author: EBEL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, State of Florida, et al., Plaintiffs, Manuel Christiansen, ex. rel., Brian Ashton, Plaintiffs-Appellants, v. EVERGLADES COLLEGE, INC., d.b.a. Keiser University, Defendant-Appellee. United States of America, et al., Plaintiffs, Manuel Christiansen, ex. rel. Brian Ashton, Plaintiffs-Appellants, v. Everglades College, Inc., d.b.a. Keiser University, Defendant-Appellee.
    No. 16-10849, No. 16-11839
    United States Court of Appeals, Eleventh Circuit.
    (May 3, 2017)

      Appeals from the United States District Court for the Southern District of Florida, D.C. No. 0:12-ev-60185-WPD
    Ira B. Silverstein, The Silverstein Firm, Philadelphia, PA, Mitchell L. Feldman, Feldman Law Group, PA, Tampa, FL, David A. Koenigsberg, Menz Bonner Ko-mar & Koenigsberg, LLP, White Plains, NY, Dale James Morgado, Morgado, PA, New York, NY, James Alan Weinkle, U.S. Attorney’s Office, Miami, FL, for Plaintiffs-Appellants.
    Jeffrey A. Clair, U.S. Department of Justice, Washington, DC, for Intervenor-Appellee.
    Daniel Marc Schwarz, Cole Scott & Kis-sane, PA, Ft Lauderdale, FL, Thomas Emerson Scott, Jr., Scott Allan Cole, Cole Scott & Kissane, PA, Miami, FL, Barry Adam Postman, Justin C. Sorel, Cole Scott & Kissane, PA, West Palm Beach, FL, for Defendanb-Appellee.
    Before, HULL, MARTIN, and EBEL, Circuit Judges.

       The Honorable David M. Ebel, Senior United States Circuit Judge for the United States Court of Appeals for the Tenth Circuit, sitting by designation.

   EBEL, Circuit Judge:

Manuel Christiansen and Brian Ashton (Relators) brought a qui tam lawsuit against Everglades College, Inc., d.b.a. Keiser University (Keiser University) under the federal False Claims Act (FCA). They alleged that Keiser University, a participant in federal student financial-aid programs, falsely certified compliance with a federal law banning incentive payments to university admissions counselors. When the United States initially declined to intervene and take over the case, Relators pursued the action and won only a limited trial victory — no damages and only $11,000 in penalties — so they appealed to this Court. During the pendency of that appeal, however, the United States stepped in and settled the case with Keiser, securing a much larger monetary recovery than Rela-tors procured at trial.

Confident that they could have prevailed on appeal, Relators believed the rug had been pulled out from under them. They argued the United States had no right to intervene so late in the proceedings, they challenged the underlying fairness of the settlement, and they asked for an eviden-tiary hearing and discovery into the government’s settlement deliberations in search of a nefarious motive. The district court rejected these arguments and allowed the United States to intervene, approved the settlement, and denied Rela-tors’ requests for an evidentiary hearing and discovery pertaining to the government’s decision to intervene and settle the case. Relators now appeal those rulings. Appeal No. 16-10849.

Relators also appeal from the district court’s subsequent award of reduced attorneys’ fees and costs. Appeal No. 16-11839. In light of the paltry outcome secured at trial and Relators’ opposition to the eventual settlement, which had resulted in a significantly greater monetary recovery, the district court trimmed Relators’ fees and costs to a small fraction of the requested award.

Recognizing that the settlement and the attorneys’ fees are inextricably linked, we consolidated these appeals'. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM in both Appeals Nos. 16-10849 and 16-11839.

I. BACKGROUND

A. The Alleged FCA Violations

Keiser University is a non-profit college offering undergraduate and graduate programs across more than a dozen campuses. Many of Reiser’s students receive federally sponsored financial aid under Title IV of the Higher Education Act of 1965, 20 U.S.C. §§ 1070-1099d. In order to receive Title IV funds, schools must enter into “program participation agreements” with the Department of Education that condition eligibility for financial aid funds on the institution’s compliance with various enumerated requirements. 20 U.S.C. § 1094(a). One of those requirements is known as the Incentive Compensation Ban (ICB), which prohibits a school from paying incentives to recruiters and admissions personnel based on the number of students they enroll. Id. § 1094(a)(20); see also 34 C.F.R. § 668.14(b)(22).

Relators, two former employees who worked in Reiser’s admissions department, alleged that Keiser submitted more than 230,000 claims for a total of $1.2 billion in federal financial aid, all the while falsely certifying to the United States that Keiser was complying with the ICB. According to Relators, Keiser knew that its admissions personnel received incentive payments based on their success in securing enrollments. Even with that knowledge, Keiser expressly certified compliance with the ICB on multiple occasions and — more important to Relators’ theory of the case— Keiser caused its students to submit claims for financial aid to the government, all the while knowing that it was violating the ICB. Relying on the “implied false certification” theory, Relators asserted that Keiser was liable not only for its own express certifications, but also for the enormous volume of student-submitted claims.

B. The District Court’s Merits Decision

When Relators initially brought the FCA action, the United States declined to take over the case, which is the government’s prerogative under 31 U.S.C. § 3730(b)(2). Relators thus exercised their statutory right to pursue the case on behalf of the United States. Id. § 3730(b)(4)(B). After a bench trial, the district court handed Relators a victory that fell far short of their expectations. At the outset, the court agreed that Keiser was in violation of the ICB during the relevant period. But the court made three conclusions that severely limited Relators’ monetary victory.

First, the court rejected Relators’ theory that each student-submitted application for financial aid was an actionable FCA claim, reasoning that Reiser could not control the content, number, and submission of student financial-aid requests. Second, turning to the certifications that Reiser itself actually sent to the government, the court found that Reiser’s top policymakers did not become aware of the improper compensation scheme until November 20, 2009, after which it knowingly submitted only two certifications of compliance to the government. Reiser was thus liable for only those two false claitns, for which the district court awarded the minimum statutory penalty of $5,500 each — a total of $11,000. Third, the court rejected Relators’ argument that the government’s damages were equal to the value of all educational assistance paid to Reiser during the period covered by the false certifications. It reasoned that the Department of Education would not have demanded reimbursement for the already-paid Title IV funds even if Reiser had disclosed its ICB violations. Thus the government, according to the district court, suffered no financial damages at all. Instead, the government was entitled only to the nominal statutory penalties for the two express certifications sent by Reiser.

C. The United States Intervenes to Settle the Case

Relators appealed the district court’s decision to our Court. The United States, however, believed an appeal was risky because there was a chance the Eleventh Circuit would affirm the district court’s narrow interpretation of FCA liability, thereby impairing FCA enforcement efforts throughout the circuit. Thus, after Relators’ opening brief was filed in this Court, but before the United States moved to intervene in the qui tarn action, the United States struck a tentative deal with Reiser. The tentative settlement agreement provided that Reiser would pay the United States $835,000 — more than thirty times the amount recovered by Relators at trial — and the United States would in turn release Reiser from any further administrative or civil claims, and even more importantly, would also refrain from suspending or terminating Reiser’s eligibility for future Title IV funds based on Reiser’s challenged conduct in this case.

Relators’ merits appeal was still pending on this Court’s docket at the time, so the district court did not have jurisdiction to enter any orders. Thus, after reaching a tentative settlement with Reiser, the United States moved the district court for an indicative ruling stating that, if the district court reacquired jurisdiction on remand from this Court, the district court would permit the United States’ intervention and approve the proposed settlement as fair and reasonable. The district court agreed and issued an indicative order to that effect, reasoning that the United States could intervene as the real party in interest and that the settlement was fair and reasonable because it resulted in a recovery far exceeding the amount obtained by Relators at trial. In light of that indicative ruling, this Court then remanded the case back to the district court, whereupon the district court granted the government’s intervention motion.

In that same order, the district court also affirmed a magistrate judge’s determination that Relators were not entitled to discovery or a full-blown evidentiary hearing to probe the settlement deliberations and the government’s rationale for ending the case. Finally, the district court scheduled a statutorily mandated hearing to confirm that the proposed settlement was fair and reasonable. After the fairness hearing, the district court approved the settlement, and dismissed the case with prejudice.

D. Attorneys’ Fees and Costs

While these developments were unfolding, Relators also sought an award for attorneys’ fees and costs. After the bench trial, but before the settlement, Relators asked for over $1 million in attorneys’ fees and almost $76,000 in litigation costs. In light of Relators’ limited success at trial, the district court reduced the fee award to $60,000 for their efforts at trial, and trimmed the award of costs to $27,000. After the eventual settlement, which Rela-tors claimed was brought about by their appeal, they sought enhanced fees and costs based on the larger settlement figure that the United States had been able to procure with Reiser, as well as the additional fees and costs they incurred for their efforts on appeal. The district court denied that request on the ground that Relators objected to the settlement at every stage of the proceedings and should not reap the benefits of an outcome they so vigorously sought to prevent.

Relators now appeal all of these issues.

II. DISCUSSION

We resolve four principal issues on appeal: (1) whether the government was required to satisfy the FCA’s good-cause intervention requirement as set forth in 31 U.S.C. § 3730(c)(3) when it intervened for the sole purpose of settling the dispute; (2) whether the proposed settlement was “fair, adequate, and reasonable” under § 3730(c)(2)(B); (3) whether Relators were entitled to an evidentiary hearing and discovery to probe the government’s reasons for settling the case; and (4) whether the district court abused its discretion in awarding substantially reduced attorneys’ fees based on Relators’ limited success at trial and subsequent opposition to the settlement. On all issues, we affirm the district court.

A. The Good-Cause Intervention Requirement

The United States originally declined to proceed with the qui tarn action, which authorized Relators to litigate the case on behalf of the government. 31 U.S.C. § 3730(c)(3) (“If the Government elects not to proceed with the action, the person who initiated the action shall have the right to conduct the action.”). Relators were unsatisfied with the trial outcome, however, so they appealed. But the government was eager to avoid the risk that the Eleventh Circuit would affirm the ruling below, so it then stepped in and, while the case was pending on appeal, settled the case, thereby depriving Relators of their chance at reversal and a subsequent greater recovery upon remand. Relators argue that the district court erred in granting the government’s motion to intervene for the purpose of settling the case.

