# Constanza

> District Court, E.D. Louisiana · November 19, 2025

URL: https://www.frixlaw.com/law-library/cases/11205844

## Case

- **Full name:** Erica Dandry Constanza, et al. v. Sparta Insurance Company, et al.
- **Court:** District Court, E.D. Louisiana
- **Decided:** November 19, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11205844

## How later opinions describe it (automated extraction)

- noting that parties that have "close contractual ties with the government" may nevertheless be "independent contractors"

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11205844. Public record. Not legal advice.