LeBoeuf, Jr. v. Huntington Ingalls Incorporated et al

Filing 151

ORDER AND REASONS granting 120 Motion for Partial Summary Judgment. Signed by Judge Sarah S Vance on 3/7/2025. (amj)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NOLAN J. LEBOEUF

CIVIL ACTION

VERSUS

NO. 24-1695

HUNTINGTON INGALLS,
INCORPORATED, ET AL.

SECTION “R” (1)

ORDER AND REASONS
Before the Court is plaintiff Nolan LeBoeuf Jr.’s motion for partial
summary judgment on the government immunity defenses asserted by
defendant Huntington Ingalls Incorporated (“Avondale”).1
opposes plaintiff’s motion.2

Avondale

For the following reasons, the Court grants

plaintiff’s motion.

I.

BACKGROUND
This case arises from plaintiff’s alleged exposure to asbestos. Plaintiff

contends that he was exposed to asbestos dust during his work at Avondale
Shipyard in the 1970s and 80s and outside of his work for the shipyard
while visiting his coworkers.3 He alleges that Avondale failed to educate

1
2
3

R. Doc. 120.
R. Doc. 121.
R. Doc. 1-2 ¶ 4.

and warn him about asbestos dust, which left him unprotected from
asbestos dust exposure.

He alleges that his exposure to asbestos dust

caused him to develop mesothelioma.4 Plaintiff filed a petition for damages
in state court against Avondale and others asserting liability for his asbestos
exposure and resulting mesothelioma.5 In his petition, plaintiff asserts that
Avondale negligently failed to warn and disclose, or otherwise protect him
from, the risks of asbestos dust exposure.
Avondale removed the action to federal court.6

In its notice of

removal, Avondale contended that removal was proper because it was
acting under an officer of the United States at all relevant times.7

In

particular, Avondale argued that because the vessels on which plaintiff
worked were manufactured pursuant to contracts with the federal
government, it was entitled to government contractor immunity established
by Boyle v. United Techs. Corp., 487 U.S. 500 (1988), and the federal
defense of derivative sovereign immunity as set forth in Yearsley v. W.A.
Ross. Construction Co., 309 U.S. 18 (1940).8

4
5
6
7
8

Id. ¶ 8.
Id. ¶ 2.
R. Doc. 1.
Id. at 3.
Id. at 9-10 ¶¶ 23 & 25.
2

Plaintiff now moves for summary judgment in his favor on the issue
of whether Avondale has immunity for its alleged failure to warn or
otherwise protect plaintiff from asbestos exposure by virtue of its status as a
federal government contractor.9 Avondale opposes the motion.10
The Court considers the motion below.

II.

LEGAL STANDARD
Summary judgment is warranted when “the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (en banc) (per curiam).

“When assessing

whether a dispute to any material fact exists, [the Court] consider[s] all of
the evidence in the record but refrain[s] from making credibility
determinations or weighing the evidence.”

Delta & Pine Land Co. v.

Nationwide Agribusiness Ins., 530 F.3d 395, 398-99 (5th Cir. 2008) (citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); and
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986)). All reasonable inferences are drawn in favor of the nonmoving
9
10

R. Doc. 120-1 at 1-2.
R. Doc. 121.
3

party, but “unsupported allegations or affidavits setting forth ‘ultimate or
conclusory facts and conclusions of law’ are insufficient to either support or
defeat a motion for summary judgment.” Galindo v. Precision Am. Corp.,
754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 10A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed. 1983)); see
also Little, 37 F.3d at 1075 (noting that the moving party’s “burden is not
satisfied with ‘some metaphysical doubt as to the material facts,’ by
‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a
‘scintilla’ of evidence” (citations omitted)). “No genuine dispute of fact
exists if the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481
(5th Cir. 2014).
If the dispositive issue is one on which the nonmoving party will bear
the burden of proof at trial, the moving party may satisfy its burden by
pointing out that the evidence in the record is insufficient with respect to an
essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at
325.

