Vedros v. Northrop Grumman Shipbuilding, Inc. (E.D. La., Apr. 24, 2014)

Our plain-English summary of Vedros v. Northrop Grumman Shipbuilding, Inc. (U.S. District Court, Eastern District of Louisiana, April 24, 2014).

Sally Gros Vedros died of mesothelioma. She sued several companies before her death, and her children joined the suit afterward. She claimed exposure in two ways. She washed the work clothes of her father, a welder at the Avondale shipyard from 1943 to 1976. She also worked in Avondale's purchase department from 1960 to 1963. Several defendants had removed the case to federal court under the federal officer removal statute, citing work on Navy vessels. The case went through an MDL in Pennsylvania and returned to the Eastern District of Louisiana. After the court dismissed all claims against General Electric and Foster-Wheeler and the turbine claims against Westinghouse, the plaintiffs asked to send the case back to state court. They argued that the federal officer basis for jurisdiction no longer existed and that the remaining state-law issues were complex. The court denied the motion. It found no novel or complex state-law issues, since solidary liability and virile shares are routinely handled by federal courts in Louisiana. It also noted that the case had been pending for years, discovery was closed, and it had already decided many motions.

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 24, 2014
• Docket: Civil Action No. 11-1198
• Stage: Jurisdiction, venue or removal
• State: Louisiana

Outcome. The district court denied the plaintiffs' motion to remand and kept the case in federal court under supplemental jurisdiction, ruling for the defendants (Amchem, Continental, Westinghouse, Avondale and the Avondale Interests) and against the plaintiffs.

What the court held. A federal court may keep state-law claims under supplemental jurisdiction after the federal-officer claims are dismissed. Here no novel or complex state-law issue was present, and the case had been pending for years, discovery was closed, and the court had already decided many motions.

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

The people and their exposure

• Sally Gros Vedros: mesothelioma; died

Who	Work	Where	When	Products
Sally Gros Vedros	purchase department worker (shipyards and maritime work)	Avondale, Louisiana	1960 to 1963
Sally Gros Vedros	daughter washing her father's work clothes (father a welder) (shipyards and maritime work); dust brought home	Avondale, Louisiana	1943 to 1976

The defendants

• Northrop Grumman Shipbuilding, Inc. (Avondale) (premises owner)
• Amchem (manufacturer)
• Continental Insurance Company (insurer)
• CBS Corporation (Westinghouse) (manufacturer)
• General Electric (manufacturer)
• Foster-Wheeler (manufacturer)
• OneBeacon America Insurance Company and American Employers Insurance Company (insurer)

Other decisions in this case

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

• Vedros v. Northrop Grumman Shipbuilding, Inc. (March 7, 2014). The court granted Avondale's and the Avondale Interests' motions for partial summary judgment and dismissed with prejudice the plaintiffs' intentional tort, fraud and conspiracy claims.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (March 14, 2014). The district court granted General Electric's motion for summary judgment and dismissed the plaintiffs' claims against GE with prejudice, because the plaintiffs lacked evidence that GE supplied or attached any asbestos-containing material.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (March 17, 2014). The court granted Westinghouse's summary judgment motion on the turbine claims, dismissing them with prejudice, and denied it on the micarta claims, which go forward.
• Vedros v. Northrop Grumman (June 8, 2015). The court granted the defendants' motions for partial summary judgment, dismissing the plaintiff children's Lejeune (bystander) mental anguish damages claim against Avondale, Eagle, Eagle's insurers and McCarty.
• Vedros v. Grumman (June 17, 2015). The court granted Avondale's motion for partial summary judgment, ruling that the plaintiffs had no claim against Avondale under Louisiana Civil Code articles 1821-1823 based on its insurance buy-back agreements.
• Vedros v. Grumman (June 18, 2015). The court denied the plaintiffs' motions to exclude the expert testimony of Danny Joyce and Dennis Paustenbach, so the defendants (Avondale and Amchem) won the motions.
• Vedros v. Grumman (June 18, 2015). The court denied Continental Insurance Company's motion in limine and ruled that Sally Gros Vedros's earlier deposition testimony could be used at trial against Continental, so the plaintiffs prevailed on the motion.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (June 25, 2015). The court denied Amchem's motion to exclude plaintiffs' industrial hygienist expert Frank Parker, so plaintiffs may present his testimony at trial; Amchem lost, and its motion for leave to reply was also denied.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (July 1, 2015). The court granted the plaintiffs' motion to strike seven opinions of Westinghouse's substitute expert, Dr. Gail Stockman, because they went beyond or contradicted the opinions of the deceased original expert, Dr. Sawyer; the plaintiffs won and Westinghouse lost.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (July 29, 2015). The court granted in part and denied in part the defendants' motions to strike opinions of Plaintiffs' substitute expert Dr. Kraus, striking several opinions and his rebuttal report to Dr. Stockman and keeping the rest.
• Vedros v. Northrop Grumman Shipbuilding, Inc. (August 4, 2015). The court granted in part and denied in part the defendants' motions to exclude Dr. Kraus: he was qualified and could testify on diagnosis and general causation, but could not give specific causation opinions based on the "every exposure above background" theory.

