Adams v. Eagle, Inc.

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

ORA JEAN ADAMS, CIVIL ACTION Plaintiff VERSUS NO. 21-694 EAGLE, INC. ET AL. SECTION “E” (4) Defendants

ORDER AND REASONS Before the Court is a motion for summary judgment filed by Ora Jean Adams (“Plaintiff”) against Huntington Ingalls, Inc. (“Avondale” or “Defendant”).1 Avondale opposes the motion.2 The Court held oral argument on the motion on August 18, 2022.3 BACKGROUND This personal injury action is based on Plaintiff’s alleged exposure to asbestos.4 Plaintiff’s state court petition alleges two sources of exposure to asbestos. First, Plaintiff contends her husband, Lionel Adams (“Mr. Adams”), was exposed to “dangerously high levels of asbestos fibers” at Avondale’s New Orleans area shipyards from approximately 1972 to 1979.5 Mr. Adams worked at Avondale as a pipefitter and welder on various vessels.6 In his work, Mr. Adams used asbestos-containing fire blankets and worked around insulators cutting asbestos-containing insulation to fit around pipes.7 This work created dust that got on his clothes, which Mr. Adams wore from work to his home, where Plaintiff would shake out his clothes before laundering them.8 Second, from 1970 to 1972,

1 R. Doc. 105. 2 R. Doc. 140; see also R. Doc. 202. 3 R. Doc. 185. 4 R. Doc. 1-2 at p. 2, ¶ 3. 5 Id. at ¶¶ 4, 12. 6 R. Doc. 1 at p. 3. 7 Id. Plaintiff worked as a laborer and janitor at Charity Hospital in New Orleans where she was exposed to asbestos.9 According to Plaintiff, these two sources of exposure—Avondale and Charity Hospital—caused her ultimate diagnosis of asbestos-related lung cancer on May 19, 2019.10 On June 17, 2020, Plaintiff filed a petition for damages in the Civil District Court

for the Parish of Orleans, State of Louisiana, against several Defendants, including Avondale.11 Plaintiff brings state law negligence claims against Avondale for failing to provide Plaintiff’s husband “a safe place to work free from the dangers of respirable asbestos-containing dust” and for failure to warn of the dangers of asbestos.12 Avondale removed Plaintiff’s suit to federal court on April 5, 2021.13 In its Notice of Removal, Avondale asserts this Court has subject matter jurisdiction because Avondale was, at all material times, acting under an officer of the United States as set forth in 28 U.S.C. § 1442(a)(1).14 Removal under 28 U.S.C. § 1442 does not require the consent of any other defendant.15 Before removing, on August 11, 2020, Avondale filed its answer with incorporated affirmative defenses, third-party claims, and crossclaims.16 Relevant to the instant

motion,17 Avondale asserted as affirmative defenses the Boyle government contractor defense and Yearsley derivative sovereign immunity.18 On July 18, 2022, Plaintiff Ora Jean Adams filed a motion for summary

9 R. Doc. 1-1 at p. 3, ¶ 12. 10 Id. at p. 2, ¶ 3. 11 See id. at pp. 1-2. 12 R. Doc. 1-1 at p. 9, ¶ 35. 13 R. Doc. 1. 14 Id. at p. 1. 15 See Humphries v. Elliott Co., 760 F.3d 414, 417 (5th Cir. 2014). 16 R. Doc. 4-1 (beginning on p. 33). 17 R. Doc. 105. judgment.19 Plaintiff seeks a ruling from this Court that “Avondale is not immune from Plaintiff’s state law claims for failing to warn its employees of the dangers of asbestos, or from taking precautions to prevent the spread of asbestos dust from the shipyard” under either Boyle or Yearsley.20 The motion is opposed.21 MOTION FOR SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only “if 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.”22 “An issue is material if its resolution could affect the outcome of the action.”23 When assessing whether a material factual dispute exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.”24 All reasonable inferences are drawn in favor of the non-moving party.25 While all reasonable inferences must be drawn in favor of the non-moving party, the non- moving party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions or “only a scintilla of evidence.”26 There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the non-moving party, thus entitling the

moving party to judgment as a matter of law.27

19 R. Doc. 105. 20 Id. at p. 1. 21 R. Doc. 140; see also R. Doc. 202. 22 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 23 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005). 24 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000). 25 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). 26 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir. 2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)). 27 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell Energy, “Although the substance or content of the evidence submitted to support or dispute a fact on summary judgment must be admissible . . . the material fact may be presented in a form that would not, in itself, be admissible at trial.”28 “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of

[the record] which it believes demonstrate the absence of a genuine issue of material fact.”29 To satisfy Rule 56’s burden of production, the moving party must do one of two things: “the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim” or “the moving party may demonstrate to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.”30 If the moving party fails to carry this burden, the motion must be denied. If the moving party successfully carries this burden, the burden of production then shifts to the non-moving party to direct the Court’s attention to something in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist.31 If the dispositive issue is one on which the non-moving party will bear the burden

of persuasion at trial, the moving party may satisfy its burden of production by either (1) submitting affirmative evidence that negates an essential element of the non-movant’s claim, or (2) affirmatively demonstrating that there is no evidence in the record to establish an essential element of the non-movant’s claim.32 If the movant fails to affirmatively show the absence of evidence in the record, its motion for summary