Relators rely on 31 U.S.C. § 3730(c)(3), which provides: “When a [relator] proceeds with the action, the court, without limiting the status and rights of the [relator], may nevertheless permit the Government to intervene at a later date upon a showing of good cause.” 31 U.S.C. § 3730(c)(3) (emphasis added). Relators insist that the United States lacked “good cause” to intervene here. We reject this contention. We hold that, in this case, the United States did not need to satisfy the good-cause intervention requirement for qui tam actions under 31 U.S.C. § 3730(c)(3) because that subsection applies only when the government intervenes for the purpose of actually proceeding with the litigation — not when it is stepping in only for the purpose of settling and ending the case. Because intervention was not required, we need not concern ourselves with whether the requirements of § 3730(c)(3), which addresses late intervention by the government for the purpose of continuing the litigation, have been met.

A straightforward reading of the text supports this conclusion. First, subsection (b)(2) expressly links intervention to the government’s decision to “proceed with the action.” § 3730(b)(2) (“The Government may elect to intervene and 'proceed with the action....” (emphasis added)). Second, in subsections (c)(2)(A) and (B), the statute spells out the circumstances in which the government may settle or dismiss a qui tam case, and neither subsection conditions the government’s rights on formally intervening in the case. Instead, they provide in unequivocal terms that “the Government may settle [or dismiss] the action with the defendant notwithstanding the objections of the person initiating the action.” § 3730(c)(2)(A), (B) (emphasis added). In the context of dismissals, the court need only “provide[] the [relator] with an opportunity for a hearing,” § 3730(c)(2)(A); and with settlements, the court must “determine!], after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances,” § 3730(c)(2)(B). We decline to import the good-cause intervention requirement from subsection (c)(3) into these provisions which specifically govern dismissals and settlements.

Our sibling circuits have reached the same conclusion. The D.C. Circuit held in United States ex rel. Schweizer v. Oce N.V. (Schweizer) that the government does not have to intervene before settling a qui tam action because “intervention is necessary only if the government wishes to ‘proceed with the action.’ ” 677 F.3d 1228, 1233 (D.C. Cir. 2012) (internal quotation marks omitted). The Fifth Circuit also reasoned that, even when the government does not intervene, it “may settle a case over a relator’s objections if the relator receives notice and [a] hearing of the settlement.” Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749, 754 (5th Cir. 2001) (en banc).

And in the closely related context of dismissals, other circuits have also declined to require good cause or formal intervention. For instance, the Tenth Circuit in Ridenour v. Kaiser-Hill Co. focused on the plain statutory language, noting that it could “identify nothing in the language of [the subsection on dismissals] to suggest the authority of the Government to dismiss a qui tam action is dependent upon prior intervention in the case.” 397 F.3d 925, 933 (10th Cir. 2005); see also Swift v. United States, 318 F.3d 250, 251-52 (D.C. Cir. 2003) (finding intervention necessary “only if the government wishes to ‘proceed with the action’ ” and “[e]nding the case by dismissing it is not proceeding with the action”); Riley, 252 F.3d at 753 (5th Cir.) (noting that “the government retains the unilateral power to dismiss an action ‘notwithstanding the objections of the person’ ” (quoting Searcy v. Philips Elecs. N. Am. Corp., 117 F.3d 154, 160 (5th Cir. 1997))).

Thus, consistent with the holdings of other circuits, we hold that the United States is not required to satisfy the good-cause intervention standard in § 3730(c)(3) when settling a qui tam action brought under the FCA.

B. Whether the Proposed Settlement Was “fair, adequate, and reasonable”

The United States “may settle the action with the defendant ... if the court determines, after a hearing, that the proposed settlement is fair, adequate, and reasonable under all the circumstances.” 31 U.S.C. § 3730(c)(2)(B) (emphasis added). The United States and Reiser struck a deal providing that Reiser would pay the government $335,000 and the government would release Reiser from any further claims and preserve Reiser’s eligibility for future Title IV funds. The district court, after a hearing, determined this proposed agreement was “fair, adequate, and reasonable” under the statute. Relators argue that the settlement was unreasonable because they were likely to win appellate reversal and thereafter secure a potentially enormous monetary recovery.

In evaluating the fairness and reasonableness of the settlement, we first decide the proper standard for reviewing proposed settlements between the United States and an FCA defendant. We then turn to the substance of this particular agreement and conclude that it was “fair, adequate, and reasonable.”

1. The proper standard for evaluating FCA settlements

Relators ask us to review the proposed FCA settlement under the same rubric used to evaluate proposed class settlement between private parties under Fed. R. Civ. P. 23. Some district courts have done just that. See United States ex rel. Schweizer v. Oce N. Am., Inc., 956 F.Supp.2d 1, 10-11 (D.D.C. 2013); United States ex rel. Res-nick v. Weill Med. Coll. of Cornell Univ., No. 04 CIV. 3088 (WHP), 2009 WL 637137, at *2 (S.D.N.Y. Mar. 5, 2009) (unreported); United States ex rel. Nudelman v. Int’l Rehab. Assocs., Inc., No. Civ.A. 00-1837, 2004 WL 1091032, at *1 n.1 (E.D. Pa. May 14, 2004) (unreported). Rule 23(e)(2) uses almost the identical language found in 31 U.S.C. § 3730(c)(2)(B). It provides that a class settlement must be “fair, reasonable, and adequate” to protect the interests of absent class members. Fed. R. Civ. P' 23(e)(2). In reviewing the fairness of class settlements in the Eleventh Circuit, a court considers the likelihood of success at trial and the range of possible recovery, as well as the complexity and expense of the litigation and the stage of the proceedings at which the settlement is reached, among other factors. See, e.g., Day v. Persels & Assocs., LLC, 729 F.3d 1309, 1326 (11th Cir. 2013). In general, we analyze these factors without deference to the parties settling the dispute because the purpose of our judicial review is to protect absent class members from an unfair bargain. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 623, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (noting the review of class settlements “protects unnamed class members ‘from unjust or unfair settlements’ ...” (quoting 7B Charles Alan Wright et al., Federal Practice and Procedure § 1797 (2d ed. 1986))).

But a qui tarn, FCA suit materially differs from class-action litigation between private parties for two reasons. First, unlike members of a plaintiff class, a qui tam relator has suffered no invasion of his own rights. See Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 772-73, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (analyzing whether FCA rela-tors have Article III standing when they have suffered no legally cognizable injury themselves). The relator instead brings the qui tam claim as the assignee of the United States’ claim, with the government being the real party in interest to FCA actions. See id. at 773-74, 120 S.Ct. 1858; see also United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 934-35, 129 S.Ct. 2230, 173 L.Ed.2d 1255 (2009); Timson v. Sampson, 518 F.3d 870, 873 (11th Cir. 2008) (per curiam). So, unlike with class-action settlements, when the government settles a qui tam case, it is agreeing to compromise with respect to its own injuries only, not those of the relator or other absent parties.

Second, also unlike with private plaintiffs, the government’s interests are not confined to maximizing recovery against the defendant. The United States may want to consider whether the maximum recovery is proportional to the seriousness of the misconduct. It may also wish to consider public policy consequences or political ramifications. Moreover, it could conclude that limited prosecutorial resources are not worth spending on continued monitoring of the case, which it often must do even when the relator is proceeding with the action. These considerations are entirely absent when evaluating a proposed class settlement between private parties. Thus, we conclude that the Rule 23 standard for class settlements between private parties is not the proper framework for evaluating FCA settlements between the government and the defendant.

Unlike reviewing class-action settlements, in the FCA context there must be considerable deference to the settlement rationale offered by the government. The need for deference arises out of the loose similarity between government-obtained FCA settlements and decisions by the government not to prosecute or enforce an administrative remedy, which are presumptively unreviewable. See, e.g., Heckler v. Chaney, 470 U.S. 821, 832, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). For that reason, some circuits have said the government may dismiss a relator’s claim so long as dismissal is rationally related to a valid government purpose. See Ridenour v. Kaiser-Hill Co., 397 F.3d 925, 936 (10th Cir. 2005); United States ex rel. Sequoia Orange Co. v. Baird-Neece Packing Corp., 151 F.3d 1139, 1145 (9th Cir. 1998).

Relators are correct, however, to point out that settlement under the FCA is treated differently than dismissal. When the government seeks to dismiss the FCA action, the statute does not prescribe a judicial determination of reasonableness, see 31 U.S.C. § 3730(c)(2)(A); whereas when the government wants to settle a qui tam claim, the court must find the settlement is “fair, adequate, and reasonable,” § 3730(c)(2)(B). See United States ex rel. Schweizer v. Oce N.V., 677 F.3d 1228, 1233-34 (D.C. Cir. 2012) (offering a thorough analysis of why FCA settlements warrant more rigorous judicial review than dismissals). Because of this differential statutory treatment, government-obtained FCA settlements do not receive the same level of deference that applies to dismissals.

That being said, some limited deference is still warranted. The United States’ decision to end a case through settlement is similar enough to a decision to dismiss the case — a choice committed to the discretion of the Executive Branch— that this Court must afford some degree of respect to the government’s settlement rationale. At the same time, given the FCA’s mandate that we review settlements for fairness, we cannot just rubber stamp the government’s justifications. In light of these principles, our review of proposed settlements must account for the reasonableness of the rationale offered by the government as well as the potentially prejudicial effect on the relator. Thus, we ask whether the government has advanced a reasonable basis for concluding the settlement is in the best interests of the United States, and whether the settlement unfairly reduces the relator’s potential qui tam recovery.

With this in mind, we proceed to evaluate the proposed settlement in this case.

2. The proposed settlement is “fair, adequate, and reasonable”

We conclude that the proposed settlement is “fair, adequate, and reasonable.” It secures for the United States a recovery that is thirty times larger than the district court’s award at trial — that means higher recovery for both the United States and Relators. See 31 U.S.C. § 3730(d) (establishing a qui tam relator’s share as a variable percentage of the proceeds). From Re-lators’ point of view, however, that is cold comfort. In their view, the potential recovery of billions of dollars is so large that the “expected value” — potential recovery multiplied by the odds of obtaining it — dwarfs the $335,000 settlement figure, rendering the government’s settlement decision unreasonable.

