LOUISIANA – The plaintiff, Denis Schexnayder, alleged that he contracted lung cancer as a result of exposure to asbestos from multiple defendants, including Avondale. The plaintiff brought suit against Avondale for its failure to warn about asbestos hazards and provide adequate safety equipment and procedures. The plaintiff alleged that he and his father performed work at the Avondale shipyard pursuant to contracts between Avondale and the United States government for the construction of vessels. These contracts included requirements that Avondale use asbestos-containing materials.
On July 19, 2019, Avondale removed this case to federal court asserting jurisdiction under the federal officer removal statute. The plaintiff moved to remand, arguing that the defendant’s removal was untimely and that the court lacked jurisdiction under the federal officer removal statute. The plaintiff took the position that Avondale cannot show that the government had any control over its safety procedures or its obligation to warn of the dangers of asbestos. Relying on the Latiolais decision, Avondale argued that recent developments in Fifth Circuit case law warrant a different result.
The court granted the plaintiff’s motion to remand. The court noted that this case is one of numerous others in which Avondale has attempted removal under the federal officer removal statute, 28 U.S.C. Section 1442(a)(1) and, therefore, there exists many Fifth Circuit cases interpreting the statute’s causal nexus requirement. Currently, Fifth Circuit law is clear that when the plaintiff’s claim is for negligent failure to warn, train, and adopt safety procedures regarding asbestos, removal is inappropriate because the nexus requirement is not met. The court found Avondale’s argument regarding recent case law unconvincing. It found that although the court granted a rehearing in Latiolais, no opinion had been issued yet. Further, the court held that although the government required Avondale to use asbestos-containing material, Avondale was still free to adopt safety measures to protect its employees when handling the dangerous materials. Consequently, the plaintiff’s motion to remand was granted.
Read the case decision here.