Products Liability Law Daily Wrap Up, ASBESTOS—AIRCRAFT AND WATERCRAFT—E.D. La.: Shipbuilder not entitled to government contractor immunity for failure to warn about asbestos, (May 6, 2025)

By Nicholas Kaster, J.D.

In order for the government immunity defense to apply in a failure to warn scenario, the government must have “exercised discretion” by meaningfully participating in the drafting of the warning at issue. The government must not have merely “rubber stamped” the contractor’s decisions.

A shipbuilder was not entitled to government contractor immunity for state law claims that it failed to warn of or otherwise protect the claimant from asbestos dust exposures in the workplace, a federal district court in Louisiana has ruled. There was no evidence that the government exercised any discretion whatsoever with respect to the decision not to give the warnings or provide the protections that the claimant maintained should have been given. Accordingly, the court granted the claimant’s motion for summary judgment regarding the government immunity defense (Cantrelle v. Huntington Ingalls, Inc., No. 24-2102 (E.D. La. Apr. 29, 2025)).

Background. The claimant was diagnosed with mesothelioma in June 2024. He alleged that he was exposed to asbestos dust during his work for the shipbuilder Avondale from 1960 to 1979. Avondale removed the case asserting federal officer removal jurisdiction because it built ships for the U.S. Navy pursuant to government contracts during the time of his alleged exposure to asbestos dust. Avondale asserted government contractor immunity defenses based on the Supreme Court holding in Boyle v. United Technologies Corp., 487 U.S. 500 (1988).

The claimed moved for summary judgment, contending that Avondale had no government contractor immunity for claims under state law that it failed to warn of or otherwise protect him from asbestos dust exposures in the workplace. In support of his motion, the claimant pointed to the numerous rulings by other judges in the district, who based on the same evidence and nearly identical claims of negligence against Avondale, held that Avondale was not entitled to government contractor immunity for claims related to its failure to warn its employees of asbestos hazards and to enact protective measures to protect its employees in the workplace. The claimant pointed out that the exposure occurrences in this case happened decades ago (for the most part in the same timeframe as the exposures in the other cases) and the evidence available regarding what took place (or did not take place) at Avondale in that timeframe has not changed. In other words, the evidence available to Avondale to oppose summary judgment on its government contractor immunity defenses was no different in this case than it was in the other cases where the plaintiffs’ motions for summary judgment against Avondale were granted.

Avondale maintained that the court should decline to follow the other judges of the district because those judges erred in failing to consider the version of the Boyle test applied by the Fifth Circuit in the en banc decision of Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020).

It was undisputed that the navy vessels that Avondale was constructing during the time of the claimant’s alleged exposure to asbestos dust were built pursuant to the government’s specifications that called for the use and installation of asbestos. But the claimant’s failure to warn/protect claims did not challenge the fact that asbestos was used in the construction of the government’s vessels.

It was also undisputed that to the extent that Avondale’s government contracts contained any safety requirements related to asbestos, such as by incorporating the Walsh-Healey Act and Department of Labor regulations, Avondale complied with those requirements. But, again, the claimant’s failure to warn/protect claims were not based on whether Avondale did or did not comply with any of the requirements imposed by its government contracts.

Government contracts did not preclude Avondale from providing warnings. The court noted that none of Avondale’s government contracts precluded it or constrained it in any way from giving its workers the warnings and protections that the claimant contended that Avondale was liable under state law for failing to provide. Just as in the prior cases, Avondale could produce no evidence that the government directed it not to warn workers at its shipyard of the hazards of asbestos dust or to otherwise protect them from the hazards. And the government did not interfere with Avondale’s discretion to warn its employees about asbestos-related health hazards or to implement its own safety protocols.

Nonetheless, Avondale maintained that it was immaterial that its contracts with the government did not prevent it from providing its workers with the warnings and protections that the claimant contended should have been provided. According to Avondale, it sufficed that Avondale complied with whatever requirements its contracts imposed, and since the government could have required more stringent safety measures or warnings but declined to do so, Avondale could not be held liable.

According to the court, Avondale’s reliance on Latiolais was completely misplaced. Latiolais was an asbestos case and the claims at issue were failure to warn/protect claims like those in this case. But the driving issue in Latiolais was whether the failure to warn claims were removable to federal court following the 2011 amendments to the federal officer removal statute—under the pre-2011 causal connection standard they were not removable. After explaining why the 2011 amendments broadened removal under the federal officer removal statute by relaxing the causal connection standard that had previously been employed, the Fifth Circuit then considered whether Avondale’s federal defense under Boyle was “colorable,” which is the very liberal standard used in conjunction with removal. The Fifth Circuit concluded that Avondale’s federal defense was “colorable.” However, the court noted, that liberal standard, which applies only to the propriety of removal, was not applicable to the issues presented in the claimant’s motion here for partial summary judgment, which went to the merits. A federal defense may be “colorable” even if it is not “clearly sustainable”; in order to remove the defendant need not “win his case” as to his federal defense. Thus, the court stated, Latiolais does not provide the legal standard through which Avondale’s federal defenses under Boyle are to be evaluated at this juncture. Avondale’s contention that Latiolais demonstrates that Avondale has a viable federal defense under Boyle is simply incorrect, the court determined.

No evidence that government exercised discretion in failing to provide warnings. The federal defense outlined in Boyle extends to federal contractors an immunity enjoyed by the federal government in the performance of discretionary actions. Under Boyle, a federal contractor is not liable for design defects in a product produced for the government if: (1) the government approved reasonably precise specifications; (2) the product conformed to those specifications; and (3) the contractor warned the government about the dangers in the use of the product that were known to the contractor but not to the government. The Boyle defense is not limited solely to design defect claims so long as the three conditions are met with respect to the “particular product feature” upon which the claim is based.

Importantly, for the first Boyle factor to apply in a failure to warn scenario, the government must have “exercised discretion” by meaningfully participating in the drafting of the warning at issue. The government must not have merely “rubber stamped” the contractor’s decisions. There must be evidence in the record that the government actually chose a warning through its discretion. Separate evidence of a dialogue between the government and the contractor is needed when the government approves rather than prepares a warning because the government’s mere acceptance of a manufacturer’s warning does not establish its interest in that particular warning.

Avondale could not satisfy the first element of a Boyle defense, the court stated. Avondale’s evidence did not establish that the government exercised any discretion whatsoever with respect to the decision not to give the warnings or provide the protections that the claimant maintained should have been given. Avondale had evidence that on October 31, 1979 it modified its internal procedures regarding the removal of asbestos. However, said the court, even assuming that this occurred at the behest of the government, the claimant was not suing over asbestos removal procedures and his alleged time of exposure was from 1960 to 1979. It was not clear that the claimant continued to work at Avondale when this occurred. This evidence did not establish that the government exercised discretion to not giving the warnings and protections that the claimant alleged should have been given or that the government exercised meaningful participation in the modifications. It does not suffice for a federal Boyle defense that Avondale complied with whatever safety mandates the federal government had imposed for asbestos in the exercise of its discretion.

In sum, said the court, Avondale cannot prevail on its federal defenses to the claimant’s failure to warn/protect claims. Accordingly, the claimant’s motion to summary judgment on this issue was granted.

The case is No. 24-2102.

Judge: Zainey, J.

Attorneys: Mickey P. Landry (Landry & Swarr, LLC) for Daniel P. Cantrelle. Brian C. Bossier (Blue Williams, LLC) for Huntington Ingalls Inc. f/k/a Northrop Grumman Ship Systems, Inc.

Companies: Huntington Ingalls Inc. f/k/a Northrop Grumman Ship Systems, Inc.

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