Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : : : : : : : : : : : :

FREDERICK SEITZ and MARY LOUISE SEITZ, his wife Plaintiffs, v.

C.A. No.: 08-CV-0351 GMS

Jury of Twelve Demanded

ADEL WIGGINS GROUP, et al., Defendants.

OPPOSITION OF DEFENDANT BELL HELICOPTER TEXTRON INC. TO PLAINTIFFS' MOTION TO REMAND

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TABLE OF CONTENTS

TABLE OF AUTHORITIES.................................................................................ii

INTRODUCTION.............................................................................................1

ARGUMENT...................................................................................................6 I. Plaintiffs Cannot Amend the Complaint to Defeat Jurisdiction or Waive Bell's Affirmative Defenses........................................................................3 Bell Acted Pursuant to Federal Direction .............................................5

II. III.

There is a Causal Nexus between Plaintiffs' Claims and Bell's Acts under the Direct and Detailed Control of the Government .......................................8 Bell has a Colorable Federal Contractor Defense......................................12

IV.

CONCLUSION...............................................................................................15

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TABLE OF AUTHORITIES Cases Akin v. Big Three Indus. Inc., 851 F. Supp. 819 (E.D. Tex. 1994) ....................................9 Albright v. R.J. Reynolds Tobacco Co., 531 F.2d 132 (3d Cir. 1976) .................................3 Angus v. Shiley, Inc., 989 F.2d 142, 145 (3d Cir. 1993) .................................................3 Brewster v. A.W. Chesteron Company, 2007 WL 1056774 (N.D. Cal.) ...........................2

Brown v. Southwestern Bell, 901 F.2d 1250, 1254 (5th Cir.1990) .....................................4 Boyle v. United Technologies, Inc., 487 U.S. 500 (1988) ..............................................12 Cavallini v. State Farm Mut. Auto. Ins. Co., 44 F.3d 256 (5th Cir. 1995) ..........................3 Cervantez v. Bexar County Civil Service Comm'n, 99 F.3d 730 (5th Cir. 1996).........................................................................................................................................4 Ching v. Mitre Corp., 921 F.2d 11 (1st Cir. 1990)........................................................4 Fung v. Abex Corp., 816 F. Supp. 569 (N.D. Cal. 1992)..............................................6, 12 Gulati v. Zuckerman, 723 F. Supp. 353 (E.D. Pa. 1989) ...................................................6 Hammond v. Terminal R.R. Ass'n of St. Louis, 848 F.2d 95, 97 (7th Cir. 1988) .....................4 Hilbert v. Aeroquip, Inc., 486 F.Supp.2d 135 (D. Mass. 2007) ........................................11 Hilbert v. McDonnell Douglas Corp., 529 F. Supp.2d 187 (D. Mass. 2008) ...............2, 11-12 Holland / Blue Streak v. Barthelemy, 849 F.2d 987, 989 (5th Cir.1988)..............................4 Husing Group of Cos. v. Auction 123, Inc., 2008 U.S. Dist. LEXIS 2983 (W.D. Pa. 2008) 3-4, 9 Jefferson County v. Acker, 527 U.S. 423 (1999) .......................................................12 Madden v. Able Supply Co., 205 F.Supp.2d 695 (S.D. Tex. 2002) ..................................13 Maryland v. Soper (No. 1), 270 U.S. 9 (1926) ............................................................9 Matthews v. Key Bank U.S.A. Nat'l Ass'n, 1999 U.S. Dist. LEXIS 9099 (E.D. Pa. 1999) .........3 Mercante v. Preston Trucking Co., 1997 U.S. Dist. LEXIS 6120.......................................4

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Mesa v. California, 489 U.S. 121 (1989)

.........................................................9, 12

New Rock Asset Partners, L.P. v. Preferred Entity Advancements, Inc., 101 F.3d 1492 (3d Cir. 1996)............................................................................................................4 Nguyen v. Allied Signal, Inc., 1998 U.S. Dist. LEXIS 15517 (N.D. Cal. 1998).................11-12 Pullman Co. v. Jenkins, 305 U.S. 534, 537-38 (1939)...................................................3 Robinson v. Quality Ins. Co., 633 F. Supp. 572 (S.D. Ala. 1986).......................................4 St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 293-94 (1938)..........................3 Westmoreland Hosp. Ass'n v. Blue Cross of W. Penn., 605 F.2d 119 (3d Cir. 1979) ...............3

