Constanza

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ERICA DANDRY CONSTANZA, ET AL. CIVIL ACTION

VERSUS CASE NO. 24-871

SPARTA INSURANCE COMPANY, ET AL. SECTION: “G”(5)

ORDER AND REASONS

Before the Court is Plaintiffs Erica Dandry Constanza and Monica Dandry Hallner’s

(collectively, “Plaintiffs”) “Motion for Partial Summary Judgment Regarding Avondale’s

Government Contractor Defense.”1 In this litigation, Plaintiffs allege Decedent Michael P. Dandry,

Jr. (“Decedent”), while an employee for Huntington Ingalls Incorporated (“Avondale”),2 was

exposed to asbestos and asbestos-containing products manufactured, distributed, sold, and/or

handled by Avondale and other parties.3 Plaintiffs allege this exposure caused and/or contributed

to Decedent’s development of mesothelioma and, ultimately, his death.4 Plaintiffs move the Court

to hold that Avondale may not assert a sovereign immunity defense as a government contractor

against Plaintiffs’ claims for failure to: warn, prevent the spread of asbestos and protect workers

1 Rec. Doc. 208.

2 Huntington Ingalls, Inc. was formerly known as: Northrop Grumman Shipbuilding, Inc., Northrop

Grumman Ship Systems, Inc., Avondale Industries, Inc., Avondale Shipyard Inc., and Avondale Marine Ways, Inc.

3 Rec. Doc. 1-3 at 2. In addition to Avondale, Plaintiffs also named SPARTA Insurance Company, Bayer

CropScience, Inc., Foster-Wheeler, LLC, General Electric Company, Hopeman Brothers, Inc., Taylor-Seidenbach,

Inc., Paramount Global, Uniroyal, Inc., International Paper Company, Eagle, Inc., Uniroyal Holding, Inc., and Liberty

Mutual Insurance Company as defendants.

4 Id.

from exposure to asbestos.5 Avondale opposes the motion.6 Having considered the motion, the

memoranda in support and opposition, the record, and the applicable law, the Court grants the

motion.

I. Background

Plaintiffs allege Decedent was employed in various positions by Avondale between June 1,

1971, and August 16, 1971.7 During that time, Plaintiffs claim Decedent was exposed to asbestos

and asbestos-containing products on Avondale’s premises.8 Plaintiffs further assert Decedent was

exposed to asbestos carried home from his work at Avondale on his person, clothing, and other

items.9 Plaintiffs argue, as a result of breathing in these asbestos fibers, Decedent later developed

mesothelioma and other ill health effects, ultimately resulting in Decedent’s death.10 Plaintiffs

contend Defendants had “care, custody, and control of the asbestos, which asbestos was defective

and which presented an unreasonable risk of harm, which asbestos resulted in the injury of

[Decedent] and for which these defendants are strictly liable under Louisiana law.”11 Plaintiffs

claim “Avondale and its executive officers [ ] are answerable for the conduct of those handling

asbestos products on their premises” and that “Avondale failed to exercise reasonable care for the

5 Rec. Doc. 208.

6 Rec. Doc. 226.

7 Rec. Doc. 1-3 at 2.

8 Id.

9 Id.

10 Id. at 4.

11 Id. at 5.

safety of persons on or around their property” for which there were clear “standards” requiring

protection for workers.12

Plaintiffs also name numerous additional defendants who were in the business of

“manufacturing, fabricating, selling and/or distributing asbestos containing products.”13 Plaintiffs

allege that these defendants “sold, installed, removed and/or abated these products to and/or at

Avondale,” and Decedent was exposed to asbestos containing products as a result.14 Further,

Plaintiffs allege that these asbestos containing products were “unreasonably dangerous per se, were

defective in design, and constituted a breach of warranty from said manufacturers.”15

On September 16, 2025, Plaintiffs filed the instant Motion for Partial Summary

Judgment.16 On September 22, 2025, Avondale filed an Opposition to the motion.17 On September

26, 2025, Plaintiffs filed a Reply in further support of the motion.18

II. Parties’ Arguments

A. Plaintiffs’ Arguments in Support of the Motion for Partial Summary Judgment

Plaintiffs argue that the tortious conduct undertaken by Avondale here was not specifically

approved by the government and that Avondale’s alleged misconduct was discretionary, therefore

the government contractor defense does not apply to Plaintiffs’ claims for failure to: warn, prevent

