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Cuomo v. Crane Co.

United States Court of Appeals, Second Circuit

November 13, 2014

SUSAN CUOMO, individually and as administratix for the Estate of Joseph Cuomo, Plaintiff-Appellee,
v.
CRANE CO., Defendant-Appellant, AIR & LIQUID SYSTEMS CORPORATION, as successor by merger to Buffalo Pumps, Inc., ATWOOD & MORILL COMPANY, AURORA PUMP COMPANY, BLACKMER, BW/IP, INC., and its wholly owned subsidiaries, BYRON JACKSON PUMPS, CBS CORPORATION, successor by merger to CBS Corporation, FKA, Viacom Inc., FKA Westinghouse Electric Corporation, CLEAVER BROOKS COMPANY, INC., FMC CORPORATION, AMERICA STANDARD INC., FOSTER WHEELER, L.L.C., GARDNER DENVER, INC., GENERAL ELECTRIC COMPANY, GOULDS PUMPS, INC., IMO INDUSTRIES, INC., INGERSOLL-RAND COMPANY, OWENS-ILLINOIS, INCORPORATED, RAPID-AMERICAN CORPORATION, TRANE U.S. INC., FKA American Standard Inc., U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, WARREN PUMPS, L.L.C., WEINMAN PUMP & SUPPLY CO., YARWAY CORPORATION, AMCHEM PRODUCTS, INC., now known as Rhone Poulenc AG Company now known as Bayer Conscience, Inc., Defendants

Argued: November 5, 2014.

Defendant-appellant Crane Co. appeals from an order of the district court remanding plaintiff-appellee Susan Cuomo's failure-to-warn action against Crane to state court after Crane removed the case under the federal officer removal statute. Crane argues that the district court erred by requiring evidence that the Navy either affirmatively proscribed or dictated the content of asbestos warnings as the basis of Crane's federal contractor defense. Because we agree that Crane has asserted a colorable federal contractor defense despite the absence of such evidence, we reverse.

ALANI GOLANSKI, Weitz & Luxenberg, P.C., New York, New York, for Plaintiff-Appellee Susan Cuomo.

MICHAEL JAMES ROSS (Angela DiGiglio and Nicholas P. Vari, on the brief), K& L Gates LLP, New York, New York, for Defendant-Appellant Crane Co.

Before: LEVAL, LYNCH, and DRONEY, Circuit Judges.

OPINION

Page 114

GERARD E. LYNCH, Circuit Judge :

After defendant-appellant Crane Co. removed plaintiff-appellee Susan Cuomo's failure-to-warn suit on the basis of the federal officer removal statute, 28 U.S.C. § 1442(a)(1), the U.S. District Court for the Southern District of New York (Shira A. Scheindlin, J.) granted Cuomo's motion to remand the case to state court. Reviewing the evidence submitted by both parties, the court concluded that because the evidence did not establish that the Navy either affirmatively prohibited or dictated asbestos warnings on Crane's equipment, Crane did not raise a colorable federal contractor defense. Because we conclude that Crane's proffered evidence sufficed to assert a colorable federal defense at the removal stage, we reverse.

BACKGROUND

Susan Cuomo, individually and on behalf of the estate of her late husband Joseph Cuomo, brought state tort claims against Crane Co. and approximately twenty-five other defendants in New York state court. Cuomo alleged that Crane, a supplier of shipboard equipment to the United States Navy, caused her husband to be exposed to asbestos during his service from 1974 to

Page 115

1980 by failing to affix adequate asbestos warnings to the valves it supplied for the Navy's vessels.

On January 11, 2013, Crane removed the suit to federal court under 28 U.S.C. § 1442(a)(1), the federal officer removal statute, asserting that it would pursue a federal contractor defense at trial. In support of its motion, Crane presented testimony and documentary evidence, including the affidavits of retired Rear Admiral David P. Sargent, Jr., who stated that contractors like Crane were not allowed to deviate from the Navy's specifications by affixing health warnings not expressly required by the Navy, and Dr. Samuel A. Forman, a former Naval medical officer who testified that the Navy recognized the health risks of asbestos as early as 1922. Crane also provided samples of the Navy's manufacturer specifications from the past several decades, which imposed a variety of requirements on suppliers of valves and similar shipboard equipment but did not direct suppliers to affix asbestos warnings.

On August 9, 2013, Cuomo moved to remand the suit to state court, arguing that Crane failed to advance a colorable federal defense. In support of her motion, Cuomo produced the affidavit of retired Captain Arnold P. Moore, who insisted that the Navy " relied heavily" on manufacturers like Crane to identify health hazards associated with their equipment, as well as prior testimony by Dr. Forman in which he failed to identify a ...


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