good morning honors david carpenter for appellant exxon mobil corp i like to try to reserve two minutes for a bow but i will monitor my own time it's a fundamental principle that a party is entitled to instructions on its theory of the case when they're supported by the law and have a foundation in the evidence here exxon requested but was denied a jury instructions based on the california supreme court's decision in langley for this argument i want to cover why the langley applied key context for this case is the ongoing course of dealing between edison and the refinery which was its largest customer going back to the one nine hundred ninety s edison set out to investigate service complaints made by the refinery around the same time the refinery demonstrated an ability to engage in self generation of its own electricity in the course of that investigation which resulted in the one thousand nine hundred two reliability report edi recognized that traditional continuity of service what is adequate to keep people's lights on was not sufficient in the context of the refinery or other large petrochemical industrial operations because with those kinds of operations even brief interruptions in power brief dips in the voltage could have extraordinary impact weeklong shutdowns from a two second dip in voltage major production loss safety concerns environmental hazards it was based on this recognition that edison committed same we're going to redefine customer was were these agreements or whatever they were at that time do you consider we're arguing that they're part of the contract or is always a tariff contract they're part of the duty to exercise reasonable diligent argument but i'm i can confirm with you on that one but what happened with coming out of these the reliability report is that in recognition of the extraordinary harm that could come to the refinery edison committed to certain informed by the knowledge of the customer's particular needs and it's also that even as to causes when there are electoral disruptions outside of the utilities control the utility based on its knowledge still has an obligation to engage in reasonable soley governing the rights and liabilities of the parties that we provided an alternative statement of the tariff instruction in our jury instructions as well which is i believe a special instruction number forty eight but i think i c d that as well but i think the key here though there are two aspects to it what under hunter what hunter says is that even when you have a model instruction that on its face is not necessarily wrong that instruction can still be incomplete and removed the general population but was specifically appropriate based on a particular needs of the refinery the omission and a lot of clarification from langley was then compounded by the instructions given its favor and the district court says i'm not given that ok in other words don't you have an obligation to tailor your rig struction zx s so that they actually a reflect your principle and not get yourself an extra two or three yards on i under i understand your honor it is precedent in one circuit that when an issue is brought to the course attention it judge payne is saying that never in this situation in which you knew what instructions were actually to be given did you come up with a you know tailored moderate not extreme version of what you wanted him to say as you never level of protection and systems that are good enough for the entire world and that should be good enough for you and what our content our contention our theory case was well no you know what's good enough for the entire world is necessarily sufficient for the refinery and that's where the duty to provide enhanced measures comes in and that's where the language instruction is really important so let's talk about the january two thousand and twelve incidents because this is where it really fits into the ups and those revolve around incorporate into the two of you suggest to you julie should put in the tariff i don't believe that yes it was made but it's a long chain supreme court decisions even recognized by the public utility commission itself as per our not in the would mean by recognised by the p c correct that's the west calm case and it's in our reply brief where talks about the tariffs and the obligations and then says we also recognise the principle in langley which case  and that was all disputed by exxon's witnesses including the expert who said that there was stuff they could have done especially because what was going on on january seventh was a false trip it was a nuisance trip now an actual defect in the system but it miscommunication and for that reason they decided edison decided to take the line off indefinitely without even telling exxon what was going on i n x i didn't take the land mine off that of the backup system they took the primary protection system off and  but i think that the electricity was operated correct i'm sorry yes they took the protection system off and they left only the backup system on right but they knew that the backup system was not fast enough to clear events to keep the recent finery safe in the event but if it didn't actually make a difference at the time when there was an event then what was the precious no but the argument and the testimony from exxon is that it did make a difference that if they had investigated immediately there are things they could have done to keep the system going at a minimum they couldn't have there's nothing that we could have done to fix the fastest i'm in time and what we disputed was with which i thought that's what george brazil and i thought i believe the judge was on his ass was that they said if the fastest and were operational it wouldn't have caught the voltage drop the ball so i think ok i think it's unfair that if the fastest them were operational on january ninth there would have been a problem it would have fixed the voltage drop and there would have been any issue the question is whether on january seventh edison could have taken things to get the system back up on top online in time or at a minimum provided notice so that actually you know take medication such as one such code telling exxon hey we're taking this offline and which point ex could have investigated and gone to mitigation measures so they bring more crew on looking at resetting the machinery or simply working through with addison ways of getting that system back on line faster because that's most likely what the response would have been e negligence claim and the breach of contract claim that is correct your honor so they were fully aware of that even one of the instructions that were given correct your honor but you know let me ask you this if in fact you're wrong about the instructions forty nine and fifty one what's the impact of giving six and you know the words isn't this just a harmless error and what do you say to the harmless instruction and to reject forty nine fifty one of yours and then the district court also gave number six i believe on the tariff what is your analysis about whether