of asbestos, and the health hazards associated with its use aboard Navy vessels, far exceeded any information that possibly could have been provided by a boiler manufacturer.” Id.
The Plaintiffs argued: (1) that the government contractor defense does not apply to failure-to-warn actions; and (2) the boilers were not constructed
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