Henry Ruppel v. CBS Corporation

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2236

H ENRY R UPPEL,

Plaintiff-Appellee,

v.

CBS C ORPORATION,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 3:12-cv-00293—G. Patrick Murphy, Judge.

A RGUED O CTOBER 23, 2012—D ECIDED N OVEMBER 30, 2012

Before F LAUM and SYKES, Circuit Judges, and R ANDA,

District Judge.Œ

F LAUM, Circuit Judge. Henry Ruppel filed suit against

CBS in Illinois alleging CBS’s predecessor-in-interest,

Westinghouse Corporation, caused the mesothelioma

Œ

The Honorable Rudolph T. Randa, United States District

Court for the Eastern District of Wisconsin, sitting by designa-

tion.

2 No. 12-2236

from which he currently suffers. Westinghouse had

included asbestos in the turbines it supplied to the

United States Navy, and Ruppel was allegedly exposed

to it during his Naval service and later when he

worked on an aircraft carrier as a civilian. CBS removed

Ruppel’s suit to the Southern District of Illinois under

the federal officer removal statute, which permits

removal of certain suits where a defendant that acted

under a federal officer has a colorable federal defense.

28 U.S.C. § 1442(a)(1). Ruppel moved to remand and,

without giving CBS a chance to respond, the district

court granted the motion. The district court concluded

Ruppel only sued CBS for failing to warn about the dan-

gers of asbestos for which there is no federal defense.

CBS appeals the district court’s order, and we reverse.

CBS’s relationship with Ruppel arises solely out of CBS’s

duties to the Navy. It also has a colorable argument for

the government contractor defense, which immunizes

government contractors when they supply products

with specifications approved by the government.

I. Background

In early 2012, Ruppel sued CBS and forty other defen-

dants in Illinois. Ruppel alleged that he developed meso-

thelioma due to his exposure to asbestos products manu-

factured, sold, distributed, or installed by defendants.

CBS had included asbestos in turbines it supplied to

the Navy, which Ruppel encountered during his service

on the U.S.S. Fall River between 1946 and 1954 and

when he oversaw the construction of the U.S.S. Enter-

prise, as a civilian, from 1957 to 1971.

No. 12-2236 3

CBS removed the proceeding to federal court under

the federal officer removal statute. 28 U.S.C. § 1442(a)(1).

This statute allows defendants to remove suits for

certain actions that they took while acting under

federal officers. Among the requirements for removal is

a colorable federal defense, and CBS asserted it was

entitled to government contractor immunity. Its notice

of removal alleged it supplied asbestos under the

Navy’s direction and in accordance with detailed Navy

specifications, the Navy closely controlled the process,

and the Navy was aware of asbestos’s health hazards.

Although CBS only submitted a short, plain statement

of the grounds for removal, see 28 U.S.C. § 1446(a), it

offered to respond more fully to a motion to remand,

which Ruppel filed shortly thereafter. Ruppel implied

his complaint asserted only failure-to-warn claims

against CBS and argued that, because the military

did not “preclude” adequate warnings, the government

contractor defense was inapplicable. The local rule pro-

vided CBS thirty days to respond to Ruppel’s motion,

S.D. Ill. R. 7.1(c)(1), but the district court remanded the

case after only nine days and before CBS responded.

The district court largely adopted Ruppel’s arguments.

It held that CBS’s relationship with the Navy lacked

a “causal nexus” to Ruppel’s claims because the Navy

did not prevent CBS from providing adequate warnings.

On the day after the district court’s order, CBS filed

an “emergency motion for a vacatur or stay pending

remand order,” arguing the court should have provided

CBS the opportunity to respond to Ruppel’s motion. CBS

also asked the district court to refrain from sending a

4 No. 12-2236

certified copy of its remand order because the copy

would permit the state court proceedings to resume.

The next day, however, the district court made a docket

entry noting it sent the certified copy to the state court.

Later, it denied CBS’s motion, noting 28 U.S.C. § 1447(d)

stripped it of jurisdiction to reconsider the remand

order. The district court did not address the exception

in that subsection for cases, like this one, removed

under section 1442.

CBS next filed a motion to alter or amend the judg-

ment under Rule 59(e), raising most of the arguments

it now raises on appeal and supporting its factual asser-

tions with affidavits and exhibits. Namely, this material

supported CBS’s assertions that the Navy required CBS

to use asbestos, the Navy controlled the content of

any warnings, and the Navy knew of asbestos’s health

risks. The district court never responded to this motion.