that was just harmless error because the jury was basically instructed correctly anyway and would have come to the same result under the arm of their lives so our contention is that it was error to exclude the langley principle and that six presenting six the terr the sole governing rules is an incomplete statement a law under langley but suppose we don't find that that was presented that way suppose we found it was ok and if it is just been five and  e would have the result would have been fine for the jury they would have been able to determine what they want but now you have six what is the fact what's the if complicating a fact and is giving of six in the face of five is that just harmless no so once you if you were only to give us in that world where there's only one general negligence structure and both sides fight it out that might be one thing i would argue that would still be entitled to instructions our theory of case under hunter but here you have instructions didn't seem to mean anything well it was significant when exxon was able to get up or so when edison was able to get up and specifically direct the jury twenty struction that indicated it should be considering certain factors whereas exxon did not have the same benefit and it is stablished that the argument by counsel does not make up for the failure to provide proper instructions and it's similar to the case situation in hunter where hunter said the error in the incomplete instructions is that it may well have led the jury to disregard the plaintiff's evidence in favor of the defendants here we had defendant got specific instructions on the tariff toxic instructions like custom and practice they point to those in closing argument and we did not one with respect to the interaction between instruction six and five acts on argues that the jury might have been misled but the record reflects there's no basis to to assert that first there's guarantee continuous a sufficient supply and it's not liable for interruption if that has caused it and not providing both of which seem to wash out two of the the major issues that are being raised without the caveat that there are some obligation to try to avoid that based on knowledge of the particular person's situation i mean it's just seem to me often instructions are given to you give a general honor in the following sense for of all the jurors were specifically instructed and i directed the court's attention to instruction one which is in supplemental legs are to record a page three the jurors were in sprog did specifically that they had to pay attention to and follow every single instruction they could not ignore any instructions so the juror that the instructions themselves told the jurors that they had to pay attention to and follow instruction five  in addition even if they were instructed in that respect there's a well settled it's well settled law that there's a strong presumption that the jurors will follow each and every instruction that they're given but that these are interacting instructions as to what that instance struction fourteen kero a covers a more narrow context then the general duty of care and that's perfectly consistent with the langley decision the language decision talks about the tariffs in the initial a section of the of the decision and then finally talked about i care if it was very similar to this one and essentially said that that is the end of the story correct your honor it said it doesn't abrogate the general duty of care and then discuss the general duty of care applying in that could you do that i'm sorry you were asked to talk about harmless error could you that yes well i can talk specifically about harmless error on the events themselves are harmless error with respect to the interaction between six and five it was unsure what year you're on or specifically so in addition to the jurors having been specifically instructed that they had to follow all instructions the importance of the standard instruction five was also reinforced by instruction eight instruction eight talks about customs and practices and in that instruction it says customs and practices do not necessarily determine what a reasonable person would have done in the situation of either party so in other words it was reinforcing to the jury that that standard instruction five applies specifically in the context of how the jury should take into account customs and practices evidence in addition instruction five is explicit that it applies to both parties the third paragraph in an instruction five says you must decide how reasonably careful person or entity would have acted in the situation of either party so it by its terms was specifically applying to both exxon and edison and your honor a part of what is missed in in exxon's argument in this respect is that the court had to instruct about the tariffs the terror c p c tariffs are considered law they were also incorporated into the party's agreements and you have a apply that is the duty to act reasonably under the circumstances as this as the trial court found in denying new axons new trial motion that standard of care how it was articulated in langley reasonable under the circumstances evidence was deemed relevant in fact the trial judge during trial gave specific instructions as knowledge evidence was coming in a certain object in this was coming in that it was to be considered for the purpose of assessing edison's knowledge and that the jurors could take that into account in their deliberations so throughout the course of trial based on the evidence that was presented at trial the in trial instructions that were given to the jurors both  parties opening and closing arguments where both parties talked about their views of that is knowledge it was one hundred percent crystal clear to the jury that the jurors needed to take into account or had the option to take into account knowledge as  judge a pain pointed out but that but knowledge is only one among many factors that could be considered in assessing the reasonableness of that is and behavior now specifically if your honour's would like me to address a harmless error as to the specific events i can do that as well yes your honor so as to the in addition to the issue of knowledge having been  made clear as as relevant information for the jurors to take into account there were several fundamental issues that plagued exxon's each of exxon's claims that the and these deficiencies would have precluded any  recovery as to any of these events and i'll start with the october two thousand and twelve and that is the capacitor bank of ent setting aside the weakness of the liability case on that event exxon suffered this is the october two thousand and twelve event involving a capacitor bank that's the one where exxon said edison should have washed its equipment more more regularly and i can address the liability of the weakness in the liability case but but i clearer brevity sake that the main issue that we can point out to your honor is they suffer no damages exxon actually ended up netting a profit from that