Heather Isringhausen Gvillo Oct. 20, 2014, 10:38am

NEW BRUNSWICK, N.J. (Legal Newsline) – A New Jersey federal judge has held that remand was proper in an asbestos case when he concluded that The Boeing Company failed to prove that military specifications prohibited it from providing warnings on its aircraft.

Judge Peter G. Sheridan’s Oct. 9 order found in favor of plaintiffs Mary Sue Papp and Steven Papp, remanding the case back to the Superior Court of New Jersey for Middlesex County.

The plaintiffs claim Mary Sue Papp developed mesothelioma as a result of take-home asbestos exposure while laundering her husband Robert Keck’s work clothing.

Keck worked at various employments, including the military, where he was involved with C-47 aircraft designed and manufactured by defendant Boeing.

Keck was also allegedly exposed to asbestos dust while performing automotive repair work at Papp’s home, therefore exposing her to the dust.

Boeing removed the case to the U.S. District Court for the District of New Jersey according to the federal officer removal statute.

It claims the manufacturing process of the C-47 aircraft was performed under the control of the federal government, which required asbestos-containing government furnished aircraft equipment, or GFAE.

The plaintiffs, however, argue that Boeing’s removal was untimely and cannot satisfy the statutory requirements for federal officer removal.

Sheridan explains that there are four “prongs” to proving removal was proper according to the federal officer removal statute. Though, he only discussed one qualifying requirement because it was all that was needed to determine if remand is proper.

Sheridan addressed the level of control exercised by the federal officer or agency over the challenged conduct in question.

Boeing claims the military was “exclusively responsible for the procurement of the asbestos=containing components on which Keck ultimately worked, which were then provided to Boeing for subsequent installation on the aircraft pursuant to its military contracts.”

Boeing further argues that the military exercised “exclusive dominion and control” over whether warning labels were included in the GFAE manuals and could not place additional labels on any products beyond what was required by the military specifications.

“Moreover, Boeing was also required to comply with numerous self-authored military specifications, as well as the Air-Force-Navy Aeronautical Standards in performing under the contract, which controlled the design and construction of aircraft components, as well as the provision and contents of any warnings,” the order states.

Sheridan disagreed with Boeing’s allegations regarding the warning labels, noting that the claims alleged against Boeing in the plaintiffs’ amended complaint are based solely on the defendant’s failure to warn.

“Therefore, the analysis of whether the requirements for federal officer removal have been met must be undertaken solely within the context of plaintiffs’ failure to warn claims against Boeing,” he concluded.

Sheridan held the Boeing has successfully demonstrated that the military “tightly controlled” the design and manufacture of the C-47 and its components.

However, “not one of these documents indicates that a federal officer or agency directly prohibited Boeing from issuing, or otherwise providing, warnings as to the risks associated with exposure to asbestos…” the order states.

Therefore, the court concluded that Boeing failed to carry its burden of establishing that it was acting under the control of a federal officer when it failed to warn of the dangers associated with asbestos-containing components used in the C-47 aircraft.

As a result, Sheridan remanded the case back to the Superior Court of New Jersey.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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