Sentilles v. Huntington Ingalls Inc. (E.D. La., Apr. 25, 2022)

Our plain-English summary of Sentilles v. Huntington Ingalls Inc. (U.S. District Court, Eastern District of Louisiana, April 25, 2022).

Robert Sentilles, diagnosed with mesothelioma in 2020, sued several defendants under Louisiana tort law. He alleged asbestos exposure from the 1950s to the 1980s. At Avondale's shipyard in 1969 he worked about a month as a yard clerk in the insulation shop, making amosite insulation blankets. He also claimed take-home exposure from his brother Thomas's clothes, because Thomas worked in Avondale's paint department at the same time and the brothers shared a bedroom. He alleged later exposure at Pelnor as well. Avondale moved for summary judgment, arguing that the federal Longshore and Harbor Workers' Compensation Act (LHWCA) bars his tort claims. The court followed earlier decisions in its district. It held that the Act version in force when the disease appeared in 2020 applies. Sentilles's shipyard work met the Act's status and situs tests. The Act's exclusivity provision therefore preempts his claims against Avondale as his employer. The take-home claim was also covered because the brothers worked there at the same time. The court refused to bar Avondale's defense on an inconsistent-pleading theory. The claims against Avondale were dismissed with prejudice.

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 25, 2022
• Citation: 599 F.Supp.3d 426
• Docket: CIVIL ACTION No. 21-958
• Stage: Summary judgment
• State: Louisiana

Outcome. The court granted Avondale's (Huntington Ingalls') summary judgment motion and dismissed Sentilles's state-law tort claims against it with prejudice, ruling that the LHWCA's exclusivity provision preempts them.

What the court held. Under the Fifth Circuit's manifestation rule, the LHWCA version in effect when the disease manifested applies. A shipyard employer is therefore immune from state-law tort claims for covered workers' occupational exposure, including take-home exposure from a coworker brother employed there at the same time.

Issues decided: Employer and Contractor Liability, and Workers' Compensation, Maritime Law and Navy Ships, Federal Preemption, Trial Procedure and Discovery, Take-Home Exposure.

The people and their exposure

• Robert Stephen Sentilles: mesothelioma

Who	Work	Where	When	Products
Robert Stephen Sentilles	yard clerk in the insulation shop (shipyards and maritime work)	Avondale shipyard insulation shop, Louisiana	May 28, 1969 to June 23, 1969	asbestos textiles, amosite, amosite insulation blankets
Robert Stephen Sentilles	brother of Avondale paint department worker, shared bedroom (shipyards and maritime work); dust brought home	Avondale shipyard (brother Thomas's clothes), Louisiana	1969
Robert Stephen Sentilles		Pelnor	1974-1983

The defendants

• Huntington Ingalls Inc. (Avondale) (employer)
• Pelnor, L.L.C. (employer)

Other decisions in this case

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

• Sentilles v. Huntington Ingalls Inc. (December 20, 2021). The court denied defendant Pelnor's motion for partial summary judgment, so plaintiff Sentilles may pursue his claims about exposure at Pelnor on or after September 1, 1975, and the court did not categorically exclude evidence of post-1975 exposure.
• Sentilles v. Huntington Ingalls, Inc. (April 8, 2022). The court granted the unopposed summary judgment motions of Union Carbide, Amchem, Zurich (as alleged insurer of Marquette) and John Crane, and dismissed Sentilles's and Huntington Ingalls (Avondale)'s claims against them with prejudice.
• Sentilles v. Huntington Ingalls, Inc. (April 8, 2022). The court granted Avondale's unopposed motions for summary judgment and dismissed with prejudice Sentilles's claims about his employment there after June 23, 1969, and his secondary-exposure claims tied to his father and brother.
• Sentilles v. Huntington Ingalls Inc. (April 22, 2022). The court granted Avondale's motion for summary judgment and dismissed with prejudice Sentilles's state-law tort claims against Avondale, both occupational and take-home, as preempted by the LHWCA's exclusivity provision.
• Sentilles v. Huntington Ingalls Incorporated (June 21, 2022). The court granted Pelnor's Rule 54(b) motion, entering partial final judgment on the order dismissing plaintiff Sentilles's claims against Avondale so that the dismissal can be appealed immediately.
• Sentilles v. Huntington Ingalls Incorporated (October 3, 2024). The court granted Avondale's Rule 12(c) motion dismissing with prejudice Sentilles's reasserted claims about post-June 1969 Avondale work and his father's and brother's Avondale employment, denied his motion for reconsideration, and barred him from using Pelnor's experts Pierce and Roggli at trial.
• Sentilles v. Huntington Ingalls Incorporated (October 4, 2024). The court denied plaintiff Sentilles's motion in limine to exclude Avondale's expert Christopher Herfel, finding him qualified and his opinions relevant and reliable.
• Sentilles v. Huntington Ingalls Incorporated (January 20, 2025). The court granted Pelnor's motion for partial summary judgment and denied First State Insurance Company's cross-motion, holding that First State must indemnify Pelnor for all of its reasonable defense attorney's fees and costs.
• Sentilles v. Huntington Ingalls Incorporated (February 10, 2025). The court ruled on Avondale's objections to plaintiff Sentilles's trial exhibits: it overruled some, sustained others (including expert reports and several publications as hearsay), deferred many to trial, and dismissed several as moot.
• Sentilles v. Huntington Ingalls Incorporated (March 30, 2025). The magistrate judge recommended granting in part and denying in part Pelnor's motion: Pelnor may supplement its crossclaim with a bad faith claim against First State for events on or after January 20, 2025, but not for events between September 4, 2024 and January 20, 2025.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Rando v. Anco Insulations Inc. (Louisiana Supreme Court, 2009). The Louisiana Supreme Court affirmed the court of appeal's judgment for Ray Rando against his former employers JCI and Parsons, holding his tort suit was not barred by workers' compensation exclusivity or peremption and upholding liability and the $2.8 million general damages award.
• Landry v. Avondale Industries, Inc. (Louisiana Supreme Court, 2004). The Louisiana Supreme Court reversed the court of appeal, reinstated the trial court's summary judgment for Reilly-Benton and Liberty Mutual that comparative fault applies to the wrongful death claim, and remanded; the Landry plaintiffs lost.
• 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.
• Krutz v. Huntington Ingalls Inc. (U.S. District Court, Eastern District of Louisiana, 2021). The court granted Amchem's unopposed motion for summary judgment and dismissed the plaintiffs' wrongful death claims against Amchem, because there was no evidence Krutz was exposed to Amchem's products or that they caused his mesothelioma.

