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 Analysis
First, the plaintiffs failed to provide representative evidence that Sendero had affected the 14,000 acres as claimed. The plaintiffs provided only three positive lab tests that identified the active ingredient of clopyralid, but none of these tests identified the other active ingredient in Sendero, aminopyralid. There was no reliable way to extrapolate from the small number of positive lab tests that clopyralid, much less Sendero, was present at all portions of the large acreage.
Second, the plaintiffs' evidence of aerial drift was speculative and inconclusive. Indeed, two of the plaintiffs' experts confirmed that the scattered acreage did not meet the common characteristics of physical drift and could not be scientifically explained, but that aerial drift must have occurred because of the widespread damage alleged.
Third, the plaintiffs wholly failed to provide evidence of toxic exposure. "One of toxicology's central tenants is that 'the dose makes the poison.'" Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 770 (Tex. 2007). However, the dose must be quantified. The Texas Supreme Court found the record completely bare of any evidence of what amount of Sendero was alleged to have landed on the plaintiffs' crops. And, even in the face of scientific evidence that a small amount of Sendero can cause damage to cotton crops, the complete lack of evidence of any particular amount was a fatal flaw in the plaintiffs' proof of causation.
Lastly, the plaintiffs failed to rule out plausible alternative causes for their crop damage. There was evidence that weather and other herbicides were potential causes to the plaintiffs' claimed damages. In fact, it was undisputed that many of the plaintiffs sought insurance benefits for low crop yield, claiming weather-related causes – a fact that no expert refuted. Additionally, a number of other herbicide applications were shown in the affected area – again, with no evidence by any expert refuting that alternative applications caused the damage claimed.
Takeaway
Helen Chemical provides a valuable lesson to litigators in the Lone Star State: whether the toxic exposure is alleged to have impacted people or plants, reliable expert testimony regarding causation is crucial to the claim and can be attacked defensively on several fronts.
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