author: GREGG COSTA, Circuit Judge:

text:
    T D X ENERGY, L.L.C., Plaintiff-Appellant Cross-Appellee v. CHESAPEAKE OPERATING, INCORPORATED, Defendant-Appellee Cross-Appellant
    No. 16-30450
    United States Court of Appeals, Fifth Circuit.
    FILED May 12, 2017

      Scott C. Sinclair, Sinclair Law Firm, L.L.C., Shreveport, LA, James Michael Johnson, Esq., Kitchens Law Firm, A.P.L.C., Bossier City, LA, for Plaintiff-Appellant Cross-Appellee.
    Patrick Stephen Ottinger, Esq., Trial Attorney, David Kroll McCrory, Ottinger Hebert, L.L.C., Lafayette, LA, for Defendant-Appellee Cross-Appellant.
    Before PRADO, HIGGINSON, and COSTA, Circuit Judges.
   GREGG COSTA, Circuit Judge:

Captain Anthony F. Lucas struck oil in the Spindletop salt dome in Texas in 1901. A black oil plume erupted to twice the height of the drilling derrick, and the well produced a record 800,000 barrels of oil within nine days. Others rushed to seize a share of the abundance. Wells were “drilled as close together as physically possible”; “on occasion four wells were drilled beneath one derrick floor.” In short order, there were 440 wells on Spindletop’s 125-acre hill. Another 600 were drilled around the hill. This is how it looked:

Within a few years, most of the wells were dry. As Captain Lucas remarked, the oil was “milked too hard” and “not milked intelligently.”

To prevent this “tragedy of the commons,” states have enacted regulations in the years since Spindletop. Louisiana’s “forced pooling” regime is the subject of this case. It allows the government to authorize a single operator to drill for oil and gas even when all parties possessing oil and gas interests in the drilling area have not agreed to go forward. The Louisiana statutory scheme thus has to address a number of issues that contracts usually decide, such as how to allocate costs and risk among those holding interests in the oil and gas. We are presented with questions of statutory interpretation about this scheme’s disclosure and risk-fee provisions.

I.

Although Spindletop is an extreme example, similar wasteful overproduction was once common. A cause was the “rule of capture,” the common law doctrine initially used in hunting disputes to determine ownership of wild animals unconstrained by property borders. Ranee L. Craft, Of Reservoir Hogs and Pelt Fiction: Defending the Ferae Naturae Analogy Between Petroleum and Wildlife, 44 Emory L.J. 697, 708-09 (1995). Taught during the first days of law school, the doctrine says if you catch it first, it is yours. See Pierson v. Post, 3 Cai. R. 175 (N.Y. Sup. Ct. 1805). Courts later applied the doctrine to oil and natural gas, reasoning that they too cross property borders as they seep and spill through crevices underground. See Brown v. Spilman, 155 U.S. 665, 669-70, 15 S.Ct. 245, 39 L.Ed. 304 (1895). In that context, the rule means a landowner has a property right in oil and gas produced from wells on the owner’s land, whether or not it migrated from other lands. Id. at 670, 15 S.Ct. 245 (“If an adjoining owner drills his own land, and taps a deposit of oil or gas, extending under his neighbor’s field, so that it comes into his well, it becomes his property.”); Robert E. Hardwicke, The Rule of Capture and Its Implications As Applied to Oil and Gas, 13 Texas L. Rev. 391, 393 (1935). So, under the common law, one landowner could drain an entire reservoir through wells on the landowner’s property, even if the reservoir extended under others’ lands. Naturally, surrounding owners usually would not sit idly by while valuable resources drained out from under them; instead, they raced to produce all the oil and gas they could through their own property, often drilling multiple wells to extract resources as quickly as possible. Frank Sylvester & Robert W. Malmsheimer, Oil and Gas Spacing and Forced Pooling Requirements, 40 U. Dayton L. Rev. 47, 49 (2015). At Spindletop and elsewhere, this drove up production costs, reduced oil and gas market prices, and unnecessarily decimated the environment. Id.

States intervened, creating often complex regimes to regulate drilling. First, they created spacing laws, which prevent wells from being drilled too close together. Id. at 47-48. Then, to protect landowners who, as a result of spacing laws, were no longer able to drill on smaller tracts of land, they created pooling laws, which allow owners of adjacent tracts to combine their interests to form drilling units that meet spacing requirements. Id. Many states also have “forced pooling laws,” which force unwilling owners to be part of a drilling unit in order to protect their neighbors’ rights to benefit from their mineral rights and to promote states’ interests in preventing waste and promoting economic activity. Id. at 48.

Louisiana is one such state. Its Commissioner of Conservation designates drilling units whenever necessary to prevent waste or avoid needless drilling, even if owners of oil and gas interests have not agreed to pool their interests. La R.S. §§ 30:9(B), 30:10(A)(1). Once a unit has been established, the Commissioner may appoint an operator to extract oil and gas from a reservoir. Hunt Oil Co. v. Batchelor, 644 So.2d 191, 196 (La. 1994). The operator is responsible for drilling within the unit but pays a proportionate share of production to owners of oil and gas interests for any acreage on which the operator does not have an oil and gas lease. La. R.S. § 30:10(A)(1)(b); Amoco Prod. Co. v. Thompson, 516 So.2d 376, 392 (La. App. 1 Cir. 1987). If those other owners have leased their mineral interests to another party, operators often pay the lessee in kind and the lessee markets and sells the oil or gas, then pays its lessor royalties; if not, the operator often sells production and makes a cash payment to the owner. King v. Stroke, 673 So.2d 1329, 1338-39 (La. App. 3 Cir. 1996); see also La. R.S. § 30:10(A)(3).

As a corollary to this scheme for sharing the benefits of unit production in the absence of a contract, Louisiana law contains mechanisms for sharing drilling risks and costs. See Sylvester & Malmsheimer, supra, at 62-67. Each oil and gas interest owner is responsible for a share of development and operation costs. La. R.S. § 30:10(A)(2). To prevent free riding, the statute creates a mechanism for sharing the risk that a well, once drilled, will not produce enough to cover drilling costs. Id. The operator gives notice to oil and gas interest owners regarding the drilling of a well, allowing owners to elect to participate in the risk by contributing to drilling costs up front. Id. § 30:10(A)(2)(a)(i). If an owner does not participate, and the well produces, the operator can recover out of production the nonparticipating owner’s share of expenditures along with a risk charge of two hundred percent of the owner’s expenditure share. La. R.S. § 30:10(A)(2)(b)(i); see also Keith Hall, Louisiana Oil and Gas Update, 19 Tex. Wesleyan L. Rev. 361, 365-66 (2013).

The law also requires operators to share information about the costs and production other owners share under this scheme. Section 103.1 of Title 30 creates an obligation for operators to issue upon request reports containing sworn statements about drilling and operating costs, amount of production, and the price received for any sale of production. La. R.S. § 30:103.1. Section 103.2 provides that when an operator does not provide this information within ninety days of completing a well and thirty additional days of receiving notice of its failure to comply with section 103.1, it cannot collect drilling costs. La R.S. § 30:103.2.

II.

As part of this forced pooling regime, the Commissioner of Conservation created an approximately 640-acre drilling unit called “HA RA SUH” in DeSoto Parish. Chesapeake, which held a number of oil and gas leases in this unit, was named the operator. The unit well was “spud” (drilling commenced) on February 5, 2011, and was completed on July 19, 2011. When the well was spud, the oil and gas rights for approximately 63 acres in the unit had not been leased to Chesapeake or any other party (that is, the land owners still held their mineral interests). Touchstone Energy LLC acquired those rights through leases dated before drilling was completed (July 15) but not recorded until after drilling ended (between July 22 and September 14). Touchstone later transferred these leases to TDX with an effective date retroactive to the September 14th date of the final recording.

In late 2011, TDX notified Chesapeake of its interests and requested an accounting in accordance with section 103.1. About six weeks later, TDX followed up, telling Chesapeake that it was failing to comply with the statute. Chesapeake did not provide reports. Instead it sent TDX a letter asking TDX to make an election whether to participate in the well’s risk under section 10(A). TDX responded that the notice was untimely, so TDX was not required to make an election, and Chesapeake could not collect a risk charge. Finally, TDX wrote Chesapeake that by not providing the cost and production data, Chesapeake had forfeited its right to contribution for drilling costs.

TDX filed suit seeking its share of revenues from the unit well without deduction of drilling costs because Chesapeake did not provide the requested reports. It also sought an order directing Chesapeake to provide the reports. In addition to disputing these claims, Chesapeake filed a counterclaim seeking a declaration that it was entitled to recover TDX’s share of costs incurred in drilling, testing, completing,' equipping, and operating the well, plus a risk charge of two hundred percent of TDX’s share because TDX did not elect to pay a risk fee.

On competing motions for summary judgment, the district court held: (1) section 103.2 was inapplicable because TDX was leasing the oil and gas interests, so Chesapeake’s failure to provide the reports did not excuse TDX from paying its share of drilling costs; and (2) section 10(A) did not allow Chesapeake to collect a risk charge because it had not provided TDX timely notice that it was drilling the unit well. Each party appeals the adverse portion of the judgment. We review these questions of statutory interpretation de novo. Woodfield v. Bowman, 193 F.3d 354, 358 (5th Cir. 1999).

III.

A.

TDX claims that Chesapeake cannot deduct drilling costs because Chesapeake forfeited that right under section 103.2. That provision states that:

Whenever the operator or producer permits ninety calendar days to elapse from completion of the well and thirty additional calendar days to elapse from date of receipt of written notice by certified mail from the owner or owners of unleased oil and gas interests calling attention to failure to comply with the provisions of R.S. 30:103.1, such operator or producer shall forfeit his right to demand contribution from the owner or owners of the unleased oil and gas interests for the costs of the drilling operations of the well.

La. R.S. 30:103.2 (emphasis added).

Section 103.1 provides that:

Whenever there is included within a drilling unit ... lands producing oil or gas, or both, upon which the operator or producer has no valid oil, gas, or mineral lease, said operator or producer shall issue ... reports to the owners of said interests ...