Later decisions citing this one

One later decision in our library cites this one:

• Cortez v. Lamorak Ins. Co. (U.S. District Court, Eastern District of Louisiana, 2022). The court granted Continental Insurance Company's summary judgment motion, holding the LHWCA preempted Cortez's state-law tort claims against it as Halter Marine's insurer and that his intentional-tort claims failed for lack of evidence, and dismissed Continental's two other summary-judgment motions as moot.

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.

599 F.Supp.3d 426 (2022)

Robert Stephen SENTILLES

v.

HUNTINGTON INGALLS INC., etal.

CIVIL ACTION No. 21-958.

Signed April 22, 2022.

Filed April 25, 2022.

United States District Court, E.D. Louisiana.

[*428] David Ryan Cannella, Benjamin David Rumph, Baron & Budd, P.C., New Orleans, LA, Christopher C. Colley, J. Burton LeBlanc, IV, Baron & Budd, P.C., Baton Rouge, LA, Kristopher Lynn Thompson, Baron & Budd, P.C., Dallas, TX, for Robert Stephen Sentilles.

Gustave A. Fritchie, III, Amanda Marie Crowley Fraser, David Michael Melancon, Michael Scott Minyard, Michael Kevin Powell, Timothy Farrow Daniels, Edward Winter Trapolin, Irwin Fritchie Urquhart & Moore, LLC, New Orleans, LA, for Huntington Ingalls Incorporated.

Barrye Panepinto Miyagi, Amy Collier Lambert, John P. Murrill, T. Coulter McMahen, Taylor, Porter, Brooks & Phillips LLP, Baton Rouge, LA, David Mark Bienvenu, Jr., John Allain Viator, Melissa Jade Shaffer, Thomas Clay Naquin, Bienvenu, Bonnecaze, Foco, Viator & Holinga, APLLC, Baton Rouge, LA, for Pelnor LLC.

McGready Lewis Richeson, David M. Stein, Francis Xavier deBlanc, III, Ernest G. Foundas, Milele N. St. Julien, Pugh, Accardo, Haas, Radecker & Carey, New Orleans, LA, Kathleen Jordan Brien, McGlinchey Stafford, Houston, TX, for Union Carbide Corporation, Bayer Crop-Science, Inc.

Christopher Kelly Lightfoot, Edward J. Lassus, Jr., Gabriel J. Veninata, Hailey, McNamara, Hall, Larmann & Papale, LLP, Metairie, LA, for Taylor-Seidenbach, Inc.

Mary Reeves Arthur, Forman, Watkins & Krutz LLP, New Orleans, LA, for Uniroyal Inc.

[*429] Edward T. Hayes, Marc E. Devenport, McNeil James Kemmerly, Leake & Andersson, LLP, New Orleans, LA, for Zurich American Insurance Company.

Mary Reeves Arthur, Elizabeth Riddell Penn, Forman, Watkins & Krutz LLP, New Orleans, LA, for Uniroyal Holding, Inc. John Joseph Hainkel, III, Angela M. Bowlin, Kelly L. Long, Kelsey Eagan, Lacey Taylor McCoy, Magali Ann Puente-Martin, Roth Martin Hainkel, Frilot L.L.C., New Orleans, LA, for ViacomCBS Inc.

SECTION M (3)

ORDER & REASONS

BARRY W. ASHE, UNITED STATES DISTRICT JUDGE.

Before the Court is a motion for summary judgment filed by defendant Huntington Ingalls Inc. ("Avondale") seeking dismissal of plaintiff's state-law tort claims against it pursuant to the exclusivity provision of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. §§ 901-950.[1] Plaintiff Robert Stephen Sentilles and defendant Pelnor, L.L.C. ("Pelnor") respond in opposition.[2] Avondale replies in further support of its motion.[3] Having considered the parties' memoranda, the record, and the applicable law, the Court issues this Order & Reasons granting the motion and dismissing Sentilles's state-law tort claims as preempted by the LHWCA's exclusivity provision.

