Guillot v. Avondale Industries, Inc. (2018)

Our plain-English summary of Guillot v. Avondale Industries, Inc. (U.S. District Court, Eastern District of Louisiana, April 9, 2018).

Linda Guillot sued Avondale Industries in Louisiana state court. She alleged she developed mesothelioma from asbestos fibers carried home on the work clothes of her husband and father, who both worked at Avondale. The parties agreed her secondhand exposure likely came from asbestos-containing materials installed on vessels Avondale built for the federal government. She claimed Avondale failed to warn of asbestos hazards and failed to use proper safety procedures. Avondale removed the case to federal court under the federal officer removal statute, and Guillot asked for remand. The court had to decide whether Avondale showed a causal connection between its actions under federal direction and her claims. Avondale argued that the 2011 amendment, adding "relating to," loosened that requirement. The court disagreed, citing Fifth Circuit decisions (Bartel, Legendre, Savoie). Testimony showed federal officers did not control Avondale's safety department. At most the government required Avondale to use asbestos, which was not enough. The court granted the motion and remanded the case to Orleans Parish Civil District Court.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. District Court, Eastern District of Louisiana
• Decided: April 9, 2018
• Docket: Civil Action No. 17-7666
• Stage: Jurisdiction, venue or removal
• State: Louisiana

Outcome. The court granted Linda Guillot's motion to remand and sent the case back to Orleans Parish Civil District Court, rejecting Avondale's federal officer removal because it showed no causal nexus between federal direction and her claims.

What the court held. Federal officer removal under 28 U.S.C. § 1442(a)(1) still requires a causal nexus between the defendant's conduct under federal direction and the plaintiff's claims. The 2011 "relating to" amendment did not change this under binding Fifth Circuit precedent, and federal direction to use asbestos does not reach failure-to-warn or safety claims when the government did not control safety.

Issues decided: Failure to Warn, Government Contractor Defense and Removal, Take-Home Exposure, Venue, Removal and Transfer.

The people and their exposure

• Linda Guillot (family member): mesothelioma

Who	Work	Where	When	Products
Linda Guillot	husband and father employed at Avondale (her exposure was secondhand) (shipyards and maritime work); dust brought home	Avondale shipyard

The defendants

• Avondale Industries, Inc. (now Huntington Ingalls Incorporated) (employer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Legendre v. Huntington Ingalls, Incorporated (U.S. Court of Appeals, Fifth Circuit, 2018). The Fifth Circuit affirmed the district court's order remanding the case to Louisiana state court, ruling that Huntington Ingalls (Avondale) failed to show the causal nexus needed for federal officer removal, so the Legendre brothers prevailed.
• Savoie v. Huntington Ingalls, Incorporated (U.S. Court of Appeals, Fifth Circuit, 2016). The Fifth Circuit vacated the district court's order remanding the case to state court, holding the shipyard showed a causal nexus for the survival strict liability claims, and remanded for the district court to decide whether the shipyard has a colorable federal defense; the Savoie family lost on the remand ruling.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

LINDA GUILLOT,

v.

AVONDALE INDUSTRIES INC., ET AL., SECTION: "J" (3).

Civil Action No. 17-7666.

April 9, 2018.

United States District Court, E.D. Louisiana.

Linda Turner Guillot, Plaintiff, represented by Frank J. Swarr, Landry, Swarr & Cannella, LLC, Amanda Jones Ballay, Landry, Swarr & Cannella, LLC, Matthew C. Clark, Landry, Swarr & Cannella, LLC, Mickey P. Landry, Landry, Swarr & Cannella, LLC & Philip C. Hoffman, Landry, Swarr & Cannella, LLC.

Huntington Ingalls Incorporated, formerly known as Northrop Grumman Shipbuilding, Inc., formerly known as Avondale Shipyards, Inc, formerly known as Northrop Grumman Ship Systems, Inc., formerly known as Avondale Industries, Inc. & Albert L Bossier, Jr, as an Executive Officer of Avondale Industries, Inc., Defendants, represented by David Michael Melancon, Irwin Fritchie Urquhart & Moore, LLC, Gustave A. Fritchie, III, Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin, Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels, Irwin Fritchie Urquhart & Moore, LLC. CBS Corporation, formerly known as Viacom Inc., formerly known as Westinghouse Electric Corporatioin, Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Magali Ann Puente-Martin, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C.

