valladolid the supreme court mandated the use of the substantial nexus test for deciding when an employee's workplace injury is covered body of onshore harbors workers compensation act also litigated in the context of an injured claimant seeking and if it's from his employer this case represents that the legal issue of coverage has other consequences here if mr mayes's injury you both put the st question to the jury saying is there substantial nexus if not we're in the world of louisiana workmen's comp is so rare in the world of l h o yes your honor because this issue is actually decided several honor this issue was argued by the plaintiffs in the lower court and the district court correctly rejected it there is an older case it's the brown case and also there is of this circuit case adopting brown charles where covered by one you're not covered by the other there's been a lot of district court cases that say look in the event of benefits being paid under one actually other legally that's not determinative because sometimes these issues as this case i think i would i would question that if we look at the district court's decision you mentioned that was in one thousand nine hundred and two decision from this court the act that i happened to be on the panel but i don't have any recollection of the court ok and i guess being as it was in ninety you get one of the other but i think to ourselves question is one that did make the process which is once you're getting one why is the workman's compensation act relevant at all and it may not be crucial to your argument but i guess that's where i was a little confused sure your honor and you know the issue with brown and charles is you know at the time talked about the law the specific statute that was enacted by the legislature post brown is louisiana orus two hundred and thirty one thousand and thirty five point two which says this right the but the valladolid issue about who who is the employer absolutely on hand but who would judge henson's asking about is the question that was submitted to the jury which has to do a substantial nexus the the actual if you look at the jury charge which we obviously objected to us we knew too because we think it's an incorrect statement of the law it asked the jury to find whether or not the plaintiffs have proven by proponents of the evidence if there was a significant causal link between the c s operations of chevron pipeline company and the injury a paraphrase a little bit but those are the key parts and we submit that was in error because of the clear holding about the how it felt holding was repeated three times in the decision and it said undisputed and i think that's why oh yes i was there you're helping me but but there are a lot of points you're making when you say they had kind of no activities firm and i is going out d holding it says the significant causal link between the injury sustained and the employers on o c s operations here there is no dispute but how does a case like frederick get written  longer act could i mean as long as he was covered because he he was injured on the show if the owner is the st to earth umit the the question one should never have been presented at all or question one was mis written and described the wrong report which is your or mis written your honor so you do agree this valladolid says this depends on individual circumstances and the district court changed its mind saw just beautiful back and sent the circumstance of the jury but you're disagreeing with the way the operations that's that's the that's if you catch you doesn't talk about the employers the statute just talks about the connection between the injury and the operations correct absolutely your honor that's there that's thirteen there no one a circuit has has actually circuit has interpreted test means because if you look at valladolid and the jury conference use you objected to putting chevron in absolutely your honor and what was judge jackson's response at the jury conference judge he referenced law of the case it's the same thing he pipeline company is arguing that they're statutory employer and there's no statutory reporters relevant in valladolid so i think maybe i can look at chevron right now ultimately she said there's no substantial nexus as a matter of law so if you dismiss the case which was later on reconsideration issue of fact ultimately judge she recognized she wasn't saying that because the statutory employer that she was looking sharp on she went through exactly what you did joe tickets and she looked t still be in a world where a rd party general contractor could be liable under state law i think the i think the result is simply reverse of the perverse period but why are you asking that your jury decide the question we submitted that it was an issue of law and after the play was put on the case we said rule fifty motion there is no evidence that berman has any operations cases over and the judge disagreed because they said no i interpret the test as to include several pipeline company so i'm going to allow that to go to the jury we rule fifty says if there's no evidence of the magic wall you know you don't think that as i understand your argument you don't think that should have been submitted to the jury because you thought the prior the st summary judgment from the st district judge  have please a court until pierce representing the apple only the mace family only dress the law regarding substantial nexus as well as the evidence that was presented at trial to support the jury's finding on that benefits is not that that's not relevant to the legal questions we have to decide here i believe it's determinative ok what do you think under the brown case out of louisiana as well as the clark case out of the th circuit and the grantham case there was evidence in the record six weeks after this is may's husband was killed she got a letter from liberty mutual you're