Matherne v. Huntington Ingalls Incorporated (E.D. La., Feb. 21, 2024)

Our plain-English summary of Matherne v. Huntington Ingalls Incorporated (U.S. District Court, Eastern District of Louisiana, February 21, 2024).

Ted Matherne, Sr. and his children sued Huntington Ingalls (Avondale) and other companies in Louisiana state court in 2022. They alleged that Roseanna Matherne, his wife and their mother, died of mesothelioma caused by asbestos he brought home from his work at Avondale shipyards, where he worked from 1965 through 1983. The case was in federal court in the Eastern District of Louisiana. Before trial, the plaintiffs and defendants General Electric, Foster Wheeler and Paramount Global each served Avondale with trial subpoenas addressed to the company itself, requiring it to appear and produce documents. Avondale asked the court to quash them. The magistrate judge granted the motion. She explained that Rule 45 does not provide for trial subpoenas to a corporate entity. Rule 30(b)(6), which lets a party require a corporation to designate a witness, applies only to discovery depositions and not to trial testimony. The court noted that plaintiffs could instead subpoena Avondale's records custodian to authenticate documents.

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: February 21, 2024
• Docket: Civil Action No. 22-2656
• Stage: Discovery or evidence ruling
• State: Louisiana

Outcome. The court granted Avondale's motion and quashed the trial subpoenas that Plaintiffs and Defendants General Electric, Foster Wheeler and Paramount Global had directed to Avondale as a corporate entity.

What the court held. Rule 45 does not allow a trial subpoena to be served on a corporate entity, and Rule 30(b)(6) cannot be used with Rule 45 to compel corporate trial testimony without naming a particular individual.

Issues decided: Trial Procedure and Discovery.

The people and their exposure

• Roseanna Matherne (family member): mesothelioma; died

Who	Work	Where	When	Products
Roseanna Matherne	spouse of Avondale worker (shipyards and maritime work); dust brought home	Avondale shipyards, Louisiana	1965-1983

The defendants

• Huntington Ingalls Incorporated (Avondale) (employer)
• General Electric Company (manufacturer)
• Foster Wheeler, LLC (manufacturer)
• Paramount Global

Other decisions in this case

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

• Matherne v. Huntington Ingalls Incorporated (October 28, 2022). The court granted summary judgment for the Louisiana Insurance Guaranty Association (LIGA) and against the plaintiffs, holding that their claims were not timely 'covered claims' because they arose after the insolvent insurer's claim bar date.
• Matherne v. Huntington Ingalls Incorporated (March 2, 2023). The court denied LIGA's motion for entry of a Rule 54(b) final judgment on the earlier summary judgment in its favor, so LIGA must wait until the whole case ends to appeal; the plaintiffs prevailed on this motion.
• Matherne v. Huntington Ingalls Incorporated (January 2, 2024). The court granted in part and denied in part the plaintiffs' motion to compel a Rule 30(b)(6) deposition of Huntington Ingalls: Huntington need not present a witness, but must give the plaintiffs its litigation listing of prior cases within 14 days.
• Matherne v. Huntington Ingalls Incorporated (January 19, 2024). The court granted the plaintiffs' motion for partial summary judgment, so Avondale (Huntington Ingalls) and its insurers could not use the government contractor defense against the failure-to-warn and failure-to-enact-safety-measures claims.
• Matherne v. Huntington Ingalls Incorporated (January 19, 2024). The court granted Avondale's motion for partial summary judgment and dismissed plaintiffs' claims that Avondale assumed its insolvent insurers' obligations under the buy-back agreements; the plaintiffs lost this claim.
• Matherne v. Huntington Ingalls Incorporated (January 20, 2024). The court granted the plaintiffs' motion for partial summary judgment that Roseanna Matherne had mesothelioma and that it caused her death, over the defendants' off-topic oppositions.
• Matherne v. Huntington Ingalls Incorporated (January 24, 2024). The court granted Hopeman Brothers' motion for partial summary judgment on the plaintiffs' intentional tort, alter ego and manufacturer strict liability claims, ruling against the plaintiffs and Avondale.

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.

TED J. MATHERNE, SR., ET AL.,

v.

HUNTINGTON INGALLS INCORPORATED, ET AL.,

Civil Action No. 22-2656.

February 21, 2024.

United States District Court, E.D. Louisiana.

SECTION "J" (2)

DONNA PHILLIPS CURRAULT, Magistrate Judge.

ORDER AND REASONS

Before me is Defendant Huntington Ingalls Incorporated's (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") Motion to Quash Trial Subpoenas issued to it by Plaintiffs and Defendants General Electric Company, Foster Wheeler, LLC and Paramount Global. ECF No. 340. The motion was scheduled for submission on Wednesday, February 21, 2024. Plaintiffs timely filed an Opposition Memorandum to which Avondale filed a Reply Memorandum. ECF Nos. 344, 432. As of this date, Defendants

General Electric Company, Foster Wheeler, LLC and Paramount Global have failed to file an Opposition Memorandum, and the deadline for same expired on Tuesday, February 13, 2024. See E.D. La. L.R. 7.5.

