Pitre et al v. Huntington Ingalls Inc et al

Filing 47

ORDER AND REASONS regarding 20 Motion to Remand to State Court and 43 MOTION for APPEAL OF MAGISTRATE JUDGE DECISION to District Court. For the foregoing reasons, the Court DENIES the motion to review the Magistrate Judge's order granting plaintiffs leave to amend. Further, the Court DENIES plaintiffs' motion to remand. Signed by Judge Sarah S. Vance on 12/6/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DIANE PITRE, ET AL.

CIVIL ACTION

VERSUS

NO. 17-7029

HUNTINGTON INGALLS, INC., ET AL.

SECTION “R” (5)

ORDER AND REASONS
Before the Court is plaintiffs’ motion to remand to state court, 1 and
Defendants Huntington Ingalls, Inc. and Lamorak Insurance Company’s
motion for review of the Magistrate Judge’s order granting plaintiffs leave to
amend their complaint. 2 For the following reasons, the Court denies both
motions.

I.

BACKGROUND
This case arises out of alleged asbestos exposure at Avondale Shipyard

in Avondale, Louisiana.3 Stewart Pitre worked as a pipefitter for Avondale
Shipyard from 1963 to 1972. 4 Mr. Pitre developed lung cancer, allegedly as

1
2
3
4

R. Doc. 20.
R. Doc. 43.
R. Doc. 4-1 at 4.
Id.

a result of exposure to asbestos at Avondale Shipyard, and passed away on
July 15, 2016.5
On April 6, 2017, Mr. Pitre’s wife and children filed an action in state
court for wrongful death and survival. 6

Plaintiffs named numerous

defendants, including Huntington Ingalls, Inc. (Avondale) and Foster
Wheeler, LLC. 7 Plaintiffs’ original petition included, among other causes of
action, failure to warn and other negligence claims against Avondale, and
strict products liability and failure to warn claims against Foster Wheeler.8
Foster Wheeler allegedly produced boilers with asbestos-containing
insulation that Mr. Pitre came into contact with aboard vessels at Avondale. 9
On June 30, 2017, plaintiffs filed a first amended petition adding Occidental
Chemical Corporation as a defendant, and asserting strict liability claims
against both Avondale and Occidental Chemical.10
On June 27, 2017, Chester Rodrigue, a former coworker of Mr. Pitre’s,
testified in a deposition that he worked with Mr. Pitre on Destroyer Escorts

Id. at 4 ¶ 15.
Id. at 1.
7
Id. at 1-2. Huntington Ingalls was formerly known as Avondale
Industries, Inc., and Avondale Shipyards, Inc. See id. at 1.
8
Id. at 9-11.
9
Id. at 2, 9.
10
R. Doc. 1-2 at 1-2, 6; R. Doc. 19-1 at 3-4. Avondale and Occidental
Chemical are each identified in the petition as “Premises Defendants.” See
R. Doc. 1-2 at 1-2.
2
5

6

built by Avondale. 11 Avondale and its alleged insurer, Lamorak Insurance
Company, removed this case to federal court on July 24, 2017.12 Avondale
and Lamorak argue that they are entitled to remove this matter under
28 U.S.C. § 1442(a)(1) because plaintiffs’ claims are for or related to acts
performed under color of federal office while Avondale was acting under the
authority of an officer of the United States. 13 The notice of removal asserts
that removal is timely because it came within 30 days of Mr. Rodrigue’s
testimony, which provided the first notice that Mr. Pitre’s alleged injuries
were connected to asbestos-containing materials on Destroyer Escorts built
by Avondale for the U. S. Navy.14 See 28 U.S.C. § 1446(b)(3).
On August 23, 2017, plaintiffs requested leave to file an amended
complaint to delete their strict liability claims against Avondale.15 Magistrate
Judge North granted plaintiffs leave to amend. 16 Avondale and Lamorak

R. Doc. 23-1 at 1, 6-8, 10.
R. Doc. 1. Lamorak is also the alleged insurer of deceased Avondale
executive officers C.E. Hartzman, Henry Zac Carter, and Hettie Dawes
Eaves. See id. at 1; R. Doc. 4-1 at 3 ¶¶ 10-11.
13
R. Doc. 1 at 4-5.
14
Id. at 3.
15
R. Doc. 19.
16
R. Doc. 31.
3
11

12

Insurance now appeal Judge North’s decision. 17

Plaintiffs oppose

defendants’ appeal, and move to remand this action to state court. 18

II.