being paid benefits pursuant to the longshore harbor worker compensation act which will continue until you remarry or you die and that a year later when chevron pipeline filed their motion for summary judgment she continue to receive those benefits  if i'm oversimplifying because even under the federal compensation scheme we really don't need to look at the workman's compensation act at all it's a relevant here but that doesn't answer what i thought the argument has been clarified to be an oral argument which is was there jury instructional error to tell the jury that they could find the substantial nexus based on chevron's status as opposed to the direct import right and i believe the jury was properly instructed the parties in the volatile that case did not litigate and the court did not adjudicated the meaning of the words or the term employer honor the shell case the gates vs showcase the frederick vs novel all case as well as the baker case which was decided by this court all of the injured plaintiffs in those cases were employed by companies that were not all and gas producers on the outer continental shelf and gates he was employed as the pipe that are employed by total services and frederick it was a welder employed by max welders in faith her which was decided by this court in two thousand and sixteen mr baker's employer was golf island marine a fabrication company and in that case it was an appeal from the denial by the benefits review board federal workers compensation benefits and in that case the court said that there was not a substantial nexus because mr baker's injury was too attenuated from any activity on the outer continental shelf and in that case the court even noted that mr baker was injured on land and the court said that was geographically distant from the outer continental shel if you look at the injury in this case and chevron pipelines flow diagram that was in evidence he was as admitted by chevron pipelines employee they were barely in state waters they were very close to the outer continental shelf and what caused mr mayes's say tallaght was gas coming substantially from the outer continental shelf and it's it's our position that this case differs from the vector case because there was that geographical that geographic proximity but also mr mays because of what he was doing that day he was exposed to the unique hazards and risks associated with development of the outer continental shelf and that argument is supported by the fact that the valve he was working on was wrapped with  at here at wrapping a protective wax coating and they were unable to they all believe they were working on a w k m valve and that the work they were doing that day would not breach the pressure barrier but because the valve was wrapped all together they were not able to realize that chevron's own records for fifteen years were wrong about exactly when the senate trial was devoted to that and that that is an issue the nd issue before you get off the description of what the district court sided with the reason instead chevron would be told put in and the district court said well it's law the case so so if you accept that is the best argument then it just takes us back to the original rule and why is it that instead of employer for not tape we would be looking at chevron's activities which clearly to me do have enormous to do with why did the original district judge said the focus here is on chevron not your employer originally she said because they were claiming to be statutory and earlier and she did change her position on that a bit only aiming to be sure who was going to be said chevron was going to be statutory my best argument is one thousand three hundred and thirty three b as interpreted by this court in the barger case that you don't have to look at the direct payroll employer and fact what held is that there are only two requirements to be covered or to show a substantial nexus the only two requirements is the claimant seeking benefits under the outer continental up outer continental shelf lands act must establish a substantial nexus between the enduring and extractive operations but they're not even focused on the question that we're focused on here that's a good that's that's the nature of the causation requirement see that with respect to disability or death of an employee heat ok but an employee of whom of an employer right and then i look at the definition and says employer means an employer any of whom employees are employed in such operations correct and in our how am i supposed to get anything out of the legislator could have said that employer is someone that employees that injure employees but it didn't limit it to that it just says any employee with that would mean that somebody who's injured as a result of o c s operations an employee can be an employee with respect to anybody who employs anybody why should i read the statute that way well  protection against us i think chevron has argued about the potential for observed results the protection is the definition of employer employee under one thousand three hundred and thirty three dollars b as well as a substantial nexus link good no no you hit it on the circle list back to what you told me at the start of the argument that that the fact that the payment of the l age to be ca benefits were paid  and thirty five point two which is then the title of that is claims covered by certain federal laws and that statute says no compensation shall be payable in respect to the disability or death of any employee covered by the federal employer's law of delivery act the longshoreman's and harbor workers compensation act or any of its extensions or the jones act so louisiana statutory law and thirty five point two black letter law says nothing in our workers in our state workers compensation act applies when the person is covered by federal workers compensation benefits and i know i know five