Justia Products Liability Opinion Summaries

Several counties and municipalities in New York initiated lawsuits in state courts against two pharmacy benefit managers, Express Scripts, Inc. and OptumRx, Inc., alleging that these companies contributed to the opioid epidemic in their communities. The claims are based on state law and center on the defendants’ alleged practices in negotiating with opioid manufacturers and managing prescription formularies, which plaintiffs contend led to an oversupply of prescription opioids and caused substantial public harm and government expense.The defendants removed the cases to federal court—the United States District Courts for the Southern and Eastern Districts of New York—arguing removal was proper under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), because some of the challenged conduct was performed under contracts with federal agencies, such as the Department of Defense (TRICARE), the Office of Personnel Management (FEHBP), and the Veterans Health Administration. After removal, the plaintiffs amended their complaints to disclaim any claims based on the defendants’ work for federal clients, seeking to have the cases remanded to state court. The district courts accepted the disclaimers and remanded the cases.The United States Court of Appeals for the Second Circuit reviewed the district courts’ decisions. It concluded that the disclaimers were ineffective because the alleged wrongful conduct and resulting harms could not be separated between federal and non-federal clients; the conduct was indivisible. Relying on the Supreme Court's decision in Chevron USA Inc. v. Plaquemines Parish, the Second Circuit held that the defendants satisfied all statutory requirements for federal officer removal: they acted under federal direction, were sued for acts relating to federal authority, and asserted colorable federal defenses. The Second Circuit therefore reversed the remand orders and returned the cases to the district courts for further proceedings. View "County of Westchester v. Express Scripts" on Justia Law

Kase was exposed to asbestos insulation used on nuclear submarines during the early 1970s. The trial court rejected claims against a broker that arranged for asbestos-containing insulation to be shipped to the Mare Island Naval Shipyard, where workers packed it around the submarine piping it protected. The court held, on summary judgment, that the Navy‘s procurement of asbestos insulation for its nuclear submarines implicated the government contractor defense set forth in the Supreme Court’s 1988 holding, Boyle v. United Technologies Corp. The broker procured the insulation pursuant to and in compliance with relatively detailed performance and testing specifications, although those specifications did not expressly call out for asbestos in the insulation. According to undisputed evidence, the specifications could only be met by asbestos-containing insulation, and the only product on the Navy‘s approved list of suitable products was the product at issue, Unibestos. The court of appeal affirmed, stating that the defense does not necessarily exclude the procurement of products also sold commercially. The Navy‘s procurement of the asbestos insulation at issue occurred after years of evaluating and weighing the utility of and the health hazards associated with asbestos products and pursuant to specifications that required an asbestos product. View "Kase v. Metalclad Insulation Corp." on Justia Law

Papp alleged that his late wife suffered secondary “take home” asbestos exposure while washing the work clothes of her first husband, Keck. Keck had several jobs that exposed him to asbestos. Papp sued multiple companies in New Jersey. In a deposition, he indicated that the landing gear Keck sandblasted was for a C-47 military cargo plane, built by Boeing’s predecessor. Boeing removed the case, citing the federal officer removal statute, 28 U.S.C. 1442(a)(1). Boeing asserted that it was entitled to government contractor immunity because the C-47 was produced for, and under the specific supervision of, the U.S. military and that the supervision extended to labels and warnings for all parts of the aircraft, including those parts laden with the asbestos to which Keck would later be exposed. The district court remanded, reasoning that Boeing, as a contractor and not a federal officer, had a “special burden” to demonstrate “that a federal officer or agency directly prohibited Boeing from issuing, or otherwise providing, warnings as to the risks associated with exposure to asbestos contained in products on which third-parties … worked or otherwise provided services.” The Third Circuit reversed, holding that the statute extends to contractors who possess a colorable federal defense and that Boeing made a sufficient showing of such a defense. View "Papp v. Fore-Kast Sales Co Inc" on Justia Law

Plaintiff filed suit in Virginia state court against Appellants and others, alleging that plaintiff's husband, Bernard W. Ripley, was exposed to asbestos contained in products Appellants manufactured for the Navy, and that Appellants are liable for failure to warn of asbestos hazards. Appellants removed the case pursuant to the federal officer removal statute to the United States District Court for the Eastern District of Virginia. The district court remanded to state court, citing longstanding precedent in the district that denies the government contractor defense in failure to warn cases. However, given the weight of opposing precedent and the rationales supporting the defense, the court held that the government contractor defense is available in failure to warn cases. Accordingly, the court reversed and remanded for the district court to consider whether Appellants have presented sufficient proof to warrant removal pursuant to 28 U.S.C. 1442. View "Ripley v. Foster Wheeler LLC" on Justia Law