Warner v. Talos ERT: Fifth Circuit Endorses Separate Wrongful‑Death Awards for Loss of Love and Mental Anguish and Clarifies Principal Liability via SEMS‑Based Control

Introduction

In Warner v. Talos ERT, L.L.C., the U.S. Court of Appeals for the Fifth Circuit addressed liability and damages arising from the death of a contractor’s employee on an offshore platform on the Outer Continental Shelf off Louisiana. The plaintiffs—Walter Jackson’s minor son (Y.J.), through his mother, and Jackson’s widow—prevailed at trial on wrongful‑death claims against platform owner Talos ERT, L.L.C. (“Talos”). The appeal presented three clusters of issues:

Whether Talos could be held liable under Louisiana law (adopted as surrogate federal law under the Outer Continental Shelf Lands Act) on theories of vicarious liability for an independent contractor’s unsafe work practices and for Talos’s own independent negligence;
Whether the district court erred in denying a new trial on liability and damages—including challenges to evidentiary rulings and alleged attorney misconduct—and in applying the maximum‑recovery rule to remit general damages; and
Whether Louisiana wrongful‑death law permits separate awards for loss of love/affection and for mental anguish, without constituting an impermissible “double recovery.”

The Fifth Circuit affirmed the liability verdict and the damages awarded to Y.J., but vacated the remitted general‑damages award for the widow and remanded for recalculation. Most notably, the court aligned its Erie prediction with the run of Louisiana intermediate appellate decisions and held that separate wrongful‑death awards for “loss of love, affection, and companionship” and for “mental anguish” are permissible under Louisiana law—declining to follow its 1980 decision in Croce v. Bromley to the contrary.

Summary of the Opinion

Applying OCSLA, the court adopted Louisiana law as surrogate federal law. It held that substantial evidence supported the jury’s verdict under both:

Vicarious liability via the “unsafe work practice” exception (Talos, through its Person‑in‑Charge (PIC) with ultimate work authority (UWA), impliedly authorized the unsafe practice of lowering pipe while a worker was directly below); and
Independent negligence (Talos assumed a duty to contractor personnel through contracts incorporating Talos’s SEMS program, safety manual, and JSA process, and breached those duties by failing to assess hazards, issue permits, and control simultaneous operations).

The court rejected Talos’s demands for a new trial on liability and on damages. It upheld admission of Talos’s prior felony conviction related to hot‑work permitting as Rule 404(b) evidence of knowledge/absence of mistake, and found no reversible harm from the challenged advocacy. On damages:

The court held Louisiana law allows separate wrongful‑death awards for loss of love/affection and mental anguish, distinguishing and effectively sidelining Croce in light of near‑unanimous Louisiana intermediate appellate authority.
It affirmed the district court’s remittitur for Y.J. under the maximum‑recovery rule using Rachal v. Brouillette as the principal comparator.
It vacated the widow’s remitted general‑damages figure because the comparator (Zimko) was factually dissimilar and its baseline disproportionately high, and remanded for a recalculated remittitur using more analogous cases.

