Legendre, et al v. Huntington Ingalls Incorporated, et al

Filing 23

ORDER AND REASONS granting 5 Motion to Remand to State Court; This case is REMANDED to the Civil District Court for the Parish of Orleans. Signed by Judge Lance M Africk on 4/25/2017. (Attachments: # 1 Remand Letter) (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STEPHEN R. LEGENDRE ET AL

CIVIL ACTION

VERSUS

No. 17-2162

HUNTINGTON INGALLS INC. ET AL

SECTION I

ORDER AND REASONS
Before the Court is plaintiffs’ motion1 to remand. For the following reasons,
the Court grants the motion and remands this matter to state court.
I.
For over half a century, asbestos—prized for its durability and high-heat
resistance—was widely used in shipyards. Mary Jane Wilde’s father, husband, and
brother worked in shipyards which meant that they were exposed to asbestos on the
job.
Mary Jane, however, never worked in a shipyard. But that did not stop her
from developing and then ultimately dying from mesothelioma. Before she passed
away, Mary Jane filed suit in Louisiana state court against the shipyards where her
relatives worked. Her suit alleged that she was exposed to asbestos each night when
her relatives returned home from the shipyard and that those exposures caused her
mesothelioma.
Huntington Ingalls (“Avondale”), a defendant in Mary Jane’s lawsuit, tried to
remove her case to this Court on the basis of federal officer removal jurisdiction. See

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R. Doc. No. 5.

Wilde v. Huntington Ingalls, Inc., No. 15-1486, Dkt. 1 (E.D. La. 2015). 28 U.S.C. §
1442(a) permits a defendant to remove “[a] civil action . . . commenced in a State court
and that is against or directed to . . . 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.” In order to remove a
case under federal officer removal jurisdiction, a defendant must “show (1) that it is
a person within the meaning of the statute, (2) that it has a colorable federal defense,
(3) that it acted pursuant to a federal officer’s directions, and (4) that a causal nexus
exists between its actions under color of federal office and the plaintiff’s claims.”
Zeringue v. Crane Co., 846 F.3d 785, 789 (5th Cir. 2017) (internal quotation marks
and alterations omitted).
Avondale based its removal on the allegation that the U.S. Maritime
Commission required Avondale to build ships with asbestos parts. Avondale
suggested that it had a colorable federal contractor defense on the grounds that the
United States government was responsible for the presence of asbestos at the
shipyard. See Wilde v. Huntington Ingalls, Inc., No. 15-1486, 2015 WL 2452350, at
*1-8 (E.D. La. 2015).
Judge Fallon found that insufficient to justify removal. In particular, Judge
Fallon observed that Mary Jane’s claims against Avondale did “not hinge on the fact
that Avondale possessed asbestos, as the mere possession of asbestos did not allegedly
cause [her] injury, but [she] rather claims that Avondale’s failure to properly handle
the asbestos material caused her injury.” Id. at *7. Therefore, Judge Fallon found

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that Avondale could not demonstrate a sufficient causal nexus to support removal
because Avondale could not demonstrate a causal relationship between the
government’s requirement that Avondale use asbestos and Avondale’s supposedly-lax
safety protocols. Id. at *6 (no causal nexus on failure to warn claims); id. at *7 (no
causal nexus on remaining claims).
Avondale appealed the remand order to the Fifth Circuit. But the Fifth Circuit
refused to intercede.

The Fifth Circuit determined that Avondale could not

demonstrate a likelihood of success on appeal because Avondale had shown neither a
causal nexus nor a colorable federal defense. See Wilde v. Huntington Ingalls, Inc.,
616 F. App’x 710, 714-17 (5th Cir. 2015). In response to Avondale’s argument that
Judge Fallon misinterpreted Mary Jane’s complaint to center on Avondale’s handling
of asbestos (rather than the possession of asbestos), the Fifth Circuit noted that Mary
Jane’s characterization of her claims was binding due to the uncontroversial
application of judicial estoppel. Id. at 715 & n.28 (“This concession binds Wilde in
this and future litigation.”). The case was then remanded to state court.
Mary Jane’s case settled after remand. The settlement, however, purported to
preserve the ability of Mary Jane’s survivors to bring a wrongful death claim.
That brings us to the case presently before this Court. Mary Jane’s surviving
brothers—the Legendres—filed a wrongful death lawsuit in Louisiana state court.
As with Mary Jane’s prior lawsuit, the brothers’ wrongful death claim seeks to
recover from Avondale because it “failed to properly handle and control the asbestos

