In a significant victory for the energy industry, on October 7, 2015, the San Antonio Court of Appeals affirmed summary judgment in favor of Marathon Oil Corporation, Marathon Oil EF, LLC (together “Marathon”) and Plains Exploration & Production Co. in a case brought by Michael and Myra Cerny, alleging that emissions from the companies’ Karnes County Eagle Ford facilities caused them various injuries and property damage. The Cernys presented no expert medical testimony on the causation of their injuries, maintaining instead that such testimony is not necessary when the injuries claimed are within a lay person’s common knowledge. The trial court disagreed and entered judgment for the defendants, making the primary issue on appeal whether plaintiffs’ “discomfort” damages caused by allegedly toxic emissions can escape the strict requirements of Merrell Dow v. Havner and its progeny, and proceed to trial without reliable expert testimony on medical causation.
At the trial court, the Cernys, who in fact had entered into an oil and gas lease with Marathon, alleged that the emissions from the defendants’ facilities near their home in Karnes County were a nuisance and, despite their long history of medical issues, were causing them a litany of health problems, including breathing issues, rashes, nosebleeds, and mental anguish. They also alleged that the defendants’ nearby oil and gas operations caused foundation problems to their home and other property damage. In their petition, the Cernys specifically disclaimed seeking any recovery for a particular “disease,” attempting to distinguish their claimed symptoms as within the realm of lay-person understanding and experience. The Cernys submitted that because their injuries did not require a medical diagnosis but rather related to the “discomfort” they suffered from the alleged emissions, expert testimony satisfying Havner was not necessary. Further, although the Cernys attributed their injuries to what they described as constant dust and noise, noxious odors, and toxic air quality, testing around Marathon’s facility was within TCEQ and OSHA standards. In response, defendants moved for summary judgment, arguing that the plaintiffs were required to establish medical causation via expert testimony as dictated by Havner, which they had failed to do.
The appellate court agreed with defendants. In an opinion authored by Justice Martinez, the court held that the strict evidence standard of Havner applied to the Cernys’ nuisance and negligence claims. Rejecting plaintiffs’ argument about the nature of their injuries, the court explained that plaintiffs who seek relief for injuries of any nature caused by exposure to or migration of a toxic substance must meet the stringent proof requirements imposed by the Texas Supreme Court. Even in toxic exposure cases alleging only “discomfort damages,” that proof includes, among other requirements, epidemiological studies demonstrating a doubling of the risk, proof that the plaintiff is similar to the subjects in those studies, and expert testimony excluding other alternative causes.
The Cerny decision is significant for at least two reasons. First, it makes clear that plaintiffs in nuisance cases cannot escape the rigor and expense of expert testimony by merely seeking to recover “discomfort” damages. At least in a large part of the Eagle Ford Shale, plaintiffs must satisfy Havner to recover on a nuisance claim for personal injuries, whether they characterize their injuries as a “disease” or a “discomfort.”
Second, the decision is important given a Dallas County jury’s recent award of $2.9 million to the plaintiffs in Parr v. Aruba Petroleum Inc., where the trial judge granted summary judgment for Aruba on the plaintiffs’ negligence claim, but allowed their nuisance claim for “symptoms typical of discomfort rather than disease” to proceed to trial. The jury in Parr found that the energy company’s drilling activity in the Barnett Shale constituted an intentional private nuisance that caused the plaintiffs physical injuries, even in the absence of expert testimony on medical causation. The Parr case is currently on appeal to the Dallas Court of Appeals, which may look to the San Antonio Court’s reasoning in Cerny for guidance in reaching its decision.
It is possible that the Cerny plaintiffs may appeal their case to the Texas Supreme Court. Reed Smith LLP will continue to monitor the case and issue an update if there are any developments.
Client Alert 2015-293