# United States Court of Appeals

f or the Fifth Circuit

No. 18

- 31159

Tarsia Williams; Breck Williams,
Plaintiffs

— Appellants ,

versus
Taylor Seidenbach, Incorporated,
Defendant

— Appellee , consolidated with

_____________ No. 18

- 31161

_____________
Tar si a Williams; Breck Williams,
Plaintiffs

— Appellants ,

versus
McCarty Corporation,
Defendant

— Appellee

.

Appeal s from the United States District Court for the Eastern District of Louisian a USDC No. 2:9

- CV

- 65 United States Court of Appeals Fifth Circuit 

### FILED February 26, 2021 Lyle W. Cayce Clerk Case: 18-31159 Document: 00515759916 Page: 1 Date Filed: 02/26/2021No. 18

- 31159

2 Before Haynes, Graves, and Duncan, Circuit Judges

. Per Curiam : *

Tarsia and Breck Williams (“Plaintiffs”), claim their father was killed by asbestos products sold and installed by Defendants McCarty Corporation (“McCarty”) and Taylor Seidenbach, Inc. (“TSI”). The district court granted Defendants summary judgment. We affirm.

I

Frank C. Williams worked as a mechanical engineer at the NASA Michoud Assembly Facility (“MAF”) in New Orleans from around 1974 to
1993

. See Williams v. Taylor

- Seidenbach, Inc. , 748 F. App’x 584, 585 (5th Cir. 2018) (per curiam) . The MAF comprises dozens of buildings across several hundred acres. W illiams worked primarily in Building 350 , but sometimes worked in and visited other MAF buildings

. D eteriorating asbestos was present in Building 350 , and asbestos remediation occurred in that building in the mid

- 1980 ’ s. In 2008, Williams was diagnosed wit h mesothelioma

. T hat same year he sued multiple defendants, including McCarty and TSI , in Louisiana state court, asserting various tort claims

. T he suit was removed to the federal district court for the Eastern District of Louisiana, a nd then transferred b y a multidistrict litigation panel to the Eastern District of Pennsylvania. See Williams , 748 F. App’x at 585

. Williams died in 2009 and his children, Tarsia and Breck, were substituted as plaintiffs. I n 2014, the district court granted Defendants’ motions for summary judgment. T he court found no evidence Williams was exposed to respirable asbestos at the MAF. E ven assuming he was, however, the court also found no evidence linking Williams’ exposure

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 18-31159 Document: 00515759916 Page: 2 Date Filed: 02/26/2021No. 18

- 31159

3 to Defendants’ products

. T he district c ourt remanded the case back to the Eastern District of Louisiana. Williams , 748 F. App’x at 585. Plaintiffs appealed. Id. at 585

– 86. 1

II We must first address the jurisdictional question of whether the case was properly removed to federal court. Se e Gold en v. N.J. Inst. of Tech. , 934 F.3d 302, 309 (3d Cir. 2019)

. Lockheed Martin (“Lockheed”) , Williams’ employer, removed the case based on the “federal officer removal” provision of 28 U.S.C. § 1442(a)(1). See generally Latiolais v. Huntington Ingalls, Inc. , 951 F.3d 286, 290

– 91 (5th Cir. 2020) (en banc). The transferee district court in Pennsyl vania twice denied remand to state court

. T he Eastern District of Louisiana later denied a third motion to remand. P laintiffs argue that removal was improper and that the district court therefore lacked jurisdiction

. W e disagree.

The federal officer remov al statute provides in relevant part that a

“ civil action

. . . commenced in a State court ” against “ any officer (or any person acting under that officer) of the United States ” may be removed to federal court under certain circumstances . 28 U.S.C. § 1442(a )(1)

. Removal is proper if:

1 Panels of our court previously ruled they lacked a ppellate jurisdiction because Plaintiffs’ without

- prejudice dismissal of certain defendants meant there was no final appealable judgment as to the remaining defendants. See Williams , 748 F. App’x at 587