12 Id.

13 Id. at 18.

14 Id. at 19.

15 Id.

16 Rec. Doc. 208.

17 Rec. Doc. 226.

18 Rec. Doc. 270.

the spread of asbestos and protect workers from exposure to asbestos.19 Plaintiffs assert that the

government contractor defense is available “where the contractor has complied with a directive

from the government which prevented them from protecting [Decedent].”20 Further, Plaintiffs

submit that there is “no evidence that the government made Avondale fail to protect Avondale

employees and their family members from asbestos dust.”21 Additionally, Plaintiffs cite multiple

cases in other sections of this Court where the presiding judges rejected Avondale’s government

contractor defense under allegedly similar facts.22 For the same reasons set forth in those cases,

Plaintiffs contend the Court should reject Avondale’s government contractor defense here.23

Plaintiffs expound by asserting that the contracts between Avondale and the government did not

constrain Avondale in any way from:

(1) warning its employees about the hazards of asbestos, and (2)

from implementing its own engineering and industrial hygiene

protocols to prevent contamination by asbestos to its employees

because implementing these safety protocols would not have

required Avondale to depart from the terms of the government

specifications.24

Plaintiffs also rely on the testimony of Felix Albert, a government safety inspector at

Avondale, who testified that there were no government safety inspectors working at Avondale

19 Rec. Doc. 208-1 at 2.

20 Id.

21 Id.

22 Id. at 3–4. (citing Legendre v. La. Ins. Guaranty Ass’n, No. 22-1767, 2024 WL 1556842 (E.D. La. Apr. 10,

2024); Matherne v. Huntington Ingalls Inc., No. 22-2656, 2024 WL 216925 (E.D. La. Jan 19, 2024); Crossland v.

Huntington Ingalls, Inc., No. 20-3470, 2022 U.S. Dist. LEXIS 190583 (E.D. La. Oct. 22, 2022); Falgout v. Anco

Insulations, Inc., No. 21-1443, 2022 U.S. Dist. LEXIS 187097 (E.D. La. Oct. 12, 2022); Adams v. Eagle, Inc., No. 21-

694, 2022 U.S. Dist. LEXIS 158790 (E.D. La. Sept. 2, 2022); Broussard v. Huntington Ingalls Inc., No. 20-836, 2021

U.S. Dist. LEXIS 225247 (E.D. La. Nov. 22, 2021)).

23 Id. at 4.

24 Id. at 8 (citing Adams, 2022 U.S. Dist. LEXIS 158790 at *12).

between 1965 and 1976.25 Further, Plaintiffs offers the testimony Peter Territo, a former Avondale

Safety Director, and Edie Blanchard, a Superintendent of Outfitting at Avondale, to assert that

government inspectors that did perform site visits at Avondale did not direct or control Avondale’s

safety department.26 Additionally, Plaintiffs contend that the testimony of Danny Joyce,

Avondale’s corporate representative, establishes that there was no government policy that

would have prohibited Avondale from using engineering controls

such as localized or general exhaust, providing a warning to

Avondale workers, educating workers about the hazards or potential

hazards of asbestos or asbestos-containing products, performing air

monitoring tests, or segregating Avondale workers away from where

asbestos-containing products were being [used] and installed.27

Plaintiffs also point out that Avondale admitted in its pleadings that “[t]he Government did

not prohibit Avondale Shipyard from providing warnings about the dangers of respirable asbestos

to Avondale employees,”28 and that it “had discretion to warn employees of about the hazards of

asbestos.”29

Lastly, Plaintiffs assert that the commercially available off-the-shelf products used at

Avondale do not, as a matter of law, trigger sovereign immunity.30 Plaintiffs contend that the

asbestos-containing products here were not manufactured with the special needs of the military in

mind, and therefore cannot trigger sovereign immunity under the government contractor defense.31

25 Id. at 9 (citing Rec. Doc. 208-9 at 3).

26 Id. at 10 (citing Rec. Docs. 208-14 at 3–4, 208-15 at 3–4).

27 Id. (citing Rec. Doc. 208-16 at 4).

28 Id. at 11 (citing Rec. Doc. 208-10 at 2).

29 Id. (citing Rec. doc. 208-10 at 3).

30 Id. at 16.

31 Id. at 16–17.

B. Avondale’s Arguments in Opposition of the Motion for Partial Summary Judgment

In response, Avondale asserts that dismissal of the government contractor defense under

Yearsley v. W.A. Ross Construction Co.32 and Boyle v. United Technologies Corp.33 is

unwarranted.34 Avondale claims that while the Yearsley and Boyle defenses are similar, they are

distinct and neither should be precluded by summary judgment.35 Avondale submits that its

“government contracts during the relevant time set the precise requirements for use, installation,

and handling of asbestos on federal vessels, including requirements related to safety and

warnings.”36 Avondale contends that the Court should decline to follow Adams, where another

section of this Court “incorrectly held that claims for Avondale’s failure to warn or protect

employees from asbestos were unrelated to the government’s directives and exercise of

discretion.”37 Instead Avondale puts forth Latiolais v. Huntington Ingalls, Inc. arguing that it

should instruct the Court here.38

Avondale alleges that Latiolais involved similar facts as the instant case and this Court

should likewise apply the three Boyle factors to determine if the defense is applicable.39 Avondale

states that the three Boyle factors here are: “whether (1) the government approved reasonably

precise specifications for construction of the vessels at issue with asbestos, (2) Avondale’s

32 309 U.S. 18 (1940).

