Williams v. Lockheed Martin ( 2021 )

Case: 18-31159 Document: 00515759916 Page: 1 Date Filed: 02/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 26, 2021
No. 18-31159 Lyle W. Cayce
Clerk
Tarsia Williams; Breck Williams,
Plaintiffs—Appellants,
versus
Taylor Seidenbach, Incorporated,
Defendant—Appellee,
consolidated with
_____________
No. 18-31161
_____________
Tarsia Williams; Breck Williams,
Plaintiffs—Appellants,
versus
McCarty Corporation,
Defendant—Appellee.
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:9-CV-65
Case: 18-31159 Document: 00515759916 Page: 2 Date Filed: 02/26/2021
No. 18-31159
Before Haynes, Graves, and Duncan, Circuit Judges.
Per Curiam:*
Tarsia and Breck Williams (“Plaintiffs”), claim their father was killed
by asbestos products sold and installed by Defendants McCarty Corporation
(“McCarty”) and Taylor Seidenbach, Inc. (“TSI”). The district court
granted Defendants summary judgment. We affirm.
I
Frank C. Williams worked as a mechanical engineer at the NASA
Michoud Assembly Facility (“MAF”) in New Orleans from around 1974 to
1993. See Williams v. Taylor-Seidenbach, Inc., 748 F. App’x 584, 585 (5th Cir.
2018) (per curiam). The MAF comprises dozens of buildings across several
hundred acres. Williams worked primarily in Building 350, but sometimes
worked in and visited other MAF buildings. Deteriorating asbestos was
present in Building 350, and asbestos remediation occurred in that building
in the mid-1980’s.
In 2008, Williams was diagnosed with mesothelioma. That same year
he sued multiple defendants, including McCarty and TSI, in Louisiana state
court, asserting various tort claims. The suit was removed to the federal
district court for the Eastern District of Louisiana, and then transferred by a
multidistrict litigation panel to the Eastern District of Pennsylvania. See
Williams, 748 F. App’x at 585. Williams died in 2009 and his children, Tarsia
and Breck, were substituted as plaintiffs. In 2014, the district court granted
Defendants’ motions for summary judgment. The court found no evidence
Williams was exposed to respirable asbestos at the MAF. Even assuming he
was, however, the court also found no evidence linking Williams’ exposure
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
2
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to Defendants’ products. The district court remanded the case back to the
Eastern District of Louisiana. Williams, 748 F. App’x at 585. Plaintiffs
appealed. Id. at 585–86.1
II
We must first address the jurisdictional question of whether the case
was properly removed to federal court. See Golden v. N.J. Inst. of Tech., 934
F.3d 302, 309 (3d Cir. 2019). Lockheed Martin (“Lockheed”), Williams’
employer, removed the case based on the “federal officer removal” provision
of 28 U.S.C. § 1442(a)(1). See generally Latiolais v. Huntington Ingalls, Inc.,
951 F.3d 286, 290–91 (5th Cir. 2020) (en banc). The transferee district court
in Pennsylvania twice denied remand to state court. The Eastern District of
Louisiana later denied a third motion to remand. Plaintiffs argue that removal
was improper and that the district court therefore lacked jurisdiction. We
disagree.
The federal officer removal statute provides in relevant part that a
“civil action . . . commenced in a State court” against “any officer (or any
person acting under that officer) of the United States” may be removed to
federal court under certain circumstances. 28 U.S.C. § 1442(a)(1). Removal
is proper if:
1
Panels of our court previously ruled they lacked appellate jurisdiction because
Plaintiffs’ without-prejudice dismissal of certain defendants meant there was no final
appealable judgment as to the remaining defendants. See Williams, 748 F. App’x at 587–
88; see also Williams v. Taylor-Seidenbach, Inc., 935 F.3d 358, 360 (5th Cir. 2019) (holding
Rule 54(b) judgment did not cure lack of appellate jurisdiction), vacated on en banc reh’g,
941 F.3d 1183 (5th Cir. 2019). Our en banc court has since ruled, however, that a subsequent
Rule 54(b) judgment did create an appealable final judgment as to the remaining
defendants. See Williams v. Taylor-Seidenbach, Inc., 958 F.3d 341, 349 (5th Cir. 2020) (en
banc). We therefore have appellate jurisdiction.
3
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(1) the defendant is a “person” within the meaning of the
statute; (2) the plaintiff’s claims are based upon the
defendant’s conduct “acting under” the United States, its
agencies, or its officers; (3) the plaintiff’s claims against the
defendant are “for, or relating to” an act under color of federal
office; and (4) the defendant raises a colorable federal defense
to the plaintiff’s claims.
