CBS Corporation, a machine manufacturer who used to supply asbestos-laden turbines to the U.S. Navy, is seeking immunity in a mesothelioma case, arguing that it was acting under federal authority.

Plaintiff mesothelioma lawyers in Ruppel v. CBS Corp. counter that they are simply alleging a failure to warn – something the Department of Defense would not have impeded, even if the company were acting under the direction of federal authority.

Our mesothelioma lawyers understand that part of the defense tactic has involved trying to keep the case in federal court, appealing even after a federal judge stripped himself of authority and remanded the case back to state court.

However, a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit in Illinois has determined that the defendant meets all criteria necessary to be considered for immunity.

The plaintiff in this case is still suing several dozen others for his mesothelioma diagnosis, so he may still have a good shot at recovering damages. However, this case sets a troubling precedent for former members of the military who have been diagnosed with mesothelioma. It makes it all the more critical for plaintiffs to hire a skilled attorney.

The plaintiff here alleges that he developed mesothelioma as a result of his exposure to asbestos while serving in the Navy between 1946 and 1954 and then later when he worked on an aircraft carrier as a civilian employee between 1957 and 1971. His complaint against CBS, formerly Westinghouse Corporation, was initially filed in state court, but the company made a successful argument to have it moved to the U.S. District Court under the federal officer removal statute, 28 U.S.C. 1442(a)(1). This law says that certain lawsuits may be moved to federal court if the defendant was acting under a federal officer and has a colorful (or genuine) federal defense.

The plaintiff moved to have the case remanded, and the U.S. District judge did so, without giving the company a chance to respond. (Local rule provided the company 30 days to respond, but the judge made his ruling just nine days later.) The judge reasoned that the plaintiff was suing on the grounds of failure to warn about the dangers of asbestos – for which there is no federal defense.

However, the appellate court reversed that order based on several factors. The first is that while the plaintiff does mention failure to warn in his complaint, the actual issue is CBS’ duties to the Navy – not its failure to warn those who came in contact with the asbestos-containing material. The appellate court also found that the company does have a valid legal argument in claiming immunity as a federal contractor.

This wouldn’t necessarily apply to all cases, but the defense is saying that the Navy demanded the products be made with asbestos, despite knowing the dangers. One former manager of the company testified that the Navy “explicitly required asbestos” in its turbines, which would have made it impossible for the company to comply with both the Navy and state tort law.

Additional Resources:
Immunity May Save CBS in Federal Asbestos Case, Dec. 5, 2012, By William Dotinga, Courthouse News Service

More Blog Entries:
Mack v. General Electric Ruling Could Impact Future Mesothelioma Cases, Nov. 8, 2012, Plaintiff Mesothelioma Lawyer Blog