But unlike with private actors, the government’s decision to settle a case does not turn solely on whether settlement is most likely to maximize the monetary recovery. As discussed earlier, the government may conclude that settling the case imposes liability reasonably proportionate to the gravity of the misconduct. Or it might wish to avoid expending further resources in monitoring the case as it proceeds through the appellate and (if remanded) trial process. And most importantly for the United States here, the government must be wary of the precedential impact of a potentially adverse appellate decision. If the Eleventh Circuit affirmed the district court’s restrictive reading of the FCA here, the government would be limited in its enforcement efforts all around the Circuit. That enforcement burden would ultimately translate into lower recoveries across the board.

The government was not unreasonable in hedging its bets in this regard. Much is made in the parties’ briefs about whether Relators would have succeeded on appeal, and we offer no comment on the merits of that debate. But it is evident that, at the very least, Relators’ case hinged on a proposition that is not settled in this Circuit: whether an educational institution that has falsely certified compliance with federal payment conditions can be liable under the FCA for financial-aid requests submitted by its students. Winning the bulk of Relators’ claimed penalties and alleged damages relied crucially on being able to attribute the 230,000 student-submitted claims to Reiser, even though Reiser did not control the content or submission of those claims. But that is an open question in this Circuit, so the United States did not act unreasonably in preferring the certainty of a settlement to the uncertainty of an appeal.

The United States has thus advanced a reasonable basis for concluding this proposed settlement furthers its best interests without unfairly reducing Relators’ qui tam recovery (in fact, it guarantees a higher recovery for them). It is thus “fair, adequate, and reasonable.” We therefore find the proposed settlement satisfies § 3730(c)(2)(B).

C. Entitlement to an Evidentiary Hearing and Discovery

The FCA entitles a qui tam relator to a fairness hearing as of right when the United States proposes a settlement with an FCA defendant. 31 U.S.C. § 3730(e)(2)(B). That statutory entitlement, however, does not include the right to unearth new evidence at the hearing to attack the proposed settlement. Instead, the statutory hearing provision “serves a more limited purpose of forcing the government to provide some reasoning behind its decision to settle the case and giving the plaintiff-relators an opportunity to direct the court’s attention to facts or allegations that would suggest the settlement was” unreasonable. United States ex rel. Schweizer v. Oce N. Am., Inc., 956 F.Supp.2d 1, 11 (D.D.C. 2013). In other words, the relator is afforded an opportunity to highlight existing evidence of impropriety or unreasonableness.

To conclude that the statute mandates the right to develop new evidence would risk ballooning the FCA settlement hearing into a mini-trial on the merits. The government would have to explain why it considered an appellate defeat possible in light of the facts and law governing the case at hand, the relator would then dispute that assessment, and a fight over the merits would ensue. But the United States often settles a case precisely to avoid such a fight. That “would put the cart before the horse, in essence making trial a precondition of settlement.” Id To avoid that result, we construe the statutory right to a hearing to include no more than a right to highlight existing evidence and make arguments, based on that evidence, that the proposed settlement is unreasonable or improper. That is all the statute compels.

A court still retains, however, the inherent equitable power to give more than the FCA minimally commands. A district court could give a qui tam relator the opportunity to present and develop new evidence when he shows a substantial and particularized need for such a hearing. A relator could, for example, potentially make that showing by presenting a color-able and non-speculative claim that the United States has neglected to investigate the allegations, or that its settlement decision was motivated by improper considerations, such as collusion or bribery. We stress that it is the relator’s burden to demonstrate this substantial and particularized need — and absent such a showing the district court ordinarily will not afford an evidentiary hearing.

In this case, the district court denied Relators’ request for an evidentiary hearing. We affirm that denial. Relators have not demonstrated a substantial or particularized need to develop new evidence because there is no colorable and non-speculative claim that the United States failed to investigate the allegations or acted with improper motives. Relators did offer several reasons why they have met that burden, but we reject those arguments as insufficient.

First, Relators repeat their contention that the government’s settlement rationale was patently unreasonable. Therefore, in their view, the offered reason for the settlement must be a pretext for some ulteri- or motive. But that cannot be so. As we have already explained, the government’s rationale was reasonable. So we decline to infer a nefarious motive from the facial reasonableness of the government’s settlement rationale.

Second, Relators take issue with then-exclusion from the settlement negotiations. Why would the United States have kept them in the dark about the ongoing settlement talks, Relators argue, if it were not hiding something? This allegation goes too far. The government explained that it excluded Relators from its direct negotiations with Keiser because Relators’ confidence of appellate reversal and adamant demand for billions of dollars would have impeded productive settlement negotiations. In any event, the United States did invite Relators’ counsel to meet and discuss the proposed settlement after a tentative deal was reached with Keiser. Rela-tors’ counsel accepted the invitation and explained his objection to the notion of settling the case while on appeal. Nevertheless, the United States decided to go forward with its settlement with Keiser. Relators were thus hardly kept in the dark such that we could plausibly infer improper motives by the government.

Third, Relators allege that the United States did not read their opening brief on appeal before settling the ease. Thus, in their view, the government could not have been adequately informed about the likelihood of success on appeal. But the United States had been monitoring the case closely while it proceeded through trial — it knew the facts and made its own informed conclusion about the law. In any event, before the government submitted the proposed settlement to the district court, the government lawyer responsible for the final settlement decision did read Relators’ opening appellate brief. It thus stretches credulity to believe that the United States made so uninformed a decision that Rela-tors are entitled to probe further with an evidentiary hearing.

In addition to the opportunity to develop evidence at a hearing, Relators requested discovery into the government’s settlement rationale. They propounded interrogatories inquiring about each demand and offer made during negotiation of the proposed settlement, the government’s evaluation of Relators’ likelihood of success on appeal, the reasons the United States filed Statements of Interest after trial, and the identities of the government lawyers who participated in various aspects of the case. The district court shielded the United States from these requests, and we affirm that decision.

The FCA does not expressly entitle the objecting qui torn relator to discovery at all. See 31 U.S.G. § 3730(c)(2)(B). Further, much like an evidentiary hearing, discovery into the government’s settlement rationale risks converting the court’s evaluation of the settlement’s reasonableness into a mini-trial on the merits. See Schweizer, 956 F.Supp.2d at 11. That is generally antithetical to the government’s prerogative to end a qui tarn case brought in its own name.

That being said, as with the evidentiary hearing, a district court has the equitable power to compel discovery when the relator demonstrates a substantial and particularized need for it. It is the relator’s burden to come forward with a colorable and non-speculative claim that the government’s settlement rationale is improper and that further disclosures are needed. But as earlier explained, Relators have come forward with no colorable and non-speculative claim of improper motive or inadequate investigation by the United States. Thus, the district court did not err in declining to compel discovery in this case.

D. Attorneys’ Fees and Costs

After trial, Relators sought over $1 million in attorneys’ fees and almost $76,000 in litigation expenses. The district court determined, however, that Relators’ limited trial victory warranted an across-the-board reduction in their total fee award to $60,000. Relators now object to that reduction. Reviewing the award for abuse of discretion, see Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1351 (11th Cir. 2008), we reject most of Relators’ arguments for reversal as meritless. But one particular contention warrants further discussion. They argue that the amount of recovery is not an appropriate consideration — or at least not a significant consideration — in awarding attorneys’ fees for qui tarn FCA cases. We disagree.

In Hensley v. Eckerhart, a civil-rights case involving attorneys’ fees awarded under 42 U.S.C. § 1988, the Supreme Court held that the lodestar amount — which is “[t]he product of reasonable hours times a reasonable rate” — may be adjusted downward depending on the “results obtained.” 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (internal quotation marks omitted). When the prevailing party achieved only a “partial or limited success,” the lodestar figure “may be an excessive amount” because “the most critical factor is the degree of success obtained.” Id. at 436, 103 S.Ct. 1933 (emphasis added). Moreover, when the district court “reduced] the award to account for the limited success[,] [t]he court necessarily has discretion in making this equitable judgment.” Id. at 436-37, 103 S.Ct. 1933.

The Supreme Court then decided Farrar v. Hobby, which relied on Hensley in holding that a court may reduce the lodestar amount when the plaintiff won only nominal damages, i.e., when the plaintiff secured only a “technical” victory by proving a legal violation but suffered no actual damages. 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). “In a civil rights suit for damages,” the court reasoned, “the awarding of nominal damages also highlights the plaintiffs failure to prove actual, compensable injury.” Id. at 115, 113 S.Ct. 566. In light of this rationale, Farrar seems especially applicable to Relators’ case here because Relators were not able to prove Reiser caused any actual damages — instead they proved that Reiser knowingly submitted two false claims, which entitled them to an award of only statutory penalties.

In spite of this direction from the Supreme Court, Relators ask us to limit Hensley and Farrar to claims for private damages — not FCA claims which involve a suit to recover from fraud on the public fisc. See Hensley, 461 U.S. at 440, 103 S.Ct. 1933 (“[P]laintiff s success is a crucial factor in determining the proper amount of an award of attorney’s fees under U.S.C. § 1988.” (emphasis added)); Farrar, 506 U.S. at 114, 113 S.Ct. 566 (“Where recovery of private damages is the purpose of civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought.” (emphasis added) (internal quotation marks omitted)). And Rela-tors say there is a good public-policy reason not to extend the Hensley-Farrar principle to FCA cases because that would deter potential whistleblowers and their attorneys from bringing qui tarn cases that might result in only nominal or a small amount of damages. See S. Rep. 99-345, at 29 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5294 (explaining the importance of attorneys’ fees in FCA qui tarn actions).

But Relators offer no authority that declines to apply Hensley and Farrar to FCA claims. In fact, although we are not bound by it, we have already held that the amount of recovery is relevant to the fee award in FCA cases. See United States v. Patrol Servs., Inc., 202 Fed.Appx. 357, 359 (11th Cir. 2006) (unpublished) (“The district court may adjust the amount depending on a number of factors, including the quality of the result and representation of the litigation.”). We reject Relators’ plea to carve out an exception to the Hensley-Farrar principle for FCA cases. Relators contend that qui tam FCA claims are different because such claims serve a substantial public interest, but it is not clear why that makes them different from civil-rights cases which also serve an important public need — or even why that alleged difference should matter for the award of attorneys’ fees. Accordingly, we affirm the district court’s reliance on the degree of success in awarding attorneys’ fees in this case.