33 487 U.S. 500 (1988).

34 Rec. Doc. 226 at 1.

35 Id. at 15.

36 Id. at 2.

37 Id. (citing Adams, 2022 U.S. Dist. LEXIS 158790).

38 Id. at 7 (citing 951 F.3d 286 (5th Cir. 2020)).

39 Id.

construction of the vessels conformed to those specifications, and (3) Avondale warned the

government of any asbestos-related hazards that were known by Avondale but unknown by the

government.”40

Regarding the first Boyle factor, Avondale asserts that “[t]he government need not address

the specific defect alleged, but rather, need only evaluate the design feature in question.”41 Further,

Avondale claims that the government’s continued use of a product despite knowledge of its

hazardous nature, meets the first Boyle factor.42 Avondale submits that here, as in Latiolais, the

federal vessels were built under contract with the federal government.43 Additionally, Avondale

alleges those contracts included a requirement to install asbestos containing materials.44 Avondale

also contends that it was required to follow government mandated safety standards and subject to

government safety inspections.45 Avondale claims that this government involvement creates a

genuine issue of material fact as to whether the first Boyle factor is met.46

Avondale asserts that the evidence shows that it complied with the reasonably precise

government specifications “requiring the use of asbestos on federal vessels,” thus there is a genuine

question of material fact as to whether the second Boyle factor is met.47 Further, Avondale contends

that there is a genuine questions of material fact as to whether the third Boyle factor is met, because

40 Id. (citing Latiolais, 951 F.3d at 296–98).

41 Id. at 8 (internal quotation omitted) (citing Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 400–

01 (5th Cir. 1998)).

42 Id.

43 Id.

44 Id.

45 Id. at 9.

46 Id.

47 Id. at 9–10.

the government knew more than private shipyards about the health hazards of asbestos at the

time.48

Additionally, Avondale argues that the district court decisions cited by Plaintiffs all suffer

from the same flaw as Adams, which is that those courts declined to follow the Boyle elements

applied by the Fifth Circuit in Latiolais.49 Finally, Avondale claims that Plaintiffs fail to establish

that the federal vessels constructed by Avondale were “commercially available products.”50

Avondale asserts that the combination of commercially available component parts does not negate

the government’s role in designing the final product.51 Hence, Avondale claims it has a valid Boyle

defense or at minimum presents issues of fact that preclude summary judgment.52

Avondale also asserts that summary judgment is not warranted on their Yearsley defense.53

Avondale alleges that Yearsley holds,

that the actions of a government contractor will be treated as the

actions of the government—and therefore be subject to a derivative

immunity that is co-extensive with the government’s sovereign

immunity—where (1) the contractor’s acts complied with the terms

of a federal government contract, and (2) the contract was validly

conferred by the government.54

As to the first Yearsley element, Avondale claims that the evidence demonstrates that it

complied with all the government’s requirements, including those related to “asbestos use,

48 Id. at 10.

49 Id. at 11.

50 Id. at 24–25.

51 Id. at 25.

52 Id. at 12.

53 Id. at 15.

54 Id. (citing Yearsley, 309 U.S. at 21).

handling, and warnings of hazards related to same.”55 As to the second element, Avondale contends

that it is undisputed that the government conferred authority on Avondale to construct the federal

vessels.56 Thus, Avondale argues that both Yearsley elements are satisfied here, and therefore

Avondale is entitled to share the United States’ sovereign immunity.57 Alternatively, Avondale

pleads that there is at least a genuine dispute of material facts regarding its entitlement to the

Yearsley defense.58

C. Plaintiffs’ Arguments in Further Support of the Motion for Partial Summary Judgment

In reply, Plaintiffs assert that all arguments raised by Avondale in its opposition have been

rejected in multiple other cases in this district.59 Further, Plaintiffs point out that prior decisions

that Avondale has cited in an attempt to distinguish the instant matter involved motions to remand

rather than a motion for summary judgment.60 Plaintiffs assert that they are not seeking summary

judgment for all claims, but only to preclude the government contractor defense to Plaintiffs’

claims for failure to: warn, prevent the spread of asbestos and protect workers from exposure to

asbestos.61

55 Id. at 18–19.

56 Id. at 18.

57 Id.

58 Id. at 19.

59 Rec. Doc. 270 at 1–2 (citing Crossland v. Huntington Ingalls, Inc., No. 20-3470, 2022 U.S. Dist. LEXIS

190583 (E.D. La. 10/22/2022); Falgout v. Anco Insulations, Inc., No. 21-1443, 2022 U.S. Dist. LEXIS 187097 (E.D.