Statutes and Regulations 28 U.S.C. § 1442(a)(1).......................................................................................12

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INTRODUCTION Plaintiffs, Frederick and Mary Louise Seitz, initiated the instant asbestos litigation against thirty defendants on April 25, 2008, in the Superior Court of the State of Delaware for New Castle County, alleging that the defendants, including Bell Helicopter Textron Inc. ("Bell") specified, manufactured, distributed, sold, licensed, leased, installed, removed, developed, or used asbestos-containing products. See Plaintiffs' Complaint, at ¶ 36 (Ex. A). In their

complaint, plaintiffs specifically asserted theories of liability including product design and manufacturing defect, state law failure to warn, and further complained of the use of asbestos in the design and manufacturing processes. See Ex. A at ¶¶ 45, 49, 53-54. On June 11, 2008, Bell removed this matter to the United States District Court for the District of Delaware on the basis of federal office removal jurisdiction. See Ex. B. Thereafter, both Bell and codefendant Northrop Grumman ("Grumman") filed separate Notices of Tag-Along Action with the Panel on Multidistrict Litigation, seeking to transfer this matter for consolidation and coordination of pretrial proceedings to the MDL to become part of the In re Products Liability Litigation, Docket No. MDL-875 ("MDL-875") currently pending in the Eastern District of Pennsylvania before the Honorable James T. Giles. See Ex. C. In the interest of avoiding duplicative or conflicting rulings on pretrial issues in this case, Grumman filed a motion for stay of the proceedings in this matter pending a decision on transfer by the Judicial Panel on Multidistrict Litigation to the MDL-875. See Ex. D. On June 26, 2007, plaintiffs filed a Brief in Opposition to Grumman's Motion for Stay of the Proceedings, challenging the requested stay of the proceedings on the grounds that removal of this action was improper and that a stay would be prejudicial to plaintiff Mr. Seitz. See Ex. E. Of significance,

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nowhere in plaintiffs' Opposition do they make any mention of the intended withdrawal of any of the claims against the defendants, particularly those of design and manufacturing defect. Curiously, although plaintiffs had every opportunity to do so prior to service with Grumman's Reply Brief in Support of its Motion for Stay of the Proceedings, plaintiffs did not choose to withdraw any of the claims asserted against the defendants until three days after Grumman filed same. See Ex. F. Plaintiffs' timing as to their waiver of these claims is significant, as Grumman's Reply Brief distinguished as factually inapplicable the Hilbert v. Aeroquip, Inc., 486 F.Supp.2d 135 (D. Mass. 2007) and Brewster v. A.W. Chesteron Co., 2007 WL 1056774 (N.D. Cal.), cases which plaintiffs relied upon heavily in support of their argument against stay of the proceedings and for remand of the matter to State court. See Ex. E, at p. 2, 57. In particular, Grumman distinguished these cases by noting that both Hilbert and Brewster expressly limited their rulings to the facts of the particular case, wherein the claims alleged against the defendants were based solely on theories of state law failure-to-warn. Id. at 2. Significantly, a mere three days after Grumman filed its Reply Brief explaining that the Hilbert and Brewster cases were factually inapplicable in that the holdings therein only applied to sole state law failure to warn cases, plaintiffs filed a Waiver of Claims with this Court, waiving all claims asserted against the defendants other than state law failure to warn. See Ex. G.

Thereafter, on July 29, 2008, plaintiffs filed a Motion to Remand the instant matter back to state court, this time asserting that since the only claim alleged thereby is one based on state law failure to warn, remand is proper because defendants do not meet the criteria for federal officer removal jurisdiction.

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I.