La. R.S. 30:103.1(A) (emphasis added).

' The oil and gas interests at issue were leased (to TDX), but not to the operator (Chesapeake). The question, then, is whether “owners of unleased oil and gas interests” in section 103.2 includes lessees. The district court held that it does not.

Because the Supreme Court of Louisiana has not addressed the question, we must attempt to determine how that court would resolve it. Howe ex rel. Howe v. Scottsdale Ins., 204 F.3d 624, 627 (5th Cir. 2000). We look to decisions of intermediate appellate state courts as “the strongest indicator of what a state supreme court would do.” Hux v. S. Methodist Univ., 819 F.3d 776, 780-81 (5th Cir. 2016); see also Adams v. Chesapeake Operating, Inc., 561 Fed.Appx. 322, 324 (5th Cir. 2014).

The only appellate court in Louisiana to address whether sections 103.1 and 103.2 give rights just to owners of wholly un-leased interests or owners of interests not leased to the operator followed the latter, more expansive view. That court found that an operator breached section 103.1 by failing to provide adequate reports to a lessee of oil and gas interests not leased to the operator, and that the lessee was thus entitled to a forfeiture under section 103.2. XXI Oil & Gas, LLC v. Hilcorp Energy Co., 206 So.3d 885, 888 (La. App. 3 Cir. 2016) (describing previous writ denial and holding in XXI Oil & Gas, LLC v. Hilcorp Energy Co., 124 So.3d 530 (La. App. 3 Cir. 2013)). Although the opinion is short on analysis, and relies in part on the law of the case doctrine, its holding was necessary to the outcome: a lessee was entitled to rely on section 103.2. After reviewing and finding unpersuasive the district court’s decision in this case, the Louisiana Court of Appeals “maintain[ed its] position” that a “mineral lessee of those portions not leased by the operator or producer of the well has a claim to demand an accounting” under section 103.1. Id. Other published appellate court decisions, which do not directly consider the issue, also assume lessees may invoke section 103.2. See Scurlock Oil Co. v. Getty Oil Co., 324 So.2d 870, 876 (La. App. 3 Cir. 1975); Genmar Oil & Gas, Inc. v. Storm, 297 So.2d 722, 724 (La. App. 4 Cir. 1974).

We defer to this view of intermediate Louisiana courts “unless convinced by other persuasive data that the highest court of the state would decide otherwise.” Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir. 2010) (quoting Travelers Cas. & Sur. Co. v. Ernst & Young LLP, 542 F.3d 475, 483 (5th Cir. 2008)). We have not seen that authority. The parties have cited to treatises that offer differing answers to the question. Compare 1 Bruce M. Kramer & Patrick H. Martin, The Law of Pooling and Unitization § 14.04 (3d ed. 2016) (stating that section 103.2 “appears expressly to apply only to unleased interests, not to a non-operator working interest owner”); with Philip N. Asprodites, Conservation Practice, in Louisiana Mineral Law Treatise 527, 546 (Patrick H. Martin ed., 2012) (“[A]ny nonoperating working interest owner or unleased owner must be provided with an itemized statement of the well costs, expenses and unit production.... Failure to provide the ... information within ninety (90) days from completion of the well and after an additional thirty (30) days from receipt of a certified letter from the mineral interest owner requesting compliance with R.S. 30:103.2 will result in the operator forfeiting its right to recoup the cost of drilling the unit well allocated to said owner”). We held off ruling on this case while a writ of certiorari was pending in XXI Oil & Gas. See 2017 WL 1207915 (La. Mar. 24, 2017). The denial of that writ is given no weight, Ehrlicher v. State Farm Ins., 171 F.3d 212, 214 n.1 (5th Cir. 1999), but leaves the intermediate court’s decision as the most probative evidence of Louisiana law.

We also find XXI Oil & Gas’s conclusion persuasive. The district court believed that the plain language of section 103.2— “owners of unleased oil and gas interests”—is clear: unleased interests are interests that are not leased. TDX Energy, LLC v. Chesapeake Operating, Inc., 2016 WL 1179206, at *5-6 (W.D. La. Mar. 24, 2016). But sections 103.1 and 103.2 must be read together. Adams v. Chesapeake Operating, Inc., 2013 WL 1193716, at *4 (W.D. La. Mar. 21, 2013) (rejecting construction of 103.1 where “[o]nly a purely literal application of each sentence of the statute, in isolation and without regard to context or the other provisions of the statute” supported it), aff'd, 561 Fed.Appx. 322; see also La. Civ. Code. art. 13 (mandating that laws on the same subject matter be interpreted in reference to each other). Sections 103.1 and 103.2 were added to Title 30 by the same legislative act, and section 103.2 refers to section 103.1, which creates the obligation that section 103.2 enforces. See La. R.S. § 30:103.2. When, as punishment for failure to comply with section 103.1, section 103.2 absolves owners from paying drilling costs, it thus refers to the same owners the operator was obligated to send reports to under 103.1.

So to whom are operators obligated to send reports under section 103.1? This much seems undisputed: an operator must send reports when the operator has no lease, not when there is no lease at all. But, as Chesapeake points out, section 103.1(A) is less clear about who has a right to receive reports: the operator must issue reports to owners of “said interests,” but section 103.1 refers to “lands,” not interests, before using “said interests.” Despite the imprecise reference to the antecedent term, the only logical reading is that “said interests” means oil and gas interests in lands for which the operator has no lease. “Said” must refer to something mentioned earlier in the section. Webster’s Third New International Dictionary (2002) (“‘Said’ modifying a noun means ‘aforementioned.’ ”). And what section 103.1 refers to before using “said interests” is lands producing oil or gas on which the operator has no oil and gas lease.

Chesapeake does not point to any other aforementioned interests to which section 103.1 could refer. Instead, it contends the court should look further down in the statute to understand “said interests.” Section 103.1(C) says reports must be sent to “each owner of an unleased oil or gas interest” who has requested them, without specifying unleased by the operator. This clarifies, Chesapeake argues, that operators must only provide reports to owners whose interests are entirely unleased.

Chesapeake’s interpretation runs into two problems. First, it is contrary to the ruíe that “courts are bound, if possible, to give effect to all parts of a statute and to construe no sentence, clause, or word as meaningless and surplusage.” Katie Realty, Ltd. v. La. Citizens Prop. Ins., 100 So.3d 324, 328 (La. 2012). If the legislature intended for operators to send reports only to owners who have not leased their mineral interests at all, section 103.1(A) should have referred to lands “upon which there is no valid oil, gas, or mineral lease” instead of “upon which the operator or producer has no” such lease. The only apparent role for the language the legislature used is to specify to whom an operator is required to send reports. Second, Chesapeake’s view is contrary to the meaning of “said” described above: an adjective that refers to something mentioned before. See Antoine v. Consol-Vultee Aircraft Corp., 217 La. 251,46 So.2d 260, 262 (1950) (holding that a statute’s reference to “said Courts of Appeal” “could refer only to the [courts] named specifically in the two preceding sections”). The imperfect grammar of using “said interests” to refer back to “lands producing oil or gas” rather than a prior reference to “interests” is a small thing; giving “said” its opposite meaning to refer to a subsequent term in the statute is a big thing. Cf. Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004) (“The statute is awkward, and even ungrammatical; but that does not make it ambiguous on the point at issue.”). Section 103.1 thus requires that reports be given to owners of interests on which the operator has no lease. And TDX’s reading is the only one that fits the section 103.1 piece of the statutory puzzle together with the section 103.2 piece.

This interpretation is confirmed by a broader view of Title 30. See La. Civ. Code. art. 12 (noting that when the words of a law are ambiguous, courts must examine the context in which they occur and the text of the law as a whole). Title 30 uses “unleased interests” to mean different things in different chapters. Section 111 states that “[ojwners of unleased mineral interests and lessees” are not liable to the operator for materials used in drilling and production in excess of the materials’ prevailing market price. La. R.S. § 30:111 (emphasis added). In that section, the legislature evidently did not include lessees in the term “owners of unleased interests.” On the other hand, section 10(A)(2)(e) states that provisions regarding a risk charge will “not apply to any unleased interest not subject to an oil, gas, and mineral lease.” La. R.S. § 30:10(A)(2)(e) (emphasis added). The second part of this provision would be superfluous if “unleased interest” always meant an interest not subject to any lease. To determine the meaning of “un-leased interests” in a particular provision, we therefore must examine the context. Like sections 111 and 10(A)(2)(e), section 103.1(A) contains clarifying language: an operator shall send reports when the operator has no lease. Further, section 103.1 is directed to the operator regarding the operator’s obligations, and section 103.2 explains when an operator forfeits the right to demand contribution. Both provisions are addressed to the operator, and it makes sense that they would use “unleased interest” to mean interests un-leased by the operator. In contrast, section 111 is addressed to owners and lessees regarding those parties’ obligations. In that context, there is no reason to believe “unleased interests” would mean interests unleased by the operator.

TDX’s reading of the statute is also consistent with the reason for requiring operators to provide the accounting. La Civ. Code art. 10 (stating that when a statute is susceptible to different meanings, courts must select the meaning that best conforms to the purpose of the law). Forced pooling allows the operator to extract oil and gas without the consent of others holding mineral interests in the same unit. When this happens, lessees, like other owners of oil and gas interests, have a right to benefits and a duty to contribute. But nonoperators lack access to the data showing the well production and costs in which they share. Sections 103.1 and 103.2 address this information asymmetry by giving lessees, like all nonoperating owners who have not contracted with the operator, an accounting of what the operator is doing. This court has recognized that, under 103.1, a “report has to relate the cost to the benefit: it must tell the unleased mineral owner what it is getting for its money.” Brannon Props., LLC v. Chesapeake Operating, Inc., 514 Fed. Appx. 459, 461 (5th Cir. 2013). Lessees need this information just as much as other owners of oil and gas interests, as the statute apparently does not provide an alternate mechanism for lessees to get this information. Indeed, XXI Oil & Gas found that, given the lessee’s rights and obligations in a unit well, a lessee “has a serious stake in the reliability of the statement” required by section 103.1 and is entitled to sworn statements as “[a]n un-sworn statement leaves mineral lessees ... vulnerable to a degree that this statute seeks to prevent.” 124 So.3d at 535.

