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Texas Appellate Court Rejects Environmental Nuisance Tort Lacking

19 October 2015No Comments

In a potentially precedent-setting environmental nuisance case in the state of Texas, a Texas Appellate Court returned a verdict favoring energy industry defendants in a case that ultimately hinged on whether environmental nuisance tort claims in the state of Texas required certain evidentiary elements to succeed. In light of the Cerny decision, all nuisance filings relating to environmental air quality concerns in the state of Texas now must realistically be accompanied by an affidavit establishing medical causation per expert medical testimony in order to file a viable claims case.

The Texas Cerny Case Ruling on Medical Causation Establishment in Nuisance Claims

Specifically in the Cerny case from Texas, plaintiffs Mike and Myra Cerny of Karnes County filed suit against multiple entities affiliated with a fracking operation operating under the auspices of Marathon Oil Corporation near their family residence after a period of contractual cooperation with the local fracking operation. This rejection of a creative use of the state’s property nuisance laws in environmental air-quality claims reflects a growing national trend in litigation, in which plaintiffs seek to file claims for airborne toxins and other hazards emitted from a secondary source, usually a business operating adjacent or downwind from the plaintiff’s residence. In the state of Texas, per the recent decision in the Cerny case, it appears that any viable environmental nuisance claim made under Texan laws must be accompanied by expert medical testimony regarding the likely medical causation of injuries or harms sustained by air pollution exposure.

The case ultimately made its way through the Texas civil courts, before the summary judgment from the trial court was affirmed by the majority opinion of the Texas appellate court, which held the following per Texas environmental nuisance lawsuits:

  • Claimants can file claims against businesses and individuals regarding airborne emissions that may have caused medical illnesses or other injuries to a given plaintiff
  • Damages claimable in these nuisance cases can also include property damage, including decreased fiscal resale values in homes, due to the air contamination
  • First, however, damages must be documentable and medically-identified, as the plaintiffs in the Cerny case lacked specific diagnosis of medical injuries, but felt the extent of their symptomology as documented was sufficient to establish discomfort related to the ongoing toxic emissions at the site per prior findings, which not corroborated in later testing done around the Marathon site, which revealed full compliance with OSHA air quality standards, as well as compliance with air quality mandates found per the Texas Commission on Environmental Quality
  • Secondly, plaintiffs in light of the Cerny decision in the state of Texas are now de facto required to obtain expert medical testimony that substantiates illegal or harmful emissions from a third party as the primary proximate cause of these medical complications and expenses
  • In the Cerny case, the court’s decision specifically noted the failure of the Cerny’s counsel to provide any causal linkages from authoritative sources regarding their relatively vague medical injuries to ongoing emissions at the Marathon Oil facilities in and around the Cerny’s property per strict evidentiary testimony requirements first defined in the case of Merrell Dow v. Havner

Ultimately, a pending case before the Dallas Court of Appeals presents a slight variation of the Cerny case, with plaintiffs still claiming “discomfort” related damages due to an unestablished medical nuisance without causation per the strict evidence standard established. In this upcoming case, a Texas trial court permitted the environmental nuisance claims on the grounds of discomfort to proceed to the appellate level in light of an inability to determine whether medical expert testimony was in fact required in this case that originally awarded the plaintiffs $2.9 million dollars by way of a jury verdict.




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