Papp v. Fore-Kast Sales Co., 842 F.3d 805, 811 (3d Cir. 2016) (cleaned up);
accord Latiolais, 951 F.3d at 296.2 The parties dispute only the third and
fourth factors.
As to the third factor, it is “sufficient for there to be a connection or
association between the act in question and the federal office.” Papp, 842
F.3d at 813; Latiolais, 951 F.3d at 296. Here, this requirement is satisfied
because the record shows that part of Plaintiffs’ case concerned alleged
asbestos exposure from Williams’ work on “rockets” produced by Lockheed
for NASA. Just before Lockheed removed the case, Williams testified that
his work for Lockheed had involved “firing [rockets] up,” that these rockets
contained asbestos, and that they had been built for NASA. Lockheed also
produced an affidavit attesting that its only product built at MAF for NASA
was the Space Shuttle External Tank (ET) and detailing NASA’s oversight
2
The transferee district court applied the precedents of its own circuit, the Third,
on this question of federal law. See United States ex rel. Hocket v. Columbia/HCA Healthcare
Corp., 498 F. Supp. 2d 25, 40 (D.D.C. 2007) (“As a general rule, questions of federal law
in MDL-transferred cases are governed by the law of the transferee circuit.”); In re Korean
Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1175–76 (D.C. Cir. 1987). After our en banc
decision in Latiolais, our circuit’s test for federal-officer removal and that of the Third
Circuit coincide. See Latiolais, 951 F.3d at 292 (citing In re Commonwealth’s Mot. to Appoint
Counsel Against or Directed to Defender Ass’n of Phila., 790 F.3d 457, 470–71 (3d Cir. 2015)).
4
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of the project. That showed the required “connection or association between
the acts complained of by [Plaintiffs] and the federal government.” Id.3
The fourth factor is satisfied because Lockheed adequately pled a
colorable government contractor defense. See generally Boyle v. United Techs.
Corp., 487 U.S. 500 (1988). While Plaintiffs argue that Lockheed failed to
plead the defense’s requirement that “the United States approved
reasonably precise specifications,” id. at 512, Lockheed has supported this
element with an affidavit attesting to NASA’s detailed specifications for its
fuel tanks. Plaintiffs argue that Lockheed would have to show the government
specified that Lockheed use asbestos in the relevant products, and that
Lockheed did so, but Plaintiffs construe this element of the defense too
narrowly. See Papp, 842 F.3d at 814–815.4 The case was therefore properly
removed under 28 U.S.C. § 1442(a)(1).
Federal jurisdiction over Plaintiffs’ claims against McCarty and TSI
is supplemental to this federal-officer jurisdiction. See 28 U.S.C. § 1367.
“[R]emoval of the entire case is appropriate so long as a single claim satisfies
the federal officer removal statute.” Savoie v. Huntington Ingalls, Inc., 817
F.3d 457, 463 (5th Cir. 2016), overruled on other grounds by Latiolais, 951 F.3d
at 291. Plaintiffs’ claims against the various defendants form a single
controversy: a claim for damages from Williams’ death from mesothelioma,
allegedly caused by asbestos exposure on the job. Furthermore, because
Plaintiffs argue that no federal contractor work is at issue in this suit any
3
Plaintiffs no longer make such a claim, but “when a defendant removes a case to
federal court based on the presence of a federal claim, an amendment eliminating the
original basis for federal jurisdiction generally does not defeat jurisdiction.” Rockwell Intern.
Corp. v. United States, 549 U.S. 457, 474 n.6 (2007); see also Westmoreland Hosp. Ass’n v.
Blue Cross of W. Pa., 605 F.2d 119, 123 (3d Cir. 1979).
4
Lockheed has also asserted a colorable defense of derivative sovereign immunity,
which we find unnecessary to address here.
5
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longer, we review a district court’s determination to retain supplemental
jurisdiction for abuse of discretion, looking to “considerations of judicial
economy, convenience and fairness to litigants.” Estate of Ware v. Hosp. of the
Univ. of Pa., 871 F.3d 273, 286 (3d Cir. 2017). Plaintiffs do not specifically
claim, and we do not find, any abuse of discretion in the district court’s
decision. We thus proceed to the merits.
III
We review a summary judgment de novo. Salinas v. R.A. Rogers, Inc.,
952 F.3d 680, 682 (5th Cir. 2020). Summary judgment is proper if the
movant shows he is entitled to judgment as a matter of law because there is
no genuine dispute of material fact. FED. R. CIV. P. 56(a). Such a dispute
“exists ‘if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.’” Salinas, 952 F.3d at 682 (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). We may “affirm summary
judgment on any grounds supported by the record and presented to the
district court.” Id. (citation omitted).