The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest upon the
pleadings but must identify specific facts that establish a genuine issue for
4

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the
entry of summary judgment, after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at
322)).
III. DISCUSSION
LeBoeuf seeks summary judgment that Avondale is not entitled to
government contractor immunity for claims that it failed to warn plaintiff
of the hazards of asbestos dust, or otherwise protect him from asbestos
exposure.11 This Court and other sections have addressed these same issues
many times before and consistently granted summary judgment, holding
that Avondale is not entitled to any immunity for claims related to its
failure to warn of asbestos dust exposure, or otherwise enact protective
measures. See, e.g., Crossland v. Huntington Ingalls, Inc., 635 F. Supp. 3d
491 (E.D. La. 2022).12

11
12

R. Doc. 120-1 at 1.
See also Irma Lee LaGrange v. Eagle, Inc., et al., No. 23-628,
2024 WL 4107922 (E.D. La. Sept. 6, 2024) (Barbier, J.); Gomez v.
Huntington Ingalls, Inc., No. 23-2850 (E.D. La. July 22, 2024)
(Papillon, J.); Matherne v. Huntington Ingalls Inc., No. 22-2656,
2024 WL 216925 (E.D. La. Jan. 19, 2024) (Barbier, J.); Legendre v.
5

Avondale repeats the same arguments that it has made previously,
even as it seeks a different outcome. Indeed, Avondale’s opposition brief
here13 is a nearly verbatim copy of the one it filed in LaGrange v. Eagle,
Inc.,14 which was recently rejected by Judge Barbier. No. 23-628, 2024 WL
4107922, at *2 (E.D. La. Sept. 6, 2024).

Further, at certain points,

defendant seems to be addressing a different complaint in a previous case.
Avondale argues for instance that summary judgment should be denied
because plaintiff “asserts general negligence against Avondale, seeking to
impose liability for Avondale’s use and handling of asbestos, and not merely
for an alleged failure to protect from asbestos.”15 But plaintiff explicitly
disclaims that kind of liability in his complaint, specifically limiting his
allegations “against Avondale and the Avondale Executive Officers [to]
only negligent failure to adopt adequate safety measures that would have

13
14
15

Louisiana Ins. Guaranty Ass., No. 22-1767, 2024 WL 1556842
(E.D. La. Apr. 10, 2024) (Fallon, J.); Falgout v. Anco Insulations,
Inc., No. 21-1443, 2022 WL 7540115 (E.D. La. Oct. 13, 2022) (Barbier,
J.); Adams v. Eagle, Inc., No. 21-694, 2022 WL 4016749 (E.D. La.
Sept. 2, 2022) (Morgan, J.); Wilde v. Huntington Ingalls, Inc., No.
15-1486, 2015 WL 452350 (E.D. La. May 21, 2015) (Fallon, J.); Savoie
v. Penn. Gen. Ins., No. 15-1220, 2015 WL 3604848 (E.D. La. June 8,
2015) (Barbier, J.); Cole v. Northrop Grumman Ship Sys., No.
7-3049, 2008 WL 2651428 (E.D. La. 2008) (Fallon, J.); Gauthe v.
Asbestos Corp., No. 96-2454, 199 WL 3255 (E.D. La. May 21, 2015)
(Duval, J.).
R. Doc. 121.
E.D. La., No. 23-628, R. Doc. 35.
R. Doc. 121 at 1.
6

prevented the injuries upon which this [p]etition is based.”16 To support its
assertion otherwise, defendant refers to paragraphs in plaintiff’s petition
that do not exist, much less any that indicate that plaintiff seeks a broader
form of liability for Avondale’s use and handling of asbestos.17
Under Boyle, a defendant may “claim the government contractor
defense” for design defect claims if “(1) the government must have
approved ‘reasonably precise’ specifications; (2) the equipment must have
conformed to those specifications; and (3) the supplier/contractor must
have warned of those equipment dangers that were known to the
supplier/contractor, but not to the government.” Kerstetter v. Pac. Sci. Co.,
210 F.3d 431, 435 (5th Cir. 2000) (citing Boyle, 487 U.S. at 512). In the
context of failure-to-warn claims, the Fifth Circuit has applied a “modified
Boyle test” in which government contractors are immune from liability for
failure to warn only when “(1) the United States exercised discretion and
approved the warnings; (2) the contractor provided a warning that
conformed to the approved warnings; and (3) the contractor warned about
dangers it knew, but the government did not.” Kerstetter, 210 F.3d at 438.