The district court thought that the “legislature well may have intended to provide greater protections for land owners who typically are not as sophisticated as, or have the available resources of, individuals or entities that procure mineral leases.” TDX Energy, 2016 WL 1179206, at *6. Title 30 does provide some extra protection to completely unleased owners. They are not subject to a risk charge. La. R.S. § 30:10(A)(2)(e). That makes sense, as an unsophisticated owner may lack resources to contribute to drilling costs up front. But there is no apparent reason to treat lessees differently when it comes to reports. If anything, lessees may have a greater interest than unleased owners in timely disclosures from operators, as lessees are often under an obligation to promptly pay royalties to their lessors.

Chesapeake argues that our interpretation of “said interests” leads to the absurd result of requiring operators to report to owners of any interest in the land, even those with no obligation to contribute to drilling expenses or right to benefit from production. But section 103.1 is concerned with interests in “lands producing oil or gas,” and its title specifies that the section deals with operators’ reporting requirements regarding “mineral interests.” 2001 La. Sess. Law Serv. 973. This “do[es] not constitute part of the law” but does “provide some aid in interpreting legislative intent.” Adams, 561 Fed.Appx. at 326 (internal quotation marks and citations omitted). In context—under a title referring to mineral interests, with provisions relevant only to such interests—section 103.1 refers to owners of oil and gas interests, not of any interest in the relevant lands. Further, an operator is not required to produce reports unless they are requested, id. at 325, and we see little reason why owners with no interest, or only a passive interest, in production would make the effort of requesting them. Finally, the remedy provided for failure to produce reports is that the operator forfeits the right to demand contribution for the costs of drilling, a remedy that cannot apply to owners without an obligation to contribute to such costs.

We thus are not convinced that XXI Oil & Gas takes an erroneous view of the statute. The most natural reading of sections 103.1 and 103.2 is that operators forfeit their right to contribution when they fail to send timely reports to lessees with oil and gas interests in lands upon which the operator has no lease, and that interpretation is most consistent with the statute’s context and purpose.

B.

Chesapeake alleges that even if sections 103.1 and 103.2 provide a remedy for lessees, applying them in that way would violate Article III of the Louisiana constitution. That Article dictates that “[ejvery bill ... shall be confined to one object” and “contain a brief title indicative of its object.” La. Const, art. Ill § 15(A). The purpose of this requirement is to “give the legislature and the public fair notice of the scope of the legislation” and “defeat deceitful practices of misleading the legislature into the passage of provisions not indicated by the title of the bill.” Bazley v. Tortorich, 397 So.2d 475, 485 (La. 1981). According to Chesapeake, the brief title of the act enacting sections 103.1 and 103.2 did not indicate its object if it applied to lessees, because it referred only to “reporting requirements of operators and producers to owners of unleased mineral interests.” Act No. 973, 2001 La. Leg.; see also Bazley, 397 So.2d at 485 (noting that an act’s title is the brief description beginning with “[t]o amend and reenact”).

But the title of Act 973 provided sufficient notice of its object. Regardless of the meaning of the phrase “unleased mineral interests,” the legislature used it throughout the Act. The title of an act “is not to be strictly construed, but rather liberally construed to effectuate the legislative purpose of the statute.” Doherty v. Calcasieu Par. Sch. Bd., 634 So.2d 1172, 1174-75 (La. 1994) (reversing the trial court’s holding that, because the title of an act “use[dj the permissive term ‘authorize,’ and the body of the act use[d] the mandatory term ‘shall’, the title violate[d] the title-body clause”); Bazley, 397 So.2d at 486 (specifying that a title need not “be an index to the contents of the act”; it is sufficient that “the object be fairly stated, although it be expressed in general terms”).

Chesapeake identified three cases in which the Supreme Court of Louisiana found titles misleading. One title did not give fair notice when it said the act provided quarters for a parish court, without indicating that it also authorized the parish to charge tax-levying bodies, including school boards, for the costs of collecting any taxes they levied. Orleans Parish Sch. Bd. v. City of New Orleans, 410 So.2d 1038, 1039 (La. 1982). Another gave no “notice that substantial funds were to be transferred annually” from one district to another, an “extraordinary legislative subject.” Terrebonne Parish Police Jury v. Bd. of Comm’rs, 306 So.2d 707, 709 (La. 1975). The third said nothing about the fact that an act authorized the establishment of an institution for juvenile offenders in New Orleans. Jefferson Parish v. Louisiana Dep’t of Corr., 259 La. 1063, 254 So.2d 582, 597 (1971). The titles in these decades-old cases omitted that the acts they described addressed matters generally subject to intense public scrutiny: public money and the location of a penal institution. This small number of cases finding titles misleading, and their subject matter, shows they are the exception and not the rule. Given the liberal construction courts must give titles, a title which gave notice that an act dealt with operators’ reporting requirements cannot fail because it did not specify every party to whom they must report.

IY.

Chesapeake’s counterclaim asserts that TDX is required to pay a risk fee under section 10(A) because TDX did not make an election regarding the risk fee under that provision. The version of section 10(A) that was in effect at all times relevant to this case stated that:

Any owner drilling or intending to drill a unit well, ... on any drilling unit heretofore or hereafter created by the commissioner, may ... notify all other owners in the unit of the drilling or the intent to drill and give each owner an opportunity to elect to participate in the risk and expense of such well.

La. R.S. § 30:10(A)(2)(a)(i). According to that section, the notice must contain: (1) an “estimate of the cost of drilling, testing, completing, and equipping the unit well”; (2) the “proposed location of the unit well”; (3) the “proposed objective depth of the unit well”; and (4) “[a]ll logs, core analysis, production data, and well test data from the unit well which has not been made public.” Id.

When a notified owner elects not to participate in the risk and expense of the unit well, the operator is entitled to recover out of production the nonparticipating owner’s “share of the actual reasonable expenditures incurred in drilling, testing, completing, equipping, and operating the unit well, including a charge for supervision, together with a risk charge, which risk charge shall be two hundred percent of such tract’s allocated share of the cost of drilling, testing, and completing the unit well.” Id. § 30:10(A)(2)(b)(i). An owner not notified still bears its tract’s share of “actual reasonable expenditures,” but owes no risk charge. Id. § 30:10(A)(2)(b)(ii). As discussed above, the risk charge also does not apply to “any unleased interest not subject to an oil, gas, and mineral lease.” Id. § 30.10(A)(2)(e).

TDX obtained two of its twenty-one leases, and all were dated retroactively to, before the well was completed. But no lease was recorded until the unit well was completed. In Louisiana, “[although the lease may have retroactive effects between the parties to it, the document is a nullity with respect to third parties until recordation.” King, 673 So.2d at 1340. The relevant lease date for the purposes of determining Chesapeake’s rights and obligations under section 10(A) is therefore the date the leases were recorded. Id. (finding an interest “unleased for the purposes of La. R.S. 3010(A)(3) ... until the date of recordation of the [lessee’s] lease,” because at the time the operator’s obligation arose—the sale of unit production— the lease had not been recorded); see also La. R.S. § 3010(A)(2)(h) (“The owners in the unit to whom the notice ... may be sent, are the owners of record as of the date on which the notice is sent.” (emphasis added)). Thus, as to Chesapeake, when the well was completed, the oil and gas interests for the relevant tracts were not subject to oil and gas leases, and there was no reason for Chesapeake to send notice to the owner of record, as it had no chance of obtaining a risk fee.

Chesapeake thus sent notice for the first time after TDX’s interests were recorded. Unfortunately for Chesapeake, this notice was untimely. Drilling was complete. The provision in effect at the time said that an “owner drilling or intending to drill” must notify other owners of “the drilling or the intent to drill” in order to receive a risk charge. The use of the present and future tenses shows legislative intent that the provision did not apply to completed wells. See Benjamin v. Zeichner, 113 So.3d 197, 203 (La. 2013) (finding the legislature’s use of the present tense meaningful). Two exceptions to this temporal limit also indicate that there was such a limit: (1) an owner “who drilled or was drilling” a well could provide notice “as if a unit well were being proposed” if a drilling unit was created around a well “already drilled or drilling”; and (2) an owner who “had drilled the unit well” could provide notice “as if a unit well were being proposed” if a unit was revised to include additional tracts. La. R.S. § 30:10(A)(2)(c)-(d). When a unit was revised to include additional tracts, the operator could only send notice to the owners of added tracts, not owners previously included in the unit, indicating that the time for sending notice to included owners had elapsed. Id.

Chesapeake argues that the time to send notice was not limited because the notice was required to contain production data, ■and production data is not available until a well is drilled. But section 10(A) did not require the notice to contain production data in all circumstances. It allowed owners “intending to drill” to send a notice, and the notice was required to include “all ... production data ... from the unit well which ha[d] not been made public.” That means if there was no such data, the notice did not need to include it. The production data requirement also was not surplusage: the exceptions discussed above allowed notice to be sent in certain circumstances (not present here) after a well was completed, and production data would be available in those circumstances. Further, other notice requirements would be illogical if the well were completed when notice was sent. The notice was required to include an “estimate” of drilling costs and the “proposed” location and depth of the well.

The current version of section 10(A) fixes the problem we face. It says that an owner “drilling, intending to drill, or who has drilled a unit well” may send notice. La. R.S. § 30:10(A)(2)(a)(i) (effective June 13, 2016) (emphasis added). The addition of the last category shows it is not included in the first two. The notice also must now contain an “estimate or the actual amount” of drilling costs and the “proposed or actual” location and depth of the well. Id. (emphasis added). And, “[i]n the event that the well is being drilled or has been drilled at the time of the notice,” production data which has not been made public must be included. Id. To give meaning to the current statute, we must give interpretative significance to these differences.

