Co-author Maryann Zaki
You might recall previous entries (here is one) discussing the $2.9 million Dallas County verdict and judgment in Parr v. Aruba. Not all similar suits have the same result.
Michael and Myra Cerny sued Marathon Oil Corp. and Plains Exploration & Production Company, alleging, as in Parr, private nuisance, negligence, and negligence per se. As in Parr, among the allegations were:
- continuous release of “ … strong odors and noxious chemicals into the environment, including the plaintiffs’ property, causing injury and harm to the plaintiffs’ property and to their persons;” and
- health problems, including headaches, rashes, chest pain, “strange nerve sensations,” high blood pressure, nausea, difficulty breathing, and nosebleeds.
Plains’ defense was that in order to prevail, the Cernys had to prove exposure specifically to Plains’ hydrocarbons, not just hydrocarbons in general.
The trial court observed that proving causation – that Plains’ operations and not something else – caused injury was a “high hurdle that has to be jumped”, and dismissed all defendants. Gray Reed attorneys, led by Jim Ormiston, represented Plains.
Parr and Cerny are on appeal to different courts. The question for those courts is likely to be: What evidence is necessary to prove causation in a hydrocarbon exposure case?
What Does the Texas Supreme Court Say?
The Texas Supreme Court held in Bostic v. Georgia Pacific Corporation that where multiple sources of exposure exist, the plaintiffs must prove substantial factor causation. Proof of “some exposure” or “any exposure” will not establish causation. There must be defendant-specific evidence relating to the approximate dose of the defendant’s product to which the plaintiff was exposed, along with evidence that the dose was a substantial factor in causing the plaintiff’s disease. The dose must be quantified but need not be established with mathematical precision.
Also, under Merrell Dow Pharmaceuticals, Inc. v. Havner, to establish substantial factor causation plaintiffs must prove with scientifically reliable expert testimony that a plaintiff’s exposure to the defendant’s product more than doubled the plaintiff’s risk of contracting the disease.
Bostic involved exposure to asbestos, but the decision could be a factor in any multiple-exposure case, including claims alleging exposure to emissions from oil and gas operations.
In light of this precedent one thing remains clear: Texas plaintiffs asserting toxic tort claims must show that their injuries were caused by exposure to the defendant’s activities. Their success will depend on how well they present reliable epidemiological and scientific evidence.
Cerny, Parr and other Texas hydrocarbon injury cases have drawn attention. See Lawyers and Settlements.com (discussing these kinds of cases generally), the San Antonio Express News (discussing the ruling), Texas Lawyer (discussing inconsistent results in Texas courts) and Inside Climate News (misunderstanding the judicial system and the defendants’ legal position).
Keep watching. These issues, and the future of hydrocarbon exposure claims, are not going to be resolved soon.