LEGAL STANDARD
The federal officer removal statute permits an officer of the United

States, “or any person acting under that officer,” to remove to federal court a
civil action or criminal prosecution brought against them “in an official or
individual capacity, for or relating to any act under color of such office . . . .”
28 U.S.C. § 1442(a)(1). The party asserting jurisdiction under this statute
bears the burden of establishing that federal jurisdiction exists. Winters v.
Diamond Shamrock Chem. Co., 149 F.3d 387, 397 (5th Cir. 1998).
The purpose of the federal officer removal provision is to protect the
lawful activities of the federal government from undue state interference.
See Willingham v. Morgan, 395 U.S. 402, 405-06 (1969). Because the
federal government “can act only through its officers and agents,” it has a
strong interest in ensuring that the states do not hinder those officers in the
execution of their duties. Id. at 406-07 (quoting Tennessee v. Davis, 100
U.S. 257, 263 (1880)).

17
18

The federal officer removal statute “authorizes

R. Doc. 43.
R. Doc. 20; R. Doc. 46.
4

removal of the entire case even though only one of its controversies might
involve a federal officer or agency.” IMFC Prof. Servs. of Fla. v. Latin Am.
Home Health, Inc., 676 F.2d 152, 158 (5th Cir. Unit B 1982).
Because of its broad language and unique purpose, the federal officer
removal statute has been interpreted to operate somewhat differently from
the general removal provision. Unlike the general removal statute, which
must be “strictly construed in favor of remand,” Manguno v. Prudential
Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002), the federal officer
removal provision must be liberally construed. Watson v. Philip Morris Co.,
Inc., 551 U.S. 142, 147 (2007). A case against a federal officer may be
removed even if a federal question arises as a defense rather than as a claim
apparent from the face of the plaintiff’s well-pleaded complaint.

See

Jefferson County, Ala. v. Acker, 527 U.S. 423, 431 (1999). Additionally,
removal under § 1442(a)(1) does not require the consent of codefendants.
See Humphries v. Elliott Co., 760 F.3d 414, 417 (5th Cir. 2014).

5

III. DISCUSSION
A.

Appeal of Magistrate Judge’s Order

Magistrate Judge North granted plaintiffs leave to amend their
complaint to remove strict liability claims against Avondale. 19 Avondale and
Lamorak Insurance appeal this decision, arguing that plaintiffs’ amendment
is improper.20 Magistrate judges are empowered to “hear and determine”
certain non-dispositive pretrial motions, including a motion for leave to
amend. 28 U.S.C. § 636(b)(1)(A); see also PYCA Indus., Inc. v. Harrison Co.
Waste Water Mgmt. Dist., 81 F.3d 1412, 1421 n.11 (5th Cir. 1996). If a party
is dissatisfied with a magistrate judge’s ruling, it may appeal to the district
court. Fed. R. Civ. P. 72(a). When a timely objection is raised, the district
court will “modify or set aside any part of the order that is clearly erroneous
or is contrary to law.” Id.; see also 28 U.S.C. § 636(b)(1)(A). The Court
reviews the magistrate judge’s “factual findings under a clearly erroneous
standard, while legal conclusions are reviewed de novo.” Moore v. Ford
Motor Co., 755 F.3d 802, 806 (5th Cir. 2014) (internal citation omitted). A
factual “finding is ‘clearly erroneous’ when although there is evidence to
support it, the reviewing court on the entire evidence is left with the definite

