Latiolais v. Huntington Ingalls Incorporated (2018)

Our plain-English summary of Latiolais v. Huntington Ingalls Incorporated (U.S. District Court, Eastern District of Louisiana, May 4, 2018).

James Latiolais sued in Orleans Parish state court, alleging that his mesothelioma came from asbestos exposure while he worked as a machinist aboard the USS TAPPAHANNOCK during its recommissioning at Avondale Shipyard. The defendants included alleged makers, suppliers and installers of asbestos products and the shipyard, Huntington Ingalls (Avondale). Against Avondale he claimed only negligence, for failing to warn him or protect him from asbestos. After his deposition showed little contact with Avondale employees, Avondale removed the case to federal court under the federal officer removal statute. Latiolais moved to remand. The court had to decide whether Avondale's challenged conduct was causally connected to action taken under federal direction. It found no evidence that the Navy issued orders about shipyard safety procedures, and Avondale's own earlier statements said safety was the shipyard's responsibility. Following Fifth Circuit decisions in Legendre and Bartel, the court held Avondale had not shown the required causal nexus. It granted remand and did not reach the federal defense question.

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: May 4, 2018
• Docket: Civil Action No. 17-11770
• Stage: Jurisdiction, venue or removal
• State: Louisiana

Outcome. The district court granted James Latiolais's motion to remand and sent the case back to Orleans Parish Civil District Court, rejecting Avondale (Huntington Ingalls)'s federal officer removal.

What the court held. Under the federal officer removal statute, a shipyard sued only in negligence for its own safety practices must show the federal government controlled those practices to establish a causal nexus. A government requirement to use asbestos is not enough.

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

The people and their exposure

• James A. Latiolais: mesothelioma

Who	Work	Where	When	Products
James A. Latiolais	machinist (the Navy); military service	Avondale Shipyard (USS TAPPAHANNOCK), Louisiana

The defendants

• Huntington Ingalls Incorporated (Avondale) (premises owner)
• Eagle, Inc.
• Reilly-Benton Co., Inc.
• McCarty Corporation

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.

JAMES A. LATIOLAIS,

v.

HUNTINGTON INGALLS INCORPORATED, ET AL., SECTION: N(1).

Civil Action No. 17-11770.

May 4, 2018.

United States District Court, E.D. Louisiana.

James A Latiolais, Plaintiff, represented by Cameron Waddell, Waddell Anderman LLC & Jody Edward Anderman, Waddell Anderman LLC.

Eagle, Inc., formerly known as Eagle Asbestos & Packing Co., Inc., Defendant, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, April Ann McQuillar, Simon, Peragine, Smith & Redfearn, LLP, Louis Oliver Oubre, Simon, Peragine, Smith & Redfearn, LLP & Nicole M. Loup, Simon, Peragine, Smith & Redfearn, LLP.

Eagle, Inc., formerly known as Eagle Asbestos & Packing Co., Inc., Defendant, represented by Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP, Douglas Watson Redfearn, Simon, Peragine, Smith & Redfearn, LLP, James R. Guidry, Simon, Peragine, Smith & Redfearn, LLP & Janice M. Culotta, Simon, Peragine, Smith and Redfearn, LLP.

Reilly-Benton Co., 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.

Huntington Ingalls Incorporated, formerly known as Northrop Grumman Shipbuilding, Inc.. formerly known as Northrop Grumman Ship Systems, Inc.. formerly known as Avondale Industries, Inc., Defendant, represented by Gustave A. Fritchie, III, Irwin Fritchie Urquhart & Moore, LLC.

Huntington Ingalls Incorporated, formerly known as Northrop Grumman Shipbuilding, Inc., formerly known as Northrop Grumman Ship Systems, Inc., formerly known as Avondale Industries, Inc., Defendant, represented by Alex Tyler Robertson, Irwin Fritchie Urquhart & Moore, LLC, Alison A. Spindler, Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon, Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin, Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels, Irwin Fritchie Urquhart & Moore, LLC.

McCarty Corporation, Defendant, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, April Ann McQuillar, Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP, Douglas Watson Redfearn, Simon, Peragine, Smith & Redfearn, LLP, James R. Guidry, Simon, Peragine, Smith & Redfearn, LLP, Janice M. Culotta, Simon, Peragine, Smith and Redfearn, LLP, Louis Oliver Oubre, Simon, Peragine, Smith & Redfearn, LLP & Nicole M. Loup, Simon, Peragine, Smith & Redfearn, LLP.

