Products Liability Law Reporter

A federal district court held that removal of a lawsuit brought by a police officer injured by a flying smoke grenade had been improper.

Officer Benjamin Russell was attending riot-control training at a military training facility. Someone at the training deployed an SAF Smoke Grenade, which launched like a projectile, bounced off a helmet, and hit Russell, causing him severe bilateral hearing loss and other injuries. He filed an Alabama state court action against four companies, including the SAF Smoke Grenade’s manufacturers—ALS Technologies and Defense Technology, LLC—alleging wantonness and negligence, breach of warranty, and breach of the Alabama Extended Manufacturer’s Liability Doctrine. Suit also alleged wantonness and negligence against Leidos, Inc., the contractor responsible for the training; Anthony Landingham, an Alabama resident who worked as a safety engineer for Leidos; and IB3 Global Solutions, a Leidos subcontractor.

Defense Technology filed a timely notice of removal to federal district court. The defendant argued that the plaintiff had fraudulently joined Landingham in that there was no reasonable probability of recovery against him. Among other things, the defendant asserted that because Landingham had not participated in the training exercise, he could not be found liable under Alabama law.

The plaintiff moved to remand. He argued that he had a good faith basis for believing Landingham might be liable to him under Alabama law because Landingham was a safety engineer who likely was responsible in some respect for the safety of the training program at issue.

Granting the motion, the district court noted that to avoid remand, a removing party must prove by clear and convincing evidence that either there is no possibility the plaintiff can establish a cause of action against the resident defendant or the plaintiff has fraudulently pleaded jurisdictional facts to bring the resident defendant into state court. Citing case law, the court emphasized that here, the key determination is whether there is a possibility an Alabama state court could find that the plaintiff had pleaded a plausible claim of negligence or wantonness against Landingham.

The court found that there was a possibility that a state court would find that the plaintiff had pleaded a viable state law negligence claim against Landingham. Under Alabama state law, the court said, corporate employees are personally liable for the wrongful actions of the company or its other employees if there is personal participation in the tort. Considering the parties’ evidence, including Landingham’s incident report, the court said it must assume that Landingham, in his role as safety engineer, played a part in determining the risks and hazards present at riot-control training sessions, including the types of grenades used. Moreover, the court said that Landingham’s affidavit did not provide clear and convincing evidence that there was not even a possibility he could be liable to the plaintiff under Alabama law.

The court concluded that the plaintiff did not fraudulently join Landingham under the “no possibility of recovery” test, and, therefore, removal was improper.

Citation: Russell v. Leidos Inc., 2024 WL 3585097 (N.D. Ala. July 30, 2024).

Plaintiff counsel: Calvin C. Clay, Birmingham, Ala.