Timely Removed Take-Home Exposure Case Remanded for Failure to Establish Colorable Federal Defense

The plaintiffs filed suit against several defendants including Avondale alleging that their decedent, Ms. Blouin, contracted mesothelioma after washing the laundry of her husband’s work clothes. Victor Blouin worked as an electrician for Avondale onboard two government vessels from April 1972 until August 1972. The plaintiffs’ claims were brought in negligence and not for strict liability. Avondale removed the case to federal court on March 28, 2017, 26 days after receiving a copy of the deposition transcript. The plaintiffs’ moved to remand.

The plaintiffs took the position that the removal was untimely as it was filed more than 30 days from the deposition of Victor Blouin which occurred on February 17 and 20, 2017. The plaintiffs contended that the removal should have been filed within 30 days of the deposition rather than within 30 days of having received the transcript. The court reviewed the statute which provided for removal when “if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion order, or other paper from which it may be first ascertained that the case is one which is or has become removable.” Reviewing the Huffman case, the court noted that it is the deposition testimony itself that started the countdown for removal. Further, Avondale was present at the deposition in February. Accordingly, Avondale was on notice of the removability of the case the day of the deposition. However, the court pointed out that § 1446 (b)(3) does not say “writing” but rather uses the phrase “other paper.” Another case S.W.S. Erectors, found that a deposition transcript establishes “other paper.” The Huffman case did not explore whether a transcript as an “other paper” would reset the clock for a second removal. As that particular issue had not been decided, the court found the removal timely.

The court then turned to the merits of removal. Avondale argued that it was required by federal contract to use asbestos containing products during the building of the ships. On the other hand, the plaintiffs took the position that the defendant still failed to warn of the dangers of asbestos. In short, the plaintiffs argued that Avondale could not assert the federal defense because nothing illustrated that the federal government controlled the safety measures Avondale could have taken with respect to its asbestos products. Additionally, the plaintiffs argued that it was not pursuing a strict liability claim but rather a claim in negligence. According to the plaintiffs, a huge distinction exists in strict liability and negligent failure to warn claims when “a contractor seeks to remove a case and avail itself to the contractor immunity defense.” The court noted that even where a defendant can show it operated under the terms of a federal officer’s direction, removal is not proper unless it can also show “a causal connection between the defendant’s actions under color of a federal office and the plaintiff’s claims.” Relying on several past decisions, the court noted that Avondale cannot show the required nexus between the federal officer’s direction and the alleged actions Avondale took that caused injury. As to negligence claims, case law had previously held that removal was not proper when a defendant had free range on “discretionary” issues outside of federal interference at the shipyard. Avondale argued that the nexus requirement fundamentally changed when Congress amended § 1442 (a)(1) to expand the removability of cases. According to Avondale, the cases the court relied upon were “pre-amendment” cases. The court was not persuaded. The Zeringue case was on point according to the court. That case acknowledged the expansion of removability but expressly did not attempt to change the law with respect to negligence claims sounded in failure to warn. The court was not persuaded by Avondale’s arguments and noted that without a federal defense, jurisdiction is nonexistent under Article III of the constitution. And clearly, the Congressional amendments did not affect Article III.

Accordingly, the case was remanded to state court.

Read the full decision here.