Government Contractor Defense Inapplicable to Plaintiff’s Failure to Warn and Prevent the Spread of Asbestos Claims

United States District Court for the Eastern District of Louisiana, October 12, 2022

In this asbestos action, Plaintiff Ruby Lee Marie Falgout (“Plaintiff”) alleged take-home exposure from laundering her husband’s clothes while he worked around Hopeman employees cut and installed asbestos wall board at the Avondale Shipyards (“Avondale”). The plaintiff filed a motion for partial summary judgment barring Avondale from availing itself of the government contractor defense. The plaintiff contended that Avondale’s failure to warn was discretionary. The plaintiff also argued that the court should follow Adams v. Eagle, Inc. and Broussard v. Huntington Ingalls, Inc., where the courts found that Avondale could not use the government contractor defense. Avondale argued that it should be allowed to avail itself of the Yearsley and Boyle defenses.

Under Boyle, a government contractor can be immune from failure to warn claims under state law when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” After discussing the case law within the Fifth Circuit, the court explained that “failure to warn claims requires three elements: “(1) the federal government exercised discretion and approved warnings for the product; (2) the warnings the defendant provided about the product conformed to the federal government specification; and (3) the defendant warned the federal government about dangers known to the defendant but not the government.”

Moreover, the Broussard court found that Avondale could not use the government contractor defense as “[t]here was no evidence that the government was involved in the decision to give or not give warnings to Avondale employees nor was there evidence that the contracts constrained Avondale from issuing warnings.” The Adams court similarly found that Avondale could not use the government contractor defense under Boyle

With regard to the government contractor defense under Boyle, the court found that summary judgment was appropriate. As to the failure to warn claim, the court instructed that a defendant “must provide evidence of a government decision on the specific issue of a warning.” On that front, the court found that “Avondale has not carried its burden to demonstrate the existence of a government specification requiring it to provide or not provide warnings to its employees about asbestos.” As to the failure to prevent the spread of asbestos claim, the court noted that “Fifth Circuit precedent requir[es] more than minimum safety and health standards to meet the reasonably precise specification requirement under Boyle. As such, the court held that Avondale had not met its burden since “the contracts at issue here only include a minimum safety and health standard and because Avondale has not provided any evidence that the government exercised discretion in approving more precise specifications for its use and storage of asbestos.”

The court also analyzed the government contractor defense under Yearsley. At issue here is “whether the government authorized and directed Defendants not to warn, provide protection, or implement decontamination protocols.” Here, the court found that “Avondale’s warnings, storage, and safety policies regarding asbestos are acts separate from the act that the government authorized: the use of asbestos in building government ships for the United States military.” As such, the court held that a derivative sovereign immunity claim would not “shield against negligence separate from acts authorized by the government.” Therefore, Boyle and Yearsley are not applicable to the plaintiff’s claims. Thus, the motion for partial summary judgment as to Avondale was granted.

Read the full decision here