Murphy denies plaintiffs' motion to remand asbestos suit to state court

By Bethany Krajelis | Jun 13, 2013


A federal judge this week denied a Mississippi couple’s motion to remand its asbestos suit back to state court.

U.S. District Judge Patrick Murphy heard arguments over Walter and Ruby Leggett’s motion on Monday and denied their request Tuesday in a two-page memorandum and order.

Murphy wrote in his order that after reviewing defendant United Technologies Corp.’s (UTC) notice of removal, as well as a pair of affidavits, he “is satisfied that defendant provided adequate support for federal officer removal.”

The Leggetts sued UTC and 19 other defendants in November in Madison County Circuit Court, claiming that Walter developed lung cancer as a result of his exposure to asbestos fibers from the defendants’ products while serving in the United States Air Force.

Walter was in the Air Force from 1957 to 1977 and asserts he was exposed to asbestos during his work as a mechanic, plumber, electrician, construction worker and machine operator, the suit states.

The Leggetts claim they first became aware that Walter developed lung cancer in June 2011 and learned within the past two years that it was caused by asbestos exposure.

Among other claims, the suit accuses the UTC and the other defendants of failing to exercise care and caution for Walter’s safety by including asbestos in their products. It further asserts that the defendants knew or should have known about the dangers associated with asbestos.

The Leggetts seek more than $50,000 in their suit, which includes counts for negligence, willful and wanton conduct, conspiracy, negligent spoliation of evidence and strict liability.

UTC in February removed the suit from Madison County to federal court based on the U.S. Code’s federal officer removal provision.

This provision allows parties to remove suits if they can prove they acted under the direction of a federal officer, raise a colorable federal defense to the claims and show a causal nexus between the claims and acts performed.

UTC asserts that it is entitled to the removal provision because it acted as a government contractor when it manufactured aircraft engines for use by the Air Force.

Murphy this week agreed with the defendant in denying the Leggetts’ motion to remand. He also dismissed as moot a motion to dismiss for lack of jurisdiction that was filed by Huntington Ingalls Inc.

In his order, Murphy noted that Huntington Ingalls is not named as a defendant in the suit, but entered its appearance in the case because it believes it is the proper party and was “erroneously named as Northrop-Grumann Corporation” in the complaint.

“The fact remains however, that Plaintiff has not sued Huntington Ingalls Incorporated,” Murphy wrote, explaining that he dismissed the motion as moot and struck the company from the action at this time.

He added, “While Plaintiffs are at liberty to move to add Huntington Ingalls, the Court does note that it appears from the papers that Huntington Ingalls’s motion to dismiss for lack of personal jurisdiction was meritorious.”

William Shultz Jr. of Kurwoski Shultz in Swansea represents UTC and Steven Aroesty of Napoli Bern in Edwardsville represents the Leggetts.

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