Savoie et al v. Pennsylvania General Insurance Company et al

Filing 149

ORDER AND REASONS. It is ORDERED that Plaintiffs' 23 MOTION to Remand to State Court is DENIED. Signed by Judge Carl Barbier.(gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

LORITA M. SAVOIE

CIVIL ACTION

VERSUS

NO: 15-1220

PENNSYLVANIA GENERAL INSURANCE

SECTION: J(3)

CO., ET AL
ORDER AND REASONS
This matter is on remand from the United States Court of
Appeals for the Fifth Circuit, which vacated this Court’s previous
Order and Reasons granting a Motion to Remand (Rec. Doc. 23) filed
by Plaintiffs, Lorita Savoie, et al. (“Plaintiffs”).

See Savoie

v. Huntington Ingalls, Inc., 817 F.3d 457, 463, 466 (5th Cir.),
cert. denied, 137 S. Ct. 339, 196 L. Ed. 2d 262 (2016).

In

accordance with the Fifth Circuit’s directive, this Court now takes
up Plaintiffs’ Motion to Remand (Rec. Doc. 23) to determine whether
Defendants can demonstrate the existence of a colorable federal
defense.
issue.

Both parties have filed supplemental memoranda on the
(Rec. Docs. 137 and 138.)

Having considered the motion,

the parties’ submissions, the record, and the applicable law, the
Court finds, for the reasons expressed below, that the motion
should be DENIED.
1

PROCEDURAL HISTORY AND BACKGROUND FACTS
This matter arises from claims originally filed by Joseph
Savoie (“Decedent”), who had contracted mesothelioma, a cancer of
the lining of the lung, which is caused by exposure to asbestos.
Decedent originally filed this lawsuit in the Civil District Court
for the Parish of Orleans, State of Louisiana in August 2014. In
his original petition for damages, Decedent alleged that he was
exposed to asbestos during the period in which he was employed by
Huntington Ingalls, Inc. (“Avondale”)

1

in various positions from

approximately 1948 through 1996. Decedent specifically asserts
that he was exposed to asbestos on a daily basis, both at the jobsite and while he was traveling to and from work with other
Avondale employees who carried asbestos on their clothing and
persons. In his petition, Decedent included a substantial number
of state law causes of action, including but not limited to:
failure to warn employees of the dangers associated with asbestos,
failure to provide a safe working environment, and strict liability
as custodians of the asbestos. (Rec. Doc. 1-1 at 5-6.) Subsequent
to

filing

this

lawsuit,

Decedent

died

as

a

result

of

his

mesothelioma. Plaintiffs, Decedent’s surviving wife and children,

1

Defendant Huntington Ingalls, Inc. has a long history of different titles
including Northrop Grumman Shipbuilding Inc., Northrop Grumman Ship Systems,
Inc., Avondale Industries, Inc., Avondale Shipyards, Inc., and Avondale Marine
Ways, Inc. (Rec. Doc. 1-1, p. 2). For purposes of simplicity, the Court will
refer to this Defendant simply as “Avondale.”
2

then filed an amended petition for damages, joining the lawsuit,
and

seeking

survival

and

wrongful

death

damages

pursuant

to

Louisiana law.
Defendants removed the lawsuit to this Court on April 16,
2015, asserting that this Court has subject matter jurisdiction
over the matter pursuant to the Federal Officer Removal Statute,
28 U.S.C. § 1442. Plaintiffs then filed a motion to remand, arguing
that the Federal Officer Removal Statute does not provide a basis
for federal jurisdiction.

This Court granted Plaintiffs’ motion

to remand, finding that Defendants failed to establish that this
Court has jurisdiction over Plaintiffs’ failure to warn and strict
liability claims.

Specifically, this Court held that Defendants

did not demonstrate that Avondale acted under the direction of a
federal officer or that a causal nexus existed between Plaintiffs’
claims and Avondale’s actions.

(Rec. Doc. 30 at 15, 17.)

Defendants appealed to the United States Court of Appeals for
the Fifth Circuit.

The Fifth Circuit affirmed this Court’s order

regarding Plaintiffs’ failure to warn and negligence claims, but
reversed this

Court’s

liability claims.

conclusion

regarding

Plaintiff’s

strict

Savoie v. Huntington Ingalls, Inc., 817 F.3d

457, 463, 466 (5th Cir.), cert. denied, 137 S. Ct. 339, 196 L. Ed.
2d 262 (2016).