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.

VEDROS, ET AL

v.

NORTHROP GRUMMAN SHIPBUILDING, INC., ET AL., Section: J.

Civil Action No. 11-1198.

April 24, 2014.

United States District Court, E.D. Louisiana.

ORDER AND REASONS

CARL J. BARBIER, District Judge.

Before the Court are Plaintiffs' Motion to Remand (Rec. Doc. 320); Oppositions filed by Defendants Amchem (Rec. Doc. 326), Continental Insurance Company (hereinafter "Continental") (Rec. Doc. 327), CBS Corporation (hereinafter "Westinghouse") (Rec. Doc. 328), and Avondale and the Avondale Interests[1] (Rec. Doc. 329); and a Reply filed by Plaintiffs (Rec. Doc. 339). Having considered the motions, the parties' submissions, the record, and the applicable law, the Court finds, for the reasons expressed below, that the Motion to Remand should be DENIED.

PROCEDURAL AND FACTUAL BACKGROUND

This action arises from the death of Sally Gros Vedros ("Vedros") due to mesothelioma. Alton Gros ("Gros"), Vedros's father, worked at Avondale as a welder from 1943 to 1976, and Vedros claims to have spent many years washing her father's work clothes, which allegedly resulted in Vedros's secondary exposure to asbestos. Vedros also worked at Avondale from 1960 to 1963 in the purchase department, and she claims that she was directly exposed to asbestos while she worked at Avondale. Before her death, Vedros filed suit against multiple Defendants, and after Vedros's death, her children joined the suit as plaintiffs. Defendants Westinghouse, Foster-Wheeler, and General Electric removed the case to federal court based on the federal officer defense.[2]

In August 2011, the case was transferred to the United States District Court for the Eastern District of Pennsylvania as part of an MDL. In the MDL proceedings, Plaintiffs moved to remand the case to state court, but the MDL court found that federal jurisdiction was satisfied because the requirements of the federal officer removal statute had been met. In February 2013, the case was remanded from the MDL to this Court, where it was allotted to Chief Judge Vance in Section "R," transferred to Judge Engelhardt in Section "N," and finally transferred to the undersigned in Section "J." The parties have undergone extensive discovery in this case, including multiple depositions and expert reports. Over 300 documents have been filed in this matter in federal court. Discovery has been completed, and the Court has ruled that no further discovery shall be allowed without express permission of the Court. Through multiple status conferences and oral arguments in this matter, the Court has become intimately familiar with the facts of this case, and after ruling on eighteen (18) motions for summary judgment, the Court finds that this matter is ripe for trial. In resolving those motions, the Court dismissed all claims against General Electric and Foster-Wheeler, as well as the claims against Westinghouse based on its supplying turbines to Avondale.[3] As a result of the dismissal of those parties and claims, Plaintiffs have filed the instant Motion to Remand. PARTIES' ARGUMENTS

Plaintiffs argue that federal jurisdiction no longer exists over this case because the dismissal of all claims against General Electric, all claims against Foster-Wheeler, and the turbine claims against Westinghouse moots the federal officer defense, which is the basis for this Court's jurisdiction. Plaintiffs also argue that the Court should decline to exercise supplemental jurisdiction over the remaining claims because the legal issues in this case, specifically the issues of solidary liability and virile shares, involve complex questions of state law.

