Products Liability Law Reporter

A federal district court held that remand was warranted in a lawsuit alleging a maker of aqueous film-forming foams (AFFFs) was liable to a firefighter who developed testicular cancer allegedly resulting from his exposure to chemicals contained in the AFFFs.

Firefighter Landon Young developed testicular cancer. He and his wife sued Chemguard, Inc., alleging that his cancer resulted from exposure to chemicals in the defendant’s AFFFs. The plaintiffs alleged design defect, failure to warn, and negligent plan or design of a product and sought damages for loss of consortium, as well as punitive damages. The defendant removed the case to federal court, arguing that it was immune from liability under the federal government contractor defense because the plaintiff’s injuries resulted in whole or in part from his exposure to contaminated groundwater caused by the company’s use of AFFFs at an air force base. The plaintiffs moved to remand.

Granting the motion, the court found that when removal is based on federal question jurisdiction, the federal question must generally appear on the face of a properly pleaded complaint. Under the federal officer removal statute, however, lawsuits against federal officers are removable where the defense depends on federal law, notwithstanding a nonfederal cast of a plaintiff’s complaint. Citing case law, the court noted that a party seeking removal must show a causal nexus between actions taken under a federal officer’s directions and the plaintiff’s complaint.

Applying these principles, the court found that the complaint does not reference groundwater contamination but instead points to Young’s AFFF exposure during training sessions, while fighting fires, and during work performed after a fire was extinguished. Even if Young had ingested chemicals in contaminated water, the court said, he also has plausibly alleged that he was exposed to the same chemicals during his firefighting work, the only alleged exposure referenced in the complaint. Thus, because the plaintiffs made no allegation about groundwater, the defendant’s acts as referenced in the complaint could not have been performed under a federal officer’s direct orders.

Consequently, the court concluded that the defendant’s groundwater contamination defense cannot form the basis of federal jurisdiction and that remand was therefore warranted.

Citation: Young v. Chemguard, Inc., 2021 WL 2070445 (D. Ariz. May 24, 2021).

Plaintiff counsel: Danielle C. Teutonico, Jason W. Burge, and Kerry J. Miller, all of New Orleans; and AAJ member Patrick J. McGroder and Patrick J. McGroder IV, both of Phoenix.