16
17

R. Doc. 1-1 ¶ 10.
See R. Doc. 121 at 1 n.4 (referring to the non-existent ¶ 4(G) in
plaintiff’s petition for damages).
7

The Court finds that defendant has failed to establish its entitlement
to Boyle immunity for plaintiff’s failure to warn claim. See Crossland, 635
F. Supp. 3d at 501. Defendant admitted that Avondale had discretion and
the freedom to decide whether to warn its employees about the dangers of
asbestos during the years in which plaintiff was employed at the shipyard,18
and offers no evidence that the government was involved in Avondale’s
decision not to issue warnings to its employees about the dangers of
asbestos. See id. at 502-03 (denying Avondale immunity for plaintiff’s
failure-to-warn claim because “the record indicates that ‘no governmental
discretion was exercised.’”).
Defendant instead argues that the government exercised discretion by
omission, because it required Avondale to follow other safety measures,
including issuing warnings and safety training programs about radiation
hazards19 and setting an exposure limit for asbestos.20 That the government
required other safety measures and oversaw the design and construction of
the asbestos-containing vessels more broadly does not show that it
exercised discretion in the decision not to issue warnings related to
asbestos.

18
19
20

See id. at 502 (“[D]efendants have not met their burden of

R. Doc. 120-19 at 1-4.
R. Doc. 121 at 17-18 (citing 41 C.F.R. §§ 50-204.309 & 50-294.312(a)).
R. Doc. 121 at 13 (citing R. Docs. 121-3 ¶ 62 & 121-18 at 2).
8

identifying evidence creating a genuine dispute of material fact as to
whether ‘the federal government had [a] hand in’ the decision of whether to
issue warnings related to asbestos.” (quoting Adams, 2022 WL 4016749,
at *7)).

Defendant provides no evidence that “the government actually

chose a warning through its discretion.” Jowers v. Lincoln Elec. Co., 617
F.3d 346, 353 (5th Cir. 2010). Accordingly, the Court holds that defendant
is not entitled to Boyle immunity for plaintiff’s failure-to-warn claims. See
Crossland, 635 F. Supp. 3d at 502. (holding that defendants are not entitled
immunity for plaintiff’s failure-to-warn claims).
The Court also finds that defendant has failed to establish its
entitlement to Boyle immunity for claims premised on defendant’s failure
to protect its employees from asbestos exposure. Defendant admitted that
its contracts with the government did not constrain it from implementing
its own protocols to protect workers from asbestos contamination, and that
it did not submit any of its policies or procedures for the safe handling and
use of asbestos to the government.21 Defendant also does not offer evidence
that the government otherwise approved reasonably precise specifications
on measures to protect Avondale’s employees from asbestos.

21

R. Doc. 120-19 at 5 & 9.
9

Defendant argues that it followed the government’s reasonably
precise specifications on asbestos safety measures because it complied with
the safety regulatory standards of the Walsh-Healey Act and the
Department of Labor’s Safety and Health Regulations.22 These arguments
are unpersuasive. See id. (rejecting Avondale’s arguments that compliance
with government’s safety and health standards entitle it to Boyle
immunity). First, the Department of Labor’s Safety and Health Regulations
provide general health and safety directives but do not express any specific
safety standard or protective measure governing an employee’s use and
handling of asbestos.23 And although the safety and health standards of the
Walsh-Healey Act provide that no employee shall be exposed to asbestos in
excess of a specified limit unless protected with respiratory equipment,24
the Act explicitly states that it expresses only “minimum safety and health
standards” and that compliance “will not relieve anyone from any
obligation to comply with any more strict standard stemming from any
other source whatsoever.”25 The Fifth Circuit has held that a minimum
standard set by the government does not constitute a reasonably precise
22

23
24
25

See R. Doc. 121 at 19-20; see also R. Doc. 121-22 at 39:3-19
(describing government safety inspections to ensure compliance with
regulatory standards).
See R. Doc. 121-15.
R. Doc. 121-19 at 30 (§ 50-204.275).
R. Doc. 121-19 at 5-6 (§ 50-204.1).
10

specification under Boyle. Trevino v. General Dynamics Corp., 865 F.2d
1474, 1480 (5th Cir. 1989); see also Crossland, 635 F. Supp. 3d at 502
(“[D]efendants’ compliance with the minimum health and safety
requirements of the Walsh-Healey Act does not give rise to immunity under
the Boyle doctrine.”).

