Thompson v. Huntington Ingalls Incorporated (2023)

Our plain-English summary of Thompson v. Huntington Ingalls Incorporated (U.S. District Court, Eastern District of Louisiana, March 24, 2023).

Velma Lee Thompson sued Avondale (Huntington Ingalls) and other defendants in Louisiana state court. She alleged she developed mesothelioma from secondhand asbestos exposure: family members worked at Avondale Shipyard in Westwego, Louisiana, and she washed their dust-covered clothing. They worked there at various points in 1970 and 1971. She later died, and her children were substituted as plaintiffs. Avondale removed the case to federal court under the federal officer removal statute, stating that most vessels then under construction were federal vessels built under Navy, Coast Guard and Maritime Administration direction. Thompson asked the court to send the case back to state court, arguing her exposure was not sufficiently connected to Avondale's actions under federal direction. The only disputed question was whether her exposure was related to acts taken under a federal officer's direction. The court denied the motion. It found that 35 of 37 vessels under construction in those years were federal vessels, so her family members were likely exposed to asbestos products destined for them. That met the Fifth Circuit's standard.

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: March 24, 2023
• Docket: Civil Action No. 22-1365
• Stage: Jurisdiction, venue or removal
• State: Louisiana

Outcome. The court denied plaintiff Velma Lee Thompson's motion to remand, keeping the case in federal court under the federal officer removal statute, a win for Avondale (Huntington Ingalls) and its co-defendants.

What the court held. Under the federal officer removal statute, a defendant satisfies the 'related to' requirement by showing the plaintiff was likely exposed to asbestos being used under a federal officer's direction, with no direct causal nexus required.

Issues decided: Government Contractor Defense and Removal, Take-Home Exposure, Venue, Removal and Transfer.

The people and their exposure

• Velma Lee Thompson (family member): mesothelioma; died

Who	Work	Where	When	Products
Velma Lee Thompson	washed clothing of family members who worked at the shipyard (shipyards and maritime work); dust brought home	Avondale Shipyard, Westwego, Louisiana	1970-1971

The defendants

• Huntington Ingalls Incorporated (Avondale) (employer)
• Hopeman Brothers, Inc.
• Liberty Mutual Insurance Company (as alleged insurer of Wayne Manufacturing Corp.) (insurer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Latiolais v. Huntington Ingalls, Incorporated (U.S. Court of Appeals, Fifth Circuit, 2020). The en banc Fifth Circuit vacated the district court's order remanding the case to state court and remanded for further proceedings in federal court, ruling for Avondale (Huntington Ingalls) and against Latiolais on removal.
• Ragusa v. Louisiana Ins. Guar. Association (U.S. District Court, Eastern District of Louisiana, 2021). The court denied plaintiff Frank Ragusa's motion to remand, holding that defendants Huntington Ingalls and Albert Bossier properly removed under the federal officer removal statute and that removal was timely.
• Bourgeois v. Huntington Ingalls Inc. (U.S. District Court, Eastern District of Louisiana, 2020). The district court denied plaintiff Bourgeois's motion to remand, holding that Avondale (Huntington Ingalls) and Bossier timely and properly removed the case under the federal officer removal statute.

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.

VELMA LEE THOMPSON,

v.

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

Civil Action No. 22-1365.

March 24, 2023.

United States District Court, E.D. Louisiana.

ORDER

GREG GERARD GUIDRY, District Judge.

Before the Court is a Motion to Remand filed by Plaintiff, Velma Lee Thompson.[1] Defendant, Huntington Ingalls Incorporated ("Avondale") filed an opposition,[2] with which codefendants Hopeman Brothers, Inc. and Liberty Mutual Insurance Company (as alleged insurer of Wayne Manufacturing Corp.) joined and adopted.[3] Plaintiff filed a reply.[4] For the following reasons, the motion to remand is DENIED.

FACTUAL BACKGROUND

This matter was filed in state court on September 20, 2021, by Ms. Thompson alleging that secondhand asbestos exposure from her family members who worked at Avondale Shipyard in Westwego, Louisiana, caused her to be diagnosed with mesothelioma.[5] According to Ms. Thompson, she was exposed to asbestos dust while washing the clothing of several family members during their employment.[6] Ms. Thompson testified in her deposition on April 22, 2022, that she was not sure what type of work her family members did at the shipyard with specificity, but that they came home covered in dust, which she then shook off and breathed in.[7] Ms. Thompson's family members worked at the shipyard at various points in 1970 and 1971.[8]

Avondale filed its notice of removal pursuant to the federal officer statute on May 16, 2022.[9] In that notice of removal, Avondale declared that Ms. Thompson's family members handled the type of asbestos products destined for federal vessels.[10] In addition, during the time period that Ms. Thompson's family members worked at the shipyard, "35 of the 37 vessels under construction at Avondale were Federal Vessels."[11] Those vessels, according to Avondale, were constructed pursuant to a federal contract and under the direction of the U.S. Navy, Coast Guard, and Maritime Administration ("MARAD").[12] Ms. Thompson filed the instant motion to remand asserting Avondale did not make a showing that Ms. Thompson's exposure was sufficiently related to, connected or associated with Avondale's actions under federal officer's directions.[13]