19
20

R. Doc. 31; see also R. Doc. 19.
R. Doc. 43.
6

and firm conviction that a mistake has been committed.” United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948).
The order granting plaintiffs leave to amend their complaint is not
clearly erroneous or contrary to law. Courts will “freely give leave [to amend]
when justice so requires.” Fed. R. Civ. P. 15(a). The Court considers multiple
factors in determining whether it is appropriate to grant leave, including
“undue delay, bad faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment,
[and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Avondale and Lamorak Insurance appear to argue that plaintiffs’
amendment is in bad faith because it is intended to defeat federal
jurisdiction, and that the amendment is futile because it cannot destroy
federal jurisdiction. 21 Plaintiffs represent that the addition of strict liability
claims against Avondale in the first amended petition was an inadvertent
error.22 Plaintiffs explain that they requested leave to amend in state court
to add a new defendant, Occidental Chemical Corporation, and never
requested leave to add new claims against Avondale. 23

21
22
23

R. Doc. 43-1 at 5-7.
R. Doc. 19-1 at 5.
Id. at 3-4.
7

But plaintiffs

acknowledge that their second amended complaint is intended to support
their motion to remand. 24
The magistrate judge could reasonably have concluded that plaintiffs’
amendment seeks to correct a good faith error, and was not made in bad
faith. Plaintiffs are dropping substantive claims against Avondale that they
might otherwise have pursued, and are not engaging in merely superficial
manipulation of the pleadings to defeat federal jurisdiction. See Enochs v.
Lampasas Co., 641 F.3d 155, 160 (5th Cir. 2011) (noting that a “motion to
amend [the] complaint to delete the federal claims is not a particularly
egregious form of forum manipulation, if it is manipulation at all”).
Avondale relies on the Fifth Circuit’s unpublished opinion in Bouie v.
Equistar Chemicals, L.P., 188 F. App’x 233 (5th Cir. 2006), to argue that
plaintiffs’ amendment should be disallowed.25 But the Bouie court held only
that the district court did not abuse its discretion in denying leave to amend
after finding futility and bad faith, not that a complaint can never be
amended to remove federal claims. Id. at 238-39.
Avondale asserts that plaintiffs’ amendment is futile because it cannot
destroy federal jurisdiction. 26

24
25
26

Federal question jurisdiction under the

Id. at 5.
R. Doc. 43-1 at 6.
Id. at 6-7.
8

federal officer removal statute arises out of the existence of a federal defense
in the notice of removal. See Mesa v. California, 489 U.S. 121, 136 (1989).
If a case is properly removed, the Court acquires supplemental jurisdiction
over nonfederal claims. See IMFC Prof. Servs. of Fla., 676 F.2d at 158-59;
see also Wilde v. Huntington Ingalls, Inc., 616 F. App’x 710, 715 n.24 (5th
Cir. 2015). Thus, the post-removal “elimination of the federal officer from a
removed case does not oust the district court of jurisdiction (except where
there was no personal jurisdiction over the officer).” See IMFC Prof. Servs.
of Fla., 676 F.2d at 159.
The Court nevertheless has discretion to relinquish supplemental
jurisdiction and remand to state court if an amended complaint eliminates
the federal question in a case. See Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 346, 357 (1988); see also Sewell v. Sewerage & Water Bd. of New
Orleans, 697 F. App’x 288, 291, 293 (5th Cir. 2017). Magistrate Judge North
thus correctly concluded that it is within the Court’s discretion to consider
an amended complaint within the context of a motion to remand.27 See
Carnegie-Mellon Univ., 484 U.S. at 357 (explaining that the “district court
can consider whether the plaintiff has attempted to manipulate the forum”
when deciding whether remand is appropriate).

27

R. Doc. 31.
9

That the amended

complaint does not automatically destroy federal jurisdiction weighs in
favor, rather than against, permitting amendment. Cf. Hensgens v. Deere &
Co., 833 F.2d 1179, 1182 (5th Cir. 1987) (explaining that courts should
scrutinize an amendment that would destroy federal jurisdiction more
closely than an ordinary amendment).
Accordingly, the Court finds no error in Magistrate Judge North’s
order granting plaintiffs leave to amend their complaint. Avondale and
Lamorak Insurance’s appeal is denied.
B.

