Hulin v. Huntington Ingalls Incorporated

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WILLIAM HULIN CIVIL ACTION

VERSUS NO. 20-924

HUNTINGTON INGALLS, INC., ET SECTION “R” (3)

AL.

ORDER AND REASONS

Defendants Huntington Ingalls Incorporated, Albert L. Bossier, Jr.,

and Lamorak Insurance Company (collectively the “Avondale Interests”)

move for summary judgment.1 Certain Underwriters at Lloyd’s, London, and

London Market Companies (collectively “London Market Insurers”) have

joined in the Avondale Interests’ motion.2 Because there is no genuine

dispute as to any material fact, and because defendants are entitled to a

judgment as a matter of law, the Court grants defendants’ motion.

1 R. Doc. 39.

2 R. Doc. 57.

I. BACKGROUND

This case arises out of plaintiff William Hulin, Sr.’s asbestos exposure.

Avondale employed Hulin from January 1954 to May 1973.3 He worked

primarily at Avondale’s “Main Yard.”4 He worked as a shipfitter, and claims

to have worked as a “laborer” and “tacker.”5

Hulin alleges that he was exposed to asbestos numerous times in the

course of his employment with Avondale.6 He states that he worked at the

Main Yard’s land-based insulation shop.7 His work there consisted of,

among other things, “cutting asbestos insulation templates for later

installation on vessels.”8 He alleges that he breathed “asbestos dust on a

regular basis,” even when he was not personally handling insulation.9 Hulin

claims to have “sustained regular, heavy and ongoing exposures to asbestos

on land prior to 1972.”10 In July 2019, Hulin was diagnosed with lung cancer.

3 R. Doc. 44-1 at 1, II ¶ 1 (Plaintiff’s Statement of Contested Material

Facts).

4 Id. at ¶ 2.

5 R. Doc. 44-2 at 1, ¶ 2 (Hulin Affidavit)

6 Id. at ¶ 3.

7 Id. at ¶ 4.

8 Id. at ¶ 5.

9 Id. at ¶¶ 6-7.

10 Id. at ¶ 3.

Plaintiff sued a number of defendants, including the Avondale

Interests, in state court on November 12, 2019.11 The case was removed to

this Court on March 17, 2020.12 Plaintiff has expressly disclaimed any strict

liability claim against the Avondale Interests.13 Instead, he alleges

negligence against the Avondale Interests under Louisiana law.14

II. LEGAL STANDARD

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). All reasonable inferences are

drawn in favor of the nonmoving party, but “unsupported allegations or

11 R. Doc. 1-2 (Original Complaint).

12 R. Doc. 1.

13 R. Doc. 1-2 at 11, ¶ 50 (Original Complaint).

14 Id. at ¶¶ 38-50.

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. “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 nonmoving party.” EEOC v. Simbaki, Ltd., 767 F.3d 475,

481 (5th Cir. 2014).

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.’” Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257,

1264-65 (5th Cir. 1991) (quoting Golden Rule Ins. v. Lease, 755 F. Supp. 948,

951 (D. Colo. 1991)). “[T]he nonmoving party can defeat the motion” by

either countering with 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.” Id. at 1265.

If the dispositive issue is one on which the nonmoving party will bear

the burden of proof at trial, the moving party may satisfy its burden by

pointing out that the evidence in the record is insufficient with respect to an

essential element of the nonmoving party’s claim. See Celotex, 477 U.S. at

325. The burden then shifts to the nonmoving party, who must, by

submitting or referring to evidence, set out specific facts showing that a

genuine issue exists. See id. at 324. The nonmovant may not rest upon the

pleadings, but must identify specific facts that establish a genuine issue for

resolution. See, e.g., id.; Little, 37 F.3d at 1075 (“Rule 56 ‘mandates the entry

of summary judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party

will bear the burden of proof at trial.’” (quoting Celotex, 477 U.S. at 322

(emphasis added))).

III. DISCUSSION

The Avondale Interests and London Market Insurers argue that

plaintiff’s state-law negligence claims are preempted by the Longshore and

Harbor Workers’ Compensation Act (“LHWCA” or the “Act”), 33 U.S.C. §

901, et seq. Plaintiff argues that the LHWCA does not apply to his injuries

and, even if it does, the LHWCA does not preempt his negligence claims.