Plaintiff Cannot Amend the Complaint to Defeat Jurisdiction or Waive Bell's Affirmative Defenses In filing their Waiver of Claims a mere three days after it became evident that the main

cases plaintiffs relied upon in support of their motion for remand apply only to cases solely alleging failure to warn causes of action, plaintiffs are now attempting to manipulate the federal removal system to wrongfully defeat jurisdiction. In considering the propriety of removal, federal courts will base their review upon "the facts and circumstances as they existed at the time the notice of removal was filed." Husing Group of Cos. v. Auction 123, Inc., 2008 U.S. Dist. LEXIS 2983, at *6-7 (W.D. Pa. 2008) (citing Pullman Co. v. Jenkins, 305 U.S. 534, 537-38 (1939); Angus v. Shiley, Inc., 989 F.2d 142, 145 (3d Cir. 1993); Westmoreland Hosp. Ass'n v. Blue Cross of W. Penn., 605 F.2d 119, 124 (3d Cir. 1979); Albright v. R.J. Reynolds Tobacco Co., 531 F.2d 132, 135 (3d Cir. 1976)). Moreover, federal jurisdiction is determined by the state court complaint as it existed at the time of removal. See Westmoreland Hosp., 605 F.2d at 12324. Courts within this Circuit and others have consistently held that "as a general rule of law, subsequent amendments made to destroy federal jurisdiction do not transform a proper removal into an improper removal." Husing Group, 2008 U.S. Dist. LEXIS 2983, at *6 (holding that there was no question that plaintiff amended complaint for purpose of avoiding federal jurisdiction and therefore plaintiff's amendment, after removal, could not divest federal court of jurisdiction) (citation omitted); St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 29394 (1938); Westmoreland Hospital., 605 F.2d at 123); Cavallini v. State Farm Mut. Auto. Ins. Co., 44 F.3d 256, 265 (5th Cir. 1995) ("Removal jurisdiction should be determined on the basis of the state court complaint at the time of removal, and . . . a plaintiff cannot defeat removal by amending it."). See also Matthews v. Key Bank U.S.A. Nat'l Ass'n, 1999 U.S. Dist. LEXIS 9099 (E.D. Pa. 1999) (holding that plaintiffs' attempt to defeat jurisdiction by dropping federal claim

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which gave rise to removal jurisdiction did not strip federal court of subject matter jurisdiction); Robinson v. Quality Ins., 633 F. Supp. 572, 577 (S.D. Ala. 1986) ("Action by a plaintiff subsequent to removal cannot deprive this Court of jurisdiction if the removal was proper when filed."); Brown v. Southwestern Bell, 901 F.2d 1250, 1254 (5th Cir.1990); Hammond v. Terminal R.R. Ass'n of St. Louis, 848 F.2d 95, 97 (7th Cir.1988), cert. denied, 489 U.S. 1032 (1989) ("Removal is not defeated by the fact that, after the case is removed, the plaintiff files a new complaint, deleting the federal claim or stating a claim that is not removable."); Holland / Blue Streak v. Barthelemy, 849 F.2d 987, 989 (5th Cir. 1988) ("The assertion of a claim under a federal statute alone is sufficient to empower the District Court to assume jurisdiction over the case...") (internal quotation omitted, footnote omitted), quoted in Cervantez v. Bexar County Civil Service Comm'n, 99 F.3d 730, 733 (5th Cir.1996); Ching v. Mitre Corp., 921 F.2d 11, 1314 (1st Cir. 1990) ("amendment to complaint after removal designed to eliminate the federal claim will not defeat jurisdiction"). This rule is specifically intended "to prevent strategic manipulation of the federal court's jurisdiction." Husing Group, 2008 U.S. Dist. LEXIS 2983, at *6 (citing New Rock Asset Partners, L.P. v. Preferred Entity Advancements, Inc., 101 F.3d 1492, 1503-04 (3d Cir. 1996)). Indeed, with respect to this sort of jurisdictional manipulation, it has been held that plaintiffs are "not entitled to toy with the federal courts for strategic or tactical reasons. The removal statutes are not to be used, or avoided, for mere tactical reasons."

Mercante v. Preston Trucking Co., 1997 U.S. Dist. LEXIS 6120, at *13 (quoting Robinson v. Quality Ins. Co., 633 F. Supp. 572, 577 (S.D. Ala. 1986)). Looking to the facts of this case, it is evident that plaintiffs' waiver of each and every federal claim they initially set forth in their Complaint, a mere three days after learning that the cases upon which they based their remand arguments applied solely to failure to warn causes of

