Seventh Circuit reverses Murphy on asbestos remand order

A federal judge from the Southern District of Illinois erred when he remanded a man’s mesothelioma case to St. Clair County, the U.S. Court of Appeals for the Seventh Circuit held late last month.

In an opinion released Nov. 30, a panel of the appeals court reversed U.S. District G. Patrick Murphy’s decision to move Henry Ruppel’s lawsuit from federal court back to the circuit court, where he originally filed his complaint.

Ruppel sued CBS Corp. and 40 other defendants in early 2012 in the St. Clair County Circuit Court, claiming he developed mesothelioma after being exposed to asbestos products that the defendants manufactured, sold, distributed or installed.

Asserting that CBS’s predecessor-in-interest, Westinghouse Corp., put asbestos in turbines it supplied to the Navy, Ruppel claims he was exposed to asbestos during his service on the U.S.S. Fall River between 1946 and 1954.

He also contends he was exposed to these products later when he worked on an aircraft carrier as a civilian, overseeing construction on the U.S.S. Enterprise from 1957 to 1971.

CBS removed Ruppel’s suit to the Southern District of Illinois under a statute that allows suits to be removed when “a defendant that acted under a federal officer has a colorable federal defense,” the opinion states.

Although CBS claimed it was entitled to government contractor immunity, Ruppel argued that such a defense was inapplicable because his complaint only included failure-to-warn claims and that the military didn’t prevent CBS from providing adequate warnings.

Ruppel moved to remand his suit back to the circuit court and Murphy, according to the opinion, granted his motion nine days later and before CBS could respond.

Murphy, the federal appeals opinion states, determined that Ruppel’s suit belonged in state court because Ruppel only sued CBS for failing to warn about the dangers associated with asbestos, something for which there is no federal defense.

CBS then filed an emergency motion to stay the remand order, claiming that Murphy should have given it the chance to respond to Ruppel’s motion. It also asked the court not to send a certified copy of its remand order so state court proceedings wouldn’t move forward.

The next day, according to last month’s opinion, Murphy noted in a docket entry that he sent the certified copy of his remand order to the state court. He then denied CBS’ motion, saying he no longer had jurisdiction to reconsider the remand order.

CBS filed a motion to alter or amend the judgment, but withdrew that motion and filed a notice of appeal after state court proceedings had resumed.

In an opinion delivered by U.S. Judge Joel Flaum, the federal appeals panel sided with CBS. Judges Diane Sykes and Rudolph Randa rounded out the panel.

The federal appeals court determined that CBS’s relationship with Ruppel stemmed solely from CBS’ duties to the Navy and therefore, acted under a federal officer, one of three elements the court determined CBS satisfied to move its case to federal court.

In addition, Flaum wrote for the panel that CBS “also has a colorable argument for government contractor defense, which immunizes government contractors when they supply products with specifications approved by the government.”

As such, the panel reversed Murphy’s ruling, saying the case should stay in federal court.

Court records show that Steven Aroesty of Napoli, Bern, Ripka, Shkolnik in Edwardsville represents Ruppel and Daniel Donahue of Foley & Mansfield in St. Louis represents CBS.

Some of the other defendants are represented by Nicholas Bunnell, Christina Dubis and Michael Newport, also with Foley & Mansfield, as well as Raymond Fournie of Armstrong Teasdale in St. Louis and Brian Huelsmann of Hepler Broom in Edwardsville.