morris claimed that he was exposed to a specialist from working around some of those boilers these are unique custom built pieces of military hardware whose design and performance is subject to thousands of hours of consultations with the united states navy hundreds of pages of military specifications review revision approval by the united states navy before these things ever see their way to the united states navy warship they are the wind essential navy contracted subject to the military contractor defen containing parts of their boilers and that made them defective that claim is in strict liability and his negligence record of their complaint number two they assert a failure to warn claim based in products liability in other words that the that the claim that's based in simple negligent conduct that there was a foster wheeler representative who was at the shipyard and that representative should have personally provided a warning to mr morris and protected him from exposure to asbestos so there are three types of claims as to the first two types of claims the design defect claim and the products failure to warn claim it's well settled in this circuit and not disputed in plaintiff's brief that those claims are readily removable to federal court pursuant to materials on the product or that came with the product and secondly that he was not warned physically by mr foster wheeler who was at the site as to as to the the written warning on the product no one disputes and the court below actually acknowledged that the federal government did prohibit foster wheeler from providing those warnings in the cases first of all with respect to the written warning there they are not correct because because that morning was as is great as is found by the district court that morning was prohibited by the navy as to now mother i'm sorry i'm not we're not communicating so you could just sort of foster wheeler could not have provided that warning because because the united states navy had decided in the review process for these contracts no warning was required with respect to the boy there or the component parts of the boiler so good so what played us argument is they're saying that the navy prevented foster wheeler from offering warnings to workers in the ship but that they looked at what foster wheeler proposed to do and said yes in the exercise of our discretion we think that's the right thing to do and that's what they did and they said that there was no warning required with respect to that and and with respect to the design defect claim there's no dispute that that that that that our government hunter defense as a design defect claim entitles us to removal regardless of the other claims that our military contractor defense and tells that's not to say that we agree that foster wheeler could have kind of provided a warning in the shipyard to mr morse they could not that the navy had already determined that the boiler itself should not have a warning the navy had determined that the components  warning the navy had determined that the manual that went with that boiler that identified every single piece in that boiler did not require a warning the navy determined that the engineering drawings that mr morris was to use in his coworkers to assemble the boiler that those engineering drawings did not require working but were plenty of source adjusting here is that somehow because they didn't specifically go to mr foster wheeler who arrived at the shipyard and say we've already decided contract where they are decided that no warnings have been required that this guy could have gone there and provided a physical warning and that negates a government contractor defense that would that would the exception would subsume the rule not only are you not until the specifications for that and for that seat belt and they approved and they said this is a seat belt that we want and they look through the manual and all the written materials and they said they said yes these are the correct warnings these are the incorrect instructions for the seat belt steel shipyard this is not foster wheeler shipyard my only point is that it's understood it perhaps factually incorrect that the navy only prohibited warnings on the equipment no the navy the navy approved it's some point that i thought only prohibited labels on the equipment but you're talking about design drawings and i'm not quite sure how that how that responds and the other thing i'm having a little troubled understand yes sometimes you say that the navy determined that a warning wasn't required but the fact that a warning wasn't required doesn't mean that a warning couldn't have been given i think i understand your two questions ok i think there's two questions there that i think the second one first the the standard under boil and under and under  actor exercises its discretion to review the content of manuals and written materials and then approves that that is the exercise of discretion the triggers the military country defense that's every circuit in the land that's ever that's ever address the issue without exceptions so there is no there is no case out there that says you have to prohibit a warning the exercise of discretion the triggers the defense is is i reviewed and i approved the manuals or the written materials that you provided and that's what happened here so that's the second question the answer to the first question i think is as part of this contract to build these boilers the navy supervisor of ships who oversaw the  and according to military specifications it had to it had to use its best because the military said that then they reviewed the drawings all the engineering drawings for that boiler including anything that you want to put into any communication that you wanted to put in his engineering drawings that said and ideas between the navy and foster wheeler and ultimately the navy said ok these are the final drawings and we're happy with them and they don't contend as best as warning then there is a manual that comes with the boy that came with the boiler that tells you how to operate the boiler it tells you how to maintain the boiler it also tells you how to install the boiler these are required this and and and there's a provision where you can you know you might provide various types of warnings inside that manual for the installation of a boiler or the  is the same review and approval process it occurred with respect to that manual that tells you how do we stall whether aboard the ship or how to build the boiler and it lists every single part of the boiler including dispenses containing parts and if there should have been an especially as warning it should've been in that manual but the name of the navy when it reviewed that manual said we're going with it just like the way it is so the navy exercises discretion with respect to the design and of the boiler warnings on the boiler warnings in the manuals and warnings in the design drawings that would be used to construct where the blueprints all of those things and ab exercises discretion and the district court accept all of those things and says that's not even dispute we agree that that's true i understand your argument to be district court obviously we lived on the fact that apart from those warnings or the absence of those warnings there could have been an oral warning by the employer in the workplace and say because that's one theory of negligence and it is not regulated by the navy or it's not redacted or not removed what do i understand your argument is that that addresses only part of the plane is clean and