I. BACKGROUND

This case involves claims of asbestos exposure. On October 27, 2020, Sentilles was diagnosed with mesothelioma.[4] Sentilles filed this suit asserting Louisiana state-law tort claims against several defendants, alleging that his disease was caused by exposure to asbestos that occurred from the 1950s to the 1980s.[5]

More specifically, Sentilles claims that he was exposed to asbestos when he worked as a yard clerk in the insulation shop at Avondale's shipyard along the Mississippi River from May 28, 1969, to June 23, 1969.[6] Sentilles testified at his deposition that the insulation shop was a hot and dusty "big tin shed on the wharf" where he made amosite insulation blankets that were used in shipboard applications to cover equipment, such as pipes and machinery.[7] Sentilles remained employed at Avondale until 1972, but he was moved to an office job on June 24, 1969.[8]

Sentilles also claims that he was secondarily exposed to asbestos from his brother [*430] Thomas's clothes when his brother Thomas worked at Avondale.[9] At his deposition, Thomas testified that he worked in Avondale's paint department for two months, beginning on May 26, 1969.[10] Thomas worked on the ships, taping off areas in preparation for painting.[11] There were other crafts working at the same time, including insulators, so Thomas assumes that he was exposed to asbestos at Avondale.[12] Thomas and Sentilles did not ride to work together.[13] The brothers shared a bedroom in the family home.[14] Thomas sometimes left his clothes on the bedroom floor and their mother would do the laundry.[15]

Finally, Sentilles alleges that he was exposed to asbestos when he worked at Pelnor from July 31, 1974, through 1983.[16] II. PENDING MOTION

Avondale filed the instant motion for summary judgment arguing that Sentilles's Louisiana state-law tort claims against it are preempted pursuant to the exclusivity provision of the LHWCA.[17] Avondale argues that the version of the LHWCA that was in effect at the time Sentilles's mesothelioma manifested in 2020 applies and, as a result, Sentilles's employment in Avondale's insulation shop meets the LHWCA's status and situs test.[18] Thus, argues Avondale, Sentilles's state-law tort claims are preempted by the LHWCA.[19] Avondale further argues that Sentilles's take-home exposure claim related to his brother Thomas's employment is covered by the LHWCA because that exposure was incidental to Sentilles's own employment or, alternatively, the LHWCA's non-apportionment rule applies since at least part of Sentilles's claim is covered by the LHWCA.[20]

In opposition, Sentilles and Pelnor argue that the "first significant exposure," not the "time of manifestation," rule should be used to determine which version of the LHWCA applies.[21] And, Sentilles's first significant exposure to asbestos at Avondale occurred in 1969, meaning that an older version of the LHWCA applies, which does not cover Sentilles's work at Avondale.[22] Sentilles also argues that his take-home exposure claim is not preempted by the LHWCA because it is separate and distinct from his employment at Avondale.[23] Further, Pelnor argues that Avondale is taking inconsistent litigation positions by bringing this motion for summary judgment after pleading crossclaims and third-party claims for virile share liability.[24]

[*431] In its reply, Avondale distinguishes the cases relied upon by Sentilles and Pelnor with respect to the LHWCA preemption issue.[25] Avondale also argues that Sentilles's take-home exposure claim is preempted by the LHWCA because the statute covers the occupational disease itself, not each individual injury that led to it, and apportionment of covered versus non-covered exposures is impossible.[26] Finally, Avondale argues that there is nothing inconsistent about pleading rights and affirmative defenses in the alternative.[27]

III. LAW & ANALYSIS

A. Summary Judgment Standard

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R. Civ. P. 56(c)). "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. A party moving for summary judgment bears the initial burden of demonstrating the basis for summary judgment and identifying those portions of the record, discovery, and any affidavits supporting the conclusion that there is no genuine issue of material fact. Id. at 323, 106 S.Ct. 2548. If the moving party meets that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate the existence of a genuine issue of material fact. Id. at 324, 106 S.Ct. 2548.

A genuine issue of material fact exists if a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The substantive law identifies which facts are material. Id. Material facts are not genuinely disputed when a rational trier of fact could not find for the nonmoving party upon a review of the record taken as a whole. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). Unsubstantiated assertions, conclusory allegations, and merely colorable factual bases are insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994); Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary-judgment motion, a court may not resolve credibility issues or weigh evidence. See Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court must assess the evidence, review the facts, and draw any appropriate inferences based on the evidence in the light most favorable to the party opposing summary judgment. See Tolan v. Cotton, 572 U.S. 650, 656-57, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet, a court only draws reasonable inferences in favor of the nonmovant "when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075 (citing Lujan v. Nat'l Wildlife [*432] Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

After the movant demonstrates the absence of a genuine issue of material fact, the nonmovant must articulate specific facts showing a genuine issue and point to supporting, competent evidence that may be presented in a form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must create more than "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. When the nonmovant will bear the burden of proof at trial on the dispositive issue, the moving party may simply point to insufficient admissible evidence to establish an essential element of the nonmovant's claim in order to satisfy its summary-judgment burden. See Celotex, 477 U.S. at 322-25, 106 S.Ct. 2548; Fed. R. Civ. P. 56(c)(1)(B). Unless there is a genuine issue for trial that could support a judgment in favor of the nonmovant, summary judgment must be granted. See Little, 37 F.3d at 1075-76.