The state court proceedings had already resumed, and,

fearing a final judgment in state court, CBS withdrew

its Rule 59(e) motion and filed a notice of appeal.

Although 28 U.S.C. § 1447(d) generally prevents this

Court from reviewing a district court’s remand order,

it permits appellate review of cases removed under

section 1442.

II. Discussion

Congress has passed versions of the federal officer

removal statutes since 1815 to provide a federal forum

for officers whose duties under federal law conflict with

No. 12-2236 5

state law. Willingham v. Morgan, 395 U.S. 402, 405 (1969).

The statute evinces concern that “unfriendly” states

will impose state-law liability on federal officers and

their agents for actions “done under the immediate di-

rection of the national government.” Tennessee v. Davis,

100 U.S. 257, 263 (1879). Because the federal govern-

ment “can act only through its officers and agents,”

the removal statute promotes litigating federal defenses

(like official immunity) in a federal forum so that “the

operations of the general government [are not] arrested

at the will of one of [the states].” Id.; see Willingham,

395 U.S. at 406-07. Although the views expressed in

these cases may have been more applicable in the nine-

teenth century than today, the statute’s current text

continues to permit “any officer . . . of the United States

or . . . person acting under” them to remove actions “for or

relating to any act under color of such office.” 28 U.S.C.

§ 1442(a)(1). Importantly, the “under color of office”

component encom passes an additional require-

ment—defendants must have a colorable federal defense to

the plaintiff’s action. Mesa v. California, 489 U.S. 121, 132-34

(1989). This requirement creates Article III jurisdiction, id.

at 136 (because section 1442(a) is purely jurisdictional, “the

raising of a federal question in the officer’s removal

petition . . . constitutes the federal law under which the

action against the officer arises for Art[icle] III pur-

poses”); see generally Osborn v. Bank of U.S., 22 U.S.

(9 Wheat.) 738, 820-27 (1824), and it represents an excep-

tion to the well-pleaded complaint rule, which would

ordinarily defeat jurisdiction when the federal question

arises outside of the plaintiff’s complaint, Mesa, 489 U.S.

6 No. 12-2236

at 136; see generally Louisville & Nashville R.R. Co. v.

Mottley, 211 U.S. 149, 152 (1908).

“We review the legal question of whether there [is]

federal jurisdiction” de novo. Franciscan Skemp Healthcare,

Inc. v. Cent. States Joint Bd. Health & Welfare Trust Fund,

538 F.3d 594, 596 (7th Cir. 2008). The party seeking

removal bears the burden of proving the grounds for

its motion. Shah v. Inter-Continental Hotel Chi. Operating

Corp., 314 F.3d 278, 280 (7th Cir. 2002); Chase v. Shop ‘N

Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir.

1997). Ruppel incorrectly argues that private parties (as

opposed to federal officers) invoking this statute carry

a “special burden.” See Williams v. Gen. Elec. Co., 418

F. Supp. 2d 610, 614 (M.D. Pa. 2005). To the contrary,

“[t]he federal officer removal statute is not ‘narrow’ or

‘limited,’ ” Willingham, 395 U.S. at 406, and Ruppel’s

reading also finds no support in the statute’s authoriza-

tion of removal by private persons alongside federal

officers, drawing no distinction between governmental

and private parties, see 28 U.S.C. § 1442(a)(1). Indeed, the

statute has historically authorized removal by private

parties without qualification. See Maryland v. Soper (No. 1),

270 U.S. 9, 30 (1926) (private individual acting as

chauffeur for agents entitled to removal, although the

Court denied removal for other reasons); Davis v. South

Carolina, 107 U.S. 597, 600 (1883) (noting “the protection

which the law thus furnishes to the marshal and his

deputy, also shields all who lawfully assist him in the

performance of his official duty”). With this in mind,

we turn to the statute’s four requirements. CBS must

show it was a (1) “person” (2) “acting under” the United

No. 12-2236 7

States, its agencies, or its officers (3) that has been sued

“for or relating to any act under color of such office,”

and (4) has a colorable federal defense to the plaintiff’s

claim. See 28 U.S.C. § 1442(a); Mesa, 489 U.S. at 132-34.

A. CBS Is a Person Under the Statute.

CBS easily satisfies the person requirement. In con-

struing statutes, “unless the context indicates otherwise”

the “words ‘person’ and ‘whoever’ include corporations

[and] companies . . . as well as individuals.” 1 U.S.C. § 1.