Analysis

Precedents Cited and How They Shaped the Decision

OCSLA and surrogate state law: 43 U.S.C. § 1333 adopts adjacent state law as surrogate federal law when applicable and not inconsistent with federal law. The platform lay off Louisiana, so Louisiana tort law controlled. See Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352 (1969); Coleman v. BP Expl. & Prod., Inc., 19 F.4th 720 (5th Cir. 2021).
JMOL and general verdicts across multiple theories: The court reviewed the denial of JMOL de novo and applied the Echeverry “harmless‑error gloss” for general verdicts across alternative negligence theories—JMOL is warranted only if evidence is insufficient on each theory, and a new trial only if the verdict may rest on a theory with insufficient evidence. See Apache Deepwater, L.L.C. v. W&T Offshore, Inc., 930 F.3d 647 (5th Cir. 2019); Echeverry v. Jazz Casino Co., L.L.C., 988 F.3d 221 (5th Cir. 2021) (en banc).
Vicarious liability and “unsafe work practices” in Louisiana: A principal is generally not liable for an independent contractor’s negligence, but may be if it “expressly or impliedly authorized” an unsafe method when a safe method was available. See Bartholomew v. CNG Producing Co., 832 F.2d 326 (5th Cir. 1987) (quoting Ewell v. Petro Processors of La., Inc., 364 So. 2d 604 (La. App. 1978)); Coleman, 19 F.4th at 731. Echeverry instructs courts to identify the “underlying action” by reference to the instrumentality of injury and then add the “specifics” that made the action unsafe, resisting overly general or overly granular characterizations.
Assumed duty via safety programs/manuals: Graham v. Amoco Oil Co., 21 F.3d 643 (5th Cir. 1994), held that an oil company’s safety manual did not impose extracontractual duties when not incorporated in the contract. Here, the court distinguished Graham because the MSA and SEMS Bridging Agreement expressly incorporated Talos’s safety manual, SEMS, and JSA process, vesting the PIC with discrete safety obligations and final authority to commence work. Coleman recognized assumption of duty when a principal “voluntarily and affirmatively” goes beyond the contract or when the contractor relies on the principal’s safety program.
Separate wrongful‑death awards for loss of love vs. mental anguish: Croce v. Bromley, 623 F.2d 1084 (5th Cir. 1980) disallowed separate awards as duplicative under Louisiana law. The panel held Croce is no longer controlling Erie precedent because Louisiana’s Third, Fourth, and Fifth Circuits have consistently permitted separate awards for these distinct harms (e.g., Rachal v. Brouillette, 111 So. 3d 1137 (La. App. 3 Cir. 2013); Bryant v. Solomon, 712 So. 2d 145 (La. App. 4 Cir. 1998); Levet v. Calais & Sons, Inc., 514 So. 2d 153 (La. App. 5 Cir. 1987)). The court cited PHI Grp., Inc. v. Zurich Am. Ins. Co., 58 F.4th 838 (5th Cir. 2023) and Anco Insulations, Inc. v. Nat’l Union Fire Ins. Co., 787 F.3d 276 (5th Cir. 2015) for the Erie standard: prior Fifth Circuit state‑law holdings yield to a “clearly contrary” wave of intermediate state appellate decisions.
Remittitur and the maximum‑recovery rule: The court reiterated the 150% ceiling above the highest inflation‑adjusted award in analogous published decisions. See Learmonth v. Sears, Roebuck & Co., 631 F.3d 724 (5th Cir. 2011); Longoria v. Hunter Express, Ltd., 932 F.3d 360 (5th Cir. 2019); Echeverry, 988 F.3d at 236; Marcel v. Placid Oil Co., 11 F.3d 563 (5th Cir. 1994); Pete v. Boland Marine & Mfg. Co., LLC, 379 So. 3d 636 (La. 2023).
Evidentiary rulings and misconduct: Admission of prior‑bad‑acts evidence under Rule 404(b) to show knowledge/absence of mistake (United States v. Smith, 804 F.3d 724 (5th Cir. 2015); In re DePuy Orthopaedics, Inc., 888 F.3d 753 (5th Cir. 2018)). “Conscience‑of‑the‑community” arguments are disfavored but rarely warrant new trials absent substantial prejudice (Learmonth; Westbrook v. Gen. Tire & Rubber Co., 754 F.2d 1233 (5th Cir. 1985); Guar. Serv. Corp. v. Am. Emps. Ins. Co., 893 F.2d 725 (5th Cir. 1990); Edwards v. Sears, Roebuck & Co., 512 F.2d 276 (5th Cir. 1975)). Plain‑error review applies to unpreserved claims of attorney misconduct (Alaniz v. Zamora‑Quezada, 591 F.3d 761 (5th Cir. 2009)).

Legal Reasoning

1) Vicarious liability via the unsafe‑work‑practice exception

The court framed the “underlying action” as lowering a 129‑pound pipe with a manila rope—the instrumentalities that caused the injury—and the “specifics” that rendered it unsafe as doing so while Jackson was working directly below during simultaneous operations (SIMOPS), without hot‑work or barricade‑entry permits and without designating “no‑standing” or “landing” zones. This middle‑level characterization follows Echeverry’s guidance.