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which was in [its] care, custody, and control.” R. Doc. No. 1-1, at 4 ¶ 10. As the
brothers’ briefing explains, the brothers
have not alleged liability on the part of Avondale from mere use of asbestos.
In fact, mere use of asbestos does not give rise to liability on the part of
Avondale, especially in a case where the allegations involve exposure to a
family member of an Avondale employee whose exposure results not from the
fact that Avondale used asbestos on its property but because Avondale did not
provide protective clothing . . . and . . . require employees to change clothes
before going home each day.
R. Doc. No. 5-1, at 3 (emphasis added).
Avondale removed the brothers’ case to this Court pursuant to federal officer
removal jurisdiction. The brothers now unsurprisingly move to remand.
II.
A person seeking to remove a case on the basis of federal officer removal
jurisdiction must demonstrate that “a causal nexus exists between its actions under
color of federal office and the plaintiff’s claims.” Zeringue, 846 F.3d at 789. Under
that requirement, the defendant must show “a causal connection between the charged
conduct and asserted official authority.” Id. at 793. The parties dispute whether
Avondale can demonstrate a sufficient causal nexus.
A.
Since 2015, the Fifth Circuit has given meaning to the causal nexus
requirement in a trilogy of federal officer removal cases.
The first case in the trilogy, Bartel v. Alcoa Steamship Co., 805 F.3d 169 (5th
Cir. 2015), concerns claims brought by merchant mariners against companies that
operated ships owned by the United States Navy.

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The naval vessels contained

asbestos, and the merchant mariners alleged that the operators were negligent for
failing to warn them of the asbestos. (Bartel considered only negligence claims
because the defendants waived raising the strict liability unseaworthiness claims as
a basis for removal. See id. at 174.). The Bartel court, however, found no sufficient
causal nexus between the presence of asbestos on the naval vessels and the
negligence claims at issue.

Id. (observing that “there is no evidence that the

government ever issued orders of any kind, let alone orders relating to safety
procedures or asbestos”). Therefore, Bartel affirmed the district court’s remand order.
The next case in the trilogy is Savoie v. Huntington Ingalls, 817 F.3d 457
(2016).

Savoie both expanded on and cabined Bartel. Savoie addressed claims

brought by a shipyard worker against Avondale for exposure to asbestos at the
shipyard. Avondale argued that the case was removable under federal officer removal
jurisdiction because the federal government itself specified that Avondale build ships
containing asbestos. Savoie was both a survival action and a wrongful death action
when it was considered by the Fifth Circuit because the shipyard worker passed away
shortly after filing his case in state court.
The Savoie court ultimately agreed with Avondale that there was a causal
nexus between federally directed conduct and at least one of the claims. But the Fifth
Circuit did not find a causal nexus with respect to all of the claims.

Instead, the

existence of a causal nexus turned on the nature of the particular claim.
With respect to the plaintiffs’ wrongful death claim, the Savoie court
determined that there was not a causal nexus. The court observed that wrongful

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death claims in Louisiana could not be strict liability claims because wrongful death
claims are governed by the law at the time the decedent passed away and Louisiana
abolished strict liability in 1996. Id. at 464. Therefore, since the wrongful death
claim was necessarily a negligence claim, the Savoie court followed Bartel and found
no causal nexus. Id. at 463.

Specifically, Savoie found an insufficient causal

relationship between the government’s mandated use of asbestos in the construction
of ships and Avondale’s safety precautions. Id. As Judge Costa explained,
With respect to the negligence claims, we agree . . . that the federal
government’s mandate of asbestos insulation did not cause the shipyard to
engage in the challenged conduct. Negligence claims typically involve
allegations that the defendant acted unreasonably or failed to act when it
would have been reasonable to take some additional measures. Most of the
claims in this case are of the latter sort. . . .
Just last year, we decided that nearly identical allegations of a failure
to warn or take safety precautions concerning asbestos did not challenge
actions taken under color of federal authority even though the government was
responsible for the existence of the asbestos. See Bartel, 805 F.3d at 174.
Bartel was brought against the operators of ships owned by the Navy. We
explained that although the federal government had installed asbestos in the
ships, it had not prevented the operators from warning plaintiffs about the
dangers of asbestos or from adopting safety procedures to minimize the
workers’ asbestos exposure. Id. at 173-74. We thus affirmed the remand of the
case to state court for lack of a causal nexus. Id. at 174-75.
We are not persuaded by the Defendants’ attempt to distinguish Bartel
based on either the nature of the negligence claims alleged here or the degree
of the shipyard’s discretion. The Savoies’ allegations are essentially the same
as the ones made in Bartel alleging “failure to warn, failure to train, and failure
to adopt procedures for the safe installation and removal of asbestos.” Id. at
173. As in Bartel, the shipyard has failed to demonstrate that its contracts with
the government prevented it from taking any of these protective measures
identified by Plaintiffs. . . . At most, the Navy may have had the power to shut
down projects that failed to comply with federal regulations, but the Navy
neither imposed any special safety requirements on the shipyard nor
prevented the shipyard from imposing its own safety procedures.
The Savoies’ negligence claims thus challenge discretionary acts of the
shipyard free of federal interference. As a result, the government’s directions to