says federally you're only entitle to compensation that would be from the employer a cold af did i pronounce it  that the case that you tried to in front of the jury was a rd party that had could do with this negligence mislabeling the valve that caused clients injury that's assume and i have written this is a difficult case on appreciating the arguments totally open minded but let's assume opposing counsel were right in there was during structure or do you agree with the nd claim that at that point it would be reversed and render earth do you think that the f c activities had a connection to the continental sh to believe that they do your honor just like the employer max welders just like the employer in golf island fabricators all those employers are not oil and gas producers that have extractive activities on the outer continental shelf they are what i've called in my own analysis of this they're employed by supportive industry the valve technicians the pipe that are the people that have to go out there and do work to help chevron pipeline transport by pipeline their natural gas natural gas from the outer continental shelf in hindsight i judge dickinson i think possibly the court could have said have plain fs proved by a preponderance of evidence that there is a substantial nexus that is a significant cause a link between james mazes death and operations conducted on the outer continental shelf for the  items of evidence that i believe supports the jury's finding of substantial nexus st of all we have the flow diagram that shows the two platforms on the outer continental shelf we have the  pipeline person in charge of this job that when they breached the pressure barrier and the gas blew out he had to call and have the production shut down from the two platforms on the outer continental shelf the tiger shoals and then the south marsh island two hundred and thirty nine platform and then also and this wasn't really argue that much to the jury but i think it's very important in chevron's own investigation about what caused  part of their time line which is in the record on page four thousand nine hundred and forty eight dollars they say platforms producing into the pipeline slash valve were shut in so their own investigation shows that the the production that they had to shut in word to the platforms producing into that pipeline in into that valve that mr mains was working on when he was killed and we believe that all of those items of evidence are more than sufficient to support the jury's finding is one second did did she get the two minutes that she got one for each and that you're comfortable with that unless you have any other questions and i have a lot of questions i've not just for you from both  evidence of the substantial nexus between chevron operations and the injury yet you had six i have four here flow diagram sort of testimony muddy testimony shot in diagram did you have anything else you want to post a note of the testimony len mccall who is the feel team leader he talks about this area of the henry cover area how it's chevron is it's chevron pipelines gas gas gathering system that transport transport gas from from offshore we also have in the swap provide a picture to to the court the picture of the valve gear operator being wrapped in the protective coating as i said earlier had this job been on land that valve would not have had to be unwrapped like that so that it was difficult for the crew to determine have when they were going to be breaching the pressure barrier had this been on land where the valves do not have to be wrapped to protect against corrosion mr mace would not have been killed you almost conceded there on this jury instruction book called it used chevron supportive role in helping chevron pipeline in their ability to transport pipeline natural gas from the outer gone then how can that be harmless arrow since the jury didn't have an alternative  it goes back to me to the argument that because firm and i is one of those employers like max welders or golf island fabricators that they are in a supportive role so even though in in my other proposed jury charge we would not have said pipeline by name it's those activities that the jury would be asked to look at so for that reason i believe if there was air it was who will be able to look at the record and see what fermanagh its activities are that you're talking about with it with respect to supporting production so we can we can at least understand the argument that it's it would be harmless or  that's your honor i'm going to address siobhan pipelines argument that the general damages awarded to james may's widow peggy mays was excessive and under louisiana state law that question must be answered as a threshold by looking at the particular plaintiff the particular loss and the particular circumstances and then only of those particular facts of the case show that no reasonable fact finder could have awarded that amount of damages than does the core look at how to adjust the award just for purposes of this so and so forth i know gets very complicated with statewide but due to the gas for any case out of the u s supreme court your honor although this court respectfully about six months ago recognized that they have not this court has not consistently applied state law in reviewing damage awards and diversity cases in other words sometimes the court has looked to the judge created maximum recovery role that post gasper rini the issue in a diversity case is government state law but i'm prepared to address the court on either one of those standards because i think that frankly that to me the federal standard judge rubin's maximum recovery role it's not in the briefing but it did as a good gut check to me when i was looking at the award and looking at this issue and st of all there were four plaintiffs who had claims that were submitted to the jury for a determination there was mr mays