Chesapeake calls these changes merely a clarification of prior legislative intent. But between the version of section 10(A) that applies to this dispute and the current version, the legislature enacted a different version which said an “owner drilling or intending to drill” must notify other owners “prior to the actual spudding” of the well to receive a risk charge. La. R.S. § 30:10(A)(2)(a)(i) (effective from August 1, 2012, to June 12, 2016). That version made explicit that the production component of the notice was only applicable “[i]n the event the proposed well [wa]s being drilled or drilled at the time of the notice,” a condition which, under that version, was explicitly only possible under the two exceptions. The history of these amendments confirms what the new language indicates: in enacting the current version, the legislature charted a new course.

Chesapeake’s fallback position urges us to resort to equity, arguing that TDX gamed the system by not recording its leases until the time for Chesapeake to send notice had elapsed. TDX may have discovered a loophole in the law which allowed it to reap the benefits of the unit well without taking on any risk, though TDX contends it did not intend to game the system as it did not begin taking leases in the unit until the day before the well was completed. And Chesapeake did not end up in a worse position than it expected. At the time it drilled the unit well, it knew there were no recorded leases for the acres at issue and did not expect any upfront contribution or risk fee under section 10(A) for those acres. Regardless, as Chesapeake points out, giving TDX any benefit based on a late notice makes little sense: a late notice provides an owner greater information about whether a well will produce enough to merit the risk. When the text of the law is clear, however, the court may not resort to equity. See La. Crv. Code art. 4; Brannon Properties, 514 Fed.Appx. at 460-62. In this case, the text limited the time to provide notice to before the well was complete.

$ $ ⅜

The judgment is REVERSED in part and AFFIRMED in part. The case is remanded for entry of a judgment consistent with this opinion.

      . Ranee L. Craft, Of Reservoir Hogs and Pelt Fiction: Defending the Ferae Naturae Analogy Between Petroleum and Wildlife, 44 Emory L.J. 697, 701 & n.22 (1995) (quoting Walter Run-dell, Jr., Early Texas Oil: A Photographic History 1866-1936, at 38 (1977)).

      . Id. at 701.

      . Edgerton, Boiler Avenue, 1903, in Rundell, supra note 1, at 43.

      .Craft, supra, at 701 (quoting Richard O’Connor, The Oil Barons: Men of Greed and Grandeur 85 (1971)).

      . As discussed later, portions of the title governing mineral law in Louisiana (Title 30), have been amended since this case was hied. The version of the statute in effect from August 15, 2008, to July 31, 2012, applies to this dispute.

      . This is "an underground reservoir containing a common accumulation of crude petroleum oil or natural gas or both.” La. R.S. § 30:3(6).

      .An “owner” under Louisiana Revised Statutes Title 30 is a "person ... who has or had the right to drill into and to produce from a pool and to appropriate the production either for himself or for others.” La. R.S. § 30:3(8). A lessee of oil and gas rights falls within this definition.

      . Chesapeake points to an earlier writ denial by the same court that decided XXI Oil & Gas: Kash Oil & Gas, Inc. v. Tex. Petroleum Inv. Co., No. CW 10-00079 (La. App. 3 Cir. Apr. 22, 2010). The trial court had denied the defendant’s objection of no right of action (arguing a lessee is not an owner of an un-leased interest under 103.2) but granted the defendant’s objection of no cause of action (arguing that applying 103.2 to a lessee is unconstitutional because 103.l’s title refers only to owners of unleased oil and gas interests). The appellate court found "no irreparable injury in the trial court’s ruling.” Id. We do not rely on this writ denial, which has no precedential value. See State v. Romero, 552 So.2d 45, 49 (La. App. 3 Cir. 1989).

      . 1950 La. Sess. Law Serv. 387; 2001 La. Sess. Law Serv. 973 (amending and reenacting the provisions).

      . It is especially clear that the owners described in section 103.2 are the same owners described in section 103.1 as, after establishing the reporting obligation in section 103.1(A), the legislature went on to describe the mechanics of reporting in subsections 103.1(B)-(D) using shorthand similar to that used in section 103.2: “owner of the unleased interest,” "owner of an unleased oil or gas interest,” and "owner of an unleased interest.”

      . Later subsections in a statute can provide additional specificity regarding a statutory right. See Adams, 561 Fed.Appx. at 324 (holding that, although section 103.1(A) says operators "shall” provide reports, without qualification, section 103.1(C) clarifies that the operator is only required to send reports after notice). But "said interests” cannot mean "interests defined below.”

      . The district court thought that lessees like TDX can find out the information by disputing the calculation of unit well costs pursuant to La. R.S. § 30:10(A)(2)(f), and requesting that the Commissioner hold a hearing to determine proper costs. TDX Energy, 2016 WL 1179206, at *7 n.10. There is no reason to believe the legislature intended for lessees, unlike other owners of oil and gas interests, to regularly institute proceedings with the Commissioner in order to understand the calculation of costs. Further, this remedy is unlikely to be effective. The Commissioner has rarely exercised authority under section 10(A)(2)(f) to resolve a dispute regarding the calculation of unit costs. Asprodites, supra, at 546.

      . The brief title reads: "to amend and reenact R.S. 30:103, 103.1 and 103.2, relative to reporting requirements of operators and producers to owners of unleased mineral interests; to provide for exceptions; to provide for quarterly reporting of the amount of and price received for production and occasional costs of operations; to provide for method of transmittal of reports and notices; to provide for time limits for payments; and to provide for related matters.”

      . Chesapeake points to a case in which we applied equitable principles in interpreting a joint operating agreement including similar notice and risk charge components. Bonn Operating Co. v. Devon Energy Prod. Co., 613 F.3d 532, 533 (5th Cir. 2010). The agreement provided for notice of "proposed operations,” but the operator sent Bonn notice after the well was completed. Id. We held that even though the language "indicated] that the notice should be sent prior to operations being commenced,” Bonn was not harmed by receiving notice after completion and had waived any right to object by making an election. Id. at 535-36. As the district court held, Bonn is not controlling. It did not interpret a Louisiana statute. When interpreting a statute, the court may only resort to equity if "no rule ... can be derived from legislation.” La. Civ. Code art. 4.


source: Caselaw Access Project

author: JAMES L. DENNIS, Circuit Judge:

license: Public Domain

text:
    Ricky KOCH; Susan Koch, Plaintiffs-Appellees American Interstate Insurance Company, Intervenor v. UNITED STATES of America, Defendant-Appellant
    No. 15-30811
    United States Court of Appeals, Fifth Circuit.
    FILED May 12, 2017

      David A. Abramson, Ian Fitzgerald Taylor, Lewis, Kullman, Sterbcow & Abram-son, New Orleans, LA, for Plaintiffs-Ap-pellees.
    Henry Harvey LeBas, LeBas Law Offices, A.P.L.C., Lafayette, LA, for Interve-nor.
    Matthew Miles Collette, Steve I. Frank, Malinda Lawrence, Trial Attorney, Peter Glenn Myer, Trial Attorney, U.S. Department of Justice, Washington, DC, for Defendant-Appellant.
    Before JONES, DENNIS, PRADO, Circuit Judges.
   JAMES L. DENNIS, Circuit Judge:

Plaintiff Ricky Koch fell and suffered personal injuries while aboard the S.S. Altair, a public vessel owned by the United States and operated by its agents. Koch, a 54 year-old foreman and employee of Economy Iron Works, was inspecting the vessel in connection with his employer’s bidding on repair work on the vessel. Koch and his wife, Susan Koch, brought this action in federal district court against the Government under the third-party liability provision of the Longshore and Harbor-workers’ Compensation Act (LHWCA), 33 U.S.C. § 905(b). Following a bench trial, the district court determined that negligence attributable to the Government— failure to provide adequate lighting of a stairwell—was the factual and legal cause of Koch’s fall, resulting harm, and permanent disability and awarded the Kochs $2.83 million in damages. The Government filed a timely notice of appeal. See Fed. R. App. P. 4(a)(1)(B). This court has jurisdiction under 28 U.S.C. § 1291.

I

A

The Government contends that, prior to his February 2, 2012 accident, Koch had become disabled by his painful chronic osteoarthritis in both his knees, as well as the degenerative disc disease in his cervical spine and carpal tunnel syndrome. Although Koch’s preexisting conditions are undisputed, the district court rejected the Government’s argument that Koch had been disabled by them prior to his accident. We affirm this factual finding by the district' court as not clearly erroneous for the reasons set forth in detail later in this opinion. At this point, in the interest of chronological clarity, we set forth briefly the evidence of Koch’s developing osteoar-thritie knee and spinal diseases prior to his accident, as follows:

In 2002, Dr. Richard Corales diagnosed Koch as suffering from degenerative disc disease. In 2004, Koch was diagnosed with multiple joint arthritis by Dr. Terry Habig who referred him to a rheumatologist. In 2005, Dr. Merlin Wilson, a rheumatologist, diagnosed Koch with generalized osteoarthritis and concluded that he needed total knee replacement. In December 2007, Koch saw Dr. Miranne, who recorded that Koch had a history of “progressive lower back pain for many years” and documented, inter alia, carpal tunnel syndrome. In January 2008, Dr. Lucien Miranne performed cervical spine fusion surgery of Koch’s C3-4 and C4-5. In January 2009, Koch was seen by Dr. Lockwood Ochsner, who said he considered doing bilateral total knee replacement. In January 2012, Dr. Wilson saw Koch again and noted that he needed total knee replacement surgery “in the worst way.”