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the shipyard via the contract specifications did not cause the alleged negligence,
and those claims do not support removal.
Id. at 463-64 (emphasis added).
The story, however, was different with respect to the survival action. Unlike
wrongful death actions, Louisiana survival actions in asbestos cases are governed by
the law in effect at the time of exposure. Accordingly, the Savoie plaintiffs also had
a live strict liability claim at the time of removal. Id. at 464. That strict liability
claim provided a basis for federal officer removal jurisdiction:
The strict liability claims rest on the mere use of asbestos, and that use
at the shipyard was pursuant to government directions via contract
specifications. Unlike claims based on negligence, those based on strict liability
do not turn on discretionary decisions made by the shipyard. . . .
....
[A] causal relationship . . . exists . . . between the government’s
requirements that the shipyard use asbestos in constructing its Navy and
Coast Guard vessels and Savoie’s asbestos exposure while working on those
same vessels. . . . [T]he shipyard was compelled to meet the government’s
detailed specifications for what products and materials could be used in the
construction of its vessels. . . . [T]he government exercised supervision over the
shipyard’s work to ensure compliance with contractual requirements. . . . [T]he
shipyard was contractually required to comply and could receive no payments
until it certified that all contractual requirements had been met. Thus it is the
government’s detailed specifications, to which the shipyard was contractually
obligated to follow, that required the use of asbestos that allegedly caused
Savoie’s death. This is enough to show a causal nexus between the . . . strict
liability claims and the shipyard’s actions under the color of federal authority.
Id. at 465-66.
The final case in the trilogy is Zeringue v. Crane Co., 846 F.3d 785 (5th Cir.
2017). Zeringue involved both strict liability and negligence claims against a variety
of companies that were responsible for the plaintiff’s exposure to asbestos both at sea
and at the Avondale shipyard.

Crane Company, a manufacturer of asbestos-

containing parts for the U.S. Navy, removed the lawsuit on the basis of federal officer
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removal jurisdiction. Crane argued that there was a causal relationship between the
U.S. Navy direction to Crane to provide asbestos-containing parts and the plaintiff’s
products liability suit relating to those parts. The Zeringue court agreed:
[I]f we were to decline to extend the protection of § 1442 to this case, in which
the Navy directed Crane to provide parts, we would render irrelevant
Congress’s decision to allow the removal of suits for acts relating to any act
taken under official authority. Again, we will not follow such a narrow,
grudging interpretation of § 1442(a)(1). Crane has established a casual nexus.
Id. at 794 (internal quotation marks and footnotes omitted).
In so doing, however, the Fifth Circuit again reaffirmed the continue vitality
of Bartel:
Our recent holding in Bartel v. Alcoa Steamship Co. is not to the contrary. In
Bartel, the Navy—not the contractors—supplied ships that contained asbestos
to the defendants. The defendants argued that there was a causal nexus
between their authority to operate the ships, derived simply from the Navy
providing the ships, and the charged conduct of failing to warn of the dangers
of asbestos, to train their crews in using asbestos-containing products, and to
adopt procedures for the safe installation and removal of asbestos. The charged
conduct was private conduct that implicated no federal interest. Because the
very purpose of the causal nexus requirement is to ensure that removal only
arises when a federal interest in the matter exists, an extension of § 1442 to
allow those defendants to remove would have stretched the causal nexus
requirement to the point of irrelevance.
Id. (internal quotation marks and footnotes omitted).
B.
Under the framework set out by the Bartel, Savoie, and Zeringue trilogy, the
claims at issue here do not give rise to federal officer removal jurisdiction.
Plaintiffs brings wrongful death claims against Avondale. Those claims sound
in negligence for two reasons. First, they must thanks to Louisiana’s abolition of
strict liability. See Savoie, 817 F.3d at 464. Second, even if the wrongful death claims

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are strict liability claims—and they are not—judicial estoppel would nonetheless
preclude the plaintiffs here from abandoning the multiple representations in both
state court and this Court that they are only pursuing negligence claims against
Avondale. See Wilde, 616 F. App’x at 715 & n.28
Because the claims sound in negligence, Savoie’s discussion of negligence and
wrongful death governs. Thus, Avondale must do more than merely demonstrate that
the government required Avondale to use asbestos when building vessels for the
government.

See Savoie, 817 F.3d at 463 (“The Savoies’ negligence claims thus

challenge discretionary acts of the shipyard free of federal interference. As a result,
the government’s directions to the shipyard via the contract specifications did not
cause the alleged negligence, and those claims do not support removal.”).
At best, Avondale demonstrates that the federal government required
Avondale to use asbestos when building ships. See R. Doc. No. 8, at 15-18. Under
Savoie, the government’s responsibility for the existence of the asbestos at the
shipyard is insufficiently related to the negligence claims challenging Avondale’s
discretionary decisions regarding safety precautions to serve as the basis for federal
officer removal. Therefore, although Avondale has preserved the argument that the
Fifth Circuit’s opinions in Savoie and Bartel are wrongly decided, see R. Doc. No. 8,
at 12-13, this Court has no choice but to follow Fifth Circuit law as it currently exists
and remand this matter to Louisiana state court.

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III.
Accordingly,
IT IS ORDERED that the motion to remand is GRANTED.

This case is

REMANDED to the Civil District Court for the Parish of Orleans.
New Orleans, Louisiana, April 25, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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