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News Flash - SCOTUS To Hear Outer Continental Shelf Lands Act Injury Case

The U.S. Supreme Court just agreed to hear the case of Pacific Operations Offshore, LLP v. Valladolid.  Links to docket, briefs, and opinion below, courtesy of SCOTUSBLOG, here. 

My earlier post on the Ninth Circuit's opinion is here.  As to why SCOTUS took the case?  As noted in my earlier post, there was a plain circuit split between the Ninth, Third and Fifth Circuit Courts of Appeal.

The court granted review for this question presented:

The Outer Continental Shelf Lands Act, 43 U.S.C., §§ 1331-1356 (OCSLA), governs those who work on oil drilling platforms and other fixed structures beyond state maritime boundaries. Workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf." 43 U.S.C. § 1333(b) (2006). When an outer continental shelf worker is injured on land, is he (or his heir):

(1) always eligible for compensation, because his employer's operations on the shelf are the but for cause of his injury (as the Third Circuit holds); or

(2) never eligible for compensation, because the Act applies only to injuries occurring on the shelf (as the Fifth Circuit holds); 

(3) sometimes eligible for compensation, because eligibility for benefits depends on the nature and extent of the factual relationship between the injury and the operations on the shelf (as the Ninth Circuit holds)?

Great way to highlight a circuit split.  Stay tuned.

ABA Endorses White Paper on Disaster Mitigation Policies

Today, the American Bar Association endorsed the Effective National Mitigation Effort, a white paper on national mitigation prepared by the Association of the Directors of Emergency Management of the U.S. States and Territories and the District of Columbia.

The White Paper is a concise statement outlining concerns, opportunities and strategies to mitigate damages from "hazards" and "harms":

Mitigation is not an isolated or unique activity for any single level of government, private sector, or funding source. Mitigation is a pervasive activity that needs to include the broadest range of participants, making widely available the most current and accurate hazard identification information. Mitigation should be demand driven from the communities where it makes the most difference. It is in the interest of decision makers at the higher levels of government to use their dollars to promote and incentivize a comprehensive and systematic approach for mitigation to be implemented at the local community level.

In the wake of Hurricane Katrina, disaster preparedness, mitigation and response is a cross-jurisdictional, complex, but surmountable problem.  The State and Local Government Section has been on the leading edge of these efforts and this is another good step to better prepare our governments and societies for future incidents.

New Longshore Case from Fifth Circuit - Eysselinck v. Dir., OWCP

New Longshore/Defense Base Act case from the Fifth Circuit Court of Appeals.  The issue is PTSD and wilfull injury to an employee.  The case is Eysselinck v. Dir., OWCP, 2010 U.S. App. LEXIS 17227 and can be found here.  It is unpublished and not precedential.

Facts:  a contract worker home on leave from his job in Iraq committed suicide.  His widow sought death benefits under the Longshore and Harbor Workers' Compensation Act (42 U.S.C. 1651(c) but was denied at the administrative level.  The District Court also denied relief, as did, ultimately, the Fifth Circuit.

Analysis:  The widow argued that the suicide was caused by the decedent's post-traumatic stress disorder (PTSD) relating to work stress and danger.  At the administrative hearing level, the Administrative Law Judge heard from competing experts regarding the likelihood that the decedent did in fact have PTSD.  The ALJ found that he did not have PTSD, found that the decedent wilfully committed suicide and denied benefits.  Per the court, under 33 U.S.C. 903(c), "“[n]o compensation shall be payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.”  The widow argued that she was entitled to a statutory presumption that the injuries were not wilful, but the court noted that the presumption only applied in the "absence of substantial evidence fo the contrary" and then noted the substantial evidence in the record that the decdent's death was willful.

New Jones Act Case from Fifth Circuit - Clark v. Kellogg Brown & Root

New maritime personal injury case from Fifth Circuit Court of Appeals.  It is unpublished and not precedential, but is a good primer on injury claims.  The case is Clark v. Kellogg Brown & Root, 2011 U.S. App. LEXIS 2354 and can be found here.

Facts:  A maritime worker was exposed to benzene while working on barges in the 1970's.  In 2006, he was diagnosed with acute myelegenous leukemia and filed suit against his employer for personal injury under the Jones Act as well as admiralty claims for maintenance and cure and unseaworthiness.  At trial, he prevailed only on the Jones Act claim.

Issues on appeal:  1) did the trial court use the correct causation standard; 2) did the trial court err in finding that benzene cause the worker's medical condition; and 3) did the trial court err in allowing certain expert witness testimony.

Analysis: 

As to the first point, the Fifth Circuit held: 

We have explained that the standard is one of “producing cause” rather than “proximate cause” and that the burden of proof is “featherweight.” Chisholm v. Sabine Towing & Transp. Co., 679 F.2d 60, 62 (5th Cir. 1982). Thus, two concepts come into play here – the type of causation that must be shown (producing) and the plaintiff’s burden to show that cause (featherweight).

The court noted that the burden of proof for Jones Act (which uses the burden of proof contained in the Federal Employers Liability Act) will be decided in a case bound for the U.S. Supreme Court, McBride v. CSX Transportation, Inc.  Nevertheless, it followed existing precedent which allowed for claimants to only prove that the exposure to benzene was a producing cause of the injury and not the proximate cause.  The trial court explicitly found that the plaintiff had only established that the benzene exposure was a producing cause and also explicitly found that benzene exposure was not a proximate cause of his injury.

As to the second and third points, the Fifth Circuit noted that the trial court believed the witnesses who testified that the claimant was exposed to benzene on the barges.  The court further noted that the competing experts' determination of benzene exposure levels, using extrapolation from the claimant's testimony, was allowable.

This decision could have turned out differently depending on what the Supreme Court does in the McBride case.  Stay tuned.