B. Analysis

1. Preemption of Sentilles's Claims Against Avondale Arising Out of His

Employment

Other sections of this court have thoroughly considered and accepted Avondale's LHWCA preemption argument, granting summary judgment on this basis in Hulin v. Huntington Ingalls, Inc., 2020 WL 6059645 (E.D. La. Oct. 14, 2020); Krutz v. Huntington Ingalls, Inc., 2021 WL 5893981 (E.D. La. Apr. 22, 2021); Barrosse v. Huntington Ingalls Inc., 563 F.Supp.3d 541 (E.D. La. 2021), appeal docketed, No. 21-30761 (5th Cir. Dec. 20, 2021); Hotard v. Avondale Industries, Inc., No. 20-1877, R. Doc. 271, 2022 WL 1715213 (E.D. La. Jan. 26, 2022); and Cortez v. Lamorak Insurance Co., 597 F.Supp.3d 959 (E.D. La. 2022). This Court, having read and considered each of these cases, along with the arguments made here by Avondale, Sentilles, and Pelnor (which mirror the arguments raised in the other cases), agrees with the reasoning of these cases. In describing the LHWCA, the court in Cortez stated as follows:

The LHWCA is a federal workers' compensation statute providing covered maritime workers with "medical, disability, and survivor benefits for work-related injuries and death." MMR Constructors, Inc. v. Dir., Office of

Workers' Comp. Programs, 954 F.3d 259, 262 (5th Cir. 2020) (citation and internal quotation marks omitted). Before 1972, the statute covered only workers on "navigable waters of the United States (including any dry dock)." Id. (citing 33 U.S.C. § 903(a) (pre-1972)). But, in 1972, Congress amended the Act and "extend[ed] the LHWCA landward." Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715, 719, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980).

Cortez, 597 F.Supp.3d at 966.

a. Applicable version of the LHWCA

Here, as in Cortez, Sentilles argues that the pre-1972 version of the LHWCA applies because he sustained his first significant exposure to asbestos not later than 1969. Avondale, as it did in Cortez, contends that the post-1972 version of the law applies because Sentilles's disease manifested in 2020 when he was diagnosed with mesothelioma. In explaining why the post-1972 version of the LHWCA applies in this scenario, the court in Cortez stated:

Courts use the "date of injury" to determine which version of the LHWCA applies. Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1029 (5th Cir. 1985). In the context of long-latency diseases arising [*433] from asbestos exposure, the Fifth Circuit in Castorina held that manifestation, not exposure, determines the date of injury. Id. at 1031. There, plaintiff's disease, asbestosis, manifested in 1979. Id. at 1028. His exposures occurred between 1965 and 1972. Id. at 1027. The Fifth Circuit looked to judicial authority stating that the LHWCA "is not concerned with pathology, but with industrial disability; and a disease is no disease until it manifests itself." Id. (quoting Grain Handling Co. v. Sweeney, 102 F.2d 464 (2d Cir.), cert. denied, 308 U.S. 570, 60 S.Ct. 83, 84 L.Ed. 478 (1939)). It also inferred Congress's intent from Congress's express adoption of the manifestation rule in 1984. Id. (citing Pub. L. No. 98-426, § 28(g)(1), 98 Stat. 1639 (1984)). In the 1984 amendments to the LHWCA, Congress provided a specific definition of "injury" for occupational diseases: [I]n the case of an occupational disease which does not immediately result in a disability or death, an injury shall be deemed to arise on the date on which the employee or claimant becomes aware, or in the exercise of reasonable diligence or by reason of medical advice should have been aware, of the disease....

Pub. L. No. 98-426, § 28(g)(1), 98 Stat. 1639 (1984). Under Castorina and the 1984 amendments, [plaintiff] Cortez's injury is deemed to arise on the date it manifested. Because [plaintiff's] disease manifested in 2020, the Court applies the LHWCA as it existed in 2020, the date of his injury.

Plaintiff disputes this legal conclusion by pointing to dicta in a footnote in Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 466 n.6 (5th Cir. 2016), in which the Fifth Circuit stated:

Defendant's preemption defense is governed by the law at the time [plaintiff] was exposed to asbestos, which occurred before the Louisiana Worker's Compensation Act was amended in 1989 to eliminate any concurrent coverage between that Act and the federal Longshore and Harbor Workers' Compensation Act. See La. Rev. Stat. 23:1035.2 (providing that "[n]o compensation shall be payable in respect to the disability or death of any employee covered by ... the Longshoremen's and Harbor Worker's Compensation Act, or any of its

extensions ...").

Id. (emphasis added). The Court does not find that this footnote has the import plaintiff attributes to it. In the Savoie opinion, the court makes clear that it is discussing the applicable version of state law. For example, in the footnote upon which plaintiffs rely, the Fifth Circuit noted that the plaintiff's exposure "occurred before the Louisiana Worker's Compensation Act was amended in 1989 to eliminate any

concurrent coverage between that Act and the federal Longshore and Harbor Workers' Compensation Act." Id. (citing La. Rev. Stat. § 23:1035.2). If the court were not referring to the appropriate version of state law, there would have been no need to discuss the elimination of concurrent state-federal workers' compensation coverage. The references to state law in the same footnote and throughout the opinion support the Court's conclusion that the Fifth Circuit was referring to the applicable state law, not which version of the LHWCA applies. See id. at 464 ("[Wrongful death] claims are governed by the [state] law in effect at the time the decedent passes away," but "survival claims based on asbestos exposure are governed by the [state] law in

effect when the exposure occurred.") (first citing Rando v. Anco Insulations, Inc., 16 So.3d 1065, 1072 (La. 2009), and then citing Landry v. Avondale Indus., [*434] Inc., 877 So.2d 970, 972 (La. 2004)). Further, the Fifth Circuit expressly stated that it did not decide whether defendant had a colorable federal preemption defense. Id. at 466. One Fifth Circuit panel cannot overrule another without an intervening change in the law, see United States v. Darrington, 351 F.3d 632, 634 (5th Cir. 2003), and in the event of a conflict, the earlier case controls. Texaco Inc. v. La. Land & Expl. Co., 995 F.2d 43, 44 (5th Cir. 1993). But in any event, the Court does not find that the Fifth Circuit intended to overrule its earlier, reasoned decision in Castorina by way of dicta in a footnote.