La. 10/12/22); Adams v. Eagle, Inc., No. 21-694, 2022 U.S. Dist. LEXIS 158790 (E.D. La. 9/2/22); Broussard v.

Huntington Ingalls Inc., No. 20-836, 2021 U.S. Dist. LEXIS 225247 (E. D. La. 11/22/21); Legendre v. Louisiana Ins.

Guaranty Association, 2024 WL 1556842 (E.D. La. 4/10/24)).

60 Id. at 2.

61 Id. at 2–3.

Further, Plaintiffs contend that Crossland is directly on point, and in that case Judge Vance

declined to permit Avondale to assert a Boyle or Yearsley defense.62 In that case Plaintiffs claim

that the Court held that, “[t]he Fifth Circuit had made clear that if the government merely ‘rubber-

stamp[s]’ the contractor’s decisions, this is not enough to entitle a contractor to immunity under

Boyle.63 Additionally, Plaintiffs contend the Court in Crossland held that a Yearsley defense

requires “that the contractor possess an actual agency relationship with the government.”64

Plaintiffs argue that like in Crossland that requirement is not met here and Avondale should be

precluded from asserting a Yearsley defense.65

III. Legal Standard

Summary judgment is proper when “there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.”66 The court must view the evidence in the

light most favorable to the nonmovant.67 Initially, the movant bears the burden of presenting the

basis for the motion; that is, the absence of a genuine issue as to any material fact or facts.68 The

burden then shifts to the nonmovant to come forward with specific facts showing there is a genuine

62 Id. at 5–6 (citing Crossland, 2022 U.S. Dist. LEXIS 190583 at *34, 39).

63 Id. at 5 (citing Crossland, 2022 U.S. Dist. LEXIS 190583 at *34).

64 Id. at 6.

65 Id. at 6–7.

66 Fed. R. Civ. P. 56(a).

67 Coleman v. Hous. Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997).

68 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

dispute.69 “A dispute about a material fact is ‘genuine’ if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.”70

IV. Analysis

The Court first examines Avondale’s entitlement to immunity to under the doctrine

announced in Boyle.71 It then turns to their claim to immunity under the doctrine established in

Yearsley.72

A. Immunity Under the Boyle Doctrine

Avondale’s claim of immunity depends on the scope of protection available to government

contractors under Boyle. Boyle involved a claim predicated on a defective helicopter door that was

designed by a contractor pursuant to the government’s design specifications.73 The Supreme Court

held that under certain circumstances, a contractor is entitled to immunity from state law tort claims

for product design defects. Otherwise, the court reasoned, “[t]he imposition of liability on

Government contractors will directly affect the terms of Government contracts: either the

contractor will decline to manufacture the design specified by the Government, or it will raise its

price.”74

In order for a defendant to “claim the government contractor defense” for design defect

claims, “(1) the government must have approved ‘reasonably precise’ specifications; (2) the

69 See Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87

(1986).

70 Bodenheimer v. PPG Indus., Inc., 5 F.3d 955, 956 (5th Cir. 1993) (internal citation omitted).

71 487 U.S. 500 (1988)

72 309 U.S. 18 (1940).

73 Boyle, 487 U.S. at 503.

74 Id. at 507.

equipment must have conformed to those specifications; and (3) the supplier/contractor must have

warned of those equipment dangers that were known to the supplier/contractor, but not to the

government.”75 The first two requirements “assure that the design feature in question was

considered by a Government officer, and not merely by the contractor itself.”76 The third

requirement “is necessary because, in its absence, the displacement of state tort law would create

some incentive for the manufacturer to withhold knowledge of risks, since conveying that

knowledge might disrupt the contract but withholding it would produce no liability.”77 “Stripped

to its essentials,” the government contractor defense in Boyle is “fundamentally a claim that the

[g]overnment made me do it.”78

In the context of failure-to-warn claims, the Fifth Circuit has applied a “modified Boyle

test.”79 “If a plaintiff brings a failure-to-warn case alleging a failure to conform to state law

requirements, and the defendant establishes that the federal government was involved in the

decision to give (or not to give) a warning and that the defendant complied with the federal

government’s provisions, there necessarily exists a conflict between state law and federal policy

in this area.”80 Accordingly, under the modified Boyle test, government contractors are immune

from liability for failure to warn only when “(1) the United States exercised discretion and

75 Kerstetter v. Pac. Sci. Co., 210 F.3d 431, 435 (5th Cir. 2000) (citing Boyle, 487 U.S. at 512).

76 Boyle, 487 U.S. at 512.

77 Id.

78 In re Katrina Canal Breaches Litig., 620 F.3d 455, 465 (5th Cir. 2010) (internal quotation marks

omitted).