B

On February 2, 2012, Koch boarded the S.S. Altair, a public vessel in reserve status owned by the United States Maritime Administration. Along with six other contractor representatives, Koch participated in a “walkthrough” of the vessel in order to submit a bid for his company on areas of the vessel in need of repair. The chief engineer of the Altair directed the walkth-rough. The contractor group eventually arrived at a stairwell leading down to the winch room, a small compartment that housed the vessel’s eductor system. The chief engineer flipped the light switch at the top of the stairwell, but the fluorescent lights did not fully illuminate the area. The engineer led the contractor group down the stairwell, which became progressively darker. While some contractors used flashlights to help illuminate their descent, Koch held on to the handrails with both hands. However, he missed the last step in the dark and fell backwards, striking his head, neck, and shoulders on the bulkhead. He sat down while the other contractors inspected the winch room. Koch then continued with the group’s walkthrough of the Altair. However, Koch did not complete a second walkthrough of another vessel, but instead returned to his. office. After filling out an accident report, Koch remained in the office for the rest of the day. A colleague drove him home, where his wife found him immobile on a recliner.

Essentially incapacitated and experiencing severe pain in his knees, neck, and back, Koch remained at home, unable to return to work. When his symptoms did not improve after a few days of rest, he went to an urgent care clinic. The doctor at the clinic instructed Koch to follow up with a specialist; Koch saw Dr. Simon Finger, an orthopedic surgeon. Dr. Finger noted Koch’s history of osteoarthritis in his knees but concluded that the February 2,- 2012 shipboard fall exacerbated his preexisting osteoarthritic conditions and caused the urgent necessity for surgical bilateral knee replacements.

Prior to performing a knee replacement, however, Dr. Finger instructed Koch to see a neurosurgeon for his neck symptoms that had manifested after the fall. Koch saw Dr. Lucien Miranne, a neurosurgeon who had previously performed an anterior cervical discectomy and fusion at his C3-4 and C4-5 vertebrae in his neck in January 2008. Dr. Miranne concluded that Koch herniated his C6-7 disc as a result of the February 2, 2012 fall and aggravated his cervical spondylosis in his C5-6 discs. Dr. Miranne recommended and performed an anterior cervical discectomy and fusion at C5-6 and C6-7 on Koch on August 17, 2012.

Following this cervical spine surgery, Koch had post-surgical complications, including carpal tunnel problems in his hands. Although Koch had mild carpal tunnel prior to the fall, Dr. Miranne noted that the carpal tunnel condition was worsened by Koch’s neck problems associated with his C6 and C7 nerve roots. On April 30, 2013, Dr. Miranne performed a right carpal tunnel release on Koch.

Koch’s symptoms, including severe pain in his neck, shoulders, arms, and hands, worsened after the August 17, 2012 surgery. Dr. Miranne concluded that because of Koch’s persisting pain and discomfort, additional surgery was required, consisting of a posterior approach cervical fusion. Dr. Miranne explained that he had not used the posterior approach in the first place because it is more painful and usually requires longer hospitalization than the anterior approach. Dr. Miranne recommended that Koch first have and recover from the knee replacements before undergoing the posterior cervical surgery. On July 14, 2014, Dr. Finger performed a right total knee replacement. At the time of trial, Koch was scheduled to have the left knee replacement as soon as he had fully recovered from the first knee replacement. Dr. Miranne also recommended that Koch undergo a left carpal tunnel release.

C

In May 2013, the Kochs filed suit against the Government for damages for past and future medical care, lost wages, and pain and suffering. They alleged that the Government was liable due to its negligence in failing to provide a safe work place and adequate lighting on the vessel. Following a three-day bench trial, the district court determined that the Government’s negligence in failing to provide adequate lighting above the stairwell was the factual and legal cause of Koch’s accidental fall, his injuries, the exacerbation of his preexisting conditions, and his disability. Koch v. United States, No. CIV. A. 18-205, 2015 WL 4129312 (E.D. La. July 7, 2015).

Koch’s supervisor, Robert Barbalich, Jr. of Economy Iron Works, testified that he knew of Koch’s health issues prior to the accident, but that they never impacted his ability to work as a foreman and that he did not have mobility issues on the job. Barbalich expected Koch to work for another five to ten years before retiring. Dr. Miranne testified that Koch had returned to work without restrictions following the successful 2008 anterior cervical discecto-my and fusion. Dr. Wilson, a rheumatologist, testified that when he saw Koch in January 2012 Koch said that he had worked continuously and was able to perform all of his job duties and daily living activities. Koch testified that prior to the fall he had no plans to have knee replacement surgery and had no limitations or restrictions on account of his knees or neck. Susan Koch testified that prior to the accident Koch was very active at home; he replaced the kitchen cabinets, vaulted the ceiling in their bedroom, mowed the lawn regularly, and tended to their garden. After the accident, Koch could no longer sleep in a normal bed and the couple can no longer enjoy an active social life. She testified that the stress of working full time and caring for her husband had taken its toll on her and their relationship. Koch’s treating surgeons, Drs. Miranne and Finger, testified that Koch’s fall caused his injuries, exacerbation of preexisting conditions, and disability and that all of his subsequent surgeries were necessitated by that accident. Dr. Finger testified that more likely than not Koch will need revision surgeries to both knees within the next fifteen to thirty years. Dr. Miranne testified that even if Koch had successful knee replacements with Dr. Finger and a successful posterior approach cervical fusion surgery, it is more likely than not that he will never be able to return to any type of gainful employment due to the injuries sustained in his fall.

The district court award of damages to the Kochs of $2.83 million, including $1.3 million for Koch’s pain and suffering. In its findings of fact, the district court stated:

Prior to February 2, 2012, and despite multiple pre-existing injuries, Mr. Koch was an active, convivial man who enjoyed going to work. Although he frequently experienced pain while working, particularly in his knees, Mr. Koch performed his work activities with vigor and without restriction since at least 2010.... Mr. Koch was equally active at home. He mowed the lawn. He fixed the plumbing. He updated the kitchen cabinets. He removed the bedroom ceiling and reinstalled it. He even undertook to modify the drainage system in his home, which involved digging up the bulkhead, replacing existing pipe, and placing gravel rocks on top of the drain pipe.

Id. at *3-4. The district court found that “[a]s a result of the injuries he sustained on February 2, 2012 and the treatment he has received and will receive for those injuries, Mr. Koch will never work again.” Id. at *3 (footnote omitted).

II

On appeal, the Government argues that: (1) the district court applied the wrong legal standard applicable to eases in which the injured plaintiff had a diagnosed preexisting medical condition; (2) the district court erred in holding that the accident was the sole cause of Koch’s damages; and (3) the district court abused its discretion in limiting the testimony of the Government’s expert witness, Dr. William Hagemann, an orthopedic surgeon.

A

We review de novo the legal determinations of the district court after a bench trial. Seal v. Knorpp, 957 F.2d 1230, 1234 (5th Cir. 1992). In determining that the Kochs are entitled to recover for all of Koch’s harm and disability, without any discount or reduction because of Koch’s preexisting osteoarthritic knee and degenerative spinal conditions, the district court applied the principles set forth in Maurer v. United States, 668 F.2d 98, 99-100 (2d Cir. 1981):

It is a settled principle of tort law that when a defendant’s wrongful act causes injury, he is fully liable for the resulting damage even though the injured plaintiff had a preexisting condition that made the consequences of the wrongful act more severe than they would have been for a normal victim. The defendant takes the plaintiff as he finds him. See, e. g., Evans v. S. J. Groves & Sons Co., 315 F.2d 335, 347-48 (2d Cir. 1963) (Friendly, J.); United States Fidelity & Guaranty Co. v. United States, 152 F.2d 46, 49 (2d Cir. 1945) (L. Hand, J.); The Jefferson Myers, 45 F.2d 162 (2d Cir. 1930) (per curiam). A plaintiffs recovery for damages caused by a defendant’s wrongful act may not be proportionately reduced because of a preexisting weakness or susceptibility to injury such as an osteoarthritic condition or a weakness caused by a previous injury. See, e.g., United States Fidelity & Guaranty Co. v. United States, supra (congenital spine defect); Buchalski v. Universal Marine Corp., 393 F.Supp. 246, 248 (W.D. Wash. 1975) (preexisting weakness of lower back from prior injury that had stabilized at a nondisabling level). However, there are two exceptions to the general rule. First, when a plaintiff is incapacitated or disabled prior to an accident, the defendant is liable only for the additional harm or aggravation that he caused. Evans v. S. J. Groves & Sons Co., supra, 315 F.2d at 347. Second, when a plaintiff has á preexisting condition that would inevitably worsen, a defendant causing subsequent injury is entitled to have the plaintiffs damages discounted to reflect the proportion of damages that would have been suffered even in the absence of the subsequent injury, but the burden of proof in such cases is upon the defendant to prove the extent of the damages that the preexisting condition would inevitably have caused. Id. at 348.

Applying the foregoing principles, the district court concluded that, because the defendant’s negligent failure to safely illumine the stairwell was the factual and legal cause of Koch’s accidental fall and its disabling consequences, the Government is fully liable for his resulting harm and disability, even though Koch’s preexisting conditions made the consequences of the Government’s negligence more severe than they would have been for an ordinary victim. The district court found that neither of the exceptions to this general rule articulated in Maurer applies in the present case. The court found that the first exception does not apply because Koch was not disabled or incapacitated before the accident ; and that the second exception does not apply here because the Government did not carry its burden to prove the extent, if any, of the damages that the preexisting conditions would inevitably have caused even in the absence of the accident. We see no error in the district court’s application of the well-settled principles set forth in Maurer.

The Government contends, however, that Maurer is inapplicable because it is an “eggshell skull” plaintiff case, and that the “eggshell skull” concept applies only if the plaintiffs preexisting condition was completely latent and had not manifested itself prior to the plaintiffs accident caused by the defendant. This argument is not meritorious. Maurer itself involved a plaintiff who suffered from already manifested “preexisting degenerative back condition (osteoarthritis)” and an unspecified injury in a prior accident. 668 F.2d at 99. Moreover, the Government cites no authority for limiting the “thin skull” or “eggshell skull” rule—described often as the “defendant takes the victim as found” rule—to cases involving only latent or un-manifested preexisting conditions. This court and district courts within our circuit have expressed approval and acceptance of the “thin skull,” “eggshell skull,” or “defendant takes the victim as found” rule without limiting its application to latent or unmanifested preexisting conditions. See Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 495 (5th Cir. 2002); Dunn v. Denk, 54 F.3d 248 (5th Cir. 1995); Cutchall v. Cal Dive Int'l, Inc., No. CV 12-1291, 2013 WL 12107569, at *1 (E.D. La. Apr. 2, 2013); Johnson v. Cenac Towing, Inc., 599 F.Supp.2d 721, 730 (E.D. La. 2009); Laak-so v. Mitsui & Co. USA, No. CIV. A. 88-2450, 1989 WL 149186, 1990 A.M.C. 635, 645 (E.D. La. Dec. 6, 1989); Curtis v. Shivers, 674 F.Supp. 1237, 1239 (E.D. La. 1987).