– 88; see also Williams v. Taylor

- Seidenbach, Inc. , 935 F.3d 358, 360 (5th Cir. 2019) (holding Rule 54(b) judgment did not cure lack of appellate jurisdiction), vacated on en banc reh’g , 941 F.3d 1183 (5th Cir. 2019). Our en banc court has since ruled, however, that a subsequent Rule 54(b) judgment did create an appealable final judgment as to the remaining defendants. See Williams v. Taylor

- Seidenbach, Inc. , 958 F.3d 341, 349 (5th Cir. 2020) (en banc). We therefore have appellate jurisdiction. Case: 18-31159 Document: 00515759916 Page: 3 Date Filed: 02/26/2021No. 18

- 31159

4 (1) the defendant is a “person” within the meaning of the statute; (2) the plaintiff ’ s claims are based upon the defendant ’ s conduct “acting under” the United States, its agencies, or its officers; (3) the plaintiff ’ s claims against the defendant are “for, or relating to” an act under color of federal office; and (4) the defendant raises a colorable federal defense to the plaintiff ’ s claims. Papp v. Fore

- Kast Sales Co. , 842 F.3d 805, 811 (3d Cir. 2016) ( cleaned up ) ;

acc ord Latiolais , 951 F.3d at 296

. 2 The parties dispute only the third and fourth factors. As to the third factor, it is “sufficient for there to be a connection or association between the act in question and the federal office .” Papp , 842 F.3d at 813 ; Latiolais , 951 F.3d at 296

. Here, this requirement is satisfied because the record shows that part of Plaintiffs’ case concerned alleged asbestos exposure from Williams’ work on “rockets” produced by Lockheed for NASA. Just before Lockheed removed the case , Williams testified that his work for Lockheed had involved “firing [rockets] up,” that these rockets contained asbestos, and that they had been built for NASA. L ockheed also produced an affidavit attesting that its only product built at MAF for NASA

was the Space Shuttle External Tank (ET) and detailing NASA’s oversight

2 T he transferee district court appl ied the precedents of its ow n circuit , t he Third , on this question of federal law. See United States ex rel. Hocket v. Columbia/HCA Healthcare Corp. , 498 F. Supp. 2d 25, 40 (D.D.C. 2007) (“As a general rule, questions of federal law in MDL

- transferred cases are governed by the law o f the transferee circuit.”); In re Korean Air Lines Disaster of Sept. 1, 1983 , 829 F.2d 1171 , 1175

– 76 (D.C. Cir. 1987)

. A fter our en banc decision in Latiolais , our circuit’s test for federal

- officer removal and that of the Third Circuit coincide. See Latiolais , 951 F.3d at 292 (citing In re Commonwealth ’ s Mot. to Appoint Counsel Against or Directed to Defender Ass ’ n of Phila. , 790 F.3d 457, 470

– 71 (3d Cir. 2015) ). Case: 18-31159 Document: 00515759916 Page: 4 Date Filed: 02/26/2021No. 18

- 31159

5 of the project

. T hat showed the required “connection or associatio n between the acts complained of by [Plaintiffs] and the federal government

. ” Id. 3

The fourth factor is satisfied becaus e Lockheed adequately pled a colorable government contractor defense

. See generally Boyle v. United Techs. Corp. , 487 U.S. 500 (1988). While Plaintiffs argue that Lockheed failed to plead the defense’s requirement that “the United States approved reasonably precise specification s ,” id. at 512 , Lockheed has supported this element with an affidavit attesting to NASA’s detailed specifications for its fuel tanks

. Plaintiffs argue that Lockheed would have to show the government specified that Lockheed u se asbestos in the relevant products, and that Lockheed did so , b ut Plaintiffs construe this element of the defense too narrowly. See Papp , 842 F.3d at 814

– 815

. 4 The case was therefore properly removed under 28 U.S.C. § 1442 (a)(1)

. Federal jurisdiction over Plaintiffs’ claims against McCarty and TSI is supplemental to this federal

- officer jurisdiction. See 28 U.S.C. § 1367.