if any other part is removeable case comes up it's exactly correct judge there are there are two or three other claims that that sound in products liability physical warnings on products that are independently removable and it has less to be in federal court even if i was wrong about what i just said about that you know that the faster we were the faster we were engineer that the government contractor defense covers the engineer it doesn't matter the what the district court did is it allowed itself to be distracted in only deciding this negligent conduct claim and not realizing that the case was also was in the penalty removable and all the plaintiff products claims which still exist  i have we only need our government contractor defense with respect to one of those claims to get us into federal court and the judge and the finder said don't worry about those claims i just can pretend they don't exist the only issue in this case is our allegation of  simple negligence by a foster real or employee and that's all you have to decide judge and the judge was distracted by that and then say wait a second there's actually three other reasons why this case is removable and they're not in  good morning your honors i'm jeff your mo on behalf of the family members of the deceased joseph mars i'm here day with my colleague will make it there is no plausible the navy made me do it defense here because the navy exercised no discretion over warnings at the time and place in question throughout their materials the navy specifications are only alleged to have concerned warnings affixed to boilers on the vessels and ship board operational manuals for use on board by on board engineers and other personnel of the navy now permanent shipboard warnings are irrelevant here because the deceiving mars spent all of his time as a civilian boiler shop man he spent no time on a navy ship never went on board a navy ship why is that relevant it's relevant because for one thing the warnings that are supposedly prohibited by navy specifications only concern ship board equipment so he was never in contact with ship board equipment he was in cutters thought he was assembling the boilers for the ship he was and that then those borders were designed and specified by the navy isn't that right yes that's right but it doesn't matter whether they were manufactured in harrisburg or in frederick's town or wherever if they're being built  don't have to bring him but notice they just have to approve in detail all of the specifications for the boiler including the warnings that are claimed paint on the boiler on the drawings on the assembly documents in this case  i gather that the argument that is made and maybe you should address it is that while you have a negligence claim that an employer in the workplace there are claims that are clearly removable wonder just repeat it in all the other cases well there was much made of that argument during the presentation here oral is that wrong that right i think it is wrong but let me ask you break it down then what are your theories of liability here how many counts do you have claims there are there are several it's under negligence strain liability strict liability product liability negligence therefore have it it's in the complaint it's a short form complaint and it lists approximately six my recollection of six different  you because that's the one that the district court decision turned down well it's one that was argued it was the one that was argued by foster wheeler and and so he would have certainly president and in his affidavit and this is in the joint appendix of page three thirty four let me just go back to my last question this is i think this is the hurdle you're going to have to address do you agree that if any one of your claims is removable that the whole case comes  i think the answer has to be yes the problem for what your answer is yes right so we can we can look at any one of your claims and if the elements of the claim are fall within the specifications of maybe then there's a colorable we don't have to find there's an actual defense we just have to find it's colorable which justifies remove entirely i mean that i don't understand how you say it's waived the whole argument is that they have colorable defenses based on the specifications of the navy and and for you to say that their weight is pretty bol trump's affidavit this is page three thirty four of the record he specifically puts in his affidavit that these warnings that are supposedly prohibited by specs are limited to those provided to ship or engineering shipboard engineering officers for use during the life of the boiler on the ship it's important to note the timeframe here mr morris was never on board a ship where he was during a year long process of assembly of the boiler so you just never on board ship and that's what these are limited to with the navy and the contractor defense i mean the fact that a helicopter is made in connecticut in a private facility under the specs for the government by united technologies doesn't mean it has to be in combat or has to be on navy base or anything else it's the fact is that when the government specifies a product the contractors don't exercise discretion with how to carry out that product then they enjoy certain defenses based on the fact that the government specified now they specified it where the boiler was first built or worse assembled at bethany i'm still doesn't make a bit difference if you're if you're you're in your basic complaint and this is what they address for the navy including all aspects of warnings associated with that equipment foster wheeler was acting under an officer apes of the united states meaning forty forty two way that is their defense and that they're saying that all have one of your claims gentlemen gene warnings that the navy did spend the these alleged prohibitions against warnings only as to shipboard equipment and this was not shipboard equipment this was a year long assembly process and to do not become shipboard equipment until after that process were manufactured chipboard i'm sorry they were preparing to ship board said was there has to be a significant conflict between operation of state law and applied to this case it would be the requirement of a warning that's be a conflict between that and then conformance with reasonably precise specs and there was a clear conflict and in  civilian ships either during the there's no contracts here and the record no specific evidence showing that joseph morris actually worked on a foster wheeler boiler that then went to a navy ship  court i do not believe it is your honor or it's not even in the district court the short form complaint is and i was short court says basically strict liability and then reversed a bunch of paragraph what is your strict liability kind the claims in this case are primarily the with the strict liability claimants so it's a it's a failure to warn field to provide  safety precautions based on negligence and strict liability strict liability says the products defective because it doesn't contain warnings it's not right yes ok and their argument is that those warnings on the boilers that for which you're claiming strict liability were the absence of warnings was approved by the navy as part of its comprehensive spec's that's their argument and they say that gives them a colorable defense now there been a lot of cases decided in the third circuit second circuit ninth circuit seventh circuit and in ripley all of which recognize removeable on that type situation yes right and the difference is