Robichaux v. Huntington Ingalls Incorporated (E.D. La., May 17, 2022, summary judgment)

Our plain-English summary of Robichaux v. Huntington Ingalls Incorporated (U.S. District Court, Eastern District of Louisiana, May 17, 2022).

Felton Robichaux sued Avondale (Huntington Ingalls) and many other companies in Louisiana state court, alleging he developed mesothelioma, diagnosed in January 2022, from asbestos exposure. He alleged he worked at Avondale Shipyards from 1961 to 1979 as a carpenter and insulator. He also alleged exposure from dust his brother carried home from Avondale and from contaminated clothing of other workers on the labor bus. Avondale removed the case to federal court and asserted government contractor immunity and derivative sovereign immunity defenses. Robichaux moved for partial summary judgment, asking the court to rule that those defenses did not bar his state law claims. Avondale asked for more time under Rule 56(d), pointing to an attorney's affidavit listing the discovery it planned, including depositions of co-workers and an expert. The court found the case was at an early stage, with only the plaintiff's deposition taken and no scheduling order. It held the motion premature and denied it without prejudice, allowing Robichaux to refile after adequate discovery.

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 17, 2022
• Docket: Civil Action No. 22-610
• Stage: Summary judgment
• State: Louisiana

Outcome. The court denied plaintiff Felton Robichaux's motion for partial summary judgment on Avondale's government contractor and derivative sovereign immunity defenses, without prejudice, as premature, so Avondale gets time for discovery.

What the court held. Under Rule 56(d), a summary judgment motion filed very early, before discovery beyond the plaintiff's deposition, is premature and may be denied where the opposing party shows specific discovery needed to oppose it.

Issues decided: Government Contractor Defense and Removal, Trial Procedure and Discovery.

The people and their exposure

• Felton Adam Robichaux: mesothelioma

Who	Work	Where	When	Products
Felton Adam Robichaux	carpenter and insulator (shipyards and maritime work)	Avondale Shipyards, Louisiana	1961-1979
Felton Adam Robichaux	brother's worker clothing and home (shipyards and maritime work); dust brought home	Avondale Shipyards, Louisiana	1961-1979
Felton Adam Robichaux	labor bus rider (shipyards and maritime work); dust brought home	Avondale labor bus, Louisiana	1961-1979

The defendants

• Huntington Ingalls Incorporated (Avondale) (premises owner)
• Eagle, Inc. (supplier)
• Taylor-Seidenbach, Inc. (supplier)
• Union Carbide Corporation (manufacturer)
• Foster Wheeler Energy Corporation (manufacturer)
• General Electric Company (manufacturer)
• Hopeman Brothers, Inc. (manufacturer)
• Liberty Mutual Insurance Company (insurer)
• Maryland Casualty Company (insurer)
• Employers Insurance Company of Wausau (insurer)
• Sentry Insurance Company (insurer)

Other decisions in this case

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

• Robichaux v. Huntington Ingalls Incorporated (May 17, 2022). The court denied Plaintiff Felton Robichaux's motion to remand, holding that Huntington Ingalls (Avondale) properly removed the case under the federal officer removal statute and did so on time.

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.

FELTON ADAM ROBICHAUX, Plaintiff,

v.

HUNTINGTON INGALLS INCORPORATED, ET AL., SECTION" "E" (5). Defendants.

Civil Action No. 22-610.

May 17, 2022.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

SUSIE MORGAN, District Judge.

Before the Court is a motion for summary judgment, filed by Plaintiff Felton A. Robichaux ("Plaintiff").[1] Defendant Huntington Ingalls Incorporated ("Avondale") filed an opposition.[2] Plaintiff filed a reply.[3] Avondale filed a sur reply.[4] BACKGROUND