“ [R] emoval of the entire case is appropriate so long as a single claim satisfies the federal officer removal statute.” Savoie v. Huntington Ingalls, Inc. , 817 F.3d 457, 463 (5th Cir. 2016), overruled on other grounds by Latiolais , 951 F.3d
at 291. Plaintiffs’ claims against the various defendants form a single controversy: a claim for damages from Williams’ death from mesothelioma, allegedly caused by asbestos exposure on the job. Furthermore, because Plaintiffs argue that no federal contractor work is at issue in th is suit any

3 Plaintiff s no longer make such a claim, but “ w hen a defendant removes a case to federal court based on the presence of a federal claim, an amendment eliminating the original basis for federal jurisdiction generally does not defeat jurisdiction.” Rockwell Intern. Co rp. v. United States , 549 U.S. 457, 474 n.6 (2007) ; see also Westmoreland Hosp. Ass’n v. Blue Cross of W. Pa. , 605 F.2d 119, 123 (3d Cir. 1979)

.

4 Lockheed has also asserted a colorable defense of derivative sovereign immunity, which we find unnecessary to address here. Case: 18-31159 Document: 00515759916 Page: 5 Date Filed: 02/26/2021No. 18

- 31159

6 longer, we review a district court’s determination to retain supplemental jurisdiction for abuse of discretion, looking to “ considerations of judicial economy, convenience and fairness to litigants .” Estate of Ware v. Hosp. of the Univ. of Pa. , 871 F.3d 273, 286 (3d Cir. 2017)

. Plaintiffs do not specifically claim , and we do not find, any abuse of discretion in the district court’s decision. We thus proceed to the merits

. II I

We review a summary judgment de novo

. Salinas v. R.A. Rogers, Inc. , 952 F.3d 680, 682 (5th Cir. 2020). S ummary judgment is proper if the movant shows he is entitled to judgment as a matter of law because there is no genuine dispute of material fact. F ED

. R. C IV

. P. 56(a )

. Such a dispute “exists ‘if the evidence is such t hat a reasonable jury could return a verdict for the nonmoving party.’” Salinas , 952 F.3d at 682 (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986)). We may “affirm summary judgment on any grounds supported by the record and presented to th e district court.” Id. (citation omitted).

I V Plaintiffs argue the district court erred in granting summary judgment because a reasonable jury could conclude that Williams was exposed to asbestos products installed and supplied by McCarty and TSI. W e first set out the causation standard required by Louisiana law. We then consider the evidence as to McCarty and TSI. Agreeing with the district court, we conclude that no evidence raises a genuine dispute that either Defendant’s products substantially contribut ed to Williams’ injury. 5

5 Because we affirm on that basis, we need not consider the district court’s alternative conclusion that Williams was not exposed to respirable asbestos at the MAF

. Case: 18-31159 Document: 00515759916 Page: 6 Date Filed: 02/26/2021No. 18

- 31159

7 A

Under Louisian a law, a plaintiff claiming asbestos

- related injury must
prove “ significant exposure to the product complained of to the extent that it was a substantial factor in bringing about his injury.” Rando v. Anco Insulations Inc. , 20 08

- 1163, p. 35 (La. 9/4/ 09) ; 16 So. 3d 1065, 1091

. Louisiana courts have applied this test to require evidence link ing a plaintiff’s injury to a defendant’s asbestos

- containing product. 6 So , to defeat summary judgment, Plaintiffs must point to evidence creating a genuine dispute whethe r Williams was exposed to a product connected to either Defendant

. Proof is sufficient “ if defendants ’ products are likely to be present at a specific location within the workplace, ” because “ plaintiffs are likely to have been exposed to the products if they worked near those specific locations, even without explicit testimony that the plaintiff worked near the specific product. ” Slaughter v. Southern Talc Co. , 949 F.2d 167, 172 (5th Cir. 1991) (applying similar Texas law). For example, P laintiffs might show

“ [D] efendants’ products were .

. . installed randomly and evenly all over” the MAF campus . I

d. at 171. Even a photograph of product s at the specific worksite at the relevant time might do

. E gan v. Kaiser Aluminum & Chem. Corp. , 94

- 1939, p. 9 (La. App. 4 Cir. 5/22/ 96) ; 677 So. 2d 1027, 1034 . But

6 See, e.g., Vodanovich v. A.P. Green Indus., Inc. , 2003

- 1079, p. 3 (La. App. 4 Cir. 3/3/ 04) ; 869 So. 2d 930, 932

– 33 (requiring plaintiff to “show .

