Appeals panel: Federal judge wrong to deny Boeing military contractor defense in asbestos suit

A Chicago federal appeals court has overridden a downstate federal judge, who sent an ex-Boeing worker’s asbestos suit against the company back to state court, saying the case belongs under federal jurisdiction because Boeing claims the federal government was in control of its bomber production and knew the danger of asbestos was involved.

The Dec. 14 ruling was authored by Circuit Judge Amy St. Eve, with agreement from Circuit Judges Diane Sykes and Amy Barrett, of the U.S. Court of Appeals for the Seventh Circuit.

In April 2017, Bruce and Barbara Betzner filed a negligence suit in Madison County Circuit Court against Boeing. The suit alleged Bruce developed mesothelioma from exposure to asbestos, while working on the assembly of B-1 and B-1B bombers between 1982 and 1987 at a Boeing plant in Dallas.

Madison County is near St. Louis. According to reports, thousands of asbestos suits have been filed in the county, because of its court system’s reputation as a venue favorable to plaintiffs and their attorneys in such cases. Asbestos plaintiffs don’t have to live in Madison County, only having to show the company being sued did business in the area. Of 1,299 civil filings in the county in 2016, a total of 1,078 were mesothelioma claims.

In June 2018, Boeing asked to have the Betzner case moved to U.S. District Court for the Southern District of Illinois, on grounds of “contractor defense,” in that the U.S. Air Force was responsible for any alleged asbestos exposure, not Boeing, because the Air Force was in charge of the bomber’s design and production.

However, District Judge Staci Yandle refused, pushing the matter back to Madison County Circuit Court, saying Boeing failed to furnish any “facts, supporting affidavits, or exhibits” to back up its federal contractor defense argument. Yandle added Boeing “simply did not provide sufficient information” for the court to decide federal jurisdiction was the proper venue.

Circuit Judge St. Eve said Yandle was wrong to say Boeing needed facts, affidavits or exhibits. Rather, Boeing only had to submit a “short and plain statement of the grounds of removal” from state to federal court, St. Eve said in quoting a 2014 U.S. Supreme Court ruling.

St. Eve went on to note the contractor defense shields contractors from liability when making products for the federal government under strict governmental control, in which the products comply with governmental specifications and the contractor warns the government of production hazards.

In light of the requirements for a contractor defense, St. Eve said Boeing plausibly laid out such a defense.

“When designing, manufacturing, supplying, testing, and repairing the B-1 and B-1B aircraft it acted as a government contractor under the detailed and ongoing direction and control of the United States military. Boeing also claimed that the military had exclusive control over the design and development of the aircraft and required adherence to precise specifications.

“Additionally, Boeing alleged the aircraft it manufactured conformed to the military’s specifications and the federal government was independently aware of the potential health hazards related to asbestos exposure,” St. Eve determined.

St. Eve added that because Boeing’s allegations are “plausible on their face, this case belongs in federal court.”

This article was first published by Cook County Record.

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