79 Kerstetter, 210 F.3d at 438.

80 Jowers v. Lincoln Elec. Co., 617 F.3d 346, 353 (5th Cir. 2010).

approved the warnings; (2) the contractor provided a warning that conformed to the approved

warnings; and (3) the contractor warned about dangers it knew, but the government did not.”81

Plaintiffs contend that they are entitled to summary judgment on the issue of Avondale’s

entitlement to Boyle immunity because Avondale has identified no evidence indicating that the

government was involved in the decision of whether to issue asbestos-related warnings. Plaintiffs

assert that to the contrary, the record shows that Avondale had discretion to warn its employees

about the dangers of asbestos, and workplace safety was Avondale’s responsibility, not the

government’s. Avondale argues it is entitled to immunity under Boyle because the government

exercised discretion when it considered the safety risks that employees faced and issued only those

warnings it thought were necessary.

Plaintiffs contend that the existence of these minimum safety requirements does not give

rise to immunity under the Boyle doctrine because there is no evidence or language in the contracts

which constrained Avondale in any way from issuing warnings to its employees. Plaintiffs argue

that because the government did not prevent Avondale from issuing warnings to employees, it

cannot claim immunity under Boyle for its failure to do so.

Several courts in this district have adopted a restrictive approach to Boyle immunity when

assessing claims like those raised by Plaintiffs here. For example, in Broussard v. Huntington

Ingalls, Inc., the Court granted summary judgment to the plaintiff on the issue of Avondale's

entitlement to Boyle immunity, because “it appears that nothing prevented Avondale from

satisfying the terms of its Navy contracts and meeting its obligations under Louisiana law, without

doing violence to either.”82 Similarly, in Sheppard v. Northrop Grumman Systems Corp., the court

81 Kerstetter, 210 F.3d at 438.

82 No. 20-836, 2021 U.S. Dist. LEXIS 225247, 2021 WL 5448795, at *3 (E.D. La. Nov. 22, 2021).

held that the defendant lacked a colorable Boyle defense for purposes of removal, because “no

government regulation or contract specification prevented [the contractors] from providing safety

warnings,” thereby permitting the contractors to “comply with both their contractual obligations

and their state-prescribed duty of care.”83

The Fifth Circuit has not explicitly required a contractor to demonstrate that it was

prevented by the government from providing additional warnings in order to enjoy immunity under

the Boyle doctrine. To the contrary, several cases suggest the Fifth Circuit takes a more permissive

approach to the availability of Boyle immunity.

For example, in Kerstetter, the family of a Navy instructor sued the manufacturer of a pilot

restraint system after the instructor died when he was inadvertently ejected from his aircraft.84 The

family brought claims for design defect and failure to warn, and the manufacturer argued it was

entitled to immunity under Boyle. Regarding the design defect claim, the Fifth Circuit rejected the

plaintiffs’ argument that the manufacturer was not entitled to immunity because it could have

designed a safer pilot restraint system without violating the government contract.85 The Fifth

Circuit further held that the manufacturer was entitled to immunity on the failure-to-warn claim

because even though the government did not require the contractor to issue a warning about the

specific hazard the deceased faced—inadvertent seat release—the government nevertheless

“exercised discretion in approving [other] warnings in the flight manual.”86 The court did not

require an additional showing that the manufacturer was prohibited from issuing further warnings.

83 No. 07-2208, 2007 U.S. Dist. LEXIS 38463, 2007 WL 1550992, at *6 (E.D. La. May 24, 2007).

84 Kerstetter v. Pac. Sci. Co., 210 F.3d 431, 433-34 (5th Cir. 2000).

85 Id. at 437.

86 Id. at 438.

The Fifth Circuit reached a similar conclusion ten years later in Jowers.87 In that case, the

district court instructed the jury that in order for the contractor to have immunity to a failure-to-

warn claim, the contractor must show that “the United States Government had an identifiable

interest or policy in the existence or methods of warnings on welding products,” and that “there

was a significant conflict between this Federal interest or policy and the requirements of [state]

law regarding the provision of adequate warnings.”88 The contractor argued “this added element

erroneously required it to show physical impossibility to comply with both the state law standard

