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As an associate in the firm’s New Orleans office, Helen M. Buckley focuses her litigation practice on a number of complex litigation practice areas, including asbestos litigation and toxic tort relating to premises, products, and general liability.

MG+M obtained on June 1, 2018, an order granting summary judgment and dismissal of its client, a nationwide distributor of Asian food products in the 24th Judicial District Court for the Parish of Jefferson in the state of Louisiana. The plaintiff consumed sushi at a New Orleans area sushi restaurant and within days became violently ill, followed by 9 days of hospitalization caused by salmonella poisoning.  The Centers for Disease Control eventually traced the plaintiff’s poisoning to contaminated ground tuna that had been imported into the United States from India.  Some of the ground tuna that originated from India had been distributed by MG+M’s client to the New Orleans sushi restaurant chain.  Other defendants in the case included Little Tokyo Restaurant, and Moon Marine (settled manufacturer). Over 400 cases of the poisoning were reported nationwide, with many lawsuits brought in several jurisdictions.  The plaintiff’s alleged medical conditions resulting from the poisoning episode were: autoimmune thyroid disease, Cushing’s Syndrome, gastrointestinal problems, kidney tumors, lifetime vitamin B-12 deficiency, and Stargardt’s disease (early onset macular degeneration leading to blindness). MG+M persuaded the court, following ample discovery, that its client notified the New Orleans restaurant chain customer of the nationwide recall of the tuna product in a timely manner, and otherwise met its legal duty to the plaintiff and consuming public in this food-provider poisoning case.

MG+M’s Lake Charles Partner, David R. Frohn, was lead counsel, and he received excellent support from the firm’s New Orleans Associate, Helen M. Buckley.

 
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A federal district court in the Eastern District of Louisiana recently held that it continued to have federal jurisdiction under the federal officer removal statute, even after the plaintiffs amended their petition to delete claims that gave rise to federal subject matter jurisdiction. The court reasoned that the original removal satisfied the proper requirements to invoke federal subject matter jurisdiction and exercised its discretion to retain the case.

This case, Pitre v. Huntington Ingalls, et al,[i]  arose out of lung cancer allegedly caused by asbestos exposure while the decedent was employed at Avondale Shipyard in Avondale, Louisiana. The initial petition named numerous defendants and included, among other causes of action, failure to warn and other negligence claims against Avondale, as well as strict products liability and failure to warn claims against Foster Wheeler. The plaintiffs filed a first amended petition adding an additional defendant, Occidental Chemical, and asserting strict liability claims against the new defendant and against Avondale.

In discovery, a former coworker of the decedent testified that the decedent worked on U.S. navy ships built by Avondale, Destroyer Escorts. Within 30 days of this testimony, defendants Avondale and Lamorak removed the case to federal court and asserted that they were entitled to removal under the federal officer removal statute, 28 U.S.C. 1442(a)(1), as the plaintiffs’ claims were related to acts performed under color of federal office. After a federal magistrate judge granted the plaintiff’s motion for leave to file an amended complaint deleting their strict liability claims against Avondale, the defendants appealed the ruling to the district court. In their response to the appeal, plaintiffs moved to remand the action to state court.

The defendants argued that the effort to amend the original petition by deleting strict liability claims was a bad faith attempt to defeat federal jurisdiction. The district court denied defendants’ appeal and concluded that there was no error in granting the plaintiffs leave to amend, as courts are freely permitted to give leave to amend when justice so requires. However, that still left open the issue of the plaintiffs’ motion to remand.

The court cited Fifth Circuit opinions, IMFC Prof. Servs. of Fla. v. Inc. v. Latin Am. Home Health, Inc.[ii] and Bartel v. Alcoa S.S. Co., Inc.,[iii] in support of the principle that jurisdiction “is based on notice of removal, not the amended complaint.” Therefore, “although an amended complaint deleting federal claims may permit a discretionary remand, it does not destroy federal jurisdiction over a validly removed case.” The appellants’ original removal to federal court was properly supported by a colorable defense of federal contractor immunity. The plaintiffs did not seriously contest that their original claims were removable, arguing only that their strict liability claims were brought in error. The court held that though “a good faith error may justify granting leave to amend,” in this matter “plaintiffs’ error does not create a jurisdictional defect in notice of removal.” Furthermore, the court held that Foster Wheeler, a boiler manufacturer defendant,
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