Reversing the Eastland Court of Appeals, the Texas Supreme Court has held that plaintiffs’ expert testimony failed to raise genuine issue of material fact sufficient to defeat a summary judgment against the manufacturer of Sendero, an herbicide used to kill mesquite trees.
As we reported some months ago, Helena Chemical Company v. Robert Cox, et al. (No. 20-0881) arose from the alleged exposure of the plaintiffs’ cotton fields to Sendero, an herbicide used to kill mesquite. Helena, an agricultural products distributor, sold the product to the Spade Ranch and arranged for an aerial application. The pilots, independent contractors licensed by the Texas Department of Agriculture, performed the application in accordance with standards designed to mitigate off-target drift. Shortly thereafter, plaintiffs contacted TDA complaining of damage to 111 cotton fields located from 1.8 to 25 miles from the site of the application. A TDA inspector conducted a cursory inspection and concluded, without investigating other potential causes, that the application could possibly have caused the alleged crop damage, in spite of the fact that the damage was scattered and did not indicate any particular drift pattern. Plaintiffs filed suit against Helena, Dow Chemical, DowAgroSciences (the manufacturer of Sendero), and others, alleging crop damage from the application of Sendero on the Spade Ranch. The trial court struck the plaintiffs’ expert testimony and granted Helena’s no-evidence motion for summary judgment. The Eastland Court of Appeals reversed in part, holding that the trial court should not have struck the experts and that plaintiffs had produced “some evidence” to create a fact issue on harm and causation. Helena sought review, which the Court granted.
In an opinion by Justice Blacklock, the Court reviewed the testimony of five experts who opined that exposure to Sendero damaged plaintiffs’ cotton plants, ultimately reducing the yield and the proceeds from the sale of the harvest. The opinion offers an excellent review of Texas law governing the legal standard for the reliability of expert testimony in a toxic tort case. “[T]he ultimate issue . . . in a toxic tort case,” Justice Blacklock explained, “is always specific causation—whether the defendant’s product caused the plaintiff’s injury.” Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 351 (Tex. 2014). In a case in which plaintiffs alleged financial harm, “[i]t is therefore not enough for the plaintiffs to show that drifting herbicides reached their plants and ‘damaged’ them in some way. Instead, they must show that Helena’s application of Sender caused their plants to yield less cotton at harvest.” In addition to the opinions of their experts, plaintiffs urged the Court to accept their own lay opinions as evidence of causation. SCOTX rejected this argument on the basis that “[d]etermining whether a particular application of aerial herbicide substantially contributed to the failure of crops miles away requires knowledge and analysis of scientific matters beyond the competence of laymen,” even if the laymen were cotton farmers. At the same time, the Court rejected Helena’s argument that plaintiffs were required to show toxic exposure at a sufficient dose to cause harm for each field for which they sought damages.
The question thus boiled down to the reliability of the experts. As in a personal injury toxic exposure case, the Court stated, “[t]here 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 for the lost yields” (citing Bostic and Havner). In the event, plaintiffs could only produce evidence of 11 cotton tissue tests, only two of which showed exposure to one of the two chemicals in Sendero that could cause harm to cotton crops. Plaintiffs offered no evidence of any samples showing exposure to both chemicals, which are unique to Sendero, nor did they offer any evidence of a drift pattern from the Spade Application or how the Sendero got to any of their fields, much less all 111 of them. Plaintiffs failed to satisfy the Borg-Warner test requiring dose specific evidence of exposure to the defendant’s product, not just generalized exposure from a multitude of possible sources. Finally, the plaintiffs’ expert could not exclude the possibility that the alleged crop damage came from somewhere else or some other product. “When an injury may have multiple contributing causes,” Justice Blacklock wrote, “the plaintiff must at least show that the defendant’s conduct was a substantial factor in causing the injury, taking into account any plausible alternative causes raised by the evidence” (citations omitted). Absent that, the Court held that plaintiffs did not carry its burden of summary judgment proof.
One can readily see why SCOTX took the case. For whatever reason, the court of appeals neglected to rigorously enforce Havner, Robinson, and their progeny and did not perform its gatekeeper function, as the district court did. It is worth repeating that SCOTX applied Borg-Warner and Bostic, which held that “dose matters” in the personal injury toxic tort exposure context, to the commercial context. While not an extension of the principle, the Court continues to maintain a consistent and emphatic jurisprudence proscribing “junk science” and unreliable expert testimony in our courts.
