Co-Author Maryann Zaki
In this post we raise the question and discuss what the parties believe the answer should be.
The Havner Hurdle
Merrell Dow Pharmaceuticals, Inc. v. Havner established hurdles to a plaintiff’s right to recover for personal injuries in a toxic tort case. So far the Parrs have cleared enough of them to get a verdict in their favor. The 11th amended petition disclaimed “personal injury” damages that would invoke Havner. In response, Aruba argued:
- Plaintiffs’ alleged “disclaimer” of personal injury damages was ineffective, given the damages that plaintiffs continued to plead.
- The plaintiffs failed to specifically identify studies that met Havner’s requirements that there be some evidence of causation linking the alleged contamination to their injuries.
The court granted partial summary judgment:
- Plaintiffs take nothing on any personal injury claim that would invoke the proof requirements of Havner.
- Plaintiffs take nothing on any claim that defendants’ actions caused a disease that occurs genetically and for which a large percentage of the causes are unknown and that plaintiffs’ claims for damages are limited only to symptoms typical of discomfort rather than disease.
- Plaintiffs’ personal injuries are limited to injuries that are (1) within the common knowledge and experience of a layperson, and (2) the sequence of events is such that a layperson may determine causation without the benefit of expert evidence.
Aruba’s Post-verdict Efforts
After the jury awarded $2.65 million for the Parrs’ personal injuries, Aruba argued that:
- Plaintiffs’ injuries and damages fell within the general rule that expert testimony is required to prove causation in a toxic exposure case.
- The damages awarded by the jury did not fit within a very narrow window of available claims to be proven at trial and could not be proven by lay testimony.
- The trier of fact is may decide causation in cases of this nature based on (1) their general experience and common sense; (2) when scientific principles, usually proved by expert testimony, establish a traceable chain of causation from the condition back to the event; and (3) when probable causal relationship is shown by expert testimony.
- Plaintiffs offered expert testimony regarding general causation of their symptoms typical of discomfort rather than disease.
- Texas law allows expert testimony to augment the causal analysis with evidence of general causation regarding “symptom damages” where specific causation was within the experience and understanding of the jury.
- Nothing in the court’s orders or Texas law prevented plaintiffs from introducing (1) expert testimony regarding on “event causation”, and (2) expert testimony on “general” causation to augment “specific” causation of symptoms “typical of discomfort rather than disease.”
- Expert’s testimony about health effects generally caused by VOCs was legally sufficient evidence of general causation because he testified about plaintiffs’ complaints and their causal relation to the chemicals and/or particulates from Aruba’s well sites.
- Havner causation requirements do not apply because plaintiffs sought damages for symptoms typical of discomfort rather than disease.
- There was expert testimony on general causation that established a sequence of events from which the trier of fact properly inferred that Aruba’s activities were a “substantial factor in bringing about the damages, and without which condition such damages would not have occurred.” The Parrs testified that they never experienced the symptoms and nuisance conditions prior to Aruba’s operations.
- No Texas cases recognize the standard the Parrs attempted to create to prove scientific causation.