28 Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017) (citations omitted). 29 Celotex, 477 U.S. at 323. 30 Id. at 331. 31 Id. at 322–24. judgment must be denied.33 Thus, the non-moving party may defeat a motion for summary judgment by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the moving party.”34 “[U]nsubstantiated assertions are not competent summary judgment evidence. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the

precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.’”35 FACTS I. Undisputed Facts The following facts are undisputed. Plaintiff Ora Jean Adams was diagnosed with lung cancer on April 10, 2019.36 Plaintiff’s husband, Lionel Adams, during his deposition, testified that he was a pipefitter/welder at Avondale between 1970 and 1978 where he believes he was exposed to asbestos and asbestos-containing products.37 The relevant Avondale government contracts required Avondale to use asbestos to manufacture the vessels Plaintiff’s husband worked on.38 Plaintiff’s husband further testified during his

33 See id. at 332. 34 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3. 35 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n.7 (5th Cir. 1992)). 36 R. Doc. 105-2 at ¶ 1; see also R. Doc. 140-2 at ¶ 1. 37 R. Doc. 105-2 at ¶ 2; see also R. Doc. 140-2 at ¶ 2. Whether Plaintiff can meet the Rando standard announced by the Louisiana Supreme Court for asbestos-related negligence claims is not the subject of the instant motion. Rando v. Anco Insulations, Inc., 16 So.3d 1065 (La. 2009). 38 During the August 18, 2022 oral argument before the Court, the parties agreed the relevant contracts required Avondale to use asbestos-containing products to manufacture certain vessels. These vessels include Destroyer Escorts (“DEs”), Coast Guard Cutters (“CGCs”), and LASH vessels (collectively referred to as “federal vessels”) pursuant to government contracts between Avondale and the U.S. Navy, U.S. Coast deposition that his exposure to asbestos at Avondale contaminated his working clothes with asbestos fibers and dust.39 Plaintiff and her husband testified that Plaintiff herself was exposed to asbestos fibers and dust through Plaintiff’s close contact with her husband’s asbestos-contaminated clothes because Mr. Adams wore his work clothes to and from work, and Plaintiff laundered them in their home.40 Plaintiff’s husband testified

that he was never warned by Avondale of the dangers of asbestos, was never warned that exposure to asbestos could cause harm to others if brought home to his family, was not provided adequate respiratory protection, was not provided any work clothing or laundering services or facility to minimize take-home asbestos exposures, and there were no safety protocols in place to reduce asbestos exposures at Avondale.41 The parties clarified at oral argument that it is undisputed the relevant government contracts did not contain any instructions about asbestos warnings to be given to Avondale employees.42 The parties further clarified it is undisputed that the Walsh- Healey Act, which deals generally with, inter alia, use and storage of asbestos, was incorporated by reference into the relevant government contracts, and Avondale was required to “perform[] subject to the provisions of the Act.”43

II. Disputed Facts Avondale argues Plaintiff’s motion for summary judgment should be denied because there are disputed issues of material fact. First, Plaintiff argues it is an undisputed

and R. Doc. 140-28. Moreover, for example, R. Doc. 140-26 at p. 14, confirms the use of asbestos was required by the government. 39 R. Doc. 105-2 at ¶ 3; see also R. Doc. 140-2 at ¶ 3. 40 R. Doc. 105-2 at ¶ 4; see also R. Doc. 140-2 at ¶ 4. Avondale further admits that Mr. Lionel Adams wore his work clothes to and from work and that Plaintiff laundered his work clothes. 41 R. Doc. 105-2 at ¶ 8; see also R. Doc. 140-2 at ¶ 8. 42 R. Doc. 105-2 at ¶ 6; see also R. Doc. 140-2 at ¶ 6. During oral argument on the motion, counsel for the Defendant conceded the government provided no explicit instruction about employee warnings. fact that her husband was exposed to asbestos as a result of his work at Avondale.44 Defendant denies this assertion in part.45 Specifically, Avondale admits Plaintiff’s husband testified at his deposition he was exposed to asbestos while employed by Avondale, but Avondale denies Plaintiff’s husband was exposed to significant amounts of asbestos during the relevant period of employment.46 This disputed issue of fact is not

material to the instant motion, which does not hinge on whether Mr. Adam’s was exposed to significant amounts of asbestos. Second, Plaintiff states it is an undisputed fact that she was exposed to asbestos when she laundered her husband’s work clothes.47 Defendant denies this assertion in part. Specifically, Avondale admits that Plaintiff and Plaintiff’s husband testified in their depositions that Plaintiff was exposed, but Avondale denies Plaintiff was exposed to significant amounts of asbestos as a result of her husband’s work at Avondale.48 This disputed issue of fact is not material to the instant motion, which, as with Mr. Adams, does not hinge on whether Plaintiff was exposed to significant amounts of asbestos. Third, Plaintiff included in her statement of undisputed material facts a statement that Avondale was not constrained by its government contracts from warning its

employees or implementing its own protocols to prevent asbestos contamination.49 Defendant denies this statement, instead contending it was required to comply with then- prevailing government safety regulations on the use and storage of asbestos containing products and arguing the government immunity defenses do not require it to have taken

44 R. Doc. 105-2 at ¶ 2; see also R. Doc. 105-2 at ¶ 4. 45 R. Doc. 140-2 at ¶ 2; see also R. Doc. 140-2 at ¶ 4. 46 R. Doc. 140-2 at ¶ 3. 47 R. Doc. 105-2 at ¶ 4. 48 R. Doc. 140-2 at ¶ 4. some action beyond complying with the contract and incorporated safety regulations.50 Avondale further argues it did not owe a duty to warn its employees about the dangers of asbestos.51 Nevertheless, during oral argument, the parties agreed there is no government instruction on asbestos warnings in their contracts and the relevant government contracts incorporated the Walsh-Healey Act by reference. Thus, to the extent there are any

“factual” disputes remaining, they are immaterial to the resolution of the instant motion. The parties remaining arguments on these issues are legal in nature. In sum, no dispute of fact prevents the Court from resolving Plaintiff’s motion for summary judgment.52 LAW AND ANALYSIS I. Boyle does not provide a defense to Plaintiff’s claims for failure to warn and failure to prevent the spread of asbestos.