There is no indication that Congress meant to exclude

corporations. Furthermore, we have previously noted

in dicta that corporations were persons under section

1442(a). See Pollitt v. Health Care Serv. Corp., 558 F.3d

615, 616 (7th Cir. 2000) (per curiam).

B. CBS Was Acting Under a Federal Officer.

CBS satisfies the second element because Ruppel’s

injury occurred while it “acted under” a federal officer.

We liberally construe this term. Watson v. Phillip Morris

Cos., 551 U.S. 142, 147 (2007). In Watson, the Supreme

Court rejected a cigarette manufacturer’s argument that

it acted under the federal government because it was

subjected to heavy regulation. Id. at 152. Drawing on

its previous federal officer removal cases, the Court

held that “ ‘acting under’ must involve an effort to assist,

or to help carry out, the federal superior’s duties or

tasks.” Id. (emphases in original). Cases in which the

Supreme Court has approved removal involve de-

8 No. 12-2236

fendants working hand-in-hand with the federal gov-

ernment to achieve a task that furthers an end of the

federal government. See, e.g., Soper (No. 1), 270 U.S. at 30

(chauffeur assisting prohibition agents in distillery raid

“has the same right to the benefit” of the federal officer

removal statute as the agents); Davis v. South Carolina,

107 U.S. at 600 (permitting removal by Army corporal

who assisted federal revenue officers in distillery raid);

Tennessee v. Davis, 100 U.S. at 261 (permitting removal

by federal revenue officer that shot and killed victim

during a federal distillery raid). Here, CBS worked

hand-in-hand with the government, assisting the federal

government in building warships. “Acting under” covers

situations, like this one, where the federal government

uses a private corporation to achieve an end it would

have otherwise used its own agents to complete.

C. CBS Was Acting Under Color of Federal Authority.

CBS also satisfies the third element which requires the

gravamen of the claim against CBS occur while it acted

under color of federal authority. As CBS explains,

this requirement is distinct from the “acting under”

requirement in the same way a bona fide federal officer

could not remove a trespass suit that occurred while

he was taking out the garbage—there must be a “causal

connection between the charged conduct and asserted

official authority.” Jefferson Cnty., Ala. v. Acker, 527 U.S.

423, 431 (1999) (internal quotations omitted). CBS can

satisfy this requirement if its relationship with Ruppel

“derived solely from [its] official duties” for the Navy.

No. 12-2236 9

See Willingham, 395 U.S. at 409. Here, CBS acted under

the Navy by installing asbestos. This duty gave rise to

Ruppel’s complaint. Thus, the gravamen of Ruppel’s

complaint occurred while CBS acted under color

of federal authority.

D. CBS Has a Colorable Federal Defense.

The parties primarily focus on the final requirement

for removal—that CBS has a colorable federal defense.

As we noted above, this requirement not only satisfies

Article III jurisdiction, it also encapsulates Congress’s

desire to have federal defenses litigated in federal fo-

rums. Mesa, 489 U.S. at 127-34; Willingham, 395 U.S.

at 406-07. Requiring the defense only be colorable,

instead of “clearly sustainable,” advances this goal. Id.

at 407. At this point, we are concerned with who makes

the ultimate determination, not what that determina-

tion will be. If defendants had to “virtually . . . win

[their] case before [they] can have it removed,” we would

leave nothing for the eventual trial court to decide.

Acker, 527 U.S. at 431 (internal quotations omitted);

see Willingham, 395 U.S. at 407. The validity of the

defense will present “complex issues, but the propriety

of removal does not depend on the answers.” Venezia

v. Robinson, 16 F.3d 209, 212 (7th Cir. 1994). Instead, the

claimed defense need only be “plausible.” Id.

Preliminarily, we must determine what kind of claims

Ruppel’s complaint alleges. Both parties agree he alleges

failure-to-warn claims against CBS, but CBS argues the

10 No. 12-2236

complaint also asserts liability based on its mere use of

asbestos. If CBS has a colorable defense as to either

claim, then the entire case is removable. See 28 U.S.C.

§ 1367; see also Rockwell Int’l Corp. v. United States, 549 U.S.

457, 474 n.6 (2007) (a party cannot amend the com-

plaint after removal to defeat jurisdiction). After address-

ing this issue, we turn to the applicability of the gov-

ernment contractor defense.

