Ill. federal judge calls asbestos plaintiff's arguments 'unconvincing'

By Heather Isringhausen Gvillo | Jun 27, 2014

EAST ST. LOUIS, Ill. (Legal Newsline) - An Illinois federal judge has denied a plaintiff's motion to remand an asbestos lawsuit, finding that her arguments were "unconvincing."

Judge Donald Wilkerson of the United States District Court for the Southern District of Illinois delivered his decision on June 9 in favor of defendant Crane Co., a valve manufacturer. He said the plaintiff shifted the burden of proof by arguing the defendant failed to prove its products were aboard a U.S. Navy ship - leading to the question of why she named the company as a defendant in the first place.

On Sept. 18, 2013, Elaine Mohler filed her complaint against roughly 100 defendants in Madison County Circuit Court in Illinois individually and as special administrator for the estate of her husband Larry Mohler, who died in April 2012.

Mohler alleges that the decedent worked as a pipefitter while enlisted in the U.S. Navy from 1956 to 1959, and again in various employments after his service.

Through his work as a pipefitter, the decedent was allegedly exposed to asbestos fibers, causing him to develop mesothelioma in October 2011.

According to the nine-count complaint, the defendants are accused of failing to warn of asbestos hazards, failing to provide adequate safety instructions or equipment and fraudulently misrepresenting the dangers of asbestos exposure, among other allegations.

Then on Nov. 25, defendant Crane Co. removed the case to district court based on the Federal Officer Removal statute.

The Federal Officer Removal statute provides that "cases brought against a 'federal officer and their agents for actions done under the immediate direction of the national government' may be removed to federal court," Wilkerson stated.

In order for the statute to apply, Crane Co. is required to prove it is a person acting under the U.S. or its agencies and has a colorable federal defense to the alleged claims.

Wilkerson noted that Crane presented evidence showing that it manufactured equipment for the Navy according to military specifications developed and mandated by the Navy, meaning it is without question a person acting under direction of the Navy.

However, the plaintiff disputed that Crane presented sufficient evidence to present a colorable defense.

Crane responded by presenting evidence that the Navy provided precise and mandatory specifications and that the equipment manufactured by Crane conformed to the requirements.

Crane also provided an affidavit from Samuel A. Forman showing that the Navy was set requirements for asbestos warnings and safety standards, as well.

Forman stated that the Navy did not permit "a supplier of engineering equipment to a vessel or facility to affix or provide any asbestos-related warning with its equipment."

Crane also showed that the Navy knew of asbestos hazards and the injuries working with the dusty material could potentially cause.

Forman's affidavit explained that the Navy was not only knowledgeable "in the areas of asbestos and associated health conditions" but that "by the early 1940s, the Navy had become a leader in the field of occupational medicine related to, among other things, asbestos dust inhalation exposure."

Wilkerson said that in the light of the evidence presented by the defendant, Mohler's arguments are "unconvincing."

Mohler only addressed whether the federal contractor defense can be asserted against her failure-to-warn claim, which it can, he explained.

Also Mohler attacked the value of the defendant's evidence by indicating that Forman's opinions are "conjecture and speculation," which Wilkerson said misses the mark because Crane did not yet have the burden of proving its defense - only that it offered a colorable defense.

Lastly, Mohler argued that Crane hasn't produced any evidence showing its products were even on the ships the victim served upon or that it sold the products to the Navy.

Wilkerson said this argument then leads to the question of why the plaintiff even named Crane a defendant if there is no proof the products were aboard the ships the decedent served upon.

Wilkerson wrote that the court offers no opinion on the validity of Crane's federal contractor defense, just on its right to have the case tried in federal court.

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

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