Weis v. DSM Copolymer, Inc.

Citations: 160 F. Supp. 3d 954; 2016 U.S. Dist. LEXIS 12772; 2016 WL 413236Docket: CIVIL ACTION NO. 15-488-JJB-RLB

Court: District Court, M.D. Louisiana; February 1, 2016; Federal District Court

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The court, presided over by District Judge James J. Brady, has reviewed and adopted the Report and Recommendation from United States Magistrate Judge Richard L. Bourgeois, Jr., dated November 23, 2015, concerning the plaintiffs' motion to remand. The defendants' objections lacked merit, and they failed to provide a viable federal defense or demonstrate a causal connection between their actions under federal authority and the plaintiffs' claims. Consequently, the court has granted the motion to remand, returning the case to the 19th Judicial District Court in East Baton Rouge Parish, Louisiana.

The case originated on July 2, 2015, when plaintiffs Joseph David Weis III and others filed a lawsuit against DSM Copolymer, Inc. for the wrongful death of Joseph Weis, Decedent, who died from asbestos-related mesothelioma. The plaintiffs, as the decedent's surviving family members, allege negligence, intentional tort, and premises liability due to DSM's failure to ensure a safe workplace and protect workers from asbestos exposure from 1956 to 1966. They seek damages for pain, suffering, medical expenses, and other losses, detailing numerous specific failures by DSM regarding safety equipment, compliance with regulations, and proper maintenance related to asbestos.

Count Six alleges that DSM and its executives intentionally failed to disclose the dangers of asbestos exposure to the Decedent, including risks associated with working in contaminated environments and potential medical consequences. Plaintiffs claim that DSM neglected to provide essential safety equipment, monitoring devices, and warnings. 

In Count Seven, Plaintiffs assert that Decedent was occupationally exposed to asbestos at the Facility, where DSM was the operator, manager, owner, and custodian. They contend that the Facility was defective due to the presence of asbestos, creating an unreasonable risk of harm, which was a proximate cause of the Decedent's asbestos-related injuries. Furthermore, Plaintiffs argue that DSM failed to exercise reasonable care regarding the foreseeable harm from asbestos exposure and had a non-delegable duty to ensure the premises were safe. They assert DSM knew or should have known about the risks but did not take protective measures, constituting negligence that directly caused the Decedent’s injuries.

On July 24, 2015, DSM removed the action under the federal officer removal statute, claiming the case involves actions taken under federal authority and concerns property held under such officers. DSM states that the Decedent was employed at the Facility from 1956 to 1966, during which time it operated under federal supervision. It provides a history of the Facility, noting that its design and construction were overseen by the Defense Plant Corporation, a U.S. government entity, and that DSM operated the plants under federal direction until acquiring them in 1955.

DSM asserted that after acquiring Plancor 152 and Plancor 876, it remained under federal oversight until 1965 due to conditions tied to the Rubber Producing Facilities Disposal Act of 1953 and a National Security Clause, which mandated government monitoring for ten years post-purchase and allowed the government rights to the plant's possession and use during that time. DSM cited previous court rulings that permitted removal of exposure actions related to the facility under the federal officer removal statute. In its Notice of Removal, DSM indicated intentions to invoke the government contractor defense and other federal defenses linked to the facility’s operation and maintenance, referencing the Defense Protection Act of 1950 and other relevant federal statutes. 

On August 4, 2015, DSM amended the Notice of Removal to include all defendants, while on August 24, 2015, the Plaintiffs filed a Motion to Remand, claiming DSM’s removal was improper under specified legal statutes. The Plaintiffs contended that DSM did not fulfill the three criteria under 28 U.S.C. 1442(a)(1): acting under the authority of the U.S. Government, a connection between DSM's actions and the alleged harm, and a valid federal defense. The Plaintiffs argued that DSM was not under federal control during the Decedent's employment at the Facility, providing evidence that the Decedent worked there from 1956 to 1966, after DSM had purchased the facilities from the federal government in 1955. They highlighted DSM's contractual obligation to maintain the facilities but argued that the National Security Clause did not equate to significant federal oversight. Additionally, an affidavit from a former employee stated there was no federal oversight or instructions during the Decedent's employment.