That brings us to one final issue. Relators contend that the district court abused its discretion in reducing the lodestar amount by over ninety-five percent to reach $60,000. That reduction, Relators insist, was outside the district court’s admittedly broad range of discretion under our recent case, Yellow Pages Photos, Inc. v. Ziplocal, LP (Yellow Pages), 846 F.3d 1159 (11th Cir. 2017) (per curiam). In that case, we reversed a fee award when the district court reduced the lodestar amount by more than ninety percent based on the plaintiffs limited success at trial. Id. at 1164. But we did so for a reason that does not apply in our case today.

In Yellow Pages, the district court adopted a “strictly mathematical approach” in arriving at its over ninety-percent reduction figure, which the Supreme Court has disfavored. Id. (citing Hensley, 461 U.S. at 435 n.11, 103 S.Ct. 1933; City of Riverside v. Rivera, 477 U.S. 561, 574, 106 S.Ct. 2686, 91 L.Ed.2d 466 (1986)). The district court there merely divided the damages awarded at trial by the maximum damages sought, and then mechanically applied that fraction to the lodestar amount. Id. at 1164-65. That did not happen here. The district court expressly considered the “policy considerations on all sides (including the encouragement of whistle-blowers, the costs incurred by [Reiser] of defending the lawsuit and con siderations of judicial economy), and the fact that the suit may have had a positive impact on [Reiser’s] conduct.” This approach was consistent with this Court’s opinion in Yellow Pages, which made clear that a reduction from a rote application of an arithmetic formula is not permissible. The district court considered all of the circumstances, including the public benefit Relators served. And under our precedent, a public benefit does not “foreclose a reduction in the lodestar amount.” Popham v. City of Rennesaw, 820 F.2d 1570, 1580 (11th Cir. 1987). If it did, then “Hensley would be incomprehensible because a reduction is attorney’s fees ... would never be warranted.” Id. On this record, we hold the district court did not abuse its discretion in awarding fees and costs.

III. CONCLUSION

We AFFIRM the district court on all issues.

      . According to this theory of FCA liability, the submission of a claim for payment may "impliedly certify” compliance with the government’s payment conditions. See Universal Health Servs., Inc. v. United States ex rel. Escobar, - U.S. -, 136 S.Ct. 1989, 1999-2001, 195 L.Ed.2d 348 (2016).

      . On February 9, 2010, Reiser sent an "Electronic Certification” to the government that falsely certified its compliance with Title IV funding conditions. And on March 5, 2010, Reiser submitted a "Compliance Audit” that certified the same.

      . Intervention under § 3730(c)(3) requires a showing of good cause. According to the United States, it moved for intervention "in an abundance of caution, and to remove any potential procedural impediment to effecting the settlement and dismissing the case over relators' objections.” U.S. Br. at 35. However, the government’s primary argument, with which we agree, is that it can settle this case without resorting to formal intervention under § 3730(c)(3).

      . Relators believe Keiser is liable for the submission of more than 230,000 false claims, each receiving a statutory penalty of up to $11,000. 31 U.S.C. § 3729(a)(1); 28 C.F.R. § 85.3(a)(9). That results in a total of around $2.53 billion. Add to that $1.2 billion in damages allegedly suffered by the government (according to Relators), which gets trebled under the FCA, § 3729(a)(1), for a total of $3.6 billion. All of that together amounts to about $6.13 billion. That amount is significant by any standards, although Relators did suggest before settlement that they would not ultimately seek that full amount of damages and penalties.

      . United States ex rel. McCoy v. Cal. Med. Review, Inc., 133 F.R.D. 143 (N.D. Cal. 1990) does not hold to the contrary. The district court in McCoy questioned how a relator could challenge an FCA settlement’s fairness without the opportunity to probe the government's rationale. Id. at 149. But as we explain below, we do not foreclose every effort to present evidence at a hearing — or even to obtain limited discovery. As we hereafter explain, a district court may order such measures when the relator demonstrates a substantial and particularized need for them.

      . A variant of this test was articulated by the Judiciary Committee of the U.S. Senate in its committee report on the proposed 1986 amendments to the FCA, which included this fairness hearing provision. See S. Rep. 99-345, at 26 (1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5291.

      . Relators make additional arguments about why the government’s argument is pretextual and the need for further evidence. We reject these as meritless.

      . When a relator meets that burden, he may be afforded limited discovery to "effectuate the goal of allowing [him] meaningful participation in the fairness hearing without unduly burdening the United States or the defendants or causing unnecessary delay.” McCoy, 133 F.R.D. at 149.

      . The district court also reduced the litigation expenses to $27,000, which Relators challenge. Finding no error in that regard, we also affirm the district court on that issue.

      . When Relators' appeal of the merits decision prompted the government's intervention and settlement, Relators sought a renewed award that incorporated their additional fees and costs incurred on appeal. But the district court declined, reasoning that Relators should not be able to reap the benefit of an outcome (the settlement) they so vigorously opposed. Relators challenge that denial, but based on our precedent we cannot say the district court abused its discretion in reaching its conclusion. We therefore affirm on that issue.


source: Caselaw Access Project

author: ED CARNES, Chief Judge:

license: Public Domain

text:
    Barbara BOBO, et al., Plaintiffs, Melissa Ann Bobo, co-personal representative of the Estate of Barbara Bobo, deceased, Shannon Jean Cox, Plaintiffs-Appellees, v. TENNESSEE VALLEY AUTHORITY, Defendant-Appellant.
    No. 15-15271
    United States Court of Appeals, Eleventh Circuit.
    April 26, 2017

      Misty A. Farris, Lisa White Shirley, Jay E. Stuemke, Christopher J. Panatier, Rachel Perkins, Jeffrey B. Simon, Charles E. Soechting, Jr., Simon Greenstone Panatier Bartlett, DALLAS, TX, Rebekah Keith McKinney, Watson McKinney, LLP, HUNTSVILLE, AL, for Plaintiffs-Appel-lees.
    James S. Chase, Edward C. Meade, Edwin Warren Small, Tennessee Valley Authority, Office of General Counsel, KNOXVILLE, TN, for Defendant-Appellant.
    Before ED CARNES, Chief Judge, JORDAN, Circuit Judge, and LAMBERTH, District Judge.

       Honorable Royce C. Lamberth, United States District Judge for the District of Columbia, sitting by designation.

   ED CARNES, Chief Judge:

In return for the loan of life, we each owe God a death. Payment in full is a nonnegotiable term of the debt, but the timing and circumstances in which remittance is made varies. The question that lies at the bottom of this case is whether the Tennessee Valley Authority caused Barbara Bobo to die sooner and suffer more in the course of dying than she otherwise would have. The legal issues are more complicated, as legal issues often are, but that question is what the case is about, why it is here.

Barbara Bobo’s husband, James “Neal” Bobo, worked for the TVA for more than twenty-two years. While at TVA, he was diagnosed with asbestos-induced lung cancer and in 1997 died from a heart attack. Mrs. Bobo was diagnosed with malignant pleural mesothelioma in 2011. She underwent thoracentesis, in which a long needle was used to remove two liters of fluid from the space between the lining of the outside of her lungs and the wall of her chest. She also underwent multiple rounds of chemotherapy, which she referred to as the “Red Devil,” because of the side effects she experienced from it — side effects which included, among other things, pain when drinking fluids and also spitting up raw flesh. In June 2012 her doctor performed a pleurectomy on Mrs. Bobo, removing one of her ribs and the pleural lining of one of her lungs.

She died from mesothelioma in 2013. Before she died, she filed a lawsuit claiming that TVA’s negligence resulted in her being exposed to “take-home” asbestos when she washed her husband’s work clothes over the years. After a three-day bench trial, the district court entered judgment against TVA. This is TVA’s appeal.

I.

We incorporate by reference the facts of this case that are set out in the district court’s thorough and well-reasoned opinion, Bobo v. Tennessee Valley Authority, 138 F.Supp.3d 1285 (N.D. Ala. 2015), although for the reader’s convenience, we will repeat some of the more significant facts here. From 1975 until 1997, Mr. Bobo worked as a laborer and labor foreman for TVA, primarily at its Browns Ferry Nuclear Plant in Athens, Alabama. His duties included sweeping up insulation residue, which generated dust that would settle onto his clothing. Most of that insulation was white. At times Mr. Bobo worked in a radiologically contaminated area, referred to as a “C-Zone,” where he was required to wear protective clothing. Other times he worked in his own clothes, which typically were clean when he left for work but dirty and dusty when he returned home.

One of Mr. Bobo’s co-workers testified that Mr. Bobo often cleaned up white pipe insulation, and one contractor who installed insulation at Browns Ferry testified that the insulation contained asbestos, and that most of the asbestos insulation was white. A TVA maintenance director also testified that all of the asbestos insulation that was removed from Browns Ferry during TVA’s asbestos abatement procedures was white. Based on the witnesses’ testimony, along with TVA documents confirming that asbestos products were used throughout the plant, the district court found that the “preponderance of the evidence ... established that a significant quantity of asbestos fibers accumulated on the clothing worn by Mr. Bobo when he swept insulation residue in the non-C-Zone areas” at Browns Ferry.

During the twenty-two years her husband worked for TVA, Mrs. Bobo washed his work clothes twice each week, an estimated two thousand times in all. Before putting those clothes in the washing machine, she would shake the dust off of them. She testified in her deposition that there was so much dust when she shook out the clothes the laundry room would appear “foggy.” She would inhale some of that dust. Based on her testimony and other evidence, the district court found that Mr. Bobo’s work clothes were covered with asbestos fibers and that it was “more likely than not that [she] unknowingly inhaled dangerous concentrations of asbestos fibers as she ‘shook out’ ” his work clothes.

Before and then during the time of Mr. Bobo’s employment at TVA (from 1975 to 1997), the Occupational Safety and Health Administration (OSHA) issued federal regulations, and TVA established internal procedures addressing asbestos exposure. The Occupational Safety and Health Act of 1970 required federal agencies like TVA to establish and maintain occupational health and safety programs consistent with OSHA’s standards. See 29 U.S.C. § 668(a). In the years following the enactment of that law, OSHA began issuing regulations to minimize asbestos exposure that included maximum exposure limits, monitoring and testing procedures, and safety protocols. One regulation required employers to provide employees who would be exposed to asbestos above permissible limits with protective clothing, changing rooms, and separate lockers in order to prevent their work clothes from contaminating their “street clothes.” The same regulation also required employers like TVA to launder asbestos-contaminated clothing in a way that would “prevent the release of airborne asbestos fibers in excess of the exposure limits.” OSHA’s asbestos regulations became more stringent over time.