A. Plaintiff is entitled to summary judgment that Boyle does not provide a defense to her failure to warn claim.

Plaintiff’s motion seeks summary judgment that Avondale is not entitled to the Boyle affirmative defense to liability for its failure to warn Plaintiff or her husband of the hazards of asbestos exposure.53 In 1988, the United States Supreme Court announced what is now known as the Boyle standard for a government contractor defense in the case of Boyle v. United Technologies Corp.54 That case involved a contract between the federal government and a manufacturer for the construction of military helicopters.55 The plaintiff’s son, a U.S. Marine helicopter copilot, drowned in one of the helicopters after it crashed into the ocean

50 R. Doc. 140-2 at ¶ 7. 51 Id. 52 R. Doc. 105 53 Id. at p. 16. 54 487 U.S. 500 (1988). off the coast of Virginia.56 Although the plaintiff’s son survived the immediate crash, he drowned when he could not escape through the emergency door.57 The plaintiff sued the government contractor, alleging the existence of a product design defect in the helicopter’s emergency door.58 The government contractor argued it was entitled to a government contractor defense from state law claims predicated on a design defect

because it followed the government’s design specifications.59 In Boyle, the Supreme Court determined that, under certain circumstances, a contractor is entitled to the government contractor defense to state law tort claims for product design defects because, without the defense, the financial burden of liability judgments against government contractors ultimately would be passed through to the United States and impermissible judicial second-guessing of the government’s social, economic, and political decisions would occur.60 In crafting a test to determine the circumstances under which the government contractor defense may be used, the Supreme Court drew from the doctrine of preemption.61 Specifically, the Supreme Court explored whether “uniquely federal interests” are implicated by the relevant government contracts, and whether a “significant conflict” exists between the identified federal interests and “the

operation of state law.”62 When a significant conflict exists between federal interests and state law, federal interests preempt state interests and take superiority, consistent with the U.S. Constitution’s Supremacy Clause. In its search for a limiting principle to identify the situations in which a “significant

56 Id. 57 Id. 58 As a result of the government’s design spec, the emergency door opened outward, rather than inward. Due to water pressure build up as the helicopter sank, the emergency door did not open. Id. 59 Id. at 503-04. 60 Id. at 512. 61 Id. at 504. conflict” with federal policy or interest and the operation of state law exists, the Supreme Court relied on the discretionary function exception to the Federal Tort Claims Act (“FTCA”).63 The FTCA outlines certain areas in which the federal government has waived its sovereign immunity and may be subject to tort liability.64 The FTCA waiver is, however, subject to exception.65 The “discretionary function exception” to the FTCA provides that

the federal government cannot be liable—even in areas in which it has otherwise consented to tort liability—when the liability stems from the exercise of its discretion.66 This exception is designed to avoid placing courts in the position of second-guessing the government’s social, economic, and political decisions.67 In Boyle, the Supreme Court reasoned the discretionary function exception “demonstrates the potential for, and suggests the outlines of,” a preemption analysis to determine a contractor’s entitlement to the government contractor defense68 because it makes little sense to shield the federal government from liability under the FTCA’s discretionary function exception, but allow liability to be imposed on government contractors who are merely executing the government’s orders.69 If the attempted imposition of liability is allowed to occur under those circumstances, the financial burden

of judgments ultimately will flow through the contractors to the government and result in higher contract prices. In addition, judicial second-guessing of government policy decisions will, in effect, occur.70 Such an outcome, the Supreme Court reasoned, would

63 Id. at 509-11 (citing 28 U.S.C. § 2680(a)). 64 Id. at 511. 65 Id. 66 Id. 67 Id. 68 Id. 69 Id. at 511-12. frustrate the very purpose underlying the discretionary function exception.71 Thus, the existence of the government’s exercise of discretion is critical to a government contractor being able to successfully employ the Boyle defense. Without that discretion, no significant conflict exists between federal interests implicated by the government’s contract and the operation of state law.72 Ultimately, Boyle was remanded so the facts

could be developed to determine whether the government, in contracting for the manufacturer of military helicopters, had exercised its discretion.73 As set forth in Boyle, a government contractor may avoid state law liability under Boyle when: (1) the federal government has approved reasonably precise specifications (i.e., the government has exercised its discretion), (2) the contractor has complied with the specifications, and (3) the contractor warned the United States about dangers resulting from the specifications known to the contractor but not to the United States.74 “Stripped to its essentials,” Boyle is a defense that “[t]he Government made me do it.”75 Approximately a year after Boyle, the United States Court of Appeals for the Fifth Circuit applied the Boyle standard in Garner v. Santoro.76 In that case, a spray painter sued the manufacturer of epoxy paint for injuries he sustained as a result of exposure to

paint while working on vessels under construction for the U.S. Navy.77 The plaintiff brought two claims against the manufacturer: an unreasonably dangerous product claim and a claim for failure to warn about the dangers of exposure to epoxy.78 At trial, the defendant was precluded from employing a government contractor defense because

71 Id. 72 Id. at 512. 73 Id. at 512-13. 74 Id. 75 In re Katrina Canal Breaches Litig., 620 F.3d 455, 465 (5th Cir. 2010). 76 865 F.2d 629 (1989). 77 Id. at 631-32. “[t]he district court and the magistrate decided that the government contractor defense was inapplicable as a matter of law.”79 On appeal, the Fifth Circuit determined it was legal error for the district court to cast aside the Boyle defense from the outset, and remanded the case for additional discovery because the evidence required to make a determination as to the applicability of the defense needed to be developed.80 Said differently, “[b]ecause