Because Castorina's manifestation rule controls, the Court applies the LHWCA as it existed in 2020, when [plaintiff's] mesothelioma manifested.

Cortez, 597 F.Supp.3d at 966-68 (footnotes omitted).

The same holds true in this case. Sentilles's mesothelioma manifested in 2020. Thus, the post-1972 version of the LHWCA applies.[28]

b. Applicability of the post-1972 LHWCA to Sentilles's injuries

In applying the post-1972 LHWCA, the court in Cortez explained the Act's status and situs requirements: Since the 1972 amendments, the LHWCA covers injuries of workers who meet the Act's "status" and "situs" requirements. See New Orleans Depot Servs. v. Dir., Office of Worker's Comp. Programs, 718 F.3d 384, 389 (5th Cir. 2013). Plaintiff [Cortez] easily meets these criteria.

The "status" requirement limits application of the LHWCA to "traditional maritime occupations." Id.; see 33 U.S.C. § 902(3) (defining "employee" as "any person engaged in maritime employment, including any

longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker" (emphasis added)). The status test is satisfied when the person is "directly involved in an ongoing shipbuilding operation." Ingalls Shipbuilding Corp. v. Morgan, 551 F.2d 61, 62 (5th Cir. 1977).

Plaintiff worked as a tacker helper and welder on vessels at Avondale's Westwego Yard. This type of work satisfies the status test because it is an "essential step of the shipbuilding process." Id. (holding that a worker who died when a steel plate he was cleaning fell on him satisfied the status test because the "cleaning task was an essential step of the shipbuilding process"); see also McLaurin v. Noble Drilling (US) Inc., 529 F.3d 285, 289 (5th Cir. 2008) (stating that the LHWCA applies to "longshoremen, shipbuilders, ship repairers, and various harbor workers, such as carpenters, cleaners, or painters"); 1 Robert Force and Martin J. Norris, The Law of Maritime Personal Injuries § 3:9 (5th ed.) (stating that the LHWCA specifically includes "any harborworker," which includes "shipcleaners, tank cleaners, [*435] riggers, carpenters, ship ceilers, cargo checkers, cargo weighers, cargo talleyers, port watchmen, electricians, painters, mechanics, etc."). Thus, the Court finds that the LHWCA's status test is satisfied.

The "situs" test, extended by Congress in 1972, requires that the injury occur on the "navigable waters of the United States" and "any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel." 33 U.S.C. § 903(a); see also Sun Ship, 447 U.S. at 719, 100 S.Ct. 2432 ("In 1972, Congress ... extend[ed] the LHWCA landward beyond the shoreline of the navigable waters of the United States."). There is no dispute that Cortez's exposure to asbestos occurred in a covered situs — Avondale Shipyards. See Pitre v. Huntington Ingalls, Inc., No. 17-7029, 2018 WL 2010026, at [*3] (E.D. La. Apr. 30, 2018) ("Avondale's vessel construction and repair activities occurred on the west bank of the Mississippi River adjacent to navigable waters.").

Cortez, 597 F.Supp.3d at 969.

Sentilles worked in Avondale's insulation shop, which was located on a wharf on the Mississippi River, making amosite insulation blankets that were used in the shipbuilding process. Thus, as true for Cortez, Sentilles's work satisfies the status test as an "essential step of the shipbuilding process" and falls within the LHWCA's coverage. Likewise, Sentilles's injuries occurred on the same covered situs as did Cortez's, namely, Avondale's shipyard. Therefore, the Court finds that Sentilles could have brought his claims under the LHWCA.

c. LHWCA preemption of tort claims against employers

As in Cortez, Avondale contends here that the LHWCA immunizes it from tort liability for Sentilles's occupational exposure claims. The court in Cortez addressed the parties' competing arguments on this point, reasoning:

Section 905(a) of the LHWCA, the employer immunity provision, states:

The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death....

33 U.S.C. § 905(a). Based on this provision, Avondale argues that plaintiff's state-law tort claims conflict with the LHWCA, and are therefore preempted. The opposing parties contend that a state may constitutionally provide for state-law tort remedies concurrently with the LHWCA, and that, therefore, the LHWCA does not preempt plaintiff's claims.