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action, is an attempt by the plaintiffs to manipulate the federal courts in order to improperly defeat jurisdiction. Indeed, plaintiffs' initial fifty-seven paragraph complaint set forth in detail four distinct counts asserted against the defendants herein, which included claims of strict product liability, loss of consortium, willful and wanton conduct, negligence, and, within those, claims based upon alleged manufacturing and design defect. See Ex. A. Although plaintiffs had every opportunity to amend their complaint since the initial filing date of April 25, 2008, plaintiffs chose to wait over two months to do so, and thereafter curiously chose to waive all claims except the state law failure to warn claim which codefendant Grumman established was the only situation upon which the cases cited by plaintiff would have any application. Accordingly, looking to the facts and circumstances as they existed at the time the notice of removal was filed, it is clear that removal was properly effected and that subject matter jurisdiction existed on the basis of federal officer jurisdiction. Accordingly, as plaintiffs were clearly attempting to "toy with the federal courts for strategic or tactical reasons" in order to defeat jurisdiction, removal of this matter was proper and plaintiffs' amendment of its complaint, essentially seeking to waive the government contractor affirmative defense to which Bell is rightfully entitled, should not stand to limit this action to a sole state law failure-to-warn case. II. Bell Acted Pursuant to Federal Direction Contrary to plaintiffs' unfounded assertion in their Motion to Remand that defendant Bell has "not demonstrated that [it] was acting at the direction of an officer of the United States" such as to satisfy a necessary element of federal officer removal jurisdiction, Bell has in fact provided ample evidence in support of its contention that it was acting at the direction of the federal government in contracting to design and manufacture the military helicopters which plaintiff Mr. Seitz piloted and worked on or around and that allegedly may have exposed him to asbestos

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containing components which were incorporated into these aircraft at the direction of the government. Indeed, as described more fully in Bell's Notice of Removal, during all times mentioned by plaintiff when he was allegedly exposed to asbestos containing products while serving in the military as a mechanic, electrician apprentice, and helicopter pilot, the only Bell products which Mr. Seitz would have encountered ­ the Bell UH-1 (Huey) and AH-1 (Cobra) ­ were products manufactured and delivered via contract with the United States government and pursuant to precise military specifications over which the United States, and its officer and employees, had control. Those specifications called out every design detail and controlled the design and manufacture of those military products. Indeed, Bell "delivered any helicopter and part to the US Army pursuant to a Government contract requiring Bell to adhere to detailed Governmentapproved design, production, marking and shipping specifications." See Declaration of William T. Wilson (former Director of Helicopter Contracts for Bell and employed by Bell in contract administration for thirty-two years) (Ex. H). A party is said to be "acting under" the direction of a federal officer such as to warrant removal jurisdiction on this basis, where the federal officer has "direct and detailed control" over the party. See Fung v. Abex Corp., 816 F. Supp. 569, 572 (N.D. Cal. 1992). The "direct control" requirement is established by showing a "`strong government intervention and the threat that a defendant will be sued in state court `based upon actions taken pursuant to federal direction.'" Id. (quoting Gulati v. Zuckerman, 723 F. Supp. 353, 358 (E.D. Pa. 1989)). Since 1951, defendant Bell has contracted for and supplied thousands of helicopters to the United States Government for use in the military, including H-13, UH-1, and AH-1 series aircrafts. See Declaration of Owen Kaiser, at ¶ 3 (thirty-eight year employee of Bell in the Power Plant Design Group and former Chief of Power Plant Design at Bell in Hurst, Texas) (Ex. I). Bell had to

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follow "specific Government-approved procedures, regulations, laws and standards for the design, materials, marking, production, and delivery of these helicopters" during this time. Id. Moreover, as explained in detail by Wilson: The U.S. Government actively participated in the development of the UH-1 and AH-1 series helicopters. To facilitate the Government's review and approval of the design and production specifications and engineering drawings, the Government maintained a staff of military and civilian representatives at Bell's plant. From the 1960's to the present, the Government has maintained scores of personnel at Bell's plant to ensure the helicopters were built in accordance with the Detail Specifications . . . They were charged with reviewing and approving engineering drawings, assuring adherence to military specifications and requirements, assisting Bell's employees in achieving full compliance with military contract requirements, approving manufacturing and assembly processes and products, and accepting helicopters and supplies on behalf of the Government after determining they met every contract requirement. Ex. H, at ¶ 10. In addition, the Government was "directly and intimately involved with the development of the Bell UH-1 helicopter and controlled the details of the design of every aspect of the manufactured helicopters, including, without limitation, the types of materials (such as asbestos) used in the helicopters and their component parts." Ex. I, at ¶ 14. Representatives of the government monitored and reviewed the work of the helicopter manufacturers at "every step in the design and manufacturing process, and Government evaluation and approval had to occur at every step." Ex. H, at ¶ 14. Furthermore, with respect to the other helicopters supplied by Bell for military use to the United States Government, including the H-13, UH-1, and AH-1 series aircrafts, Bell "had to follow specific Government-approved procedures, regulations, laws and standards for the design, materials, marking, production, and delivery of these helicopters." Id., at ¶ 3. In addition, the original flight and maintenance manuals which were used in the UH-1 and AH-1 series helicopters