[the defendant] was precluded from virtually any development of its defense,” the Fifth Circuit was “unable to say whether the conditions outlined in Boyle as the applicability of the government contractor defense” were satisfied.81 Nevertheless, the Fifth Circuit “address[ed] briefly the applicability of Boyle” in Garner.82 First, the Fifth Circuit acknowledged the application of Boyle was “complicated by the fact that [the plaintiff in Garner] asserted two theories . . . at trial—the existence of an unreasonably dangerous product and the failure to warn.”83 That complication stemmed from the narrow context in which Boyle was decided, a case alleging only an unreasonably dangerous design. “Boyle holds that the government contractor defense can apply to design defects in military equipment, e.g., [the plaintiff’s] unreasonably dangerous product claim. Boyle, however, does not address whether a failure to warn

claim may be defeated by the government contractor defense.”84 Still, the Fifth Circuit, relying on its previous holding when it reasoned “the policies underlying the government contractor defense apply equally well regardless of whether the action is predicated on an allegedly dangerous defect in the design of the product or a failure to warn,”85 again

79 Id. at 633. 80 Id. at 635. 81 Id. 82 Id. 83 Id. 84 Id. 85 Bynum v. FMC Corp., 770 F.2d 556, 574 n.24; see also McGonigal v. Gearhart Industries, Inc., 851 F.2d recognized that “the government contractor defense could be asserted in failure to warn cases.”86 In more recent years, the Fifth Circuit clearly has applied the Boyle government contractor defense in failure to warn cases, as seen in Jowers v. Lincoln Electric Company.87 In this case, the plaintiff was a welder for Ingalls, a U.S. Navy shipbuilding

contractor.88 While welding, fumes containing manganese were emitted from “stick” and “wire” welding consumables; the plaintiff testified he inhaled the fumes for six to seven hours a day in the course of his work.89 Manganese is a known neurotoxin and inhalation of its fumes can result in serious neurological disease.90 The plaintiff brought suit against the manufacturer of the “stick” and “wire” welding consumables for failure to warn.91 The Fifth Circuit, citing Boyle, explained the defendant would be entitled to the government contractor defense only if it established: (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.92 This statement of the elements of Boyle in the context of a failure to warn

claim is consistent with other circuits’ application of the defense.93 Most recently, a different section of the Eastern District of Louisiana applied

portion in Bynum that relies upon the Feres-Stencel doctrine as a basis for the government contractor defense, which the U.S. Supreme Court rejected in Boyle). 86 Garner, 865 F.2d at 635 (citing Bynum v. FMC Corp., 770 F.2d 556, 574 n.24). 87 617 F.3d 346. 88 Id. at 350-51. 89 Id. at 351. 90 Id. 91 Id. 92 Id. at 352. 93 See, e.g., Tate v. Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995); Sawyer v. Foster Wheeler, LLC, Jowers in the context of a failure to warn claim “sounding in employer negligence.”94 In fact, the claims stemmed from asbestos exposure in a case in which Avondale is a defendant.95 In Broussard v. Huntington Ingalls, Inc., et al., a plaintiff diagnosed with mesothelioma brought a suit against, inter alia, Avondale.96 The plaintiff alleged exposure to asbestos through laundering the clothes of her ex-husband, who worked

around asbestos dust while employed by Avondale.97 The plaintiff brought claims for failure to warn and failure to prevent the spread of asbestos by taking certain precautions.98 On the failure to warn claim, the court adopted Jowers’ statement of the elements for the Boyle defense.99 There was no evidence the Navy or Coast Guard weighed in in any way on the question of warnings by Avondale to its employees. As a result, the first and second elements under Jowers application of Boyle—(1) the federal government’s exercise of its discretion by approving warnings for the product; (2) the warnings the defendant provided about the product conforming to the federal government specification—were not met.100 Said differently, “[t]here [was] no evidence that the contracts constrained Avondale in any way from issuing warnings to its employees, or implementing its own protocols to prevent contamination by asbestos.

Simply put, issuing a warning would not have required a departure from the government’s specifications.”101

94 Broussard v. Huntington Ingalls, Inc., 2021 WL 5448795 (E.D. La. 11/22/2021). Defendant argues here that Judge Lemmon should not have applied Jowers to a claim “sound[ing] in employer negligence.” R. Doc. 150 at p. 20. Avondale cites nothing for the proposition that Boyle’s elements in the context of a failure to warn claim would somehow change for a failure to warn claim “sound[ing] in employer negligence.” Thus, the Court finds the argument meritless. 95 Broussard, 2021 WL 5448795 at *1. 96 Id. 97 Id. 98 Id. 99 Id. at *2. 100 Id. at *3. Applying Jowers and Broussard to the case at bar, it is clear Avondale is not entitled to the government contractor defense to Plaintiff’s state law failure to warn claim. On the instant motion, Plaintiff argues Avondale is unable to produce evidence demonstrating the existence of a government specification regarding asbestos warnings— the first requirement for Boyle to apply in the context of a failure to warn claim.102 In fact,

the parties confirmed during oral argument that the federal government did not instruct Avondale to issue (or not issue) warnings to its employees about the dangers of asbestos. Avondale argues in opposition that, to prevail on the first Boyle element, it need not prove the existence of a specification about warnings to employees specifically— instead, Avondale argues, under Boyle, it is sufficient to demonstrate the existence of a government specification requiring only the use of asbestos.103 Put simply, Avondale argues the Court should ignore Jowers and instead apply the three elements of Boyle announced in its original context of a design defect claim. This argument, however, misses the point.104 In Boyle—a design defect claim—the government contractor could take advantage of the Boyle defense by demonstrating the existence of a government specification requiring a certain design.105 The government contractor’s compliance with

the government specification on the product design would shield the contractor from any design defect liability.106 Indeed, in this case, if Plaintiff had brought a design defect claim against Avondale under state law, Boyle likely would step in to shield Avondale from