of care and the federal government’s specifications in order to prevail on the government contractor

defense.”89 The Fifth Circuit agreed, holding that “[i]f a plaintiff brings a failure-to-warn case

alleging a failure to conform to state law requirements, and the defendant subsequently establishes

that the federal government was involved in the decision to give (or not to give) a warning and that

the defendant complied with the federal government’s provisions, there necessarily exists a conflict

between state law and federal policy in this area.”90 The contractor was not required to also prove

that the government prohibited it from issuing additional warnings.91

Even under the more permissive approach to Boyle immunity, the Court finds that Avondale

has failed to establish its entitlement to immunity. The fact that the government provided a

maximum threshold for asbestos exposure does not indicate that the government exercised

meaningful discretion in the decision of whether to issue warnings related to asbestos. Avondale

argues that the government required warnings about asbestos in the event employees were exposed

87 617 F.3d at 353.

88 Id. at 352.

89 Id.

90 Id. at 353

91 Id.

in excess of the maximum thresholds, but there is no evidence of the content of any warnings

required by the government, or any contract provision, regulation, statute, or document that

required warnings. There is no provision in the Walsh-Healey Act or any regulations that required

such warnings. Additionally, Avondale cites to no other source for this requirement. Unlike in

Kerstetter, where the government’s exercise of discretion regarding the issuance of warnings was

made clear by evidence that the government affirmatively approved the contractor’s warnings,92

here, the government appears to have been uninvolved in the decision of which, if any, warnings

would be issued to Avondale’s employees about asbestos.

Further, as Plaintiffs note, Felix Albert, a Navy inspector who worked at Avondale during

the same time as Decedent, testified that Avondale handled safety matters at the shipyard.93 This

evidence indicates that, contrary to Avondale’s assertions otherwise, the government did not

exercise meaningful discretion in the area of asbestos warnings.

The Court also does not accept Avondale’s conclusion that the government’s decision to

work with Avondale even though Avondale did not issue warnings to workers about asbestos gives

rise to immunity under Boyle. The Fifth Circuit has made clear that if the government merely

“rubber-stamp[s]” the contractor’s decisions, this is not enough to entitle a contractor to immunity

under Boyle.94 Avondale also emphasizes that the government was closely involved with designing

and overseeing the construction of the asbestos-containing vessels, but that fact does not

demonstrate that the government was involved with the issuance of warnings to employees about

the risks of asbestos.

92 210 F.3d at 438.

93 Rec. Doc. 226-3 at 30.

94 Jowers, 617 F.3d at 353.

Accordingly, the Court finds that Avondale has not met its burden of identifying evidence

creating a genuine dispute of material fact as to whether “the federal government had [a] hand in”

the decision of whether to issue warnings related to asbestos.95 Rather, the record indicates that

“no governmental discretion was exercised.”96 The Court thus holds that Avondale is not entitled

to Boyle immunity for Plaintiffs’ failure-to-warn claims.

The same is true for Plaintiffs’ claims premised on Avondale’s failure to implement

additional safety measures to prevent the spread of asbestos. The safety and health standards of

the Walsh-Healey Act provide that no employee shall be exposed to asbestos in excess of a

specified limit, unless he is protected therefrom by respiratory equipment approved for the purpose

by the United States Bureau of Mines of the United States Department of the Interior and operated

in accordance with the recommendations of its manufacturer.97 Further, Avondale has submitted

testimony that the Navy had a team of people throughout the shipyard inspecting every single part

of the work performed, including for safety, and that some of these safety inspections focused on

Avondale’s compliance with the Walsh-Healey Act. The specifications in the Walsh-Healey Act

appear to be reasonably precise, but the Act includes a catch-all provision that it expresses only

minimum safety and health standards, and that compliance with the standards expressed herein

will not relieve anyone from any obligation to comply with any more strict standard stemming

from any other source whatsoever. While it is true that as a general matter, a contractor may be

immune under Boyle if it followed reasonably precise government specifications, even if it could

95 Adams v. Eagle, 2022 U.S. Dist. LEXIS 158790, 2022 WL 4016749, at *7 (E.D. La. Sept. 2, 2022).

96 Id.

97 Walsh-Healey Act, Pub. L. No. 81-793, 64 Stat. 198 (1950).

have performed the contract in a safer way,98 this principle does not apply here, as the government

expressly stated that the safety requirements it specified are minimum standards that do not relieve

contractors of from their obligation to comply with stricter standards. Accordingly, the Court holds

that Avondale’s compliance with the minimum health and safety requirements of the Walsh-Healey

Act does not give rise to immunity under Boyle.99

In opposition Avondale cites Latiolais v. Huntington Ingalls, Inc., a recent en banc decision

by the Fifth Circuit.100 There, much like here, the plaintiff brought claims against Avondale for

failure to warn him about asbestos hazards and failure to provide adequate safety equipment.101.