No party has requested oral argument in accordance with Local Rule 78.1, and the Court agrees that oral argument is unnecessary. Having considered the record, the written submissions of counsel, the applicable law, and finding that the motion has merit, the Motion is GRANTED and the subpoenas at issue are hereby QUASHED for the reasons stated herein. I. BACKGROUND

Plaintiff Ted Matherne, Sr. worked at Avondale shipyards from 1965 through 1983. ECF No. 1-2 ¶ 4. Plaintiffs Ted J. Matherne, Sr., Ted J. Matherne, Jr., Giselle Matherne Ordoyne and Vanessa Matherne Richardson filed suit in Civil District Court on July 6, 2022 alleging that their spouse/mother Roseanna Matherne died as a result of mesothelioma contracted through exposure to asbestos brought home by Plaintiff Ted Matherne, Sr.'s exposure to same while employed at Avondale. Id. ¶¶ 10-13.

Plaintiffs and Defendants General Electric Company, Foster Wheeler, LLC and Paramount Global served Defendant

Avondale with Subpoenas to Appear and Testify at a Hearing or Trial in a Civil Action on January 26 and 29, 2024. ECF Nos. 340-3 & 340-4. Each subpoena is directed to the entity itself rather than an individual and requires the production of certain documents. Id.

Avondale now moves to quash the trial subpoenas directed to it as a corporate entity as improper. Defendants General Electric Company, Foster Wheeler, LLC and Paramount Global filed an Opposition Memorandum. Plaintiffs oppose the

motion and seek to distinguish the cases cited by Avondale on the basis that the subpoenas to a corporate entity did not include Rule 30(b)(6) categories. ECF No. 344 at 3-5. Plaintiffs' efforts to distinguish the cited cases, including this Court's decision on the identical issue in "Giarratano v. Huntington Ingalls Incorporated," No. 22-88 (E.D. La. Apr. 11, 2023) (ECF No. 557), in unavailing.

Rule 45 simply does not contemplate issuance of a trial subpoena to a corporate entity. Plaintiffs may subpoena Avondale's records custodian identified during discovery to authenticate needed documents. Plaintiffs may not, however, improperly use Rule 30(b)(6) for trial purposes.

II. APPLICABLE LAW AND ANALYSIS

Rule 45(c) provides that a "subpoena may command a person to attend a trial, hearing or deposition. . . within 100 miles of where the person resides, is employed, or regularly transacts business in person" or "within the state where the person resides, is employed, or regularly transacts business in person, if the person is (i) a party or a party's officer; or (ii) is commanded to attend a trial and would not incur substantial expense." Accordingly, "the court for the district where compliance is required must quash or modify a subpoena that. . . "(ii) requires a person to comply beyond the geographical limits specified in Rule (45)(c)." FED. R. CIV. P. 45(d)(3)(A). Rule 45(c) geographical limits apply to parties and their officers, directors, and managing agents.[1]

If a subpoena requires a person's attendance, FED. R. CIV. P. Rule 45(b)(1) and E.D. La. L.R. 45.1 direct the issuer to tender fees for one day's attendance and the mileage allowed by law.

There is no rule requiring that a corporate designee testify "vicariously" at trial. Brazos River Authority v. GE Ionics, Inc., 469 F.3d 426, 434 (5th Cir. 2006). While Rule 30(b)(6) specifically contemplates that a party may serve a subpoena on a corporation who must then designate a representative to testify, the rule applies only to discovery depositions, not trial testimony.[2] For this reason, Rule 30(b)(6) "may not be used in conjunction with Rule 45 to serve a subpoena on a

corporation for purposes of securing trial testimony without naming a particular individual," and Rule 45 does not

contemplate service of a trial subpoena on a corporate entity.[3]

III. CONCLUSION

The Rule 45 trial subpoenas are improperly directed to Avondale as corporate entity rather than to any specific

representative. Accordingly,

IT IS ORDERED that the Motion to Quash (ECF No. 340) is GRANTED and the subpoenas issued to Avondale are hereby

QUASHED.

[1] Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213, 215-216 (E.D. La. 2008) (Vance, J.) (discussing applicability of Rule 45(c)(3)(A)(ii) to parties and party officers in places outside the territorial limits defined in Rule 45(b)(2) and holding that a party or its officer cannot be compelled to attend trial in any judicial district).

[2] United Tort Claimants v. Quorum Health Res., LLC, 2014 WL 184984, at [*10] & n.18 (Bankr. D.N.M. Jan. 15, 2014). [3] Id. (citing Hill v. Nat'l R.R. Passenger Corp., No. 88-5277, 1989 WL 87621, at [*1] (E.D. La. July 28, 1989) ("rule 30(b)(6) specifically applies to the deposition of a corporation. Rule 45. . . provides the proper procedure by which a person may be compelled to testify at trial. There is no provision allowing the use of the 30(b)(6)-type designation of areas of inquiry or allowing service on a corporation through an agent for service of process in order to compel a particular person, who may be a corporate employee outside the subpoena power of the court, to testify at trial.")); see also Smith v. Royal Caribbean Cruises, Ltd., 302 F.R.D. 688, 694 (S.D. Fla. 2014) (noting that the use of Rule 30(b)(6) notices for defendants' corporate representatives, which notices include discovery requests for production at trial, is improper and there is no provision allowing for the use of such notice under Rule 45 as against another party or without specifically designating a named person within the jurisdiction to testify).

Sources

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