An Eastland Court of Appeals decision implicating the adequacy of evidence of exposure to toxic chemicals has attracted the attention of the Texas Supreme Court.

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, despite 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 expert and that plaintiffs had produced “some evidence” to create a fact issue on harm and causation. Helena sought review, which the Court granted.

In its petition for review, Helena argues that the court of appeals failed to apply settled Texas law under Havner and Robinson regarding the proof required of toxic tort plaintiffs to establish actual exposure for each claim alleged. The petition cites numerous intermediate court of appeals standards applying Havner to require “actual exposure—caused by the defendant—in sufficient concentration to cause injury for each instance of damage alleged.” Here the court of appeals “concluded that no authority required Respondents to present evidence of toxic exposure as to each of the 111 fields for which they sought damages.” In fact, 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 noevidence 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. In this regard, the court of appeals likewise ignored SCOTX’s precedent in Borg-Warner requiring dose specific evidence of exposure to the individual 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.

Taking Helena’s recitation of the facts as accurate, one can readily see why SCOTX took the case. It seems clear that, for whatever reason, the court of appeals did not rigorously enforce the Havner standards for reliable scientific evidence and failed in its gatekeeper function. We trust that SCOTX will correct this erroneous decision and that it proves to be an outlier in our jurisprudence.

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