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Douglas P. Leite and Mary Ann K. Leite v. Crane Company

May 31, 2012

DOUGLAS P. LEITE AND MARY ANN K. LEITE,
PLAINTIFFS,
v.
CRANE COMPANY, A DELAWARE CORPORATION, ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO TAKE AN INTERLOCUTORY APPEAL FROM ORDER DATED 4/16/12

ORDER GRANTING PLAINTIFFS' MOTION FOR LEAVE TO TAKE AN INTERLOCUTORY APPEAL FROM ORDER DATED 4/16/12

I. INTRODUCTION

The court grants Plaintiffs Douglas and Mary Leite's ("Plaintiffs") Motion for Leave to Take an Interlocutory Appeal on a question that has sharply and consistently divided many courts throughout the country -- whether a defendant who supplied products containing asbestos to the U.S. Navy may remove the action from state court on the basis of the federal officer removal statute, 28 U.S.C. § 1442(a)(1). In this court's view, permitting an interlocutory appeal would clearly serve the interests of justice by avoiding protracted and expensive litigation not only in this case, but also in many other cases already filed in this district and potentially scores of follow-on cases. That is, a resolution in this case by the Ninth Circuit will have substantial precedential value to a large number of other cases.

Plaintiffs filed this action on September 6, 2011 in the First Circuit Court of the State of Hawaii asserting claims against eighteen Defendants that manufactured, sold and/or supplied various products containing asbestos to the United States Navy. As alleged in the Complaint, Douglas Leite was exposed to asbestos contained in Defendants' products while working as a machinist at the Pearl Harbor Naval Shipyard from 1966 to 1972, causing him to develop asbestos-related diseases. As to those Defendants that supplied asbestos products, the Complaint asserts claims for failure to warn.

On October 21, 2011, Defendant Crane Company ("Crane"), a supplier of asbestos products, removed the action to this court pursuant to 28 U.S.C. § 1442(a)(1), which allows removal where a defendant can establish a colorable federal defense. In response, Plaintiffs filed their Motion to Remand, arguing that Defendants failed to establish two necessary elements of the defense -- (1) a colorable federal defense and (2) a causal nexus between their actions, taken pursuant to a federal officer's directions. On January 23, 2012, Magistrate Judge Richard L. Puglisi entered his Findings and Recommendation to grant Plaintiffs' Motion for Remand (the "January 23 F&R"), finding that Defendants had not established these elements.

Several Defendants objected to the January 23 F&R, and on April 16, 2012, the court entered its Order (1) Sustaining Objections to the January 23 F&R; and (2) Denying Motion for Remand (the "April 16 Order"). The April 16 Order recognized that the parties' arguments had already been presented to numerous courts in other asbestos cases, which had come to different conclusions regarding a defendant's evidentiary burden and whether a defendant can establish the defense by presenting evidence that the government exercised some amount of discretion in determining what warnings to include, or must present evidence that the government actually considered and prevented the defendant from including an asbestos warning. After a lengthy analysis, the court ultimately determined that Defendants properly removed this action pursuant to § 1442(a)(1). In particular, the court found admissible Defendants' expert affidavits asserting that the Navy would not have allowed warnings, and explained that this evidence was sufficient to establish a colorable federal defense.

Plaintiffs filed their Motion for Leave to Take an Interlocutory Appeal from the April 16 Order on May 1, 2012. Defendant Crane filed its Opposition on May 16, 2012, and Plaintiffs filed their Reply on May 24, 2012. The other asbestos actions pending before this court are in various stages of briefing on the removal issue, and are awaiting resolution in this action. Based on the following, the court GRANTS Plaintiffs' Motion.

II. ANALYSIS

Plaintiffs seek an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), which provides a means for litigants to bring an immediate appeal of a non-final order with the consent of both the district court and the court of appeals. Pursuant to § 1292(b), a district court may certify an order for interlocutory appeal if the movant establishes that (1) there is a controlling question of law, (2) there are substantial grounds for difference of opinion, and (3) an immediate appeal may materially advance the ultimate termination of the litigation.*fn1

A movant seeking an interlocutory appeal has a heavy burden to show that "exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978); see also James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1067 n.6 (9th Cir. 2002) ("Section 1292(b) is a departure from the normal rule that only final judgments are appealable, and therefore must be construed narrowly."); Pac. Union Conference of Seventh-Day Adventists v. Marshall, 434 U.S. 1305, 1309 (1977) ("The policy against piecemeal interlocutory review other than as provided for by statutorily authorized appeals is a strong one." (citations omitted)). Indeed, § 1292(b) is used "only in exceptional situations in which allowing an interlocutory appeal would avoid protracted and expensive litigation." In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th Cir. 1982) (citing U.S. Rubber Co. v. Wright, 359 F.2d 784, 785 (9th Cir. 1966) (per curiam)). Based on the following, the court finds that Plaintiffs have met this heavy burden.

1. Substantial Grounds for Difference of Opinion

The Ninth Circuit recently described the "substantial grounds for difference of opinion" requirement as follows:

To determine if a "substantial ground for difference of opinion" exists under § 1292(b), courts must examine to what extent the controlling law is unclear. Courts traditionally will find that a substantial ground for difference of opinion exists where "the circuits are in dispute on the question and the court of appeals of the circuit has not spoken on the point, if complicated questions arise under foreign law, or if novel and difficult questions of first impression are presented."

3 Federal Procedure, Lawyers Edition § 3:212 (2010) (footnotes omitted). However, "just because a court is the first to rule on a particular question or just because counsel contends that one precedent rather than another is controlling does not mean there is such a substantial difference of opinion as will support an interlocutory appeal." Id. (footnotes omitted).

Couch v. Telescope Inc., 611 F.3d 629, 633 (9th Cir. 2010).

At issue in the April 16 Order was whether Defendants carried their burden of establishing removal pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1), and in particular whether Defendants established (1) a colorable federal defense and (2) a causal nexus between their actions, taken pursuant to a federal officer's directions. In support of removal, Defendants submitted the affidavits -- as they have in many other similar cases throughout the country -- of Rear Admirals Roger B. Horne Jr. and David P. Sargent and Dr. Samuel P. Forman, which assert that the Navy would not have allowed Defendants to include asbestos warnings with their products and manuals. These affidavits and the parties' arguments presented several legal issues dispositive of the removal issue, including the evidentiary burden a defendant must carry in establishing a colorable federal defense, and whether a defendant can establish the defense by presenting evidence that the government exercised some amount of discretion in determining what warnings to include.

The same affidavits and issues have been presented in each of the twelve actions pending in this court, and these same and/or similar affidavits have been previously presented in numerous other actions. Despite presenting common facts, numerous district court cases that have addressed these same issues and/or evidence, and reached different decisions. Cases denying remand include the multidistrict asbestos litigation, Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770 (E.D. Pa. ...


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