Hernandez v. Huntington Ingalls, Inc. (E.D. La., Apr. 13, 2020)

Our plain-English summary of Hernandez v. Huntington Ingalls, Inc. (U.S. District Court, Eastern District of Louisiana, April 13, 2020).

Jesse Hernandez was diagnosed with mesothelioma in February 2019. He testified that during the summers of 1968, 1969 and 1970 he worked at Avondale as a painter's helper and assistant clerk, aboard Destroyer Escorts being built for the U.S. Navy, and he believes he was exposed to asbestos dust there. He sued Huntington Ingalls and related defendants (the Avondale Interests) in Orleans Parish civil court in November 2019. The defendants removed the case to federal court under the federal officer removal statute, and Hernandez asked to send it back to state court. The court held the motion while the Fifth Circuit decided Latiolais v. Huntington Ingalls, then ruled. It found the government contractor defense colorable based on affidavits that the government approved precise ship specifications, that Avondale complied, and that the government knew more about asbestos hazards. It also found the defendants were persons acting under the Navy, and that the alleged negligence was tied to that work. The court denied the motion to remand.

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 13, 2020
• Docket: Civil Action No. 19-14685
• Stage: Jurisdiction, venue or removal
• State: Louisiana

Outcome. The court denied Jesse Hernandez's motion to remand, so the Avondale Interests (Huntington Ingalls and related defendants) kept the case in federal court under the federal officer removal statute.

What the court held. Under Latiolais (5th Cir. en banc), a shipbuilder that shows a colorable government contractor defense, status as a person, acting under federal direction, and a connection between the alleged negligence and that work may remove under the federal officer removal statute.

Issues decided: Government Contractor Defense and Removal, Venue, Removal and Transfer.

The people and their exposure

• Jesse Hernandez: mesothelioma

The defendants

• Huntington Ingalls, Inc. (manufacturer)
• the Avondale Interests (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Hernandez v. Huntington Ingalls, Inc. (May 8, 2020). The district court denied Honeywell's motion to dismiss, ruling that plaintiff Jesse Hernandez plausibly alleged Honeywell owed him a duty for asbestos dust carried on its plant workers' clothing.
• Hernandez v. Huntington Ingalls Incorporated (May 18, 2020). The magistrate judge denied Honeywell International's (as alleged successor to Allied Chemical) alternative Rule 12(e) motion for a more definite statement, so plaintiff Hernandez did not have to replead.
• Hernandez v. Huntington Ingalls, Inc. (November 17, 2023). The court granted the plaintiffs' (Hernandez's wife and daughter) motion to remand, declined supplemental jurisdiction over the remaining state-law claims, and sent the case back to the Orleans Parish Civil District Court over St. Joseph's opposition.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Latiolais v. Huntington Ingalls, Incorporated (U.S. Court of Appeals, Fifth Circuit, 2020). The en banc Fifth Circuit vacated the district court's order remanding the case to state court and remanded for further proceedings in federal court, ruling for Avondale (Huntington Ingalls) and against Latiolais on removal.

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.

JESSE HERNANDEZ,

v.

HUNTINGTON INGALLS, INC., ET AL., SECTION "A"(1).

Civil Action No. 19-14685.

April 13, 2020.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

JAY C. ZAINEY, District Judge.

Before the Court is a Motion to Remand (Rec. Doc. 58) filed by the Plaintiff Jesse Hernandez. The Defendants (collectively, the "Avondale Interests") oppose the motion. (Rec. Doc. 117). The motion, set for submission on April 1, 2020, is before the Court on the briefs without oral argument.

I. Background

On February 22, 2019, Hernandez was diagnosed with mesothelioma. (Rec. Doc. 58-1, p. 2, The Plaintiff's Memorandum in Support). At his deposition on April 17, 2019, Hernandez specifically testified about his work at Avondale where he worked aboard numerous vessels and in the main yard as a painter's helper and assistant clerk during the summers of 1968, 1969, and 1970. (Rec. Doc. 117, p. 11, Avondale Interests' Opposition). He testified that, in these positions, he worked on Destroyer Escorts which were being constructed at Avondale for the United States Navy. Id. Hernandez believes that he was exposed to asbestos dust while he was working aboard these vessels. Id.

Accordingly, on November 6, 2019, Hernandez filed suit in the Civil District Court for the Parish of Orleans. (Rec. Doc. 1-2, The Plaintiff's State Court Petition). On December 19, 2019, the Avondale Interests filed a Notice of Removal, and Hernandez filed a Motion to Remand on January 17, 2020. (Rec. Doc. 58). After Hernandez filed his Motion to Remand, the Court determined that his motion should be held in abeyance pending the Fifth Circuit's en banc opinion in Latiolais v. Huntington Ingalls, Inc. (Rec. Doc. 138). Further, the Court allowed the parties to file supplemental briefing once the Fifth Circuit issued its opinion. Id. Although the Avondale Interests filed supplemental briefing, Hernandez did not. The Court will now rule on Hernandez's Motion to Remand.

II. Discussion

The Avondale Interests removed this case pursuant to the federal officer removal statute, which permits "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) it has asserted a colorable federal defense, (2) it is a "person" within the meaning of the statute, (3) [it] acted pursuant to a federal officer's directions, and (4) the charged conduct is connected or associated with an act pursuant to a federal officer's directions." Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020) (en banc).

Here, the Avondale Interests' government contractor defense under Boyle v. United Technologies Corp., 487 U.S. 500 (1988) is colorable because, as in Latiolais, it is not "wholly insubstantial and frivolous." First, the Avondale Interests have presented testimony showing that the federal government approved reasonably precise specifications for the construction of ships on which Hernandez worked, that they complied with those specifications, and that the government knew more than them about the asbestos-related hazards and appropriate safety measures. (Rec. Doc. 117-5, Affidavit of Christopher Herfel); (Rec. Doc. 117-7, Affidavit of Danny Joyce); Latiolais, 951 F.3d at 297-98 (citation omitted). Second, it is undisputed that the Avondale Interests qualify as "persons" under the federal officer removal statute. Third, the Avondale Interests'

contracts with the federal government to build Navy ships satisfies the "acting under" requirement. See Latiolais, 951 F.3d at 291. Finally, the Avondale Interests' alleged "negligence is connected with the installation of asbestos during the [construction and] refurbishment of" ships for the Navy. Id. at 296. Indeed, just like the plaintiff in Latiolais, Hernandez here worked as a painter's helper and assistant clerk on numerous Destroy Escorts for the United States Navy. Therefore, the Avondale Interests have established the requirements for federal officer removal under Latiolais.

Accordingly;

IT IS ORDERED that the Motion to Remand (Rec. Doc. 58) filed by the Plaintiff Jesse Hernandez is DENIED.

Sources

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