Madison - St. Clair Record

Wednesday, November 13, 2019

Asbestos plaintiff should have power to choose venue, St. Louis district judge rules

By Heather Isringhausen Gvillo | Apr 23, 2015


The St. Louis federal court remanded a maritime asbestos lawsuit, concluding that the plaintiff should have the right to choose which venue tries the case.

"Federal courts have long supported a plaintiff’s right to choose a forum, state or federal, in common law maritime actions," Judge Henry Edward Autrey wrote in his April 10 memorandum and order. "Here, plaintiff’s in personam action, initially brought in state court, seeks common law remedies. The court cannot disturb plaintiff’s prerogative to pursue her action in state court."

Plaintiff Ann Schaffer, individually and as special administrator of the estate of Nicholas Schaffer, sought to remand the case to state court after defendant Exxon Mobil Corporation removed it to the U.S. District Court for the Eastern District of Missouri.

Schaffer and her deceased husband, Nicholas, originally filed the lawsuit against the defendants in the St. Louis Circuit Court. The suit claims the decedent developed mesothelioma from exposure to asbestos-containing products during his work as a ship repairman at the Newport News Shipbuilding and Drydock Company.

He later died as a result of his mesothelioma while the case was pending.

Then on Oct. 22, Exxon filed a notice of removal to district court, asserting removal was appropriate under the federal Longshore and Harbor Workers’ Compensation Act, as well as federal question jurisdiction and admiralty jurisdiction.

Autrey wrote that federal courts have limited jurisdiction and if any doubts regarding jurisdiction exist, the case should be remanded to state court.

Additionally, he held that the case seeks common law remedies, which does not provide a ground for federal jurisdiction.

However, Exxon argues that a 2011 amendment to the 28 U.S.C. 1441 supports jurisdiction.

Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011, which provides that any action filed in state court may be removed when the district court has original jurisdiction.

“Prior to the 2011 amendment, it was settled law that removal of an in personam maritime action, such as plaintiff’s, required a ‘separate basis of jurisdiction’ such as diversity jurisdiction," Autrey wrote. "After the 2011 amendment, several courts have found the amendment has not changed the rule."

Now, the parties in this case disagree as to whether the rules give the district court jurisdiction. Autrey remained unconvinced.

“After having considered the arguments and case law presented to the court, the court finds the 2011 amendment to Section 1441 does not permit maritime claims to be removed to federal court without an independent basis for jurisdiction,” he wrote.

As a result, he granted the plaintiff’s motion to remand, sending the case back to the St. Louis Circuit Court for further litigation.

However, it is not uncommon for maritime asbestos cases to be litigated in federal court. In fact, the asbestos MDL in the U.S. District Court for the Eastern District of Pennsylvania created a maritime asbestos docket specifically designed to handle the large number of maritime cases in district courts.

The docket has since been slowly dwindling down after Judge Eduardo Robreno filed a Nov. 24 suggestion of remand, in which he suggests sending a majority of the asbestos maritime cases back to their respective federal courts.

Exxon is represented by the Johnson and Bell law firm in Chicago.

Schaffer is represented by Aaron K. Dickey of the Dickey Law Firm in Glen Carbon.

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