Remand Granted After Finding that Government Did Not Direct Safety Operations of Shipyard Defendant U.S. District Court for the Eastern District of Louisiana, January 19, 2018

LOUISIANA — The plaintiffs brought this action against several defendants including Huntington Ingalls (Ingalls) alleging that their decedent, Tyrone Melancon, was exposed to asbestos for which the defendants were liable. The plaintiffs asserted that Melancon developed mesothelioma from exposure to asbestos while working at the Avondale Shipyard from 1965-2002.

Ingalls. along with others, removed the case to U.S. District Court on federal officer removal. The plaintiffs moved for remand arguing that defendants were not entitled to such removal. According to the court, removal under federal officer is proper when “1) the defendant is a person within the meaning of the statute and 2) the defendant acted pursuant to a federal officer’s direction and 3) that a causal connection exists between the defendant’s actions under the color of federal office and the plaintiff’s claims.” The court quickly found that Ingalls fit the statutory meaning of person. The real question to be decided centered on the causation element of the statute. Relying on the Fifth Circuit’s decision in Bartel, the court reasoned that discretionary acts do not lend to removal on negligence claims. Essentially, the test becomes whether the federal officer exerted control of the defendant’s safety protocols. In this matter, the plaintiffs argued that Ingalls’ alleged failure to properly handle asbestos at the shipyard injured Melancon. The defendant’s possession of asbestos alone was irrelevant to the plaintiff’s case. After discussing the facts, the court concluded that Ingalls had not put forth evidence that the government controlled the safety programs at the shipyard. The casual connection was not met and therefore remand was proper.

Ingalls countered and took the position that removal was still proper because the plaintiff had asserted strict liability claims against co-defendant Foster Wheeler. The court disagreed based on the evidence. Melancon had testified that he “worked exclusively in the Electrical Department” at Avondale. Although Foster Wheeler boilers may have been in a Destroyer Escort, the plaintiff had testified that he was not present in that engine room. There was no evidence that Foster Wheeler products were onboard any of the other U.S. Navy ships where the plaintiff worked.

Accordingly, remand was granted.

Read the full decision here.

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