The Fifth Circuit found that a causal nexus exists

between Plaintiffs’ strict liability claims and Avondale’s actions
3

under color of federal authority.

Id. at 465-66.

The case was

then remanded to this Court to determine whether Avondale possesses
a colorable federal defense.
Following the Fifth Circuit’s ruling, this Court held a
telephone conference during which it ordered Avondale to produce
certain government contracts upon which it bases its government
contractor defense.
this

information,

(See Rec. Doc. 47.)
the

Court

allowed

After Avondale produced
both

parties

to

submit

supplemental briefing on whether Avondale possesses a colorable
federal defense.

That issue is now before the Court.
PARTIES’ ARGUMENTS

Plaintiffs argue that Defendants failed to make a colorable
showing of a federal defense in both their notice of removal and
their original opposition to remand.

They argue that Defendants

should be precluded from providing any supplemental evidence at
this point because the Fifth Circuit’s opinion did not indicate
that further briefing was necessary.

Plaintiffs also argue that

Defendants have not demonstrated a colorable federal defense even
if supplemental evidence is considered.
argue

that

Defendants

fail

to

make

For instance, Plaintiffs
a

colorable

showing

that

Avondale was required by the federal government to use asbestos
because any such requirement would also have mandated that Avondale
satisfy safety requirements which Plaintiffs argue Avondale failed
4

to do.

Furthermore, Plaintiffs argue that Defendants have not

demonstrated that Avondale conformed to government specifications
regarding safety.

Finally, Plaintiffs argue that Defendants have

not established that the government had more knowledge about the
hazards of asbestos than Avondale.
In opposition, Defendants first argue that they should be
permitted to provide supplementary evidence because 28 U.S.C. §
1653 is to be broadly construed.

Defendants also argue that

removal is proper because they have demonstrated all necessary
elements of a colorable federal defense.
LEGAL STANDARD
A defendant may remove a civil action filed in state court if
a federal court would have had original jurisdiction over the
action.

See 28 U.S.C. § 1441(a).

The removing party bears the

burden of proving by a preponderance of the evidence that federal
jurisdiction exists at the time of removal.
Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

De Aguilar v. Boeing

The jurisdictional facts

supporting removal are examined as of the time of removal. Gebbia
v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000).
Ambiguities are construed against removal and in favor of remand,
because removal statutes are to be strictly construed.

Manguno v.

Prudential Prop. & Cas. Ins., 276 F.3d 720, 723 (5th Cir. 2002).

5

Federal courts have original jurisdiction over cases which
pose a "federal question," by "arising under the Constitution,
laws, or treaties of the United States." 28 U.S.C.A. § 1331 (1980).
Courts consider whether a case poses a federal question pursuant
to the "well-pleaded complaint rule, which provides that federal
jurisdiction exists only when a federal question is presented on
the

face

of

the

plaintiff's

properly

pleaded

complaint."

Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (citing
Gully v. First Nat'l Bank, 299 U.S. 109, 112-113 (1936)).
DISCUSSION
I.

Amendment of the Pleadings
The first question for the Court is whether Defendants should

be granted leave to supplement the record with evidence regarding
the existence of a colorable federal defense.

Defendants’ notice

of removal states that the Court has subject matter jurisdiction
pursuant to the Federal Officer Removal Statute, 28 U.S.C. §
1442(a)(1), which is discussed in greater detail below. The notice
of

removal

includes

an

averment

government contractor defense.

that

Defendants

can

raise

a

However, neither the notice of

removal nor the opposition to Plaintiffs’ motion to remand contain
certain evidentiary material addressing the test in Boyle v. United
Technologies,

487

U.S.

500

(1988).

6

Defendants

now

wish

to

supplement the record in order to demonstrate the existence of a
colorable government defense.
Defendants have not filed a motion to amend their removal
notice;

rather,

they

informed

the

Court

during

a

telephone

conference on June 22, 2016 of their intention to supplement the
record with (1) contracts between the federal government and
Avondale (2) an affidavit of Dr. Richard Lemen, a retired Assistant
Surgeon General of the United States, and (3) an affidavit from
Mr. Thomas McCaffery. 2

(See Rec. Doc. 47.)