TVA adopted internal policies similar to the OSHA regulations. For example, in 1978 TVA’s Nuclear Power Division adopted a safety manual which, among other things, required that employees exposed to airborne concentrations of asbestos be provided with two separate lockers. It mandated that: “One locker shall be used for street clothes and must not be contaminated with asbestos.” Browns Ferry Standard Practice 14.45 also provided that “[ejmployees exposed to airborne concentrations of asbestos shall wear an approved respirator and protective overalls. ...” The district court found that this requirement applied “to any quantity of asbestos exposure” because it was not explicitly confined to “concentrations of asbestos dust in excess of the permissible limits,” as other requirements in Standard Practice 14.45 were. The court also found that, in violation of the company’s own mandatory directives, “TVA did not provide laborers with protective clothing, separate lockers, or separate showers, unless they worked in a C-Zone.”

II.

After Mrs. Bobo was diagnosed with malignant pleural mesothelioma in 2011, she sued TVA and eight other defendants in federal court, alleging that take-home asbestos exposure caused her illness. She brought claims based on, among other things, strict liability, premises liability, negligence, breach of warranty, and conspiracy. At various points in the proceedings, Mrs. Bobo stipulated to the dismissal of her claims against the eight other defendants. The case ultimately proceeded to trial against TVA on her negligence claim.

After Mrs. Bobo died from mesothelio-ma in 2013, the court substituted her two daughters, who are serving as personal representatives of her estate, as plaintiffs. Following a three-day bench trial, the court held TVA liable based on three analytical steps. First, it concluded that, under Alabama law, TVA owed Mrs. Bobo a duty of care to prevent take-home asbestos exposure because, among other reasons, the risk of harm was reasonably foreseeable. Second, the court found that TVA breached that duty by failing to enforce mandatory safety protocols that were designed to prevent asbestos from leaving Browns Ferry. Third, it concluded that exposure to asbestos attributable to TVA was a “substantial factor” that contributed to Mrs. Bobo’s development of mesothelioma.

The district court initially awarded the plaintiffs damages of $3,000,000 for pain and suffering, plus $547,008.93 in medical expenses, less an offset of $136,176.37, for a total amount of $3,410,832.56. The court later amended the judgment in light of post-trial settlements, which resulted in a final total damages award of $3,391,420.31.

III.

TVA challenges the district court’s judgment on multiple grounds. To begin with, it contends that the district court erred in two respects regarding the evidence used to support the findings in favor of Mrs. Bobo. TVA argues that the district court should not have considered Mr. Bobo’s state court deposition because it was not part of the record of this federal trial. TVA also argues that the court abused its discretion in relying on expert testimony the plaintiffs offered to support a finding that exposure to asbestos was the proximate cause of Mrs. Bobo’s mesothelioma.

A.

We start with TVA’s argument that the district court erred in considering the state court deposition testimony of Mr. Bobo to support its finding that he had been exposed to asbestos while employed by TVA. The court had ruled before trial that deposition testimony was inadmissible but then considered that testimony at trial. Assuming that was an abuse of discretion, see, e.g., United States v. Bradberry, 466 F.3d 1249, 1253 (11th Cir. 2006), it was harmless because there was plenty of other evidence proving the same fact.

At his deposition, Mr. Bobo testified about his exposure to asbestos. He explained that he was directed to assist employees who installed insulation materials made from (or that contained) asbestos fibers; that he was directed to sweep up insulation residue, which generated airborne dust containing asbestos fibers; and that he was present when insulators mixed refractory cement, a process which generated asbestos fibers.

TVA admitted that “asbestos-containing materials present at [Browns Ferry] at the commencement of [Mr. Bobo’s] TVA work period were purchased prior to [his] TVA work period and that additional asbestos-containing materials for use at [Browns Ferry] were purchased between 1975 and 1980,” which were five of the years he worked there. A number of witnesses testified that white asbestos insulation was used at the Browns Ferry plant, and a coworker of his testified that Mr. Bobo routinely swept up white insulation residue. TVA’s 1967 safety manual stated that the “[d]usts most likely to be encountered” included asbestos, and that asbestos “[exposures occur during application and removal of insulation.” Because Mr. Bobo’s state court deposition testimony was simply cumulative of abundant evidence that was admitted, the district court’s consideration of it was harmless. See L & C Marine Transp., Ltd. v. Ward, 755 F.2d 1457, 1463 (11th Cir. 1985). Put somewhat differently, based on the evidence that was properly considered, the district court did not err in finding that, more likely than not, Mr. Bobo had been exposed to asbestos at Browns Ferry.

B.

TVA next argues that the district court erred in admitting the testimony of Dr. Eugene Mark, the plaintiffs’ expert, who testified about the proximate cause of Mrs. Bobo’s illness. TVA asserts that his opinion was unreliable. We review only for abuse of discretion a district court’s rulings regarding the admissibility of expert testimony and the reliability of an expert opinion. United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004).

TVA mischaracterizes Dr. Mark’s opinion as essentially that “any exposure” to asbestos is a substantial factor in causing mesothelioma, which it says makes his opinion scientifically unreliable. That is not what he said. He testified there is no evidence that there is a threshold level of exposure below which there is zero risk of mesothelioma, and that all “significant” exposures to asbestos “contribute to cause mesothelioma.” But he also stated that he would not consider an isolated exposure to a single fiber of asbestos to be “special” or “significant.”

Dr. Mark testified about the significance of the “dose-response relationship” and explained the difficulty with quantifying exposure in asbestos cases. He talked about the problem with quantifying the exact moment when an exposure becomes “significant,” explaining that: “[Y]ou cannot talk about one fiber, you cannot talk about one minute of exposure because the minutes add up. And a person who has a job for 20 years, it doesn’t prove useful to talk about the exposure last May 1st.” While Dr. Mark testified that all significant exposures to asbestos contribute to causing mesothelioma, he did not say that any exposure to asbestos is a substantial factor in causing mesothelioma, or even that every significant exposure causes it. Our predecessor court accepted similar expert testimony as reliable. See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1083 (5th Cir. 1973) (stating that medical testimony at trial established that “the effect of [asbestosis] may be cumulative since each exposure to asbestos dust can result in additional tissue changes”).

Not only that but Dr. Mark’s opinion was also based on an extensive knowledge of the facts in this case and was supported by scientific literature. He testified about scientific studies that recognize laundering asbestos-contaminated clothing as one mode of asbestos exposure, as well as studies that suggest a link between take-home asbestos exposure and mesothelioma. He explained the Helsinki Criteria, which assist doctors and scientists in determining whether asbestos exposure caused a particular person’s disease. And he based his opinion about proximate cause on a thorough review of the scientific literature and the facts in the record.

Dr. Mark’s opinion was that Mrs. Bobo’s twenty-two years of laundering her husband’s TVA work clothes exposed her to asbestos in an amount that was a substantial factor contributing to her mesothelio-ma. The district court did not abuse its discretion in admitting Dr. Mark’s expert testimony, particularly given that the court, not a jury, was serving as the fact-finder. See United States v. Brown, 415 F.3d 1257, 1268-69 (11th Cir. 2005) (“[Limits on the admission of expert testimony] are even more relaxed in a bench trial situation, where the judge is serving as factfinder.... There is less need for the gatekeeper to keep the gate when the gatekeeper is keeping the gate only for himself.”).

IV.

TVA contends that the district court erred in determining that, under Alabama law, TVA had a duty to avoid exposing Mrs. Bobo to take-home asbestos. That is a determination of law, which we review de novo. Price v. Time, Inc., 416 F.3d 1327, 1334 (11th Cir. 2005). A federal court’s goal in deciding a state law issue is to resolve it in the same way the state’s highest court would. Id. To aid it in doing so, the district court quite properly certified these two questions to the Alabama Supreme Court: “whether a premises owner has a duty to protect the family members of persons who work on the property owner’s premises from secondary exposure to ... asbestos, used during the course of the property owner’s business”; and “what causation standard applies when multiple exposures to a toxic agent, such as asbestos, combine to produce the plaintiffs injury.” Bobo v. Tenn. Valley Auth., No. CV 12-S-1930-NE, 2015 WL 3833879, at *19 (N.D. Ala. June 22, 2015). The Alabama Supreme Court declined to answer either question and did so without explanation, except that it cited two of its decisions in declining to answer the second question, the one about the causation standard. Bobo v. Tenn. Valley Auth., No. 1141023 (Ala. Aug. 24, 2015) (“[T]he Court declines to accept the second certified question. See Sheffield v. Owens-Corning Fiberglass Corp., 595 So.2d 443, 450 (Ala. 1992). See also Owens-Corning Fiberglass Corp. v. Gant, 662 So.2d 255, 256 (Ala. 1995).”).

The plaintiffs contend that, by declining to answer the first certified question the Alabama Supreme Court “seemingly” agreed with the district court’s “analysis that supported finding a duty” under Alabama law. That’s a non-sequitur. The Alabama Supreme Court simply exercised its unbridled authority to decline to answer the certified question about the existence of a duty under Alabama law. See Pittman v. Cole, 267 F.3d 1269, 1291 (11th Cir. 2001). It did not answer by declining to answer. Along with the district court, we are required to examine Alabama law to find the answer.

A.

We first consider whether under Alabama law TVA owed a duty to Mrs. Bobo to prevent take-home asbestos exposure. The existence of a duty of care is “[f]undamental to the maintenance of a negligence action” under Alabama law. Pugh v. Butler Tel. Co., 512 So.2d 1317, 1319 (Ala. 1987); see also City of Bessemer v. Brantley, 258 Ala. 675, 65 So.2d 160, 165 (1953) (“[W]here there is no duty, there can be no negligence.”). “In Alabama, the existence of a duty is a strictly legal question to be determined by the court.” Taylor v. Smith, 892 So.2d 887, 891 (Ala. 2004); see also Jones Food Co. v. Shipman, 981 So.2d 355, 361 (Ala. 2006) (‘Whether the defendant in a negligence action owed the claimant a duty is strictly a question of law.”) “In determining whether a duty exists ..., courts should consider a number of factors, including public policy, social considerations, and foreseeability.” Smitherman v. McCafferty, 622 So.2d 322, 324 (Ala. 1993). Under Alabama law, however, “[t]he key factor is whether the injury was foreseeable by the defendant.” Taylor, 892 So.2d at 892 (quotation marks omitted).

