Judge Shira Scheindlin
Joseph Cuomo, now deceased, served in the Navy—aboard the USS Ponce and USS Coontz— from 1974 through 1980. His estate brought suit in state court on Nov. 28, 2012, asserting Air & Liquid Systems Corp.’s and its codefendants’ liability for failing to warn Joseph about the dangers of asbestos exposure. Invoking 28 USC §1442(a)(1)—the federal officer removal statute—the Cuomos’ asbestos-related tort action was removed to federal district court. District court granted the Cuomos’ motion to remand suit to state court. In a failure to warn case Crane Co. could assert a colorable defense only if the Navy “dictated the contents of the warnings” to it. Crane Co. failed to present a colorable federal contractor defense—under Machnik v. Buffalo Pumps andBoyle v. United Techs.—for the purpose of federal officer removal. The evidence submitted by the Cuomos clarified that although the Navy exercised control over specific wordings of warnings, it “relied heavily” on manufacturers to identify hazards and provide the substance of those warnings. Crane Co. provided no evidence that the Navy either forbade an asbestos warning or actively dictated the substance of any proposed asbestos warning.