Defendants first

apprised the Court of their intention to supplement the record
after the Fifth Circuit remanded the case back to this Court.

At

that point, Defendants filed a motion to set a status conference
to discuss multiple issues, one of which was its intention “to
file a motion to amend or supplement the pleadings and/or the
evidence pursuant to 28 U.S.C. § 1653 in order to establish
jurisdictional facts.”

(Rec. Doc. 44 at 2.)

The Court granted

the motion and held a telephone conference on June 22, 2016.
During the telephone conference, the Court ordered Defendants to
produce the government contracts and the affidavits of Dr. Lemen
and

2

Mr.

McCaffery. 3

After

discovery

related

to

these

Defendants included a different affidavit from McCaffery in their initial
opposition to the motion to remand. (Rec. Doc. 25-5.) Thus, they are requesting
to supplement the record with a second affidavit from McCaffery.
3
During the telephone conference, the Court also ordered Defendants to
participate in a 30(b)(6) deposition.
However, after a drawn out dispute
between the parties that played out before the Magistrate Judge, this Court
7

jurisdictional issues was complete, the Court ordered the parties
to provide supplemental briefing regarding whether Defendants have
made a colorable showing of a government contractor defense.
Plaintiffs argue that the Court should deny Defendants’ request to
supplement
existence

their
of

a

removal

notice

government

with

contractor

evidence

supporting

defense.

the

Defendants,

however, urge the Court to broadly construe section 1653 to avoid
remand on purely technical grounds.
The removing party is free to amend a notice of removal within
the thirty day period for filing the notice set out in 28 U.S.C.
§ 1446(b).

See Wilson v. Int'l Bus. Machines Corp., No. 3:11-CV-

0944-G, 2011 WL 4572019, at *1 (N.D. Tex. Oct. 3, 2011).

After

the expiration of this thirty day period, the removing party must
rely on 28 U.S.C. § 1653 to make such an amendment.

Section 1653

provides that “[d]efective allegations of jurisdiction may be
amended, upon terms, in the trial or appellate courts.”

See Wood

v. Crane Co., 764 F.3d 316, 322-23 (4th Cir. 2014) (discussing the
different standards for amendments based on whether they are made
within the thirty day window); 14C Charles Alan Wright, Et Al.,
Fed. Prac. & Proc. Juris. § 3733 (4th ed.) (noting that after the
thirty day period elapses, “defendants may amend the notice only

determined that the documents provided to Plaintiffs were sufficient and did
not require Defendants to participate in the 30(b)(6) deposition. (See Rec.
Doc. 108).
8

to set out more specifically the grounds for removal that already
have been stated, albeit imperfectly, in the original notice”).
Because Defendants intend to supplement their notice of removal
long after the thirty day window has closed, they must satisfy the
requirements of section 1653.
Section 1653 was originally intended to allow parties to cure
deficient allegations of diversity jurisdiction, but its role was
expanded in 1948 to include all jurisdictional allegations.
Oil Corp. v. Kelley, 493 F.2d 784, 788 (5th Cir. 1974).

Mobil

Still, it

is primarily used today in cases where diversity of citizenship
forms the basis for jurisdiction.

See, e.g., Swindol v. Aurora

Flight Scis. Corp., 805 F.3d 516, 518 (5th Cir. 2015); see also
Cent. W. Virginia Reg'l Airport Auth., Inc. v. Triad Eng'g, Inc.,
No. 2:15-CV-11818, 2016 WL 661587, at *3 (S.D.W. Va. Feb. 18, 2016)
(“Probably the most frequent amendment allowed under § 1653 is a
change

to

diversity

an

assertion

purposes[.]”)

regarding
Indeed,

a

party's

nearly

all

citizenship
cases

cited

for
by

Defendants in support of supplementing the record involve cases
where jurisdiction was based upon complete diversity.
Doc. 137 at 10.)

(See Rec.

Because jurisdiction here is not based upon

diversity, the analysis for whether to permit amendment under
section 1653 is more complicated.

9

Whether
amendments

the

under

district
section

jurisdictional defect.”
887 (5th Cir. 2000).

court
1653

has

the

“turns

on

power
the

to

authorize

nature

of

the

Whitmire v. Victus Ltd., 212 F.3d 885,

The Fifth Circuit has stated that section

1653 should “be broadly construed to avoid dismissals on purely
‘technical’ or ‘formal’ grounds.”
removal

are

defects.

generally

not

to

Id.

be

used

Amendments filed after
to

cure

jurisdictional

Camsoft Data Sys., Inc. v. S. Elecs. Supply, Inc., 756

F.3d 327, 337 (5th Cir. 2014).