IV
Plaintiffs argue the district court erred in granting summary judgment
because a reasonable jury could conclude that Williams was exposed to
asbestos products installed and supplied by McCarty and TSI. We first set
out the causation standard required by Louisiana law. We then consider the
evidence as to McCarty and TSI. Agreeing with the district court, we
conclude that no evidence raises a genuine dispute that either Defendant’s
products substantially contributed to Williams’ injury.5
5
Because we affirm on that basis, we need not consider the district court’s
alternative conclusion that Williams was not exposed to respirable asbestos at the MAF.
6
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A
Under Louisiana law, a plaintiff claiming asbestos-related injury must
prove “significant exposure to the product complained of to the extent that
it was a substantial factor in bringing about his injury.” Rando v. Anco
Insulations Inc., 2008-1163, p. 35 (La. 9/4/09); 16 So. 3d 1065, 1091. Louisiana
courts have applied this test to require evidence linking a plaintiff’s injury to
a defendant’s asbestos-containing product.6 So, to defeat summary
judgment, Plaintiffs must point to evidence creating a genuine dispute
whether Williams was exposed to a product connected to either Defendant.
Proof is sufficient “if defendants’ products are likely to be present at a
specific location within the workplace,” because “plaintiffs are likely to have
been exposed to the products if they worked near those specific locations,
even without explicit testimony that the plaintiff worked near the specific
product.” Slaughter v. Southern Talc Co., 949 F.2d 167, 172 (5th Cir. 1991)
(applying similar Texas law). For example, Plaintiffs might show
“[D]efendants’ products were . . . installed randomly and evenly all over”
the MAF campus. Id. at 171. Even a photograph of products at the specific
worksite at the relevant time might do. Egan v. Kaiser Aluminum & Chem.
Corp., 94-1939, p. 9 (La. App. 4 Cir. 5/22/96); 677 So. 2d 1027, 1034. But
6
See, e.g., Vodanovich v. A.P. Green Indus., Inc., 2003-1079, p. 3 (La. App. 4 Cir.
3/3/04); 869 So. 2d 930, 932–33 (requiring plaintiff to “show . . . that he was exposed to
asbestos from the defendant’s products); Lucas v. Hopeman Bros., Inc., 2010-1037, p. 19
(La. App. 4 Cir. 2/16/11); 60 So. 3d 690, 702 (requiring evidence “specifically plac[ing]
[the plaintiff] around asbestos fibers emanating from a product [Defendant] Reilly Benton
sold and/or supplied to Avondale”); Thibodeaux v. Asbestos Corp., 2007-0617, p. 13 (La.
App. 4 Cir. 2/20/08); 976 So. 2d 859, 867 (evidence failed to show decedent “was actually
exposed to asbestos-containing products from Eagle while she was at Charity Hospital”);
Grant v. Am. Sugar Ref., Inc., 2006-1180, p. 5 (La. App. 4 Cir. 1/31/07); 952 So. 2d 746, 749
(noting “that in asbestos cases there is a need to show that the plaintiff was exposed to the
defendant’s asbestos product”).
7
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some evidence must connect Defendants to asbestos where Williams was
exposed. Otherwise, summary judgment was proper.
Plaintiffs may rely on direct or circumstantial evidence. Rando, 16 So.
3d at 1089. Circumstantial evidence “must exclude every other reasonable
hypothesis with a fair amount of certainty,” but need not “negate all other
possible causes.” Id. (cleaned up). Moreover, “a plaintiff’s burden of proof
against multiple defendants in a long-latency case, such as a tort claim for
mesothelioma, is not relaxed or reduced because of the degree of
difficulty that might ensue in proving the contribution of each defendant’s
product to the plaintiff’s injury.” Id. at 1091.
With these principles in mind, we ask whether the evidence raised a
genuine dispute that either Defendant’s products were a substantial factor in
bringing about Williams’ injury.
B
First, we consider McCarty. The district court concluded that,
assuming Williams was exposed to asbestos during the 80’s-era remediation
in Building 350, “there is no evidence that any asbestos was manufactured,
sold, or supplied (i.e., installed) by [McCarty].” Plaintiffs dispute this,
pointing to evidence which, they claim, suggests McCarty’s products were
present where Williams worked, especially in Building 350. We disagree.
Plaintiffs’ main evidence is this late-1960’s7 advertising brochure
from McCarty:
7
In district court, Plaintiffs asserted the brochure dated to 1968 or 1969, because it
described as “newly completed” the New Orleans International Trade Mart, finished in
1968. Defendants do not dispute this.
8
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The brochure lists over thirty “commercial insulation” projects “for which
The McCarty Corporation was the thermal insulation contractor.” One
project was “NASA Michoud Operation, New Orleans.” The next page
notes McCarty “is fully equipped for spray insulation,” although it does not
specify which listed projects, if any, involved spray insulation. According to
Plaintiffs, this brochure, by identifying McCarty as MAF’s “thermal
insulation contractor,” sufficiently ties McCarty to Williams’ exposure.