Hopeman Brothers, Inc., Defendant, represented by Kaye N. Courington, Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore, Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg, Courington, Kiefer & Sommers, LLC, Jonathan Paul Hilbun, Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes, Courington, Kiefer & Sommers, LLC & Troy Nathan Bell, Courington, Kiefer & Sommers, LLC.

Liberty Mutual Insurance Company, as the insurer of Wayne Manufacturing Company, Defendant, represented by Kaye N. Courington, Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore, Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg, Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes, Courington, Kiefer & Sommers, LLC & Troy Nathan Bell, Courington, Kiefer & Sommers, LLC.

McCarty Corporation, Defendant, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP, James R. Guidry, Simon, Peragine, Smith & Redfearn, LLP & Louis Oliver Oubre, Simon, Peragine, Smith & Redfearn, LLP.

Owens-Illinois, Inc., doing business as O-I, Defendant, represented by Walter G. Watkins, III, Forman, Watkins & Krutz LLP, Elizabeth Riddell Penn, Forman Watkins & Krutz LLP & Mary Reeves Arthur, Forman, Watkins, & Krutz, LLP. Reilly-Benton Company, Inc., Defendant, represented by Thomas L. Cougill, Willingham Fultz & Cougill, LLP, Jamie M. Zanovec, Willingham Fultz & Cougill, LLP, Jennifer H. McLaughlin, Willingham Fultz & Cougill, LLP & Jennifer D. Zajac, Willingham Fultz & Cougill, LLP.

Taylor-Seidenbach, Inc., Defendant, represented by Christopher Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, LLP, Edward J. Lassus, Jr., Hailey, McNamara, Hall, Larmann & Papale, LLP & Richard J. Garvey, Jr., Hailey, McNamara, Hall, Larmann & Papale, LLP.

Burmaster Land & Development Co., LLC, Defendant, represented by Kevin John Webb, Curry & Friend, APLC & Susan Ruth Laporte, Kuchler Polk Weiner, LLC.

Certain Underwriters at Lloyds, London, as the liability insurers of the Following Executive Officers of Avondale Industries, Inc.: James Bull, Henry "Zac" Carter, C. Edwin Hartzman, Albert Bossier, Jr., Hettie Margaret Dawes-Eaves, J.D. Roberts, Melton Garrett, John McQue,Ewing Moore, Defendant, represented by James R. Logan, IV, Logan & Soileau, LLC.

Lamorak Insurance Company, erroneously referred to as OneBeacon America Insurance Company, Defendant, represented by David Michael Melancon, Irwin Fritchie Urquhart & Moore, LLC, Samuel Milton Rosamond, III, Taylor, Wellons, Politz & Duhe, APLC & Adam Devlin deMahy, Taylor, Wellons, Politz & Duhe, APLC.

Zurich American Insurance Company, as successor by merger to Maryland Casualty Company, incorrectly sued as Maryland Casualty Company, as an alleged insurer of Marquette Insulations, Inc., Defendant, represented by Edward T. Hayes, Leake & Andersson, LLP, Adam D. Whitworth, Leake & Andersson, LLP & Marc E. Devenport, Leake & Andersson, LLP.

International Paper Company, incorrectly named as International Paper Company f/k/a Champion International f/k/a US Plywood, Defendant, represented by Walter G. Watkins, III, Forman, Watkins & Krutz LLP, Daniel S. Roberts, Forman, Watkins, & Krutz, LLP, Elizabeth Riddell Penn, Forman Watkins & Krutz LLP, Mary Reeves Arthur, Forman, Watkins, & Krutz, LLP & Thomas Peyton Smith, Forman, Watkins, & Krutz, LLP.

Huntington Ingalls Incorporated & Albert L Bossier, Jr, Third Party Plaintiffs, represented by David Michael Melancon, Irwin Fritchie Urquhart & Moore, LLC & Edward Winter Trapolin, Irwin Fritchie Urquhart & Moore, LLC.

Puget Sound Commerce Center, Inc., formerly known as Todd Shipyards Corporation, Third Party Defendant, represented by Scott C. Seiler, Liskow & Lewis, Charles B. Wilmore, Liskow & Lewis, Patrick B. Reagin, Liskow & Lewis, Philip Dore, Liskow & Lewis & Tiffany L. Delery Davis, Liskow & Lewis.

Travelers Insurance Company, as liability insurer of Todd Shipyards Corporation, Third Party Defendant, represented by Seth Andrew Schmeeckle, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard & Carey Austin Holliday, Lugenbuhl, Wheaton, Peck, Rankin & Hubbard.

