563 F.Supp.3d 541
E.D. La.2021Background
- Ronald J. Barrosse worked as an electrician/electrician helper at Avondale Shipyard (Wet Dock 1) from 1969–1977, working on commercial vessels and Navy Destroyer Escorts.
- He alleged occupational asbestos exposure (and take-home exposure on clothing) and was diagnosed with malignant mesothelioma in March 2020; he filed suit in May 2020.
- Defendants Huntington Ingalls (Avondale) and Lamorak removed the case and moved for summary judgment, arguing the Longshore and Harbor Workers’ Compensation Act (LHWCA) preempts Plaintiffs’ state-law negligence claims.
- Core disputes: (1) which version of the LHWCA governs (date of exposure vs. date of manifestation), (2) whether on-site and take-home exposures satisfy LHWCA status/situs, (3) whether the LHWCA’s exclusivity preempts state tort claims, and (4) whether retroactive application violates due process.
- The Court applied the manifestation rule, found both on-site and take-home exposures fall within the LHWCA’s coverage, held the LHWCA preempts Plaintiffs’ negligence claims, and granted summary judgment dismissing those claims with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Which version of the LHWCA applies (exposure date vs manifestation date)? | Law at time of exposure controls for survival/asbestos claims (apply pre-1972 version). | Date of manifestation (diagnosis) controls; thus post-1972 law applies. | Manifestation controls; post-1972 LHWCA applies. |
| Does Barrosse’s on-site work meet LHWCA status and situs? | (Implicit) Plaintiffs did not contest; focus on preemption and take-home exposure. | Electrician work on ship construction/repair satisfies "harbor worker" status and shipyard location satisfies situs. | Status and situs are met for on-site exposures. |
| Are off-site (take-home) exposures covered by the LHWCA? | Off-site exposures (in car, home) are separate inj uries not covered by LHWCA. | Take-home exposure arises out of employment and is covered; not barred by coming-and-going rule. | Take-home exposures arose out of employment and fall within LHWCA coverage. |
| Does the LHWCA preempt Plaintiffs’ state-law negligence claims and is retroactive application constitutional? | Preemption improper; retroactive divestment of vested tort rights violates due process. | LHWCA exclusivity preempts state torts in the twilight zone; retroactive application is rational and constitutional. | LHWCA exclusivity preempts negligence claims; retroactive application (manifestation rule) is not arbitrary or irrational—no due process violation. |
Key Cases Cited
- Castorina v. Lykes Bros. S.S. Co., 758 F.2d 1025 (5th Cir. 1985) (adopts manifestation/date-of-injury rule for long-latency occupational diseases under LHWCA)
- Sun Ship, Inc. v. Pennsylvania, 447 U.S. 715 (U.S. 1980) (1972 LHWCA extension creates a "twilight zone" of concurrent federal/state coverage)
- Hahn v. Ross Island Sand & Gravel Co., 358 U.S. 272 (U.S. 1959) (allowed state tort recovery in a twilight-zone case under specific state-law remedial scheme)
- Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (U.S. 1976) (legislative economic adjustments, including retroactive workers’ compensation provisions, receive rational-basis review)
- Landgraf v. USI Film Prods., 511 U.S. 244 (U.S. 1994) (presumption against retroactivity and two-step retroactivity test)
- Morrison-Knudsen Constr. Co. v. Director, OWCP, 461 U.S. 624 (U.S. 1983) (describes LHWCA’s quid pro quo and balancing of employer-employee interests)
- Davis v. Department of Labor & Indus. of Washington, 317 U.S. 249 (U.S. 1942) (early recognition of effect of federal compensation coverage on state remedies)
- Rosetti v. Avondale Shipyards, Inc., 821 F.2d 1083 (5th Cir. 1987) (LHWCA bars state-law negligence claims against covered employers)