October 7, 2015 Opinions.
by Robert Clore
Clore Appeals & Litigation Support [email protected]
1. Expert Testimony Requirements under Havner. Cerny v. Marathon Oil Corp., No. 04-14-00650-CV, __ S.W.3d __ (Tex. App.—San Antonio, Oct. 7, 2015, no pet. h.). Author: Martinez, J. (majority); Chapa, J. (concurring and dissenting). Panel: Marion, J., Martinez, J., Chapa, J. Originating Court: 218th District Court, Karnes County. Trial Judge: Saxon, J. The 4th Court of Appeals upheld the granting of a motion for summary judgment in favor of Defendants Marathon Oil EF, LLC and Plains Exploration & Production Company on plaintiffs’ private nuisance and negligence claims. The plaintiffs, who live on a one-acre tract of land in Karnes County, sued in connection with emissions from oil and gas operations in the Eagle Ford Shale near their home, which they alleged caused damage to their health and their property.
The court of appeals upheld summary judgment on no-evidence grounds, opining that plaintiffs were required to provide expert testimony on causation as required by Merrell Dow Pharms. v. Havner, 953 S.W.2d 706 (Tex. 1997). The court agreed that the Havner requirements applied to plaintiffs’ suit, which was akin to a toxic tort claim. Plaintiffs complained of damages arising out of their exposure to emissions of “noxious gases and chemicals,” including benzene and nitrogen dioxide, from oil well sites and production facilities, and from the migration of such hazardous materials on to their property.
The court found that the evidence submitted by Plaintiffs failed to raise a scintilla of evidence of causation under Havner, which requires expert testimony: (1) that defendant’s conduct more than doubled the risk, as shown by two epidemiological studies, (2) that the plaintiff’s injuries were caused by the defendant’s conduct, and (3) that plaintiff’s injuries were not caused by other possible sources.
The record showed that defendants were not the only companies conducting oil and gas operations in the vicinity of plaintiffs’ home, and plaintiffs failed to negate other possible sources of the chemicals. Further, Plaintiffs failed to produce a medical expert, and produced no evidence differentiating between plaintiffs’ pre-existing physical conditions and the new health problems they claim arose after the oilfield operations began near their home.
The court also found that there was no evidence of causation on the portion of the nuisance claim seeking damages for loss of use and enjoyment of their land. The lay testimony produced by plaintiffs failed to isolate the cause of the dust, noise, traffic, and foul odors to the defendants in this case.
Justice Chapa dissented as to the court’s determination on the loss of use claim relating to plaintiffs’ allegations of foul odors, dust pollution, and abnormal traffic. Because determining the source of these types of nuisance allegations is within common knowledge and experience, the plaintiffs’ lay testimony raised a fact issue on these claims. Justice Chapa concurred as to the remaining portion of the opinion upholding summary judgment.
MAJORITY OPINION DISSENTING OPINION APPELLANT’S BRIEF APPELLEES’ BRIEF (MARATHON) APPELLEE’S BRIEF (PLAINS)
2. Mandamus from an Order Authorizing Pre-Suit Deposition under Rule 202. In re Time Warner Cable, No. 04-15-00539-CV (Tex. App.—San Antonio, Oct. 7, 2015, no pet. h.) (mem. op.). Author: Barnard, J. Panel: Angelini, J., Barnard, J., Alvarez, J. Originating Court: 285th District Court, Wilson County, Texas. Trial Judge: Walsh, J. The court of appeals granted a defendant’s petition for writ of mandamus from an order authorizing a pre-suit deposition under Tex. R. Civ. P. 202. A former Time Warner employee sought the pre-suit deposition to discover the circumstances surrounding his termination of employment so that he could determine “whether or not he has a claim.”
Although Rule 202 does not require a fully pled cause of action, it requires some specificity in stating “the substance of the testimony that the petitioner expects to elicit . . . and the petitioner’s reasons for obtaining the testimony.” Tex. R. Civ. P. 202.2(g). As the court of appeals explained, “[a] petition that merely tracks the language of Rule 202 in averring the necessity of a pre-suit deposition, without including any explanatory facts regarding the anticipated suit or the potential claim, is insufficient to meet the petitioner’s burden.”
Here, the petitioner did not indicate what information he would need, beyond what was already available to him, which would be revealed in deposition. Further, he did not provide any factual explanation about the likely benefit to be obtained in allowing him to take the deposition, or how or why that benefit outweighed the burden and expense of the pre-suit deposition. Accordingly, a pre-suit deposition was unwarranted and mandamus from the order was required.
OPINION
3. Mandamus from an Order Granting Medical Examination under Rule 204. In re Gonzalez, No. 04-15-00553-CV (Tex. App.—San Antonio, Oct. 7, 2015, no pet. h.) (mem. op.). Author: Martinez, J. Panel: Marion, C.J., Martinez, J., Pulliam, J. Originating Court: 111th District Court, Webb County, Texas. Trial Judge: Notzon, J. This opinion discusses the requirements for obtaining a physical or mental examination under Tex. R. Civ. P. 204. The court of appeals granted mandamus from an order permitting a defense expert to take a medical examination of the plaintiff injured in an automobile accident.
To establish good cause for a medical examination, the requesting party must show that: (1) the requested examination is relevant to issues in controversy in the case; (2) a reasonable nexus exists between the condition in controversy and the examination sought; and (3) the desired information may not otherwise be obtained through other, less intrusive means of discovery short of a compelled examination.
The court of appeals granted mandamus from the order here because there was no showing that the desired information could not be obtained through other, less intrusive means of discovery.
The defendant submitted an affidavit from a medical expert recommending an examination before the plaintiff underwent a four level cervical fusion. According to the defense expert, the examination would entail a “review of all pertinent documents; review of all X-rays and imaging; receiv[ing] the patient’s history and hav[ing] him fill out a history form and pain diagram; perform[ing] a physical examination of the involved anatomical areas, including a neurological exam; and discern[ing] clinical impressions based upon the history, physical exam, and imaging of the patient, finalizing the process with a report.”
The court of appeals concluded that this was insufficient because it did not detail the information necessary to his evaluation that were not covered by existing examinations or medical records or that could not be obtained by other discovery, such as deposing additional witnesses.
OPINION