Although Alabama appellate courts have not addressed whether a duty exists to prevent take-home asbestos exposure, other state appellate courts have done so under the law of their states. In at least four jurisdictions where foreseeability is a key factor in the duty analysis, courts have imposed a duty to prevent take-home asbestos exposure based on the foreseeability of injury from that exposure. See Kesner v. Superior Court, 1 Cal.5th 1132, 210 Cal.Rptr.3d 283, 384 P.3d 283 (2016); Chaisson v. Avondale Industries, Inc., 947 So.2d 171 (La. Ct. App. 2006); Olivo v. Owens-Illinois, Inc., 186 N.J. 394, 895 A.2d 1143 (2006); Satterfield v. Breeding Insulation Co., 266 S.W.3d 347 (Tenn. 2008).

For example, in the Satterfield decision the Tennessee Supreme Court held that an employer had a duty to prevent the foreseeable harm from take-home asbestos exposure. 266 S.W.3d at 366, 373-75. It explained that foreseeability is of “paramount importance” in the duty analysis. Id. at 366; see id. at 373 (“Tennessee’s courts rely heavily on foreseeability when determining the existence and scope of a duty.”). Because the court found that the risk of asbestos exposure from laundering work clothes was foreseeable, and because the employer knew that asbestos fibers accumulated on its employees’ work clothes, it held that the employer “ha[d] a duty to prevent [that] foreseeable injury from [the] unreasonable risk of harm that it had itself created.” Id. at 367-69, 374-75.

More recently, in its Kesner decision, the Supreme Court of California decided whether under that state’s law employers have a duty to protect employees’ household members from take-home asbestos exposure. 210 Cal.Rptr.3d 283, 384 P.3d at 288. The court explained that its duty analysis turns on seven factors, three of which involve foreseeability and four of which involve public policy. Id., 210 Cal.Rptr.3d 283, 384 P.3d at 291. And under California law (as under Alabama law), foreseeability is the most important consideration. Id. Because “it was foreseeable that people who work with or around asbestos may carry asbestos fibers home with them and expose members of their household,” and because public policy weighed in favor of imposing a duty, the California Supreme Court held that the “defendants owed the members of their employees’ households a duty of ordinary care to prevent take-home exposure.... ” Id. 210 Cal.Rptr.3d 283, 384 P.3d at 291, 299.

Courts in two other jurisdictions have also adopted a foreseeability-based approach to the legal duty analysis, but found that under the facts of the cases before them the harm from take-home asbestos was not foreseeable. See Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 445 (6th Cir. 2009) (applying Kentucky law); Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 462 (Tex. Ct. App. 2007). Along the same lines, the Supreme Court of Illinois, which considers foreseeability as one of several factors in determining whether a legal duty exists, concluded that the allegations in the plaintiffs complaint were too conclusory to show that her former husband’s employer had a duty to protect her from take-home asbestos exposure. See Simpkins v. CSX Transp., Inc., 358 Ill.Dec. 613, 965 N.E.2d 1092, 1099-1100 (2012) (“Because foreseeability is such an integral factor to the existence of duty and because the weight to be accorded to that foreseeability (as well as to the other factors) depends on the particular circumstances of the case, without more detailed pleadings we cannot determine whether, if all well-pled facts are taken as true, a duty of care ran from defendant to plaintiff in this case.”). Those decisions at least suggest that the three jurisdictions would impose a duty on an employer to avoid harm to a non-employee from take-home asbestos if the facts of a particular case showed that the injury was foreseeable.

On the other hand, courts in at least eight states have declined to impose a duty on employers to prevent take-home asbestos exposure, and at least two other states have codified that rule. See Kan. Stat. § 60-4905(a); Ohio Rev. Code § 2307.941(A)(1); Gillen v. Boeing Co., 40 F.Supp.3d 534 (E.D. Pa. 2014) (applying Pennsylvania law); Quiroz v. ALCOA, Inc., 240 Ariz. 517, 382 P.3d 75 (Ariz. Ct. App. 2016); Riedel v. ICI Ams., Inc., 968 A.2d 17 (Del. 2009); CSX Transp., Inc. v. Williams, 278 Ga. 888, 608 S.E.2d 208 (2005); Van Fossen v. MidAmerican Energy Co., 777 N.W.2d 689 (Iowa 2009); Adams v. Owens-Illinois, Inc., 119 Md.App. 395, 705 A.2d 58 (Md. Ct. Spec. App. 1998); In re Certified Question from the 14th Dist. of Ct. App. Tx. 479 Mich. 498, 740 N.W.2d 206 (2007); In re N.Y.C. Asbestos Litig., 5 N.Y.3d 486, 806 N.Y.S.2d 146, 840 N.E.2d 115 (2005).

To find a duty in this case would align Alabama with what TVA says is the “minority” view, and we generally presume that Alabama courts would adopt the majority view on a legal issue in the absence of indications to the contrary. Wammock v. Celotex Corp., 835 F.2d 818, 820 (11th Cir. 1988). Accepting for present'purposes that imposing a duty in this situation is the “minority” view, there are indications that the Alabama Supreme Court would follow that view. As we have discussed, Alabama courts focus on the foreseeability of an injury when deciding whether to impose a duty of care. See Taylor, 892 So.2d at 892; see also Yanmar Am. Corp. v. Nichols, 166 So.3d 70, 83 (Ala. 2014) (“[T]he ultimate test of duty to use [due] care is found in the foreseeability that harm may result if care is not exercised.”); Ex parte Wild Wild W. Soc. Club, Inc., 806 So.2d 1235, 1240 (Ala. 2001) (“The question of the existence of a duty to use care is grounded in the concept of foreseeability.”). The courts taking the “majority” view, on the other hand, generally have focused on factors other than foreseeability, such as the relationship between the parties. See, e.g., Quiroz, 382 P.3d at 79 (“[W]e do not consider foreseeability in determining whether a duty of care exists.”); Certified Question, 740 N.W.2d at 216 (“Michigan, like New York, relies more on the relationship between the parties than foreseeability of harm when determining whether a duty exists.”). Alabama’s strong focus on foreseeability is enough to overcome any presumption that it would adopt the so-called majority view. As a result, we think that Alabama courts would impose a duty of care on employers like TVA to prevent take-home asbestos exposure where a plaintiffs injury is foreseeable, and where public policy considerations also weigh in favor of there being a duty. See Smitherman, 622 So.2d at 324.

The district court found that Mrs. Bobo’s injury was foreseeable to TVA. For an injury to be foreseeable, “it is not necessary to anticipate the specific [harm] that occurred, but only that some general harm or consequence would follow.” Smith v. AmSouth Bank, Inc., 892 So.2d 905, 910 (Ala. 2004). The record shows that TVA knew about OSHA regulations that were adopted to protect not only workers but also their families. See, e.g., Occupational Exposure to Asbestos, Tremolite, Anthophyllite, and Actinolite, 51 Fed. Reg. 22612, 22697 (June 20, 1986) (“Evidence has shown that family members of asbestos workers face a substantially increased risk of cancer and other asbestos-related diseases from exposure to asbestos carried home on work clothes.”). The record also shows that TVA knew that for health reasons it should prevent asbestos fibers from settling on employees’ clothes. And it shows that TVA had adopted policies requiring employees exposed to certain levels of asbestos to use two separate lockers in order to keep their street clothes free from asbestos but did not enforce those policies.

As the district court explained, “[t]he common thread linking those rules was the goal of preventing asbestos fibers from clinging to an employee’s street clothes, skin, or hair, and being carried off of TVA property,” which shows that in not following the rules TVA understood that employees’ household members would be exposed to asbestos originating at the plant. The risk that Mrs. Bobo could be harmed by take-home asbestos exposure was reasonably foreseeable to TVA.

TVA not only could foresee injuries from take-home asbestos exposure, it also created the risk of injuries to its employees’ family members by using insulation products containing asbestos and failing to take the steps it was required to take in order to prevent its employees from carrying asbestos fibers off the premises and into their homes. The Alabama Supreme Court has held that when an injury is foreseeable and a defendant “affirmatively] act[s]” in a way that “involves the [defendant] directly in the foreseeable consequences,” that factor “weighs in favor of imposing a duty.” Taylor, 892 So.2d at 897; see also id. at 895 (explaining that where there is “an affirmative act which creates the risk that unidentifiable third parties might be injured,” there is “most certainly[] a duty to unidentifiable third parties who may be injured as a result”) (emphasis' omitted) (quoting Cheeks v. Dorsey, 846 So.2d 1169, 1173 (Fla. 4th DCA 2003)). TVA acted by using asbestos-containing products and it failed to act to prevent take-home asbestos exposure, and that, coupled with its knowledge of the risk of injury from the asbestos being taken home on employees’ clothes, warrants the conclusion that TVA violated its duty to prevent injury to Mrs. Bobo and others like her. See id.

Public policy concerns also weigh in favor of imposing a duty on TVA in these circumstances. TVA not only knew about the danger of take-home asbestos, it also knew about OSHA regulations that it was required to follow in order to limit exposure in the workplace and in the homes of its employees. And it knew of its own internal requirements that, if followed, would have limited exposure and prevented asbestos from being carried home on its employees’ clothes. TVA was in the best position to protect people like Mrs. Bobo from take-home asbestos exposure by complying with the relevant regulations or internal policies that were designed for that purpose, but it failed to do so. Recognizing TVA’s duty in these circumstances is fully warranted by considerations of public policy-

The Alabama Supreme Court has said that in determining whether there is a legal duty sufficient to support an action for negligence, the relationship between the parties is one of three primary considerations (the other two factors being the nature of the defendant’s activity and the type of injury or harm threatened). Morgan v. S. Cent. Bell Tel. Co., 466 So.2d 107, 114 (Ala. 1985). But there is a difference between one of three primary considerations and a requirement. The Supreme Court of Alabama has in “a variety of circumstances” imposed “a duty to foreseeable third parties[] based on a general obligation imposed in tort to act reasonably,” even where the parties had no “legal” relationship. Taylor, 892 So.2d at 893 (quotation marks omitted); id. at 897 (finding a doctor owed a duty of care to a motorist because her injury was a foreseeable result of his negligent treatment of a patient, who was under the influence of methadone when the patient crashed into the motorist’s car); see also Kelly v. M. Trigg Enters., Inc., 605 So.2d 1185, 1190 (Ala. 1992) (holding a retailer owed a duty of care to the plaintiffs because their injuries in an automobile crash were a foreseeable result of the negligent act of selling an air freshener composed of pure ethyl chloride to a minor, who inhaled the substance and drove while under the influence of it). This case fits comfortably within the line of Alabama decisions imposing a legal duty based on foreseeability of harm even in the absence of a legal relationship between the parties. Another way of putting it is that there was a relationship between TVA and Mrs. Bobo: TVA employed her husband and over the course of 22 years exposed him to asbestos fibers in a way that exposed and eventually killed her as well. That is as much a relationship as the Alabama Supreme Court held was sufficient to impose a duty in the Taylor and Kelly cases.