Huntington Ingalls Incorporated & Albert L Bossier, Jr, Cross Claimants, represented by David Michael Melancon, Irwin Fritchie Urquhart & Moore, LLC & Edward Winter Trapolin, Irwin Fritchie Urquhart & Moore, LLC.

International Paper Company, incorrectly named as International Paper Company f/k/a Champion International f/k/a US Plywood, Cross Defendant, represented by Walter G. Watkins, III, Forman, Watkins & Krutz LLP, Daniel S. Roberts, Forman, Watkins, & Krutz, LLP, Elizabeth Riddell Penn, Forman Watkins & Krutz LLP, Mary Reeves Arthur, Forman, Watkins, & Krutz, LLP & Thomas Peyton Smith, Forman, Watkins, & Krutz, LLP.

Reilly Benton Company, Inc., Cross Defendant, represented by Thomas L. Cougill, Willingham Fultz & Cougill, LLP, Jamie M. Zanovec, Willingham Fultz & Cougill, LLP, Jennifer H. McLaughlin, Willingham Fultz & Cougill, LLP & Jennifer D. Zajac, Willingham Fultz & Cougill, LLP.

McCarty Corporation, Cross Defendant, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, Walter G. Watkins, III, Forman, Watkins & Krutz LLP, Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP, Elizabeth Riddell Penn, Forman Watkins & Krutz LLP, James R. Guidry, Simon, Peragine, Smith & Redfearn, LLP, Louis Oliver Oubre, Simon, Peragine, Smith & Redfearn, LLP & Mary Reeves Arthur, Forman, Watkins, & Krutz, LLP.

Zurich American Insurance Company, as successor by merger to Maryland Casualty Company, incorrectly sued as Maryland Casualty Company, as an alleged insurer of Marquette Insulations, Inc., Cross Defendant, represented by Edward T. Hayes, Leake & Andersson, LLP, Adam D. Whitworth, Leake & Andersson, LLP & Marc E. Devenport, Leake & Andersson, LLP.

CBS Corporation, formerly known as Viacom, Inc., formerly known as Westinghouse Electric Corporatioin, Cross Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., James H. Brown, Jr., Frilot L.L.C., Kelly L. Long, Frilot L.L.C., Kelsey A. Eagan, Frilot L.L.C., Magali Ann Puente-Martin, Frilot L.L.C. & Peter R. Tafaro, Frilot L.L.C.

Hopeman Brothers Inc, Cross Defendant, represented by Kaye N. Courington, Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore, Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg, Courington, Kiefer & Sommers, LLC, Jonathan Paul Hilbun, Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes, Courington, Kiefer & Sommers, LLC & Troy Nathan Bell, Courington, Kiefer & Sommers, LLC.

Liberty Mutual Insurance Company, as the insurer of Wayne Manufacturing Company, Cross Defendant, represented by Kaye N. Courington, Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore, Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg, Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes, Courington, Kiefer & Sommers, LLC & Troy Nathan Bell, Courington, Kiefer & Sommers, LLC.

Taylor Seidenbach, Inc., Cross Defendant, represented by Christopher Kelly Lightfoot, Hailey, McNamara, Hall, Larmann & Papale, LLP, Edward J. Lassus, Jr., Hailey, McNamara, Hall, Larmann & Papale, LLP & Richard J. Garvey, Jr., Hailey, McNamara, Hall, Larmann & Papale, LLP.

Burmaster Land & Development Co., LLC, Cross Defendant, represented by Kevin John Webb, Curry & Friend, APLC & Susan Ruth Laporte, Kuchler Polk Weiner, LLC.

Hopeman Brothers, Inc., Cross Claimant, represented by Kaye N. Courington, Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore, Courington, Kiefer & Sommers, LLC, Jeffrey Matthew Burg, Courington, Kiefer & Sommers, LLC, Jonathan Paul Hilbun, Courington, Kiefer & Sommers, LLC, Mathilde Villere Semmes, Courington, Kiefer & Sommers, LLC & Troy Nathan Bell, Courington, Kiefer & Sommers, LLC.

ORDER AND REASONS

CARL J. BARBIER, District Judge.

Before the Court is a Motion to Remand (Rec. Doc. 5) filed by Linda Guillot ("Plaintiff") and an opposition thereto (Rec. Doc. 10) filed by Avondale Industries, Inc. ("Avondale"). Plaintiff and Avondale have also filed a reply (Rec. Doc. 22) and sur-reply (Rec. Doc. 25), respectively. Having considered the motion and legal memoranda, the record, and the applicable law, the Court finds that the motion should be GRANTED.