Jurisdiction must exist at the

time the original complaint was removed and section 1653 is not
meant to cure defective jurisdictional allegations.
a

district

court

can

‘remedy

inadequate

Id.

“While

jurisdictional

allegations,’ it cannot remedy ‘defective jurisdictional facts.’”
Whitmire, 212 F.3d at 887 (quoting Newman-Green, Inc. v. AlfonzoLarrain, 490 U.S. 826, 832 n.5 (1989)).

As the Fourth Circuit has

recognized, “[t]he trick lies in placing a case within one of those
two categories.”

Wood, 764 F.3d at 323.

The Supreme Court has addressed a scenario where defendants
relied

on

supplemental

jurisdiction

under

material

the

Federal

to

support
Officer

the

existence

Removal

Willingham v. Morgan, 395 U.S. 402, 407 n.3 (1969).

of

Statute.

In Willingham

v. Morgan, the Court analyzed whether the defendants had adequately
demonstrated that the Federal Officer Removal Statute applied when
10

the only facts in the record were first presented in affidavits
filed in support of the defendants’ motion for summary judgment.
Id. at 407.

The Court noted:

This material should have appeared in the petition for
removal. However, for purposes of this review it is
proper to treat the removal petition as if it had been
amended to include the relevant information contained
in the later-filed affidavits. See 28 U.S.C. s 1653.
Id. at 407 n.3.

The Court ultimately permitted the affidavits

to be considered part of the record.
Cases from other circuits confirm that Defendants’ request to
supplement the record is appropriate under section 1653.

For

instance, the Third Circuit has stated that, taken together with
28 U.S.C. § 1446(a), section 1653 permits “a court to consider
jurisdictional

facts

contained

in

later-filed

affidavits

as

amendments to the removal petition where . . . those facts merely
clarify (or correct technical deficiencies in) the allegations
already contained in the original notice.”

USX Corp. v. Adriatic

Ins. Co., 345 F.3d 190, 205 n.12 (3d Cir. 2003).

The Ninth Circuit

has also held that a district court did not err when it construed
a defendant’s opposition to a motion to remand as an amendment
pursuant to section 1653.

Cohn v. Petsmart, Inc., 281 F.3d 837,

840 n.1 (9th Cir. 2002); see also Ruppel v. CBS Corp., 701 F.3d
1176, 1185 (7th Cir. 2012) (noting that the defendant “could also
have amended its notice of removal and added supporting exhibits
11

under 28 U.S.C. § 1653”); Morgan v. Bill Vann Co., No. CIV.A. 110535-WS-B,

2011

WL

6056083,

at

*4

(S.D.

Ala.

Dec.

6,

2011)

(“[F]ederal courts have routinely allowed defendants removing on
the

basis

of

federal

officer

jurisdiction

either

to

make

an

evidentiary showing post-removal or to rely on factual allegations
in

the

proof.”)

notice

of

removal

untethered

to

specific

evidentiary

Indeed, a court in this district has recently applied

similar logic, finding that the defendants could provide greater
detail in an opposition to a motion to remand than was originally
present in the notice of removal.

Bd. of Comm'rs of the Se.

Louisiana Flood Prot. Auth.-E. v. Tennessee Gas Pipeline Co., LLC,
29 F. Supp. 3d 808, 848-49 (E.D. La. 2014).

Because the notice of

removal in this case articulates the grounds for jurisdiction,
Defendants should be permitted to utilize section 1653 to include
greater detail.

See Wood, 764 F.3d at 326 (refusing to permit

defendants to utilize section 1653 to add a ground for removal
that was not asserted in the notice of removal); Cent. W. Virginia
Reg'l Airport Auth., Inc. v. Triad Eng'g, Inc., No. 2:15-CV-11818,
2016 WL 661587, at *8 (S.D.W. Va. Feb. 18, 2016) (declining to
permit section 1653 amendment to add federal officer removal theory
as a basis for jurisdiction when it was not present in the notice
of removal); but See Buchner v. F.D.I.C., 981 F.2d 816, 818 (5th
Cir. 1993) (“The fact that the FDIC waived its right to remove the
12

instant case is irrelevant to the determination of whether the
case should have or could have been remanded once it had been
properly removed by another party who had not waived the right to
remove.”)