Amchem, Westinghouse, Avondale, the Avondale Interests, and Continental argue that the Court should exercise supplemental jurisdiction because the Court has already expended substantial judicial resources and the case is ripe for trial. They also point out that virile share liability is not a novel or complex issue that requires state court adjudication; rather, issues of virile share allotment and solidary liability have repeatedly been addressed by federal district courts sitting in Louisiana.[4]

LEGAL STANDARD

Although it is the general rule that where federal claims are dismissed before trial, a federal court should also dismiss pendent state claims, that rule "is neither absolute nor automatic." Newport Ltd. v. Sears, Roebuck and Co., 941 F.2d 302, 307 (5th Cir. 1991), cert. denied, 502 U.S. 1096 (1992). Rather, the federal court has discretion to exercise supplemental jurisdiction over the remaining state law claims. Id.; see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988). The court may decline to exercise supplemental jurisdiction pursuant to 28 U.S.C. § 1367 if:

(1) the claim raises a novel or complex issue of State law,

(2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction,

(3) the district court has dismissed all claims over which it has original jurisdiction, or

(4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

28 U.S.C.A. § 1367(c) (West 1990). In determining whether to exercise supplemental jurisdiction, the court must also balance "judicial economy, convenience, fairness, and comity." Batiste v. Island Records, Inc., 179 F.3d 217, 227 (5th Cir. 1999), cert. denied, 528 U.S. 1076 (2000) (internal citations omitted).

DISCUSSION

The Court finds that there are no novel or complex issues of state law present in this case such that the Court should decline to exercise supplemental jurisdiction. The Court is perfectly capable of adjudicating issues involving solidary liability and virile shares. See, e.g., Anderson v. Chieftain Int'l Corp., No. 01-638, 2002 WL 1363878 (E.D. La. June 20, 2002) (Barbier, J.); Liberty Mut. Fire Ins. Co. v. Fluor Enter., Inc., No. 08-5166, 2012 WL 255763 (E.D. La. Jan. 27, 2012) (Vance, J.); Rodman v. Restivo, No. 09-3395, 2010 WL 60188 (E.D. La. Jan. 5, 2010) (Duval, J.); Knight v. RPM Pizza, Inc., No. 99-2894, 2000 WL 869503 (E.D. La. June 28, 2000) (Clement, J.).

Additionally, this case is similar to several other cases where district courts in this circuit have properly exercised supplemental jurisdiction where the matters have been pending in federal court for several years, extensive discovery has occurred and numerous documents have been filed, discovery is closed, the case is ripe for trial, there are no novel or overly complex issues of state law, and the district court has already expended significant judicial resources and decided multiple dispositive motions. See, e.g., Newport, 941 F.2d at 307-08; Batiste, 179 F.3d at 227-28; Brookshire Bros. Holding, Inc. v. Dayco Prods. Inc., 554 F.3d 595, 602-04 (5th Cir. 2009), cert. denied, 557 U.S. 936 (2009); Doddy v. Oxy USA, Inc., 101 F.3d 448, 455-56 (5th Cir. 1996); Port of S. La. v. Tri-Parish Indus., Inc., 927 F.Supp.2d 332, 338-39 (E.D. La. 2013) (Milazzo, J.); Chauvin v. Radioshack Corp., No. 08-4255, 2009 WL 961247, at [*2]-3 (E.D. La. Apr. 8, 2009) (Africk, J.), aff'd, 332 Fed. App'x 994 (5th Cir. 2009). Therefore, the Court declines to remand this case to state court.

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Plaintiffs' Motion to Remand (Rec. Doc. 320) is DENIED.

[1] "Avondale" refers to Defendant Northrop Grumman Shipbuilding, Inc, and the "Avondale Interests" refers to Defendants Albert L. Bossier, Jr., J. Melton Garrett, and OneBeacon America Insurance Company and American Employers Insurance Company, as the alleged insurers of C. Edwin Hartzman, Hettie Dawes Eaves, Henry "Zac" Carter, James Bull, Roy Barkdull, and Ewing Moore.

[2] Those Defendants removed this action to federal court pursuant to 28 U.S.C. § 1442(a)(1), the "Federal Officer Removal Statute," which states that an action filed in state court may be removed to federal court when that action is against:

[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or any agency thereof, in an official or individual capacity, for or relating to any act under color of such office ... .

28 U.S.C.A. § 1442(a)(1) (West 2013). Here, the removing Defendants successfully argued that because Vedros alleged that she was exposed to asbestos from all vessels and equipment present at Avondale during the period of construction of several United States Navy vessels, under the direction of the Navy, the Defendants were acting under the direction of the United States at the time of the alleged exposure to Gros and/or Vedros.

[3] The claims against Westinghouse based on its supplying micarta board to Avondale remain viable.

[4] Continental alternatively argues that the Court retains jurisdiction because the Avondale Interests have also asserted the federal officer defense. Avondale and the Avondale Interests have made no such argument. Because the Court finds that the exercise of supplemental jurisdiction is appropriate in this case, it need not resolve Continental's alternative argument.

Sources

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