The Boeing Co. is entitled to the military contractor defense from liability in a suit claiming it failed to warn of the dangers of asbestos, the U.S. Court of Appeals for the Third Circuit ruled on Tuesday.
The appeals panel reversed the decision of a U.S. district court judge in New Jersey who granted the plaintiff’s motion to send the case back to state court after Boeing removed it to federal court under the federal officer removal statute. Boeing is entitled to remove the case to federal court because it made the requisite showing that it engaged in the allegedly culpable behavior at the direction of a federal officer or agency, Third Circuit Judges Kent Jordan, Thomas Vanaskie and Cheryl Ann Krause ruled in Papp v. Fore-Kast Sales.
U.S. District Judge Peter Sheridan of the District of New Jersey granted the plaintiff’s motion to send the case back to state court upon finding that, as a contractor, it had a “special burden” to demonstrate that it was acting under federal government control. Sheridan said Boeing could only show it was acting under a federal officer by showing that was directly instructed by federal authority to keep mum about the dangers of asbestos.
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