The Court is satisfied that documents which clarify

allegations already made in the notice of removal may be used to
supplement the record pursuant to section 1653.
II.

Federal Officer Removal Statute

The Federal Officer Removal Statute permits the removal of
any civil or criminal action brought in state court when the
defendant in the matter is:
The United States or any agency thereof or any officer
(or any person acting under that officer) of the United
States or of any agency thereof, in an official or
individual capacity, for or relating to any act under
color of such office or on account of any right, title
or authority claimed under any Act of Congress for the
apprehension
or
punishment
of
criminals
or
the
collection of the revenue.
28 U.S.C. § 1442(a)(1). The Fifth Circuit has explained that
removal pursuant to this statute is meant to “ensure a federal
forum in any case where a federal officer is entitled to raise a
defense arising out of his official duties.” Winters v. Diamond
Shamrock Chemical Co., 149 F.3d 387, 398 (5th Cir. 1998). It is
the removing defendants that have the burden of establishing the
existence of federal jurisdiction. Id. at 397. While courts are
obligated

to

broadly

construe

removal

13

jurisdiction

under

the

Federal Officer Removal Statute, this “does not mean that the
statute’s broad language should be interpreted to imply limitless
application.” Cole v. Northrop Grumman Ship Sys., Inc., No. 073049, 2008 WL 2651428, at *2 (E.D. La. July 7, 2008) (Fallon, J.)
(citing Watson v. Phillip Morris Cos., Inc., 551 U.S. 142, 142,
127 S.Ct. 2301 (2007)).
In Mesa v. California, the Supreme Court established the test
for removal pursuant to the Federal Officer Removal Statute. 489
U.S. 121, 131-32, 109 S.Ct. 959 (1989). According to Mesa, removal
is mandated pursuant to the statute upon proof by the defendants
seeking removal: (1) that they are “persons” under § 1442(a)(1);
(2) that they acted under the direction of a federal officer; (3)
that they have demonstrated a causal nexus between plaintiff's
claims and defendants' actions performed under the color of a
federal office; and (4) that they can raise a federal defense to
plaintiff's claims. Mesa, 489 U.S. at 131-32, 109 S.Ct. 959;
Winters,

149

F.3d

at

398.

Plaintiffs

do

not

dispute

that

Defendants are considered “persons” for purposes of the Federal
Officer Removal Statute.

Thus, the first prong is not at issue.

Additionally, the Fifth Circuit held that Avondale was acting under
the direction of a federal officer and that it has demonstrated a
causal nexus on Plaintiffs’ strict liability claims.

Accordingly,

the second and third prongs are also satisfied. The only remaining
14

question is whether the Defendants have a colorable federal defense
on Plaintiffs’ strict liability claims.
Although

Defendants

initially

claimed

multiple

colorable

federal defenses, 4 the only federal defense argued here is the
government contractor defense described in Boyle v. United Techs.
Corp., 487 U.S. 500 (1988).

“That defense provides immunity to

contractors for conduct that complies with the specifications of
a federal contract.”

Crutchfield v. Sewerage & Water Bd. of New

Orleans, 829 F.3d 370, 375 (5th Cir. 2016).

Immunity under the

government

the

contractor

defense

attaches

if

defendant

can

establish that “(1) the United States approved reasonably precise
specifications;

(2)

the

equipment

conformed

to

those

specifications; and (3) the supplier warned the United States about
the dangers in the use of the equipment that were known to the
supplier but not to the United States.”

In re Katrina Canal

Breaches Litig., 620 F.3d 455, 460 (5th Cir. 2010) (citing Boyle,
487 U.S. at 512); Wilde v. Huntington Ingalls, Inc., 616 F. App'x
710, 715 (5th Cir. 2015).
To establish jurisdiction under section 1442, the removing
party only needs to present a colorable defense.
Ala. v. Acker, 527 U.S. 423, 431 (1999).