Motion to Remand

Plaintiffs argue that, in light of the amended complaint, the Court lacks
subject matter jurisdiction and this case must be remanded to state court.28
But, as explained above, the Court’s jurisdiction is based on the notice of
removal, not the amended complaint. See IMFC Prof. Servs. of Fla., 676
F.2d at 159; see also Bartel v. Alcoa S.S. Co., Inc., 805 F.3d 169, 172 n.2 (5th
Cir. 2015). Although an amended complaint deleting federal claims may
permit a discretionary remand, it does not destroy federal jurisdiction over a
validly removed case. Here, the Court finds that remand is not justified.
Avondale’s notice of removal is valid, and the Court properly acquired
jurisdiction over this matter. Further, Foster Wheeler was not affected by

28

R. Doc. 20-1.
10

plaintiffs’ amended complaint, and remains entitled to a federal forum under
the federal officer removal statute.
1.

Jurisdiction at Removal

Avondale removed this case to federal court based on its work as a
military contractor. 29 The Fifth Circuit has adopted a three-part test to
determine whether a government contractor may invoke 28 U.S.C.
§ 1442(a)(1). The contractor must show that: (1) it is a “person” within the
meaning of the statute; (2) it acted pursuant to a federal officer’s directions,
and a causal nexus exists between its actions under color of federal office and
the plaintiffs’ claims; and (3) it has a colorable federal defense to the
plaintiffs’ claims. Winters, 149 F.3d at 398-400.
Plaintiff’s first amended state court petition, which formed the basis
for removal, names Avondale and Occidental Chemical Corporation as
“Premises Defendants.”30 The amended petition asserts a strict liability
claim against the Premises Defendants under Louisiana Civil Code article
2317 for Mr. Pitre’s injuries as a result of asbestos exposure.31 Avondale
argues that it is a person under the statute, it was acting under an officer of
the United States, the use and installation of asbestos-containing materials

29
30
31

R. Doc. 1.
R. Doc. 1-2 at 1-2.
Id. at 6.
11

was required by its contracts with the U.S. Navy, and it has colorable federal
defenses to plaintiffs’ claims under both Boyle v. United Technologies Corp.,
487 U.S. 500 (1988), and the Longshore and Harbor Workers’ Compensation
Act. 32
Circuit precedent strongly supports Avondale’s right to remove this
matter based on plaintiffs’ strict liability claims for asbestos exposure. Under
nearly identical factual circumstances, the Fifth Circuit held that Avondale is
a person within the meaning of the statute, and that it satisfied the causal
nexus requirement between its work as a military contractor and the
plaintiffs’ strict liability claims for asbestos exposure under Louisiana Civil
Code article 2317. See Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462,
463-66 (5th Cir. 2016).

The Savoie court found a sufficient causal

relationship because “[t]he strict liability claims rest on the mere use of
asbestos, and that use at the shipyard was pursuant to government directions
via contract specifications.” Id. at 465; see also Winters, 149 F.3d at 400.
The evidence before the Court indicates that the U.S. Government
required the use of asbestos at Avondale for most of the time period between
1963 and 1972 when Mr. Pitre was employed there. Avondale submits the
affidavits of Commander Thomas McCaffery, Edward Blanchard, and Danny

32

R. Doc. 1; R. Doc. 23.
12

Joyce.33 McCaffery, a retired Commander in the U.S. Navy (Reserve), attests
that the contracts between Avondale and the U.S. Government to build
warships specified the materials that could be used in the construction of
U.S. Navy ships.34 He further represents that, until mid-1969, all approved
pipe insulation products for use on pipes whose normal operating
temperature exceeded 370 degrees Fahrenheit contained asbestos.35
Blanchard, a former supervisor and vice-president at Avondale, attests
that all aspects of work on federal vessels at Avondale were performed under
the close and detailed surveillance of the U.S. Navy and other federal
agencies.36