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"were developed and written at the specific direction of the military as to content. The military reviewed and independently considered each draft of the manuals" and the Government "controlled both the original content and any subsequent revisions to the manuals." Id., at ¶ 24. Bell not only had to strictly comply with all government specifications for the military helicopters it manufactured, it "had little or no leeway in determining the required design of the helicopters, including materials for the component parts and their paintings and markings." Id., at ¶ 22. Indeed, Bell executed the helicopter contracts "in accordance with the requirements of the Detail Specification prepared at the direction of the Government, approved by the Government, and incorporated by reference in the contracts." Id., at ¶ 15. These specifications incorporated a large and lengthy list of military specifications, known as "mil specs," which required compliance therewith and which described "the characteristics for helicopter parts containing asbestos as required by the Detail Specifications." Id. Significantly, the seals and gaskets which a Bell production employee might have been exposed to were exactly these sorts of parts. Id. Moreover, every helicopter or helicopter component part which the Government accepted from Bell was done so "only after the Government confirmed the aircraft or part conformed to the contract specifications." Id., at ¶ 26. Furthermore, the subject helicopters and component parts for which the government mandated the use of asbestos and which had to conform to precise contract specifications set forth by the government were designed by Bell specifically for the U.S. Military. See Ex. I, at ¶ 4. Indeed, as explained in the Declaration of Owen Kaiser, "there were no predecessor civilian counterparts to either the UH-1 helicopter or the Lycoming T53 engine" and further that they were both "originally designed for military use." Id.

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Moreover, contrary to plaintiffs' assertions that the government did not require the use of asbestos, as explained in the Declaration of William T. Wilson, the military did in fact mandate the use of asbestos in the products designed and manufactured by Bell. Specifically, Wilson explains that the United States Air Force established certain specifications for the production of the XH-40 aircraft, a predecessor to the UH-1 and UH-1H series helicopters, which required "the use of asbestos in certain seals and gaskets on the stainless steel enclosure the government mandated for the engine compartment." Ex. I, at ¶ 5. The use of asbestos was required by the government for the purpose of "prevent[ing] the spread of fire from the engine compartment to the passenger compartment." Id. Indeed, the government not only mandated the use of asbestos by Bell in the manufacture of the helicopters to which Mr. Seitz may have been exposed during his lifetime, but also provided Bell with "no discretion in its use of asbestos in the helicopters." Id., at ¶ 27. What is more, had Bell refused to follow this performance requirement mandating the use of asbestos, Bell "would have been subject to numerous civil and criminal penalties" as a result of this refusal. Id. Consequently, it is clear that Bell was "acting under" an officer of the United States when its companies designed and manufactured the military products in question. Therefore, those actions of Bell are inseparable from the pervasive government specifications, regulations, and oversight, and a clear nexus exists between their alleged actions at the direction of the government and plaintiffs' claims for relief in the removed action. III. There is a Causal Nexus between Plaintiffs' Claims and Bell's acts under the Direct and Detailed Control of the Government Plaintiffs further assert in their Motion to Remand that Bell failed to establish the existence of a causal connection between the charged conduct and the government authority under which Bell asserts it acted. See Pls.' Br., at p. 13. Although plaintiffs limit their argument to what a defendant must show in a failure to warn case to establish this causal nexus, as