Indeed, we have found no reported case so limiting the rule. Further, although we are not bound by the major torts treatises or the American Law Institute’s Restatement of Torts, it is significant that none of them recognizes such a limitation on the rule. See, e.g., W. Page Keeton et. al., Prosser and Keeton on Torts § 43, at 291-92 (5th ed. 1984); Dan B. Dobbs et. al., The Law of Torts § 206, at 711-13 (2d ed. 2011); Restatement (Third) of Torts § 31 (Am. Law Inst. 2010). For example, the Restatement (Third) of Torts, § 31 provides that:

When an actor’s tortious conduct causes harm to a person that, because of a preexisting physical or mental condition or other characteristics of the person, is of a greater magnitude or different type than might reasonably be expected, the actor is nevertheless subject to liability for all such harm to the person.

Section 31’s Reporter’s Note further states:

Every United States jurisdiction adheres to the thin-skull rule; more precisely, extensive research has failed to identify a single United States case disavowing the rule.... The essence of this rule prevents a defendant from seeking to avoid or reduce liability because some characteristic of the plaintiff, however unusual, combines with the tortious conduct of the defendant to produce physical or emotional harm that is greater than might be expected, unusual, or unforeseeable.

Id.

For these reasons, we conclude that the district court did not apply the wrong legal standard in this case with regard to Koch’s preexisting medical conditions.

B

The Government argues that the totality of.the medical evidence demonstrates that Koch’s preexisting conditions of spinal degenerative disease and osteoarthritic disease of his knees had caused him to become disabled prior to his fall on the Altair so that the district court’s findings of facts to the contrary are clearly erroneous and should be vacated.

Because a finding of disability vel non is a finding of fact, the standard governing appellate review of a district court’s finding of disability or lack thereof is that set forth in Federal Rule of Civil Procedure 52(a): “Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court’s opportunity to judge the witnesses’ credibility.” The question before us, then, is whether the district court’s failure to find that Koch was disabled prior to his accident was clearly erroneous.

The general principles governing the exercise of our power to overturn factual findings of a district court may be derived from the Supreme Court’s cases and our own cases. “The foremost of these principles ... is that ‘[a] finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985) (quoting Unit ed States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)). “This standard plainly does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently. The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court.” Id.

Thus “[i]f the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.” Id. at 573-574, 105 S.Ct. 1504 (citing United States v. Yellow Cab Co., 338 U.S. 338, 342, 70 S.Ct. 177, 94 L.Ed. 150 (1949)). Similarly, “when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Id. at 575-76,105 S.Ct, 1504.

Applying the foregoing principles in a review of the entire record in this case does not leave us with “a definite and firm conviction that a mistake has been committed,” see id. at 573, 105 S.Ct. 1504, and so we cannot characterize as clearly erroneous the district court’s finding that Koch had not been disabled by his deteriorating spinal condition and his osteoarthritic knee condition prior to his accidental fall aboard the Altair. In making its determination, the district court credited the testimony of Koch, his wife, and his supervisor, all of whom bore witness to the fact that, prior to his accident aboard the Altair, Koch was not disabled but was active in his job as foreman, in doing maintenance and repairs at home, and socially. The district court also credited the testimony of Koch’s treating physicians, Dr. Miranne, a neurosurgeon, and Dr. Finger, an orthopedic surgeon, who testified that Koch had not been disabled by his preexisting spinal and knee conditions prior to his accident. Dr. Miranne testified that Koch had recovered from a cervical operation he performed on him in 2008, that he had some intermittent symptomatology but was doing well and had returned to work up until his accident. Dr. Miranne concluded from his examinations, MRI readings, and surgery that Koch had sustained a herniated disc at C6-7 in his fall aboard the Altair, which aggravated the effects of his preexisting spinal disease and caused it to become totally disabling. Dr. Finger concluded from his examinations that Koch’s fall had aggravated his preexisting osteoarthritic knee conditions, painfully causing him to urgently need bilateral surgical knee replacements. Dr. Miranne and Dr. Finger testified that all of the surgeries performed and planned by them, with Koch’s consent, subsequent to Koch’s fall were necessitated by that accident.

In contrast with Dr. Miranne’s findings, Dr. Hagemann, the Government’s expert orthopedic surgeon, saw no signs or changes between Koch’s MRI films taken before and after the 2012 accident. The radiologist who made the films filed a report to the same effect. Based on these readings, Dr. Hagemann thought it was unlikely that Koch had received a herniated disc or had been seriously harmed by the 2012 accident. However, Dr. Hagem-ann had examined Koch but once, on September 2, 2014, which was after the pretrial surgeries performed by Drs. Miranne and Finger and long after the accident. No one except Dr. Miranne and Dr. Finger had performed surgery on him. The district court resolved the conflict in the evidence in favor of the testimony of the treating physicians, Drs. Miranne and Finger. Considering all of the circumstances and reasons stated, we cannot say that the district court’s determination was unreasonable or clearly erroneous. See id. at 574, 105 S.Ct. 1504 (“Where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be clearly erroneous.”).

C

Finally, the Government asserts that the district court erred by unfairly limiting the testimony of its expert, Dr. Hagem-ann, and by crediting the testimony of Koch’s treating physicians over that of Dr. Hagemann because of that limitation. Dr. Hagemann examined Koch once on September 2, 2014, reviewed some of Koch’s medical records, and prepared a pretrial expert report expressing his opinion that Koch did not sustain a herniated disc or any serious injury in his accident. Before his pretrial report, Dr. Hagemann had not yet personally reviewed the MRI films but based his opinion on the radiologist’s reports of them. By the time of the trial, however, Dr. Hagemann had reviewed the films himself, and at trial the Government sought to have him testify, in addition to his opinion based on the radiologist’s readings, that his opinion that Koch had suffered no new disc herniation or other serious injury in the accident was based on his own comparison of Koch’s MRI films before and after the accident. The district court sustained the Kochs’ counsel’s objection to the enhanced testimony on the grounds that it was an improper attempt to amend Dr. Hagemann’s pretrial report after the discovery deadline had passed and would improperly allow Dr. Hagem-ann to testify as to other doctors’ reports not included in his own report. The Government moved to make a proffer of the evidence, and the court stated that it would permit the proffer at the end of the trial. The Government did not make the proffer, however.

We review the evidentiary rulings of the district court under the deferential abuse-of-discretion standard. Kelly v. Boeing Petroleum Serve., Inc., 61 F.3d 350, 356 (5th Cir. 1995). “District courts enjoy wide latitude in determining the admissibility of expert testimony, and ‘the discretion of the trial judge and his or her decision will not be disturbed on appeal unless “manifestly erroneous.” ’ ” Watkins v. Telsmith, Inc., 121 F.3d 984, 988 (5th Cir. 1997) (quoting Eiland v. Westinghouse Elec., 58 F.3d 176, 180 (5th Cir. 1995)). Even if an abuse of discretion is found, the harmless error doctrine applies unless a substantial right of the complaining party was affected. See Compaq Comput. Corp. v. Ergonome Inc., 387 F.3d 403, 408 (5th Cir. 2004).

Having scoured the record, we are satisfied that the district court did not abuse its discretion in ruling to exclude the additional testimony by Dr. Hagemann about his review of the MRI films, particularly in light of the court’s offer to allow the Government to make a proffer of it at the end of the trial. But even if we were to assume, arguendo, that the district court erred in its exclusion-with-proffer ruling and did so to the point of abuse of discretion, we would still not reverse the district court’s judgment because, under the circumstances, such an error clearly appears to have been be harmless. It was plain that even without Dr. Hagemann’s excluded testimony on the subject that he and the radiologist, based on their reading of Koch’s MRI films, differed from Dr. Mir-anne’s findings that Koch sustained a herniated disc at C6-7 and suffered disabling exacerbating trauma as a result of his accident. But Dr. Miranne’s opinion as the treating neurosurgeon who had, inter alia, performed two surgeries on Koch’s cervical spine, was based on many other factors as well as his reading of the MRI films. For these reasons and the others expressed herein the district court’s decision to credit Dr. Miranne’s testimony over Dr. Hagemann’s was not unreasonable or clear error.

For these reasons, the judgment of the district court is AFFIRMED.

      . The district court had jurisdiction under its admiralty jurisdiction. 28 U.S.C. § 1333. The applicable waiver of sovereign immunity is the Public Vessels Act, 46 U.S.C. §§ 31101-31113.

      . Dr. Miranne testified that posterior approach cervical fusion surgery requires removing bone or portions of a herniated disc to relieve Koch's neck and arm pain and the use of mass screws and rods to hold the vertebrae in place and provide stability.

      . See Koch v. United States, 2015 WL 4129312, *3-4.

      . Id. at *6 ("The evidence presented at trial does not establish that any of the injuries of which Mr. Koch complains were inevitable.”).