. . that he was exposed to asbestos from the defendant’s products); Lucas v. Hopeman Bros., Inc. , 2010

- 1037, p. 19 (La. App. 4 Cir. 2/16/ 11) ; 60 So. 3d 690, 702 (requiring evidence “specifically plac[i ng] [the plaintiff] around asbestos fibers emanating from a product [Defendant] Reilly Benton sold and/or supplied to Avondale”); Thibodeaux v. Asbestos Corp. , 2007

- 0617, p. 13 (La. App. 4 Cir. 2 /20/ 08) ; 976 So. 2d 859, 867 (evidence failed to show deceden t “was actually exposed to asbestos

- containing products from Eagle while she was at Charity Hospital”); Grant v. Am. Sugar Ref., Inc. , 2006

- 1180, p. 5 (La. App. 4 Cir. 1/31/ 07) ; 952 So. 2d 746, 749 (noting “that in asbestos cases there is a need to show th at the plaintiff was exposed to the defendant’s asbestos product”). Case: 18-31159 Document: 00515759916 Page: 7 Date Filed: 02/26/2021No. 18

- 31159

8 some evidence must connect D efendant s to asbestos where Williams was exposed. Otherwise, summary judgment was proper

. Plaintiffs may rely on direct or circumstantial evidence. Rando , 16 So. 3d at 1089

. C ircumstantial evidence “ must exclude every other reasonable hypothesis with a fair amount of certainty ,” but need not “ negate all other possible causes. ” Id. ( cleaned up ). Moreover, “a plainti ff ’ s burden of proof against multiple defendants in a long

- latency case, such as a tort claim for mesothelioma, is not relaxed or reduced because of the degree of difficulty that might ensue in proving the contribution of each defendant ’ s product to the pl aintiff ’ s injury. ” Id. at 1091

. With these principles in mind, we ask whether the evidence raised a genuine dispute that either Defendant’s products were a substantial factor in bringing about Williams’ injury

. B

First , we consider McCarty. The district court concluded that , assuming Williams was exposed to asbestos during the 80’s

- era remediation in Building 350 , “ there is no evidence that any asbestos was manufactured, sold, or supplied (i.e., installed) by [McCarty].” P laintiffs dispute this , point ing to evidence which, they claim, suggests McCarty ’s products were present where Williams worked, especially in Building 350. W e disagree

. Plaintiffs’ main evidence is this late

- 1960’s 7 advertising brochure from McCarty :

7 In district court, Plaintiffs asserted the brochure date d to 1968 or 1969, b ecause it described as “newly completed” the New Orleans International Trade Mart, finished in 1968. Defendant s do not dispute this. Case: 18-31159 Document: 00515759916 Page: 8 Date Filed: 02/26/2021No. 18

- 31159

9 The brochure l ists over thirty “commercial insulation” projects “ for which The McCarty Corporation was the thermal insulation contractor.” One project wa s “NASA Michoud Operation, New Orleans. ” T he next page notes McCarty “is fully equipped for spray insulatio n,” although it does not specify which listed projects , if any, involved spray insulation. A ccording to Plaintiffs , this brochure , by identifying McCarty as MAF’s “thermal insulation contractor,” sufficiently ties McCarty to Williams’ exposure

. We disagree. Th e brochure does not reveal enough about McCarty’s work at the MAF to create a genuine fact dispute . It establishes only that McCarty supplied MAF with insulation, in some form, in the years leading Case: 18-31159 Document: 00515759916 Page: 9 Date Filed: 02/26/2021No. 18

- 31159

10 up to 1968, but that leaves a critical evident iary gap unfilled. The brochure does not show that McCarty supplied insulation in Building 350 (where Williams generally worked) or 351 (where he often ate lunch) or in any other building Williams may have visited

. 8 Nor does it suggest that McCarty produc ts could be found “randomly and evenly all over” the MAF. Slaughter , 949 F.2d at 171. Consequently, f ar from “exclud[ing] every other reasonable hypothesis with a fair amount of certainty,” Rando , 16 So.3d at 1089, the brochure leaves a key point un touched . No reasonable jury could conclude merely from th e brochure that McCarty supplied asbestos products to Building 350 or any other building Williams regularly visited

