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Partial Summary Judgment Granted, Rejecting Government Immunity Defense of Shipyard defendants

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United States District Court for the Eastern District of Louisiana   

Plaintiff Linda Crossland alleged take-home exposure to asbestos from her husband’s clothing while he was employed at the Avondale Shipyards, where he was responsible for constructing and repairing vessels.  Plaintiff sued numerous defendants, alleging they negligently failed to warn her husband about the dangers of asbestos and failed to provide him with safe premises.  Avondale removed the action to federal court, relying on “government contractor immunity” established by Boyle and the “derivative sovereign immunity” defense set forth in Yearsley.  Plaintiff filed a motion for partial summary judgment with regard to the government immunity defenses advanced by Avondale and Hopeman Brothers, Inc.   

With respect to failure-to-warn claims, the Fifth Circuit has applied the following version of the Boyle test: “(1) the United States exercised discretion and approved the warnings; (2) the contractor provided a warning that conformed to the approved warnings; (3) the contractor warned about dangers it knew, but the government did not.”     

The Court concluded that Avondale failed to establish that it was entitled to government contractor immunity.  The Court rejected Avondale’s argument that the government requiring warnings related to radiation and flammable liquid risks, in addition to providing a maximum threshold for asbestos exposure, demonstrated that the government “exercised meaningful discretion in the decision of whether to issue warnings related to asbestos.”  Furthermore, the Court noted that the government did not appear to be involved in the determination of which warnings, if any, were to be given to Avondale employees.  That is to say, “no governmental discretion was exercised.”    

Under Yearsley, a government contractor cannot face liability as long as “(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.”  The Court ultimately found that Avondale’s decisions regarding safety measures were not “directed or authorized” by the government.  Accordingly, the Court granted Plaintiff’s motion for partial summary judgment.    

Read the full decision here