      . Henderson v. United States, 328 F.2d 502 (5th Cir. 1964), the case relied upon by the Government, is inapposite. In that case, the plaintiff, a civilian, was injured when a Government agent negligently backed a truck into him on June 18, 1961. The district court found that plaintiff’s preexisting osteoarthritic lumbar condition was aggravated as a consequence of the negligence of the Government but that he suffered little or no pain immediately. Although he did experience some pain beginning in early July, his pain did not become severe and disabling until he suffered a second injury to his back on September 12, 1961, without fault or negligence on the part of the Government. Because the Government was in no way responsible for plaintiff's second, more serious back injury the district court awarded him only $5,000 for his June 18 injury. This court affirmed, stating as a general rule that where there is a subsequent injury, if the subsequent event is attributable to a distinct intervening cause, the wrongdoer is held to be liable only for the original injury. As the district court, after weighing the evidence as a whole, apparently concluded that the aggravation caused by the negligence of the Government in June 1961 was not a contributing factor to the injuries occurring in September 1961, the Court of Appeals concluded that it could not say that the district court’s findings and conclusion were clearly erroneous. Id. at 505. Henderson's facts are clearly distinguishable from the present case, because here there was a single accident that resulted in totally disabling harm; there was no second accident or intervening injury.

      . The Government’s brief initially states that that the district court erred in holding that the accident was the "sole cause” of Koch’s damages. Such an argument is meritless because the district court clearly did not find that Koch's accident was the "sole cause” of his resulting harm and disability. Rather, the district court found that the combination of his accident with its exacerbation of his preexisting conditions was the cause in fact and legal cause of his harm and disability. The somewhat more persuasive argument that the Government makes is that Koch had been rendered disabled by his preexisting conditions before his 2012 accident. This argument, too, is meritless, but it requires that we consider all of the evidence to determine whether the district court clearly erred in finding Koch was not disabled by his preexisting conditions prior to his accident.

      . Although the record indicates other doctors had previously diagnosed Koch’s preexisting osteoarthritic knee condition and advised him to undergo bilateral knee replacement, Koch testified that he had not planned to have those operations until his 2012 accident; and Dr. Finger stated without contradiction that a physician does not recommend such surgery if the patient chooses to function and to live with his knee pains.


author: EDWARD C. PRADO, Circuit Judge:

text:
    Gaspar SALAS, Plaintiff-Appellee, v. GE OIL & GAS, Defendant-Appellant.
    No. 16-20379
    United States Court of Appeals, Fifth Circuit.
    FILED May 12, 2017

      Reginald Edmund McKamie, Sr., Law Offices of Reginald E. McKamie, Sr., Houston, TX, for Plaintiff-Appellee.
    Carolyn Ann Russell, Ogletree Deakins, P.C., Houston, TX, for Defendant-Appellant.
    Before SMITH, PRADO, and GRAVES, Circuit Judges.
   EDWARD C. PRADO, Circuit Judge:

Plaintiff-Appellee Gaspar Salas brought claims against Defendant-Appellant GE Oil & Gas (“GE”) for discrimination and retaliation. The district court granted GE’s motion to compel arbitration and dismissed the case. However, the court later reopened the case and withdrew its prior order compelling arbitration. Because the district court lacked jurisdiction to do so, we VACATE and REMAND for further proceedings consistent with this decision.

I. BACKGROUND

Salas is a former employee of GE. When Salas accepted employment at GE’s predecessor, Dresser, Inc., he agreed to arbitrate all disputes between the two parties. After GE acquired Dresser, Inc., GE introduced its own dispute resolution program called Solutions. GE advised Salas that if he continued to work at the company after November 1, 2013, he would “agree to participate in and abide by” this arbitration program. Salas did continue to work at GE past this date. In June 2014, Salas brought suit against GE in the district court claiming discrimination and retaliation in violation of Title VIL GE then moved to compel arbitration. The district court granted this motion in December 2014 and dismissed Salas’s claims without prejudice.

The parties did not move forward with arbitration. Each side blames the other for the delay. In February 2016, Salas filed a motion in the district court to compel arbitration; GE opposed this motion as redundant. After a telephonic conference on this motion, the district court issued an order on March 30, 2016, reopening the case and withdrawing its earlier order compelling arbitration. The district court noted in this order that the parties had “failed” to arbitrate. After the court denied GE’s motion for reconsideration, GE timely appealed.

II. DISCUSSION

The parties contest both whether the district court had subject matter jurisdiction to issue its March 30, 2016 order and whether we have appellate jurisdiction over that order. We address appellate jurisdiction first.

A. Appellate Jurisdiction

GE contends that this Court has appellate jurisdiction under the Federal Arbitration Act (“FAA”), which permits an appeal from an order “denying an application ... to compel arbitration.” 9 U.S.C. § 16(a)(1)(C). Salas argues that the district court’s order dated March 30, 2016, was not an order denying a motion to compel arbitration, and that in any event GE appealed the order denying its motion for reconsideration.

The district court’s order dated March 30, 2016, followed a telephonic conference on Salas’s motion to compel arbitration. Although the order did nqt explicitly mention Salas’s motion, the order withdrew the court’s prior order granting GE’s motion to compel arbitration and reopened the case. In essence, then, the court’s March 30, 2016 order did deny an application to compel arbitration. Compare Moss v. First Premier Bank, 835 F.3d 260, 264 (2d Cir. 2016) (finding appellate jurisdiction over an order that “lifted a prior stay under Section 3 [of the FAA] and vacated a prior order compelling arbitration”), and Koveleskie v. SBC Capital Mkts., Inc., 167 F.3d 361, 363 (7th Cir. 1999) (finding appellate jurisdiction over “a minute order”—in which “the district court refused to compel arbitration”—because “there [was] no doubt from the record that the district court denied the defendant’s motion [to compel arbitration] and clearly meant to foreclose arbitration”), with Van Dusen v. Swift Transp. Co., 830 F.3d 893, 897 (9th Cir. 2016) (finding no appellate jurisdiction over “a case management order designed to lead to a decision on a motion to compel arbitration”). Additionally, GE’s motion for reconsideration tolled its time to appeal. Fed. R. App. P. 4. This Court therefore has appellate jurisdiction under 9 U.S.C. § 16(a)(1)(C).

B. Subject Matter Jurisdiction

GE principally argues that the district court lacked subject matter jurisdiction to reopen the case. Because the district court fully dismissed this case in December 2014, GE contends, the court could no longer exercise jurisdiction other than to enforce an arbitration award. In response, Salas argues that GE has waived its right to arbitration.

“We exercise plenary, de novo review of a district court’s assumption of subject matter jurisdiction.” Adam Techs. Int’l S.A. de C.V. v. Sutherland Glob. Servs., Inc., 729 F.3d 443, 447 (5th Cir. 2013) (quoting Local 1351 Int’l Longshore-mens Ass’n v. Sea-Land Serv. Inc., 214 F.3d 566, 569 (5th Cir. 2000)). This Court has held that a district court may retain ancillary jurisdiction (beyond merely enforcing the arbitration award) even after compelling arbitration and dismissing a case. Id. at 449. Thus, the fact that the district court fully dismissed this case is not necessarily fatal to the court’s exercise of jurisdiction.

But the FAA limits “jurisdiction by the courts to intervene into the arbitral process prior to issuance of an award.” Gulf Guar. Life Ins. v. Conn. Gen. Life Ins., 304 F.3d 476, 486 (5th Cir. 2002). Even if some default occurs in the arbitral process, courts may not intervene “beyond the determination as to whether an agreement to arbitrate exists and enforcement of that agreement.” Id. at 487; 9 U.S-.C. § 4 (“If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof.... If the jury find that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.”). For example, in Gulf Guaranty, we found that a district court could not entertain torts claims alleging “failure or breach of the agreed upon arbi-tral process” prior to issuance of an award; such claims do “not appear to fall within the ambit of a court’s authority to enforce a valid arbitration agreement under the FAA.” 304 F.3d at 486, 488. Nor does the FAA authorize a court to hear pre-award “disputes over the qualifications of an arbitrator to serve,” unless the dispute raises concerns “that the very validity of the agreement [is] at issue.” Id. at 491. As an example of appropriate judicial intervention, in Adam Technologies we held that the district court possessed jurisdiction to hear a motion to appoint an arbitrator even though the court had already entered judgment. 729 F.3d at 447-49. “[AJncillary jurisdiction existed” in that case “to evaluate whether the dismissal that allowed the dispute to be taken to arbitration was being thwarted.” Id. at 449.

The district court’s order of March 30, 2016, did not fall within the narrow scope of this ancillary jurisdiction. The court neither determined whether the parties’ agreement to arbitrate was valid nor enforced that agreement. Instead, the court found that the parties had “failed” to arbitrate and withdrew its prior order compelling arbitration. This was not permitted under the FAA. 9 U.S.C. § 4. .

Salas’s counterargument—that GE has waived its right to arbitration— does pertain to whether an arbitration agreement exists. But the district court did not address this issue, and in any event the argument is meritless. We have made clear that there is a strong presumption against finding a waiver of arbitration.” Al Rushaid v. Nat’l Oilwell Varco, Inc., 757 F.3d 416, 421-22 (5th Cir. 2014) (quoting Republic Ins. v. PAICO Receivables, LLC, 383 F.3d 341, 344 (5th Cir. 2004)). “[A] party waives its right to arbitrate if it (1) ‘substantially invokes the judicial process’ and (2) thereby causes ‘detriment or prejudice’ to the other party.” Id. at 421 (quoting Miller Brewing Co. v. Fort Worth Distrib. Co., 781 F.2d 494, 497 (5th Cir. 1986)). GE has not invoked the judicial process at all in this case; accordingly, it has not waived its right to arbitration.

“[BJased on a court’s limited authority under the FAA to intervene in the arbitral process prior to issuance of an award,” Gulf Guar., 304 F.3d at 488, we conclude that the district court lacked jurisdiction to withdraw its order compelling arbitration and reopen the case due to a default in the arbitral process. On remand, the court’s jurisdiction is limited to (1) determining whether an agreement to arbitrate still exists - and (2) enforcing that agreement.

III. CONCLUSION

For the foregoing reasons, the district court’s order of March 30, 2016, withdrawing its previous order compelling arbitration, is VACATED, and this case is REMANDED for further proceedings consistent with this decision.


author: KURT D. ENGELHARDT, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Raul MARTINEZ-RODRIGUEZ, Defendant-Appellant.
    No. 15-41688
    United States Court of Appeals, Fifth Circuit.
    FILED May 12, 2017

      John Richard Berry, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Michael Lance Herman, Assistant Federal Public Defender, Federal Public Defender’s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.
    Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District Judge.