TVA argues that imposing a duty on employers like it to prevent take-home asbestos exposure will cause them to face greater liability. Assuming that employers violate their duties to minimize the risk of harm from take-home asbestos, they will face greater liability. But it is not “limitless” liability, as TVA asserts. The duty we recognize extends only to people whose harm is foreseeable, such as an employee’s family members or others in the employee’s household. In any event we do not think that the prospect of greater liability is necessarily negative. After all, imposing liability to deter acting, or failing to act, in a way that causes foreseeable harm is one of the functions of tort law.

The Alabama Supreme Court’s Hinton decision does not require a different result in this case. See Hinton ex rel. Hinton v. Monsanto Co., 813 So.2d 827, 831-32 (Ala. 2001). In that case the plaintiffs sued a company to recover the costs of medical monitoring that they claimed was necessary because they had been exposed to a hazardous substance the company had released in their area. Id. at 828. The Alabama Supreme Court rejected the claim because the plaintiffs did not allege any present injury or illness, and it would “stand Alabama tort law on its in head ... to alleviate [the plaintiffs’] concerns about what might occur in the future.” Id at 831. The holding, which was keyed to the “absence of a manifest physical injury or illness,” was that Alabama law does not recognize “a cause of action for medical monitoring.” Id. at 828, 832. The case before us is not one where there is no injury or illness, nor does it involve a claim for nothing more than medical monitoring. Because of TVA’s actions and failures to act, Mrs. Bobo died an excruciatingly painful death and is no longer around to be monitored.

In its final argument on the duty issue, TVA insists that finding a duty here would expand Alabama law, which would violate the Fifth Circuit’s admonition that federal courts should not “expand state law beyond its presently existing boundaries,” citing Rubinstein v. Collins, 20 F.3d 160, 172 (5th Cir. 1994). Fifth Circuit decisions are not binding on us, and we have not been pointed to any decision from this Court to support the Rubinstein proposition. Our responsibility as a federal court sitting in diversity is to determine issues of state law in the same way the state’s highest court would. Price, 416 F.3d at 1334. If we predict, as we do, that the Alabama Supreme Court would find a duty of care in the circumstances of this case, we must find a duty of care in this case regardless of whether that expands or contracts Alabama law.

Given Alabama’s focus on foreseeability as the key to its duty analysis, Taylor, 892 So.2d at 892, given its recognition of a duty in cases where a defendant creates the risk of harm through its own activities, see id. at 895-97, and given its consideration of public policy in determining whether a duty exists, Smitherman, 622 So.2d at 324, we agree with the district court that TVA did have a duty not to expose Mrs. Bobo to the dangers of take-home asbestos, and it violated that duty.

B.

TVA contends that, in determining that asbestos from the Browns Ferry plant caused Mrs. Bobo’s mesothelioma the district court applied the wrong exposure standard. In declining to answer the district court’s certified question on the appropriate causation standard, the Alabama Supreme Court cited Sheffield v. Owens-Corning Fiberglass Corp., 595 So.2d 443, 450 (Ala. 1992) and Owens-Corning Fiberglass Corp. v. Gant, 662 So.2d 255, 256 (Ala. 1995). Both Sheffield and Gant involve the issue of causation in the asbestos litigation context. Sheffield, a products liability case brought under maritime law, held that, in order to show causation, the plaintiff “ ‘must make it appear that it is more likely than not’ that the asbestos product manufactured by the defendant ‘was a substantial factor’ in producing his injury.” 595 So.2d at 450 (emphasis omitted) (quoting Restatement (Second) of Torts § 433B cmt. a). And it concluded that evidence showing the plaintiff was “close” to individuals who worked with the defendant’s asbestos product:

coupled with expert testimony that “each and every exposure to asbestos contributes in a causally significant and substantial manner to asbestos-related lung impairment,” create[d] a triable issue as to whether [that asbestos] was a substantial factor in producing the [plaintiffs] disease....

Id. at 456. In the Gant decision, the Alabama Supreme Court briefly addressed and rejected the defendant’s argument that the plaintiffs “failed to prove sufficient exposure to [its] asbestos-containing product.” 662 So.2d at 256. In doing so, the court cited its Sheffield decision. See id. (citing Sheffield, 595 So.2d at 456).

Based on the Sheffield and Gant decisions, the district court decided that the plaintiffs had to “show that TVA’s conduct, more likely than not, was a substantial factor in causing [her] harm.” It emphasized the evidence showing that Mrs. Bobo “launder[ed] her husband’s dirty work clothing twice each week, for more than twenty-two years, in a small, confined, four-by-five foot space.” And when she shook out her husband’s clothing, which “was encased in asbestos fibers by the time he returned home,” the air she breathed was filled with so much dust from his clothing that it was “foggy.” Based on all of the evidence, the district court found “[Mrs.] Bobo’s exposure to asbestos originating in TVA’s Browns Ferry Nuclear Plant and carried home on her husband’s work clothing was, more likely than not, a substantial factor contributing to the development of the disease that claimed her life and, consequently, the proximate cause of her injuries.”

TVA contends that the district court applied the wrong test in reaching that conclusion, arguing that Alabama would instead require a plaintiff to present enough evidence of exposure to satisfy the “frequency-regularity-proximity” test that was articulated in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), which is the test used in most jurisdictions, see Slaughter v. S. Talc Co., 949 F.2d 167, 171 (5th. Cir. 1991). TVA argues that the plaintiffs’ evidence of Mrs. Bobo’s exposure cannot satisfy that “more demanding” test.

In Lohrmann, the Fourth Circuit, applying Maryland law, rejected the plaintiffs argument that his circumstantial evidence, which placed him at a job site where the defendant’s asbestos-containing product was used, was sufficient to create a jury question on causation. 782 F.2d at 1162-63. It did so because “mere proof that the plaintiff and a certain asbestos product are at the shipyard at the same time, without more, does not prove exposure to that product.” Id. at 1162. The court explained that, “[t]o support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.” Id. at 1162-63. It found that evidence that the plaintiff worked near the defendant’s product “on ten to fifteen occasions of between one and eight hours duration” did not satisfy the frequency-regularity-proximity test. Id. at 1163.

The day after the district court entered judgment in this case, the Alabama Supreme Court issued an opinion in an asbestos products liability case discussing what a plaintiff must show in order to establish that he was exposed to a defendant’s asbestos-containing product. See Kruse v. Vanderbilt Minerals, LLC, 189 So.3d 42 (Ala. 2015). In the Kruse case, the parties “argued for two different standards for establishing exposure based on the [Sheffield] case.” Id. at 57. In explaining why it favored Sheffield’s “direct exposure” standard, the court cited the Lohrmann decision:

A standard other than direct exposure would not be logical, given that a plaintiff obviously must establish that the product in question caused his or her injuries. Indeed, corroboration for that standard comes from what appears to be the majority rule for causation used by most courts throughout the country in asbestos litigation: the “frequency-regularity-proximity” test propounded in [Lohrmann], The Lohrmann court— applying Maryland law — stated that, to establish proximate causation, “the plaintiff must introduce evidence which allows the jury to reasonably conclude that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result.” The Lohrmann court concluded that this meant that, “[t]o support a reasonable inference of substantial causation from circumstantial evidence, there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.”

Id. at 57-58 (citation and footnote omitted).

The evidence in the Kruse case showed that the plaintiff, over a period of thirty-seven years, had regularly entered work areas where the defendant’s asbestos-containing product was used. Id. at 58. The Alabama Supreme Court held that was evidence sufficient to create a reasonable inference that the plaintiff was exposed to the defendant’s product, although it noted that whether “that exposure was a ‘substantial factor’ in causing [the plaintiffs] mesothelioma is a separate issue.” Id. Because the plaintiffs evidence of exposure satisfied “even the possibly more challenging standard urged by the [defendant],” the Alabama Supreme Court declined to decide which of the exposure standards articulated by the parties was the correct one. It questioned whether those standards were actually different at all. Id. We take the same route. Which of the two standards applies here does not matter because, as in Kruse, the evidence of exposure is enough to satisfy either test.

TVA disagrees, faulting the plaintiffs for not coming up with industrial hygiene measurements or other quantifiable evidence “relating to the frequency or duration of [Mr. Bobo’s] alleged exposures [at Browns Ferry], the amount or level of any such exposures, or the amount of asbestos fibers that burdened his personal clothing as a result of the exposures.” Without such evidence, TVA says, any estimate of Mrs. Bobo’s exposures is a mere guess, and we ought not be guessing. What TVA ought not be doing is blaming Mrs. Bobo for its failure to do what it was required to do, a failure which resulted in the lack of evidence TVA insists is needed. Had TVA complied with OSHA’s air monitoring requirement or with its own “Personal and Environmental Monitoring” requirement, we would have records providing more details about the asbestos exposure levels to which Mr. Bobo and his clothing were exposed, and those factual details would in turn provide a better basis for estimating Mrs. Bobo’s exposure.-

Here is the gist of it. TVA used asbestos-containing products at Browns Ferry during the twenty-two years Mr. Bobo worked for it. His duties included cleaning up residue left by insulators and asbestos workers, which in turn allowed asbestos fibers to settle on his clothes. And Mrs. Bobo was exposed to those fibers regularly for 22 years. Her testimony, which the district court credited, was that she was exposed to so much dust from shaking out her husband’s work clothes that the air was foggy. Dr. Mark testified that with mesothelioma there is “no known safe level” of exposure to asbestos. Even if there were, the massive amounts of asbestos fibers to which Mrs. Bobo was exposed over more than two decades would far exceed any imaginable safe level. See generally Tragarz v. Keene Corp., 980 F.2d 411, 420 (7th Cir. 1992) (explaining that Lohrmann’s “frequency and regularity prongs become less cumbersome when dealing with cases involving diseases, like mesothelio-ma, which can develop after only minor exposures to asbestos fibers”).

