At MassTortDefense we are not adverse to spotlighting the occasional interesting, helpful (or even scary) intermediate appellate court decision. Hence, our focus today on Adamcek v. Reynolds Metals Co., Tex. Ct. App. 13th Dist., No. 13-06-240-CV, 2008 WL 1822772 (April 24, 2008), in which the Texas court of appeals ruled that expert testimony for plaintiffs living in an area affected by a hazardous waste plume was insufficient in a toxic tort case.

Those readers confronting toxic tort litigation know the importance of causation: including whether the substance is capable of causing the injury alleged (general) and whether the substance did cause the injury (specific). And a component of the latter is that the plaintiff actually suffered an exposure, and an exposure above background, and an exposure sufficient to have caused the damage alleged. In the property damage context, causation is equally important, and should not be taken for granted by defendants. This opinion is interesting in part because it shows the importance of putting plaintiffs to their proof on every element of a claim in the property damage context, and because it also involves a nuisance claim – which plaintiffs have been trying to expand and distort beyond its historical foundation and policy roots.

Background
The lawsuit involved 1200 consolidated plaintiffs, who filed suit after the discovery of groundwater contamination by a chemical called Trichloroethylene (TCE). Plaintiffs alleged that the TCE originated at an aluminum extrusion facility owned and operated by various defendants at various times. They alleged personal injuries, punitive damages, and this part of the case involved their claims of property damage under the theories of nuisance, negligence, and gross negligence.
Defendants filed a “no evidence” motion, basically a summary judgment motion asserting that there is no evidence of one or more essential elements of a claim on which an plaintiffs have the burden of proof. In order to avoid the no-evidence summary judgment, plaintiffs must produce more than a scintilla of probative evidence that raises an issue of material fact on each element challenged. That is, they need evidence that rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. The trial court granted the motion, and 97 plaintiffs appealed.

Need for Causal Link to Injury

The court defined a nuisance as a condition that substantially interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities attempting to use and enjoy it. Under Texas law, in order to recover on a nuisance claim, the defendant must have generally engaged in one of three kinds of activity: (1) intentional invasion of another’s interests; (2) negligent invasion of another’s interest; or (3) other conduct, culpable because abnormal and out of place in its surroundings, that invades another’s interests. The invasion must cause an injury, an interference. Just as in a claim for negligence which requires that damages were proximately caused by the breach.

Plaintiffs’ “Proof” Insufficient

Plaintiff relied on an affidavit from an expert to meet their burden on causation. The expert identified an “additional plume, which had its genesis in a leak from a sewer line.” In his affidavit, he referred to a map that he alleged showed where the plaintiffs live. However, carefully analyzed, it was clear that the expert did not show that any of the appellants owned an interest in the property within the additional plume he demonstrated. Moreover, he did not designate which properties or whose interests were in fact affected by the TCE under his theory, and how. Thus, the affidavit did not provide any evidence that any particular appellant had an interest that was affected by the TCE contamination. The Texas Court of Appeals upheld dismissal of the nuisance claim, finding the residents failed to assert sufficient evidence of causation of injury.

Think about putting plaintiffs to their proof on each and every element of the toxic tort claim.