Elements for Removal Found Under Federal Officer Jurisdiction in Take-Home Mesothelioma Case U.S. District Court, E.D. Louisiana, September 25, 2018
LOUISIANA — The plaintiff filed suit against several defendants including Kaiser Aluminum (Kaiser) and Huntington Ingalls (Avondale) alleging her mother, Dolores Punch, contracted mesothelioma from exposure to asbestos while washing the work clothes of her husband and son. Mr. Punch worked as a pipefitter and welder at Avondale Shipyard from 1948-1960 and at Kaiser Aluminum from 1961-1967 handling the same material. The decedent’s son also worked as a helper and pipefitter at Avondale from 1976-1979. Avondale removed the suit to federal court asserting the Federal Officer Removal Statute.
The court quickly began its analysis to determine whether 1) that the person is within the meaning of the statute 2) that it has a colorable federal defense 3) that is acted pursuant to a federal officer’s directions and 4) that a casual nexus exists between its actions under color of federal office and the plaintiff’s claims. The court delineated the facts of this matter to the above standard and found:
Avondale is a person under the statute. The plaintiff did not dispute that the meaning of person includes both private persons and corporate entities. According to the court, Avondale has a colorable federal defense. At this stage, the removing party need not prove the defense but rather need only illustrate that it has a colorable defense. Relying on the standard set forth in the Boyle decision, the Court noted that Avondale had successfully asserted the “contractor defense”. As for whether the defense applies, the plaintiff argued generally that the government contractor defense is applicable in design or defect cases and not in failure to warn case. The court was not persuaded as the Fifth Circuit had resolved that issue and decides that the defense applies to both defect and failure to warn cases. The plaintiff also raised the issue that she only made her failure to warn case against the manufacturers in this case and not against Avondale. However, the court pointed out that the plaintiff’s own petition contradicted her position by asserting failure to warn against the defendants generally. The court was persuaded that Avondale had illustrated it built ships in accordance with the contracts of the federal government. Moreover, Avondale warned the government of the dangers of asbestos and proved this through use of affidavits. As to whether Avondale acted pursuant to the Federal Officer’s direction, the court was equally satisfied Avondale met the element. The court noted the plaintiff’s conclusory assertions to the contrary. Finally, as to the causal nexus element, the Court recognized that the plaintiff’s request to amend her strict liability claim against Avondale occurred after the removal. The causal nexus element is met in the strict liability claims when the defendant shows it used asbestos pursuant to its contractual obligations. However, when the complaint is lodged in negligence for failure to warn removal may be inappropriate. The plaintiff argued that she did not file for strict liability and will amend the complaint if necessary. However, the court found the opposite in plaintiff’s already amended complaint. Recognizing that plaintiff desires to amend to avoid the fatal issue as to remand, the court found that at the time of removal strict liability claims existed. Therefore, the Motion to Remand was denied.