Products Liability Law Daily Wrap Up, DEFENSES TO LIABILITY—CHEMICAL PRODUCTS—9th Cir.: Manufacture to military specifications, without more, was insufficient to support federal officer removal, (Feb 23, 2022)

By Kenneth H. Ryesky, M.B.A., J.D.

A manufacturer of aqueous film-forming foam failed to show a plausible causal nexus between its government-directed actions and a firefighter's cancer.

The U.S. Court of Appeals for the Ninth Circuit affirmed the remand of a products liability lawsuit to state court. The case was brought by a city firefighter who alleged that exposure to carcinogenic chemicals on the job was a cause of his cancer. The case was brought against several manufacturers of the chemicals. One manufacturer removed the case to federal court pursuant to the federal officer removal statute, but the case was remanded because the manufacturer failed to adequately allege a causal nexus between the military specifications to which the chemicals were manufactured and the firefighter's cancer (Young v. Tyco Fire Products, LP, February 17, 2022, per curiam).

A city firefighter who developed testicular cancer and who had worked with aqueous film-forming foams (AFFFs) for many years sued several AFFF manufacturers in Arizona state court, alleging products liability claims under Arizona state law. One of the manufacturers invoked the federal officer removal statute (28 U.S.C. § 1442) to remove the case to federal court. The federal district court remanded the case back to state court, and the manufacturer appealed the remand.

Federal officer removal. The appellate court found some of the manufacturer's notice of removal allegations to be impermissibly conclusory, such as the manufacturer’s assertion that the causal connection between its actions "under color of federal office" was clear. The court also found that the manufacturer failed to adequately allege a causal nexus between the firefighter's cancer and the actions of a federal officer. The manufacturer alleged that the AFFFs were manufactured to military specifications (MilSpec), were used at a nearby military facility, and seeped into the groundwater to which the firefighter was exposed and/or drank. However, the firefighter had specifically disavowed the groundwater contamination theory, choosing to base his case upon his line-of-duty direct exposure to the AFFFs. Moreover, the cases cited by the manufacturer in its brief all specifically alleged that the relevant injury was caused by groundwater contamination. Thus, the groundwater contamination theory was irrelevant to the firefighter's complaint, as was the alleged manufacture of the AFFFs to military specifications.

Other issues. Having found that remand was proper because the manufacturer did not adequately allege a causal nexus, the court declined to address the other requisites for federal officer removal.

The case is No. 21-15912.

Attorneys: Jason Walker Burge (Fishman Haygood LLP) for Landon Young. Eric B. Johnson (Quarles & Brady, LLP) for Chemguard, Inc. and Tyco Fire Products LP.

Companies: Chemguard, Inc.; Tyco Fire Products LP

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