Federal law applies to questions of preemption. Hetzel v. Bethlehem Steel Corp., 50 F.3d 360, 363 (5th Cir. 1995). Federal law can preempt state law in three ways: (1) express preemption, where Congress expresses an explicit intent to preempt state law; (2) field preemption, where the "sheer comprehensiveness" of the federal scheme implies congressional intent to preempt state regulation in the area; or (3) conflict preemption, where the state law either directly conflicts with the federal law or interferes with the regulatory program established by Congress. Id. The U.S. Supreme Court has set out [*436] "two cornerstones" of preemption jurisprudence. Wyeth v. Levine, 555 U.S. 555, 565, 129 S.Ct. 1187, 173 L.Ed.2d 51 (2009). First, the "ultimate touchstone" is "the purpose of Congress." Id. (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996)). Second, the Court must "start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress," especially when the case involves a "field which the states have traditionally occupied." Id. (quoting Lohr, 518 U.S. at 485, 116 S.Ct. 2240) (quotation marks omitted).

436

Because tort law is a field traditionally occupied by the States, the Court starts with the assumption that Congress did not intend to supersede state law when it enacted the LHWCA. But this assumption does not stand in face of the text of the LHWCA, the purpose behind the statute, and the weight of judicial authority. Section 905(a) of the LHWCA provides that compensation under the LHWCA is exclusive of all other

employer liability, including for actions to recover damages at law. 33 U.S.C. § 905(a). The plain language of this provision "evidences an unmistakable intention to embody the quid pro quo that defines most workmen's compensation statutes." Cobb [v. Sipco Servs. & Marine, Inc.], 1997 WL 159491, at [*7] [(E.D. La. Mar. 27, 1997)] (citing Peter v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 950 (3d Cir. 1990)). Specifically, the employee gets the benefit of no-fault compensation, and the employer enjoys immunity from tort liability for damages. Id. The Supreme Court recognized this exchange when it explained:

[T]he [LHWCA is] not a simple remedial statute intended for the benefit of the workers. Rather, it was designed to strike a balance between the concerns of the longshoremen and harbor workers on the one hand, and their employers on the other. Employers relinquish their defenses to tort actions in exchange for limited and predictable liability. Employees accepted the limited recovery because they receive prompt relief without the expense, uncertainty, and delay that tort actions entail.

Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S. 624, 636, 103 S.Ct. 2045, 76 L.Ed.2d 194

(1983). Allowing state-law tort claims against employers would contradict the text of the statute and would

frustrate the Act's purpose by undermining the quid pro quo.

Indeed, several courts have recognized as much. The Fifth Circuit held in Rosetti v. Avondale Shipyards, Inc., that the LHWCA bars a "state law negligence claim," because "[u]nder the LHWCA, workers

compensation is the exclusive remedy for an injured employee against his employer." 821 F.2d 1083, 1085 (5th Cir. 1987). Further, in Hetzel v. Bethlehem Steel Corp., the Fifth Circuit found that "[p]reemption of [a] state [tort] act is required to avoid frustration of the policies and purpose behind the LHWCA." 50 F.3d at 366-67 (5th Cir. 1995). In Hetzel, the court reasoned that "[c]ongressional policy would be frustrated if an injured worker were allowed to collect benefits under the Act, and then sue his employer under a state statutory tort theory." Id. Similarly, the Third Circuit in Peter v. Hess Oil Virgin Islands Corp., concluded that "§ 905(a) [of the LHWCA] and the Supremacy Clause bar the Virgin Islands from imposing negligence liability on [a covered employer.]" 903 F.2d at 953. The Peter court specifically noted that Congress "intended that compensation, not tort [*437] damages, [was] to be the primary source of relief for workplace injuries for longshoremen against their employers." Id. at 952.

437

Moreover, this Court has held, in three separate cases, that the LHWCA preempts a state tort claim. See Krutz, 2021 WL 5893981, at [*7]; Hulin, 2020 WL 6059645, at [*7]; Cobb, 1997 WL 159491, at [*8] ("[A]pplication of Louisiana tort law, which plaintiff concedes is not a workmen's compensation remedy, does not further the availability of no fault compensation, and it obstructs the purposes of the LHWCA."). Other sections of this Court have held the same. See Barrosse, 563 F.Supp.3d at 557-60; Dempster [v. Lamorak Ins. Co.], 2020 WL 5071115, at [*7] [(E.D. La. Aug. 26, 2020)].

Because permitting plaintiff's state tort claims against Avondale as his employer would obstruct the purposes of the LHWCA, the Court finds that these claims are preempted and must be dismissed.

The opposing parties' arguments to the contrary are without merit. First, they dedicate much of their briefing to the contention that [plaintiff's] injuries occurred in the so-called "twilight zone" of concurrent state-federal jurisdiction, and that his state claims are therefore permissible. Consistent with prior district-court opinions, the Court rejects this argument.

The Supreme Court has long held that there are areas where a state may legislate concurrently with the LHWCA. In Sun Ship, Inc. v. Pennsylvania, the Supreme Court addressed the "single question" of "whether a State may apply its workers' compensation scheme to land-based injuries that fall within the coverage of the [LHWCA], as amended in 1972." 447 U.S. at 716, 100 S.Ct. 2432 (emphasis added). Extending its prior "twilight zone" jurisprudence, the Court unanimously held that it may, i.e., that the LHWCA does not preempt concurrent state workers' compensation remedies in these areas. Id. The Court reasoned that, in the 1972 amendments to the Act, Congress intended to "upgrade the benefits" available under inadequate state compensation regimes, by guaranteeing the option of federal compensation available under the LHWCA. Id. at 723, 100 S.Ct. 2432. Sun Ship and other "twilight zone" cases make clear that a state is not entirely precluded from providing workers' compensation remedies to workers covered by the LHWCA. Similarly, in Hahn v. Ross Island Sand & Gravel Co., the U.S. Supreme Court found that the LHWCA did not preclude a plaintiff's negligence claim brought pursuant to Oregon's workers' compensation statute. 358 U.S. 272, 273, 79 S.Ct. 266, 3 L.Ed.2d 292 (1959). The plaintiff in Hahn sought benefits through Oregon's compensation regime, but his employer "elected to reject them." Id. In these circumstances, Oregon's Workmen's

