By Kathleen Bianco, J.D.
A federal district court in Maryland did not err in granting summary judgment in favor of a group of manufacturers in an asbestos exposure action, the Court of Appeals for the Fourth Circuit held in an unpublished opinion. In reaching its conclusions, the federal court of appeals found that the action had been properly removed to federal court under the federal-officer removal statute and that the lower court had appropriately applied the “frequency, regularity, and proximity” test to determine that the plaintiffs had not alleged sufficient exposure to the manufacturers’ asbestos-containing products to establish causation (Hurley v. CBS Corporation, May 6, 2016, per curiam).
Claude Harper and Ronald Hurley filed lawsuits against various manufacturers of asbestos materials, including CBS Corporation (Westinghouse), General Electric Corporation (GE), Foster Wheeler Energy Corporation (Foster Wheeler), and MCIC, Inc. Harper and Hurley claimed that they were injured as a result of exposure to asbestos-containing products present at the Key Highway Shipyard in Baltimore, Maryland. The complaints allege, among other claims, negligence and product defect/strict liability. All of the manufacturers filed motions for summary judgment asserting that they were entitled to judgment as a matter of law because the plaintiffs could not establish causation. The federal district court in Maryland granted the manufacturers’ motion for judgment. Plaintiffs have appealed the lower court’s ruling, arguing that the action should not have been removed to federal court and asserting that the federal court should not have applied the “frequency, regularity, and proximity” standard to determine whether the plaintiffs’ injuries were proximately caused by the manufacturers’ asbestos-containing products.
Federal officer removal statute. The federal officer removal statute allows for the removal of a state court action to federal court when the defendant is the United States or any agency, officer, or person acting under the color of any federal office. Under the statute, a defendant must establish that: (1) it is a "person" within the meaning of the statute "acting under" the direction of a federal officer; (2) it is able to raise a colorable federal defense; and (3) a causal connection between the injury and the actions under federal direction exists. Upon review, the court of appeals determined that the manufacturers had satisfied all three requirements because they were acting under valid government contracts and following government specifications. Based on this determination, the court concluded that the lower court’s denial of the plaintiffs’ motion to remand was warranted.
Proof of causation in asbestos-exposure actions. In an asbestos case applying Maryland law, a plaintiff must present evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked. The plaintiffs failed to present sufficient evidence of causation under the "frequency, regularity, and proximity" test to defeat the manufacturers’ motion for summary judgment. Applying the "frequency, proximity, and regularity" test, the court found that the testimony offered failed to prove actual exposure to the manufacturers’ asbestos-containing products on a regular enough basis to support the claims against the manufacturers. On appeal, the plaintiffs’ argued that the "frequency, proximity, and regularity" standard applied by the court was not the correct test. The court of appeals rejected this argument, reasoning that the Maryland Court of Appeals has repeatedly reaffirmed the applicability of this test to asbestos exposure cases under Maryland law. Furthermore, the appellate court determined that the test had been properly applied by the district court. Thus, the lower court’s grant of summary judgment in favor of the manufacturers was affirmed.
The case is No. 14-2049 and 14-2271.
Attorneys: John Amato (Goodman, Meagher & Enoch) for Ronald F. Hurley. Philip Andrew Kulinski (Evert Weathersby Houff) for CBS Corp., f/k/a Westinghouse. Donald Stephen Meringer (Meringer, Zois & Quigg, LLC) for General Electric Co. Louis Eberhardt Grenzer, Jr. (Bodie, Dolina, Hobbs, Friddell & Grenzer, PC) for MCIC, Inc., f/k/a McCormick Asbestos Co.
Companies: CBS Corp., f/k/a Westinghouse; General Electric Co.; MCIC, Inc., f/k/a McCormick Asbestos Co.
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