In what may appropriately be called a “swing and a miss”, the Fourth Court of Appeals in San Antonio has rejected plaintiffs’ attempt to avoid the need for medical expert testimony in a toxic tort case by pleading damages for “symptoms of discomfort” instead of disease.  Cerny v. Marathon Oil Corp, et al., No. 04-14-00650-CV,  2015 Tex. App. LEXIS 10364 (Oct. 7, 2015).  The Fourth Court of Appeals confirmed that a strict causation standard applies to claims seeking relief for injuries of any nature allegedly caused by exposure to or migration of toxic substances from oil and gas operations.

Apparently trying to mimic the result in Parr v. Aruba Petroleum Inc., No. 11-01650 (County Ct. at Law No. 5, Dallas County, Tex.), where the jury awarded a nuisance verdict of $2.9 million to plaintiffs living in the vicinity of oil and gas operations, the plaintiffs in Cerny alleged “symptoms typical of discomfort rather than disease,” disclaiming that they were seeking recovery for “personal injury damages.”  The plaintiffs attempted to circumvent the causation requirements for toxic tort cases established in Merrell Dow Pharms. v. Havner, 953 S.W.2d 706 (Tex. 1997) and its progeny requiring plaintiffs to offer expert testimony showing (1) general causation through epidemiological studies, (2) specific causation, and (3) exclusion of other plausible causes with reasonable certainty when there is an absence of direct and scientifically reliable proof of actual causation.

In affirming a trial court’s dismissal of the nuisance and negligence action, the Fourth Court of Appeals concluded that the claim alleged a medical condition (whether it be described as discomfort or disease) caused by exposure to toxic substances and thus was in the nature of a toxic tort claim, thus requiring expert testimony as to causation.  Plaintiff offered only lay witness and non-medical expert testimony, which did not meet the Havner strict causation standard.

The Parr verdict was rendered a few months before the plaintiffs in Cerny amended their petition to include the same “symptoms” language used in Parr.  The Parr case is on appeal at the Fifth Court of Appeals, so it will be interesting to see if the panel follows the Cerny court’s lead and overturns the Parr judgment.  As it stands, the Cerny case will almost certainly have a chilling effect on plaintiffs’ attorneys looking to bring nuisance and negligence claims based on alleged exposure to emissions from nearby oil and gas operations without garnering the necessary expert testimony.