Sheppard v. Liberty Mutual Insurance Company et al, No. 2:2016cv02401 - Document 144 (E.D. La. 2016)
Court Description: ORDER & REASONS denying 61 Motion to Remand to State Court. Signed by Judge Sarah S. Vance on 11/17/2016. (mmm)
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Sheppard v. Liberty Mutual Insurance Company et al Doc. 144 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J ESSE FRANK SHEPPARD VERSUS CIVIL ACTION NO. 16-240 1 LIBERTY MUTUAL INSURANCE COMPANY, ET AL. SECTION “R” (3) ORD ER AN D REASON S Plaintiff J esse Frank Sheppard m oves to rem and this case to the Civil District Court for the Parish of Orleans. Because jurisdiction in this Court is is proper under the Outer Continental Shelf Lands Act (OCSLA), Sheppard’s m otion is denied. I. BACKGROU N D This suit was originally filed in the Civil District Court for the Parish of Orleans. 1 Defendant Mosaic Global Holdings Inc. rem oved to this Court on March 22, 20 16. 2 In his com plaint, Sheppard alleges that he worked “in various positions” for Mosaic’s predecessor company, Freeport Sulphur 1 2 R. Doc. 1 at 1. Id. Dockets.Justia.com Com pany. 3 During his tim e at Freeport, Sheppard was allegedly exposed to asbestos “[o]n a daily basis.”4 Sheppard asserts that this exposure caused him to develop asbestos-related cancer, lung cancer, and/ or m esotheliom a. 5 Although Sheppard stopped working for Freeport in the early- to m id1990 s, 6 Sheppard’s asbestos-related ailm ents were first diagnosed in October 20 15. 7 In addition to Freeport/ Mosaic, Sheppard sues several defendants involved in the m anufacture, distribution, and sale of asbestos-containing products that Sheppard allegedly encountered in the course of his work. 8 Sheppard also brings claims against insurance companies that allegedly provided coverage to defendants for asbestos-related claim s and withheld inform ation from Sheppard about the danger of asbestos. 9 Sheppard brings claim s for “negligence, intentional tort, fraud, and strict liability,” and alleges that all defendants are “jointly, severally, and in 3 R. Doc. 1-1 at 5. Id. at 4. 5 Id. at 6. 6 Sheppard’s com plaint is inconsistent on this point. Sheppard alleges variously that his tenure at Freeport, and exposure to asbestos, ran from “approximately 1967 through 1992,” from “approxim ately 1967 through 1994,” and “from 1967 through 1976.” R. Doc. 1-1 at 5, 6. 7 R. Doc. 1-1 at 6. 8 Id. at 6, 7. 9 Id. at 3, 4, 8. 2 4 solidio liable.”10 He seeks dam ages for, am ong other things, physical and m ental pain, loss of life, loss of income, and m edical expenses. 11 Sheppard now moves to rem and this suit to state court. 12 Mosaic and co-defendants Liberty Mutual Insurance Com pany and General Electric oppose the m otion, and assert that this Court m ay exercise jurisdiction under the Outer Continental Shelf Lands Act (OCSLA). 13 Defendants argue in the alternative that the Court has federal question jurisdiction because the Outer Continental Shelf is a federal enclave. II. LEGAL STAN D ARD Unless a federal statute expressly provides otherwise, a defendant m ay rem ove a civil action filed in state court to federal court if the federal court would have had original jurisdiction over the case. 28 U.S.C. § 1441(a). The rem oving party “bears the burden of showing that federal jurisdiction exists and that rem oval was proper.” Mum frey v. CVS Pharm acy , Inc., 719 F.3d 392, 397 (5th Cir. 20 13) (citing Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720 , 723 (5th Cir. 20 0 2)). In assessing whether rem oval was 10 11 12 13 Id. at 29. Id. R. Doc. 61. R. Doc. 69; R. Doc. 71; R. Doc. 72. 3 appropriate, the Court is guided by the principle, grounded in notions of com ity and the recognition that federal courts are courts of lim ited jurisdiction, that “rem oval statute[s] should be strictly construed in favor of rem and.” Manguno, 276 F.3d at 723 (citing Acuna v. Brow n & Root, Inc., 20 0 F.3d 335, 339 (5th Cir. 20 0 0 )). III. D ISCU SSION Defendants argue that this Court m ay exercise jurisdiction based on Sheppard’s allegation that a portion of his asbestos exposure occurred at Freeport’s Cam inada Facility, which is located on the Outer Continental Shelf (OCS). Specifically, Sheppard alleges that: From approxim ately 1967 through 1992, J esse Frank Sheppard was em ployed by and on the prem ises of Freeport’s Port Sulphur Facility, Grand Isle Facility, Garden Island Bay facility, Cam inada Facility , as well as various other drilling rigs. On a daily basis during this em ployment, he was exposed to dangerously high levels of asbestos in the normal routine course of his work. 14 The com plaint further alleges that “[a]s a result of his exposure to asbestos fibers, J esse Frank Sheppard contracted asbestos-related cancer, lung 14 R. Doc. 1-1 at 5 (emphasis added). 