To answer the question with which we began, TVA did cause Mrs. Bobo to die sooner and suffer more in the course of dying than she otherwise would have.

V.

TVA’s final effort to avoid liability for that involves the discretionary function exception to its susceptibility to suit. The TVA Act provides that TVA may “sue and be sued in its corporate name.” 16 U.S.C. § 831c(b). Despite that waiver of sovereign immunity, we have held that “TVA cannot be subject to liability when engaged in certain governmental functions.” Peoples Nat’l Bank of Huntsville v. Meredith, 812 F.2d 682, 685 (11th Cir. 1987). Under the discretionary function exception, TVA cannot be held liable “when the subject governmental function is discretionary.” Id. That exception applies if the challenged conduct (1) “involves an element of judgment or choice” and (2) is the kind of conduct “that the discretionary function exception was designed to shield.” Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 1958-59, 100 L.Ed.2d 531 (1988); see United States v. Gaubert, 499 U.S. 315, 322-23, 111 S.Ct. 1267, 1273-74, 113 L.Ed.2d 335 (1991). “[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action ... to follow.” Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958.

Before trial the district court ruled that TVA could not be held liable for its failure to provide asbestos training or to warn about take-home asbestos exposure. But it concluded that TVA could be held liable for its failure to comply with mandatory regulations and policies regarding asbestos exposure.

TVA contends that, because it had discretion to expose its employees to asbestos at levels below specified limits, it cannot be held liable unless the plaintiffs prove that Mr. Bobo was exposed to asbestos in excess of those limits, which in turn exposed Mrs. Bobo to what TVA calls “non-discretionary asbestos.” Some regulations and policies did allow TVA to expose its employees to certain amounts of asbestos (although the district court found that TVA’s exposure of Mr. Bobo to asbestos exceeded those limits).

But there was no discretion and no permissible range in the actions TVA was required to take to prevent asbestos fibers from leaving the plant. TVA’s 1979 Division of Nuclear Power Safety and Hazard Control Manual stated that: “Each employee exposed to airborne concentrations of asbestos shall be provided with two separate lockers. One locker shall be used for street clothes and must not be contaminated with asbestos.” An internal plant memorandum from TVA, also from 1979, stated: “TVA and Federal safety and health standards require that we provide locker and shower facilities for insulators and designated cleanup laborers that are separate from the plant’s regular facilities.” There was no discretion in those requirements, which were designed to prevent asbestos from leaving the plant on the clothing of the workers. TVA violated those requirements, resulting in Mrs. Bobo being exposed to asbestos from the plant, which led to her illness and death. TVA is not shielded from liability for its conduct in doing so. See Gaubert, 499 U.S. at 322-33, 111 S. Ct. at 1273-74; Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958.

VI.

We turn now to the question of how much damages TVA will have to pay to the plaintiffs, Mrs. Bobo’s two daughters who are serving as personal representatives of her estate. The district court awarded the plaintiffs in damages, after setoffs, a total of $3,391,420.31. The only part of that damages award that TVA challenges is a portion of the amount that was for medical expenses. The total amount of the medical expenses in the damages award was $537,131.82. The parties agree that if TVA is liable, as we have concluded it is, the plaintiffs are entitled to recover the portion of the $537,131.82 amount that Mrs. Bobo or her insurers actually paid the providers. They disagree, however, about whether the plaintiffs are entitled to recover the portion of that amount of medical expenses that she was billed but which neither she nor her insurers paid the providers because through agreements with the insurers the providers agreed “to adjust, reduce, write down, or accept a reduced portion in satisfaction of [the] billed amounts.” (We will refer to those reductions collectively as the “written off’ amounts.)

TVA’s position is that the plaintiffs are not entitled to recover any amount that was written off by the providers, while the plaintiffs’ position is that they are entitled .to recover all of the written off amounts. The district court awarded total medical expense damages of $537,131.82,' which included what TVA asserts are some amounts that had been written off. The issue of how written off amounts of medical expenses should be treated for damages purposes is a question of Alabama law.

Under Alabama law, the party seeking damages bears the burden of showing that they exist and the amount of them. See Jerkins v. Lincoln Elec. Co., 103 So.3d 1, 10 (Ala. 2011). Medical expenses “damages are unrecoverable where the plaintiff has not paid or is not liable [to pay] such items.” Jones v. Crawford, 361 So.2d 518, 521 (Ala. 1978); see also Ala-Farm Bureau Mut. Cas. Ins. Co. v. Smelley, 295 Ala. 346, 329 So.2d 544, 546 (1976) (“[D]amages for medical expenses are to be allowed only for doctor’s and medical bills which the plaintiff has paid or has become obligated to pay.”) (quotation marks omitted).

We agree with TVA that amounts that were written off by providers under contractual agreements with insurers are not amounts that a plaintiff has paid or is obligated to pay within the meaning of the Alabama Supreme Court’s decisions. See Crawford, 361 So.2d at 521; Smelley, 329 So.2d at 546. Nor may those amounts be included in a damages award under the collateral source rule. That rule, which Alabama recognizes, provides that a plaintiffs damages are not to be reduced by amounts that are paid by sources “collateral to and independent of the wrongdoer,” such as the plaintiffs insurer. Williston v. Ard, 611 So.2d 274, 278 (Ala. 1992); see also Roland v. Krazy Glue, Inc., 342 So.2d 383, 385-86 (Ala.Civ.App. 1977) (explaining that damages for medical expenses “should not be diminished by the fact that [the plaintiff] has been wholly or partially indemnified for her loss by [ ] insurance to which [the] defendant did not contribute”). Amounts that are written off by a provider are not paid by anyone; the provider never gets paid those amounts.

We remand this case to the district court with instructions for it to recalculate the damages award in order to exclude from it any amounts that were written off by Mrs. Bobo’s providers and to correct any other errors that may appear to the court when the parties have a chance to focus exclusively on the medical expenses component of the damages award.

The part of the judgment finding TVA liable is AFFIRMED; the part awarding damages is VACATED; and the case is REMANDED to the district court with instructions to revisit the portion of the damages award involving medical expenses.

      . "By my troth, I care not; a man can die but once; we owe God a death....” William Shakespeare, The Second Part of King Henry the Fourth, act 3, sc. 2.

      . Throughout this opinion, for ease of reference we will refer to Barbara Bobo and her daughters, who were substituted as plaintiffs after their mother's death, as the plaintiffs. When context makes it necessary to mention the Bobos individually, we will refer to them as Mr. Bobo or Mrs. Bobo.

      . The estimate is ours. Assuming Mr. Bobo worked at least 47 weeks a year, the math is 47 (work .weeks per year) multiplied by 2 (washes per week) multiplied by 22 (years at TVA), equals 2,068 times.

      . Mrs. Bobo’s deposition was taken on September 25, 2012, about a year before she died. The trial took place on February 9-11, 2015.

      . The Occupational Safety and Health Act of 1970 stated: "It shall be the responsibility of the head of each Federal agency to establish and maintain an effective and comprehensive occupational safety and health program which is consistent with the standards promulgated under section 6.” Pub. L. No. 91-596, 84 Stat. 1609, § 19(a) (emphasis added). Executive Order 12,196, promulgated in February 1980, stated: "The head of each agency shall ... [c]omply with all standards issued under section 6 of the Act....” 45 Fed. Reg. 12,769 (Feb. 27, 1980) (emphasis added); see 45 Fed. Reg. 45,235 (July 2, 1980) (changing Executive Order 12,196’s effective date to October 1, 1980). In other words, as the parties stipulated and the district court explained, "[p]rior to October 1, 1980, TVA’s occupational safety and health program was required to be consistent with OSHA standards, and, effective October 1, 1980, TVA's occupational safety and health program was required to comply with those standards.”

      . The Alabama Supreme Court has also accepted testimony similar to that of Dr. Mark’s. See Sheffield v. Owens-Corning Fiberglass Corp., 595 So.2d 443, 456 (Ala. 1992). The Sheffield decision involved a products liability case brought under maritime law. Id. at 450-51.

      . In its opinion certifying the two questions, the district court listed the parties’ arguments and authorities on “the availability of take-home [asbestos] claims under Alabama law.” Bobo, 2015 WL 3833879, at *13-16. But it did not make any “determination” on the existence of a legal duty under Alabama law. See id. Instead, in certifying that question to the Alabama Supreme Court, the district court explained that "the question of whether policy considerations affecting the recognition of a duty to family members of employees in take-home asbestos exposure cases should be deemed to outweigh the foreseeability of injury is an unanswered issue of Alabama law that should be resolved by that State's highest court.” Id. at *16.

      . In DiBiasi v. Joe Wheeler Electric Membership Corp., 988 So.2d 454, 462-63 (Ala. 2008), the Alabama Supreme Court stated that, "[although ... foreseeability is a key factor in determining whether a duty exists in a particular circumstance, and knowledge of a dangerous condition may establish foreseeability, Alabama case law does not hold that knowledge, by itself, is sufficient to impose a duty.” The court held that, “assuming [the plaintiff’s] injuries were foreseeable,” none of the other factors in the legal duty analysis supported the existence of a duty on the defendant. Id. at 464. Nothing in the DiBiasi decision suggests that foreseeability is not a key factor in Alabama’s duty analysis; indeed, the opinion notes that it is a key factor. Id. at 462-63. The DiBiasi court simply concluded that other factors weighed in favor of not imposing a duty on the defendant under the facts of that case. Id. at 464.

      . TVA suggests that Alabama has expressed a desire "to limit the cost of [asbestos] litigation,” citing Alabama Code § 6-5-682. All that section does, however, is limit the amount of asbestos-related liabilities that an acquiring corporation assumes during a merger or consolidation. See Ala. Code § 6-5-682. It says nothing about whether an entity should have a duty to prevent asbestos-related injuries, nor does it reflect any desire to limit asbestos-related litigation generally. See id.

      . We cannot determine from the record what amount of the $537,131.82 in medical expenses was actually written off. Before trial the parties stipulated that Mrs. Bobo and her insurers paid $140,646.64 in medical expenses, and that her medical providers wrote off the other $396,485.18. But in TVA’s post-trial brief it stated that Bobo and her insurers paid $87,793.81 in medical expenses, and that her medical providers wrote off $449,338.01.