United States District Court, E.D. Missouri, Eastern Division
KENT N. BURFORD, et al., Plaintiffs,
MONSANTO CO., et al., Defendants.
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiffs' motion for
remand. (ECF No. 13). Defendants Monsanto Company, Solutia,
Inc., and Pharmacia LLC (collectively,
“Defendants”) oppose the motion. (ECF No. 18).
The parties consented to the jurisdiction of the undersigned
pursuant to 28 U.S.C. § 636(c). (ECF No. 15).
Factual and Procedural Background
1935 until 1977, Pharmacia (then known as Monsanto)
manufactured polychlorinated biphenyls (PCBs) and sold them,
under the trade name “Aroclor, ” to a variety of
industrial customers. (ECF No. 9, ¶¶ 34, 50).
Pharmacia sold the PCBs for use in “closed
applications, ” or insulating fluids in
high-temperature transformers and capacitators, and
“open applications, ” such as inks, paints,
pesticides, plasticizers, hydraulic fluids, lubricants,
adhesives, heat transfer fluids, and carbonless copy paper.
(ECF No. 7 at ¶ 41). In 1971, Pharmacia ceased
production of PCBs for use in open-application systems, and
in 1977, it ceased all production of PCBs. (ECF No. 9 at
¶¶ 34, 41).
March 10, 2016, twenty-eight individual plaintiffs
(“Plaintiffs”) filed a petition against
Defendants in the Circuit Court of St. Louis County seeking
damages under theories of strict product liability and
negligence. (ECF No. 7). Plaintiffs alleged that their
exposure to PCBs, which were manufactured by Pharmacia and
ultimately released into the environment, caused them to
develop non-Hodgkin lymphoma, malignant melanoma, and/or
breast cancer. (Id. at ¶ 34). Plaintiffs
specifically limited their claims to PCBs sold for use in
open applications and stated that they “affirmatively
disclaim any damages or cause of action for . . . any
exposure to PCBs sold by defendants at the direction of any
officer of the United States or any of its agencies or
entities or any person acting at their direction.”
(Id. at ¶ 33).
with the consent of Monsanto Co. and Solutia, Inc., removed
the action asserting that this Court has jurisdiction under
28 U.S.C. § 1442(a)(1), the federal officer removal
statute. (ECF No. 1). In the notice of removal, Pharmacia
claimed that it “acted under” color of federal
office because it manufactured PCBs: (1) at the express
direction and command of the federal government, pursuant to
the Defense Production Act; (2) as a direct contractor for
various governmental departments and agencies; (3) for
federal defense contractors who required them to meet
exacting military specifications; and (4) for uses required
by federal OSHA regulations. (ECF No. 1 at ¶ 80).
Additionally, Pharmacia asserted that Plaintiffs' claims
are “for or relating to” Defendant's
manufacture and sale of PCBs because the government procured
the PCBs and regulated their production. (Id. at
¶ 100). Finally, Pharmacia alleged the following
colorable federal defenses: (1) the government contractor
defense; (2) express preemption by the Toxic Substances
Control Act of 1976 (TSCA); and (3) implied preemption by the
EPA's comprehensive regulation of PCBs. (Id. at
¶¶ 88, 96, 98).
17, 2016, Plaintiffs filed a motion to remand the action to
state court on the ground that this case does not satisfy the
requirements for federal officer removal. (ECF No. 13). In
their memorandum in support of the motion for remand,
Plaintiffs argued that Pharmacia satisfied neither the
“acting under” nor causal requirements for
federal officer jurisdiction because Plaintiffs' cause of
action “attacks Monsanto's supply of PCBs used in
non-closed applications, which was necessarily prior
to the interval in which it says it was required to continue
selling them for use in closed applications.” (ECF No.
14 at 5) (emphasis added). In regard to the federal defenses
asserted by Pharmacia, Plaintiffs contended that the
government contractor defense is not available to Pharmacia
because, among other reasons: (1) Pharmacia did not contract
directly with the government, but rather with government
contractors; and (2) to the extent that Pharmacia presented
evidence of government contracts for PCBs, it cannot
demonstrate that those PCBs were used in open applications.