4 cancer, and/ or mesotheliom a, which was first diagnosed on or around October 21, 20 15.”15 In response, Sheppard argues that: (1) rem oval is inappropriate because at various tim es in his com plaint he alleges that his injury was caused by exposure from 1967 to 1976, rather than through 1994; (2) new evidence suggests that Sheppard was not, in fact, exposed to asbestos at the Cam inada Facility; and (3) even if Sheppard was exposed at Cam inada, that exposure was not a “but-for” cause of his injury because the bulk of Sheppard’s alleged exposure occurred at other Freeport facilities not on the OCS. OCSLA contains an independent grant of federal jurisdiction. The pertinent provision, 43 U.S.C § 1349(b)(1), states: [T]he district courts of the United States shall have jurisdiction of cases and controversies arising out of, or in connection with . . . any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the m inerals, of the subsoil and seabed of the outer Continental Shelf, or which involves rights to such m inerals . . . . The Fifth Circuit has described this language as “straightforward and broad.” See Petrobras Am ., Inc. v. Vicinay Cadenas, S.A., 815 F.3d 211, 215 (5th Cir. 20 16); see also EP Operating Ltd. P’ship v. Placid Oil Co., 26 F.3d 563, 569 15 Id. at 6. 5 (5th Cir. 1994) (“[A] broad reading of the jurisdictional grant of section 1349 is supported by the expansive substantive reach of the OCSLA.”). Under Fifth Circuit precedent, a district court has jurisdiction under OCSLA if “(1) the facts underlying the com plaint occurred on the proper situs; (2) the plaintiff’s em ployment furthered m ineral developm ent on the OCS; and (3) the plaintiff’s injury would not have occurred but for his em ployment.” Barker v. Hercules Offshore, Inc., 713 F.3d 20 8, 213 (5th Cir. 20 13). “A plaintiff need not expressly invoke OCSLA in order for it to apply.” Id. Sheppard does not m eaningfully contest that the first two prongs of the test are satisfied: Sheppard worked at Cam inada, which is located on the OCS, from m id-1991 through 1993, and Sheppard’s work there furthered m ineral developm ent. 16 Sheppard’s first argum ent is quickly disposed of. He contends that rem oval is inappropriate because at various tim es in his com plaint he alleges that his injury was caused by exposure running from 1967 to 1976, rather than through 1994. 17 Sheppard’s inconsistencies, however, do not erase his allegation that he was exposed to asbestos at Cam inada, 18 and that he “contracted asbestos related cancer, lung cancer, and/ or m esotheliom a as a 16 17 18 R. Doc. 71-1 at 2. R. Doc. 1-1 at 5, 6. Id. at 4. 6 result” of exposure lasting “[f]rom approxim ately 1967 through 1994.”19 The Court therefore finds that Sheppard’s compliant plainly alleges that Sheppard was exposed to asbestos while working at the Freeport’s Cam inada facility. Sheppard’s second argum ent is based on his own testim ony, in a deposition noticed by his own attorney, that he was not in fact exposed to asbestos on Cam inada. It is true, as defendants em phasize, that “jurisdictional facts are determ ined at the tim e of rem oval, and consequently post-rem oval events do not affect that properly established jurisdiction.” Louisiana v. Am . Nat. Prop. Cas. Co., 746 F.3d 633, 636 (5th Cir. 20 14); see also Spear Mktg., Inc. v. BancorpSouth Bank, 791 F.3d 586, 592 (5th Cir. 20 15) (“[W]hen a defendant seeks to rem ove a case, the question of whether jurisdiction exists is resolved by looking at the com plaint at the tim e the petition for rem oval is filed.” (em phasis in the original)). Nevertheless, the Court m ay consider new evidence concerning facts as they existed at the tim e of rem oval even though that evidence is not yet in the record. See Am . N at. Prop. Cas. Co., 746 F.3d at 637 n.2 (“[W]hen subsequent discovery reveals that alleged jurisdictional facts were untrue at the tim e of rem oval a court m ay hold that jurisdiction was lacking at the tim e of rem oval.” (emphasis in 19 Id. at 6. 