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discussed above, plaintiffs may not manipulate the removal process by amending their complaint to waive federal claims against the defendant after a case has been properly removed to federal court, simply to defeat federal jurisdiction. Therefore, the instant causal nexus analysis will focus on plaintiffs' claims as initially set forth in the complaint and as they existed at the time of removal, including those claims based upon the use of asbestos in the design and manufacturing processes of the Bell helicopters and component parts in question. See Husing Group, 2008 U.S. Dist. LEXIS 2983, at *6-7. In order to show the existence of a causal nexus between the plaintiffs' claims and the acts undertaken under federal authority and direction, a defendant must show that state court action "has arisen out of the acts done by [it] under color of federal authority and in enforcement of federal law, and [it] must by direct averment exclude the possibility that it was based on acts or conduct of his not justified by his federal duty." Mesa, 489 U.S. at 131-32 (quoting Maryland v. Soper (No. 1), 270 U.S. 9, 33 (1926)). Moreover, "when a government contractor builds a product pursuant to Air Force specifications and is late sued upon because compliance with those specifications allegedly causes personal injuries, the nexus requirement is satisfied." Akin v. Big Three Indus. Inc., 851 F. Supp. 819, 823-24 (E.D. Tex. 1994). Here, plaintiffs have brought this asbestos personal injury action against Bell and other defendants on the basis of alleged asbestos exposure from Mr. Seitz's work with Bell helicopters and component parts manufactured by Bell for the federal government and under the government's direct authority and control. Bell has clearly provided evidence establishing that plaintiffs' state court action arose out of acts done by Bell under color of federal authority, sufficient to establish the causal nexus requirement of federal officer removal jurisdiction. As provided in the Declaration of William T. Wilson, Bell was required to strictly comply with

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government specifications for all of the military helicopters manufactured thereby, and "had little or no leeway in determining the required design of the helicopters, including materials for the component parts and their paintings and markings." Ex. H at ¶ 22. As explained by Wilson, the Untied States Air Force specifically required "the use of asbestos in certain seals and gaskets on the stainless steel enclosure that the Government mandated for the engine compartment", for the purpose of preventing fire which may arise in the engine compartment from spreading into the passenger compartment. Id., at ¶ 5. With respect to plaintiffs' failure to warn claims, Wilson's Declaration further explains that Bell had to follow "Government-evaluated and -approved Detail Specifications concerning the design, materials, paintings and markings for those helicopters and their component parts" during "every step in the development and production" of the UH-1 and A-1 series helicopters. Id., at ¶ 25. As such, since none of the Government Specifications provided for asbestos warnings to be placed on any of the UH-1 or A-1 series helicopters manufactured by Bell, Bell therefore had no authority or discretion to deviate from these specifications and place any such warnings on these products. This is particularly true in light of the fact that Bell had no knowledge "of the dangers, if any, concerning the design, materials, painting, and markings for those helicopters and their component parts which Government was not already aware of." Id. at ¶ 25. Therefore, if the Government had knowledge of the alleged danger of using asbestos in these helicopters and their components, and nonetheless did not specifically and explicitly provide for such markings to be placed on the products, Bell had no discretion to do so, and in fact would have been subject to "a variety of penalties under US law, including civil and criminal sanctions," had it failed to manufacture the military helicopters "in strict compliance with Government specifications." Id. at ¶ 13. Indeed, Bell was not permitted to change these