Plaintiffs assert that no causal connection exists between the federal government's actions and their claimed harms, emphasizing that they have not alleged strict liability against DSM. They argue there is no evidence showing the federal government mandated DSM to avoid warning about asbestos hazards or to use asbestos in a harmful manner. Additionally, Plaintiffs contend that DSM's mere possession or use of asbestos does not exempt them from liability for negligence and premises liability. They highlight that most of DSM's evidence pertains only to the pre-1955 period when DSM was government-owned and that the Decedent was not an employee then. Post-1955 evidence shows federal inspections did not mention asbestos and that the government did not provide guidance on warnings or asbestos usage.

Plaintiffs also challenge DSM's claims of having a valid federal defense, specifically the federal contractor defense and the Defense Production Act, arguing DSM failed to establish the colorability of these defenses in relation to the case. Furthermore, they assert that DSM has not satisfied the requirements for removal under 28 U.S.C. 1442(a)(2), arguing that even if DSM acquired the Facility from the federal government, the action does not challenge any federal law.

In opposition, DSM contends it acted under federal direction and maintains a causal link between this direction and Plaintiffs' claims. DSM claims that the facilities in question were constructed according to federal specifications and under federal supervision, with the government controlling various operational standards even after the sale to DSM. DSM supports its position with affidavits from federal and DSM employees, arguing that the federal government retained significant control over the facilities post-sale under the Rubber Producing Facilities Disposal Act. DSM also references an Executive Order that assigned oversight of sale contracts to the Federal Facilities Corporation, which later transferred these responsibilities to another government division.

Documents from DSM indicate that the Facility underwent inspections at least nine times between February 1956 and June 1964 to ensure compliance with National Security Clauses. DSM submitted an affidavit from Robert R. Dennis, Jr., an employee from 1952 to 1988, asserting the necessity of using asbestos-containing insulation during that period to maintain readiness under these clauses. DSM claims that government oversight continued until April 1965, which is relevant for establishing the "acting under a federal officer" and "causal nexus" elements required by 28 U.S.C. 1442(a)(1). Additionally, DSM references the Lalonde and Catania cases, arguing for a historical connection between the rubber plant industry and U.S. war efforts. DSM contends it has presented a colorable federal defense, citing facts that suggest the applicability of the government contractor's defense and the Defense Production Act due to the unique relationship with the government from 1942 to 1965. No arguments were made for removal under 28 U.S.C. 1442(a)(2).

The Bartel decision, cited by the Plaintiff as relevant authority for remanding the claims, was contested by the Defendant who argued it was distinguishable. The federal officer removal statute allows for civil actions against federal officers or agencies to be removed to federal court, protecting federal activities from state interference. The statute, unlike general removal provisions, is more liberally construed in favor of removal. To successfully remove a case under 28 U.S.C. 1442(a)(1), a defendant must demonstrate three prongs: being a person under the statute, acting under a federal officer's direction with a causal nexus to the claims, and asserting a colorable federal defense. The burden of establishing federal jurisdiction lies with the party seeking removal. The court must assess whether DSM has met its burden for proper removal under the federal officer removal statute, noting that the Petition does not claim against the United States or any defendants as government contractors.