The evidence permitted a finding that Talos, through its PIC holding UWA, impliedly authorized that unsafe practice by approving a JSA that (a) did not mitigate SIMOPS hazards, (b) required Jackson to access a barricaded area, (c) failed to restrict the plus‑ten deck, and (d) lacked required permits. Although DLS initially chose the manila rope, Talos approved the equipment list, paid for the rope, and retained the authority to require different equipment. Most critically, Talos’s PIC’s JSA approval was a necessary precondition to work commencing and confirmed Talos’s authorization of the unsafe method as structured that day.

2) Independent negligence through an assumed duty of care

Under Louisiana law, a principal generally owes no affirmative duty to ensure an independent contractor’s safety. But a principal can assume such a duty by contract or by going beyond it. Unlike the non‑incorporated manual in Graham, Talos’s MSA and SEMS Bridging Agreement expressly incorporated Talos’s safety manual, SEMS program, and JSA process. Those instruments vested the PIC with specific responsibilities:

Conduct a hazard assessment;
Physically inspect the jobsite and equipment;
Issue hot‑work and barricade‑entry permits when warranted; and
Approve the JSA as the master work‑control document before any work begins.

The PIC did not discharge those responsibilities on the day in question. Because the contractor relied on Talos’s adopted safety system and the PIC’s gatekeeping function, the court held Talos assumed a duty to contractor personnel within the scope of its safety program and breached that duty.

3) Wrongful‑death general damages: separate categories permitted

Talos invoked Croce to argue that the verdict form impermissibly duplicated nonpecuniary damages by allowing separate awards for “loss of love, affection, and companionship” and “mental anguish.” The Fifth Circuit undertook an Erie analysis and concluded Croce no longer controls because it has been overtaken by a near‑unanimous line of Louisiana intermediate appellate decisions expressly recognizing these as distinct, compensable harms. The court therefore approved the verdict form and jury instructions that treated these as separate categories.

4) Maximum‑recovery rule and remittitur

The court affirmed the district court’s remittitur of Y.J.’s general damages using the Louisiana Third Circuit’s decision in Rachal—also involving a close parent‑child bond with separation—as the best analogue, and applied the 150% cap to the inflation‑adjusted figure and the jury’s fault apportionment.

By contrast, the remitted award for the widow was vacated. The district court’s reliance on Zimko (a 31‑year marriage with limited record detail) was materially dissimilar to the three‑year marriage here and yielded an outlier baseline. The court directed a fresh comparator analysis—citing, among others, Moore v. M/V ANGELA (reducing a consortium award from $750,000 to $300,000 pre‑inflation and multiplier for a six‑month marriage)—and remanded for recalculation of remittitur.

5) New trial motions: evidentiary and advocacy challenges

The court upheld admission of Talos’s prior felony conviction for failure to issue hot‑work permits under Rule 404(b) as probative of knowledge, absence of mistake, and lack of accident. The court found the evidence relevant and not unduly prejudicial given the centrality of hot‑work permitting and the breadth of other safety failures in evidence.

Alleged “conscience‑of‑the‑community” statements—brief remarks about people “watching” and the jury’s “power to right this wrong”—did not warrant a new trial when viewed in context, especially absent calls to “punish” or references to the defendant’s wealth. Remaining claims of attorney misconduct were unpreserved, reviewed for plain error, and found insufficient to affect substantial rights or the fairness of the proceedings.