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specifications "in any way without the express authorization of the Government." Id. Moreover, even the original flight and maintenance manuals for the UH-1 and AH-1 series helicopters were "developed and written at the specific direction of the military as to content." Id. at ¶ 24. Each draft was reviewed and considered on an independent basis by the military, and the Government controlled both the original content of the manuals as well as any subsequent revisions thereto. See id. at ¶ 24. Plaintiffs cite to a number of cases, including Hilbert v. McDonnell Douglas Corp., 529 F.Supp.2d 187 (D. Mass. 2008) and Nguyen v. Allied Signal, Inc., 1998 U.S. Dist. LEXIS 15517 (N.D. Cal. 1998), in support of the argument that Bell failed to show the existence of a causal connection between its conduct and the color of federal office. See Pls.' Br., at 13-16. Of significance, however, the vast majority of the cases cited by plaintiffs in support of this proposition are factually distinguishable and inapplicable to the matter at hand, and in all but one of those cases the plaintiffs' sole theory of liability and the court's basis for remand was a state law failure to warn claim. See Pls.' Br., at 13-17 (citing Weese v. Union Carbide Corp., 2007 U.S. Dist. LEXIS 73970 (S.D. Ill. 2007); Westmiller v. IMO Indus., Inc., 2005 U.S. Dist. LEXIS 29371 (W.D. Wash. 2005); Hilbert v. McDonnell Douglas Corp., 529 F. Supp. 2d 187); Faulk v. Owens-Corning Fiberglass Corp., 48 F. Supp. 2d 653 (E.D. Tex. 1999); Vanouwerkerk v. Owens-Corning Fiberglass Corp., 1999 WL 335960 (E.D. Tex. 1999); Nguyen, 1998 U.S. Dist. LEXIS 15517; Freiberg v. Swinterton & Walberg Prop. Servs., Inc., 245 F. Supp. 2d 1144 (D. Colo. 2002)).1 Moreover, unlike the facts of the instant matter, there was no evidence presented in either Hilbert or Nguyen to suggest that plaintiffs attempted to manipulate the federal removal
Although the plaintiffs in Freiberg allege more than just a claim for state law failure to warn, the case is nonetheless factually distinct from the matter at hand because all of plaintiffs' theories of liability alleged therein are state law claims (i.e. negligence, conspiracy, and failure to warn), and none of these claims allege any sort of design or manufacturing product defect as alleged by the Seitz plaintiffs herein.
1

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process following a proper removal of the case, by withdrawing federal claims asserted against the defendants in order to defeat federal jurisdiction. See Nguyen, 1998 U.S. Dist. LEXIS 15517; Hilbert, 529 F. Supp. 2d 187. Indeed, the Hilbert court acknowledged that removal based upon the federal contractor defense is applicable to design defect or manufacturing defect claims, and even recognizes that the law remains generally unsettled as to the applicability of the federal contractor defense to failure to warn cases. See Hilbert, 529 F. Supp. 2d at 191-92. IV. Bell has a Colorable Federal Contractor Defense As articulated in Boyle v. United Technologies, Inc, 487 U.S. 500 (1988), Bell has clearly shown that it has a colorable federal defense such as to warrant removal under § 1442(a)(1) on the grounds of federal officer jurisdiction. In Boyle, the Supreme Court held that: Liability for design defects in military equipment cannot be imposed pursuant to state law, when (1) the United Stats approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States. Boyle, 487 U.S. at 412. The removing party "need not show for the purposes of removal that the defense is meritorious, but only whether there is a colorable claim to such a defense." Mesa v. California, 489 U.S. 121, 128-29 (1989); Fung v. Abex Corp., 816 F. Supp. 569, 572 (N.D. Cal. 1992). Indeed, the Supreme Court has held that "one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court," therefore, the officer is not required "virtually to win his case before he can have it removed" or to have "an airtight case on the merits." Jefferson County v. Acker, 527 U.S. 423, 431 (1999). Removal is appropriate, and defendant satisfies this final requirement for removal under § 1442(a)(1), where he asserts "government contractor immunity as a colorable federal defense." Fung, 816 F. Supp. at 572.

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Bell was not an asbestos products manufacturer, but rather was a manufacturer of helicopters and helicopter component parts, and therefore had no greater opportunity to know of the dangers of asbestos than did the Government. Indeed, as Owen Kaiser explained in his Declaration, "any knowledge possessed by the manufacturers of the UH-1 helicopter models and their components was conveyed to the Government. It is my belief that the manufacturers of the UH-1 helicopters and their component parts had no knowledge of any danger in the use of the UH-1 helicopter model components that was not known to the Government." Ex. I, at ¶ 19. Similarly, William T. Wilson set forth in his Declaration that "Bell had no actual knowledge of any danger in the use of asbestos in helicopter components that was not known to the US Government." Ex. H, at ¶ 23. Nor did Bell possess any knowledge "of the dangers, if any, concerning the design, materials, painting, and markings for those helicopter and their component parts which Government was not already of." Id., at ¶ 25. Therefore, Bell did not owe a duty to warn the Government of any asbestos hazards. As set forth in Madden v. Able Supply Co., 205 F. Supp. 2d 695, 702 (S.D. Tex. 2002), "plaintiff's claims against [the defendant] pertain to the design, construction and installation of [the products] on U.S. navy vessels and to the warnings (or the lack thereof) affixed to these products. These [products] were constructed pursuant to stringent Naval specifications. Moreover, any warnings promulgated (or not promulgated) with respect to the [products] were governed by Navy guidelines. Thus the causal nexus is axiomatic. Accordingly, because all three prongs of the Mesa test are satisfied in this case, Plaintiff's motion to remand is hereby denied . . . ." Madden, 204 F. Supp. 2d at 701702. Similar to Madden, plaintiffs' claims against the defendants in the instant matter pertain to the design, manufacture, construction, use, and installation of the helicopters and their