Jefferson Cty.,

The defendant is not

4 Defendants initially argued that Plaintiffs’ survival action was preempted by
the LHWCA and that Plaintiffs’ wrongful death claims were barred by the LHWCA.
(Rec. Doc. 25 at 23-29.)
15

required “to win his case before he can have it removed.” Id.
(internal citation omitted).
not

need

to

standard.

be

“clearly

Likewise, the federal defense does

sustainable”

to

satisfy

the

removal

Zeringue v. Crane Co., 846 F.3d 785, 789 (5th Cir. 2017)

(quoting Jefferson City, 527 U.S. at 432).

The Supreme Court has

not defined “colorable” in the context of section 1442, but has
provided clarity about what constitutes a non-colorable federal
defense.
is

Id. at 790.

“immaterial

and

A non-colorable federal defense is one that
made

solely

for

the

purpose

of

obtaining

jurisdiction or that is wholly insubstantial and frivolous.”

Id.

(quoting Arbaugh v. Y&H Corp., 546 U.S. 500, 514 n.10 (2006)).
Thus, a federal contractor defense is adequate for jurisdictional
purposes when the removing party’s entitlement to it “is subject
to reasonable debate.”

Crutchfield, 829 F.3d at 375.

A. The First Two Boyle Elements
To satisfy the first two Boyle elements, the removing party
must make a colorable showing that the United States approved
reasonably precise specifications requiring the use of asbestoscontaining

products

specifications.

and

Boyle,

that
487

Avondale

U.S.

at

512.

conformed

to

those

As

the

first

to

requirement, “[t]he ‘reasonably precise’ standard is satisfied as
long as the specifications address, in reasonable detail, the
product design feature, alleged to be defective.”
16

Kerstetter v.

Pac. Sci. Co., 210 F.3d 431, 438 (5th Cir. 2000).

The second

requirement is satisfied when the removing party demonstrates that
it has complied with the government’s specifications.

Together,

the first two Boyle requirements “assure that the government, and
not the contractor, is exercising discretion in selecting the
design.”

Stout v. Borg-Warner Corp., 933 F.2d 331, 334 (5th Cir.

1991).
Defendants have submitted the affidavits of three people to
make a colorable showing on these two elements.

The first affiant

is Thomas McCaffery (Rec. Doc. 25-5), a maritime historian with
experience researching archival naval policies and procedures.

An

affidavit from McCaffery states that between 1952 and 1976, eightythree percent of the ocean-going ships built at Avondale were built
for either the Navy, the Coast Guard, the United States Maritime
Administration, or the United States Army.

(Rec. Doc. 25-5 at 1.)

It further states that contracts for the construction of United
States
these

government

required

agencies.

Id.

government

vessels

at

specifications
5.

These

prepared

by

specifications

provided the mandatory terms that the Unites States imposed upon
Avondale, and they required products that contained asbestos.

Id.

at 6.
Defendants also submitted an affidavit from Edward Blanchard.
(Rec.

Doc.

25-6.)

Blanchard’s
17

affidavit

states

that

he

was

employed at Avondale from 1942 until 1988, and had worked closely
with federal government inspectors on the construction of military
vessels since 1950.

(Rec. Doc. 25-6 at 1-2.)

It states that

federal inspectors closely supervised the construction of the
vessels, overseeing all aspects of the shipbuilding process.
at 4.

Id.

Each step of the process was inspected by federal inspectors

who could stop work at any time if it failed to meet their
specifications.

Id. at 6.

Overall, Blanchard’s affidavit creates

an image of a shipbuilding process closely monitored by the federal
government.
Defendants have also included an affidavit from an industrial
hygienist named Danny Joyce. (Rec. Doc. 137-2.) Joyce’s affidavit
states that he has expertise in the area of asbestos work practices
at Avondale.

Id. at 1.

Joyce states that federal vessels were

built pursuant to contracts between Avondale and the Coast Guard
and Navy.

Id. at 2.

He further avers that federal inspectors

would inspect the supplies used in the construction of federal
vessels to determine whether they included materials required by
the contracts and the specifications.

Id. at 3.

asbestos-containing thermal insulation.
states

that

if

Avondale

failed

to

use

Id.
these

This included
The affidavit

materials,

“the

government could demand that Avondale replace the supplies with

18

conforming materials and/or put Avondale in default of contract.”
Id. at 4.
Although

Plaintiffs

dispute

that

the

federal

government

required Avondale to use asbestos, 5 the main thrust of their
argument is that Defendants cannot rely upon the contracts for
construction of the federal vessels because Avondale failed to
abide by all terms of those contracts.