102 R. Doc. 105-1 at p. 18. 103 R. Doc. 140 at p. 18. 104 This is further highlighted in the In re Katrina Canal Breaches Litigation case, where the Fifth Circuit stated “[r]easonably precise specifications for one aspect of a large project do not create an umbrella of protection for an entire project.” 620 F.3d at 461. By extension, a reasonably precise specification requiring the use of asbestos does not create an umbrella of protection such that, where the government was silent on warnings, the contractor can avail itself of the Boyle defense to a state law claim for failure to warn. 105 Boyle, 487 U.S. at 514. design defect liability. But that is not the claim Plaintiff brings against Avondale. Plaintiff brings, inter alia, a failure to warn claim,107 and Avondale cannot demonstrate the existence of a government specification even remotely requiring Avondale to give or not to give its employees warnings. Under Boyle, Jowers, and Broussard, then, the government contractor defense does not shield Avondale from Plaintiff’s state law failure

to warn claim because the federal government had no hand in that decision, i.e., no governmental discretion was exercised. “There is no second-guessing here of a government decision, because none was made.”108 Thus, Avondale is unable to prove an essential element of its affirmative defense under Boyle,109 and summary judgment is appropriate. B. Plaintiff is entitled to summary judgment that Boyle does not provide a defense to her failure to prevent the spread claim.

Plaintiff seeks summary judgment that Avondale is not entitled to the Boyle affirmative defense from any liability based on its failure to prevent the spread of asbestos by not providing adequate ventilation to minimize asbestos exposure and not implementing an asbestos decontamination policy or procedure to prevent asbestos from leaving Avondale’s shipyard.110 Plaintiff’s failure to prevent the spread of asbestos claim boils down to a claim for failing to properly use and store asbestos at Avondale’s shipyard. Although the Fifth Circuit has not squarely applied Boyle in the context of a claim for failing to properly use and store asbestos, it is clear to the Court the rationale of Boyle, Jowers, and Broussard applies equally to this claim. Thus, three elements must be proven for Avondale to be entitled to the government contractor defense. First, Avondale must

107 R. Doc. 105-1 at p. 7. 108 In re Katrina Canal Breaches Litigation, 620 F.3d at n.10. 109 Jowers, 617 F.3d at 352. prove the federal government exercised its discretion in approving reasonably precise specifications for the use and storage of asbestos. Second, Avondale must prove that the use and storage standards it complied with conformed to the federal government specifications. Third, Avondale must prove it warned the United States about dangers resulting from the specifications known to Avondale but not to the United States. The first

element is at issue on the instant motion.111 During oral argument, Plaintiff argued the Walsh-Healey Act was not a reasonably precise government specification because it mandated only that the government contractor comply with minimum safety standards. Said differently, Plaintiff argues a minimum standard set by the government does not constitute a reasonably precise specification. During oral argument, Defendant argued, in substance, there were reasonably precise specifications regarding the use and storage of asbestos because the relevant government contracts incorporated by reference the Walsh-Healey Act.112 Because it complied with the Walsh-Healey Act, Avondale argues, it cannot be subject to liability for Plaintiff’s failure to prevent the spread claim. The parties concede Avondale was subject to the Walsh-Healey Act, which

Avondale points to as a reasonably precise government specification on the use and storage of asbestos. The contracts at issue incorporated the 1958 version of 41 U.S.C. §§ 35-45,113 commonly referred to as the Walsh-Healey Act, which provides in pertinent

111 Plaintiff argues the Court should add a threshold requirement that there be “tension” between the government’s instruction/policy and state law imposing a stricter standard. If there is no tension, Plaintiff argues, Boyle should not apply. Jowers makes clear that such an added requirement is a misapplication of Boyle, because “the Boyle court found that demonstrating the first two elements of the defense would establish this conflict [or tension] as a matter of law.” Jowers, 617 F.3d at 352. 112 41 U.S.C. § 35(c) (1958). part that:

[N]o part of such contract will be performed nor will any of the materials, supplies, articles, or equipment to be manufactured or furnished under said contract be manufactured or fabricated in any plants, factories, buildings, or surroundings or under working conditions which are unsanitary or hazardous or dangerous to the health and safety of employees engaged in the performance of said contract.114

Relatedly, 41 C.F.R. § 50-204115 codifies the broad mandate contained in 41 U.S.C. § 35(c) that government contracts cannot be performed under working conditions that are hazardous or dangerous to the health and safety of employees engaged in the performance of the contracts. These federal regulations also were incorporated by reference into the relevant government contracts.116 The regulations plainly provide that the Walsh-Healey Act “expresses certain minimum safety and health standards”117 and “[c]ompliance with the standards expressed in [the Walsh-Healey Act] will not relieve anyone from any obligation to comply with any more strict standard stemming from any other source whatsoever.”118 Thus, the government instruction on the use of storage of asbestos contained in the relevant contracts was, in substance, to comply with the Walsh- Healey Act119—but, if “any other source” provided a “more strict standard,” the government contractor would not be relieved of its duty to comply with the stricter standard merely by complying with Walsh-Healey.120 “The first Boyle step requires that the government approved reasonably precise specifications. That entails both the existence of reasonably precise specifications and the