7 original)); see also Patlan v. Apache Corp., No. 0 9-926, 20 10 WL 2293272, at *4 (E.D. Tex. May 11, 20 10 ) report and recom m endation adopted, No. 0 9926, 20 10 WL 2293275 (E.D. Tex. J une 3, 20 10 ) (considering affidavit subm itted with defendant’s response to m otion to rem and). The Court therefore considers Sheppard’s new evidence as it relates to OCSLA jurisdiction. After removal to this Court, in a deposition noticed by his attorney, Sheppard testified that he was not, in fact, exposed to asbestos while working at Cam inada: Q Where did you work after Garden Island Bay? A Cam inada Q Did you have any exposure to asbestos at Cam inada? A No, m a’am. 20 Sheppard, however, reversed him self on cross exam ination: Q . . . [Y]ou can’t tell us one way or the other whether any of the insulation at Cam inada did or did not contain asbestos? A Then, no. Now, yes. Q Okay. You believe it to have contained asbestos as you sit here today? A 20 Yeah R. Doc. 61-6 at 3. 8 [Plaintiff’s counsel objects to form .] Q I’m sorry. Yes? A Yes 21 Furtherm ore, to the extent Sheppard did or does believe that he was not exposed to asbestos at Cam inada, this belief is based on unattributed assurances from third parties: Q You m entioned earlier that you didn’t think that you were exposed to asbestos at Cam inada. Why do you believe that? A They said they had m oved it all. 22 Sheppard also m ade clear that his job duties did not change when he m oved to Cam inada 23—he still worked with insulation. 24 Finally, Sheppard stated that he doesn’t know the difference between asbestos and non-asbestos insulation, and cannot tell whether insulation has asbestos in it by looking at it. 25 The Court finds that Sheppard’s nebulous deposition is insufficient to overcome the clear allegations in his pleadings that a portion of his exposure occurred at Cam inada. Sheppard’s new testim ony regarding Cam inada is self-serving and self-contradictory, and it provides little foundation for 21 22 23 24 25 R. Doc. 69-2 at 1-2. R. Doc. 69-1 at 29. R. Doc. 69-1 at 28, 29. R. Doc. 69-2 at 1. R. Doc. 69-1 at 29. 9 Sheppard’s purported knowledge. It therefore does not convincingly “reveal[],” Am . N at. Prop. Cas. Co., 746 F.3d at 637 n.2, that Sheppard’s exposure was lim ited to his pre-Cam inada work. Accordingly, the Court finds that Mosaic has met its burden to show (1) that Sheppard worked on the OCS in furtherance of m ineral development, and (2) that, accepting as true Sheppard’s allegations that he was exposed to asbestos while working at Freeport, Sheppard was exposed to asbestos while on the OCS. To require any m ore of Mosaic at this tim e would put defendants in the absurd position of being forced to prove plaintiff’s case as a prerequisite to asserting federal jurisdiction. Sheppard’s suggestion that this showing is insufficient—and that defendants m ust prove that Sheppard was, in fact, exposed to asbestos on Cam inada—is therefore rejected. In his third and final argum ent, Sheppard contends that even discounting his deposition, the facts as alleged do not m eet the third prong of the Fifth Circuit’s test for OCSLA jurisdiction—the but-for causation requirement. Given that he has alleged decades-long daily exposure to asbestos, Sheppard argues that the roughly two years he spent at Cam inada cannot be a but-for cause of his illness. Sheppard is wrong as a m atter of law. Courts have long recognized that when a plaintiff is subjected to m ultiple tortious events, and each is 10 independently sufficient to cause plaintiff’s injury, the but-for causation test will not work to excuse any single causative factor. See Fowler V. Harper, et al., 4 Harper, Jam es and Gray on Torts § 20 .2, at 10 0 -10 1 (3d ed. 20 16); W. Page Keeton, et al., Prosser and Keeton on Torts § 41, at 265-67 (5th ed. 1984). Different courts have reached this result in different ways. Some find that m ultiple sufficient causes m ay each serve as a but-for cause. See, e.g., Zann Kw an v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 20 13) (“[A] plaintiff's injury can have m ultiple ‘but-for’ causes, each one of which may be sufficient to support liability.”). Others sim ply m aintain that the but-for test is inapplicable to independent, sufficient causes. Petes v. Hay es, 664 F.2d 523, 524-25 (5th Cir. 1981) (“The trial judge correctly instructed the jury as to the m eaning of proxim ate cause under Louisiana law, and he correctly charged that the finding of m ore than one proxim ate cause does not necessarily preclude recovery.”) The Fifth Circuit has explicitly applied the latter approach to progressive illness caused by asbestos exposure. See In re Manguno, 961 F.2d 533, 535 (5th Cir. 1992) (“We have abjured but for causation in the context of lung cancer injuries alleged to have been caused by asbestos.”). No m atter which analytical approach is favored, the result is clear: one sufficient cause is not excused by the presence of another. 11 Given that the but-for test would not excuse Freeport from liability for its OCS-based actions, it m akes little sense to apply the sam e test to deny Freeport OCSLA jurisdiction. This conclusion is supported by the context in which the Fifth Circuit adopted the test in the first place. The but-for test is designed to give effect to OCSLA’s broad reach over “cases ‘arising out of or in connection with any operation conducted on the Outer Continental Shelf which involves . . . production of the m inerals . . . .” Recar v. CNG Producing Co., 853 F.2d 367, 369 (5th Cir. 1988) (quoting 43 U.S.C. § 1349(b)(1)); see also Tennessee Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150 , 155 (5th Cir. 1996) (“Use of the but-for test implies a broad jurisdictional grant under § 1349 . . . .”). Adopting Sheppard’s proposed interpretation would turn the Fifth Circuit’s intent on its head, and allow a strained, technical application of the but-for test to constrain the statutory language. Accordingly, the Court finds that Sheppard’s allegation that he suffered daily exposure to asbestos while working at Cam inada, and that this exposure led to his illness, is sufficient to invoke federal jurisdiction under OCSLA. Sheppard’s allegations raise no distinction between his exposure at Cam inada and his exposure at the other Freeport facilities. Instead, the com plaint states sim ply that “[f]rom approxim ately 1967 through 1994, J esse Frank Sheppard was exposed to asbestos on a daily basis, and contracted 12 asbestos-related cancer, lung cancer, and/ or m esotheliom a as a result thereof . . . .” Although Sheppard’s alleged non-Cam inada exposure is no doubt sufficient to cause illness, a fair reading of Sheppard’s com plaint suggests that his years at Cam inada are an independently sufficient cause as well. Exercising jurisdiction in this case is therefore appropriate under OCSLA’s “broad” jurisdictional grant over cases “arising out of or in connection with” mineral operations on the OCS. See Ronquille v. Am inoil Inc., No. 14-164, 20 14 WL 4387337, at *2 (E.D. La. Sept. 4, 20 14) (denying rem and where “it appear[ed] that at least part of the work that Plaintiff allege[d] caused his exposure to asbestos arose out of or in connection with Shell’s OCS operations”). To resist this conclusion, Sheppard cites a single Mississippi district court case, Ham m ond v. Phillips 66 Co., No. 14-119, 20 15 WL 630 918, at *1 (S.D. Miss. Feb. 12, 20 15). That case is neither binding, nor on point. In Ham m ond, the district court found that the plaintiff’s alleged nine-m onth exposure on the OCS was insufficient to cause asbestosis, a disease which “results from the inhalation of asbestos fibers over a prolonged period of tim e” Id at *4. Here, by contrast, there is no evidence to suggest that Sheppard’s particular alleged illnesses require m ore than daily exposure for two years. 13 Finally, Sheppard argues that this court should decline to exercise supplem ental jurisdiction over Sheppard’s state law claim s under 28 U.S.C. § 1367(c). This request m isunderstands the issue. Sheppard does not have a m ix of state and federal claim s. Rather, as explained above, all of Sheppard’s claim s “aris[e] out of, or in connection with” operations on the OCS. 43 U.S.C § 1349(b)(1). The Court therefore m aintains federal question jurisdiction over all of his claim s, and need not exercise supplem ental jurisdiction over any of them. IV. CON CLU SION For the foregoing reasons, J esse Frank Sheppard’s m otion to rem and is DENIED. 17th New Orleans, Louisiana, this _ _ _ _ _ day of November, 20 16. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 14
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