Further, Blanchard states that federal inspectors retained

ultimate decision-making authority over all construction, and that every
component installed on a Navy vessel had to be on the Navy’s list of qualified
products.37 Joyce, a former industrial hygienist at Avondale, represents that
he has reviewed the contracts and specifications pertaining to the
construction of federal vessels at Avondale. 38

He states that federal

inspectors monitored the site to ensure that the supplies used were those

33
34
35
36
37
38

R. Doc. 23-3; R. Doc. 23-4; R. Doc. 23-5.
R. Doc. 23-3 at 1, 6-7.
Id. at 7 ¶ 27.
R. Doc. 23-4 at 1-2.
Id. at 2, 8.
R. Doc. 23-5 at 1, 3.
13

required by the contracts and specifications, including asbestos-containing
insulation and other asbestos-containing materials.39
As noted above, Chester Rodrigue’s deposition testimony indicates
that Mr. Pitre worked on Destroyer Escorts built by Avondale for the U.S.
Navy.40 The Court finds that Avondale has shown a sufficient causal nexus
between Avondale’s actions under color of federal office and plaintiffs’ strict
liability claims for use of asbestos. Because Avondale satisfies the causal
nexus standard as it was applied by the Fifth Circuit in Savoie, 817 F.3d 457
and Winters, 149 F.3d 387, the Court need not address Avondale’s argument
that the 2011 amendments to the federal officer removal statute created a
less demanding causal nexus requirement. 41
Avondale has also presented a colorable defense of federal contractor
immunity. The federal defense need only be colorable, not clearly
sustainable, and a federal “officer need not win his case before he can have it
removed.” See Willingham, 395 U.S. at 406-07; see also Acker, 527 U.S. at
432. The Fifth Circuit has explained that “a non-colorable federal defense is
a defense that is immaterial and made solely for the purpose of obtaining
jurisdiction or that is wholly insubstantial and frivolous.” Zeringue v. Crane

39
40
41

Id. at 3-4 ¶ 8.
R. Doc. 23-1 at 1, 6-8, 10.
R. Doc. 23 at 14-17.
14

Co., 846 F.3d 785, 790 (5th Cir. 2017). Federal contractors are immune from
suit when “(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.” Boyle, 487 U.S. at
512.
As outlined above, Avondale has provided evidence that the U.S. Navy
required it to comply with precise specifications, including the use of
asbestos-containing pipe insulation. 42 Avondale’s affidavits also indicate
that federal monitors ensured that vessels built by Avondale conformed to
contract specifications.43 See Miller v. Diamond Shamrock Co., 275 F.3d
414, 420 (5th Cir. 2001) (explaining that evidence of inspections, and
“[a]cceptance and use of an item following its production can establish that
the item conformed to its specifications”).
Further, the evidence suggests that the U.S. Government was at least
as knowledgeable about the dangers of asbestos as Avondale. Joyce attests
that Avondale did not have any information regarding the hazards of
asbestos that was not known by the federal government, including the U.S.

42
43

R. Doc. 23-3 at 7 ¶ 27.
R. Doc. 23-4 at 2-3; R. Doc. 23-5 at 3-4 ¶ 8.
15

Navy.44

Avondale also offers the deposition testimony of Dr. Richard

Lemen, a retired Assistant Surgeon General of the United States, who
testified that the U.S. Public Health Service collected and reviewed scientific
literature on asbestos beginning in the 1930s. 45
The Fifth Circuit has held that a U.S. Navy contractor had a colorable
federal defense against a strict liability claim for asbestos exposure when
evidence existed that military specifications required the use of asbestos, and
the Navy had as much or more knowledge about the dangers of asbestos
exposure as the contractor. See Zeringue, 846 F.3d at 791-92. This case
presents similar circumstances, and the Court finds that Avondale has stated
a colorable defense of federal contractor immunity to plaintiffs’ strict liability
claims. See Savoie v. Penn. Gen. Ins. Co., No. 15-1220, 2017 WL 2391264, at
*6-7 (E.D. La. 2017) (holding that Avondale presented a colorable defense of
federal contractor immunity to strict liability claims for asbestos exposure).
Because the Court finds a colorable federal contractor immunity defense
under Boyle, it need not reach Avondale’s argument that it also has a
colorable federal defense under the Longshore and Harbor Workers’
Compensation Act.46