Furthermore, Hulin argues that preemption would effectively deprive him of

a vested property right, violating his constitutional right to due process.

A. Coverage Under the LHWCA

The LHWCA is a federal statutory workers’ compensation statute

providing covered maritime workers with “medical, disability, and survivor

benefits for work-related injuries and death.” MMR Constructors, Inc. v.

Dir., Office of Workers’ Comp. Programs, 954 F.3d 259, 262 (5th Cir. 2020)

(citation and internal quotation marks omitted). Before 1972, the statute

covered only workers on “navigable waters of the United States (including

any dry dock).” Id. (citing 33 U.S.C. § 903(a) (pre-1972)). But, in 1972,

Congress “extend[ed] the LHWCA landward.” Sun Ship, Inc. v.

Pennsylvania, 447 U.S. 715, 719 (1980).

1. Applicable Version of the LHWCA

This case turns in large part upon whether the pre- or post-1972

version of the LHWCA applies. Plaintiff argues that the pre-1972 version of

the law applies and that his land-based asbestos exposures fall outside the

Act’s scope.15 Defendant contends that the post-1972 Act applies.16 In

making the determination of the applicable version of the LHWCA,

15 R. Doc. 44 at 6.

16 R. Doc. 39-1 at 3-4.

defendant argues that a “date of manifestation” rule controls.17 Under this

rule, the Court applies the Act as it existed when plaintiff’s disease

manifested to determine whether the alleged injuries are covered. In

response, plaintiff argues that a “date of exposure” rule applies and that the

Court must analyze these claims under the pre-1972 LHWCA,18 because he

suffered asbestos exposure before the Act’s amendments.19

Courts use the “date of injury” to determine which version of the

LHWCA applies. Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1029 (5th

Cir. 1985). In the context of long-latency diseases arising from asbestos

exposure, the Fifth Circuit in Castorina held that manifestation, not

exposure, determines the date of injury. Id. at 1031. There, plaintiff’s

disease, asbestosis, manifested in 1979. Id. at 1028. His exposures occurred

between 1965 and 1972. Id. at 1027. The court looked to judicial authority

stating that the LHWCA “is not concerned with pathology, but with

industrial disability; and a disease is no disease until it manifests itself.” Id.

(quoting Grain Handling Co. v. Sweeney, 102 F.2d 464 (2d Cir. 1939), cert.

denied, 308 U.S. 570 (1939)). It also inferred Congress’s intent from

Congress’s express adoption of the manifestation rule in 1984. Id. (citing

17 Id.

18 R. Doc. 44 at 6.

19 Id. at 3.

Pub.L. No. 98–426, § 28(g)(1), 98 Stat. 1639 (1984)). In the 1984

amendments to the LHWCA, Congress provided a specific definition of

“injury” for occupational diseases:

[I]n the case of an occupational disease which does not

immediately result in a disability or death, an injury shall be

deemed to arise on the date on which the employee or claimant

becomes aware, or in the exercise of reasonable diligence or by

reason of medical advice should have been aware, of the disease

. . . .

Pub.L. No. 98–426, § 28(g)(1), 98 Stat. 1639 (1984). Under Castorina and

the 1984 amendments, plaintiff’s injury is deemed to arise on the date it

manifested. Because plaintiff’s disease manifested in 2019, the Court applies

the LHWCA as it existed in 2019, the date of plaintiff’s injury.

Plaintiff disputes this legal conclusion by pointing to dicta in a footnote

in Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 466 n.6 (5th Cir. 2016),

in which the Fifth Circuit stated:

Defendant’s preemption defense is governed by the law at the

time [plaintiff] was exposed to asbestos, which occurred before

the Louisiana Worker's Compensation Act was amended in 1989

to eliminate any concurrent coverage between that Act and the

federal Longshore and Harbor Workers’ Compensation Act. See

La. Rev. Stat. 23:1035.2 (providing that “[n]o compensation shall

be payable in respect to the disability or death of any employee

covered by . . . the Longshoremen’s and Harbor Worker's

Compensation Act, or any of its extensions . . .”).