Uniroyal Holding, Inc., Improperly named as Uniroyal, Inc., Third Party Defendant, represented by Mary Reeves Arthur, Forman, Watkins, & Krutz, LLP & Amy Louise Maccherone, Forman, Watkins & Krutz LLP.

Huntington Ingalls Incorporated, Third Party Plaintiff, represented by Gustave A. Fritchie, III, Irwin Fritchie Urquhart & Moore, LLC, Alex Tyler Robertson, Irwin Fritchie Urquhart & Moore, LLC, Alison A. Spindler, Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon, Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin, Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels, Irwin Fritchie Urquhart & Moore, LLC.

Liberty Mutual Insurance Company & Hopeman Brothers, Inc., Third Party Defendants, represented by Kaye N. Courington, Courington, Kiefer & Sommers, LLC, Blaine Augusta Moore, Courington, Kiefer & Sommers, LLC, Brittney Bullock Ankersen, 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.

CBS Corporation, formerly known as Viacom Inc., formerly known as Westinghouse Electric Corporatioin, Third Party Defendant, represented by John Joseph Hainkel, III, Frilot L.L.C., Angela M. Bowlin, Frilot L.L.C., Barry C. Campbell, 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., Lacey Taylor McCoy, Frilot L.L.C. & Magali Ann Puente-Martin, Frilot L.L.C.

International Paper Company, Third Party 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, Cross Claimant, represented by Gustave A. Fritchie, III, Irwin Fritchie Urquhart & Moore, LLC, Alex Tyler Robertson, Irwin Fritchie Urquhart & Moore, LLC, Alison A. Spindler, Irwin Fritchie Urquhart & Moore, LLC, David Michael Melancon, Irwin Fritchie Urquhart & Moore, LLC, Edward Winter Trapolin, Irwin Fritchie Urquhart & Moore, LLC & Timothy Farrow Daniels, Irwin Fritchie Urquhart & Moore, LLC.

Eagle, Inc. & McCarty Corporation, Cross Defendants, represented by Susan Beth Kohn, Simon, Peragine, Smith & Redfearn, LLP, April Ann McQuillar, Simon, Peragine, Smith & Redfearn, LLP, Douglas Kinler, Simon, Peragine, Smith & Redfearn, LLP, Douglas Watson Redfearn, Simon, Peragine, Smith & Redfearn, LLP, James R. Guidry, Simon, Peragine, Smith & Redfearn, LLP, Janice M. Culotta, Simon, Peragine, Smith and Redfearn, LLP, Louis Oliver Oubre, Simon, Peragine, Smith & Redfearn, LLP & Nicole M. Loup, Simon, Peragine, Smith & Redfearn, LLP.

ORDER AND REASONS

KURT D. ENGELHARDT, District Judge.

Presently before the Court is Plaintiff James A. Latiolais' Motion to Remand (Rec. Doc. 9) pursuant to 28 U.S.C. § 1447(c) for lack of subject matter jurisdiction. Defendant Huntington Ingalls Incorporated (f/k/a Northrop Grumman Shipbuilding, Inc., f/k/a Northrop Grumman Ship Systems, Inc., f/k/a Avondale Industries, Inc., f/k/a Avondale Shipyards, Inc.) ("Avondale") opposes the motion (Rec. Doc. 12). Both parties filed additional supporting and reply memoranda (Rec. Docs. 27, 29, 45, and 46). Having considered the extensive submissions of the parties, the record, and the applicable law, IT IS ORDERED that the motion is GRANTED for the reasons stated herein.

BACKGROUND

Plaintiff James Latiolais suffers from mesothelioma, which he alleges was caused by his occupational exposure to asbestos while working aboard the USS TAPPAHANNOCK as a machinist at Avondale Shipyard. Rec. Doc 9-2. On September 29, 2017, the plaintiff brought this suit in the Civil District Court, Parish of Orleans, against four defendants, including alleged manufacturers, suppliers, and installers of asbestos products, as well as the shipyard wherein those products were used — Defendant Huntington Ingalls, Inc. ("Avondale"). Id. In his Petition, Latiolais alleges that Avondale, and other defendants, exposed him to asbestos and asbestos-containing products, failed to warn him of the hazards of asbestos, and failed to protect him from exposure to asbestos. Id. at pp. 6-11. Notably, Plaintiff's claims against Avondale sound only in negligence, not strict liability. Id.