Plaintiffs argue that the

same contracts which required the use of asbestos also required
Avondale to implement safety measures.

Because Plaintiffs assert

that Avondale failed to satisfy the safety provisions of the
contract, they argue that Defendants cannot now avail themselves
of the government contractor defense.

Plaintiffs also argue that

Defendants cannot satisfy the requirement that the contractor’s
actions conform to the government specifications.

Plaintiffs

argue that Defendants have provided no evidence that Avondale
complied with contractual obligations regarding safety.
Despite

Plaintiffs’

arguments,

Defendants

colorable showing of the first two Boyle elements.

have

made

a

The affidavits

5 Plaintiffs argue that the government allowed Avondale to substitute asbestoscontaining materials with other materials.
To support this assertion,
Plaintiffs attach a letter, without providing any explanation, that is
purportedly dated September 27, 1945.
(Rec. Doc. 138-1.)
The letter was
directed to “Mr. Richard Flint, Naval Architect,” and sent from “L.L. Sanford,
Regional Director, Gulf Coast.”
The letter states that “the office” was
informed that no more asbestos cloth was available, and permitted the
substitution of asbestos cloth with another material. Without more context,
the Court does not draw any conclusions from this letter.
19

submitted by Defendants clearly state that the majority of the
ships built at Avondale were built pursuant to contracts with the
federal government, the federal government required the use of
asbestos-containing materials, the federal government provided
oversight, and Avondale would have breached these contracts if it
failed to use the asbestos-containing materials.

Defendants are

not required to “win [their] case before [they] can have it
removed,” see Zeringue, 846 F.3d at 791, and they have satisfied
their burden on these Boyle elements for removal purposes.
B. The Third Boyle Element
The final requirement for the military contractor defense is
that the contractor must have warned the government of any dangers
that were known to the contractor but not to the government.
Miller v. Diamond Shamrock Co., 275 F.3d 414, 421 (5th Cir. 2001).
This

requirement

exists

to

prevent

contractors

from

being

incentivized to withhold safety information from the government.
Id.

However, “a government contractor only has the duty to warn

the government of dangers of which it has knowledge but the
government does not.”

Trevino v. Gen. Dynamics Corp., 865 F.2d

1474, 1487 (5th Cir. 1989).

A removing defendant can satisfy this

prong for removal purposes by putting forth evidence that the
government was aware of the dangers. See Williams v. Todd Shipyards
Corp., 154 F.3d 416, 1998 WL 526612, at *4 (5th Cir. 1998)
20

(unpublished)

(noting

that

the

defendant

presented

evidence

establishing the government was aware of the dangers of asbestos
during the World War II time period and stating that “[a]t the
very least such evidence establishes a ‘colorable’ claim to the
government contractor defense”); see also Stout v. Borg-Warner
Corp., 933 F.2d 331, 336 (5th Cir. 1991) (“[The manufacturer] only
had the duty to warn the government of dangers of which the
government had no knowledge.”)
Defendants have satisfied the third Boyle factor for purposes
of removal by demonstrating that the federal government was aware
of the dangers of asbestos at the time of the alleged exposure.
The affidavit of Danny Joyce states that the federal government
was fully knowledgeable about the hazards of asbestos and that
Avondale did not possess any more information on this subject than
the government.

(Rec. Doc. 137-2 at 4.)

In his second affidavit,

Thomas McCaffery also avers that the Navy was aware of the health
effects as early as 1943.
Defendants

submit

the

(Rec. Doc. 137-1 at 8.)

excerpted

deposition

Finally,

testimony

of

Dr.

Richard Lemen, a retired Assistant Surgeon General of the United
States.

(Rec. doc. 137-11.)

Dr. Lemen testified that the federal

government had been collecting literature related to the health
effects of asbestos since the 1930s.
evidence,

Defendants

have

made
21

a

Id. at 7.

colorable

showing

With this
that

the

government was aware of the dangers of asbestos and that Avondale
was not responsible for presenting its own warning. See Comardelle
v. Pennsylvania Gen. Ins. Co., No. CIV.A. 13-6555, 2014 WL 1117969,
at *6 (E.D. La. Mar. 18, 2014).
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Remand (Rec.
Doc. 23) is DENIED.
New Orleans, Louisiana this 2nd day of June, 2017.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

22