Impact

Wrongful‑death damages in Louisiana (OCSLA cases included): Litigants should expect the Fifth Circuit to allow separate awards for loss of love/affection and for mental anguish in Louisiana wrongful‑death actions. Verdict forms and jury instructions can—and should—differentiate these categories without risking “double recovery” arguments grounded in Croce.
Contracting and safety governance offshore: Incorporating an operator’s SEMS program, manual, and JSA regime into an MSA/bridging agreement can create an assumed duty toward contractor personnel. Operators should:
- Clarify the PIC’s obligations, training, and documentation requirements;
- Ensure JSAs specifically address SIMOPS, “no‑standing/landing zones,” and restricted‑area access;
- Enforce permit regimes (hot‑work, barricade entry) and retain documentation;
- Revisit equipment approvals where their sign‑off effectively authorizes the method of work.
Vicarious liability exposure via unsafe‑work‑practice authorization: PIC approval of a deficient JSA, in the face of safer available methods or controls, can amount to implied authorization of an unsafe work practice, triggering vicarious liability despite the independent‑contractor relationship.
Damages calibration via maximum‑recovery rule: District courts must select factually analogous comparators and then apply the 150% multiplier to the inflation‑adjusted ceiling, followed by any fault allocation. Parties should develop a robust comparator record tailored to the relationship facts (length of marriage, cohabitation, parenting, emotional sequelae).
Evidentiary strategy for prior safety violations: Prior convictions or regulatory sanctions tied to the same safety processes (e.g., hot‑work permitting) are admissible under Rule 404(b) for non‑character purposes like knowledge or absence of mistake, subject to Rule 403 balancing. Companies should anticipate this use when formulating trial strategy.
Trial advocacy boundaries: While “conscience‑of‑the‑community” arguments are disfavored, isolated references without punitive rhetoric typically will not jeopardize a verdict; preserve objections contemporaneously to avoid plain‑error hurdles.

Complex Concepts Simplified

OCSLA and surrogate state law: Offshore incidents on the Outer Continental Shelf use federal jurisdiction, but the adjacent state’s law (here, Louisiana) is adopted as “surrogate federal law” unless it conflicts with federal law.
SEMS and Bridging Agreement: SEMS is the operator’s safety management system required by federal regulation. A bridging agreement aligns the operator’s and contractor’s safety programs, often specifying that the operator’s manuals, forms, and permits govern.
Person‑in‑Charge (PIC) and Ultimate Work Authority (UWA): The PIC is the on‑platform safety decision‑maker; UWA signifies final operational authority. If the PIC must approve JSAs and permits, the work cannot lawfully begin until he does so.
JSA (Job Safety Analysis): A step‑by‑step hazard assessment and control plan. On Talos platforms, the approved JSA becomes the “master control document” for all work.
SIMOPS: Simultaneous operations (e.g., cutting and lowering materials at the same time) that can create cross‑hazards; they must be evaluated and controlled.
Unsafe‑work‑practice exception: Normally an operator is not liable for a contractor’s negligence. But if the operator expressly or impliedly authorizes an unsafe method when a safe method was available, it can be vicariously liable.
Assumption of duty: A party that contractually undertakes specific safety responsibilities (or goes beyond the contract and induces reliance) assumes a duty of care to those affected.
Maximum‑recovery rule and remittitur: If a jury’s damages exceed what similar cases allow, courts reduce them to the maximum permitted—150% of the highest inflation‑adjusted award in a sufficiently similar, published case—then adjust for comparative fault.
Rule 404(b) evidence: Past wrongs or crimes are inadmissible to prove character, but can be admitted for other purposes (e.g., knowledge, absence of mistake) if their probative value is not substantially outweighed by unfair prejudice.

Conclusion

Warner v. Talos ERT is consequential on two fronts. First, on liability, it underscores that offshore operators can face both vicarious and direct liability when their SEMS‑based controls, incorporated by contract, place a PIC in a gatekeeping role and the operator’s approvals effectively authorize unsafe practices—especially where SIMOPS, permitting, and controlled‑access protocols are neglected. Second, on damages, the Fifth Circuit harmonizes its Erie prediction with Louisiana’s appellate courts by permitting distinct wrongful‑death awards for loss of love/affection and for mental anguish. The court also reinforces disciplined use of the maximum‑recovery rule: comparators must be genuinely analogous, and outlier baselines will be rejected.

For operators, contractors, and their counsel, Warner is a roadmap: contract language that integrates and operationalizes an operator’s safety system can carry legal duties; PIC approvals matter; JSAs and permits must be substantive, documented, and enforced; and damages advocacy must be anchored in the most factually similar Louisiana authorities. The decision will shape offshore safety governance, trial practice, and damages calibration in OCSLA‑governed wrongful‑death litigation for years to come.