To qualify as a 'person' under 28 U.S.C. § 1442(a)(1), DSM meets the requirement as corporations are recognized as 'persons' for removal purposes, as established by the Fifth Circuit in Winters. For the second element, DSM must show it was 'acting under' a federal officer's direction and that a causal nexus exists between its actions and the Plaintiffs’ claims. The Supreme Court has interpreted 'acting under' broadly, emphasizing that merely complying with federal laws does not suffice. A private entity acts under a federal officer when it fulfills a contractual obligation that benefits the government, such as providing products essential for war efforts. The Fifth Circuit confirmed this in Wilde, where a contractor's actions related to ship production under federal direction satisfied the 'acting under' requirement. DSM operated a facility where asbestos exposure occurred and was bound by National Security Clauses mandating operations consistent with those when the facility was government-owned for wartime efforts. The federal government had the authority to require DSM to produce specific synthetic rubber within short notice and conducted inspections to ensure compliance. Thus, the evidence suggests DSM was acting under federal officers, meeting the requirements for removal under § 1442(a)(1).

The 'causal nexus' requirement in chemical exposure cases hinges on whether the government established specific standards and oversaw the production of the toxic substances involved. In the Winters case, the Fifth Circuit concluded that the causal nexus was satisfied due to the federal government's detailed specifications and supervision of Agent Orange, linking the plaintiff's disease to alleged exposure. The court emphasized that the defendants acted under federal direction, fulfilling the necessary criteria for federal officer removal.

DSM contends that the causal connection does not require the wrongful act to be explicitly compelled by federal law. It references cases where exposure occurred to silica dust or asbestos during government ownership of a facility, asserting that the causal nexus was established based on the operational context. In the Lalonde case, the court noted that DSM operated a government-owned synthetic rubber plant under an agreement with the federal government, affirming that the causal connection exists between the state court suit and DSM's federal responsibilities. The focus is on whether failures, such as not warning about hazards, happened while DSM was performing its federal duties, rather than on specific directives regarding those duties. The court upheld the causal connection, rejecting contrary interpretations from some lower district court cases.

Catania, No. 02-368, concluded that a causal nexus was established based on the Dennis and Samuels Affidavits, indicating that alleged exposure occurred during government ownership of the Facility and DSM’s subsequent ownership. However, in the current case, the Decedent began working at the Facility in 1956, after the U.S. had sold the plant to DSM, making a critical factual element present in earlier cases absent here. Additionally, Lalonde was decided prior to the Fifth Circuit's Winters decision, which clarified that the causal nexus requirement depends on whether the government specified the chemical composition involved. Lalonde allows for a causal nexus where the defendant's actions occurred while performing federal duties, irrespective of a direct federal directive. The U.S. District Court for the Eastern District of Louisiana has consistently rejected this interpretation, as seen in several cases. Judges in this district have issued conflicting rulings on the applicability of Lalonde, with some asserting it contradicts the Supreme Court's government contractor defense in Boyle v. United Technologies Corp. Conversely, another judge recently supported Lalonde’s reasoning without direct reference, indicating no requirement for a defendant to show that the wrongful act was compelled by federal law in failure to warn cases.

The Fifth Circuit's decision in Bartel aligns with its analysis in Lalonde and Winters. It emphasizes that the federal government imposed extensive safety protocols at the facility, including mandatory protective equipment and monthly safety meetings, which were subject to government-dictated topics. The court concluded that any failure to warn in Lalonde was attributable to government instructions, indicating that the defendant operated under federal oversight at a government-owned facility.

The Fifth Circuit critiques Lalonde’s assertion regarding the 'causal nexus' requirement, stating that it overstated the law by implying that the existence of federal duties alone suffices for establishing a causal link without regard to specific federal directives. The court will examine whether DSM has demonstrated a causal nexus for the plaintiffs' failure to warn and premises liability claims.

In the context of failure to warn claims, the court underscores that the removing defendant must show that the government exercised direct control over warning measures. Previous rulings indicate that a lack of evidence for such control fails to meet the causal nexus requirement, while cases demonstrating government control over design and warnings support establishing this connection. The court references specific cases, including Leonard and Bartel, to illustrate the application of these principles in determining liability under federal jurisdiction.