We disagree. The brochure does not reveal enough about McCarty’s
work at the MAF to create a genuine fact dispute. It establishes only that
McCarty supplied MAF with insulation, in some form, in the years leading
9
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up to 1968, but that leaves a critical evidentiary gap unfilled. The brochure
does not show that McCarty supplied insulation in Building 350 (where
Williams generally worked) or 351 (where he often ate lunch) or in any other
building Williams may have visited.8 Nor does it suggest that McCarty
products could be found “randomly and evenly all over” the MAF.
Slaughter, 949 F.2d at 171. Consequently, far from “exclud[ing] every other
reasonable hypothesis with a fair amount of certainty,” Rando, 16 So.3d at
1089, the brochure leaves a key point untouched. No reasonable jury could
conclude merely from the brochure that McCarty supplied asbestos products
to Building 350 or any other building Williams regularly visited.
No other evidence brings Plaintiffs any closer to meeting their burden.
For instance, Plaintiffs reference two building surveys from 1984 and 1997
showing that asbestos materials were discovered in Building 350 and
elsewhere at MAF, but those documents do not link the materials to
McCarty. Similarly, deposition testimony by Williams and his former co-
worker George Stemley, also refers to asbestos in Building 350 but says
nothing about its origin.9
Plaintiffs’ reply brief refers in passing to other evidence they say
implicates McCarty. Even assuming these arguments are not waived, Dixon
8
In opposing summary judgment, Plaintiffs argued that Building 350 was itself the
“Operations” building at MAF, and that the McCarty brochure therefore refers to this
building specifically, not to MAF generally. On appeal, Plaintiffs do not make this argument
and have therefore waived it. Sindhi v. Raina, 905 F.3d 327, 334 (5th Cir. 2018). Moreover,
in the district court, they cited no evidence suggesting “Michoud Operations” referred
specifically to Building 350.
9
Plaintiffs suggest that the district court’s order “recognized” McCarty installed
its products in Building 350, but that is inaccurate. The quoted passage appears to be the
court’s summary of Plaintiffs’ own arguments. The court went on to clarify that “there is
no evidence that any asbestos [to which Williams may have been exposed] was
manufactured, sold, or supplied (i.e., installed) by [McCarty].” (emphasis added).
10
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v. Toyota Motor Credit Corp., 794 F.3d 507, 508 (5th Cir. 2015), none of this
evidence helps Plaintiffs. For instance, Plaintiffs mention expert Frank
Parker, whose affidavit asserted that both McCarty and TSI were responsible
for Williams’s exposure. But that affidavit was based, not on evidence of
Defendants’ activities, but only on Parker’s “knowledge of the insulation
sellers and installers and workers of various companies who regularly did
insulation work in the New Orleans metropolitan area.” Moreover, at an
earlier deposition, Parker testified he had seen no evidence that McCarty
supplied asbestos products to Williams’s worksite.10 Plaintiffs also reference
documents produced about McCarty’s MAF work circa 1964, but those do
not specify where the work occurred or what materials were used. The same
is true for M.R. McCarty’s deposition, taken in 1980, which does not even
mention any work done by the company at MAF.
In sum, Plaintiffs have failed to identify any record evidence creating
a genuine dispute that McCarty’s products substantially contributed to
Williams’ injury. We therefore affirm the summary judgment on that basis.
C
Second, we consider TSI. As Defendants correctly point out,
Plaintiffs fail to identify any evidence suggesting that TSI was connected to
asbestos that harmed Williams. “Mere assertion” of TSI’s connection to
Williams’ injury “is insufficient to survive summary judgment.” Lawrence v.
Fed. Home Loan Mortg. Corp., 808 F.3d 670, 674 (5th Cir. 2015).
Plaintiffs again rely on the 1980 deposition of M.R. McCarty, who
testified that McCarty sometimes used TSI products when supply from
10
The district court did not consider Parker’s affidavit as evidence of a connection
to McCarty, likely because it contradicted Parker’s prior statements. See Winzer v.
Kaufman Cty., 916 F.3d 464, 472 (5th Cir. 2019).
11
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Johns-Manville, its principle source, ran out. But even assuming McCarty’s
products could be placed at Williams’ worksite (and, as explained, the
evidence fails to support that), Plaintiffs would still have to show a triable
issue as to whether McCarty used TSI’s products there. The deposition
testimony fails to do so.
***
The judgment of the district court is AFFIRMED.
12