dodgeballYou might recall previous entries discussing Parr v. Aruba (here is one) – a suit for personal injuries from oilfield pollution (and a $2.9MM verdict for the plaintiffs). Not all similar suits have the same result.

You could liken Cerny v. Marathon Oil and Plains Exploration & Production to a game of legal dodgeball.  The “ball ” that the plaintiffs could not avoid  was causation, thanks to Merrell Dow Pharmaceuticals, Inc. v. Havner. 

Gray Reed attorneys Jim Ormiston and Mitch Ackal represented Plains. The summary judgment at the trial court was upheld by the court of appeal.

The claims  

The petition alleged, among other claims: 

  • 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 … ” from Marathon wells and Plains facilities, and
  • health problems, including headaches, rashes, chest pain, “strange nerve sensations,” high blood pressure, nausea, difficulty breathing, nosebleeds, anxiety and depression.

The causes of action were private nuisance, negligence, and negligence per se.

The problem for the plaintiffs

To dodge Havner, the plaintiffs had to satisfy these requirements:

  • Prove with scientifically reliable expert testimony that their exposure to the defendant’s product more than doubled the plaintiff’s risk of contracting the disease.
  • Where multiple sources of exposure exist, prove substantial factor causation. “Some” or “any” exposure won’t get it done.
  • There must be defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, along with evidence that the dose was a substantial factor in causing the disease.
  • Present reliable epidemiological and scientific evidence.

Ducking the problem

In an effort to satisfy the requirements, the plaintiffs:

  • Disclaimed specific diseases, instead alleging symptoms,
  • Disclaimed “personal injury damages” (which would require expert testimony under Havner),
  • Sought recovery for “discomfort”, rather than disease,
  • Submitted affidavits and reports from an air quality expert, a forensic meteorologist, a toxicologist, the Cernys themselves, and a lay witness who collected air samples at the Cernys’ home and at a Plains facility several miles away.

The result

When considering the following conclusions, think “causation”:

  • The trial court struck virtually all of the plaintiffs’ evidence, expert and otherwise.  Thus, the plaintiffs had no proof. The evidence was speculative, hearsay, unreliable, and unqualified lay opinions.
  • The plaintiffs failed to establish that the pollution came from the defendants’ operations and facilities, and not from dozens of other oilfield operations in the area.
  • The court did not accept plaintiffs’ assertion that claims for symptoms, rather than disease, sidestepped Havner. It was still a toxic tort case.
  • There was no direct, scientifically reliable proof of actual causation.
  • Other potential causes of the Cernys’ illnesses were not addressed.
  • The Cernys had plenty of symptoms before the events they sued on.

Free advice

I submit that the plaintiffs had the wrong kind of expert.