Avondale removed the case to federal court under 28 U.S.C. § 1442(a)(1).102 On appeal of the

district court’s remand order, the Fifth Circuit discussed each of the requirements for removal

under section 1442(a)(1), including whether Avondale presented a colorable federal immunity

defense. In stating the requirements for immunity, the court reiterated the Boyle test it traditionally

applied in design defect cases: “(1) the United States approved reasonably precise specifications;

(2) the equipment conformed to those specifications; and (3) the supplier warned the United States

about the dangers in the use of the equipment that were known to the supplier but not to the United

States.”103 The court went on to hold that Avondale’s claim for Boyle immunity was not frivolous

because it offered evidence that “the government approved reasonably precise specifications about

the installation of asbestos,” including evidence that “the Navy generally required Avondale to

98 See Kerstetter, 210 F.3d at 437.

99 See Adams, 2022 WL 4016749, at *8-9.

100 951 F.3d 286 (5th Cir. 2020).

101 Id. at 290.

102 Id.

103 Id.

install asbestos and to comply with certain related safety practices;” that “Avondale complied with

those specifications;” and “that the federal government knew more than Avondale knew about

asbestos-related hazards and related safety measures.”104

Although Latiolais considered Boyle in the context of removal rather than assessing the

defense on the merits, there is no reason the elements of the Boyle defense would be different in

these contexts, even if the removal standard requires only that the test be supported by a colorable

showing. The court noted that the Boyle “government contractor defense does not necessarily apply

only to claims labeled ‘design defect;’” rather, whether the defense “will apply to a particular claim

depends only upon whether Boyle’s three conditions are met with respect to the particular product

feature upon which the claim is based.”105 Latiolais thus suggests that the proper test for failure-

to-warn claims arising from asbestos installed under government contracts is the same as the test

used in the design defect context. If that were the case, it is unclear that Plaintiffs are entitled to

summary judgment. Nevertheless, the Fifth Circuit in Latiolais did not expressly overrule its

earlier line of cases analyzing the modified Boyle test, including Kerstetter and Jowers. The Court

will not presume that the Fifth Circuit intended to overrule these cases without expressly doing so.

Accordingly, the Court holds that, under the traditional failure-to-warn test applied in Kerstetter

and Jowers, Avondale has failed to demonstrate it is entitled to a defense under Boyle.

B. Immunity under the Yearsley Doctrine

Avondale contends it is independently entitled to immunity under the Yearsley doctrine. In

Yearsley, the plaintiffs sought to recover damages for erosion of their land that resulted from the

104 Id. at 297–98.

105 Id. at 297 (quoting Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 801 (5th Cir. 1993)) (emphasis in

original).

defendant’s performance of a government contract to build dikes.106 The Supreme Court held that

there can be “no liability on the part of [a] contractor for executing [the government’s] will,” so

long as (1) the contractor’s authority to perform was validly conferred by the government, and (2)

the contractor did not exceed the authority conferred by its contract.107

As a threshold matter, it is unclear whether Yearsley even applies in cases such as this one.

Courts have observed that “the context in which [Yearsley and Boyle] immunities apply is

different.”108 The Fifth Circuit has pointed out that “[t]he application of the contractor defense in

the context of military-equipment manufacturers is an area of law that has [ ] been arguably

distinguished from the general Yearsley defense in Boyle” and its progeny.109 “The problem of

applying the Yearsley defense in the context of the military contractor is the apparent requirement

that the contractor possess an actual agency relationship with the government.”110 “The difficulty

of establishing a traditional agency relationship with the government makes the derivative

sovereign immunity defense ill-suited to many manufacturers of military equipment.”111

Even if the Yearsley doctrine applies to claims brought against military-equipment

manufacturers, the Court finds that Avondale is entitled to Yearsley immunity. Avondale contends

that it is entitled to immunity because the government authorized and directed its use of asbestos,

but this argument relies on a mischaracterization of Plaintiffs’ claims. In the instant motion

106 Yearsley, 309 U.S. at 19.

107 Id. at 21.

108 In re Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, No. 2179, 2016 WL 614690,

at *10 n. 6 (E.D. La. Feb. 16, 2016).

109 Ackerson v. Bean Dredging LLC, 589 F.3d 196, 205 (5th Cir. 2009).

110 Bynum v. FMC Corp., 770 F.2d 556, 564 (5th Cir. 1985).

111 Id. (noting that parties that have "close contractual ties with the government" may nevertheless be

"independent contractors").