Compensation Act allowed the employee to bring a negligence action for damages. The Court expressly stated that the LHWCA "gave an injured waterfront employee an election to recover compensation under either the [LHWCA] or the Workmen's Compensation law of the State in which the injury occurred." Id. (emphasis added). Hahn does not, as the opposing parties contend, hold that the LHWCA permits ordinary tort claims. Rather, like Sun Ship, it holds that a plaintiff may elect between federal compensation under the LHWCA or state workers' compensation.

Unlike in Sun Ship and Hahn, plaintiff here has not brought his claims pursuant to a state workers' compensation regime. Instead, plaintiff asserts freestanding state tort claims against his [*438] employer. For the reasons already given, the LHWCA preempts these claims against Avondale.

438

Second, the opposing parties argue that preemption does not apply because plaintiff is not seeking benefits under the LHWCA. This Court has rejected this argument before, and it rejects it again. See Krutz, 2021 WL 5893981, at [*8] (rejecting plaintiff's contention that his claims are not preempted because he was not seeking LHWCA benefits); Hulin, 2020 WL 6059645, at [*7] (same). The Fifth Circuit has made clear that, if the LHWCA covers an employee's injury, his only remedy against an employer lies in workers' compensation. Rosetti, 821 F.2d at 1085. That plaintiff has not elected to pursue those benefits does not affect the preemptive power of the Act. Permitting the tort claim merely because plaintiff has foregone the LHWCA avenue would conflict with LHWCA's text and undermine the quid pro quo that Congress enacted.

Third and finally, the opposing parties passingly contend that a dismissal of plaintiff's claims against Avondale as his employer would violate due process by divesting them of a right in their accrued claims. They assert that such a result amounts to a denial of due process. Consistent with prior rulings, this Court finds that neither the retroactive nor preemptive effects of the LHWCA raise due-process concerns. See, e.g., Krutz, 2021 WL 5893981, at [*11]-12 (rejecting arguments that LHWCA preemption divested a worker of his

negligence claim in violation of due process). The opposing parties have given the Court no reason to reach a different result in this case, and have thus failed to carry their burden of establishing a due-process violation.

For these reasons, the Court finds that the LHWCA preempts plaintiff's state-law negligence claims against Avondale, in its capacity as plaintiff's employer. The Court grants Avondale's motion for summary judgment as to these claims.

Cortez, 597 F.Supp.3d at 969-72 (footnote omitted; emphasis in original).

This Court agrees with the thorough and careful reasoning set forth in Cortez and, accordingly, grants Avondale's motion for summary judgment as to Sentilles's occupational exposure claim.

2. Preemption of Sentilles's Claims Against Avondale Arising Out of His

Brother's Employment

Sentilles also raises a take-home exposure claim against Avondale related to his brother Thomas's employment at Avondale. Sentilles and Thomas, who shared a bedroom in the family home, both worked at Avondale at the same time in the summer of 1969. Avondale argues that Sentilles's take-home claim is preempted because he and his brother were coworkers and the exposures at home and work during the same time period cannot be apportioned between those covered and those not covered.

Cortez also involved a take-home exposure claim. Cortez, 597 F.Supp.3d at 971-76. In that case, the plaintiff's take-home claim involved exposures that occurred when he was a teenager and his older brother, who was employed by Avondale, allegedly brought asbestos fibers into the home. Id. at 971-72. The court there began its analysis of the question by looking to the language of the LHWCA:

The LHWCA covers "accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury." 33 U.S.C. § 902(2) (emphasis added). Similarly, the exclusivity [*439] provision of the LHWCA provides that the "liability of an employer prescribed in ... this title shall be exclusive and in place of all other liability of such employer to the employee." 33 U.S.C. § 905(a) (emphasis added); see also Rosetti, 821 F.2d at 1085 ("Under the LHWCA, workers['] compensation is the exclusive remedy for an injured employee against his employer." (emphasis added)).

439

Id.

Relying on this language, the court in Cortez held that because Cortez's take-home exposure claim as to his brother's work at Avondale, when Cortez was a teenager, did not arise out of, and did not occur in the course of, Cortez's own eventual and temporally disparate employment with Avondale, he was not deprived of a tort claim for non-employment injuries. Id. at 972. Thus, the court emphasized that the take-home exposure "predated and [was] unrelated to plaintiff's eventual work for Avondale." Id. As such, Cortez was not seeking to impose any liability as an employer (which would be preempted by the

LHWCA), "but instead, liability as a non-employer tortfeasor to a then-unrelated third party." Id. The court further noted, however, that a "plaintiff's exposure to his own clothes, and his own coworkers' clothes, on his own ride to and from work, during his own employment with Avondale, is covered by the LHWCA." Id. at 974.