114 41 U.S.C. § 35(c) (1958) (emphasis added). 115 The Court reviewed the 1965 version of 41 C.F.R. § 50-204. It appears the contracts at issue were executed in 1965. 116 R. Doc. 140 (sealed exhibits I and J). 117 41 C.F.R. § 50-204.1 (a) (1965). 118 41 C.F.R. § 50-204.1 (e) (1965). 119 The Walsh-Healey Act provides specific instructions about ventilation, exposure to asbestos, the need for washing facilities, material storage, and more. See, e.g., 41 C.F.R. §§ 50-204.62, .86, .102, .136, .137, .138, .244, .275, and .288. approval of those specifications by the government.” “Although the two issues [of whether the specification was reasonably precise and whether it was approved by the government] are intertwined as elements of the first prong of Boyle, they are still two separate conditions that can be analyzed independently. If the specifications are not reasonably precise, it does not matter whether the imprecise specifications were properly approved:

The first prong would not be satisfied.”121 In the case at bar, the government’s instruction on the use and storage of asbestos, by its own terms, “expresse[d] certain minimum safety and health standards”122 The Fifth Circuit has held that a minimum standard set by the government does not constitute a reasonably precise specification under Boyle.123 Specifically, in Trevino v. General Dynamics Corp., a case in which families of Navy divers killed in a Navy submarine diving chamber brought a product liability action against manufacturer General Dynamics Corporation, the Fifth Circuit explained how the first Boyle element is not met when the government requires only compliance with “minimal or general standards established by the government.”124 Further, in Jowers, the Fifth Circuit determined the first Boyle element was not satisfied when the specification at issue was a minimum standard, and

when there was evidence the government contractor had initially drafted the specification.125 In this case, while there is no evidence Avondale had a hand in drafting the specifications at issue, reading Trevino and Jowers in harmony clarifies that the fact that the government contractor drafted the minimum standard in Jowers was merely an aggravating circumstance, as opposed to a necessary element.126 This conclusion is

121 In re Katrina Canal Breaches Litigation, 620 F.3d at n.9. 122 41 C.F.R. § 50-204.1 (a) (1965). 123 Trevino v. General Dynamics Corp., 865 F.2d 1474, 1480 (5th Cir. 1989). 124 Id. 125 Jowers, 617 F.3d at 354. consistent with sister circuits’ application of the government contractor defense, in which, for example, one circuit held “[w]hen only minimal or very general requirements are set for the contractor by the United States the [government contractor defense] is inapplicable.”127 Accordingly, under Boyle, in this case there exists no reasonably precise

specification governing the use and storage of asbestos because the Walsh-Healey Act is only a “minimum safety and health standard.” Indeed, “[c]ompliance with the standards expressed in [the Walsh-Healey Act] will not relieve anyone from any obligation to comply with any more strict standard stemming from any other source whatsoever.”128 The existence of a reasonably precise government specification on the use and storage of asbestos, an essential element of Avondale’s defense under Boyle, has not been met. Thus, Avondale is not entitled to the government contractor defense on Plaintiff’s claim for failure to prevent the spread of asbestos and summary judgment is appropriate. II. Yearsley immunity is not a defense to Plaintiff’s claims.

Plaintiff also seeks summary judgment that Avondale is not entitled to Yearsley derivative sovereign immunity.129 Yearsley v. W.A. Ross Constr. Co.130 is widely recognized as the origin of derivative sovereign immunity for government contractors.131 Derivative sovereign immunity protects government contractors from legal liability when their actions directed by the government give rise to an injury. Derivative sovereign

127 See, e.g., McKay v. Rockwell Intern. Corp., 704 F.2d 444, 451 (9th Cir. 1983). 128 41 C.F.R. § 50-204.1 (e) (1965). 129 R. Doc. 105-1 at p. 16. 130 Many courts previously misinterpreted Yearsley as only applying in the context of a government contractor completing public works projects. The U.S. Supreme Court in Campell-Ewald Co. v. Gomez, in a footnote, clarified that Yearsley immunity is not limited to this context. 136 S. Ct. 663, 673 n.7 (2016). 131 309 U.S. 18 (1940). Unlike Boyle, Yearsley is rooted in ideas of sovereign immunity, as opposed to immunity is not absolute.132 In Yearsley, “petitioners sought to recover damages upon the ground that the respondent company’[s]” activity of constructing dikes in the Missouri River produced artificial erosion and washed away ninety-five acres of the petitioner’s land.133 The government contractor was operating under a contract with the U.S. Government authorized by Congress to improve navigation in the Missouri River.134

Faced with litigation, the government contractor raised its contractual relationship with the government as a defense to liability.135 The Supreme Court held “if this authority to carry out the project was validly conferred . . . there is no liability on the part of the contractor for executing [the government’s] will.”136 Thus, two elements must exist before Yearsley applies: first, the work done must have been authorized and directed by the U.S. government; second, the authority must have been validly conferred on the contractor pursuant to an act of Congress.137 In Yearsley, the federal government authorized and directed the contractor’s construction of the dikes pursuant to an act of Congress; thus, “there [was] no ground for holding [the government’s] agent liable for simply acting under the authority . . . validly conferred. The action of the agent is ‘the action of the government.’”138 Conversely, when

a government contractor acting on the government’s behalf exceeds its authority, there is no immunity from resulting liability.139 Plaintiff and Avondale spend much of their briefing discussing whether Yearsley requires specific directives from the government in order to apply. Presumably, this is