44
45
46

R. Doc. 23-5 at 4 ¶ 9.
R. Doc. 23-7 at 7.
R. Doc. 23 at 24.
16

Plaintiffs do not seriously contest that their strict liability claims
against Avondale are removable under 28 U.S.C. § 1442(a)(1).47 Plaintiffs
instead maintain that their strict liability allegations against Avondale were
brought in error, and have since been deleted in the amended complaint.48
As discussed above, a good faith error may justify granting leave to amend.
But plaintiffs’ error does not create a jurisdictional defect in the notice of
removal. Accordingly, the Court finds that Avondale’s notice of removal is
valid and that federal jurisdiction exists over this matter.
2.

Claims Against Foster Wheeler

Plaintiffs argue that, even if the Court properly acquired jurisdiction,
the amended complaint has removed the federal question in this case and
the Court has discretion to remand the remaining state law claims. 49 But,
although plaintiffs’ amended complaint deleted the strict liability claims as
to Avondale, plaintiffs continue to press strict liability claims against Foster
Wheeler.50 Foster Wheeler asserts in its opposition to the motion to remand

Plaintiffs’ motion to remand assumes that the strict liability claims
against Avondale have been deleted and instead argues that plaintiffs’
failure to warn and other negligence claims against Avondale do not trigger
federal jurisdiction under § 1442(a)(1). See generally R. Doc. 20-1.
48
R. Doc. 20-1 at 2.
49
Id. at 3.
50
See R. Doc. 4-1 at 9-10; R. Doc. 32.
17
47

that it independently qualifies for federal officer removal and has a colorable
federal defense in this case. 51
As a threshold matter, the Court must determine whether Foster
Wheeler can invoke federal jurisdiction at this stage of the litigation.
Plaintiffs contend that Foster Wheeler has forfeited its right to assert federal
jurisdiction under § 1442(a)(1) because it did not join in the original notice
of removal or file its own timely supplemental notice of removal. 52 Plaintiffs
cite multiple cases that stand for the proposition that a defective notice of
removal cannot be cured by untimely attempts to assert new bases for federal
jurisdiction. 53 But such cases are inapposite to the posture of this case
because Avondale’s notice of removal was not defective, and the Court
properly acquired removal jurisdiction.
The inquiry at this time is not whether the case was properly removed,
but rather whether the Court can and should relinquish jurisdiction. The
Fifth Circuit has held that a district court has no discretion to remand a case
over which it continues to exercise federal question jurisdiction, even if the
federal officer who originally removed the matter is dismissed from the case.
See Buchner v. FDIC, 981 F.2d 816, 818, 821 (5th Cir. 1993) (“The fact that

51
52
53

R. Doc. 24.
R. Doc. 28 at 1-2.
Id. at 2-5.
18

the FDIC waived its right to remove the 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.”).
When two defendants independently assert federal officer removal
jurisdiction, separate notices of removal are not strictly required to protect
each defendant’s right to a federal forum. In Humphries, the Fifth Circuit
held that a defendant served after removal preserves its right to invoke
federal jurisdiction under § 1442(a)(1) by asserting a government contractor
defense in its answer. 760 F.3d at 417. The Humphries court explained that
removal under §1442(a)(1) does not require the consent of codefendants, and
defendants in cases that have already been removed to federal court are not
required “to file a meaningless ‘notice of removal’ or unnecessary ‘joinder’ in
order to preserve their right to a federal forum.” Id.
Although Foster Wheeler was served before removal, it asserted a
federal contractor defense in its answer to plaintiff’s state court petition, 54
and incorporated this defense into its answer to the amended petition in

