Whether Plants Or People ' Texas Toxic Tort Causation Clarified

• Jurisdiction: Texas,United States
• Law Firm: Lewis Brisbois Bisgaard & Smith LLP
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Energy and Natural Resources, Chemicals, Trials & Appeals & Compensation, Landlord & Tenant - Leases
• Author: Jacqulyn P. Jandrucko and Joelle Nelson
• Published date: 10 April 2023

Houston, Texas (March 28, 2023) - The Supreme Court of Texas recently addressed the proof necessary to show causation in toxic tort cases and clarified that regardless of who or what is affected, the evidence remains the same. In Helena Chemical Company v. Cox, No. 20-0881, 2023 Tex. LEXIS 208, 66 Tex. Sup. J. 389 (Tex. 2023), cotton farmers in Coke, Sterling, and Mitchell Counties brought suit alleging that two planes dusted with the aerial herbicide - Sendero - in July 2015, which spread across their fields and damaged their crops.

Helena Chemical Company moved for summary judgment on the plaintiffs lack of causation evidence. The plaintiffs rebutted the claim of no evidence with five experts who addressed: (1) herbicide drift; (2) proper techniques for the aerial application of herbicides; and (3) the long-term effects of Sendero on plants. Helena sought to strike the experts based on the lack of reliability in their opinions. The trial court granted in favor of Helena, struck the experts, and dismissed the lawsuit. The court of appeals reversed. As such, the central issues to be decided by the Texas Supreme Court was: whether the plaintiffs' experts offered reliable evidence of causation.

The court relied heavily on its prior toxic tort cases involving human exposure to harmful substances and determined:

In a toxic-tort case alleging human exposure to harmful substances, the 'minimal facts necessary to demonstrate specific causation' include '[s]cientific knowledge of the harmful level of exposure to chemical, plus knowledge that the plaintiff was exposed to such quantities.' Builder Servs. Grp., Inc. v. Taylor, No. 03-18-00710-CV, 2020 WL 5608484, at *6 (Tex. App. - Austin, Sept. 17, 2020, pet. Denied); see also, E.I. du Pont de Nemours & Co v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). What is true of injured plaintiffs in a toxic-exposure case is also true of injured crops in a herbicide-drift case. There must be reliable evidence that the failed crops for which recovery is sought were more likely than not (1) exposed to the harmful chemical, (2) at levels of exposure sufficient to cause the lost yields alleged. In addition, there must be reliable evidence ruling out other plausible alternative causes of the lost yields. Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 350 (Tex. 2014); Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997).

Ultimately, the Supreme Court of Texas found that the plaintiffs had not met their burden.

Court's...