James Latiolais' deposition was taken on October 10, 2017. During that deposition, Latiolais discussed his potential exposure to asbestos during his time working for the U.S. Navy aboard the USS TAPPAHANNOCK, while it was being recommissioned at Avondale shipyard. In his testimony, Latiolais indicated that he did not interact with Avondale employees, nor did he do any work for Avondale. Rec. Doc. 12-1 at pp. 21, 61. Based on this deposition testimony revealing the "limited contact" between Latiolais and Avondale, Avondale removed the suit to this Court on November 3, 2017, pursuant to the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1). Rec. Doc. 12 at p. 2; see also Rec. Doc. 2. The plaintiff has moved to remand. Rec. Doc. 9.

LAW AND ANALYSIS

Generally, removal statutes are "strictly construed in favor of remand." St. Bernard Port, Harbor & Terminal Dist. v. Violet Dock Port, Inc., LLC, 809 F.Supp.2d 524, 529-30 (E.D. La. 2011) (quoting Manguno v. Prudential Property & Casualty Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)). However, because of its broad language and unique purpose, the Federal Officer

Removal Statute, 28 U.S.C. § 1442(a)(1), must be liberally interpreted. Id. (citing Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 147 (2007)). The statute provides, in relevant part:

(a) A civil action or criminal prosecution that is commenced in a State court and that is against any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) The United States or any agency thereof or 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. . .

28 U.S.C. § 1442(a)(1) (2012). While this statute is to be interpreted liberally, the removing defendant still bears the burden of establishing a basis for federal jurisdiction. Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 397 (5th Cir. 1998). In Winters, the Fifth Circuit articulated a three-part test for determining whether federal officer removal is justified: (1) the defendant is a "person" within the meaning of the statute; (2) the defendant "acted pursuant to a federal officer's directions and that a causal nexus exists between the defendants' actions under color of federal office and the plaintiff's claims;" (3) the defendant can assert a "colorable federal defense." Id. at 398-400.

(1) Defendant is a "Person"

Here, the plaintiff does not dispute that Defendant Avondale is a "person," as contemplated by the meaning of the statute. Moreover, "the Supreme Court has long recognized that the removal statute also applies to private persons and corporate entities `who lawfully assist the federal officer in the performance of his official duty.'" Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 461 (5th Cir. 2016) (quoting Watson, 551 U.S. at 151). As such, Avondale is a "person" for the purposes of 28 U.S.C. § 1442(a)(1).

(2) Acted Pursuant to Federal Officer's Direction and Causal Nexus

The next factor considered is "whether the federal government was directing the defendant's conduct and whether that federally-directed conduct caused the plaintiff's injuries." Savoie, 817 F.3d at 462. Before reviewing the plaintiff's claims under this factor, the Court notes that the scope of conduct that may satisfy this "causal nexus" requirement has broadened since the Fifth Circuit's articulation of its three-part test in Winters. See Zeringue v. Crane Co., 846 F.3d 785, 793 (5th Cir. 2017). In 2011, Congress amended 28 U.S.C. § 1442 to allow federal officer removal where the plaintiff's claims are "for or relating to any act under color of such office."Id. (citing Removal Clarification Act of 2011, Pub. L. No. 112-51, § 2(b)(2), 125 Stat. 545 (codified at 28 U.S.C. § 1442)) (emphasis added). Since the adoption of the 2011 Amendment, this Court, as well as the Fifth Circuit, have analyzed the scope of the "causal nexus" requirement in federal officer removal cases numerous times. The "analysis of the second Winters factor often turns upon the precise nature of the plaintiff's claims." Ross v. Benton, No. 14-1161, 2014 WL 3514668, at [*2] (E.D. La. July 15, 2014). "Strict liability and design claims generally have been found to be causally connected to the Navy specifications requiring use of asbestos, whereas negligent supervision and failure-to-warn claims generally (though not always) have not." Id. (See, e.g., Legendre v. Anco Insulations, Inc., No. 12-94, 2012 WL 2064537, at [*3] (M.D. La. May 14, 2012); Najolia v. Northrop Grumman Ship Systems, Inc., 883 F. Supp. 2d 646, 656 (E.D. La. 2012); Grainer v. Northrop Grumman Ship Systems, Inc., No. 06-3738, 2008 WL 5216213, at [*3] (E.D. La. Dec. 12, 2008); Sheppard v. Northrop Grumman Systems Corp., No. 07-2208, 2007 WL 1550992 (E.D. La. May 24, 2007)). In the present case, Avondale relies heavily on the Fifth Circuit's decision in Zeringue, wherein the Court found that the plain language of the 2011 amendment broadened the scope of the statute by the addition of the "or relating to" language. Zeringue, 846 F.3d at 793. The Court further explained that "although the court cannot attenuate the causal nexus requirement `to the point of irrelevance,' the plain import of the phrase `relating to' is that some attenuation is permissible. . .." Id. at 794. Accordingly, the Zeringue Court asserted that with this additional language, the causal nexus requirement does not necessarily depend on a showing of precise federal direction. Id. at 793. However, and importantly, the Fifth Circuit noted that its decision in Zeringue does not run contrary to its prior holding in Bartel v. Alcoa Steamship Co., another federal officer removal case decided after the 2011 amendment became effective. Id. at 794. In Bartel, the Court found that the defendants failed to establish a sufficient causal link to justify removal under the statute, based on the nature of the plaintiffs' complaints. Bartel v. Alcoa Steamship Co., 805 F.3d 169, 173 (5th Cir. 2015). There, the plaintiffs' claims were for failure to warn, not strict liability, as the plaintiffs' alleged cause of injury was the defendants' negligent safety practices during installation, rather than any defect or design of the asbestos products. Id. This distinction is significant given that the