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component parts. Despite the fact that certain parts of plaintiffs' complaint assert failure-to-warn theories of liability, the complaint also set forth theories of liability based on manufacturing and design defect, and complains of the use of asbestos in the design and manufacturing processes. See Ex. A, at ¶¶ 45, 49, 53-54. As discussed previously, although plaintiffs' utterly transparent decision to waive all but state law failure to warn claims is an attempt to manipulate the judicial system and obtain a favorable decision on a motion to remand, plaintiffs may not waive the valid affirmative defenses of Bell which it is fully entitled to raise. Therefore, the federal contractor defense nonetheless applies to the matter at hand and has been adequately set forth by Bell such as to warrant removal on the grounds of federal officer jurisdiction. Indeed, as discussed further above and as noted in Bell's Notice of Removal, the United States Government provided precise specifications for the helicopters built by Bell and required the use of asbestos containing components in those helicopters. Bell had no discretion in whether or not to use asbestos, and in fact would be subject to civil and criminal penalties if it steered away from the specifications set forth by the Government. See Ex. H, at ¶ 13. Therefore, any warnings disseminated or not disseminated with respect to the helicopters and their parts were governed by Government guidelines. Id., at ¶ 25. As described above, Bell has set forth evidence that the United States Government provided detailed and precise specifications for the helicopter and helicopter components manufactured by Bell, required that the use of asbestos in these helicopters, and gave Bell no discretion in using asbestos therein. Id., at ¶ 5, 15-16, 19; Ex. I, at ¶ 14, 15, 18. Additionally, Bell has submitted evidence that the UH-1 helicopters were created exclusively for military use and were not based on any preexisting helicopter models or predecessor civilian counterparts. See Ex. I, at ¶ 4. Bell has further established that numerous government personnel were

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stationed at Bell's plant since the Vietnam war, to make sure that each helicopter was built in strict compliance with the precise specifications and designs approved and reviewed by the Government each year. See Ex. H, at ¶ 10; Ex. I, at ¶ 13. Moreover, Bell has submitted evidence that it was not a manufacturer of asbestos containing products and "possessed no knowledge of the dangers, if any, concerning the design, materials, painting and markings for those helicopters and their component parts which Government was not already aware of." Ex. H, at ¶ 25; Ex, I, at ¶ 19. Accordingly, Bell has clearly set forth sufficient evidence, supported by the Declarations of both William T. Wilson and Owen Kaiser, to adequately assert a colorable federal defense in order to warrant federal officer removal jurisdiction. V. Conclusion Contrary to plaintiffs' baseless claims in their motion for remand, there has been no abuse of the federal officer removal statute and remand of this matter is therefore not appropriate. For the foregoing reasons, defendant Bell has met its burden of showing (1) that it acted under the direction of a federal officer; (2) that it has a colorable federal defense to the plaintiffs' claims; and (3) that a causal nexus exists between the plaintiffs' claims and the acts performed by Bell under the color of federal office and the Government's direct and detailed control of the design and manufacture of the Bell helicopters and component parts to which plaintiff Mr. Seitz would have worked with and around during his military career. Accordingly, defendant Bell respectfully request that this court deny plaintiffs' motion to remand.

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SMITH, KATZENSTEIN & FURLOW LLP Of counsel: M. Douglas Eisler Wilson, Elser, Moskowitz, Edelman & Dicker LLP Independence Square West The Curtis Center, Suite 1130 East Philadelphia, PA 19106 (215) 627-6900 (215) 627-2665 (facsimile) /s/ Robert K. Beste Robert K. Beste, III (No. 3931) 800 Delaware Avenue, Suite 1000 Wilmington, Delaware 19801 (302) 652-8400 (302) 652-8405 (facsimile) [email protected] .

August 12, 2008 .

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