(Id. at 3-7). Plaintiffs also maintained that the
TSCA cannot apply retroactively to bar their claims and, even
if it did, the TSCA's savings clause preserved their
right to seek damages under common law theories.
(Id. at 8-11).
filed a response in opposition to remand, arguing that they
presented sufficient evidence to satisfy their burden of
establishing that they “acted under color of federal
office” because they demonstrated that: (1) Pharmacia
produced PCBs for direct sale to the federal government; and
(2) the federal government exercised control over
Pharmacia's production of PCBs for military use. (ECF No.
18 at 4-7). Additionally, Defendants refuted Plaintiffs'
assertion that federal subcontractors cannot invoke the
federal officer removal statute. (Id. at 9).
Finally, Defendants contended that their federal defenses -
namely, the government contractor defense and preemption
under the TSCA - were “more than colorable.”
(Id. at 16-19).
their reply memorandum, Plaintiffs maintained that the
instant case did not implicate the “basic
purpose” of the federal officer removal statute. (ECF
No. 22 at 2). Plaintiffs further argued that the evidence
presented by Defendants did not demonstrate that Pharmacia
was acting under color of federal office because the
documents “overwhelmingly concern” PCBs sold
either for closed-application uses or to government
contractors rather than the government itself. (Id.
at 3-4). Plaintiffs contended that, even if the court were to
consider the PCBs sold to private companies which used those
PCBs in products sold to the government, those sales
“constitute only an infinitesimal, de minimis
amount of overall sales.” (Id. at 6-7, 10).
Plaintiffs emphasized that the government did not require
Pharmacia to produce PCBs and, anyway, those covered by OSHA
regulations were produced for electrical, and therefore,
closed-use purposes. (Id. at 10).
16, 2016, the Court held a hearing on Plaintiffs' motion
for remand. (ECF No. 23). At the opening of the proceedings,
the Court noted that Defendants had appealed Judge
Fleissig's remand of a similar products liability action
to the United States Court of Appeals for the Eighth Circuit.
Bailey, et al v. Monsanto Co.et al, Case No. 16-2096
(8th Cir., opened May 4, 2016) (appealing Case No. 4:15CV844
AGF, 176 F.Supp.3d 853 (E.D. Mo. 2016)). Plaintiffs'
counsel acknowledged that “a plausible way to
proceed” would be to stay the instant case pending the
Eighth Circuit's decision in Bailey. However, he
urged that this case “is even more appropriate for
remand” than Bailey because, there, the
plaintiffs did not limit their action to PCBs manufactured
for open applications.
18, 2016, the Court entered an order staying the instant
matter pending the Eighth Circuit's decision in
Bailey. (ECF No. 25). The Court reasoned that the
two cases were nearly identical as they involved claims that
Pharmacia produced and sold PCBs that caused the plaintiffs
to develop cancer, Defendants removed both cases pursuant to
the federal officer removal statute, and the plaintiffs filed
motions to remand. (Id. at 6-7). The Court also
noted that Judge Bodenhausen recently remanded an almost
identical case to state court for lack of federal officer
jurisdiction in Kelly, et al. v. Monsanto Company, et
al., Case No. 4:15CV1825 JMB, 2016 WL 3543050 (E.D.Mo.
June 29, 2016).
that the Eighth Circuit's decision in Bailey
would “likely have a significant effect on the ultimate
disposition of the instant matter, ” the Court stayed
the proceedings pending resolution of that appeal.
(Id. at 8). The Court also ordered the parties to
file a copy of the Bailey decision within eleven
days of its entry. (Id.). On March 27, 2017,
Defendants filed a notice of outcome of the Bailey
appeal informing the Court that the appeals in both
Bailey and Kelly were “settled and
dismissed.” (ECF No. 26). As the Bailey appeal
is no longer pending, the Court will lift its stay and
consider Plaintiffs' motion to remand.
contend that removal under the federal officer removal
statute was improper because: (1) Pharmacia was not a
government contractor and was therefore not “acting
under” a federal officer for purposes of the federal
officer removal statute; (2) there was no causal connection
between Pharmacia's actions and official authority; and
(3) Defendants did not have a colorable federal defense. (ECF
No. 14). Defendants counter that: (1) Pharmacia manufactured
PCBs under color of federal office; (2) a causal connection
exists because ...