LAW AND ANALYSIS

Federal courts are courts of limited jurisdiction,[14] possessing "only that power authorized by Constitution and statute, which is not to be expanded by judicial decree."[15] Federal courts "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum."[16] Courts must interpret factual disputes in favor of retaining federal jurisdiction in evaluation of removal under the federal officer removal statute.[17]

As it stands today, the federal officer removal statute allows the removal of civil and criminal actions brought against "any officer (or any person acting under that officer) of the United States ... in an official or individual capacity, for or relating to

any act under color of such office."[18] To remove under the federal officer statute, the defendant bears the burden of satisfying a four-prong analysis as established by the Fifth Circuit.[19] The defendant must show that: (1) it has a colorable federal defense; (2) it is a "person" within the meaning of the statute; (3) it acted pursuant to a federal officer's direction; and (4) the charged conduct is connected or associated with an act pursuant to a federal officer's directions.[20] There is no dispute between the parties as to three of the four prongs of this analysis. The sole dispute is whether Ms. Thompson's exposure was related to, or connected or associated with, acts pursuant to a federal officer's direction. The "related to" standard, is broad in its application with no requirement for a direct causal nexus, and has been found in cases where a plaintiff "was likely exposed to asbestos being used under the direction of a federal officer."[21]

In this matter, Ms. Thompson's family members worked at the shipyard in 1970 and 1971. During that time, 35 of 37 of the vessels constructed at the shipyard were federal vessels. Avondale asserts, and this Court agrees, that based on the facts presented it is likely that Ms. Thompson's family members were exposed to or worked with asbestos products destined for those federal vessels. While some of the asbestos products encountered by Ms. Thompson through her family members were possibly destined for ships other than federal vessels, the record supports a finding that the majority of the vessels under construction at the shipyard in 1970 and 1971 were federal vessels. Ms. Thompson objects to a broad interpretation of the Fifth Circuit's "related to" standard, arguing that such an expansive reading would lead to absurd results, because any claim related to exposure while a federal vessel is present would be removable to federal court. This broad reading and outcome, Ms. Thompson argues, is contrary to Congress's intent and the scope of the statute. While this argument might be inviting on a policy level, the statutory language does not require a direct causal nexus in order to justify removal. Instead, the Fifth Circuit has instructed that the defendant need only prove the plaintiff "was likely exposed to asbestos being used under the direction of a federal officer."[22] Avondale has met that standard, and therefore has satisfied the requirements for removal under the federal officer removal statute. Accordingly, Plaintiff's motion to remand is DENIED.

CONCLUSION

For the foregoing reasons, IT IS ORDERED that Plaintiff's motion to remand is DENIED.

[1] R. Doc. 12. Ms. Thompson has since passed away. Her children, Allen Ancar and Toshiba Aisha Ancar, have been substituted in her place. R. Doc. 33.

[2] R. Doc. 14.

[3] R. Doc. 16.

[4] R. Doc. 27.

[5] R. Doc. 1-2.

[6] Id.

[7] R. Doc. 1-3.

[8] Id.

[9] R. Doc. 1.

[10] Id.

[11] Id. at ¶5.

[12] Id. at ¶¶10 and 11.

[13] R. Doc. 12-1.

[14] Guadalupe-Blanco River Auth. v. City of Lytle, 937 F.2d 184, 185 (5th Cir. 1991); Rasul v. Bush, 541 U.S. 466, 289, 124 S.Ct. 2686 (2004).

[15] Rasul, 542 U.S. at 489.

[16] Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

[17] Ragusa v. Louisiana Ins. Guaranty Ass'n, 573 F.Supp.3d 1046, 1051 (E.D. La. Nov. 23, 2021) (citing Schnexnayder v. Huntington Ingalls, Inc., No. 20-775, 2020 WL 3970159, at * 3 (E.D. La. July 14, 2020); Louisiana v. Sparks, 978 F.2d 226, 232 (5th Cir. 1992)). [18] 28 U.S.C. § 1442 (a)(1).

[19] Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020).

[20] Id.

[21] Ragusa, 573 F.Supp.3d at 1052; Latiolais, 951 F.3d at 296; See Bourgeouis v. Huntington Ingalls Inc., 2020 WL 2488026 (E.D. La. May 14, 2020) (finding that a mail carrier's work delivering mail all over a shipyard likely exposed him to asbestos required and destined for a federal vessel, wherein six of the twenty-six vessels under construction at the yard were federal vessels). [22] Ragusa, 573 F.Supp.3d at 1052; Latiolais, 951 F.3d at 296.

Sources

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