Steve Korris Nov. 26, 2013, 6:52am



EAST ST. LOUIS – Crane Company of Stamford, Ct., has removed mesothelioma suits of three former Navy men from Madison County to federal court.

Crane Company claims removal is proper because plaintiffs sued it for acts undertaken at the direction of a federal officer.

Crane Company attached to its removal notices specifications it claims it had to meet when supplying products to the Navy.

On Nov. 21, the company removed a suit that Randy Gori of Edwardsville filed for James Gurnett of Bonner Ferry, Id.

Gurnett claimed a doctor diagnosed mesothelioma on Aug. 2.

On Nov. 22, the company removed a suit that the Simmons firm of East Alton filed for Donald Graham of Venango County, Pa., who claims he was diagnosed with mesothelioma on Aug. 1.

On Nov. 25, the company removed a suit that Allyson Romani of Maryville filed for Ralph Fulwider of Covelo, Calif., claiming mesothelioma diagnosed last year.

All three plaintiffs name multiple defendants. Fulwider names about 200.

Chief District Judge David Herndon assigned Gurnett’s case to District Judge Phil Gilbert, who recused himself.

Herndon assigned District Judge Michael Reagan, who recused himself.

Herndon then assigned himself to the case.

In the Graham case, Herndon assigned Reagan, who recused himself.

Herndon then assigned Gilbert.

As of Nov. 25, Herndon had not assigned a judge to Fulwider’s case.

Nicole Behnen of St. Louis represents Crane Company.

The company, 158 years old, makes control instruments, fluid handling systems, and products for aerospace and electronics companies.

It employs about 11,000 persons in 25 countries.

It reported sales of $2.6 billion in 2012, ending the year with $424 million in cash.

In the meantime, the question of whether asbestos defendants can assert federal jurisdiction in cases involving former Navy personnel is being considered by a federal appeals court.

Justices of the Ninth District took the question under advisement in October, after oral arguments in two cases from Hawaii.

Defendant Crane Company invoked the federal officer defense, which allows removal from a state court if the government required the actions leading to the suit.

Crane Company argued that its products conformed to Navy specifications.

Plaintiffs argued that the Navy didn’t prevent defendants from warning users of their products about the hazards of asbestos exposure.

Crane Company, along with defendants who ultimately settled the suits, relied on a ruling from a multi district judge who denied a motion to remand a case to state court.

In that case, District Judge Eduardo Robreno of Philadelphia declined to require a showing of the merits of the federal officer defense at an early stage of litigation.

The Hawaii cases started in 2011, when the Galiher DeRobertis Ono firm of Honolulu sued multiple defendants for Douglas Leite and David Thompson.

Leite and Thompson claimed their doctors diagnosed non malignant asbestos disease.

Defendants removed the suits to federal court, and plaintiffs moved to remand them.

Last year, Magistrate Judge Richard Puglisi recommended that District Judge Michael Seabright grant Leite’s motion to remand.

While Seabright pondered Puglisi’s recommendation, District Judge Leslie Kobayashi held a hearing on Thompson’s motion.

James Scadden, representing Buffalo Pumps, told Kobayashi that Puglisi seemed to assume that asbestos containing gaskets and packing inside pumps are hazardous.

“They are not, your honor,” Scadden said.

“That was an inaccurate assumption. You don’t warn about a hazard that doesn’t exist. The Navy doesn’t tell you, don’t give us a warning about a hazard which we don’t think exists.”

For Thompson, Richard DeRobertis said, “The fact is they didn’t warn commercially. It was an industry wide negligence…That is why asbestos litigation has gone on for two generations now.”

Seabright rejected Puglisi’s recommendation in April 2012, writing that his job was not to weigh evidence but to determine admissibility of testimony from defense experts.

“There is no evidence that defendants had any greater knowledge than the Navy concerning the hazards of asbestos,” Seabright wrote.

He wrote that “evidence suggests that defendants manufactured equipment for the Navy pursuant to the close direction and supervision of the Navy.”

Kobayashi denied Thompson’s motion the next day, finding Robreno’s decision particularly persuasive because it came from a court that has dealt with thousands of similar cases from across the country.

She disagreed with Thompson’s position that a contractor must prove the government effectively prohibited the specific warning at issue.

Kobayashi wrote that defendants identified evidence showing the Navy issued reasonably precise specifications that did not provide for a warning to end users.

She wrote that defendants made a colorable showing that Navy specifications conflicted with their duties under state law.

Leite and Thompson filed appeals, arguing that rulings of multi district judges don’t bind district courts.

For Crane Company, Edward Sangster of San Francisco wrote that if his client hadn’t conformed to specifications, the Navy would have rejected its equipment.

He wrote that the Judicial Panel on Multi District Litigation included Robreno’s decision among rulings that should serve as a guide to district courts in asbestos actions.

DeRobertis replied that Robreno’s decision was contrary to precedents of the Ninth Circuit and the U.S. Supreme Court.

“Crane could have complied with its Navy contract and tort warning law. There was no conflict,” DeRobertis wrote.

He moved in March to set oral argument in May, but Ninth Circuit judges declined to expedite the proceedings.

In August, they set oral argument for Oct. 8.

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