       District Judge of the Eastern District of Louisiana sitting by designation.

   KURT D. ENGELHARDT, District Judge:

Martinez-Rodriguez appeals his sentence, contending that the district court erred by treating his prior conviction for the offense of causing injury to a child, under Texas Penal Code § 22.04(a)(3), as an aggravated felony on account of it being a crime of violence. Martinez-Rodriguez argues that § 22.04(a), which can be violated by act or omission, is neither categorically a crime of violence nor a divisible statute. Therefore, he posits, the modified categorical approach should not have been used at sentencing to narrow his prior conviction under the Texas state statute.

I. FACTUAL AND PROCEDURAL HISTORY

On August 12, 2015, Martinez-Rodriguez was charged with knowingly being present in the United States after deportation, without having obtained consent to re-enter the country from the Attorney General or from the Secretary of Homeland Security, in violation of 8 U.S.C. § 1326(a) and (b). Martinez-Rodriguez ultimately entered a guilty plea, without a plea agreement, and, oh December 15, 2015, was sentenced to 30 months imprisonment.

In the presentence report (PSR) prepared by the United States Probation Office in anticipation of sentencing, the probation officer recommended that Martinez-Rodriguez receive an enhancement under § 2L1.2(b)(l)(C) (2014), which calls for an eight-point increase in offense level “[i]f the defendant was deported, or unlawfully remained in the United States, after ... a conviction for an aggravated felony....” As noted, the probation officer made this recommendation based Martinez-Rodriguez’s 2008 conviction for causing injury to a child under Texas Penal Code § 22.04(a)(3)—an offense characterized in the PSR as a crime of violence and thus an aggravated felony. ROA.98-100 (PSR ¶¶ 12, 22). Attached to the PSR were the judgment of a state district court in Travis County, Texas, sentencing Mr. Martinez-Rodriquez to three years of prison for the prior conviction, ROA.107-109, as well as plea-related documents, ROA.HO-113, and the indictment. ROA.114. The indictment charged that Martinez-Rodriquez did “intentionally and knowingly cause bodily injury to [a named victim], a child 14 years of age or younger, by grabbing [the named victim] by the arm and throwing her to the floor.” ROA.114.

At sentencing, the district court overruled Martinez-Rodriguez’s written objection to the treatment of his prior conviction as an aggravated felony. As a result of that treatment, the court ultimately fashioned a sentence within a guideline range that reflected an enhancement under USSG § 2L1.2(b)(l)(C) and convicted and sentenced him under 8 U.S.C. § 1326(b)(2), on that same basis. Martinez-Rodriguez now appeals, placing before us the issue of whether Texas Penal Code § 22.04(a) is a divisible statute—a question previously answered in the affirmative by this Court in Perez-Munoz v. Keisler, 507 F.3d 357 (5th Cir. 2007).

II. DISCUSSION

The 2014 version of § 2L1.2(b)(l)(C) at issue herein, see ROA.98 (PSR ¶ 10), provides that a defendant’s offense level shall be increased by eight levels if the defendant was deported after an aggravated felony conviction, see § 2L1.2(b)(l)(C) (2014). Section 1326(b)(2) permits, inter alia, a maximum sentence of 20 years when an alien has been previously removed after an aggravated felony conviction. See 8 U.S.C. § 1326(b)(2). For purposes of both § 2L1.2 and § 1326(b)(2), the term “aggravated felony” has the meaning set forth in 8 U.S.C. § 1101(a)(43). See § 2L1.2, comment. (n.3(A)) (2014); United States v. Castaneda-Lozoya, 812 F.3d 457, 459 (5th Cir. 2016). Whether an offense qualifies as an aggravated felony is purely a legal question, reviewed by this Court de novo, Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir. 2008), as are interpretations of the Guidelines themselves. United States v. Conner, 537 F.3d 480, 489 (5th Cir. 2008).

Under § 1101(a)(43), the term “aggravated felony” is defined, in pertinent part, as the crime-of-violence offense set forth in 18 U.S.C. § 16 for which a prison term of at least one year has been imposed. 8 U.S.C. § 1101(a)(43)(F). Section 16 defines a “crime of violence” as either “(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” or “(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 16(a), (b).

To determine whether a prior conviction constitutes a generic offense, such as a crime of violence and thus an aggravated felony, this court generally employs the categorical approach—the focus of which is on the elements of the offenses, not the underlying facts of the prior conviction. See United States v. Hinkle, 832 F.3d 569, 572 (5th Cir. 2016); see also Franco-Casasola v. Holder, 773 F.3d 33, 36 (5th Cir. 2014) (discussing “how to determine whether a prior offense qualifies as an aggravated felony,” beginning with the categorical approach). So long as the relevant statutes state a single, or indivisible, set of elements, application of the categorical approach is a rote exercise. See Mathis, 136 S.Ct. at 2248. Courts simply line up the elements of the two offenses to determine whether they match. Id. If the elements of the prior offense are the same or narrower than those of the generic offense, then it qualifies for whatever consequences under federal law attach to the generic offense. Id. However, if its elements are broader, then the prior offense is not treated as an equivalent to the generic offense. Id.; see also Gomez-Perez v. Lynch, 829 F.3d 323, 326-27 (5th Cir. 2016) (applying the categorical approach in a case involving the Immigration and Nationality Act).

If a statute sets forth elements in an alternative or disjunctive structure, it is considered divisible, and a second approach is available to the courts. See Descamps v. United States, — U.S.-, 133 S.Ct. 2276, 2283-84, 186 L.Ed.2d 438 (2013). Known as the modified categorical approach, this approach allows a court to pare down a prior conviction under a divisible statute by consulting certain materials such as, in the case of a plea bargain, “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” See Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Thus, unlike the categorical approach which concerns elements only, underlying facts are relevant to the modified categorical approach.

In Mathis v. United States, the Supreme Court provided guidance on when a statute is divisible and, thus, when the modified categorical approach is available. — U.S.-, 136 S.Ct. 2243, 2248-54, 195 L.Ed.2d 604 (2016). It clarified that the approach is to be applied only to statutes that list alternative elements and not to statutes that list alternative means of satisfying elements. Id. The distinction between the elements and means is critical to the divisibility of a statute. See id. at 2256 (“The task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means.”). “The test to distinguish means from elements is whether a jury must agree.” United States v. Howell, 838 F.3d 489, 497 (5th Cir. 2016). “Elements must be agreed upon by a jury. When a jury is not required to agree on the way that a particular requirement of an offense is met, the way of satisfying that requirement is a means of committing an offense not an element of the offense.” Hinkle, 832 F.3d at 575. Ultimately, “the court has no call to decide which of ... alternative! ] [means] was at issue in [an] earlier prosecution.” Mathis, 136 S.Ct. at 2256.

According to Mathis, a determination of means versus elements is often easy to make, as federal courts are to follow definitive state court decisions on the issue. Id. at 2256 (“When a ruling of that kind exists, a sentencing judge need only follow what it says.”). In prior opinions, this Court has recognized that “[t]he Mathis decision is controlling regarding the methodology of the modified categorical approach, and we must apply its holdings, even when they are contrary to prior precedent of this court.” See Hinkle, 832 F.3d at 574 (applying methodology addressed in Mathis to a Guidelines issue); see also Gomez-Perez v. Lynch, 829 F.3d 323, 328 n. 5 (5th Cir. 2016) (recognizing that Mathis overruled certain prior cases insofar as they found a particular “statute to be divisible and subject to the modified categorical approach”).

As noted by the parties in this case, the Fifth Circuit has previously held that causing injury to a child under Texas Penal Code § 22.04(a) is not categorically a crime of violence for purposes of the aggravated felony enhancement of § 2L1.2, because such offenses may be committed by both acts and omissions. See United States v. Gracia-Cantu, 302 F.3d 308, 310, 312-13 (5th Cir. 2002). Furthermore, as noted, this court analyzed § 22.04(a) in Perez-Munoz v. Keisler, applying the modified categorical approach. 507 F.3d 357, 358-59, 361-62 (5th Cir. 2007). In doing so, the Perez-Munoz court found that the Texas statute was divisible because it involved multiple offenses, specifically because it criminalized both acts and omissions causing injury to a child. Id. at 362; see also Carmona-Castillo v. Mukasey, 300 Fed.Appx. 287, 288 (5th Cir. 2008) (observing that § 22.04(a) was divisible because it defined multiple offenses). Since the Des-camas and Mathis decisions, however, it is now clear that an elements-focused analysis is the only approved method for determining the divisibility of the statute.

Now, guided by the Mathis decision in particular, the Court must revisit Texas Penal Code § 22.04(a), to consider whether its listed items, namely committing an offense by act or by omission, are alternative elements of an offense or alternative means of commission. We find that the Texas Court of Criminal Appeals has answered this precise question by concluding that the Texas Legislature intended the “act or omission” language in § 22.04(a) to “constitute the means of committing the course of conduct element of injury to a child” rather than elements of the offense “about which a jury must be unanimous.” Jefferson v. State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006); see also Villanueva v. State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007) (holding, for purposes of double jeopardy, that the act and omission components of Tex. Penal Code § 22.04(a) “were simply two means of alleging and/or proving the same offense .... ”). Accordingly, our analysis must rest upon those definitive state law decisions. Therefore, we too conclude that § 22.04(a) is an indivisible statute, as a result of its alternative components being means and not elements. As such, the modified categorical approach should have played no role in the district court’s sentencing decision. Furthermore, because the offense of causing injury to a child is broader under the Texas statute than a crime of violence, the sentencing court erred when, without the benefit of Mathis, it considered more than statutory elements to discern the means by which Martinez-Rodriguez committed the offense, for purposes of enhancement under USSG § 2L1.2(b)(l)(C) (2014) and sentencing under 8 U.S.C. § 1326(b)(2).

III. CONCLUSION

For the foregoing reasons, we VACATE Martinez-Rodriguez’s sentence and REMAND for resentencing in accordance with this opinion.