This case is factually distinguishable from Cortez. Here, unlike in Cortez, Sentilles and Thomas were employed at Avondale shipyard at the same time. They started working at Avondale on virtually the same date (within two days of each other) and remained employed together at Avondale's shipyard until late July or early August 1969, when Thomas's employment ended. Sentilles continued to work at Avondale until 1972. Sentilles's take-home exposure claim related to Thomas's work at Avondale coincides with his own time at Avondale when he was exposed to asbestos in the insulation shop. Even after Sentilles left the insulation shop and continued to work at Avondale, he could have been exposed to asbestos through his interactions with coworkers, including his own brother Thomas. Thus, any exposure to Thomas's clothing was incidental to Sentilles's own employment at Avondale when the brothers were both employed there at the same time. The Court finds, then, that Sentilles's take-home or off-site exposures to asbestos arose out of and in the course of his employment at Avondale and are therefore covered by the LHWCA. See Barrosse, 563 F.Supp.3d at 552-55. Accordingly, Sentilles's take-home exposure claim, like his occupational exposure claim, is preempted by the LHWCA.

3. Estoppel of Avondale's Inconsistent Positions

Pelnor argues that Avondale should be estopped from asserting what it deems to be inconsistent positions in its pleadings. Pelnor points out that Avondale made crossclaims and third-party claims for virile share liability, which would only lie if Sentilles's claims accrued prior to 1980.[29] Hence, says Pelnor, Avondale's position that the date of injury was 2020 under the manifestation rule applied by federal law is at odds with the basis for its crossclaims and third-party claims.[30] As Avondale points out, however, the law allows parties to plead rights and defenses in the alternative. Indeed, Rule 8 of the Federal Rules of Civil Procedure states that a "party may set out 2 or more statements of a claim or defense alternatively [*440] or hypothetically" and that it "may state as many separate claims or defenses as it has, regardless of consistency." Fed. R. Civ. P. 8(d)(2)-(3). Thus, the rules expressly permit alternative pleading as well as the assertion of claims or defenses regardless of consistency. Therefore, the Court will not estop Avondale from asserting its LHWCA preemption defense.

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IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Avondale's motion for summary judgment (R. Doc. 123) is GRANTED, and Sentilles's state-law tort claims against it are DISMISSED WITH PREJUDICE as preempted by the LHWCA's exclusivity provision.[31] [1] R. Doc. 123.

[2] R. Docs. 156; 161. Defendants Union Carbide Corp. ("Union Carbide") and Bayer CropScience, Inc., as successor to Rhone-Poulenc AG Co. f/k/a Amchem Products, Inc., f/k/a Benjamin Foster Company ("Amchem") also opposed Avondale's motion. R. Doc. 163. Because Sentilles's claims against Union Carbide and Amchem have been dismissed (R. Doc. 215), the Court will not consider or discuss Union Carbide and Amchem's opposition to Avondale's motion for summary judgment.

[3] R. Doc. 163.

[4] R. Doc. 60 at 2-3.

[5] Id. at 1-20.

[6] R. Docs. 176-1 at 2; 123-4 at 3.

[7] R. Doc. 123-4 at 3-5.

[8] Sentilles originally alleged that he was exposed to asbestos when he worked at Avondale from May 1969 until 1972. R. Doc. 60 at 6. This Court granted Avondale's unopposed motion for summary judgment seeking dismissal of Sentilles's claim as it relates to his employment at Avondale after June 23, 1969. R. Doc. 214.

[9] R. Doc. 123-1 at 10. Sentilles also alleged secondary exposure related to his father's and other brother's employment at Avondale. R. Doc. 60 at 4-5. This Court granted Avondale's unopposed motions for summary judgment seeking dismissal of those claims because (1) Sentilles's father was not exposed to asbestos at Avondale and (2) Sentilles moved out of the family home before his other brother started working there. R. Doc. 214.

[10] R. Doc. 123-5 at 3-5.

[11] Id. at 3-4.

[12] Id. at 4-5.

[13] Id. at 8.

[14] Id. at 7.

[15] Id. at 7-9.

[16] R. Doc. 60 at 6-7.

[17] R. Doc. 123.

[18] R. Doc. 123-1 at 5-8.

[19] Id. at 8-10, 16-33.

[20] Id. at 10-16.

[21] R. Docs. 161 at 1-11; 156 at 1-17.

[22] R. Docs. 161 at 1-11; 156 at 1-17.

[23] R. Doc. 161 at 11-12.

[24] R. Doc. 156 at 17-21.

[25] R. Doc. 180 at 1-13.

[26] Id. at 13-17.

[27] Id. at 19-20.

[28] Sentilles argues that this Court must apply the first significant exposure rule to this issue because it applied that rule in resolving Pelnor's motion for summary judgment regarding the applicability of the Louisiana Worker's Compensation Act. R. Doc. 161 at 1. The federal law at issue here (the LHWCA), not the state law at issue in Pelnor's motion, requires the application of federal law. "The Erie doctrine does not apply ... in matters governed by the federal Constitution or by acts of Congress." Grantham v. Avondale Indus., Inc., 964 F.2d 471, 473-74 (5th Cir. 1992). Consequently, while in a diversity case such as this, federal courts are bound to look to the state's interpretation of its own law, they are not so bound on matters of federal law.

[29] R. Doc. 156 at 17.

[30] Id.

[31] This order renders moot Sentilles's motion to exclude Avondale's expert Christopher P. Herfel (R. Doc. 158) and Sentilles's motion for summary judgment on Avondale's government immunity defense (R. Doc. 159).

Sources

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