1. Ruppel Seeks Recovery for CBS’s Use of Asbestos

and Its Failure to Warn.

Ruppel’s primary argument on appeal is his com-

plaint contains only failure-to-warn claims, presumably,

because he thinks the government contractor defense is

less applicable to these suits. Turning to the complaint,

paragraph eleven alleges the:

Defendants failed to exercise ordinary care and caution

for the safety of the Plaintiff in one or more of the

following respects:

(a) Included asbestos in their products, even though

it was completely foreseeable and could or should

have been anticipated that persons working

with or around them would inhale asbestos fibers;

(b) Included asbestos in their products when the

Defendants knew or should have known that

said asbestos fibers would have a toxic, poisonous

and highly deleterious effect upon the health

of persons inhaling them;

No. 12-2236 11

(c) Included asbestos in their products when adequate

substitutes for the asbestos in them was available;

(d) Failed to provide any or adequate warnings to

persons working with and around the products of

the dangers of inhaling the asbestos fibers con-

tained in them;

(e) Failed to provide any or adequate instructions

concerning the safe methods of working with and

around the products, including specific instruc-

tions on how to avoid inhaling the asbestos fibers

in them; and

(f) Failed to conduct tests on the asbestos containing

products manufactured, sold, delivered or installed

by the Defendants in order to determine the haz-

ards to which workers might be exposed while

working with the products.

(g) Designed, manufactured and sold equipment,

vehicles, machinery, technologies and systems that

included asbestos-containing components and

required and/or specified the use of asbes-

tos-containing replacement components.

(Dkt. 3-1 at 5).

Subparagraphs (a), (b), (c), and (g) plainly allege

liability based on the mere use of asbestos. First, the

introductory clause states Ruppel could recover “in one

or more of the following [subparagraphs],” indicating

that Ruppel alleges the facts in each subparagraph in-

dependently give rise to liability. Second, the language

in those four subparagraphs contain the hallmarks

of negligence liability. See Jablonski v. Ford Motor Co.,

12 No. 12-2236

955 N.E.2d 1138, 1153-54 (Ill. 2011) (“A product liability

action . . . is based upon fundamental concepts of common

law negligence,” which require the plaintiff to show “the

manufacturer knew or should have known of the risk

posed by the product design at the time of manu-

facture of the product” and that “the risk of harm out-

weighs the utility of a particular design.” (internal quota-

tions omitted)). Accordingly, Ruppel’s complaint alleges

CBS was negligent because it “[i]ncluded asbestos in

their products”—i.e., because it used asbestos. To be

sure, the complaint also contains failure-to-warn claims

in subparagraphs (e) and (f). Ruppel counters that the

use-of-asbestos subparagraphs were only “foundational

to the failure to warn claim that was being made; if

CBS never used a hazardous material in its manufacture

of its products, there would have been no need to warn

of same.” However, Ruppel’s reading is inconsistent

with the introductory “one or more” clause. Addi-

tionally, subparagraph (g), which comes after the two

failure-to-warn subparagraphs, asserts liability because

CBS “included asbestos-containing components” in its

products—another use-of-asbestos claim. We decline to

counterintuitively read that claim as “foundational”

given its position in the complaint. We conclude that

Ruppel’s complaint contains use-of-asbestos and fail-

ure-to-warn claims.

2. CBS Has a Colorable Argument for the Govern-

ment Contractor Defense.

The government contractor defense, developed in Boyle

v. United Technologies Corp., immunizes government con-

No. 12-2236 13

tractors from state tort law when the government had

a hand in a defendant’s allegedly defective design. 487

U.S. 500, 511-12 (1988). The Court noted that, “[i]t

makes little sense to insulate the Government against

financial liability,” through sovereign immunity and

the Federal Tort Claims Act (“FTCA”), “for the judgment

that a particular feature of military equipment is neces-

sary when the Government produces the equipment

itself, but not when it contracts for the production.” Id.

at 512. Drawing on the FTCA, the Court held federal

interests preempt state law duties and immunize defen-

dants when “(1) the United States approved reasonably

precise specifications; (2) the equipment conformed to

those specifications; and (3) the supplier warned the

United States about the dangers in the use of the equip-

ment that were known to the supplier but not to the

United States.” Id.

