The plaintiff, who served in the United States Navy during the 1940s and 1950s, allegedly contracted mesothelioma due to his exposure to asbestos-containing products. He sued, among other defendants, General Electric Company (“GE”) for alleged failure to warn of the dangers of asbestos used in turbines that GE manufactured pursuant to contracts with the Navy.
GE removed the case to federal court pursuant to 28 U.S.C. section 1442, the federal officer removal statute, on the basis that its manufacture of the turbines was performed under the direction of a federal officer, and that it had a colorable federal defense to state law liability, the government contractor immunity defense. Established by the United States Supreme Court in Boyle v. United Technologies Corp., 487 U.S. 500 (1988), the government contractor immunity defense exempts manufacturers of military equipment from state tort liability for design defect claims as long as three conditions are met: (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the manufacturer warned the United States about any dangers in the use of the equipment that were known to the supplier but not to the United States.
The court, however, disagreed, ruling that GE’s invocation of the government contractor immunity defense did not present a “colorable” federal defense to the failure-to-warn claim, and remanded the case to state court. In so ruling, the court adopted the strictest of the three prevailing approaches that federal courts take in applying the government contractor immunity defense to failure-to-warn claims.
In the most lenient of these approaches, applied in several district courts including the District of New Jersey, warnings are considered an element of design. Therefore, if a manufacturer can establish that the product design provided by the government did not call for warnings, it may successfully invoke the defense.
The middle approach, applied in the Sixth and Tenth Circuits, involves a separate application of the three-part test in Boyle to a manufacturer’s warnings. In other words, courts applying the middle approach will seek to determine whether the government approved precise warnings, or used its discretion in omitting warnings.
The third, and strictest approach — and the one adopted by the court in Sether — provides that a manufacturer may only invoke the defense to a failure-to-warn claim if it can show that the government specifically prohibited the placing of warnings on the product. This approach, which is applied in the Second, Ninth, and Eleventh Circuits, presents a higher bar to invoking the defense for manufacturers facing state failure-to-warn claims than for those facing design defect claims.
