(3) the contractor warned the United States of the dangers in the equipment's use about which the contractor knew, but the United States did not.Hicks v. Boeing Co., Civil Action No. 13-393-SLR-SRF, 2014 WL 1051748, at *5 (D. Del. Mar. 17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014) (quoting MacQueen v. Union Carbide Corp., Civil Action No. 13-831-SLR-CJB, 2013 WL 6571808, at *4 (D. Del. Dec. 13, 2013), report and recommendation adopted, 2014 WL 108535 (D. Del. Jan. 9, 2014)). According to the Boyle court:
With respect to the first element of the statute, there is no dispute that Rockwell, as a corporation, is a "person" within the meaning of the statute. See In re Asbestos Litig. (Seitz), 661 F. Supp. 2d 451, 454 (D. Del. 2009) (citing Good v. Armstrong World Indus., Inc., 914 F. Supp. 1125, 1128 (E.D. Pa. 1996)); Kirks v. Gen. Elec. Co., 654 F. Supp. 2d 220, 223 (D. Del. 2009); Hicks v. Boeing Co., Civil Action No. 13-393-SLR-SRF, 2014 WL 1051748, at *4, (D. Del. Mar. 17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014). Therefore, the first element of the federal officer removal statute has been met.
There is no dispute that Foster Wheeler and Westinghouse, as corporations, are each a "person" within the meaning of the statute. See Hicks v. Boeing Co., Civil Action No. 13-393-SLR-SRF, 2014 WL 1051748, at *4, (D. Del. Mar. 17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014). Therefore, the first element of the federal officer removal statute has been met.
There is no dispute that the defendants, as corporations, are each a "person" within the meaning of the statute. See Hicks v. Boeing Co., Civil Action No. 13-393-SLR-SRF, 2014 WL 1051748, at *4, (D. Del. Mar. 17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014). Therefore, the first element of the federal officer removal statute has been met.
(3) the contractor warned the United States of the dangers in the equipment's use about which the contractor knew, but the United States did not. See Hicks v. Boeing Co., C. A. No. 13-393-SLR-SRF, 2014 WL 1051748, at *5 (D. Del. Mar. 17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014) (quoting MacQueen v. Union Carbide Corp., C. A. No. 13-831-SLR-CJB, 2013 WL 6571808, at *4 (D. Del. Dec. 13, 2013), report and recommendation adopted, 2014 WL 108535 (D. Del. Jan. 9, 2014)). Foster Wheeler points to Military Specifications ("MilSpecs"), an Affidavit from Rear Admiral John B. Padgett, III (Ret.), the declaration of Foster Wheeler corporate representative, J. Thomas Schroppe, the deposition of Plaintiff s expert.
(3) the contractor warned the United States of the dangers in the equipment's use about which the contractor knew, but the United States did not.See Hicks v. Boeing Co., C.A. No. 13-393-SLR-SRF, 2014 WL 1051748, at *5 (D. Del. Mar. 17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014) (quoting MacQueen v. Union Carbide Corp., C.A. No. 13-831-SLR-CJB, 2013 WL 6571808, at *4 (D. Del. Dec. 13, 2013), report and recommendation adopted, 2014 WL 108535 (D. Del. Jan. 9, 2014)). Foster Wheeler points to Military Specifications ("MilSpecs"), an Affidavit from Rear Admiral John B. Padgett, III (Ret.), the declaration of Foster Wheeler corporate representative, J. Thomas Schroppe, the deposition of Plaintiff's expert, Captain Lowell, and other exhibits as evidence that the government was intimately involved in the design and manufacture of all products and warning labels affiliated with the same that were used on Navy warships.
(3) the contractor warned the United States of the dangers in the equipment's use about which the contractor knew, but the United States did not.See Hicks v. Boeing Co., Civil Action No. 13-393-SLR-SRF, 2014 WL 1051748, at *5 (D. Del. Mar. 17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014) (quoting MacQueen v. Union Carbide Corp., Civil Action No. 13-831-SLR-CJB, 2013 WL 6571808, at *4 (D. Del. Dec. 13, 2013), report and recommendation adopted, 2014 WL 108535 (D. Del. Jan. 9, 2014)). Foster Wheeler points to Military Specifications ("MilSpecs") and Affidavits from Admiral Ben J. Lehman (Ret.) and Foster Wheeler corporate representative, J. Thomas Schroppe, as evidence that the government was involved in the design and manufacture of all products used on Navy warships. (D.I. 159 at 15) Admiral Lehman stated:
(3) the contractor warned the United States of the dangers in the equipment's use about which the contractor knew, but the United States did not.See Hicks v. Boeing Co., Civil Action No. 13-393-SLR-SRF, 2014 WL 1051748, at *5 (D. Del. Mar. 17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014) (quoting MacQueen v. Union Carbide Corp., Civil Action No. 13-831-SLR-CJB, 2013 WL 6571808, at *4 (D. Del. Dec. 13, 2013), report and recommendation adopted, 2014 WL 108535 (D. Del. Jan. 9, 2014)). Foster Wheeler points to Military Specifications ("MilSpecs") and Affidavits from Admiral Ben J. Lehman (Ret.) and Foster Wheeler corporate representative, J. Thomas Schroppe, as evidence that the government was involved in the design and manufacture of all products used on Navy warships. (D.I. 73 at 11) Admiral Lehman stated:
(3) the contractor warned the United States of the dangers in the equipment's use about which the contractor knew, but the United States did not.See Hicks v. Boeing Co., Civil Action No. 13-393-SLR-SRF, 2014 WL 1051748, at *5 (D. Del. Mar. 17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014) (quoting MacQueen v. Union Carbide Corp., Civil Action No. 13-831-SLR-CJB, 2013 WL 6571808, at *4 (D. Del. Dec. 13, 2013), report and recommendation adopted, 2014 WL 108535 (D. Del. Jan. 9, 2014)). With respect to the first Boyle factor, CBS points to Navy specifications ("MilSpecs") and an Affidavit from Admiral Roger B. Home Jr. RADM USN (Ret.) as evidence that the Navy specified and approved all warnings that would be used with its equipment.
As this court has observed in several recent cases, there is a split in authority concerning the applicable standard for assessing the colorability of a proffered government contractor defense. See Hicks v. Boeing Co., 2014 WL 1051748, at *4 (D. Del. Mar. 17, 2014), report and recommendation adopted, 2014 WL 1391104 (D. Del. Apr. 8, 2014); MacQueen, 2013 WL 6571808, at *5-7; Walkup, 2013 WL 5448623, at *3-5. In short, the split "'boils down to an argument over what a defendant must proffer to defeat a plaintiff's motion for remand.'"