132 Campell-Ewald Co., 136 S. Ct. at 672. 133 309 U.S. at 19. 134 Id. 135 Id. 136 Id. at 20-21. 137 Id. at 20. 138 Id. at 22. because some circuits hold Yearsley is inapplicable if the government contractor is left discretion to carry out the contract,140 while other courts have broadly applied the defense to cover even actions taken by the contractor that do not trace directly to a federal directive. Obviously, the more specific the government is in its directives, the less discretion the contractor is left with. Just last year, the Fifth Circuit seemingly fell

somewhere on the broader-application-side of the issue in Taylor Energy Company, L.L.C. v. Lutrell, finding, under the facts of that case, the government contractor exercised some discretion over the work performed but that this did not negate its immunity under Yearsley.141 In Taylor Energy Company, L.L.C., Taylor Energy leased and operated oil wells and production platforms in the Gulf of Mexico.142 When Hurricane Ivan hit the region, it caused a massive seafloor to collapse, toppling Taylor Energy’s platform.143 As a result, oil leaked across the ocean floor for over a decade.144 Some years later, the Coast Guard contracted Couvillion Group, L.L.C. (“Couvillion”) to provide labor, equipment, and materials to clean up the oil—all at Taylor Energy’s expense as the “responsible party.”145 Couvillion estimated a $3 million contract price.146 In reality, that $3 million estimate

turned into a $40 million bill, and Taylor Energy sued.147 Taylor Energy argued, inter alia, a lack of federal oversight over Couvillion’s work enabled it to overcharge.148 Accordingly, Taylor Energy sought tort damages and equitable relief for Couvillion’s trespass and

140 Cabalce v. Thomas E. Blanchard & Assocs., Inc., 797 F.3d 720, 732 (9th Cir. 2015). The Ninth Circuit has explained Yearsley immunity is “limited to cases in which a contractor had no discretion in the design process and completely followed government specifications.” Id. 141 Taylor Energy Company, L.L.C. v. Lutrell, 3 F.4th 172, 176 (5th Cir. 2021). 142 Id. at 173. 143 Id. 144 Id. at 173-74. 145 Id. 146 Id. at 174. 147 Id. at 174. unauthorized activities arguing Couvillion was not acting pursuant to specific government directives.149 Taylor Energy argued Couvillion was not entitled to derivative sovereign immunity because Couvillion’s actions were not authorized and directed by the Government, a requirement for the immunity to attach.150 In response, Couvillion argued it was protected by Yearsley immunity.151 The district court summarily found Yearsley

applicable, and Taylor Energy appealed.152 On appeal, the Fifth Circuit first recognized that “[f]or actions to be authorized and directed by the Government, the contractor’s actions should comply with federal directives.”153 In Taylor Energy, the government’s directives were contained in a basic ordering agreement, authorizations to proceed, and a statement of work.154 The Fifth Circuit highlighted the specificity of the federal government’s directives and the existence of federal oversight.155 There was uncontroverted evidence the contractor did, in fact, comply with the government’s directives. In light of these facts, the Fifth Circuit held, even if Couvillion retained some discretion on how to fulfill his obligations under the contract, the district court did not err in finding Yearsley immunity available.156 Taylor Energy is factually distinguishable from the case at bar because of the Fifth

Circuit’s focus on the specificity of the government’s directives and existence of extensive federal oversight in that case, which justified its conclusion that a total lack of contractor discretion was not required before Yearsley may apply. Be that as it may, the Court need not decide whether Offshore Oil does or does not apply to the case before it because

149 Id. at 174-75. 150 Id. at 175. 151 Id. 152 Id. 153 Id. at 175-76. 154 Id. at 176. 155 Id. Yearsley immunity is inapplicable for a separate reason. Specifically, and on an issue neither party explored in its briefing, the Fifth Circuit held in Ackerson v. Bean Dredging, LLC that separate acts of negligence by government contractors are not shielded by Yearsley.157 In Ackerson, plaintiffs brought suit against government contractors who dredged

protective wetlands in the Mississippi River Gulf Outlet (“MRGO”).158 The plaintiffs alleged, inter alia, “the MRGO project caused an amplification of the storm surge in the New Orleans region during Hurricane Katrina, undermining the levees and flood walls . . . that breached and flooded” the region.159 The plaintiffs alleged Congress was negligent in creating and maintaining the MRGO, not separate acts of negligence by the government contractors. The government contractors argued they were entitled to a form of derivate sovereign immunity, meaning the claims should be barred.160 The district court agreed.161 The plaintiffs appealed the district court’s grant of judgment on the pleadings, arguing that (1) the district court should have dismissed their claims without prejudice because Yearsley is jurisdictional in nature, and (2) Yearsley requires an agency relationship, not merely a contractual relationship with the federal government.162

In affirming the district court, the Fifth Circuit first held Yearsley does not establish a jurisdictional bar, but rather is a defense to liability because the Supreme Court’s decision “itself countenances against its application to deprive the federal courts of jurisdiction.”163 “Yearsley does not discuss sovereign immunity or otherwise address

157 589 F.3d 196 (5th Cir. 2009). 158 Id. at 202. 159 Id. at 203. 160 Id. at 202. 161 Id. 162 Id. the court's power to hear the case. Instead, the [Supreme] Court affirmed the reversal of the district court's judgment on the grounds announced in Yearsley.”164 Second, the Fifth Circuit clarified that, although Yearsley used the word “agent” when discussing the application of derivative sovereign immunity, Yearsley does not require “a traditional agency relationship with the government;” instead, the existence of

a contractual relationship with the government is sufficient.165 In doing so, the Fifth Circuit highlighted that “[t]he Supreme Court has not abrogated or overturned Yearsley,” and applied the elements of derivative sovereign immunity to the facts of Ackerson.166 In Ackerson, “the plaintiffs did not allege that the contractor defendant ‘exceeded his authority or that it was not validly conferred,’” both of which are requirements for Yearsley immunity to attach to the government contractor.167 “Instead, the [p]laintiffs’ allegations attack the entire MRGO project” because they allege the MRGO project “dramatically increased the region’s vulnerability to hurricanes and tropical storms” and that the MRGO “created an environmental disaster.”168 Because the allegations “attack[ed] Congress’s policy of creating and maintaining the MRGO,” as opposed to a “separate act of negligence by the” contractors, the district court did not err in finding

Yearsley applicable.169 Critically, under Ackerson, Yearsley does not provide a defense to claims for separate acts of negligence brought against government contractors.170 Because the Court has an obligation to apply the correct law, regardless of whether the parties raise it, the Court must apply this binding Fifth Circuit precedent in this case.