R. Doc. 4-1 at 139, 143-44. Foster Wheeler stated that, to the extent
plaintiffs allege exposure to products manufactured by Foster Wheeler for a
government contract, Foster Wheeler complied with government
specifications, worked under the directions of a federal officer, and is
entitled to federal contractor immunity. See id. at 143-44.
19
54

federal court.55 Given that Avondale properly removed this matter to federal
court, the Court finds that barring Foster Wheeler from invoking federal
jurisdiction simply because it did not file a separate notice of removal would
be an impermissibly “‘narrow, grudging interpretation’ of § 1442(a)(1).” Id.
(citing Willingham, 395 U.S. at 407).
Having found that Foster Wheeler preserved its right to assert federal
jurisdiction, the Court next considers whether Foster Wheeler meets the
requirements of § 1442(a)(1). Plaintiffs’ state court petition alleges that
Foster Wheeler produced, manufactured, and sold boilers with asbestoscontaining insulation, and that Mr. Pitre inhaled asbestos dust from this
insulation during the course of his employment at Avondale. 56 Specifically,
plaintiffs assert that Foster Wheeler’s boilers were unreasonably dangerous
per se, that Foster Wheeler failed to place adequate warnings on its boilers
regarding the dangers of asbestos, and that Foster Wheeler is strictly liable
for defective product design because it failed to design its products in such a
manner as to minimize exposure to asbestos.57
With regard to plaintiffs’ design defect claims, Foster Wheeler asserts
that it produced boilers for use aboard three Navy ships built at Avondale

55
56
57

R. Doc. 17 at 2; see also R. Doc. 24 at 3 n.7.
R. Doc. 4-1 at 9 ¶ 33.
Id. at 9-10 ¶¶ 34-35.
20

during the period Mr. Pitre worked there, and these boilers were
manufactured in compliance with detailed Navy specifications.58 Foster
Wheeler points to the deposition testimony of Chester Rodrigue, who
testified that Mr. Pitre worked on “just about all” of the Navy Destroyer
Escorts built at Avondale.59
Foster Wheeler also offers deposition testimony and affidavits from J.
Thomas Schroppe and Admiral Ben Lehman. 60 Schroppe, a former Foster
Wheeler executive, testified that Foster Wheeler supplied boilers to ships
constructed at Avondale, including the Edward McDonnel, the Brumby, and
the Davidson.61 Vessel construction records indicate that these three vessels
were built for the U.S. Navy at Avondale and delivered in 1965.62 In an
affidavit, Schroppe further attests that Foster Wheeler fabricated and
furnished marine propulsion boilers for the U.S. Navy according to the
military’s detailed specifications.63 These specifications extended to the
materials required to fabricate the boiler and its components, including
insulation materials.64

58
59
60
61
62
63
64

R. Doc. 24 at 2, 7-8.
R. Doc. 23-1 at 10.
R. Doc. 24-4; R. Doc. 24-5.
R. Doc. 24-2 at 8-9; see also R. Doc. 24 at 2.
R. Doc. 24-3.
R. Doc. 24-4 at 1-2.
Id. at 2-3
21

Admiral Lehman, an engineer and retired Rear Admiral in the U.S.
Navy, similarly attests that boilers used on Navy combat vessels, including
Foster Wheeler boilers, were designed and manufactured according to
detailed specifications written, approved, and issued by the U.S. Navy. 65
Admiral Lehman further explains that naval inspectors were responsible for
assuring that contractors like Foster Wheeler complied with contract
specifications in every detail, and the U.S. Navy retained final say over the
design of any piece of equipment. 66 In addition to these affidavits, Foster
Wheeler has provided copies of relevant military specifications, including
machinery and piping thermal insulation requirements from 1966 that state
that asbestos materials shall be used for certain insulation. 67
The Court finds that Foster Wheeler has presented sufficient evidence
to show that it satisfies the requirements of § 1442(a)(1) as to plaintiffs’
design defect claims. Plaintiffs do not dispute that Foster Wheeler is a
person under the statute. See Dupre v. Todd Shipyards Corp., No. 11-2097,
2011 WL 4551439, at *5 (E.D. La. 2011). Further, Foster Wheeler has shown
that it acted under the U.S. Navy’s directions during the period that Mr. Pitre
was employed at Avondale, and that an apparent causal nexus exists between