FACTS AND PROCEDURAL BACKGROUND

This litigation derives from personal injuries allegedly sustained as a result of exposure to asbestos. Plaintiff alleges that she contracted mesothelioma as a result of being exposed to asbestos fibers on the work clothes of her husband and father who were both employed at Avondale. The parties agree that Plaintiff's secondhand exposure to asbestos was likely generated by asbestos-containing materials installed aboard vessels being built by Avondale for the federal government. Plaintiff filed the instant suit against Avondale in state court seeking damages for Avondale's alleged failure to warn of the hazards of asbestos and failure to implement proper safety procedures for the handling of asbestos. Avondale removed the action to this Court, asserting federal jurisdiction under 28 U.S.C. § 1442, the federal officer removal statute. Avondale contends that the Court has federal officer jurisdiction over the dispute because its use and installation of asbestos-containing materials in the construction of federal vessels was required by the contractual provisions and design specifications mandated by the federal government.

Plaintiff contends that remand is appropriate because Avondale has not carried its burden of establishing the elements of federal officer jurisdiction—specifically, that a casual nexus exists between Plaintiff's claims and Avondale's acts under the color of federal office. Simply put, Plaintiff argues that her claims for failure to warn and failure to safeguard have nothing to do with Avondale's compliance with federal requirements because asbestos-related safety measures at Avondale were never under federal direction and control. Thus, Plaintiff argues that Avondale cannot make a showing of a casual nexus between a federal officer's direct and detailed control over Avondale's safety activities and Avondale's ability to comply with its obligation to warn and/or safeguard under state law.

In contrast, Avondale argues that the federal government's mandate that it use asbestos-containing material is sufficient to establish the casual nexus prong of the federal officer removal statue as amended. In particular, Avondale asserts that Plaintiff relies on a casual nexus standard that was rendered obsolete when Congress amended the federal officer removal statute in 2011. Avondale argues that under the amendment, the removing party need only show that there is some connection or association between the plaintiff's claims and the defendant's conduct under color of federal office.[1] Thus, Avondale maintains that its removal of this suit is proper because Plaintiff's negligence claims "relate to" the federal government's mandate that Avondale use asbestos-containing products in its ships.

Plaintiff's motion is now before the Court on the briefs and without oral argument.

DISCUSSION

"[F]ederal officer removal under 28 U.S.C. § 1442 is unlike other removal doctrines: it is not narrow or limited." State v. Kleinert, 855 F.3d 305, 311 (5th Cir. 2017). Although the principle of limited federal court jurisdiction ordinarily compels federal courts to resolve any doubt about removal in favor of remand, courts should analyze removal under § 1442(a)(1) "without a thumb on the remand side of the scale." See Savoie v. Huntington Ingalls, Inc., 817 F. 3d 457, 462 (5th Cir. 2016) (citations omitted). Nevertheless, it remains "the defendant's burden to establish the existence of federal jurisdiction over the controversy." Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 397 (5th Cir. 1998).

Section 1442 permits, in pertinent part, "any person acting under [an officer] of the United States or of any agency thereof" to remove a state suit to federal court if any of the plaintiff's claims are "for or relating to any act under color of such office." 28 U.S.C. § 1442(a)(1). To qualify for removal under § 1442(a)(1), a defendant must show: (1) that it is a person within the meaning of the statute, (2) that the defendant acted pursuant to a federal officer's directions, (3) that it has a colorable federal defense to the plaintiff's claims, and (4) that a causal connection exists between the defendant's actions under color of federal office and the plaintiff's claims. Bartel v. Alcoa Steamship Co., 805 F.3d 169, 172 (5th Cir. 2015) (citation omitted). Even where the defendant can show that it acted pursuant to a federal officer's directions, removal will not be proper unless she can also establish the requisite casual connection between the defendant's actions under color of federal office and the plaintiff's claims. See id. (citation omitted); see also Zeringue v. Crane Co., 846 F.3d 785, 794 (5th Cir. 2017) (noting that the casual nexus requirement functions to ensure a legitimate federal interest in a matter by limiting the universe of potentially removable claims to those where the specific acts or omissions upon which the plaintiff's claims are based were themselves performed under federal direction). In other words, the defendant must show that the federal government was directing the defendant's conduct and that the federally-directed conduct caused the plaintiff's injuries. See Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016) (citing Bartel, 508 F.3d at 172-74). Although Avondale argues that the 2011 amendment altered the casual nexus requirement, the Court finds that Avondale's position is incorrect because it stands in direct conflict with binding precedent.