in those cases they were all cases involving where you had a party working on navy premises and what's it got to do with the navy premises there's nothing in the removal statute that requires that or under the doctrine what's required is somebody be manufacturing goods for the government under specs determined by the government and that the claim challenges those specs and boyle said but conflict there must thirty four and say i'm missing your argument altogether we're these where these boilers made that so they're there they're manufactured offsite where where are they manufactured  shards are all manufactured by forrester wheeler right and they contain all the components necessary to assemble for a boiler that's going to be installed on a ship including his best us including his best us including manuals including drawing i'm not not the manuals that are talked about in the specifications and that's the difference so the specs there assembly assembly manuals not referenced in the specifications and not recognize that aren't they in this case in other words the components i'm having difficulty communicating i don't know if you're hedging or what your problem is it be good if we had a free dialog and we can get to the core problem the i so i understand it these boiler components are manufactured by forrester we're on their own factories under specifications provided by the navy those components are shipped to bethlehem steel shipyard for assembly and later installation on the ship is that right here and this your employee is located at the bethlehem shipyard assembling these boilers correct so as as in the shrub affidavit at page to paragraph twenty one the navy exercised intense direction and control of written documentation to be delivered with its naval boilers so these naval boilers were not to livered until after they were assembled they were not accepted by the in northern pennsylvania and you're assembling a particular component that's later going to be incorporated and that compared to particular component is negligently designed and injures an employee manufacturer says oh i did it the way the navy wanted it and i don't that isn't that a colorable defense that permits removeable of that claim that would be but there's no evidence and have to be a completed boiler delivered in accepted documents and manuals that could be used as needed by shipboard engineering officers during the life of the equipment anyway just for an assessment of whether any of the claims were remova if any of your claims are the court addressed the arguments that were made i would not think that dish no consideration would be required the notice willie absent from the joint appendix or the actual specifications rubber boil requires reasonably precise specifications in conformity with them here the court can't determine how precise or general the specifications actually page numbers at the bottom of those pages which like to highlight a couple points on page and numbered page three says the importance of delivering this is at the bottom of the hand numbered page three the very bottom it says the last paragraph and says the importance of delivering these exhibits is another case of were these were exhibits to the motion to supplement by foster wheeler so they are they exhibit that are filed in it appear so you're under some other court it appears from the heading which gives a different page numbers and dates that was filed thirty those or other that's a reference to some other manuals with each unit of a quip and remember this would only happen after mr morris had completed his work cannot be too strongly emphasized since they are of great value in the installation of the equipment and in the training and to be useful during the life of the equipment that's what paragraph twenty one of the trip affidavit said this did not become ship for equipment during until it was delivered to the ship and at that point any warnings that would have been provided or not provided would have had no effect on mr maurice because his work was already done he had to be warned in the civilian boiler shop  i gather your strict liability council claims that there should have been a warning on the boil boiler components before they were fully assembled a warning of his best guess so what your point is there was no warning about the danger of a specialist and certainly answer my question i'm sorry could your your honor refrigerator recollection was your strict liability claims that the boilers were defective because they did not include warnings on them that there was as best as there at least at the time your client worked on them well that is not true yes or no i don't believe so your honor because the  warnings that we're asking for are not written warnings we wouldn't want to a warning to live on a product line or warnings you buy a product and the warning has to be on the product doesn't it you buy a lawnmower you're not relying on the employer or the manufacturer or somebody else to tell you you're relying on the notice on the product itself and you have a strict liability claim that the boilers were defective because they lacked warning of his best  because the boilers didn't exist at that point there were a punch of important components of the warning should have been on that was asked a question only you needed to your claiming that there should have been warnings on the components when they were assembled so that he could have read that should've been a warning on the be a liner like it's an insulation liner and it would be if it was if you shift to the shipyard with these festus already on it it would fall apart it wouldn't be efficacious or not so your argument on strict liability is those products were defective because they did not include a warning about the as best as the a specialist did not have a warning itself yes that's correct and and if the government well it's not shipboard equipment at that time it's the time and place the time and place that the warning should have been given were not regulated by the specifications throughout these materials throughout the aff what's in the record in the district court not what's in the record over there that may or may not be the case but i but the point is that you're exactly correct that you don't actually need to read the says the boiler was designed defectively the district court found plaintiffs do not dispute that the boilers were built to navy specifications and that the navy controlled the warnings that accompanied the boilers this is a quote joint appendix ten ninety eight eleven zero two foster wheeler's affidavit established that the navy had precise specifications practices and procedures that govern the content of any communication affixed to machinery supplied by foster wheeler to the navy and the navy would not permit foster wheeler to affix any type of warning or caution statement to a piece of machinery intended for installation on a navy vessel that's that's the quote it's a lower court's ruling in this case mr affidavit demonstrates that the nate that the navy provided foster wheeler with details specifications governing governing mornings and written information that accompanied foster was boiler boilers when they were delivered to the navy joint appendix one its own word and if there is a product claim the case is removable but the district court became distracted in the argument and only rolled as to the negligence claim and not as the products claim but that but that product claim does exist and if thank you will come down in great council and adjourned court for the day