Counsel for Hawaii asbestos plaintiffs has asked the U.S. Supreme Court to review a decision finding a “colorable” government contractor defense in favor of vendors selling equipment to the military (see attached petition for writ of certiorari).  In an April 25 opinion, Judge Paul Watford writing for the 9th Circuit, affirmed rulings by Judges Leslie Kobayashi and J. Michael Seabright of the U.S. District Court for the District of Hawaii denying motions to remand. Leite v. Crane Co., 749 F. 3d 1117 (9th Cir. 2014).

In the two cases, the defendants – suppliers of products to be used on U.S. Navy warships – had removed the actions from the Hawaii state court to federal court, arguing that they would be able to rely upon  the “government contractor” defense to defeat failure to warn claims.  Plaintiffs’ counsel Galiher DeRobertis Ono brought motions to remand arguing that the defendants could not present a “colorable” federal defense.  The judges of the district court found that the defendants had made a showing of a “colorable” defense by presenting evidence including affidavits from expert witnesses, and the 9th Circuit agreed.

Importantly, the removing defendants, to sustain their burden to defeat a motion to remand, need only show a “colorable” defense.  As the 9th Circuit stated, at this stage, the removing defendant “doesn’t have to prove that its government contractor defense is in fact meritorious, and we express no view on whether it is.” The 9th Circuit drew an analogy comparing the standard to be applied to the evidence submitted by the removing defendant, with the standard to be applied to the evidence submitted by a plaintiff when a defendant challenges subject matter jurisdiction relying upon Fed. R. Civ. P. 8(a)(1).

The petition focuses on the contention that it was inappropriate for the district court to rely upon expert affidavits to interpret or construe government specifications dealing with the obligations of vendors to provide warnings when selling equipment to the Navy.  While this relatively narrow issue does not truly address the central principles of the government contractor defense, it is possible that if the petition is granted and the decision is reviewed, the Supreme Court may consider more broadly the application of the defense in such settings. Any decision in this area could preserve, or otherwise impact, the ability of defendants across the land to avail themselves of removal to place their cases in the district court. Watch this blog for further developments on this petition.