event by selling product into a spike market that resulted from a market shortage caused by the refinery shutdown so there was no damages there for exxon to recover and this was unchallenged at trial  and exxon does not address it at all in their briefing with respect to the january two thousand and twelve events there are three events in all actually there were two events on january ninth and that's the one that your honor was talking about with the balloon in the water drop there was also another event on january twenty one x on group those three events together but they only presented one damages figure for all three events there's one collective damages figure for all three events which means that if they did not prevail on any one of the three events they had no viable damages figure for any individual event and there was zero evidence of liability with respect to the january twenty one events all dress that one does very briefly because exxon only rep it relegates to one footnote in there it's footnote two of their opening brief their theory of liability for the  january twenty one event and that had to do with a circuit breaker recloser issue but exxon ignores that their own expert disavowed that sole theory of liability at trial  and we discussed that in the briefs but that language is that the supplemental budget the record ninety one through ninety five and also supplemental exerts a record sixty nine to six seventy one that's edison's experts speaking about what exxon's expert said so they say nothing about that at all in their reply brief and if exxon can prevail on the january twenty ninth one of then they can prevail on any of the events they also their damages figure was also presented as the total of so your honor the lot the issue on liability it into some degree comes back to the knowledge issue which is their argument is that without that instruction we wouldn't the jury wouldn't know that they they would have known the instructions were ok and there were no damages but you're not saying that if we thought that they would have known or that the destruction shouldn't think given that each of the incidents there would be a problem i understand your i'm sorry for no answering question earlier let me say this with respect to the knowledge issue as it pertains to liability the the the tariff that issue pertains specifically to the january ninth of that  and that's where they say well you should have notified x on about the disabling of the primary protection system so so that issue is really specific only to the january two thousand and twelve events and as to those events the they presented no evidence about what difference it would have made had they been notified they presented no they did not present evidence about what  whether it would have made any impact on the refinery what their what difference it would have made in terms of how they experience the fault they they did presented kind of speculative evidence well here's what maybe we would have done  maybe we would have changed the settings but your honor their own witness testified that changing the settings on their own protective systems would take months that's iris in addition your honor their own expert acknowledged again speaking about the january two thousand and twelve events their own expert acknowledged that that the refinery would have suffered some damages either way even if even if the primary protection system had been in place at the time of the events they would have suffered damage either way and they did not explain but what difference it would have made at the refinery so there they did not present in fact this alternative case about what would have happened if they had been notified like that the washing cleaning instance what your honor on that on that event the issue was so setting aside the damages issues that edison it was so edison presented substantial evidence at trial that a they're washing schedule was the same as it went back same as it was for this is for the substation equipment it was the same as it was going back years and years all the way back to the early ninety's period where they were talking about the  know more often well that your honor was specific to what were called quote unquote circuits the circuits as explained in testimony at trial had to do with lines not substation equipment and this subset and the event on in october of two thousand and twelve involved substation equipment even exxon's own witness and trial acknowledged that the term circuits was interchangeable with the term lines and we had testimony at trial from the author of the report that that the reference to increasing the washing edgel for circuits was specific to lines and had nothing to do with substation equipment so this is what would you say i would what would have happened according to the trial record if notice had been given of the washings your honor nothing it would have made there either well it would have made no difference and in fact what the record shows is that addison and we have testimony from josh aso one of the witnesses a trial about this was that exxon actually was aware of the wash schedule the annual wash schedule for equipment in the  substations that were in the same area this is the substation that was apt the refinery property so they were actually aware and this is in supplemental excerpts of record nine fifteen through nine nineteen that exxon was actually aware that edison was washing their substation equipment on an annual schedule oki thank you very much  correct but we didn't have an instruction to point to where as they did on cost in practice there was heavily disputed testimony on the ways in which notice could have helped us mitigate and from our own expert about what they could have done to get the line up sooner on that when you look at the cover yaro decision in evaluating harmless error and when you look at hunter with hunter the standard is whether the jury might well have been swayed for the plaintiff's case with proper instruction in kabul yarrow they essentially say we see the evidence defendant is arguing for harmless error but those involved disputed credibility issues and disputes that's not for the appelle court to get into a lot of these disputes that we're talking about here that they're raising as homer say or they go to issues of causation of damages  comparative fault not even the core question of duty the jury never got to that involved hotly disputed issues between experts and between excellence representatives versus edison's representatives i can use an example of the wash cycle  there was disputes over when the reliability report said heavy fog a temptation creates a real risk for equipment and insulators and circuits whether they meant equipment generally or the line specifically our witnesses said we interpret that to mean the equipment in general including things attached to it because why would heavy fog contamination only affect one piece of the equipment it was not my own or not little angrily of the struction and for that i think it would have focused the jury on