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Akin v. Ashland Chem. Co.

Citation: 29 ELR 20032
No. 97-6030, 156 F.3d 1030/(10th Cir., 08/31/1998)

The court holds that a chemical manufacturer had no duty to warn the U.S. Air Force or its employees of the potential hazards of chemicals used to clean aircraft engines. The court first holds that the manufacturer properly removed the case to federal court. Personal injury actions that arise from incidents occurring in federal enclaves may be removed to federal district court as a part of federal question jurisdiction. There is no dispute that the Air Force base at issue is a federal enclave. In addition, the manufacturer properly removed the case without the consent of co-defendants based on its status as a person acting under a federal officer. A statutory exception allows a federal officer independently to remove a case to federal court even though that officer is only one of several named defendants. The court further holds that the manufacturer's removal was not untimely. The initial pleading in the case was ambiguous in that it did not provide unequivocal notice of the right to remove, and the first clear notice of removability was given in answer to an interrogatory. Moreover, the plaintiffs' assertion of a cause-of-action in federal court amounted to a waiver of alleged defective removal.

The court next holds that under Oklahoma law, the manufacturer did not have a duty to warn the Air Force of the potential danger of low-level chemical exposure. Because of the wealth of research available, the ability of the Air Force to conduct studies, and its extremely knowledgeable staff, the Air Force easily qualifies as a knowledgeable purchaser that should have known the risks involved with low-level chemical exposure. Employees of the Air Force are also deemed to possess the necessary level of sophistication.

Counsel for Plaintiffs
James A. Ikard
Law Offices of James A. Ikard
211 N. Robinson Ave., Ste. 600, Oklahoma City OK 73102
(405) 843-6528

Counsel for Defendants
Clyde A. Muchmore
Crowe & Dunlevy
1800 Mid-America Tower
20 N. Broadway, Oklahoma City OK 73102
(405) 235-7700

Before Tacha and Baldock, JJ.