164 Id. 165 Id. at 205. 166 Id. at 206. 167 Id. at 206-07 (citing Yearsley, 309 U.S. at 21). 168 Id. at 207. 169 Id. (emphasis added). Since Ackerson, the Fifth Circuit has not elaborated on what constitutes a “separate act of negligence” by a government contractor, though out-of-circuit district courts relying on Ackerson have. In the absence of additional guidance from the Fifth Circuit, the Court finds these out-of-circuit cases persuasive in its analysis. In Cabalce v. VSE Corp., the U.S. District Court for the District of Hawaii was faced with state law claims against a

government contractor for negligence, wrongful death, ultrahazardous activity, and premises liability arising from the death of workers killed in a fire and explosion while handling a large cache of government-seized fireworks.171 The district court, citing Ackerson, determined Yearsley immunity did not shield the government contractor from suit because “derivative sovereign immunity is not available to contractors who act negligently in performing their obligations under the contract.”172 This limitation on the Yearsley defense, the Cabalce court reasoned, recognized that “the government does not become the conduit of its immunity in suits against its agents or instrumentalities merely because they do its work. Thus, Yearsley does not abrogate ‘the principle that an agent is liable for his own torts [which] is an ancient one and applies even to certain acts of public officers or public instrumentalities.’”173 Accordingly, the claims against the government

contractor for “failing to eliminate known risks of harm, failing to warn Plaintiffs, failing to provide a safe workplace, failing to properly manage and store the fireworks, and failing to ensure compliance with laws and regulations regarding explosives,” were found to be “allegations of negligence” in the performance of the government contracts that constituted a “separate act of negligence,” “render[ing] the defense inapplicable.”174

171 922 F.Supp.2d 1113, 1116 (D. Hawaii 1/13/2013). 172 Id. at 1125 (internal quotations omitted) (citing Ackerson, 589 F.3d at 207). 173 Id. (citing Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687 (1949)) (quoting Brady v. Roosevelt S.S. Co., 317 U.S. 575, 580 (1943) (alteration retained). In In re Fort Totten Metrorail Cases Arising out of the Events of June 22, 2009 (“Fort Trotten”), the U.S. District Court for the District of Columbia similarly determined that “derivative sovereign immunity is not available to contractors who act negligently in performing their obligations under the contract,” relying on the Fifth Circuit’s decision in Ackerson.175 Fort Trotten involved a collision between two Washington Metropolitan

Area Transit Authority trains, causing severe injuries to passengers.176 After the collision, accident victims sued the manufacturer of the trains, bringing various negligence claims, including one for failure to warn.177 The manufacturer argued it was entitled to Yearsley immunity as a government contractor because all the harms traced to the government’s decision to sequence modules, albeit in a negligent fashion.178 The district court disagreed with that characterization of the claims, and instead determined the claims against the manufacturer were predicated on the manufacturer’s own negligence in performing its contractual obligations, as opposed to government directives.179 “Derivative sovereign immunity under Yearsley does not shield such claims.”180 Moreover, the manufacturer did not comply with its contractual obligations, meaning it was, for a separate reason, not entitled to Yearsley immunity because it did not comply with the government’s explicit

directives.181 Applying Taylor Energy, Ackerson, Cabalce, and Fort Trotten to the case at bar, unlike in Taylor Energy and Ackerson, it is clear Plaintiff’s claims do not attack the

175 Fort Trotten, 895 F.Supp.2d 48, 74 (D.D.C. 9/5/12) (citing Ackerson, 589 F.3d at 207). 176 Id. at 55. 177 Id. at 71. 178 Id. The Fort Trotten court analyzed whether Yearsley applied beyond federal government contractors to state-level contractors in this case, which is not before the Court here. Nevertheless, the discussion of the elements of Yearsley are persuasive in light of the court’s reliance on Ackerson. 179 Id. at 75. 180 Id. government’s policy of requiring the use of asbestos in Navy vessels and the like,182 but instead, as in Cabalce and Fort Trotten, Plaintiffs claims trace to Avondale’s alleged decision not to warn its employees of the dangers of asbestos exposure and failure to both provide adequate ventilation to minimize asbestos exposure and implement an asbestos decontamination policy or procedure to prevent asbestos from leaving Avondale’s shipyard.183 These claims boil down to a broad claim against Avondale for negligently carrying out its government contracts, which is a “separate act of negligence” under Ackerson, as interpreted by Cabalce and Fort Trotten. Certainly, the federal government required Avondale to use asbestos in manufacturing the vessels at issue. This is undisputed. But after the federal government made that decision, in carrying out its contracts, Avondale allegedly chose not to warn its employees of the dangers of asbestos or put other measures in place to prevent the spread of asbestos. Government contractors do not share the federal governments unqualified immunity from liability and litigation. Thus, the Court finds Yearsley is not applicable to Plaintiffs claims for failure to warn of the dangers of asbestos and failure to prevent the spread of asbestos, and Plaintiff is entitled to summary judgment. CONCLUSION IT IS ORDERED that Plaintiffs motion for summary judgment!84 is GRANTED. New Orleans, Louisiana, this 2nd day of September, 2022. S . SUSIE none UNITED STATES DISTRICT JUDGE

182 Ackerson, 589 F.3d at 207. 183 R, Doc. 105-1 at p. 6. 184 R. Doc. 105. 28