The court applies the evidentiary standards from McFarlain and Leonard to the Plaintiffs' failure-to-warn negligence claims, requiring DSM to provide evidence of federal government restrictions on its ability to warn about asbestos exposure. DSM cites affidavits from Baker, Samuels, and Dennis to support its position; however, these affidavits primarily cover the period when the Facility was government-owned and do not address safety measures post-sale to DSM. The Baker Affidavit, from an employee who worked at DSM only from 1950 to 1952, lacks relevant information after the purchase. Similarly, the Samuels Affidavit, covering 1943 to 1982, also does not address post-sale safety practices. The Dennis Affidavit, the only one relevant to the 1950s and 1960s, reveals that Dennis, a chemical engineer, was unaware of health risks from asbestos at the time, indicating DSM did not inform its employees of such hazards. The Acts of Sale designate DSM as responsible for maintaining the Facility in good repair and free from waste, contradicting any assertion of federal control over safety measures during the relevant period. DSM has not produced evidence showing federal government oversight post-sale, failing to establish the necessary causal connection for the failure-to-warn claim. This conclusion aligns with previous Fifth Circuit rulings, which require defendants to demonstrate that federal officers directed their actions related to safety warnings to meet the causal nexus standard for federal officer jurisdiction.

Removing defendants demonstrated that while "detailed, government specifications" existed for the products manufactured, no federal officer mandated warnings about asbestos. The federal government neither provided direction on warnings nor prevented Avondale from implementing safety measures beyond minimum federal standards. Consequently, the court determined that Avondale did not establish a causal link between the Navy's directives and the plaintiffs' failure to warn claims. Likewise, DSM failed to show a causal connection between its actions under federal direction and the plaintiffs' alleged injuries. 

The court then examined the plaintiffs' premises liability claims against DSM, which included allegations that the decedent was exposed to asbestos at the Facility, which DSM operated and managed. Key points from the claims include that the presence of asbestos posed an unreasonable risk of harm, the defective condition of the Facility was a proximate cause of the decedent's injuries, and DSM did not exercise reasonable care to protect the decedent from foreseeable damages. DSM was also said to have a non-delegable duty to ensure the premises were safe for invitees and failed to mitigate known risks associated with asbestos exposure. 

While the plaintiffs' claim is framed under negligence, they did not specifically cite Louisiana law to support their premises liability claim. The plaintiffs explicitly excluded DSM from a strict liability claim against other contractors. Their argument emphasized that the negligence claim was based on DSM's manner of using asbestos rather than mere possession. The court concluded that the premises liability claim against DSM is indeed based on negligence, likely referencing Louisiana Civil Code articles 2315, 2316, and/or 2317.1.

The Petition does not indicate that the Plaintiff has alleged a strict liability claim against DSM. Regardless of whether the premises liability claims are viewed as negligence or strict liability, the court finds that DSM has not established a causal nexus concerning its actions as a federal officer and the Plaintiff's premises liability claims. Previous court decisions have required specific evidence showing that the federal officer mandated the use of asbestos and conducted inspections at the removing defendant’s property to satisfy the causal nexus requirement. In cases like Legendre and Kluka, the courts concluded that a causal nexus was present when there was evidence of federal oversight and compliance with regulations that required asbestos use in ship construction.

In contrast, DSM has not provided direct evidence that the United States directed or required it to maintain asbestos at its facility. DSM asserts that the United States mandated asbestos as part of the original design of the facility and required its maintenance under the National Defense Clause for manufacturing purposes. DSM relies on the Dennis Affidavit, where Mr. Dennis, a former chemical engineer at DSM, claims that the design specifications directed by the United States called for asbestos insulation. However, DSM has not presented specific documents proving that the United States required asbestos usage, nor is there evidence that DSM was prohibited from removing the asbestos after acquiring full ownership of the facility.

The Dennis Affidavit asserts that asbestos-containing insulation was essential for maintaining necessary process steam temperatures for producing butadiene and synthetic rubber, with Mr. Dennis stating that asbestos-free insulation was unavailable from the 1940s to the 1960s. However, there is no documentation indicating that the United States controlled the use of asbestos materials. The Act of Salé assigned DSM the responsibility for disposing of machinery and equipment, indicating that DSM, not the United States, was responsible for the Facility's maintenance and the decision to use asbestos.