65
66
67

R. Doc. 24-5 at 1-2.
Id. at 4-5.
R. Doc. 24-7; see also R. Doc. 24-6; R. Doc. 25-8; R. Doc. 24-9.
22

its actions under color of federal office and plaintiffs’ design defect claims.
Foster Wheeler has offered evidence that it was required to construct its
boilers in conformity with detailed Navy specifications, that its relationship
with Mr. Pitre derived from its official authority to provide products to the
Navy, and that this authority relates to Foster Wheeler’s alleged use of
asbestos in its boiler products. See Zeringue, 846 F.3d at 79-94; see also
Dupre, 2011 WL 4551439, at *6.
Further, Foster Wheeler has stated a colorable defense of federal
contractor immunity. Federal contractors cannot be held liable under state
law for design defects in military equipment when, as outlined above, “(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.” Boyle, 487 U.S. at 512. The abovedescribed evidence supports the inference that the U.S. Navy required Foster
Wheeler’s boilers to conform to precise specifications. Further, Admiral
Lehman attests that Navy inspectors would refuse to approve or authorize
shipment of any products that failed to comply with contract specifications.68

68

See, e.g., R. Doc. 24-5 at 4.
23

This suggests that the boilers likely conformed to military specifications. 69
See Miller, 275 F.3d at 420. Finally, as with Avondale, Foster Wheeler’s
evidence suggests that the U.S. Navy knew as much or more about the
dangers of asbestos as Foster Wheeler. Admiral Lehman explains that the
U.S. Navy conducted extensive research on the dangers of asbestos exposure
beginning in the 1930s, and he attests that the Navy made a conscious
decision regarding how asbestos would be used on its ships in light of its
knowledge of these hazards.70
Plaintiffs have not contested the substance of Foster Wheeler’s federal
contractor defense, and the Court perceives no basis to distinguish this case
from Zeringue, 846 F.3d 785. 71 As the Zeringue court explained, although
Foster Wheeler has not provided “definitive proof that [the] asbestos
exposure resulted from the Navy’s” discretionary decision to use asbestos,
definitive proof is not necessary to establish a colorable defense of federal
contractor immunity. Id. at 792; see also Dupre, 2011 WL 4551439, at *7

See, e.g., R. Doc. 24-5 at 4.
Id. at 6-7.
71
Notably, in arguing that their failure to warn claims against Avondale
are not controlled by Zeringue, plaintiffs emphasize that Zeringue involved
strict liability claims against a product manufacturer premised on the mere
use of asbestos. See R. Doc. 20-1 at 15. This argument is unavailing as to
Foster Wheeler because Foster Wheeler is a product manufacturer and
plaintiffs’ claims against it are based on its use of asbestos-containing
insulation. See R. Doc. 4-1 at 9-10.
24
69
70

(holding that Foster Wheeler asserted a colorable federal contractor
immunity defense as to strict liability claims); cf. Sawyer v. Foster Wheeler,
LLC, 860 F.3d 249, 256-57 (4th Cir. 2017) (finding that Foster Wheeler had
a colorable federal defense as to failure to warn claims).
Accordingly, the Court finds that Foster Wheeler satisfies the
requirements to invoke federal jurisdiction under § 1442(a)(1) based on
plaintiffs’ design defect claims.

The Court retains federal question

jurisdiction in this matter, and plaintiffs’ motion to remand must therefore
be denied. The Court need not and does not reach Avondale’s and Foster
Wheeler’s arguments that it also has federal question jurisdiction over
plaintiffs’ failure to warn and other negligence claims.

IV.

CONCLUSION
For the foregoing reasons, the Court DENIES the motion to review the

Magistrate Judge’s order granting plaintiffs leave to amend. Further, the
Court DENIES plaintiffs’ motion to remand.
6th
New Orleans, Louisiana, this _____ day of December, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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