In an asbestos product liability action , Sroka v. Union Carbide Corp., 1:13cv03281, originally filed in Maryland state court, the defendants unsuccessfully sought to remove the case to federal court. Last week, the Federal District Court Judge granted the plaintiff's motion to remand the case back to state court. The action was filed by John Sroka, now deceased, and his wife. Among a myriad of other defendants, the couple sued Hopeman Brothers, Inc., Lofton Corp., and Wayne Manufacturing alleging that they manufactured asbestos containing products for the U.S. Coast Guard at the Curtis Bay Yard. Sroka was diagnosed with mesothelioma in the summer of 2012 and passed away shortly after the diagnosis.
The above-named defendants removed the case to federal court claiming that pursuant to 28 U.S.C. § 1441(a), the action could be removed because the defendants could raise a colorable claim to a federal law defense and there was a causal connection between the plaintiff's claims and that defense. In order to establish federal law defense, however, a party generally must demonstrate that the (1) federal government exercised discretion by approving certain warnings that (2) were provided by the manufacturer and (3) the manufacturer warned the government about dangers known to the manufacturer but not the government. The burden of demonstrating the applicability of the defense rests with the defendant. It would have been enough to respond to the motion to remand by simply pointing to the defendant's lack of evidence. In fact, the court noted that the defendants had no evidence that the government knew as much about the dangers of asbestos as the defendants did. Failing under one prong was sufficient to warrant a remand, but the court noted that the defendants did not fair any better the remaining prongs of the federal law defense either.
Beyond demonstrating the lack of evidence, the plaintiff affirmatively demonstrated the inapplicability of the defense by introducing evidence about the military's warning requirements during the relevant time period. During the time that Sroka worked at the Coast Guard facility, the military required emphatic warnings, such as CAUTION or WARNING, on any parts list containing hazardous products such as asbestos. The defendants had no evidence that their manuals complied with that directive. The decision serves as a great reminder; even if opposing a motion for which the other side has the burden of proof, it pays to seek discovery to affirmatively rebut the arguments. All too often, responses to motions can focus on responding to arguments. Although the plaintiff likely would have had the motion to remand granted on the weakness of the defendant's evidence in support of its theory, the case for remand was all the stronger because the plaintiffs had affirmative evidence dispelling the defendants' theory altogether.