Plaintiffs do not seek summary judgment for liability on the part of the contractors for executing

the government’s will in using asbestos-containing materials.112 Rather, Plaintiffs’ claims are based

on their failure to take steps to properly protect workers from the asbestos they were directed to

use. According to Yearsley, immunity applies to acts that were “all authorized and directed by the

Government of the United States.”113 Yearsley does not stand for the proposition that a government

contractor is immune liability for wrongful acts or omissions that are not “authorized and directed”

by the government. As discussed above, Avondale has failed to meet its burden of establishing that

the government “authorized and directed” its efforts to protect workers, including their issuance

of warnings about asbestos-related safety hazards. Therefore, it is not entitled to Yearsley

immunity.

In its opposition brief, Avondale primarily rely on two cases, In re Deepwater Horizon114

and Taylor Energy Company, LLC v. Luttrell,115 to support its argument that it is entitled to

immunity under Yearsley. Neither case compels that conclusion. Regarding In re Deepwater

Horizon, the federal government, rather than a contractor, had “ultimate responsibility” for

“addressing worker health safety concerns,” and OSHA “review[ed] training programs for

incoming clean-up workers, help[ed] to determine the appropriate level of [PPE] to be worn by

clean-up workers, prepar[ed] safety and health related guidance materials,” among other things.116

That case is distinguishable because the federal government had extensive involvement in deciding

on and implementing worker protections. Avondale has not demonstrated that the government

112 Yearsley, 309 U.S. at 21.

113 Yearsley, 309 U.S. at 20 (internal quotation marks omitted).

114 2016 WL 614690.

115 3 F.4th 172 (5th Cir. 2021).

116 2016 WL 614690, at *9.

came close to having the same degree of involvement in safety decisions at Avondale as it had in

In re Deepwater Horizon.

Taylor Energy is even less factually analogous to the instant case. In that case, the Coast

Guard hired a contractor to assist with oil spill cleanup efforts at the expense of an energy company

responsible for the spill.117 The contractor ultimately charged the energy company over ten times

the initial estimate.118 The energy company sued, arguing the contractor undertook activities

beyond the scope of the Coast Guard’s directive.119 In response, the contractor argued it was

entitled to Yearsley immunity because it acted at the direction of the Coast Guard.120 The Fifth

Circuit held that the contractor was entitled to Yearsley immunity because even though it retained

some discretion on the manner in which it carried out the Coast Guard's directions, it complied

with government directives.121

Notably, Plaintiffs do not seek summary judgment regarding liability on Avondale for

complying with government directives. Rather, Plaintiffs seek summary judgment on the Yearsley

defense on claims that Avondale “chose not to warn [their] employees of the dangers of asbestos

or put other measures in place to prevent the spread of asbestos” ultimately “boil down to a broad

claim against [defendants] for [a] separate act of negligence.”122 Much like in Adams, Avondale

117 3 F.4th at 173–74.

118 Id. at 174.

119 Id. at 174–75.

120 Id. at 175.

121 Id. at 176.

122 See Adams, 2022 WL 4016749, at *11 (distinguishing Taylor Energy on the grounds that it did not

concern immunity for separate acts of negligence committed while fulfilling a government contract); see also

Ackerson, 589 F.3d at 207 (distinguishing a valid challenge to governmental direction from a "separate act of

negligence" by the contractor").

here cannot claim immunity under Years/ey for its alleged negligent “failure to warn of the dangers

of asbestos and failure to prevent the spread of asbestos.”!”?

Avondale’s argument against this result rests on the same faulty premise as its arguments

about Boyle immunity: that the government’s lack of asbestos-related warnings was an intentional

policy decision deserving of protection. As discussed herein, Avondale’s conclusion that its

workplace-safety policies were baked into the government’s discretionary decisions regarding

appropriate workplace-safety precautions is not supported by the evidence in the record. Hence,

the Court finds that Avondale’s decisions about workplace safety measures were not “directed or

authorized” by the government. Accordingly,

IT IS HEREBY ORDERED that Plaintiffs’ “Motion for Partial Summary Judgment

Regarding Avondale’s Government Contractor Defense”!** is GRANTED. Avondale may not

assert a sovereign immunity defense as a government contractor against Plaintiffs’ claims for

failure to warn, prevent the spread of asbestos, and protect workers from exposure to asbestos

claims.

NEW ORLEANS, LOUISIANA, this 19th day of November, 2025.

ersette )obuctt Browr

NANNETTE JOELYVETTE BROWN

UNITED STATES DISTRICT JUDGE

123 2022 WL 4016749, at *12.

14 Rec. Doc. 208.

23