While the third element ensures the manufacturer does

not withhold useful safety information, the first two

elements capture the government’s discretion in the

design. After all, Boyle is premised on the conflict

between the “peculiarly federal concern” regarding the

design of military equipment, on the one hand, and state

tort law duties, on the other. See id. at 505, 511. Only

when the government exercises discretion in the design

feature does a preemptive federal interest exist. Thus, if

the federal government “purchas[ed] . . . an air condi-

tion-unit, specifying the cooling capacity but not the

precise manner of construction” the defendant could not

assert the defense because the “contractor could comply

with both its contractual obligations and [a hypothetical]

state-prescribed duty” to “include a certain safety fea-

14 No. 12-2236

ture.” Id. at 509. Boyle presented a different scenario.

There, the decedent initially survived a helicopter crash

but ultimately drowned because, plaintiffs alleged, the

escape hatch should have opened outward instead of

inward. Id. at 502-03. The Court found the “significant

conflict” between “the state-imposed duty of care . . . to

equip helicopters with the sort of escape-hatch

mechanism petitioner claims was necessary” and the

“duty imposed by the Government contract . . . to manu-

facture and deliver helicopters with the sort of es-

cape-hatch mechanism shown by the [military] specifica-

tions” immunized the defendant. Id. at 509. We proceed

under this framework and first determine the Navy’s

role in CBS’s inclusion of asbestos. Then, we examine

Boyle’s applicability to Ruppel’s failure-to-warn claims.

i. The Government Contractor Defense Is Appli-

cable to Ruppel’s Use-of-Asbestos Claims.

Although we established the complaint asserts

use-of-asbestos claims, Ruppel presents no argument dis-

puting the applicability of the government contractor de-

fense to those claims, and we find CBS presents a col-

orable defense. The exhibits attached to CBS’s Rule 59(e)

motion in the district court support the jurisdictional

allegations in CBS’s notice of removal.1 With respect to

1

CBS’s initial notice of removal contained only a “short and

plain statement of the grounds for removal” without supporting

exhibits. See 28 U.S.C. § 1446(a). And because CBS withdrew its

Rule 59(e) motion, the district court did not transmit it as part

(continued...)

No. 12-2236 15

the first two elements establishing discretion, the

United States not only “approved reasonably precise

[turbine] specifications” with which CBS’s products

conformed, see Boyle, 487 U.S. at 512, the Navy explicitly

required asbestos, making it impossible to comply

with the Navy and state tort law simultaneously. CBS

provided the affidavit of James Gate, a former manager

of design verification for CBS. (Dkt. 47, Ex. A.) His

affidavit states that military design specifications

(“MilSpecs”) required using asbestos, that the Navy

1

(...continued)

of the record on appeal. See 7th Cir. R. 10. Consequently,

Ruppel argues that CBS waived the arguments relying on this

material, while CBS urges us to remand the case for resolution

or decide the issue based only on the notice of removal. How-

ever, CBS did designate the Rule 59(e) motion and exhibits as

part of the record under Circuit Rule 10 (permitting parties

to unilaterally designate documents tendered to, but not

considered by, the district court), see (Dkt. 60), although its

appellate brief apparently fails to recognize this. Notwithstand-

ing, CBS could also have amended its notice of removal and

added supporting exhibits under 28 U.S.C. § 1653 (permitting

parties to amend “[d]effective allegations of jurisdiction . . . in

the trial or appellate courts”). See, e.g., Grinnell Mut. Reinsurance

Co. v. Haight, 697 F.3d 582, 584-85 (7th Cir. 2012); see also

Willingham, 395 U.S. at 407 n.3 (citing 28 U.S.C. § 1653) (noting

the material on which it based its removal finding “should

have appeared in the petition for removal,” but “for purposes

of this review it is proper to treat the removal petition as if

it had been amended to include the relevant information

contained in the later-filed affidavits”).

16 No. 12-2236

oversaw the turbines’ production, and the Navy did not

permit deviation from the MilSpecs. (Id. at ¶¶ 6-8, 11, 13,

15, 16-29.) Navy Rear Admiral Roger B. Horne, Jr.’s

affidavit confirms that the MilSpecs required asbestos,

the Navy carefully inspected the turbines, and the Navy

would have rejected a turbine without asbestos. (Ex. B

¶¶ 1, 16-17, 20-22, 34.) CBS also submitted the actual

MilSpecs, which show the Navy required CBS to

use asbestos. (Ex. C.)

