Barrosse v. Huntington Ingalls Inc., Civil Action 20-2042-WBV-JVM

CourtUnited States District Courts. 5th Circuit. United States District Court (Eastern District of Louisiana)
Decision Date24 September 2021
Docket NumberCivil Action 20-2042-WBV-JVM



Civil Action No. 20-2042-WBV-JVM

United States District Court, E.D. Louisiana

September 24, 2021




Before the Court is a Motion for Summary Judgment filed by defendants, Huntington Ingalls Incorporated (f/k/a Northrop Grumman Shipbuilding, Inc., f/k/a Northrop Grumman Ship Systems, Inc., f/k/a Avondale Industries, Inc.) (“Avondale”) and Lamorak Insurance Company (f/k/a OneBeacon America Insurance Company) (collectively, the “Avondale Interests”).[1] Plaintiffs oppose the Motion, [2] as does defendant, ViacomCBS Inc. f/k/a CBS Corporation f/k/a Viacom Inc., successor by merger to CBS Corporation f/k/a Westinghouse Electric Corporation (“Westinghouse”).[3] The Avondale Interests filed one Reply brief in response to the two Opposition briefs.[4] After careful review of the parties' memoranda, the record, and the applicable law, the Motion is GRANTED and Plaintiffs' negligence claims against the Avondale Interests are DISMISSED WITH PREJUDICE.


This is an asbestos exposure case. On or about May 11, 2020, Ronald J. Barrosse filed a Petition for Damages in Civil District Court for the Parish of Orleans, Louisiana, against The Cajun Company, Eagle, Inc., Huntington Ingalls, Incorporated, The McCarty Corporation, OneBeacon America Insurance Company, and Taylor-Seidenbach, Inc.[5] Barrosse alleged that he was exposed to asbestos and/or asbestos-containing products during the course of his employment at Avondale Industries, Inc. and Union Carbide between 1969 and 1979, and that such products were produced, installed, removed, maintained, sold, and/or distributed by the defendants.[6] Barrosse alleged that he had suffered physical and mental injuries as a result of his exposure to asbestos, including malignant mesothelioma, which he “has only recently, within one year, discovered.”[7]

Pertinent to the instant Motion, Barrosse alleged that he was exposed to asbestos while employed by Avondale Industries, Inc. and working as an electrician helper/electrician at Avondale Shipyard from February 3, 1969 through June 10, 1977.[8] Barrosse testified that during his employment, he worked on commercial vessels and United States Navy Destroyer Escorts on Wet Dock 1 in the Main Yard at Avondale Shipyard.[9] In the Petition, Barrosse asserted a negligence claim against the Avondale Interests for failing to provide and/or ensure a safe workplace for their employees, including Barrosse, free of hazardous concentrations of asbestos and asbestos-containing dust.[10]

The Avondale Interests removed the matter to this Court on July 17, 2020, asserting that the Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1441 because the action arises “under the Constitution, laws or treaties of the United States, ” and under the federal officer removal statute, 28 U.S.C. § 1442, because Avondale Industries, Inc. and its executive officers were acting under an officer of the United States when it built Destroyer Escorts for the United States Navy pursuant to a contract between Avondale Industries, Inc. and the United States Government.[11]The Avondale Interests claim that Barrosse testified during his May 27, 2020 deposition that he was exposed to asbestos dust at Avondale Shipyard from working around other crafts using asbestos-containing insulation, cloth, and mastics while working aboard Destroyer Escorts built for the Navy.[12] Barrosse testified during his deposition that he was diagnosed with mesothelioma in early March 2020.[13]

Barrosse passed away on October 13, 2020, [14] and this Court allowed Barrosse's surviving spouse and children, Lynn Barrosse, Raegan Holloway and Makenzie Striker, to substitute themselves as plaintiffs in this case on January 5, 2021.[15] The Court also allowed Lynn Barrosse, Raegan Holloway and Makenzie Striker (collectively, Plaintiffs”) to file a First Supplemental and Amended Petition/Complaint (the “Amended Complaint”) on January 5, 2021, in which Plaintiffs assert a survival action claim pursuant to La. Civ. Code art. 2315.1.[16] In the Amended Complaint, Plaintiffs assert new allegations regarding Barrosse's offsite exposure to asbestos through his contaminated work clothes. Plaintiffs allege that Barrosse's clothing was contaminated with asbestos dust while working at Avondale Shipyard, that he wore those clothes home and, as a result, was exposed to asbestos in his car and in his home through his work clothes.[17] Plaintiffs further allege that, “Mr. Barrosse has not asserted a Longshore and Harbor Workers' Compensation Act claim.”[18] As in the original Complaint, Plaintiffs assert a negligence claim against the Avondale Interests, alleging that the Avondale Interests failed to provide and/or ensure a safe workplace for their employees, including Barrosse, free of hazardous concentrations of asbestos and asbestos-containing dust.[19]