Id. (emphasis added).20 The Court does not find that this footnote has the

import plaintiff attributes to it.

In the Savoie opinion, the court makes clear that it is discussing the

applicable version of state law. For example, in the footnote upon which

plaintiff relies, the Fifth Circuit noted that plaintiff’s exposure “occurred

before the Louisiana Worker’s Compensation Act was amended in 1989 to

eliminate any concurrent coverage between that Act and the federal

Longshore and Harbor Workers’ Compensation Act.” Id. (citing La. Rev.

Stat. 23:1035.2). If the court were not referring to the appropriate version of

state law, there would have been no need to discuss the elimination of

concurrent state-federal workers’ compensation coverage. The references to

state law in the same footnote and throughout the opinion support the

Court’s conclusion that the Fifth Circuit was referring to the applicable state

law, not which version of the LHWCA applies. See id. at 464 (“[Wrongful

death] claims are governed by the [state] law in effect at the time the

decedent passes away,” but “survival claims based on asbestos exposure are

governed by the [state] law in effect when the exposure occurred.” (first

citing Rando v. Anco Insulations, Inc., 16 So.3d 1065, 1072 (La. 2009),

second citing (citing Landry v. Avondale Indus., Inc., 877 So.2d 970, 972

20 R. Doc. 44 at 6.

(La. 2004)). Further, the Fifth Circuit expressly stated that it did not decide

whether defendant had a colorable federal preemption defense. Id. at 466.

As one Fifth Circuit panel cannot overrule another without an intervening

change in the law, see United States v. Darrington, 351 F.3d 632, 634 (5th

Cir. 2003), the Court does not find that the Fifth Circuit overruled its earlier,

reasoned decision in Castorina by way of dicta in a footnote.

Because Castorina’s manifestation rule controls, the Court applies the

LHWCA as it existed in 2019, when plaintiff’s lung cancer manifested itself.

2. Applicability of the Post-1972 LHWCA to Plaintiff’s

Injuries

Since the 1972 amendments, the LHWCA covers injuries of workers

who meet the Act’s “status” and “situs” requirements. See New Orleans

Depot Servs. v. Dir., Office of Worker’s Comp. Programs, 718 F.3d 384, 389

(5th Cir. 2013). The “status” requirement limits application of the LHWCA

to “traditional maritime occupations.” Id.; see 33 U.S.C. § 902(3) (defining

“employee” as “any person engaged in maritime employment, including any

longshoreman or other person engaged in longshoring operations, and any

harbor-worker including a ship repairman, shipbuilder, and ship-breaker”

(emphasis added)). The Fifth Circuit has found that the status test is

satisfied when the person is “directly involved in an ongoing shipbuilding

operation.” Ingalls Shipbuilding Corp. v. Morgan, 551 F.2d 61, 62 (5th Cir.

1977).

Defendants state that, as a “shipfitter” plaintiff was engaged in

shipbuilding while employed by Avondale.21 Plaintiff agrees that he worked

as a shipfitter,22 but also presents evidence that he worked as a “tacker” and

“laborer.”23 Plaintiff’s characterizations notwithstanding, there is no

genuine dispute that plaintiff was a “harbor-worker.” See McLaurin v. Noble

Drilling (US) Inc., 529 F.3d 285, 289 (5th Cir. 2008) (stating that the

LHWCA applies to certain types of maritime workers, including

“longshoremen, shipbuilders, ship repairers, and various harbor workers,

such as carpenters, cleaners, or painters”); see also 1 Robert Force and

Martin J. Norris, The Law of Maritime Personal Injuries § 3:9 (5th ed.)

(Stating that the LHWCA specifically includes “‘any harborworker,’” which

includes “shipcleaners, tank cleaners, riggers, carpenters, ship ceilers, cargo

checkers, cargo weighers, cargo talleyers, port watchmen, electricians,

painters, mechanics, etc.”) All of Hulin’s deposition testimony indicates that

he worked as a “harbor-worker” when the exposures occurred. For example,

21 R. Doc. 39-1 at 4.

22 R. Doc. 1 at 2-3, II ¶ 1 (Plaintiff’s Statement of Contested Material

Facts).

23 R. Doc. 44-2 at 1 (Hulin Affidavit).

Hulin stated that he worked as a “fitter” and “built a bunch of [destroyer

escorts].”24 In the course of this work, he would “cut a hole [in the bulkhead

of the destroyer escorts] to pass electric wire” and would sometimes be

exposed to asbestos.25 He also described a time he did cleanup work on a

hospital ship.26 See McLaurin, 529 F.3d at 289 (stating that “harbor

workers” include “cleaners”). In the affidavit attached to plaintiff’s response

to defendant’s motion for summary judgment, Hulin states that he “worked

in the (land-based) insulation shop at Avondale’s Main Yard,” and his work

there “included but was not limited to cutting asbestos insulation templates

for later installation on vessels.”27 This type of work satisfies the status test

because it was an “essential step of the shipbuilding process.” Morgan, 551

F.2d at 62 (holding that a worker who died when a steel plate he was cleaning

fell on him because the “cleaning task was an essential step of the

shipbuilding process”). Although Hulin’s affidavit indicates that he did other

work in the insulation shop, he does not state what it was. Plaintiff failed to

produce any evidence creating a material fact issue as to whether Hulin was

24 R. Doc. 39-3 at 15-20 (Hulin Deposition Volume I).

25 Id. at 16.

26 Id. at 40.

27 R. Doc. 44-2 at 1, ¶ 5 (Hulin Affidavit).

anything but a “harbor-worker.” 33 U.S.C. § 902(3). Thus, the Court finds

that the LHWCA’s status test is satisfied.

Second, the “situs” test, extended by Congress in 1972, requires that

the injury occur on the “navigable waters of the United States” and “any

adjoining pier, wharf, dry dock, terminal, building way, marine railway, or

other adjoining area customarily used by an employer in loading, unloading,

repairing, dismantling, or building a vessel.” 33 U.S.C. § 903(a); see also Sun

Ship, Inc., 447 U.S. at 719 (“In 1972, Congress . . . extend[ed] the LHWCA

landward beyond the shoreline of the navigable waters of the United

States.”). There is no dispute that plaintiff’s exposure to asbestos occurred

in a covered situs—Avondale Shipyards.28 See Pitre v. Huntington Ingalls,

Inc., No. 17-7029, 2018 WL 2010026, at *3 (E.D. La. Apr. 30, 2018)

(“Avondale’s vessel construction and repair activities occurred on the west

bank of the Mississippi River adjacent to navigable waters.”). As discussed

above, plaintiff disputes the applicable version of the law—not whether the

locations are covered under the post-1972 LHWCA.29 The Court finds that

Avondale shipyards, located on and adjacent to the navigable waters of the

28 R. Doc. 39-5 at 2, ¶ 6 (Bossier Affidavit).

29 R. Doc. 44 at 6.

United States, is a covered situs.30 See id. Plaintiff’s status falls within the

coverage of the LHWCA, and his injuries occurred on a covered situs.

Therefore, plaintiff could have brought a claim under the LHWCA. The

Court proceeds to answer the question of whether the Act preempts

plaintiff’s state law negligence claims.

B. LHWCA Preemption

Defendants argue that the LHWCA immunizes it from tort liability and

that it preempts the Louisiana law under which plaintiff brings his tort

claims.31 The question here is whether the LHWCA’s exclusivity provision

has preemptive effect over state law tort claims. The exclusivity provision

states as follows:

The liability of an employer prescribed in section 904 of this title

shall be exclusive and in place of all other liability of such

employer to the employee, his legal representative, husband or

wife, parents, dependents, next of kin, and anyone otherwise

entitled to recover damages from such employer at law or in

admiralty on account of such injury or death . . . .

33 U.S.C. § 905(a).

30 See R. Doc. 39-5 at 2, ¶ 6 (Bossier Affidavit) (“Avondale was at all times

an employer whose employees were employed in maritime employment

upon the navigable waters of the United States of America, and their adjacent

banks specifically, on the west bank of the Mississippi River in Avondale,

Louisiana.”).

31 R. Doc. 39-1 at 5-13.

The United States Supreme Court has delineated a “twilight zone” of

concurrent jurisdiction between the LHWCA and state law workmen’s

compensation statutes. See Davis v. Department of Labor and Indus. of

Washington, 317 U.S. 249 (1942) (establishing regime of concurrent

jurisdiction in “twilight zone”); see also Hetzel v. Bethlehem Steel Corp., 50

F.3d 360, 363-64 (5th Cir. 1995) (discussing cases). After the 1972

amendments to the LHWCA, the Supreme Court, in Sun Ship, Inc.,

addressed the issue of whether the 1972 extension of the LHWCA’s coverage

displaced states from applying their own workmen’s compensation schemes

to land-based injuries that fell under expanded federal coverage. 447 U.S.

715. The Supreme Court unanimously answered the question in the negative.

The Supreme Court specifically rejected the argument that concurrent

jurisdiction was inappropriate because “concurrent jurisdiction could result

in more favorable awards for workers’ injuries than under an exclusively

federal compensation system.” Id. at 724. The Court found that the exclusive

remedy provision of § 905(a) of the LHWCA was no obstacle to concurrent

state compensation remedies.

This case is a twilight zone case because the relevant asbestos exposure

occurred on land at the Avondale Shipyards where vessels were being

constructed. Cf. Cobb v. Sipco Servs. & Marine, Inc., No. 95-2131, 1997 WL

159491, at *6 (E.D. La. Mar. 27, 1997). Indeed, plaintiff asks the Court to

consider only this land-based exposure, even though exposure also occurred

over navigable waters.32 Based on Sun Ship, it is apparent that Louisiana

could have provided a workmen’s compensation remedy to Hulin and that

the LHWCA would not preempt such a recovery. 447 U.S. at 725-26. But,

plaintiff does not seek compensation under Louisiana’s workers’

compensation regime. Rather, he asserts only state law negligence claims

against the Avondale interests.33 Thus, the question is whether the LHWCA

preempts state law negligence claims for injuries in the twilight zone.

Federal law applies to questions of preemption. Hetzel v. Bethlehem

Steel Corp., 50 F.3d 360, 363 (5th Cir. 1995). Federal law can preempt state

law in three ways: (1) express preemption, where Congress expresses an

explicit intent to preempt state law; (2) field preemption, where the “sheer

comprehensiveness” of the federal scheme implies congressional intent to

preempt state regulation in the area; or (3) conflict preemption, where the

state law either directly conflicts with the federal law or interferes with the

regulatory program established by Congress. Id.

32 R. Doc. 44 at 3.

33 R. Doc. 1-2 at 11, ¶¶ 38-50 (Original Complaint).

The text of the LHWCA, the intention underlying the statute, and the

weight of authority make clear that plaintiff’s state law tort claims are conflict

preempted. The LHWCA’s exclusivity provision provides that the liability

imposed in § 904 is “in place” of the right to “recover damages” at law. 33

U.S.C. § 905(a). The plain language of this provision “evidences an

unmistakable intention to embody the quid pro quo that defines most

workmen’s compensation statute.” Cobb, 1997 WL 159491, at *7 (citing Peter

v. Hess Oil Virgin Islands Corp., 903 F.2d 935, 950 (3d Cir. 1990)).

Specifically, the employee gets the benefit of no-fault compensation, and the

employer enjoys immunity from tort liability for damages. Id. The Supreme

Court has also recognized this exchange:

[T]he [LHWCA is] not a simple remedial statute intended for the

benefit of the workers. Rather, it was designed to strike a balance

between the concerns of the longshoremen and harbor workers

on the one hand, and their employers on the other. Employers

relinquish their defenses to tort actions in exchange for limited

and predictable liability. Employees accepted the limited

recovery because they receive prompt relief without the expense,

uncertainty, and delay that tort actions entail.

Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S. 624, 636 (1983).

Allowing state law tort claims would contradict the text of the statute and

would frustrate the Act’s purpose by undermining the quid pro quo.

Indeed, several Courts have recognized as much. The Fifth Circuit held

in Rosetti v. Avondale Shipyards, Inc., 821 F.2d 1083, 1085 (5th Cir. 1987),

that the LHWCA bars a “state law negligence claim,” because “[u]nder the

LHWCA, workers compensation is the exclusive remedy for an injured

employee against his employer.” Further, in Hetzel v. Bethlehem Steel Corp,

50 F.3d 360, 366-67 (5th Cir. 1995), the Fifth Circuit found that

“[p]reemption of [a] state [tort] act is required to avoid frustration of the

policies and purpose behind the LHWCA.” In Hetzel, the court reasoned that

“[c]ongressional policy would be frustrated if an injured worker were allowed

to collect benefits under the Act, and then sue his employer under a state

statutory tort theory.” Id. This Court has also held that the LHWCA

preempts a state tort claim. See Cobb, 1997 WL 159491, at *8 ([A]pplication

of Louisiana tort law, which plaintiff concedes is not a workmen’s

compensation remedy, does not further the availability of no fault

compensation, and it obstructs the purposes of the LHWCA.”). The Third

Circuit in Peter v. Hess Oil Virgin Islands Corp., similarly concluded that

Ҥ 905(a) [of the LHWCA] and the Supremacy Clause bar the Virgin Islands

from imposing negligence liability on [a covered employer.]” 903 F.2d at

953. The Peter court specifically noted that Congress “intended that

compensation, not tort damages, were to be the primary source of relief for

workplace injuries for longshoremen against their employers.” Id. at 952.

Against this binding and persuasive authority, plaintiff argues that his

case is distinguishable because, unlike the plaintiffs in Rosetti, Hetzel, Cobb,

and Peter, he (1) is not simultaneously seeking benefits under the LHWCA,

or (2) has not already received LHWCA benefits.34 But plaintiff’s distinctions

are unavailing. The Fifth Circuit has made clear that, if the LHWCA covers

an employee’s injury, his only remedy lies in workers’ compensation. Any

other result would conflict with LHWCA’s text and undermine the quid pro

quo that Congress enacted. For these reasons, the Court finds that the

LHWCA preempts plaintiff’s state law negligence claims.

C. Due Process and Divestment of Tort Claim

Finally, plaintiff argues that applying the LHWCA retroactively to an

injury arising from land-based exposures occurring before the 1972

amendments unconstitutionally divests him of a property right in his

accrued state law negligence claims.35 He contends that such result amounts

to a denial of due process.36

1. Retroactivity of the LHWCA

Although “Congress has the power to enact laws with retrospective

effect,” in Landgraf v. USI Film Products, 511 U.S. 244 (1994), the Supreme

34 R. Doc. 44 at 21-23

35 Id. at 16-17.

36 R. Doc. 44 at 16-17.

Court recognized a presumption against retroactivity and delineated a test to

assess whether a statute is retroactive. Terrazaz-Hernandez v. Barr, 924

F.3d 768, 772 (5th Cir. 2019). As the test is construed by the Fifth Circuit,

the Court must first “determine whether Congress has expressly prescribed

the statute’s proper reach.” Id. (quoting Landgraf, 511 U.S. at 28). If

Congress clearly intended the statute to be retroactive, the inquiry ends. Id.

If not, the Court must proceed to the second step and ask, “whether

retroactive application would impair rights a party possessed when he acted,

increase a party’s liability for past conduct, or impose new duties with respect

to transactions already completed.” Id. (quotation marks and citation

omitted).

Here, the Court finds that Congress expressly prescribed that the

amended statute applies to latent disease claims arising from exposures

occurring before the amendment dates. In the 1984 amendments to the Act,

Congress stated that the amendments “shall be effective on the date of

enactment,” i.e., September 28, 1984, and “shall apply . . . with respect to

claims filed after” that date. Pub.L. No. 98-426, § 28(a), 98 Stat. 1639, 1655.

One of the changes to the statute was the express adoption of the

manifestation rule. See id. at § 28(g)(1) (“[I]n the case of an occupational

disease . . . an injury shall be deemed to arise on the date on which the

employee or claimant becomes aware . . . of the disease. . . .”). Together,

these provisions indicate that the manifestation rule applies to claims filed

after September 28, 1984, regardless of whether the exposures occurred

before the amendment date. Because the date of injury controls which

version of the LHWCA applies, see Castorina, 758 F.2d at 1029, this is an

express recognition by Congress that the LHWCA, as amended in 1984,

would apply to claims arising from exposures, like plaintiff’s, that occurred

before the amendments.

The Eleventh Circuit reasoned similarly in Alabama Dry Dock and

Shipping Corp. v. Sowell, when it concluded that the LHWCA’s statute of

limitations, as amended in 1984, was retroactive. 933 F.2d 1561 (11th Cir.

1991), overruled on other grounds, Bath Iron Works Corp. v. Director,

Office of Workers’ Comp. Programs, 506 U.S. 153 (1993). The Eleventh

Circuit, discussing the 1984 amendments to the LHWCA, stated:

The provision that “the amendments made by this Act shall be

effective on the date of enactment of this Act and shall apply . . .

to claims filed after such date” is obviously not necessary to apply

the new law to claims arising after the effective date. The only

sensible reading of the provision, then, is that Congress was

addressing claims that arose before the effective date of the

statute but were filed after the effective date.

Id. at 1564. The same logic applies here. Congress would have no reason to

prescribe that the manifestation rule applies to claims “filed” after the

amendment date if all it meant was that claims “arising” after the

amendment date should apply the manifestation rule.

2. Due Process

The Court next addresses plaintiff’s argument that divestment of his

tort claims violates due process. Although plaintiff cites to Louisiana

Supreme Court precedent,37 this issue is governed by federal constitutional

law. Hetzel, 50 F.3d at 363 (“The Erie doctrine does not apply . . . in matters

governed by the federal Constitution or by acts of Congress.”) (quoting

Grantham v. Avondale Indus., Inc. 964 F.2d 471, 473-74 (5th Cir. 1992)).

The Court notes that the federal courts have generally found that rights

in tort claims do not vest until there is a final, unreviewable judgment. See

Hammond v. United States, 786 F.2d 8, 12 (1st Cir. 1986); In re TMI, 89 F.3d

1106, 1113 (3d Cir. 1996); Zeran v. Am. Online, Inc., 129 F.3d 327, 335 (4th

Cir. 1997); Lunsford v. Price, 885 F.2d 236, 241 n.13 (5th Cir. 1989); Arbour

v. Jenkins, 903 F.2d 416, 420 (6th Cir. 1990); Symens v. SmithKline

Beecham Corp., 152 F.3d 1050, 1056 n.3 (8th Cir. 1998); Grimesy v. Huff,

876 F.2d 738, 744 (9th Cir. 1989); Salmon v. Schwarz, 948 F.2d 1131, 1143

(10th Cir. 1991); Sowell v. American Cyanamid Co., 888 F.2d 802, 805 (11th

37 R. Doc. 44 at 16.

Cir. 1989). But, even if there is a vested tort claim here, Hulin has not

satisfied the constitutional standard to establish a due process violation.

The U.S. Supreme Court has held that Congress’s acts—even

retroactive legislation—enjoy a “presumption of constitutionality.” See

Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976); see also

Landgraf, 511 U.S. at 272 (“[T]he constitutional impediments to retroactive

civil legislation are now modest.”). In Turner Elkhorn Mining, the Supreme

Court held that the Due Process Clause did not bar Congress from enacting

a workers’ compensation law that retroactively imposed liability on coal

mine operators. 428 U.S. at 19-20. The test the Supreme Court applied was

whether the party complaining of the due process violation carried its burden

of showing that Congress “acted in an arbitrary and irrational way.” Id. at

15-18. Ultimately, the Court found that imposing liability on employers for

“disabilities bred in the past” is a “rational measure” to spread the costs of

the disabilities. Id. at 18

Similarly, at least three circuit courts have applied a “rational basis”

