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  1. Texas Supreme Court denial of review could impact health-based tort claims involving neighboring oil and gas activities

    Carter Williams , Baker Donelson, Houston On December 2, 2016, the Texas Supreme Court denied review in Cerny v. Marathon Oil Corp., leaving in place the decision of the Fourth Court of Appeals, affirming summary judgment for the defendants and finding that the plaintiffs’ nuisance and negligence claims were “in the nature of toxic tort claims which fall outside a lay person’s general knowledge and experience, [and] must therefore be proven with expert testimony.” While undoubtedly welcome news for defendants Marathon Oil and Plains Exploration & Production, the decision may have a broader impact on pending and future litigation in which landowners have asserted health-related personal injury claims involving alleged exposure to hazardous gases and industrial chemicals from neighboring oil and gas activities, potentially including the closely-watched case of Parr v. Aruba Petroleum. Parr, the so-called “first fracking trial,” garnered attention in Texas and beyond when plaintiffs obtained a $2.9 million verdict on their private nuisance claim. While the claims raised in Parr and Cerny are strikingly similar, the Parrs were able to avoid the strict proof requirements established by the Texas Supreme Court in Merrell Dow Pharms., Inc. v. Havner, (holding that expert testimony is necessary in cases seeking to recover for injuries caused by alleged toxic exposure), at least at the trial court level, by expressly disclaiming personal injury damages that invoke the Havner requirements. Interestingly, despite the disclaimer, when asked at trial what made him sick – sights, lights, and sounds or toxic emissions – Mr. Parr testified that it was toxins and emissions. The Parr verdict remains on appeal and it remains to be seen whether the Fifth Court of Appeals will allow it to stand, modify it or overturn it. On appeal, the Parrs have argued that Havner should not apply because their case is not a “toxic tort,” but a “private nuisance,” and that they sought damages for “symptoms typical of discomfort rather than disease.” In contrast, Aruba has argued that the applicability of Havner and its progeny does not depend on the type of claim pursued, as Havner applies to all causes of action alleging toxic exposure – a contrary result would allow plaintiffs to opt out of strict proof requirements through artful pleading. In addition to whatever impact the Texas Supreme Court’s denial of review in Cerny may have on the Parr appeal itself, should the Fifth Court of Appeals find – consistent with the Fourth Court of Appeals opinion in Cerny left in place by the Texas Supreme Court – that the Parrs’ claims are in the nature of toxic torts that fall outside a lay person’s general knowledge and experience and must therefore be proven with expert testimony under Havner, it could go a long way to deter similar claims, at least in Texas. About the author Carter Williams is of counsel in Baker Donelson's Houston office and a member of the Oil & Gas Industry Service Team, Business Litigation Group and Government Enforcement and Investigations Industry Service Team. He represents multinational energy companies, drilling contractors, oilfield services companies, commodity trading concerns and trade associations in complex commercial and environmental litigation in federal and state courts throughout the country at the trial and appellate levels. He can be reached at cwilliams@bakerdonelson.com.

    Online Articles

    Online Articles

    Fri, 16 Dec 2016

  2. US Court of Appeals Rejects Stay Against Clean Power Plan

    The D.C. Circuit Court of Appeals on Thursday denied petitions to stay the Obama administration’s Clean Power Plan, preserving the landmark rule’s authority to regulate carbon emissions from power plants, even as the rule prepares to defend against subsequent litigation designed to erode its ...

    Online Articles

    Online Articles

    Thu, 21 Jan 2016

  3. New Technologies, New Questions for Emissions Control

    Wednesday’s emissions control POWER-GEN International session examined how the Clean Power Plan is affecting operations of various plants, as well as other topics.

    Online Articles

    Online Articles

    Wed, 14 Dec 2016

  4. Viewpoint: Trump does away with EPA by appointing Pruitt as EPA administrator

    Hydro Group editor Michael Harris looks at President-elect Donald Trump's appointment of Scott Pruitt to administrator of the Environmental Protection Agency, and what that could mean for the EPA's Clean Power Plan.

    Online Articles

    Online Articles

    Thu, 8 Dec 2016

  1. Plans for Carlsbad Energy Center Upheld by Appeals Court

    Online Articles

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    Mon, 5 Dec 2016

  2. Wisconsin Court of Appeals overturns punitive damage award

    The Wisconsin Court of Appeals today overturned the $100 million punitive damage award against Wisconsin Electric (WE) in the company's appeal against the City of West Allis, Kearney & Trecker Corp., and Giddings & Lewis, Inc.

    Online Articles

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    Wed, 5 Sep 2001

  3. Court of Appeals supports NRC decision approving Harris spent fuel storage plan

    A U.S. Court of Appeals ruled in favor of the Nuclear Regulatory Commission (NRC) in an appeal brought by Orange County, N.C.

    Online Articles

    Online Articles

    Mon, 23 Sep 2002

  4. API: Court of Appeals review of hydraulic fracturing bans could open economic opportunity

    New York State Petroleum Council Executive Director Karen Moreau welcomed the decision by New York’s Court of Appeals to hear from local landowners and the oil and natural gas industry on hydraulic fracturing bans.

    Online Articles

    Online Articles

    Fri, 30 Aug 2013

  5. Texas Interests Score Important Appeals Court Win on EPA Haze

    The U.S. Court of Appeals for the Fifth District has handed the Texas Commission on Environmental Quality (TCEQ), Oklahoma, Luminant Generation and other parties a key victory against regional haze standards being implemented by the Environmental Protection Agency (EPA).

    Online Articles

    Online Articles

    Wed, 20 Jul 2016

  6. Arch Coal unit loses another round against EPA in court

    A divided U.S. Court of Appeals for the District of Columbia Circuit ruled July 19 that EPA had properly used its “broad veto authority” under the Clean Water Act in connection with a coal mining case in West Virginia 

    Online Articles

    Online Articles

    Wed, 20 Jul 2016

  7. Oil & Gas News: U.S. Appeals Court affirms RICO judgment against lawyer behind fraudulent Ecuador lawsuit

    The U.S. Court of Appeals has unanimously affirmed a lower court decision, which found that the $9.5 billion judgment against oil & gas giant, Chevron Corporation, in Ecuador was the product of fraud and racketeering activity, and unenforceable in the U.S.

    Online Articles

    Online Articles

    Mon, 8 Aug 2016

  8. US Court upholds PEMEX platform claim

    The United States Second Circuit Court of Appeals has affirmed a judgment of more than $465 million for KBR subsidiary Commisa against PEMEX following a decade of litigation.

    Online Articles

    Online Articles

    Wed, 3 Aug 2016

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