With respect to the knowledge element, CBS pro-

vided evidence that the Navy knew of all of the hazards

associated with asbestos such that there were no

“dangers in the use of the equipment that were known

to the supplier but not to the United States.” See

Boyle, 487 U.S. at 512. CBS submitted the affidavit of

Dr. Samuel Forman, who undertook a study of the

Navy’s knowledge of asbestos hazards and stated the

Navy knew of the hazards by 1922. (Ex. G ¶ 20.)

Further, Dr. Forman stated that a consultant to high-

ranking Naval health officials told the Navy’s Bureau

of Medicine and Surgery that an insulation supplier

(like Westinghouse) had concluded asbestos presented

serious health risks, but the Navy did not “want[]

any change in the specifications as the performance

with the present materials [was] entirely satisfactory.” (Id.

at ¶¶ 33-34) (original brackets omitted). As such, CBS

has a colorable defense to the use-of-asbestos claims.

No. 12-2236 17

ii. The Government Contractor Defense Is Appli-

cable to Ruppel’s Failure-to-Warn Claims.

“It is well established that the government contractor

defense articulated by the Supreme Court in Boyle may

operate to defeat a state failure-to-warn claim.” Oliver

v. Oshkosh Truck Corp., 96 F.3d 992, 1003 (7th Cir. 1996).

Boyle’s interest in “insulating” contractors from suits

when the “the government exercises its discretion and

approves designs” extends to situations where it “ap-

proves warnings intended for users.” Id. (quoting Tate

v. Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995)).

Thus, we have held the government contractor de-

fense is applicable to failure-to-warn claims when the

defendant can show that: (1) “the government exercised

its discretion and approved certain warnings,” which

must “go beyond merely ‘rubber stamping’ the con-

tractor’s choice”; (2) “the contractor provided the

warnings required by the government”; and (3) “the

contractor warned the government about dangers in

the equipment’s use that were known to the contractor

but not to the government.” Id. at 1003-04.2

2

The district court required and Ruppel incorrectly asserts

that the government contractor defense requires the Navy to

have precluded adequate warnings. Ruppel cites In re Hawaii

Federal Asbestos Cases, 960 F.2d 806, 813 (9th Cir. 1992), and

In re Joint Eastern & Southern District New York Asbestos Litiga-

tion, 897 F.2d 626, 632 (2d Cir. 1990), for the proposition that

the Navy had to explicitly forbid warnings before a contractor

can raise the Boyle defense against failure-to-warn claims.

(continued...)

18 No. 12-2236

Like the use-of-asbestos claim, the exhibits attached to

CBS’s Rule 59(e) motion establish a colorable argument

for the defense. First, the Navy controlled the content

and placement of warnings. Gate’s affidavit states the

“Navy had precise specifications as to the nature of

any communication affixed to equipment supplied by

Westinghouse to the Navy,” and “Westinghouse would

not have been permitted . . . to affix any type of

warning . . . beyond those required by the Navy, without

prior discussion with, and approval by, the Navy.” (Ex. A

¶ 31.) Instead, the Navy supplied its own instruction

manuals with precautions. (Id. at ¶ 32.) The actual

MilSpecs confirm the Navy’s control over the inclusion

of warnings. See (Ex. E § 3.4). Next, CBS complied with

the Navy’s warning requirements (by affixing none)

because the Navy prohibited warnings. Admiral Horne

stated that the MilSpecs “addressed the instructions

considered essential by the Navy to warn individuals

working with that equipment and material about

potential hazards,” and they did not include warnings

about asbestos. (Ex. B ¶¶ 29-30.) Finally, the third

2

(...continued)

We expressly rejected this standard in Oliver, stating “[w]e

cannot accept as consistent with Boyle the suggestion that

there is any strict requirement that the government ‘prohibit’

warnings altogether or ‘dictate’ the contents of the warnings

actually incorporated.” Oliver, 96 F.3d at 1004 n.8. What is

more, the Ninth Circuit subsequently adopted the Oliver test

and rejected Ruppel’s reading of In re Hawaii. See Getz v. Boeing

Co., 654 F.3d 852, 866-67 (9th Cir. 2011).

No. 12-2236 19

element in Oliver mirrors the third Boyle requirement,

which as explained above, CBS satisfies because there is

nothing CBS knew about asbestos that the Navy did not.

As such, CBS has a colorable defense for the fail-

ure-to-warn claims as well.

III. Conclusion

For the foregoing reasons, we R EVERSE the district

court’s decision and R EMAND for further proceedings

consistent with this opinion.

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