In Bartel v. Alcoa Steamship Co., the plaintiffs, merchant mariners, filed suit against companies that operated ships owned by the United States Navy. 805 F.3d at 171. The vessels contained asbestos, and the merchant mariners alleged that the operators were negligent for failing to warn them of the asbestos. Id. The Fifth Circuit held that federal officer removal was improper because there was no casual nexus between the plaintiff's negligence claim and the defendants' acts under color of federal office. Id. at 174. Specifically, the court found that there was no evidence to suggest that the government issued any "orders relating to safety procedures," and thus, no casual nexus existed because the defendants were "free to adopt the safety measures the plaintiffs now allege would have prevented their injuries." Id.

The Fifth Circuit recently reached the same conclusion in Legendre v. Huntington Ingalls Inc., 885 F.3d 398 (5th Cir. 2018). The plaintiffs in Legendre filed suit against Avondale after their sister died from mesothelioma, allegedly caused by her exposure to asbestos fibers contained on her relatives' clothes when they returned home each day from work at Avondale. Id. at 399. The plaintiffs sued Avondale for failure to warn and failure to implement proper safety procedures for handling asbestos in state court, and Avondale removed citing federal officer jurisdiction. Id. The district court remanded, finding casual nexus lacking under Bartel because Avondale failed to provide any evidence that the government had any control over Avondale's safety protocols. Id. at 402. Avondale argued on appeal that Bartel was inapposite because it applied pre-2011 precedent and thereby failed to give effect to Congress's new language. Id. In affirming the district court's remand order, the panel concluded that it was in fact bound by Bartel because the case was decided after the amendment and quoted the statute's new "relating to" language. Id. Accordingly, the Legendre panel expressly recognized that Bartel remains good law even under the 2011 amendment.

Here, like the defendants in Bartel and Legendre, Avondale has not adduced any evidence that the federal government controlled its ability to adopt safety measures or enact appropriate safeguards for the handling of asbestos-containing materials. Rather, Plaintiff's uncontroverted evidence clearly establishes that the federal government had no control whatsoever regarding Avondale's ability to comply with its obligation to warn or safeguard under state law. For example, Peter Teritto, a former Avondale Safety Director, testified that federal officers did not control the safety department at Avondale and did not prevent Avondale from meeting its state law obligation to warn. Similarly, Felix Albert, a federal ship

inspector for the United States Navy at Avondale, testified in his affidavit that the "government inspectors neither monitored nor enforced safety regulations" and that "on the job safety during the construction of vessels of the United States government was the responsibility of Avondale Shipyards' safety department." This is also echoed by Avondale's own Superintendent of Outfitting, Eddie Blanchard, who affirmed that no federal officer directed or controlled Avondale's safety department.

In sum, there is simply nothing in the record indicating that Avondale was prevented from adopting the safety measures that Plaintiff claims would have prevented her from contracting mesothelioma. At best, Avondale demonstrates that the federal government required Avondale to use asbestos when building ships. However, the government's responsibility for the existence of asbestos is insufficiently related to Plaintiff's claims so as to justify federal officer removal. Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 463-65 (5th Cir. 2016) (concluding that no casual nexus existed regarding the plaintiff's failure to warn and failure to safeguard claims because the shipyard failed to demonstrate that its contracts with the government prevented it from taking any of the protective measures identified by the plaintiffs). Therefore, the Court finds that removal pursuant to 28 U.S.C. §1442(a)(1) was improper, as Avondale has not shown that the necessary casual nexus exists between the federal government's requirement that Avondale use asbestos and Avondale's allegedly lax safety protocols. CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Plaintiff's Motion to Remand (Rec. Doc. 5) is GRANTED. The above-captioned matter is hereby REMANDED to the Civil District Court for the Parish of Orleans.

[1] Prior to the amendment, § 1442 allowed the removal of a state suit against a person acting under a federal officer when the suit was for "for any act under color of such office." Act of June 25, 1948, ch. 646, 62 Stat. 938 (codified at 28 U.S.C. § 1442); see Zeringue, 846 F.3d at 793. Congress altered the language of § 1442 in 2011 to allow the removal of a state suit "for or relating to any act under color of such office." 28 U.S.C. § 1442(a)(1).

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites