Barrosse v. Huntington Ingalls Incorporated

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

RONALD BARROSSE CIVIL ACTION

VERSUS NO. 20-2042-WBV-JVM

HUNTINGTON INGALLS SECTION: D (1)

INCORPORATED, ET AL.

ORDER AND REASONS

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.

1 R. Doc. 86. Lamorak Insurance Company was sued as the alleged insurer of Avondale Industries,

Inc. and some of its executive officers. R. Doc. 1-1 at p. 20; R. Doc. 77 at pp. 13, 20; R. Doc. 77-2.

2 R. Doc. 101.

3 R. Doc. 114.

4 R. Doc. 124.

I. FACTUAL BACKGROUND

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

5 R. Doc. 1-1, generally, and at p. 20.

6 Id. at ¶ 4.

7 Id. at ¶¶ 4-5, 12-14.

8 Id. at ¶¶ 1, 4, 26 and at p. 19.

9 R. Doc. 1-2 at pp. 2-6.

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

10 Id. at ¶¶ 25-41.

11 R. Doc. 1 at Introductory Paragraph.

12 Id. at ¶ 3 (citing R. Doc. 1-2 at pp. 2-15).

13 R. Doc. 86-4 at p. 2.

14 R. Doc. 67.

15 R. Docs. 69 & 76.

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 off-

site 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

16 R. Docs. 76 & 77; R. Doc. 77 at ¶ 4.

17 R. Doc. 77 at ¶ 6.

18 Id. at ¶ 7 (emphasis in original).

19 Id. at ¶¶ 32-49.

20 R. Doc. 86.

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

II. LEGAL STANDARD

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

21 R. Doc. 86-1 at pp. 1-2.

22 R. Doc. 101 at pp. 2-3.

23 Id. at pp. 30-32.

24 R. Doc. 114.

25 R. Doc. 124.

26 Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265

(1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202

(1986).

27 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008)

(citations omitted).

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

28 Id. (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)) (internal quotation marks

omitted).

29 Delta & Pine Land Co., 530 F.3d at 399 (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505).

30 International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991).

31 Id. at 1265.

32 See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

33 Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553 (quoting Fed. R. Civ. P. 56(e)).

III. ANALYSIS

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

34 MMR Constructors, Inc. v. Dir., Office of Workers’ Comp. Programs, 954 F.3d 259, 262 (5th Cir.

2020).

35 Id. (citing 33 U.S.C. § 903(a) (pre-1972)).

36 Sun Ship, Inc. v. Pennsylvania. 447 U.S. 715, 719, 100 S.Ct. 2432, 2436, 65 L.Ed.2d 458 (1980) (citing

Pub. L. No. 92-576, 86 Stat. 1251, amending 33 U.S.C. § 903(a)).

37 Sun Ship, Inc., 447 U.S. at 719, 100 S.Ct. at 2436.

38 R. Doc. 86-1 at p. 5 (citing Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1031 (5th Cir. 1985);

Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1290 (9th Cir. 1983); SAIF Corp./Oregon Ship v.

Johnson, 908 F.2d 1434 (9th Cir. 1990); Newport News Shipbuilding and Dry Dock Co. v. Harris, 934

F.2d 548, 551-52 (4th Cir. 1991); Ins. Co. of N. Am. v. U.S. Dep’t of Labor, Office of Workers Comp.

Programs, 969 F.2d 1400 (2 d Cir. 1992); Hulin, 2020 WL 6059645, at *3-4; Pitre v. Huntington Ingalls,

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

39 R. Doc. 86-1 at pp. 5-6.

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 May 1973, and alleged that he was diagnosed with

lung cancer in July 2019 as a result of regular exposures to asbestos at Avondale

Shipyard prior to 1972.42 As in this case, the Avondale defendants in Hulin argued

that the plaintiff’s state law negligence claims were preempted by the LHWCA, and

the parties disputed whether the pre-1972 or post1972 version of the LHWCA

applied.43 Citing the Fifth Circuit’s decision in Castorina v. Lykes Bros. S.S. Co., the

Hulin court reasoned that, “Courts use the ‘date of injury’ to determine which version

of the LHWCA applies.”44 The Hulin court further explained that, “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.”45

40 R. Doc. 101 at pp. 21-23 (citing Savoie v. Huntington Ingalls, Inc., 817 F.3d 457 (5th Cir. 2016),

overruled on other grounds by Latiolais v. Huntington Ingalls, Incorporated, 951 F.3d 286 (5th Cir.

2020); Adams v. Ethyl Corp., 838 Fed.Appx. 822 (5th Cir. 2020)).

41 Civ. A. No. 20-924, 2020 WL 6059645 (E.D. La. Oct. 14, 2020) (Vance, J.).

42 Id. at * 1 (citations omitted).

43 Id. at *2.

44 Id. at *3 (citing Castorina, 758 F.2d 1025, 1029 (5th Cir. 1985)).

45 Hulin, Civ. A. No. 20-924, 2020 WL 6059645 at *3 (citing Castorina, 758 F.2d at 1031).

In Castorina, the plaintiff’s exposure occurred between 1965 and 1972, but his

disease (asbestosis) manifested in 1979.46 Relying upon judicial authority from

outside this Circuit, the Fifth Circuit held that, “[i]n cases of occupational diseases

with long latency periods, the trend is clearly toward the application of the time of

manifestation rule.”47 The Fifth Circuit reasoned that, “The [LHWCA] is not

concerned with pathology, but with industrial disability; and a disease is no disease

until it manifests itself.”48 The Fifth Circuit found additional support for its

conclusion in the 1984 amendments to the LHWCA, evidencing Congress’s intent in

its express adoption of the manifestation rule.49 In the 1984 amendments to the

LHWCA, Congress included the following 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 . . . .50

The Fifth Circuit concluded that, “Although no such language appears in the 1972

amendments, it is clear that Congress has now adopted the ‘date of manifestation’

approach to determining the date of injury under the [LHWCA] . . . .”51

46 Castorina, 758 F.2d at 1027-28.

47 Id. at 1031 (quoting Todd Shipyards Corp. v. Black, 717 F.2d 1280, 1290 (9th Cir. 1983)) (internal

quotation marks omitted).

48 Castorina, 758 F.2d at 1031 (quoting Grain Handling Co. v. Sweeney, 102 F.2d 464 (2d Cir. 1939))

(internal quotation marks omitted).

49 Castorina, 758 F.2d at 1031 (citing Longshore and Harbor Workers’ Compensation Act Amendments

of 1984, Pub. L. No. 98-426, § 28(g)(1), 98 Stat. 1639, 1655 (September 28, 1984)).

50 Longshore and Harbor Workers’ Compensation Act Amendments of 1984, Pub. L. No. 98-426, §

28(g)(1), 98 Stat. 1639 (September 28, 1984).

51 Castorina, 758 F.2d at 1031.

Relying upon Castorina and the 1984 amendments, the Hulin court concluded

that the plaintiff’s injury in that case was deemed to arise on the date it manifested,

which was 2019.52 As such, the Hulin court applied the LHWCA as it existed in 2019,

the date of the plaintiff’s injury.53 In this case, Barrosse’s injury, malignant

mesothelioma, manifested at the time of his diagnosis in March 2020.54 For the same

reasons set forth in Hulin, this Court concludes that the post-1972 version of the

LHWCA, which was in effect when the disease manifested, applies here. The Court

further rejects Plaintiffs’ argument that more recent decisions from the Fifth Circuit,

including Savoie v. Huntington Ingalls, Inc.55 and Adams v. Ethyl Corporation,56

require this Court to apply the version of the LHWCA that was in effect at the time

of Barrosse’s exposure. The Court acknowledges that in Savoie, the Fifth Circuit held

that:

But as a survival action allows survivors to bring the claims the

decedent could have asserted were he still alive, survival claims based

on asbestos exposure are governed by the law in effect when the

exposure occurred. See, e.g., Rando v. Anco Insulations Inc., 16 So.3d

1065, 1072 (La. 2009) (explaining that “law effective on the date of []

significant exposure to asbestos” applies to claim alleging occupational

asbestos exposure) (internal quotations omitted). Because Savoie

worked at the shipyard for almost half a century prior to Louisiana’s

abolition of strict liability, that pre-1996 law governs.57

Plaintiffs implore this Court to construe Savoie as holding that the version of the

LHWCA on the date of exposure applies in this case. That request ignores the

52 Hulin v. Huntington Ingalls, Inc., Civ. A. No. 20-924, 2020 WL 6059645, at *3 (E.D. La. Oct. 14,

2020).

53 Id.

54 See, R. Doc. 101 at p. 1.

55 817 F.3d 457 (5th Cir. 2016).

56 838 Fed.Appx. 822 (5th Cir. 2020).

57 817 F.3d at 464 (emphasis added).

italicized language above, which is a clear reference to state law and Louisiana’s

abolishment of strict liability in 1996.58 It is evident to the Court that Savoie only

addressed which version of Louisiana law, not which version of the LHWCA, applied

to the plaintiff’s claims in that case.

The Court likewise rejects as baseless Plaintiffs’ argument that the Fifth

Circuit held in Adams v. Ethyl Corporation that the law in effect at the time of

exposure determines which version of the LHWCA applies to an asbestos claim. The

Court recognizes that the Adams Court held, “When a case involves long-latency

occupational diseases like mesothelioma, the law in effect at the time of the exposure

applies.”59 As in Savoie, however, it is clear that in Adams, the Fifth Circuit was

referring to the state law applicable to the strict liability claims at issue in that case.

This is evident from the Fifth Circuit subsequently stating that, “Here, the applicable

law is the Louisiana Civil Code article 2317 in effect between 1955 and 1959,” the

alleged dates of exposure.60 Thus, like Savoie, the Fifth Circuit in Adams only

addressed which version of Louisiana law applied to the strict liability claims at issue,

not which version of the LHWCA applied to such claims.

Nonetheless, the Court recognizes that the Fifth Circuit made additional

comments in Savoie regarding the law applicable to asbestos exposure claims in the

context of the defendants’ burden of proving removal was appropriate under the

58 Id. (“Strict liability was abolished in Louisiana in 1996.”) (quotation marks omitted) (citing

authority).

59 838 Fed.Appx. 822, 829 (5th Cir. 2020) (citing Watts v. Georgia-Pac. Corp., 2012-0620 (La. App. 1

Cir. 9/16/13), 135 So.3d 53, 59).

60 Adams, 838 Fed.Appx. at 825, 829.

federal officer removal statute, 28 U.S.C. § 1442(a)(1). In determining whether

removal was proper, the Fifth Circuit mentioned that the defendants had alleged two

“colorable” federal defenses, the federal contractor defense and a preemption defense

under the LHWCA.61 The Fifth Circuit, however, remanded the case for the district

court to determine whether the defenses were colorable. In doing so, the Fifth Circuit

specified that, “As only the survival claims alleging strict liability satisfy the first two

requirements of federal officer removal, it is only defenses to those claims – that is,

defenses existing under the law that existed when Savoie was exposed to asbestos –

that should be considered in determining whether the shipyard asserts colorable

federal defenses.”62 In a footnote, the Fifth Circuit further explained that,

This means that Defendant’s preemption defense is governed by the law

at the time Savoie 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 . . .”).63

The Court agrees with the Hulin court’s assessment that the foregoing

language constitutes non-binding dicta, as the Savoie court explicitly stated that it

did not decide whether the defendants had asserted a colorable federal preemption

defense.64 The Court further finds the footnote reference to the 1989 amendment to

61 Savoie, 817 F.3d at 466 (citations omitted).

62 Id. (emphasis added).

63 Id. at n.6.

64 Hulin v. Huntington Ingalls, Inc., Civ. A. No. 20-924, 2020 WL 6059645, at *3 (E.D. La. Oct. 14,

2020); Savoie, 817 F.3d at 466 (“As the district court never had the opportunity to consider these

defenses are colorable, we will remand to allow it to do so in the first instance.”) (citations omitted).

the Louisiana Worker’s Compensation Act, which eliminated concurrent jurisdiction

between that statute and the LHWCA, indicates that the Fifth Circuit was alluding

to the applicable version of state law rather than the applicable version of the

LHWCA. Finally, the Savoie court does not mention its prior ruling in Castorina,65

or otherwise suggest that the foregoing language represents a departure from the

prior ruling. It is well established that one Fifth Circuit panel cannot overrule

another without an intervening change in the law.66 No party has provided, nor has

the Court found, any support for the claim that the Fifth Circuit overruled its earlier

decision in Castorina through the dicta in Savoie.

B. Application of the Post-1972 Version of the LHWCA to Barrosse’s

Injuries.

Since 1972, the LHWCA provides workers compensation benefits to covered

employees who meet the Act’s “status” and “situs” requirements.67 To meet the status

requirement, an employee must be “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 . . . .”68 According

to the Fifth Circuit, the status test is satisfied when the person is “directly involved

in an ongoing shipbuilding operation.”69 To meet the situs requirement, “disability

65 Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1031 (5th Cir. 1985).

66 United States v. Darrington, 351 F.3d 632, 634 (5th Cir. 2003); Tigner v. Cockrell, 264 F.3d 521, 526

(5th Cir. 2001) (citing Tucker v. Johnson, 242 F.3d 617, 621 n.6 (5th Cir. 2001)).

67 New Orleans Depot Servs. v. Dir., Office of Worker’s Comp. Programs, 718 F.3d 384, 389 (5th Cir.

2013).

68 33 U.S.C. § 902(3)

69 Ingalls Shipbuilding Corp. v. Morgan, 551 F.2d 61, 62 (5th Cir. 1977) (per curiam) (quoting

Jacksonville Shipyards Inc. v. Perdue, 539 F.2d 533, 544 (5th Cir. 1976)) (internal quotation marks

omitted).

or death [must have] result[ed] from an injury occurring upon the navigable waters

of the United States (including 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).”70

1. Barrosse’s Asbestos Exposure at Avondale Shipyard.

The Avondale Interests argue that Barrosse’s asbestos exposure at Avondale

Shipyard satisfies the status test because he worked as an electrician on vessels being

constructed and retrofitted.71 The Avondale Interests assert that Barrosse pulled

cables and installed equipment throughout the vessels, contributing to the

construction and repair process. The Avondale Interests argue that this work clearly

amounts to direct involvement in a shipbuilding operation and qualifies Barrosse as

a “harborworker” under the LHWCA. They note that the court in Hulin specifically

recognized that the term “harborworker” in 33 U.S.C. § 902(3) includes electricians

engaged in shipbuilding and repair.72 Plaintiffs do not dispute these assertions. In

fact, Plaintiffs do not address either the status or situs requirement of the LHWCA

with respect to Barrosse’s alleged exposure on the premises of Avondale Shipyard.73

Plaintiffs assert only that Barrosse’s off-site exposure does not meet the status or

situs test, and dedicate the bulk of their Opposition brief to the issue of preemption.

70 33 U.S.C. § 903(a).

71 R. Doc. 86-1 at p. 7.

72 Id. at p. 8 (citing Hulin v. Huntington Ingalls, Inc., Civ. A. No. 20-923, 2020 WL 6059645, at *4 (E.D.

La. Oct. 14, 2020)).

73 See, generally, R. Doc. 101.

In doing so, Plaintiffs appear to concede that the situs and status requirements are

met for Barrosse’s exposure at Avondale Shipyard.

Barrosse testified during his video deposition that all of his work at Avondale

Shipyard occurred at Wet Dock 1 in the Main Yard, where he initially worked on a

commercial vessel before working exclusively on Destroyer Escorts for the United

States Navy, which involved “mostly new construction.”74 Barrosse testified that

while working on Destroyer Escorts, which are approximately 450 feet long, he

worked throughout the ships “pulling cable” and installing electrical equipment,

explaining that he rolled the cable throughout the ship, sometimes bow-to-stern.75

Based on these facts, and Plaintiffs’ silence on the issue, there is no genuine dispute

that Barrosse was a “harbor worker” under the LHWCA when the exposure at

Avondale Shipyard occurred.76 The Court notes that in Hulin, the judge cited

secondary authority indicating that the LHWCA’s definition of “harborworker”

includes electricians.77 Accordingly, the Court finds that Barrosse’s asbestos

exposure at Avondale Shipyard satisfies the LHWCA’s status requirement.

The Court likewise finds that Barrosse’s exposure at Avondale Shipyard

satisfies the situs requirement of the LHWCA. After the 1972 amendments, the situs

test requires that the injury occur “upon the navigable waters of the United States

74 R. Doc. 86-4 at pp. 6-10.

75 Id. at pp. 14-15.

76 See, McLaurin v. Noble Drilling (US) Inc., 529 F.3d 285, 289 (5th Cir. 2008) (“Under the LHWCA,

those persons injured while working in or near harbor facilities as longshoremen, shipbuilders, ship

repairers, and various harbor workers, such as carpenters, cleaners, or painters are limited to

compensation claims against their employers.”)

77 Hulin v. Huntington Ingalls, Inc., Civ. A. No. 20-923, 2020 WL 6059645, at *4 (E.D. La. Oct. 14,

2020) (citing 1 Robert Force and Martin J. Norris, The Law of Maritime Personal Injuries § 3:9 (5th

ed.)).

(including 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).”78 Barrosse’s asbestos

exposure allegedly occurred while he was working on and around vessels being built

or repaired at Avondale Shipyard.79 According to the Avondale Interests, Avondale

Shipyard was always situated adjacent to a navigable water of the United States of

America, the Mississippi River.80 Plaintiffs do not dispute that Barrosse’s exposure

occurred at Avondale Shipyard, or that Avondale Shipyard was always located along

the Mississippi River. This Court has repeatedly recognized that work performed on

and around vessels being built or repaired at Avondale Shipyard satisfies the situs

requirement.81 Here, Plaintiffs dispute the applicable version of the LHWCA, but not

whether Barrosse’s exposure satisfies the situs test of the LHWCA.82 As in prior

cases, the Court finds that Avondale Shipyard, located on and adjacent to the

navigable waters of the United States, is a covered situs under the LHWCA.

Based on the foregoing, the Court finds that Barrosse’s asbestos exposure at

Avondale Shipyard satisfies the status and situs requirements of the LHWCA. Thus,

Barrosse could have brought an LHWCA claim against the Avondale Interests.

78 33 U.S.C. § 903(a).

79 See, R. Docs. 77 & 86-4.

80 R. Doc. 86-1 at p. 8 (citing R. Doc. 86-5).

81 See, Pitre v. Huntington Ingalls, Inc., Civ. A. No. 17-7029, 2018 WL 2010026, at *3 (E.D. La. Apr.

30, 2018) (Vance, J.); Hulin, Civ. A. No. 20-923, 2020 WL 6059645, at *5.

82 R. Doc. 101 at pp. 21-25.

2. Barrosse’s Off-Site Exposure in His Car and Home.

To the extent Plaintiffs argue that Barrosse’s off-site exposures from the

asbestos dust on his work clothes are not covered by the LHWCA, the Court rejects

that argument as unsupported by the evidence. In Dempster v. Lamorak Insurance

Co., another Section of this Court recently addressed similar allegations that off-site

exposure to asbestos dust carried home on an Avondale employee’s clothing was not

covered under the LHWCA.83 The Dempster court recognized that the LHWCA

defines the term “injury” as “an accidental injury or death arising out of and in the

course of employment,”84 and that:

To occur in the course of employment, an injury must occur at a time

when the employee may reasonably be said to be engaged in the

employer’s business, at a place where the employee may reasonably be

expected to be in connection with the employment, and while the

employee was reasonably fulfilling the duties of his or her employment

or engaged in doing something incidental thereto.85

The Dempster court further held that, “The words ‘arising out of’ instruct that the

employment must have caused the injury.”86 The plaintiff in Dempster argued that

the off-site exposures were not covered under the LHWCA based upon the Supreme

Court’s decision in Voehl v. Indem. Ins. Co. of North America, wherein the Court noted

the “general rule” that, “injuries sustained by employees when going to or returning

from their regular place of work are not deemed to arise out of and in the course of

83 Civ. A. No. 20-95, 2020 WL 5071115, at *7 (E.D. La. Aug. 26, 2020) (Brown, C.J.).

84 Id. at *6 (quoting 33 U.S.C. § 902(2)) (internal quotation marks omitted).

85 Dempster, Civ. A. No. 20-95, 2020 WL 5071115 at *6 (quoting LHWCA Procedure Manual,

https://www.dol.gov/owcp/dlhwc/lsProMan.htm). The Court notes that the quoted language can be

found at the foregoing web address under “Chapter 0-0300, LHWCA Coverage (Jurisdiction) and

Benefits,” under Paragraph 6 “Employment-Relatedness of the ‘Injury.’”

86 Civ. A. No. 20-95, 2020 WL 5071115 at *6 (quoting Bludworth Shipyard, Inc. v. Lira, 700 F.2d 1046,

1049 (5th Cir. 1983)) (internal quotation marks omitted).

their employment.”87 The Dempster court held that, “This case does not fall within

the coming and going exception because Plaintiffs are alleging both occupational

exposure to asbestos at Avondale and second-hand exposure to asbestos carried home

from Avondale.”88 The Dempster court concluded that, “Under Plaintiff’s theory of

the case, the exposure began at work and then Decedent carried some of the asbestos

material home. Therefore, the alleged injury arose out of and in the course of

Decedent’s employment.”89

The Court reaches the same conclusion in this case. In the Amended

Complaint, Plaintiffs allege that Barrosse was exposed to asbestos fibers in his home

and in his car after leaving work at Avondale Shipyard “due to the asbestos dust and

fibers brought home on his work clothing.”90 Plaintiffs further allege that while

working as an electrician aboard ships being constructed by Avondale Shipyard from

1969 to 1977, Barrosse worked near other crafts, including insulators, who cut and

applied asbestos insulation throughout the ships, which created visible asbestos dust

that got on his clothing.91 Plaintiffs allege that Barrosse wore his dust-laden clothing

home from work every day, including when he walked from the shipyard to his car,

when he drove home in his car, and when he arrived home.92

As in Dempster, Plaintiffs have clearly alleged that Barrosse’s off-site

exposures began while he was working at Avondale Shipyard, and that he thereafter

87 Dempster, Civ. A. No. 20-95, 2020 WL 5071115 at *7 (quoting Voehl, 288 U.S. 162, 165, 53 S.Ct. 380,

77 L.Ed. 676 (1933)) (internal quotation marks omitted).

88 Dempster, Civ. A. No. 20-95, 2020 WL 5071115 at *7.

89 Id.

90 R. Doc. 77 at ¶ 6.

91 Id. at ¶ 6(a) & (b).

92 Id. at ¶ 6 (e) & (f).

carried it home from work on his clothing. The Court rejects Plaintiffs’ assertion that,

“Plaintiffs do not contend that Mr. Barrosse’s off-site exposures began at work,

instead, as discussed below, these off-site exposures occurred each time Mr. Barrosse

inhaled asbestos dust (and sustained contemporaneous injury) in his car and at

home.”93 As the Avondale Interests point out, another Section of this Court has

rejected this argument, finding that such off-site exposures from asbestos carried

home on an Avondale worker’s clothing “is not totally unrelated to work . . . because

you allege they were exposed at work and they just carried some of it home.”94 The

Court finds similarly. Indeed, Barrosse would not have had asbestos dust to inhale,

whether in his car or at home, had it not arisen out of his employment at Avondale

Shipyard. Accordingly, the Court finds that Barrosse’s off-site exposures to asbestos

arose out of and in the course of his employment at Avondale Shipyard, and is

therefore covered by the LHWCA.

C. LHWCA Preemption.

The Court now turns to the crux of the dispute between the parties – whether

the LHWCA’s exclusivity provision in 33 U.S.C. § 905(a) immunizes the Avondale

Interests from tort liability and preempts Plaintiffs’ negligence claims. Under the

LHWCA, “an employer, whether negligent or without fault, has a duty to pay workers’

compensation to a covered employee.”95 The exclusivity provision of the LHWCA

93 R. Doc. 101 at pp. 9-10.

94 R. Doc. 86-1 at pp. 27-28 (citing R. Doc. 86-8). See, R. Doc. 86-8 at p. 8.

95 Moore v. Phillips Petroleum Co., 912 F.2d 789, 791 (5th Cir. 1990) (citing 33 U.S.C. § 903).

provides that:

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 . . . .96

The Fifth Circuit has held that, “When the LHWCA applies, workers’ compensation

is an employee’s exclusive remedy against the employer in its capacity as an

employer.”97

When the LHWCA was amended in 1972 to cover certain land-based injuries,

the Supreme Court in Sun Ship, Inc. v. Pennsylvania, addressed whether the

extension of the LHWCA’s coverage displaced states from applying their own workers’

compensation schemes to land-based injuries that fell under the expanded federal

coverage.98 The Supreme Court held that it did not, explaining that, “the 1972

extension of federal jurisdiction supplements, rather than supplants, state

compensation law.”99 As a result, the Supreme Court recognized a “twilight zone” of

concurrent jurisdiction between the LHWCA and state workers’ compensation

96 33 U.S.C. § 905(a).

97 Moore, 912 F.2d at 791 (citing 33 U.S.C. § 905(a)); see, McLaurin v. Noble Drilling (US) Inc., 529

F.3d 285, 291-92 (5th Cir. 2008) (“If a maritime worker is eligible for workers’ compensation from his

employer, § 904 allows him to collect compensation and § 905(a) instructs him that his remedy under

the LHWCA is his exclusive remedy against his employer. Section 933 specifically forbids a claim

against ‘the employer or a person . . . in his employ,’ leaving § 904 as the only avenue of recovery

against the employer or negligent coworker.”). See also, Dempster v. Lamorak Insurance Co., Civ. A.

No. 20-95, 2020 WL 5071115, at *6 (E.D. La. Aug. 26, 2020) (quoting Moore, supra); Brown v.

Performance Energy Services, LLC, Civ. A. No. 08-852, 2009 WL 152505, at *5 (E.D. La. Jan. 20, 2009)

(Africk, J.) (quoting Moore, supra).

98 Hulin v. Huntington Ingalls, Inc., Civ. A. No. 20-924, 2020 WL 6059645, at *5 (E.D. La. Oct. 14,

2020) (citing Sun Ship, 447 U.S. 715, 100 S.Ct. 2432, 65 L.Ed.2d 458 (1980)).

99 Sun Ship, 447 U.S. at 720, 100 S.Ct. at 2436.

laws.100 The Court explained that concurrent jurisdiction was warranted because,

“To read the 1972 amendments as compelling laborers to seek relief under two

mutually exclusive remedial systems would lead to the prejudicial consequences

which we described in Davis . . . .”101

Although Plaintiffs do not directly address the issue, there appears to be no

genuine issue of material fact that this is a twilight zone case because the relevant

asbestos exposures occurred on land at the Avondale Shipyard between 1969 and

1977.102 Thus, under Sun Ship, Barrosse could have sought compensation under

Louisiana’s Workers’ Compensation Act, La. R.S. 23:1031, et seq., which is not

preempted by the LHWCA.103 Barrosse, however, chose not to seek compensation

under Louisiana’s workers’ compensation regime, and asserted only state law

negligence claims against the Avondale Interests. Thus, the issue before the Court

is whether the LHWCA preempts Plaintiffs’ state law negligence claims for injuries

that fall within the twilight zone of concurrent jurisdiction between state and federal

workers’ compensation schemes.

100 Sun Ship, 447 U.S. 718, 720, 100 S.Ct. at 2435-36 (citing Davis v. Department of Labor and Indus.

Of Washington, 317 U.S. 249, 63 S.Ct. 225, 87 L.Ed. 246 (1942)).

101 Sun Ship, 447 U.S. at 720, 100 S.Ct. at 2436 (citing Davis, 317 U.S. 249, 63 S.Ct. 225).

102 Hulin v. Huntington Ingalls, Inc., Civ. A. No. 20-924, 2020 WL 6059645, at *5 (E.D. La. Oct. 14,

2020) (citing Cobb v. Sipco Servs. & Marine, Inc., Civ. A. No. 95-2131, 1997 WL 159491, at *6 (E.D.

La. Mar. 27, 1997) (Vance, J.)).

103 447 U.S. at 719-22, 100 S.Ct. at 2436-38.

This same issue was squarely before another Section of this Court in Cobb v.

Sipco Services & Marine, Inc.104 and the Hulin case.105 In both cases, the Court

concluded that the LHWCA preempts state law tort claims in twilight zone cases.

The Hulin court found that, “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.”106 The Hulin court reasoned that the LHWCA’s exclusivity

provision “evidences an unmistakable intention to embody the quid pro quo that

defines most workmen’s compensation statute [sic]. Specifically, the employee gets

the benefit of no-fault compensation, and the employer enjoys immunity from tort

liability for damages.”107 The court in Hulin pointed out that the Supreme Court has

recognized that the LHWCA “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.”108 “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.”109 The Hulin court held that, “Allowing state law tort claims would contradict

104 Civ. A. No. 95-2131, 1997 WL 159491 at *6 (“This raises the issue of the effect of section 905(a) of

the LHWCA, the exclusive remedy provision, on the availability of state tort relief for a plaintiff whose

injury falls within the twilight zone.”) (footnote omitted).

105 Civ. A. No. 20-924, 2020 WL 6059645 at *5 (“Thus, the question is whether the LHWCA preempts

state law negligence claims for injuries in the twilight zone.”)

106 Id. at *6.

107 Id. (quoting Cobb, Civ. A. No. 95-2131, 1997 WL 159491 at *7) (internal quotation and quotation

marks omitted).

108 Hulin, Civ. A. No. 20-924, 2020 WL 6059645 at *6 (quoting Morrison-Knudsen Constr. Co. v.

Director, OWCP, 461 U.S. 624, 626, 103 S.Ct. 2045, 76 L.Ed.2d 194 (1983)).

109 Morrison-Knudsen, 461 U.S. at 626, 103 S.Ct. at 2052 (citing Potomac Electric Power Co. v. Director,

OWCP, 449 U.S. 268, 282 and n.24, 101 S.Ct. 509, 516 and n.24, 66 L.Ed.2d 446 (1980); H.R.Rep. No.

1767, 69th Cong., 2d Sess. 19020 (1927)).

the text of the statute and would frustrate the Act’s purpose by undermining the quid

pro quo.”110 The court pointed out that several courts, including the Fifth Circuit,

“have recognized as much.”111

This Court reaches the same conclusion. The Court specifically finds that

allowing state law tort claims would contradict the clear text of the LHWCA, namely

the exclusivity provision in 33 U.S.C. § 905(a), and would frustrate the LHWCA’s

purpose by undermining the quid pro quo that the statute guarantees to maritime

employers and their employees. Plaintiffs contend that this case is distinguishable

from the preemption cases cited by the Avondale Interests (and relied upon by the

Hulin court) because: (1) Plaintiffs are not alleging asbestos exposure after 1975

(when a tort suit was no longer an available remedy under Louisiana law); (2)

Plaintiffs are not simultaneously seeking benefits under the LHWCA; and (3)

Plaintiffs have not already received LHWCA benefits.112 The Court rejects these

arguments as baseless. To the extent Plaintiffs claim that this case is distinguishable

from Cobb because Plaintiffs are not alleging exposure after 1975, Plaintiffs ignore

110 Hulin, Civ. A. No. 20-924, 2020 WL 6059645, at *6.

111 Id. (citing Rosetti v. Avondale Shipyards, Inc., 821 F.2d 1083, 1085 (5th Cir. 1987) (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.”); Hetzel v. Bethlehem Steel Corp., 50

F.3d 360, 366-67 (5th Cir. 1995) (finding that, “[p]reemption of [a] state [tort] act is required to avoid

frustration of the policies and purpose behind the LHWCA,” and 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.”); Cobb v. Sipco Servs. & Marine, Inc., Civ. A. No. 95-

2131, 1997 WL 159491, at *8 (E.D. La. Mar. 27, 1997) (“[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.”); Peter v. Hess Oil Virgin Islands Corp.,

903 F.2d 935, 953 (3rd Cir. 1990) (holding that, Ҥ 905 (a) [of the LHWCA] and the Supremacy Clause

bar the Virgin Islands from imposing negligence liability on [a covered employer],” and that Congress

“intended that compensation, not tort damages, were to be the primary source of relief for workplace

injuries for longshoremen against their employers.”).

112 R. Doc. 101 at pp. 28-30.

the fact that the preemption analysis in Cobb was not based upon a change in

Louisiana law in 1975.113 Regarding Plaintiffs’ two remaining arguments, the Court

agrees with United States District Judge Sarah S. Vance’s assessment in Hulin that,

“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.”114 The Court

rejects Plaintiffs’ arguments for the same reasons. The Court finds further support

from the Fifth Circuit, which has recognized that, “Worker’s compensation under the

LHWCA is the exclusive remedy for an employee against his employer because the

Act bars all common law tort actions against the employee.”115

Although Plaintiffs and Westinghouse cite Hahn v. Ross Island Sand & Gravel

Co. in support of their position that the LHWCA does not preempt state law tort

claims,116 the Court finds Hahn distinguishable from the facts of this case. In Hahn,

a per curiam opinion, the Supreme Court specifically recognized that, “As to cases

within this ‘twilight zone,’ Davis, in effect, gave an injured waterfront employee an

election to recover compensation under either the Longshoremen’s Act or the

Workmen’s Compensation Law of the State in which the injury occurred.”117 The

Supreme Court concluded that because the petitioner’s injury had occurred in this

“twilight zone,” he could have sought recovery under the Oregon Workmen’s

113 Cobb, Civ. A. No. 95-2131, 1997 WL 159491 at *1, 7-8.

114 Hulin, Civ. A. No. 20-924, 2020 WL 6059645 at *7.

115 Jackson v. Total E & P USA Inc., 341 Fed.Appx. 85, 86 (5th Cir. 2009).

116 R. Doc. 101 at p. 21 (citing Hahn, 358 U.S. 272, 79 S.Ct. 266, 3 L.Ed. 2d 292 (1959)); R. Doc. 114 at

pp. 4-5 (citing Hahn, supra).

117 Hahn, 358 U.S. at 272, 79 S.Ct. at 267 (citing Davis v. Dep’t of Labor, 317 U.S. 249, 63 S.Ct. 225,

87 L.Ed.246 (1942)) (emphasis added).

Compensation Act, which was not barred by the LHWCA. However, because the

petitioner’s employer had not obtained coverage under the state statute, the Supreme

Court found that, “the automatic compensation provisions of the Oregon Workmen’s

Compensation Act did not apply to the claim.”118 The Supreme Court, however,

pointed out that the Oregon Workmen’s Compensation Act contained a provision

specifying that when an employer has elected to reject the state statute’s automatic

compensation provisions, his injured employee may maintain a negligence action for

damages. The Supreme Court acknowledged that such negligence claims would be

barred by the LHWCA if the case were not within the “twilight zone” of concurrent

jurisdiction. The Supreme Court concluded that, “Since this case is within the

‘twilight zone,’ it follows from what we held in Davis that nothing in the

Longshoremen’s Act or the United States Constitution prevents recovery.”119 As a

result, the Supreme Court reversed the decision of the Oregon Supreme Court, which

had affirmed judgment entered for the defendant notwithstanding a verdict for the

plaintiff, and remanded the case to the Supreme Court of Oregon for further

proceedings.

A clear reading of the Hahn decision shows that the Supreme Court allowed a

state tort recovery for an injury within the scope of the LHWCA because it was a

twilight zone case and the Oregon’s worker’s compensation law specifically provided

for tort recovery as a sanction for an employer’s failure to obtain workmen’s

118 Id.

119 Id. (citing Davis, 317 U.S. 249, 63 S.Ct. 225).

compensation coverage.120 Plaintiffs and Westinghouse gloss over this point in their

briefs.121 As the Third Circuit pointed out in Peter v. Hess Oil Virgin Islands Corp.:

The existence and function of that [negligence] liability [in Hahn] was

entirely consistent with Congress’s intent to ensure a seamless

intersection between state and federal compensation coverage. That

negligence liability in this context is entirely consistent with the scheme

imposed by LHWCA is apparent from Congress’s inclusion of a similar

sanction in LHWCA.122

As explained by another Section of this Court, “That is not the case here, where

application 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.”123 Additionally, since Hahn, the Fifth

Circuit has held that the LHWCA bars an injured employee’s state law negligence

claim because “Under the LHWCA, workers compensation is the exclusive remedy for

an injured employee against his employer.”124 The Court reaches the same

conclusion.

Based on the foregoing analysis, the Court finds that the LHWCA preempts

Plaintiffs’ state law negligence claims against the Avondale Interests.

D. Due Process and Divestment of Barrosse’s Tort Claim.

Plaintiffs assert in their Opposition brief that under Louisiana law, Barrosse’s

cause of action accrued on the date he was exposed to asbestos, and that he acquired

120 Cobb v. Sipco Services & Marine, Inc., Civ. A. No. 95-2131, 1997 WL 159491, at *8 (E.D. La. Mar.

27, 1997).

121 R. Doc. 101 at p. 21; R. Doc. 114 at pp. 4-5

122 Hess, 903 F.2d 935, 953 (3d Cir. 1990).

123 Cobb, Civ. A. No. 95-2131, 1997 WL 159491, at *8 (E.D. La. Mar. 27, 1997).

124 Rosetti v. Avondale Shipyards, Inc., 821 F.2d 1083, 1085 (5th Cir. 1987) (citing 33 U.S.C. §§ 904(a),

905(a), and 933(i); Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir. 1977); Hebron v. Union Oil Co., 634

F.2d 245 (5th Cir. 1981)).

a vested property right at that time.125 Plaintiffs contend that the Avondale Interests

seek to divest Plaintiffs of their vested property right through the retroactive

application of the LHWCA’s 1972 amendments. Plaintiffs argue that the Court

should deny the Motion because the retroactive application of the LHWCA to divest

Plaintiffs of their cause of action would violate both the United States and Louisiana

Constitutions.126 Recognizing that the Hulin court rejected the same argument,

Plaintiffs urge the Court not to follow Hulin because the decision “not only effectively

overrules Davis and Sun Ship in finding that the LHWCA preempts a plaintiff’s state

law remedies, the Court goes far beyond preemption in holding that the LHWCA

actually divests the plaintiff of a cause of action that has accrued and become a vested

property right.”127 Plaintiffs assert that their vested property right is protected by

due process guarantees.128

The Avondale Interests assert that Plaintiffs’ due process argument is

meritless because Congress acted consistently with due process by substituting a

guaranteed workers’ compensation remedy for an uncertain tort remedy.129 The

Avondale Interests point out that Judge Vance thoroughly considered and rejected

Plaintiffs’ divestment argument in Hulin.130 The Avondale Interests assert that

federal courts apply a rational basis test to evaluate the constitutionality of laws that

abolish or alter tort rights, under which such laws are constitutional unless Congress

125 R. Doc. 101 at p. 31.

126 Id.

127 Id. (emphasis in original).

128 Id. at p. 30 (citing Anderson v. Avondale Indus., Inc., 2000-2799 (La. 10/16/01), 798 So.2d 93, 99).

129 R. Doc. 124 at p. 19.

130 Id. (citing Hulin v. Huntington Ingalls, Inc., Civ. A. No. 20-924, 2020 WL 6059645, at *8-9 (E.D. La.

Oct. 14, 2020)).

acted in an arbitrary or irrational way.131 The Avondale Interests assert that the

Supreme Court has held that, “[L]egislative Acts adjusting the burdens and benefits

of economic life come to the Court with a presumption of constitutionality,

and that the burden is on the one complaining of a due process violation to establish

that the legislature has acted in an arbitrary and irrational way.”132 The Avondale

Interests claim that Plaintiffs do not acknowledge this burden, much less attempt to

meet it. As such, the Avondale Interests argue that, as in Hulin, Plaintiffs have failed

to carry their burden of proof on this issue.

1. Retroactivity of the LHWCA.

In Landgraf v. USI Film Products, the Supreme Court recognized a

“presumption against retroactive legislation” and delineated a two-part test to

determine whether a statute is retroactive.133 Under that test, this Court must first

“determine whether Congress has expressly prescribed the statute’s proper reach.”134

“If Congress clearly intended the statute to be retroactive, the inquiry ends.”135 If

not, the Court must proceed to the second step and determine whether retroactive

application “would impair rights a party possessed when he acted, increase a party’s

131 R. Doc. 124 at p. 19 (citing Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15-18, 96 S.Ct. 2882,

49 L.Ed.2d 752 (1976); Hammond v. United States, 786 F.2d 8, 13 (1st Cir. 1986); In re TMI, 89 F.3d

1106, 1113 (3d Cir. 1996); In re Consolidated U.S. Atmospheric Testing Litig., 820 F.2d 982, 990-91

(9th Cir. 1987)).

132 R. Doc. 124 at p. 19 (quoting Usery, 428 U.S. at 15, 96 S.Ct. 2882) (internal quotation marks omitted

and emphasis added by the Avondale Interests).

133 Terrazas-Hernandez v. Barr, 924 F.3d 768 (5th Cir. 2019) (quoting Landgraf v. USI Film Prods.,

511 U.S. 244, 265, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)) (internal quotation marks omitted).

134 Terrazas-Hernandez, 924 F.3d at 772 (quoting Landgraf, 511 U.S. at 280, 114 S.Ct. 1483) (internal

quotation marks omitted).

135 Hulin v. Huntington Ingalls, Inc., Civ. A. No. 20-924, 2020 WL 6059645, at *7 (E.D. La. Oct. 14,

2020) (citing Terrazas-Hernandez, 924 F.3d at 772).

liability for past conduct, or impose new duties with respect to transactions already

completed.”136

The Court agrees with the Hulin court’s conclusion that, “Congress expressly

prescribed that the amended statute applies to latent disease claims arising from

exposures occurring before the amendment dates.”137 As the Hulin court pointed out,

Congress stated that the 1984 amendments to the LHWCA “shall be effective on the

date of enactment,” which was September 28, 1984, “and shall apply with respect to

claims filed after such date and to claims pending on such date.”138 One of the

changes made to the LHWCA in 1984 was the express adoption of the manifestation

rule, which provides that, “in 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 . . . should have been aware, of the disease . . . .”139 The Court is

satisfied that these provisions, taken together, indicate that the manifestation rule

applies to claims filed after September 28, 1984, regardless of whether the exposures

occurred before the amendment date.140 Thus, because the date of injury controls

which version of the LHWCA applies,141 the Court finds that this is an express

136 Terrazas-Hernandez, 924 F.3d at 772-73 (quoting Landgraf, 511 U.S. at 280, 114 S.Ct. 1483)

(internal quotation marks omitted).

137 Civ. A. No. 20-924, 2020 WL 6059645 at *7.

138 Longshore and Harbor Workers’ Compensation Act Amendments of 1984, Pub. L. No. 98-426, §

28(a), 98 Stat. 1639 (September 28, 1984). See, Hulin, Civ. A. No. 20-924, 2020 WL 6059645 at *7

(quoting Longshore and Harbor Workers’ Compensation Act Amendments of 1984, Pub. L. No. 98-426,

§ 28(a), 98 Stat. 1639, 1655).

139 Longshore and Harbor Workers’ Compensation Act Amendments of 1984, Pub. L. No. 98-426, §

28(g)(1), 98 Stat. 1639.

140 Hulin, Civ. A. No. 20-924, 2020 WL 6059645, at *7.

141 See, Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025, 1031 (5th Cir. 1985).

recognition by Congress that the LHWCA, as amended in 1984, will apply to claims

arising from exposures like those of Barrosse, which occurred before the amendments.

As aptly explained by the Eleventh Circuit:

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’ (emphasis added) 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.142

The same rationale applies here. There was no need for Congress to specify that the

manifestation rule applies to claims “filed” after the amendment date if it applied

only to claims “arising” after the amendment date.

2. Due Process.

Although Plaintiffs cite Louisiana Supreme Court cases in support of their due

process argument, federal constitutional law governs this issue.143 According to the

Fifth Circuit, “The Erie doctrine does not apply . . . in matters governed by the federal

Constitution or by acts of Congress.”144 The Supreme Court has held that legislative

acts, including retroactive legislation, enjoy a “presumption of constitutionality.”145

In Usery v. Turner Elkhorn Mining Co., the Supreme Court recognized in 1976

142 Alabama Dry Dock and Shipping Corp. v. Sowell, 933 F.2d 1561, 1564 (11th Cir. 1991), overruled

on other grounds, Bath Iron Works Corp. v. Director, Office of Workers’ Comp. Programs, 506 U.S. 153,

113 S.Ct. 692, 121 L.Ed.2d 619 (1993)).

143 Hulin, Civ. A. No. 20-924, 2020 WL 6059645 at *8 (citing Hetzel v. Bethlehem Steel Corp., 50 F.3d

360, 363).

144 Hetzel, 50 F.3d at 363 (quoting Grantham v. Avondale Indus., Inc., 964 F.2d 471, 473-74 (5th Cir.

1992)).

145Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 727-29, 104 S.Ct. 2709, 2717, 81

L.Ed.2d 601, 610-11 (1984)); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892,

49 L.Ed.2d 752 (1976).

that, “It is by now well established that legislative Acts adjusting the burdens and

benefits of economic life come to the Court with a presumption of constitutionality,

and that the burden is on the one complaining of a due process violation to establish

that the legislature has acted in an arbitrary and irrational way.”146 The Supreme

Court further explained that, “[T]his Court long ago upheld against due process

attack the competence of Congress to allocate the interlocking economic rights and

duties of employers and employees upon workmen’s compensation principles

analogous to those enacted here, regardless of contravening arrangements between

employer and employee.”147 The Supreme Court ultimately found that, in the context

of a workers’ compensation law that retroactively imposed liability on coal mine

operators, “the imposition of liability for the effects of disabilities bred in the past is

justified as a rational measure to spread the costs of the employees’ disabilities to

those who have profited from the fruits of their labor the operators and the coal

consumers.”148

The Fifth Circuit has likewise recognized that the “rational basis” test is used

to determine whether the retroactive application of a statute violates due process.149

Although not addressed by the Fifth Circuit, at least three other Circuit courts have

applied the “rational basis” test to determine the constitutionality of retroactive

146 Usery, 428 U.S. at 15, 96 S.Ct. at 2892 (citing authority).

147 Id. (citing authority).

148 Id., 428 U.S. at 18, 96 S.Ct. at 2893.

149 See, Ferman v. U.S., 993 F.2d 485, n.5 (5th Cir. 1993) (“Outside of the tax context, the Court has

held that the retroactive application of a statute must be ‘arbitrary and irrational’ to violate due

process. See Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752

(1976)”).

legislation abolishing or affecting tort actions.150 The Hulin court reviewed these

cases in detail and this Court adopts that analysis, finding it equally applicable to

the facts of this case.151 Pursuant to Usery and the persuasive authority from other

Circuit courts, this Court must determine whether Plaintiffs have carried their

burden of proving 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. This is Plaintiffs burden to sustain. It is clear to the Court

that Plaintiffs have not met this burden. Plaintiffs make conclusory statements in

their Opposition brief that the retroactive application of the LHWCA would “divest

Plaintiffs of their vested property right” and would “divest Plaintiffs of their cause of

action,” which “would violate both the U.S. and Louisiana Constitutions.”152 The

Court finds that these conclusory statements, without more, fail to carry Plaintiffs’

burden of showing that Congress acted arbitrarily and irrationally.153

The Court likewise agrees with Judge Vance’s determination that, “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 the quid pro quo of workers’

compensation remedies, are unquestionably legitimate.”154 Thus, the Court finds

150 Hammond v. United States, 786 F.2d 8, 13 (1st Cir. 1986); In re TMI, 89 F.3d 1106, 1113 (3d Cir.

1996); In re Consolidated U.S. Atmospheric Testing Litig., 820 F.2d 982, 990-91 (9th Cir. 1987).

151 Hulin v. Huntington Ingalls, Inc., Civ. A. No. 20-924, 2020 WL 6059645, at *8 (E.D. La. Oct. 14,

2020).

152 R. Doc. 101 at p. 31.

153 Hulin, Civ. A. No. 20-924, 2020 WL 6059645 at *9.

154 Id. See, Usery, 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.”);

that Congress’s decision to retroactively apply the LHWCA to toxic exposures was

neither irrational nor arbitrary.° By enacting the manifestation rule, Congress

ensured that workers like Barrosse were protected by the guarantees set out within

the LHWCA. In doing so, Congress merely substituted a no-fault remedy for the

uncertain liability of common law torts.!°* The Court finds that Plaintiffs have failed

to carry their burden of proving that Congress acted in an arbitrary and irrational

way and, as such, has failed to show a constitutional violation. Accordingly, the

Avondale Interests are entitled to summary judgement.

IV. CONCLUSION

IT IS HEREBY ORDERED that the Motion for Summary Judgment15” is

GRANTED and Plaintiffs’ negligence claims against Huntington Ingalls

Incorporated and Lamorak Insurance Company are DISMISSED WITH

PREJUDICE.

New Orleans, Louisiana, September 24, 2021.

WENDY B. VI 7 TER

UNITED STATES DISTRICT JUDGE

Hammond, 768 F.2d at 18 (finding that Congress had a “rational” or “legitimate” reason when it

relieved private contractors from liability for tort claims).

185 Hulin, Civ. A. No. 20-924, 2020 WL 6059645 at *9; See, In re TMI, 89 F.3d at 1118 (upholding

retroactive application of a choice of law provision where it furthered the relevant act’s goals of

“uniformity, equity, and efficiency.”).

186 Hulin, Civ. A. No. 20-924, 2020 WL 6059645 at *9.

157 R, Doc. 86.