Remand Affirmed Due to Lack of Causal Nexus in Take-Home Exposure Case U.S. Court of Appeals, Fifth Circuit, March 16, 2018

LOUISIANA — The Legendre brothers filed suit in Louisiana State Court on behalf of their sister, Mary Jane Wilde, who died from complications related to mesothelioma. Their father, Percy Legendre, worked at a shipyard owned and operated by Huntington Ingalls, Inc. (Avondale) and was allegedly exposed to asbestos. The plaintiffs further alleged that Mary Jane was exposed to asbestos via fibers that were on her father’s work clothes and this exposure caused her to develop mesothelioma.

Defendant Avondale invoked the federal officer removal statute and removed the case to the Eastern District of Louisiana. The District Court subsequently remanded the case back to state court, holding that Avondale failed to show the required “causal nexus” to support federal jurisdiction.

Avondale appealed the remand. Under the statute, an action “against or directed to…any officer of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office” may be removed to federal court. To remove, a defendant must show “(1) that it is a person within the meaning of the statute, (2) that it has a colorable federal defense, (3) that it 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 district court held that Avondale could not meet the casual nexus prong and therefore did not examine the other elements of the statute.

The appeals court held that the failure to warn, train, and adopt safety measures regarding asbestos was “private conduct that implicated no federal interest” and therefore an extension of the statute to allow defendants to remove would have “stretched the causal nexus requirement to the point of irrelevance.”  Even though the federal requirements for shipbuilding required asbestos insulation, and the federal government oversaw construction to ensure that Avondale built the tugs to the government’s specifications, nothing about the arrangement suggested that Avondale was not “free to adopt the safety measures the plaintiffs now allege would have prevented her injuries.” Absent such a conflict between federal direction and the plaintiffs’ state-law claims, remand is required.

The order of the district court was affirmed and the case remanded back to state court.

Read the full decision here.

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