Asbestos Exposure as a Safety Hazard: Filing For Removal Denied

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A motion has been granted On January 10, 2020, in favor of Dennis Schexnayder, JR, for a case that has been remanded back to court. The case is stemming from a claim against shipbuilder Huntingdon Ingalls Inc., which operated under the named segment “Avondale”. In this case, asbestos exposure allegedly caused him to contract lung cancer.

Schexnayder intermittently worked with his uncle over the course of two summers with the asbestos-laden material and continually wore his contaminated clothing home, as he stated in this case. The plaintiff argued that “Avondale” neglected the obligation to warn him and employees about the dangers of being in contact with asbestos-laden material used on a government ship.

Avondale Attempted to Remove the Case

Avondale claimed that the government had ordered this and testified that he had material as a requirement included in work orders issued by the government and or by one of its officers. Avondale stated the required material was to be used by the government under the direction of one of its officers. As a result, the shipbuilder attempted to remove the case into Federal Court for lack of jurisdiction under 28 U.S.C. § 1442(a)(1) the (“Federal Officer Removal Statute”).

Removal Statute Elements To Be Met

According to the court, Avondale had to meet several requirements for the asbestos exposure case to be heard in the United States District of the Fifth Circuit: “To remove this matter pursuant to the Federal Officer Removal Statute under current Fifth Circuit law, Avondale must show:

“(1) that it is a person within the meaning of the statute, (2) that it has ‘a colorable federal defense,’ (3) that it ‘acted pursuant to a federal officer’s directions,’ and (4) ‘that a causal nexus exists between [its] actions under color of federal office and the plaintiff’s claims.’”

Plaintiff Argues for Failure To Warn

Avondale has to meet all of the above-required elements, for the case to be removed out of the parish court into federal court, In response, Schexnayder argued that the suit he brought against Avondale pertained to: ‘their failure to warn him about asbestos hazards and provide adequate safety equipment and procedures’, thereby harmfully exposing him to asbestos.

Schexnayder’s main point against Avondale was that the government had no control over the company’s safety procedures and obligations to warn against the danger of asbestos exposure. This, in fact, did not have any correlation between a federal officer’s orders and the claim he made.

Court Found the Government Not Responsible to Warn of Asbestos Exposure in this Case

The court found that although the government required Avondale to use asbestos-containing material, Avondale was still free to adopt safety measures to protect its employees when handling the asbestos materials. As a result, the government had no responsibility or correlation with the claim made by the plaintiff against the shipbuilder of exposure to asbestos. Thus the shipbuilder could not satisfy all of the elements the court required to remove the case into full-on federal jurisdiction.

With the shipbuilder filing the motion for the case to be tried under federal jurisdiction, the burden of proof fell on “Avondale” to show that their removal was proper and jurisdiction existed. Ultimately, the court found that “Avondale” did not meet the requirements of the statute.

The removal of the case was thus denied by the United States District Court of the Eastern District of Louisiana. The case was then remanded back to the Orleans Parish Civil District Court. The case has not yet been ruled upon since it was remanded back to the court by United States District Judge Jane Triche Milazzo.

Harmful Exposure From Asbestos

No matter what the case or the outcome, everyone has the right to know the facts and their rights when it comes to being exposed to asbestos. Employers who understand that material used or could contain asbestos have a duty to warn their workers or contractors about the danger of being around asbestos. Long-term asbestos exposure can cause lung-related illnesses, lung cancer, and mesothelioma, which is rare cancer solely caused by asbestos. If you or a loved one believe to be in danger or to be suffering effects of asbestos exposure, an experienced asbestos litigation attorney should be contacted.

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