The Avondale Interests filed the instant Motion for Summary Judgment on January 13, 2021, seeking dismissal of Plaintiffs' negligence claims against them based upon the exclusivity provisions of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 905(a) and 933(i) (the “LHWCA”).[20] The Avondale Interests argue that the LHWCA preempts Plaintiffs' state law negligence claims against them because Louisiana law directly conflicts with §§ 905(a) and 933(i) and frustrates the underlying purpose of those provisions of the LHWCA.[21] Plaintiffs argue that their negligence claims are not preempted by the pre-1972 version of the LHWCA, which was in effect at the time of Barrosse's asbestos exposure, and that Barrosse's off-site exposure to asbestos is not covered by the LHWCA.[22] Plaintiffs also assert that retroactively applying the 1972 amendments to the LHWCA to divest Plaintiffs of their negligence cause of action violates their due process rights.[23]Westinghouse likewise asserts that the Motion should be denied because the LHWCA does not preempt Plaintiffs' negligence claims against the Avondale Interests.[24] In response, the Avondale Interests maintain that the LHWCA preempts Plaintiffs' negligence claims against them, and further assert that application of the LHWCA would not result in an unconstitutional divestment of Plaintiffs' rights.[25]


Summary judgment is appropriate where there is no genuine disputed issue as to any material fact, and the moving party is entitled to judgment as a matter of law.[26] When assessing whether a dispute regarding any material fact exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.”[27] While all reasonable inferences must be drawn in favor of the nonmoving party, a party cannot defeat summary judgment with conclusory allegations, unsubstantiated assertions or “only a scintilla of evidence.”[28] Instead, summary judgment is appropriate if a reasonable jury could not return a verdict for the nonmoving party.[29]

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party “must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.”[30] The nonmoving party can then defeat summary judgment by either submitting evidence sufficient to demonstrate the existence of a genuine dispute of material fact, or by “showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party.”[31] If, however, the nonmoving party will bear the burden of proof at trial on the dispositive issue, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim.[32] The burden then shifts to the nonmoving party who must go beyond the pleadings and, “by her own affidavits, or by the ‘depositions, answers to interrogatories, and admissions on file,' designate ‘specific facts showing that there is a genuine issue for trial.'”[33]


A. The Applicable Version of the LHWCA.

The LHWCA is a federal workers' compensation statute that provides covered maritime workers with “medical, disability, and survivor benefits for work-related injuries and death.”[34] Before 1972, the LHWCA covered workers on “navigable waters of the United States (including any dry dock).”[35] In 1972, however, Congress “extend[ed] the LHWCA landward beyond the shoreline of the navigable waters of the United States.”[36] In doing so, “the Longshoremen's Act became, for the first time, a source of relief for injuries which had always been viewed as the province of state compensation law.”[37]

The parties in this case dispute whether the pre-1972 or post-1972 version of the LHWCA applies to Plaintiffs' negligence claims against the Avondale Interests. The Avondale Interests argue that the date of disease manifestation, not the date of exposure, determines which version of the LHWCA applies.[38] Because Barrosse's mesothelioma manifested on March 17, 2020, the Avondale Interests claim the post-1972 version of the LHWCA applies and preempts Plaintiffs' negligence claims.[39] In contrast, Plaintiffs argue that the LHWCA does not apply to Barrosse's off-site asbestos exposure, and that the pre-1972 version of the LHWCA applies to Barrosse's exposure at Avondale Shipyard because asbestos exposure claims are governed by the law in effect when the exposure occurred.[40]

In Hulin v. Huntington Ingalls, Inc., another Section of this Court squarely addressed whether the pre-1972 or post-1972 version of the LHWCA applies in a factually similar asbestos exposure case.[41] The plaintiff in Hulin worked at Avondale Shipyard from January 1954 to...

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