In prior cases (Legendre, Kluka, and McFarlain), the court found sufficient evidence linking premises liability claims to actions taken under federal oversight, where contracts mandated the use of asbestos-containing materials, closely monitored by U.S. officials. In contrast, DSM was not manufacturing for government use and has not provided evidence that the United States required the use of asbestos during the relevant employment period. Although DSM referenced initial government specifications requiring asbestos, it failed to present those specifications or any contracts mandating asbestos use after the Facility's sale.

Consequently, the court concludes that the prior cases are distinguishable, and DSM has not met the “causal nexus” requirement for the plaintiffs' premises liability claims or asserted a colorable federal defense necessary for removal under Section 1442.

The court addresses the government contractor defense raised by DSM, which asserts that it should not be liable for design defects in military equipment under specific criteria: the United States must have approved precise specifications, the equipment must conform to those specifications, and the supplier must have warned the United States of known dangers. DSM has not provided evidence of precise specifications regarding asbestos use or whether those specifications were approved by the U.S. Additionally, DSM references the Defense Production Act, which offers immunity from liability for contractors compelled to perform under threat of criminal sanction, but fails to cite any relevant rules or regulations that would expose them to liability. DSM's identification of two federal defenses deemed "colorable" in other cases is insufficient, as it does not explain why these defenses are applicable in the current context. The court concludes that DSM has not established a colorable federal defense or a causal nexus between its actions and the plaintiffs' claims. Consequently, the court determines it lacks jurisdiction under the federal officer removal statute and recommends that the plaintiffs' motion to remand be granted, returning the case to the 19th Judicial District Court in East Baton Rouge Parish, Louisiana.

The Facility comprised two plants: Plancor 152 for butadiene production and Plancor 876 for synthetic rubber. The remaining defendants include various companies and insurance entities. DSM references Executive Order No. 10678, which does not mention any federal "technical specifications" for the Facility's design or require asbestos insulation, despite being issued after the Facility's establishment. Defense counsel argued that the Dennis Affidavit suggested original plans mandated asbestos use. DSM failed to substantiate its removal claim under 28 U.S.C. § 1442(a)(2), leading the court to view this as an abandonment of that basis. The court determined that since the plaintiffs' action does not challenge U.S. law validity, removal under § 1442(a)(2) is improper. The court will analyze the federal officer removal statute under § 1442(a)(1) instead. 

The Fifth Circuit combined the "acting under" and "causal nexus" elements in prior cases, but the U.S. Supreme Court has addressed the "acting under" prong separately without reaching the "causal nexus" aspect. The Fifth Circuit noted evidence that the federal government directed asbestos use in ship manufacturing, yet it remains uncertain if this direction was essential for establishing that the defendant was "acting under" a federal officer. The Catania decision emphasizes the importance of context in such determinations.

Allegations of exposure occurred while the facility was owned by the United States Government and operated by DSM Copolymer, with federal oversight during construction and operation. The Catania decision emphasizes that the result is contingent on exposure occurring during government ownership, without further analysis on DSM's claimed “continuing government control” post-purchase. The McFarlain district judge acknowledged conflicting decisions regarding liability interpretations. Plaintiffs assert premises liability under Louisiana Civil Code article 2317, as it existed before 1996, which is characterized as strict liability requiring proof of control, defect, and causation. The modification in 1996 introduced foreseeability and reasonable care, shifting the claim to negligence. Recent Eastern District of Louisiana rulings indicate that claims alleging improper handling of asbestos fall under negligence rather than strict liability, necessitating proof that the government mandated both the use and handling of asbestos in a harmful manner. Defendants failed to demonstrate how U.S. Navy or Coast Guard directives impacted their ability to manage asbestos exposure, thus not meeting the causal nexus requirement in the claims discussed.