wife and then history adult children the three adult children and their wards are not being as excessive i believe that this was a jury that was acting and reasonably and being driven by some sort of prejudice or passion you would see excessive awards across all of the and not a single plaintiff's claim that's number one secondly the district court vigorously protected the record in this case and the jury in this case from any evidence that may have resulted in sympathy or unreasonable passion for instance the nature of mr may's fatal injury was never fully disclosed to the jury there were no photographs post incident there was those were objected to and excluded the autopsy report was objected to an excuse and finally facing exclusion of both of those pieces of evidence there was an attempt made to submit only the coroner's sketch of the outline of the body with passion marks at mr may's head showing that the he person in charge who was on the platform the day mr mays was killed and an eyewitness to that death was reluctant to describe what he saw that day when he expressed that reluctance chevron pipeline objected i would point out to the court is that during their deliberations the jury did ask a question it was question number two they wanted to know how their allocation or a portion of fault would impact their damages of war and the court sent back an instruction that they were not to consider any allocation of fault in determining the award neither to reduce it or enhance it so i think that those are very important things that the court should consider when determining whether or not these damages are excessive but in addition to that i think the notification that miss mays received of her husband's death was at a time where she was waiting on him to meet her in a public venue at a casino to celebrate their th anniversary that chevron pipeline does not dispute that this couple had a long almost forty year loving and extraordinarily extraordinarily close marriage what chevron pipeline seems to believe is that because miss mays lost that relationship suddenly that should somehow lessen the impact mrs may was waiting for her husband to come celebrate their th anniversary when he didn't answer his phone that day because he couldn't she figured that was just like him to come up and surprise her so she sat and anxiously looked over her shoulder periodically for her husband what she got was a phone call from his brother the phone call that she would never see her husband again and she was so grief struck in that public place she fell to the floor she could not stand or walk on her own bullish and and had to be carried out of the casino so when you look at the threshold question this particular plaintive this particular loss and this particular i would point out that if she was not briefed it was argued at all in their brief so number one of the gets played and number two it's simply wrong and i would i would urge the score to read the district court's decision on this fact again record  this was conceded below but then with no one store grief they're not covered right the argument is if they are covered and getting benefits we don't look at the w c you know the issue is the issue of coverage the receipt of benefits whether  before the court on it's the no that review and on that you know she's mentioned the gates case in the frederick case and talked about their direct employers the problem with those cases is those employees and gates cited except for baker they worked on the u c yes so if they worked on the o c s their employer has operations on the o c s that's the distinction of that so those cases really don't give us any indication on the employer issue which is the legal issue here and judge duncan you had made some comments about this is a worker's compensation scheme we need to keep that in mind it focuses on the relationship between the employee and their employer you're absolutely correct this issue is actually came up in valladolid if you look at valladolid decision the solicitor general in that case of the united states w advocating for a test it's the th test if you read the decision and he was advocating for a test that looked at employees of employers engaged in such operations and this exact issue that the question of you know should we look at it in the context of the workers compensation scheme was discussed at all or argument and during the oral argument they talked about this that the solicitor general said we think that when you are talking about a worker's compensation scheme the kind of causation that is relevant is the causation caused by the employment relationship self that is i submit supports a plain application of valladolid test the test says the injured claim bears the burden proving a less significant causal link between the injury if let's say hypothetically agree with you on the where does that lead us where does that leave them to dispose of the where what do we what  continental shelf and three thousand and thirty three i'm of more or not judge i'm referring to the language contained in valladolid self ok and i think that's the that's the kind of the difficulty here is that but isn't that back to the exact test that the supreme court said don't follow i'm sorry that's exactly the test the supreme court said we shouldn't limiting it shouldn't be limited simply to the continental show that they the supreme court saying is they were jetting mills mills said had there's a situs of injury requirement us operations it doesn't matter if the injury happens on land but there are the situs approaches operations those o c s operations performed by the employer the direct employer must be on the o c s that's he's employer firm and has operations on the ship through its employees that's how that's how you know corporate entities act the act through their employees so you know here that you know we're the point is and i see my time