This personal injury suit is based on Plaintiff's alleged exposure to asbestos. Plaintiff alleges he was "diagnosed with asbestos-related mesothelioma on or about January 14, 2022."[5] Plaintiff alleges he was exposed to asbestos containing products on Avondale's premises—that is, at Avondale Shipyards.[6] Plaintiff alleges he worked at Avondale Shipyards from 1961 to 1979 as a carpenter and insulator.[7] Plaintiff further alleges from 1961 to 1979 he was exposed to injurious levels of asbestos during his employment at Avondale Shipyards through his exposure to asbestos-containing products supplied, distributed by Defendants Eagle, Inc and Taylor-Seidenbach, Inc.[8] Plaintiff alleges his brother also worked at Avondale Shipyards during the relevant time frame, that Plaintiff's brother was exposed to asbestos fibers, and that the asbestos fibers and dust contaminated his brother's person, clothing, vehicle, home, and personal items, and that Plaintiff was exposed to the asbestos fibers carried home by his brother.[9] Plaintiff further alleges he was exposed to asbestos contaminated clothing from other Avondale workers aboard the labor bus Plaintiff took to and from the Avondale Shipyards. [10] On January 27, 2022, Plaintiff filed a petition for damages in Civil District Court, Parish of Orleans, State of Louisiana, against several Defendants, including the Insurers.[11] Plaintiff brings negligence claims against all Defendants based on the Defendants' failure to warn Plaintiff of the dangers of asbestos exposure, failure to provide adequate ventilation to minimize asbestos exposure, failure to provide respiratory equipment to protect Plaintiff from asbestos exposure, and failure to implement an asbestos decontamination policy or procedure to prevent asbestos fibers and dust from exposing others outside of the Avondale Shipyards.[12] Plaintiff also brings negligence and strict liability claims against Eagle, Inc., Union Carbide Corporation, Taylor-Seidenbach, Inc., Foster Wheeler Energy Corporation, General Electric Company, Hopeman Brothers, Inc., Liberty Mutual Insurance Company, International Paper Company, Maryland Casualty Company, Uniroyal, Inc., Sentry Insurance Company, Employers Insurance Company of Wausau, Viacom CBS, Inc., 3M Company, Metropolitan Life Insurance Company, and Bayer Conscience, Inc., for manufacturing, distributing, supplying, selling, or using asbestos-containing products, causing Plaintiff to be exposed to asbestos-containing products.[13] Plaintiff also brings negligence and strict liability claims against Avondale, alleging Avondale is liable for Plaintiff's injuries for failing to provide Plaintiff "a safe place to work free from the dangers of respirable asbestos-containing dust."[14]

Avondale removed Plaintiff's suit to federal court on March 10, 2022.[15] In its Notice of Removal, Avondale asserts this Court has Court has subject matter jurisdiction under 28 U.S.C. § 1441 in that the action arises under the Constitution, laws or treaties of the United States, and because Avondale was, at all material times, acting under an officer of the United States as set forth in 28 U.S.C. § 1442(a)(1).[16] On March 10, 2022, Avondale filed its answer with incorporated affirmative defenses, third-party claims and crossclaims.[17] As relevant to the instant motion,[18] Avondale asserted several affirmative

defenses, including the following: (i) "Plaintiffs' claims are barred by the government contractor immunity defense established in Boyle v. United Technologies Corporation"; and (ii) "Plaintiff's claims are barred by derivative sovereign immunity as set forth in Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940), and its progeny."[19] On April 11, 2022, Plaintiff filed the instant motion for summary judgment.[20] Plaintiff "seeks partial summary judgment regarding Avondale's government contractor defense and derivative sovereign immunity defense, seeking a ruling that Avondale is not immune from Plaintiff's state law claims for failing to warn its employees of the dangers of asbestos, or from taking precautions to prevent the spread of asbestos dust from the shipyard," under Boyle and Yearsley.[21] In its opposition to Plaintiff's motion for summary judgment, Avondale argues Plaintiff's motion for summary judgment is premature, and requests relief under Federal Rule of Civil Procedure 56(d).[22] Avondale requests that the Court defer consideration of Plaintiff's Motion to allow time to obtain affidavits, declarations, and/or to take discovery related to Plaintiff's claims of asbestos exposure and the applicability of Avondale's government immunity defenses to Plaintiff's claims.[23] LAW AND ANALYSIS

Under Rule 56(d) of the Federal Rules of Civil Procedure, if a party opposing a motion for summary judgment shows, by way of affidavit or declaration, that for some specific reason it cannot present facts essential to justify its opposition, the Court may defer consideration of the summary judgment motion, deny it, allow time for the nonmoving party to obtain affidavits or declarations or to take discovery, or issue any other appropriate order.[24] The Rule is "designed to safeguard against a premature or improvident grant of summary judgment."[25] Rule 56(d) motions are "generally favored, and should be liberally granted."[26]

"[T]o justify a continuance, the [Rule 56(d)] motion must demonstrate (1) why the movant needs additional discovery, and (2) how the additional discovery will likely create a genuine issue of material fact."[27] The party seeking continuance under Rule 56(d) "must be able to demonstrate how postponement and additional discovery will allow him to defeat summary judgment; it is not enough to `rely on vague assertions that discovery will produce needed, but unspecified, facts.'"[28] A party is not entitled to a Rule 56(d) continuance if he has not diligently pursued discovery.[29]

Avondale has satisfied the requirements for a continuance under Rule 56(d). As Avondale argues, the only discovery that has taken place so far is Plaintiff's deposition. No other discovery has taken place, and written disclosures have not been exchanged. Indeed, this case is in its infancy, as Avondale was served with Plaintiff's petition three months ago, Avondale's answer was filed roughly a month ago, and there is not a scheduling order in place yet.

