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Mesothelioma Defendant Seeks Immunity in Federal Court

An asbestos products manufacturer contracted by the U.S. Navy in the 1950s and 1960s is being sued by a man who later developed mesothelioma. boatsinsfbay.jpg

Unfortunately, our Boston mesothelioma lawyers understand the company may have a good chance of ducking responsibility, given the Seventh Circuit Court of Appeals’ recent ruling to remand the case back to federal court, where the firm hopes to obtain immunity.

In Ruppel v. CBS Corporation, the issue is whether a contractor for the government has a “colorable federal defense” in accordance with 28 U.S.C. 1442(a)(1). This law holds that when a civil action against the U.S. government or any agency or officer of the U.S. government or any person acting under that officer or agency is filed in state court, it may be removed by that party to a U.S. district (federal) court.

The reason the defendant in this case wants the lawsuit to be heard in federal court is that it plans to make the argument that it is entitled to immunity as a government contractor. The company, which at the time was doing business as Westinghouse, doesn’t deny that it made and sold asbestos products to the Navy. However, it maintains that this was done in accordance with direct specifications from the Navy. The company further asserts that the Navy had known of the dangers of asbestos since the early 1920s, and yet ordered these products anyway. (Specifically, we’re talking about turbines.)

The plaintiff alleges that he was exposed to the asbestos from the company both during his Navy service and later when he oversaw the construction of a Navy ship as a civilian. From start to finish, this spanned from 1946 through 1971.

But as is typical with mesothelioma cases, the plaintiff did not become ill until decades later. Early this year, he filed a civil lawsuit in state court in Illinois against CBS, as well as 40 other defendants for his mesothelioma diagnosis, contending he contracted the disease as a result of exposure to asbestos products that were made, sold, distributed or installed by each of the defendants.

CBS moved to have the case remanded to federal court under the above-stated federal statute. That request was granted, but then the plaintiff appealed to the federal judge, saying he was only arguing a failure to warn, for which the Department of Defense does not provide immunity. The federal judge granted this request without allowing the defense the opportunity to respond.

CBS then appealed to the Seventh Circuit, which reversed the federal judge’s decision and ping-ponged the case back to federal court. The appellate court said that while the plaintiff had mentioned the failure to warn issue in his complaint, the core of the complaint had more to do with his actual exposure.

This move, of course, gives the defendant a strategic advantage. It shows too that the legal teams that represent these firms are savvy and aggressive. You need someone your side who can match them pound-for-pound – and beat them.

If you or a loved one is diagnosed with mesothelioma in New England, call for a free and confidential appointment at 1-888-367-2900.

Additional Resources:
Seventh Circuit reverses Murphy on asbestos remand order, Dec. 5, 2012, By Bethany Krajelis, The Madison-St. Clair Record, Metro East’s Legal Journal
More Blog Entries:
Five-Year Mesothelioma Study to Begin With Federal Grant, Nov. 30, 2012, Boston Mesothelioma Lawyer Blog