Uncle Sam and Asbestos--the "causal nexus" requirement of the "Federal Officers Removal Statute" in a premises liability suit based on asbestos exposure.

The Surviving spouse and children of Joseph Weiss, who died as a result of asbestos-related mesothelioma, brought claims of negligence, intentional tort, and premises liability in Louisiana state court against the decedent’s former employer, DSM Copolymer, Inc. (“DSM”).  Plaintiffs claimed DSM exposed Mr. Weiss to asbestos during the course of his employment as a maintenance worker at DSM’s facility during the years 1956 – 1966.  DSM removed this suit from state court to federal court on the basis of the “federal officer removal statute.” (pdf)

In the Notice of Removal, DSM asserted that this suit involved a controversy concerning acts undertaken by the federal government. DSM asserted the following arguments in support of Removal:  the facility at issue was designed to the government’s technical specifications and built under the direct supervision of the government;  the original plans for this facility, which were prepared by the federal government, required the use of asbestos-containing insulation products so that the facility could reach necessary manufacturing heat levels;  when Mr. Weiss was an employee of this facility, it operated under the control and supervision of the government;  this facility manufactured butadiene and rubber for the government, until April 22, 1955, when DSM purchased it from the government; and that even after DSM purchased the facility, it remained under the “authority and control” of the government until 1965 because the sale was “conditioned on compliance with the Rubber Producing Facilities Disposal Act of 1953 and the National Security Clause.  This federal law required DSM to maintain the plant and to submit to government officer oversight for a ten-year period following the purchase and gave the government the unconditional right to possession and use of the plant during that ten-year period.  

In support of remand, plaintiffs argued that DSM failed to meet its burden of proving all three elements as required under 28 U.S.C. § 1442(a)(1), namely that “(i) it was acting ‘under color’ of the ‘office’ of the U.S. Government; (ii) there was a nexus between those actions and the harm alleged by Plaintiffs in this case; and (iii) it had a colorable federal defense.”  The gist of the plaintiffs’ arguments in support of remand was that DSM was not acting under the direction of the government at the time Mr. Weiss worked at its facility, and that there was no causal nexus between the federal government’s actions and the plaintiffs’ allegations of harmful asbestos exposure against DSM.  

In support of their Motion to Remand, plaintiffs provided evidence of the following: DSM owned the facility, and not the government, during the course of Mr. Weiss’ employment; DSM was charged with maintaining the facilities “free from waste or nuisance of any kind, and in good repair, working order and condition” and with making all needful and proper repairs, renewals, and replacements to the facility; the government only negotiated for a clause in the act of sale of the facility to DSM that required DSM to maintain the facility in a manner such that it could (if asked) produce butadiene and rubber for the government if needed; there was no evidence that a government representative ever supervised the facility at the time of Mr. Weiss’ employment; and that there was no evidence that the government required DSM to “not warn about the hazards of asbestos” or “to use the asbestos in a manner that allowed the asbestos particles to be released in the breathing zone of workers.”

The federal officer removal statute provides for the removal of a civil action against the U.S. government, or any agency or officer thereof, sued in an official capacity for any lawful act or purpose of the government. The purpose of this removal statute is to protect the lawful activities of the federal government from undue state interference.  The Court initially found that DSM’s ownership and operation of the facility at issue was subject to the National Security Clauses, by which the federal government required DSM to conduct operations in a manner consistent with the operating procedures and practices in place when it was owned and operated by the U.S. for war efforts.  For the purpose of the removal statute at issue, the Court noted that the National Security Clauses in the sale contract of the facility showed that DSM was acting under the direction of federal officers.  However, the Court ultimately determined that DSM failed to establish that a “casual nexus” existed between its actions, which it alleged were undertaken under color of the federal government, and the plaintiffs’ claims, as required by 28 U.S.C. § 1442(a)(1).

According to the Court, the “the key” to the causal nexus requirement in a chemical exposure case is “whether the government had specified the standards and supervised the production of the toxic compound that the plaintiff claimed she was exposed to.”  Additionally, to satisfy the “casual nexus” requirement in the “failure-to-warn” context, at a minimum, the removing defendant must show “that the government provided some level of direct control over warnings.”  Thus, to establish a causal connection regarding plaintiffs’ failure-to-warn negligence claims, DSM must present some evidence that the federal government restricted its ability to warn its employees about asbestos exposure.  DSM could not provide any evidence showing the federal government’s post-sale control over safety standards or warnings in relation to asbestos.  Therefore, the Court determined that DSM failed to meet the causal nexus requirement in relation to the plaintiffs’ failure-to-warn claim.

The Court also determined that DSM failed to demonstrate a “causal nexus” with regard to the plaintiffs’ premises liability claims.  In this context, DSM must show specific requirements by the government for the use of asbestos, as well as inspections ensuring the use of asbestos, on its property for the “causal nexus” requirement to be satisfied.  In sum, DSM did not produce any direct evidence that the U.S. government directed or required it to maintain asbestos at the facility where Mr. Weiss worked.  Nor was there any evidence presented by DSM showing that it was precluded from removing the asbestos-containing materials once it took full ownership and control of the facility at issue.  In support of its finding, the Court relied on a provision of the Act of Sale between the government and DSM, whereby DSM had the responsibility to sell or otherwise dispose of any of the machinery, equipment, or other property of the facility which had become “worn out, obsolete or otherwise unfit for use.”  Since DSM was responsible for maintaining and updating this facility during the course of Mr. Weiss’ employment, the decision to maintain asbestos at the facility fell on DSM.  The Court granted the plaintiffs’ motion and remanded the lawsuit back to state court.

Take-Away: Defendants seeking to remove a civil action under “the federal officer removal statute” must establish that their acts or omissions, which allegedly form the basis of the lawsuit, were subject to the federal government’s specific control.