United States District Court, E.D. Virginia, Newport News Division
DEBORAH H. RIPLEY, Administrator of the Estate of Bernard W. Ripley, deceased, and DEBORAH H. RIPLEY, Plaintiffs,
J. HENRY HOLLAND CORP., et al., Defendants.
Wright Allen United States District Judge
the Court is Plaintiffs' Second Renewed Motion to Strike
and for Remand (ECF No. 134), and a Renewed Motion to
Supplement the Record (ECF No. 140) filed by Defendants
Foster Wheeler LLC and Foster Wheeler Energy Corporation
(collectively, "Defendants"). This Court referred
these motions to a United States Magistrate Judge for report
and recommendation in accordance with the provisions of 28
U.S.C. § 636(b)(1)(B) and Federal Rule of Civil
Magistrate Judge's Report and Recommendation recommends
that Plaintiffs' Second Renewed Motion to Strike and for
Remand be denied and that Defendants' Renewed Motion to
Supplement the Record be granted in part and denied in part.
ECF No. 171. Specifically, the Report and Recommendation
concludes that Plaintiffs' motion is without merit
because the "Schroppe Affidavit" is properly
admitted and the case is properly removed under 28 U.S.C.
§ 1442. Id. at 8. The Report and Recommendation
also concludes that Defendants' motion should be granted
in part and denied in part because seven documents to which
Plaintiffs object should be excluded, and three documents to
which Plaintiffs do not object should be admitted.
Court must make a de novo determination of those
portions of the Report and Recommendation or specified
findings and recommendations to which objection is made. The
district judge may accept, reject, or modify the recommended
disposition. See Fed. R. Civ. P. 72(b)(3). The Court
has reviewed the disputed issues de novo and
considered the Objection and Response carefully. The
Magistrate Judge's conclusions are sound. The Report and
Recommendation is adopted in its entirety.
Best Evidence Rule requires "[a]n original writing,
recording, or photograph ... in order to prove its
content." Fed.R.Evid. 1002. Mr. Schroppe testified to
his personal knowledge. ECF No. 1-10 at 1. He is not
attempting to prove the contents of the military
specifications. Thus, the Best Evidence Rule is inapplicable
as a reason for excluding Mr. Schroppe's Affidavit.
Rule of Evidence 702 allows an expert witness to testify in
the form of opinion or otherwise if this witness meets
certain criteria. See Fed. R. Evid. 702. Plaintiffs
argue that Mr. Schroppe's lack of experience with a
specific type of document renders his opinion unreliable. ECF
No. 58 at 9-11. However, the Rule does not require that an
expert have experience with every available document. Rather,
it states the testimony must be "based on sufficient
facts or data." Fed.R.Evid. 702(b). This criterion is
met here and the Affidavit is properly admitted.
also argue that Defendants have failed to meet their burden
of proof for removal jurisdiction. ECF No. 172 at 2.
Plaintiffs cite Leite v. Crane Co. for the
proposition that Defendants must meet their burden by a
preponderance of the evidence. 749 F.3d 1117 (9th Cir. 2014).
However, Leite held that affidavits similar to those
presented here satisfactorily established a colorable federal
defense. Id. at 1123.
evaluating whether Defendants presented a colorable defense
sufficient to support removal, the Magistrate Judge correctly
acknowledged that "the defense need only apply to one
claim to remove the case." ECF No. 171 at 12 (quoting
Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 257 (4th
Cir. 2017)). The Report and Recommendation found correctly
that the technical manuals and drawings were, by themselves,
sufficient to support removal. ECF No. 171 at 12.
assertion that the Report and Recommendation improperly found
a causal connection in this case is incorrect. ECF No. 172 at
18. The Magistrate Judge correctly concluded that Defendants
"made out a colorable claim that the Navy exercised
discretion over warnings contained on boilerplates or
technical manuals. This colorable defense is sufficiently
connected to plaintiffs' claim that Foster Wheeler failed
to warn." ECF No. 171 at 13. "[T]he [Federal
Removal] statute must be 'liberally construed.'"
Watson v. Phillip Morris Cos., 551 U.S. 142, 147
(2007) (quoting Colorado v. Symes, 286 U.S. 510, 517
Court, having reviewed the record and examined
Plaintiffs' objections to the Report and Recommendation,
and having made de novo findings with respect to the
portions objected to, ADOPTS and
APPROVES the findings and recommendations
set forth in the Report and Recommendation. ECF No. 171.
Accordingly, Plaintiffs' Second Renewed Motion to Strike
and for Remand (ECF No. 134) is DENIED.
Defendants' Renewed Motion to Supplement the Record (ECF
No. 140) is GRANTED IN PART and
DENIED IN PART.
for the parties are DIRECTED to contact the Court's
Docket Clerk at 757-222-7212 within twenty days of entry of
this Order to set a scheduling conference ...