Attached to Avondale's opposition is an affidavit of David M. Melancon, an attorney retained to represent Avondale in this matter.[30] In his affidavit, Melancon attests as follows:

That Avondale has made a good effort to oppose Plaintiff's Motion for Summary Judgment based on the facts available to it. . . but has been prejudiced by the limited timeframe within which the Motion for Summary Judgment was filed;

That denial and/or postponement of the ruling will enable Avondale to conduct discovery to further rebut Plaintiff's allegations of an absence of genuine issue of fact regarding Avondale's "government immunity defenses";

That in further opposition to the Motion for Summary Judgment, Avondale intends to conduct the following discovery:

a. Issue written discovery to Plaintiff;

b. Locate and depose Plaintiff's co-workers to discover any additional facts related to Plaintiff's alleged asbestos exposure and whether such exposure occurred on vessels constructed by Avondale pursuant to

contracts with the federal government;

c. Locate and depose Plaintiff's brother's co-workers to discover any additional facts related to Plaintiff's alleged asbestos exposure and whether such exposure occurred on vessels constructed by Avondale

pursuant to contracts with the federal government;

d. Retain expert witness, Jim Shea, to address, in part, Avondale's "government immunity defenses"; and e. Conduct any other discovery that may be required to oppose summary judgment on its "government

immunity defenses."[31]

Avondale further argues in its opposition that, at this stage of the case, "it remains unclear what evidence, if any, outside of Plaintiff's testimony, exists to support Avondale's government immunity defenses."[32] Avondale further argues that it has made a good faith effort to obtain the affidavit and sworn report of expert witness, Christopher Herfel, naval consultant and marine engineer. Notwithstanding, Avondale has not had any further opportunity to obtain additional facts to present in opposition to Plaintiff's Motion. At a minimum, Avondale should have an opportunity to issue discovery to the Plaintiff, to obtain the depositions of Plaintiff's co-workers to discover any facts related to his claim of asbestos exposure while riding an "Avondale labor bus" from Lafourche Parish to Avondale, and to discover any facts related to Plaintiff's claim of asbestos exposure from the clothing of his brother, Junior Paul Robichaux, who also worked at Avondale.[33]

In 234 Harbor Circle, LLC v. JP & D Digital Satellite Sys., Inc., the plaintiff filed a motion for summary judgment shortly after defendants filed an answer and before discovery had taken place.[34] The court concluded that the plaintiff's motion for summary judgment was premature, noting that

Defendants' counsel has provided an affidavit attesting to the fact that no discovery has been taken, and that additional discovery would allow Defendants to rebut the Plaintiff's allegations regarding the alleged damages to the property at 234 Harbor Circle, as well as the other allegations set forth in Plaintiff's motion. The Court finds that Defendants have demonstrated that additional discovery is necessary.[35]

Like the plaintiff in 234 Harbor Circle, the plaintiff in this case filed his motion for summary judgment shortly after Avondale filed its answer, prior to the exchange of initial disclosures and prior to any discovery in the case, with the exception of Plaintiff's deposition. The Court concludes Plaintiff's motion for summary judgment is premature and must be denied. Plaintiff may reassert his motion for summary judgment after providing Defendants adequate discovery to allow them to oppose such a motion.

CONCLUSION

IT IS ORDERED that Plaintiff's motion for summary judgment[36] is DENIED WITHOUT PREJUDICE AS PREMATURE. [1] R. Doc. 29.

[2] R. Doc. 47.

[3] R. Doc. 52.

[4] R. Doc. 55.

[5] R. Doc. 1-2 at p. 2, ¶ 3

[6] Id. at ¶ 4.

[7] Id. at ¶ 12.

[8] Id. at ¶¶ 4, 12.

[9] Id. at ¶ 13.

[10] Id. at ¶ 14.

[11] See generally id.

[12] Id. at ¶¶ 22-25.

[13] Id. at ¶¶ 26-30

[14] Id. at ¶¶ 31-55.

[15] R. Doc. 1.

[16] Id. at p. 1.

[17] R. Doc. 3.

[18] R. Doc. 38.

[19] Id. at p. 9.

[20] R. Doc. 29.

[21] Id. at p. 1.

[22] R. Doc. 47.

[23] Id. at pp. 1-2.

[24] Fed. R. Civ. P. 56(d).

[25] Washington v. Allstate Ins. Co., 901 F.2d 1281,1285 (5th Cir. 1990).

[26] Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518, 534 (5th Cir. 1999) (citing Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1267 (5th Cir. 1991)).

[27] Id. at 534-35 (citing Krimv. BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir.1993)).

[28] Id. at 535 (quoting Washington, 901 F.2d at 1285).

[29] See Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1397 (5th Cir. 1994). [30] R. Doc. 47-5.

[31] Id. at pp. 1-2, ¶¶ 13-15.

[32] R. Doc. 47 at p. 10.

[33] Id.

[34] No. CIV.A. 11-1818, 2011 WL 5301566, at [*1] (E.D. La. Nov. 4, 2011).

[35] No. CIV.A. 11-1818, 2011 WL 5301566, at [*1] (E.D. La. Nov. 4, 2011).

[36] R. Doc. 29.

Sources

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