California judge rejects defense “removal” caper, gives mesothelioma victim his day in court

General Electric chose not to warn about asbestos, faces lawsuit for poisoning veteran

A federal judge in California recently ruled that General Electric must stand trial in California state court for its failure to warn navy sailors about asbestos contained in the products and equipment GE installed on naval vessels. In an effort to transfer the case to federal court, where asbestos lawsuits languish and rarely see light of day, General Electric sought to use a discredited legal argument whose sole purpose is to avoid ever having to compensate its victim.

On April 13, 2007, United States District Judge for the Central District of California Gary Klausner rejected GE’s tactics. Judge Klausner ruled that General Electric must stand trial in state court. General Electric’s asbestos-containing equipment includes turbines, generators, and condensers, among many others. These products have been a source of asbestos exposure among sailors, exposure that later leads to fatal mesothelioma, an aggressive cancer of the lung lining.

Samuel Scarbrough was exposed to GE’s asbestos-containing turbines while serving in the navy aboard the USS West Virginia. As a result, he developed mesothelioma and died. General Electric’s attempt to move the case to federal court was based on a “federal officer” argument, essentially claiming that GE used asbestos because the navy required it. See this article for a detailed review of this favorite defense tactic to keep asbestos victims from ever having their day in court.

Judge Klausner rejected the maneuver on several grounds, pointing out that none of GE’s evidence showed that that navy instructed GE not to warn sailors of asbestos hazards. The judge also rejected the defense stratagem on the grounds that GE failed to produce a shred of evidence showing that any of the navy’s equipment specifications forced GE not to warn Scarborough about asbestos.

In the court’s words, “Defendant (General Electric) has submitted numerous exhibits, declarations, and specifications from the United States Navy demonstrating that the Navy exercised control over the design and manufacturing of Defendant’s machines…Defendant has not shown that the Navy required it to refrain from issuing warnings nor has it shown that the Navy provided reasonably precise specifications affecting Defendant’s provision of Warnings.” (emphasis added). [Link to PDF of court ruling.]

Significance for asbestos victims

When a manufacturer knew or should have known of a danger inherent in one of its products, the manufacturer has a duty to provide adequate warnings so that potential users will know about the danger. This type of lawsuit is known as “failure to warn.”

General Electric could have included warnings with their products, potentially saving thousands of lives. Instead they chose not to warn navy sailors about the lethal danger of asbestos, with tragic results. Thousands of people die every year from asbestos poisoning, many of them veterans exposed during service in the navy.

Throughout the United States, when asbestos victims seek restitution from the companies that knowingly poisoned them, the defendant companies generally try to permanently remove the case to federal court. Thanks to this ruling by Judge Klausner and similar rulings in other federal courts, navy veterans like Scarbrough can have their day in court.

RGW, PC
4/26/2007

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