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA OFFICE OF THE CLERK WILLIAM W.

BLEVINS 500 POYDRAS ST. ROOM C-151 CLERK NEW ORLEANS, LA 70130 May 4, 2018 Clerk Civil District Court

Parish of Orleans 421 Loyola Ave., Room 402 New Orleans, LA XXXXX-XXXX RE: James A. Latiolais v. Huntington Ingalls Incorporated, etal. Civil Action No. 17-cv-11770 N(1) Your No. 17-09433 G 11 Dear Sir:

Very truly yours, WILLIAM W. BLEVINS, CLERK By: ______________________ Deputy Clerk Enclosure

Zeringue Court, in deciding that removal was proper, addressed only the plaintiff's strict liability claims, not the plaintiff's failure to warn claim. Zeringue, 846 F.3d at 794.

Here, the plaintiff limits his claims against Avondale to those of negligence for failure to warn or protect him from allegedly hazardous asbestos exposure. Rec. Doc. 9-2 at pp. 8-10; see also Rec. Doc. 9-1 at pp. 4, 17 ("Mr. Latiolais's claims sound only in negligence, and not in strict liability."). Specifically at issue are Avondale's actions, or lack thereof, with respect to safety regulations at the shipyard. Id. Based on the evidence produced by both parties, there is nothing to suggest that the Navy, in its official authority, issued any orders, specifications, or directives relating to safety procedures. In fact, prior statements from Avondale representatives have confirmed that U.S. government inspectors "neither monitored nor enforced safety regulations," and that "on the job safety during the construction of vessels from the United States government was the responsibility of Avondale Shipyards' safety department." Rec. Doc. 9-24 at p. 2; see also Rec. Docs. 9-25, 9-26, and 9-27.

Essentially, the present case matches on all four corners with Legendre v. Huntington Ingalls, Inc. and Bartel, both of which were Fifth Circuit cases[1] wherein the Court found remand to be proper. See Legendre v. Huntington Ingalls, Inc., 885 F.3d 398, 404 (5th Cir. 2018); Bartel, 805 F.3d at 174-5. In Legendre, the Fifth Circuit affirmed the district court's order for remand and explained that the plaintiffs "provide unrebutted evidence that although the government required Avondale to use asbestos in the construction of the tugs, the government did nothing to restrict Avondale's safety practices." Legendre, 885 F.3d at 402. The Court goes on to say that in Bartel, "the government required the defendants to use ships containing asbestos, but did nothing to restrict the defendants' safety measures." Id. Here, as in Legendre and Bartel, Avondale has not shown that the United States government exercised any control over its safety practices — the alleged cause of plaintiff's injuries. As such, Avondale failed to show the required "causal nexus" to support federal jurisdiction, thus remand is proper. Because Avondale has failed to meet the second prong of the three-part test for federal officer removal, it is not necessary to examine Avondale's assertion of a colorable federal defense.

Accordingly; IT IS ORDERED that plaintiff's Motion to Remand (Rec. Doc. 9) is GRANTED, and this matter is hereby REMANDED to the Civil District Court for the Parish of Orleans.

I am enclosing herewith a certified copy of an order entered by this court on May 4, 2018 remanding the above-entitled case to your court.

[1] While noting that such issues remain contested before the Fifth Circuit on appeal, see, e.g., Melancon v. Lamorak Insurance Co., No. 18-30113 (citing Templet v. Huntington Ingalls Inc., No. 17-30676; Guillot v. Avondale Industries, Inc., No. 18-30456; Burkart v. PPG Industries, Inc., No. 18-30458), the Court finds remand of this matter proper based on Fifth Circuit law as it currently exists.

Sources

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