Jurisdiction: United States District Court for the Eastern District of Louisiana
This case arises from Plaintiff Nolan J. Lebouf Jr.’s alleged exposure to asbestos. The plaintiff specifically claims to have been exposed to asbestos during his work at the Avondale Shipyard in the 1970s and 1980s.
Plaintiff filed a petition for damages in state court against Avondale and others asserting liability for his asbestos exposure and resulting mesothelioma. In his petition, plaintiff asserted that Avondale negligently failed to warn and disclose or otherwise protect him from the risk of asbestos dust exposure. Avondale thereafter removed the action to Federal Court. In its notice of removal, Avondale contended that removal was proper because it was acting under an officer of the United States at all relevant times. Avondale also argued that because the vessels on which plaintiff worked were manufactured pursuant to contracts with the federal government, it was entitled to government contractor immunity established by Boyle v. United Techs. Corp., 487 U.S. 500 (1988), and the federal defense of derivative sovereign immunity as set forth in Yearsley v. W.A. Ross. Construction Co., 309 U.S. 18 (1940).
Plaintiff subsequently moved for summary judgment in his favor on the issue of whether Avondale has immunity for its alleged failure to warn or otherwise protect plaintiff from asbestos exposure by virtue of its status as a federal government contractor. Avondale opposed the motion.
Summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). “When assessing whether a dispute to any material fact exists, [the Court] consider[s] all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins., 530 F.3d 395, 398-99 (5th Cir. 2008) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). All reasonable inferences are drawn in favor of the nonmoving party, but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.” Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting 10A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2738 (2d ed. 1983)); see also Little, 37 F.3d at 1075 (noting that the moving party’s “burden is not satisfied with ‘some metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence” (citations omitted)). “No genuine dispute of fact exists if the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
Under Boyle, a defendant may “claim the government contractor defense” for design defect claims if “(1) the government must have approved ‘reasonably precise’ specifications; (2) the equipment must have conformed to those specifications; and (3) the supplier/contractor must have warned of those equipment dangers that were known to the supplier/contractor, but not to the government.” Kerstetter v. Pac. Sci. Co., 210 F.3d 431, 435 (5th Cir. 2000) (citing Boyle, 487 U.S. at 512).
In the context of failure-to-warn claims, the Fifth Circuit has applied a “modified Boyle test” in which government contractors are immune from liability for failure to warn only when “(1) the United States exercised discretion and approved the warnings; (2) the contractor provided a warning that conformed to the approved warnings; and (3) the contractor warned about dangers it knew, but the government did not.” Kerstetter, 210 F.3d at 438.
In the instant matter, the court initially found that Avondale has failed to establish its entitlement to Boyle immunity for plaintiff’s failure to warn claim. (See Crossland, 635 F. Supp. 3d at 501.) For instance, Avondale admitted it had discretion and the freedom to decide whether to warn its employees about the dangers of asbestos during the years in which plaintiff was employed at the shipyard and offers no evidence that the government was involved in Avondale’s decision not to issue warnings to its employees about the dangers of asbestos. See Id. at 502-03 (denying Avondale immunity for plaintiff’s failure-to-warn claim because “the record indicates that ‘no governmental discretion was exercised.'”). In addition, the court found that Avondale has failed to establish its entitlement to Boyle immunity or claims premised on Avondale’s failure to protect its employees from asbestos exposure. In that regard, Avondale admitted that its contracts with the government did not constrain it from implementing its own protocols to protect workers from asbestos contamination, and that it did not submit any of its policies or procedures for the safe handling and use of asbestos to the government. Accordingly, Avondale was not entitled to immunity under Boyle for claims that it failed to protect plaintiff from asbestos dust exposure. See Crossland, 635 F. Supp. 3d at 502 (holding that defendants are not entitled immunity for “plaintiff’s claims premised on defendants’ failure to implement additional safety measures to prevent the spread of asbestos.”)
Next the court considered whether Avondale was not entitled to Yearsley immunity. See Id. at 504-05. Under Yearsley, government contractors are immune from liability for “executing [the government’s] will” if (1) the contractor’s authority to perform was validly conferred by the government, and (2) the contractor did not exceed the authority conferred by its contract. 309 U.S. at 21. Avondale argued that it is entitled to Yearsley immunity because it executed the government’s affirmative requirements to use asbestos in the construction of federal vessels. But plaintiff expressly does not seek to impose liability for Avondale’s use of asbestos at the behest of the government. Rather, plaintiff seeks relief for Avondale’s failure to adopt adequate safety measures that would have protected him and other workers. See Crossland, 635 F. Supp. 3d at 504. As Avondale provided no evidence that the government authorized and directed its efforts to warn workers of, or protect them from, the dangers of asbestos, it is therefore not entitled to Yearsley immunity on plaintiff’s claims. See Id. at 505 (“[Avondale] here cannot claim immunity under Yearsley for [its] alleged negligent ‘failure to warn of the dangers of asbestos and failure to prevent the spread of asbestos.'” (quoting Adams, 2022 WL 4016749, at *12).
In view of the above, the court ultimately concluded that Avondale failed to meet its burden of identifying evidence that created a genuine dispute of material fact as to whether it is entitled to immunity as a federal contractor under either Boyle v. United Techs. Corp., 487 U.S. 500 (1988), or Yearsley v. W.A. Ross. Construction Co., 309 U.S. 18 (1940), for its failure to warn or otherwise protect plaintiff from asbestos dust exposure. Accordingly, the court found that plaintiff was entitled to summary judgment on these issues.
Read the full decision here.