. No other evidence brings Plaintiffs any closer to meeting their burden

. For instance, Pl aintiffs reference two building surveys from 1984 and 1997 showing that asbestos materials were discovered in Building 350 and elsewhere at MAF, b ut th ose documents do not link the materials to McCarty

. Similarly, d eposition testimony b y Williams and his f ormer co

worker George Stemley , also refer s to asbestos in Building 350 but say s nothing about its origin

. 9

Plaintiffs ’ reply brief refer s in passing to other evidence they say implicates McCarty. E ven assuming these arguments are not waived , Dixon

8 In opposing summary judgment, Plaintiffs argued that Building 350 was itself the “Operations” building at MAF, and that the McCarty brochure therefore refers to this building specifically, not to MAF generally . O n appeal, Plaintif fs do not make this argument and have therefore waived it. Sindhi v. Raina , 905 F.3d 327, 334 (5th Cir. 2018). Moreover, in the district court, they cited no evidence suggesting “Michoud Operations” referred specifically to Building 350.

9 Plaintiffs sugg est that the district court’s order “recognized” McCarty installed its products in Building 350, b ut that is inaccurate. The quoted passage appears to be the court’s summary of Plaintiffs’ own arguments. T he court went on to clarify that “there is no evide nce that any asbestos [to which Williams may have been exposed] was manufactured, sold, or supplied (i.e., installed) by [McCarty].” (emphasis added). Case: 18-31159 Document: 00515759916 Page: 10 Date Filed: 02/26/2021No. 18

- 31159

11 v. Toyota Motor Credit Corp. , 794 F.3d 507, 508 (5th Cir. 2015), none of this evidence helps Plaintiffs. For instance, Plaintiffs mention e xpert Frank Parke r, whose affidavit asserted that both McCarty and TSI were responsible for Williams’s exposure . But that affidavit was based , not on evidence of Defendants’ activities , but only on Parker’s “knowledge of the insulation sellers and installers and workers of various companies who regularly did insulation work in the New Orleans metropolitan area.” M o reover , at a n earlier deposition, Parker testified he had seen no evidence that McCarty supplied asbestos products to Williams’s worksite. 10 Plaintiffs also reference d ocument s produced about McCarty’s MAF work circa 1964 , but th ose do

not specify where the work occurred or what materials were used. T he same is true for M.R. McCarty’s deposition , taken in 1980 , which does not even mention any work done by the company at MAF.
In sum, Plaintiffs have failed to identify any record evidence creating

a genuine dispute that McCarty’s products substantially contributed to Williams’ injury . We therefore affirm the summary judgment on that basis

. C Second, we consider TSI. As Defendants correctly point out, Plaintiffs fail to identify any evidence suggesti ng that TSI was connected to asbestos that harmed Williams. “Mere assertion” of TSI’s connection to Williams ’ injury “is insufficient to survive summary judgment

. ” Lawrence v. Fed

. Home Loan Mortg

. Corp. , 808 F.3d 670, 674 (5th Cir. 2015).

Plaintiffs again rely on the 1980 deposition of M.R. McCarty , who testified that McCarty sometimes used TSI products when supply from

10 The district court did not consider Parker’s affidavit as evidence of a connection to McCarty, likely because it contradicted Parker’s prior statements. See Winzer v. Kaufman Cty. , 916 F.3d 464, 472 (5th Cir. 2019). Case: 18-31159 Document: 00515759916 Page: 11 Date Filed: 02/26/2021No. 18

- 31159

12 Johns

- Manville , its principle source, ran out

. B ut e ven assuming McCarty ’s products could be placed at Williams’ worksite (and, as explained, the evidence fails to support that) , Plaintiffs would still have to show a triable issue as to whether McCarty used TSI’s products there. The deposition testimony fails to do so.

***

T he judgment of the district court is AFFIRMED

. Case: 18-31159 Document: 00515759916 Page: 12 Date Filed: 02/26/2021