test to evaluate the constitutionality of retroactive legislation abolishing or

affecting tort actions. See Hammond, 786 F.2d at 13; In re TMI, 89 F.3d at

1113; In re Consolidated U.S. Atmospheric Testing Litig., 820 F.2d 982, 990-

91 (9th Cir. 1987). In Hammond the First Circuit held that Congress was

“neither arbitrary nor irrational” when it enacted 42 U.S.C. § 2212, which

retroactively barred the plaintiff’s accrued common law and state statutory

causes of action. 786 F.2d at 13-15 (“[P]laintiff has not met her burden of

showing that § 2212 is wholly arbitrary and irrational in purpose and effect,

i.e., not reasonably related to a legitimate congressional purpose.”). Section

2212 allowed the United States to substitute itself as party in suits arising

from the atomic weapons testing program and made the Federal Tort Claims

Act (“FTCA”) the sole remedy. Id. at 10. In its rational basis review, the court

first found that Congress had a legitimate end where it sought to protect

private parties from suit. Id. at 13-14. Then, it found that Congress’s chosen

means—allowing substitution by the United States and making the FTCA the

sole remedy—was rational because it placed all putative plaintiffs in the same

position as any other party who sues the federal government in tort. Id. at

14. When faced with the same issue, the Ninth Circuit adopted the

Hammond court’s analysis. In re Consolidated U.S. Atmospheric Testing

Litig., 820 F.2d 982, 990-92; see also Ileto v. Glock, Inc., 565 F.3d, 1126,

1140-41 (9th Cir. 2009) (upholding retroactive application of the Protection

of Lawful Commerce in Arms Act (“PLCAA”), which preempts tort claims

against firearm manufacturers, because “Congress rationally could find that

. . . interstate and foreign commerce of firearms would be affected” by the

PLCAA). The Third Circuit in In re TMI, held that retroactive application of

choice of law provisions in the Price-Anderson Amendments Act of 1988,

which had the effect of barring the plaintiffs’ pending state law personal

injury claims, was “not arbitrary and irrational,” because retroactive

application of the act furthered Congress’s goals of uniformity, equity, and

efficiency in disposition of claims. 89 F.3d at 1113-15.

Under Turner Elkhorn Mining and the persuasive authority in the

First, Third, and Ninth Circuits, the Court must ask whether plaintiff carried

his burden of showing that Congress acted arbitrarily and irrationally by

immunizing employers covered by the LHWCA from tort claims, even if

those claims already accrued under state law. Clearly, he has not. Plaintiff

makes conclusory statements that the law would “unconstitutionally divest”

him of his “vested right” if the Court finds that the LHWCA preempts his

state law tort claims and immunizes defendants from them.38 Without more,

these conclusory statements do not show that Congress acted arbitrarily and

irrationally.

Congress had a rational basis to retroactively expand the extent of the

LHWCA’s coverage of exposures to hazardous materials, like asbestos, that

cause long-latency occupational diseases. The ends of the LHWCA, enacting

38 R. Doc. 44 at 16-17.

the quid pro quo of workers’ compensation remedies, are unquestionably

legitimate. See Turner Elkhorn Mining, 428 U.S. at 15 (noting that Congress

has the authority “to allocate the interlocking economic rights and duties of

employers and employees upon workmen’s compensation principles.”); cf.

Hammond, 768 F.2d at 13 (finding that Congress had a “rational” or

“legitimate” reason when it relieved private contractors from liability for tort

claims). Additionally, the Court cannot say that Congress’s decision to

retroactively apply the LHWCA to toxic exposures was an irrational or

arbitrary way to achieve that purpose. Cf. In re TMI, 89 F.3d at 1113

(upholding retroactive application of a choice of law provision where it

furthered the relevant act’s goals of “uniformity, equity, and efficiency”). By

enacting the manifestation rule, Congress ensured that workers like plaintiff

fell under the protection of the LHWCA. Congress was not merely divesting

plaintiff of his state law negligence claims, it was substituting a no-fault

remedy for the uncertain liability of common law torts.

For these reasons, the Court finds that plaintiff has failed to carry his

burden of establishing a due process violation. The Court must grant

defendants’ motion for summary judgment.

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS the motion for summary

judgment. Plaintiffs state law claims against the Avondale Interests and the

London Market Insurers are DISMISSED WITH PREJUDICE.

New Orleans, Louisiana, this_14th day of October, 2020.

; SARAH S. VANCE

UNITED STATES DISTRICT JUDGE

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