NEW ORLEANS (Legal Newsline) – A Louisiana federal judge has denied an asbestos claimant’s motion to remand, ruling that the defendant sufficiently proved it was acting according to the government’s specifications.
Judge Lance M. Africk issued the Sept. 23 order in the United States District Court for the Eastern District of Louisiana ruling in favor of defendant Elliott Company.
Claimant John Humphries, who was diagnosed with mesothelioma in June 2013, alleges he was exposed to asbestos while working as a turbine operator for E.I. DuPont de Nemours and Company and Kaiser Aluminum & Chemical Company.
Humphries alleges Elliott sold asbestos-containing turbines to DuPont for use at the Savannah River facility, which was used by the Atomic Energy Commission for manufacturing nuclear materials.
Elliott removed the case to federal court, claiming it is entitled to a government contractor defense. Africk agreed, ruling that Elliott sufficiently showed that it acted under the color of a federal office when designing the turbines.
Michael Guinta, Elliott’s regional sales manager for North America, testified that the defendant typically used mineral wool insulation on turbines, but it special ordered asbestos insulating blankets for DuPont in order to comply with the customer’s requirements.
Humphries called Guinta’s testimony “self-serving” and “speculative” but failed to rebut his statements.
However, the plaintiff argued that because the products at issue in this case are identical to products Elliott regularly services today, the turbines were not deigned under the control of the government.
“The turbines at issue, however, were not ‘off the shelf’ items, but rather were made-to-order pieces of industrial machinery made to exacting specifications,” Africk wrote.
“Customers apparently could and did make special requests regarding certain components. Moreover even if much of Elliott’s turbine design has been unchanged since the 1950s, that fact is irrelevant to whether Elliott was directed to provide and install asbestos blankets in the two turbines at issue,” he added.
Guinta’s testimony proved that the defendant acted pursuant to the federal officer’s directions when it designed the turbines, the udge ruled.
“Elliott has made a sufficient showing that it was acting pursuant to a reasonably precise specification attributable to the government regarding the type of insulating blankets to be used,” Africk concluded.
As for the plaintiff’s failure-to-warn claim, Africk added that no evidence shows Elliott withheld information or that it knew it was required to warn the government of asbestos hazards.
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