The government therefore did not issue any

reasonably precise specification to Avondale governing its protective
measures for the use and handling of asbestos. See Adams, 2022 WL
4016749, at *9 (“The existence of a reasonably precise specification on the
use and storage of asbestos, an essential element of Avondale’s defense
under Boyle, has not been met.”). Accordingly, defendant is not entitled to
immunity under Boyle for claims that it failed to protect plaintiff from
asbestos dust exposure. See Crossland, 635 F. Supp. 3d at 502 (holding
that defendants are not entitled immunity for “plaintiff’s claims premised
on defendants’ failure to implement additional safety measures to prevent
the spread of asbestos.”).
Lastly, defendant is not entitled to Yearsley immunity. See id. at
504-05 (rejecting defendant’s argument that it is entitled to Yearsley
immunity). Under Yearsley, government contractors are immune from
liability for “executing [the government’s] will” if (1) the contractor’s
authority to perform was validly conferred by the government, and (2) the
11

contractor did not exceed the authority conferred by its contract. 309 U.S.
at 21. Defendant argues that it is entitled to Yearsley immunity because it
executed the government’s affirmative requirements to use asbestos in the
construction of federal vessels.26 But plaintiff expressly does not seek to
impose liability for Avondale’s use of asbestos at the behest of the
government; rather plaintiff seeks relief for Avondale’s failure to adopt
adequate safety measures that would have protected him and other
workers.27 See Crossland, 635 F. Supp. 3d at 504 (noting that Avondale’s
argument that it is “entitled to [Yearsley] immunity because the
government authorized and directed [its] use of asbestos . . . relies on a
mischaracterization plaintiff’s claims”); see also Adams, 2022 WL 4016749,
at *12 (recognizing that “plaintiff’s claims trace to Avondale’s alleged
decision not to warn its employees of the dangers of asbestos exposure
and . . . implement an asbestos decontamination policy, . . . which is a
separate act of negligence” from “the government’s policy of requiring the
use of asbestos in Navy vessels”). Because defendant provides no evidence
that the government authorized and directed Avondale’s efforts to warn
workers of, or protect them from, the dangers of asbestos, it is not entitled
to Yearsley immunity on plaintiff’s claims. See id. at 505 (“[Avondale] here
26
27

R. Doc. 121 at 9-10.
R. Doc. 1-1 ¶ 10.
12

cannot claim immunity under Yearsley for [its] alleged negligent ‘failure to
warn of the dangers of asbestos and failure to prevent the spread of
asbestos.’” (quoting Adams, 2022 WL 4016749, at *12)).
Avondale does not provide any new evidence or precedent that would
lead the Court to deviate from past rulings. Avondale therefore fails to
meet its burden of identifying evidence that creates a genuine dispute of
material fact as to whether it is entitled to immunity as a federal contractor
under either Boyle v. United Techs. Corp., 487 U.S. 500 (1988), or Yearsley
v. W.A. Ross. Construction Co., 309 U.S. 18 (1940), for its failure to warn or
otherwise protect plaintiff from asbestos dust exposure.28 Accordingly, the
Court finds that plaintiff is entitled to summary judgment on these issues.29

28
29

Id. at 9-10 ¶¶ 23 & 25.
Plaintiff also argues that because defendant used commercially
available asbestos-containing products in the vessels, it is exempt
from immunity under Boyle and Yearsley. R. Doc. 120-1 at 18-20.
Because the Court finds that defendant failed to establish its
entitlement to Boyle and Yearsley immunity on other grounds, it
need not reach the parties’ arguments on this issue.
13

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiff’s motion for

partial summary judgment.

New Orleans, Louisiana, this _____
7th day of March, 2025.
_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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