United States District Court for the District of Louisiana
In this asbestos action, the plaintiff, Wilson Goffner Sr., alleged he developed lung cancer as a result of his work as a shipfitter at the Avondale Shipyard from 1974 to 1997. The plaintiff commenced this action by asserting a failure-to-warn cause of action. Avondale subsequently removed the matter to federal court.
The plaintiff subsequently filed a motion to remand, wherein he argued that Avondale did not satisfy the ‘colorable’ defense prong of the Federal Officer Removal statute. Following Avondale’s opposition, the plaintiff argued in his reply that Avondale could not meet the second and fourth Boyle prongs.
Ultimately, the court denied the plaintiff’s motion to remand. While “1442(a) must be liberally construed, whether federal officer removal jurisdiction exists must be assessed ‘without a thumb on the remand side of the scale.’” Under the second prong of acting under the direction of a federal officer, “Avondale need only show it acted under the direction of a federal officer when it used asbestos-containing products . . . Avondale need not show the alleged failure to warn and failure to prevent the spread was precisely dictated by a federal officer’s directive.” The court cited Broussard v. Huntington Ingalls, Inc., which found that Avondale met this prong as the United States government contracted with Avondale to build ships, a “task that the federal government otherwise would itself have had to perform.” In this matter, Avondale proffered evidence that the United States Navy contracted with it to build ships, and that the government contracts required the use of asbestos.”
Under the fourth prong of having a colorable federal defense, Avondale argued it met the governmental contractor defense under Boyle v. United Techs. Corp., among other defenses. The court found that Avondale’s governmental contractor defense under Boyle was colorable. At this stage, “an asserted federal defense is colorable unless it is immaterial and made solely for the purpose of obtaining jurisdiction or wholly insubstantial and frivolous.” Following Latiolais v. Huntington Ingalls, Inc.: “Avondale must demonstrate (1) the United States approved reasonably precise specifications as to asbestos; (2) Avondale’s use of asbestos conformed to those specifications; and (3) Avondale warned the United States about the dangers in the use of asbestos that were known to it but not to the United States.”
The court found that Avondale met all three factors. First, Avondale proffered affidavits noting that, among other things, “the U.S. Navy mandated the use of asbestos on the vessels constructed by Avondale and that Avondale could not deviate from the precise materials required without prior approval.” Second, there have been no assertions that Avondale did not comply with the specifications. Third, Avondale proffered the same affidavit as in Latiolais, where the court found that “Avondale’s evidence tends to support that the federal government knew more than Avondale knew about asbestos-related hazards and related safety measures.” Thus, the plaintiff’s motion to remand was denied.
Read the full decision here.