Exxon Corp. v. Makofski

• Decision Date: 24 July 2003
• Docket Number: No. 14-00-00763-CV.,14-00-00763-CV.
• Citation: 116 S.W.3d 176
• Parties: EXXON CORPORATION, Appellant and Cross-Appellee, v. James MAKOFSKI, Sr., as Next Friend of James Makofski, Jr.; Barton Russell, as Next Friend of John Russell; Andrea Russell; San Juanita Devora; Felipe Devora; and Codi Stennett, Appellees and Cross-Appellants.
• Court: Texas Court of Appeals

116 S.W.3d 176

EXXON CORPORATION, Appellant and Cross-Appellee, v. James MAKOFSKI, Sr., as Next Friend of James Makofski, Jr.; Barton Russell, as Next Friend of John Russell; Andrea Russell; San Juanita Devora; Felipe Devora; and Codi Stennett, Appellees and Cross-Appellants.

No. 14-00-00763-CV.

Court of Appeals of Texas, Houston (14th Dist.).

July 24, 2003.

Rehearing Overruled October 23, 2003.

Clinard J. Hanby, Spring, Pamela Stanton Baron, for appellant.

John O'Quinn, Robert Alan York, David Holman, W. Mark Lanier, Houston, for appellees.

Panel consists of Chief Justice SCOTT BRISTER and Justices EDELMAN and SEYMORE.

MAJORITY OPINION

SCOTT BRISTER, Chief Justice.

Among the hundreds of wells drilled in the Tomball Field northwest of Houston in the 1930s, one was found to be leaking oil and gas into an underground aquifer in 1939. Humble Oil & Refining Company attempted to recover the lost hydrocarbons by "backflowing" the well for almost two years.

Forty years later and a half mile to the southeast, a water well was drilled for the Three Lakes subdivision. When the well was first tested for organic chemical contaminants in 1990 (after about 10 years of use), it was discovered to contain benzene. The subdivision's water supply was shifted to an uncontaminated source shortly thereafter.

In 1993, several hundred residents of Three Lakes sued Exxon Corporation, alleging the oilfield leak more than 50 years before involving its predecessor contaminated the water well and caused them various health problems. Six residents were selected for a bellwether trial, which took place over the better part of six weeks.

At the conclusion, the jury found Exxon negligent and grossly negligent, and awarded a total of almost $7 million in actual and punitive damages. In post-judgment proceedings, the trial court reduced or eliminated most of the jury awards, rendering take-nothing judgments against the four adults and reduced judgments for the two minors.

All parties appeal. Exxon contends there is no evidence its negligence caused either the contamination of the water well or the plaintiffs' specific diseases. The plaintiffs contend the trial court erred in disregarding the jury's awards. Both are governed by the same standard—whether any evidence supports the jury's verdict.¹ Because legal standards for reviewing medical causation are much clearer than those for underground hydrology, we address it first. Finding it dispositive, we go no further.

I. What We Review

Exxon challenges the opinions of the plaintiffs' four medical experts, arguing they presented no scientific basis for concluding exposure to the water at Three Lakes caused the plaintiffs' diseases. We consider all the evidence in the light most favorable to the verdict, and indulge every reasonable inference in that direction.² But we do not take expert testimony at face value; if it is unreliable, it constitutes no evidence, and we must reverse.³

We disagree with the plaintiffs that two different approaches might apply—one based on the six factors applied in Merrell Dow Pharmaceuticals, Inc. v. Havner,⁴ and one that looks only for "analytical gaps" in the testimony.⁵ Undoubtedly, the tools used to test the reliability of expert testimony will vary depending on the field of expertise involved. But it is impossible to ignore the Havner factors here, as the field of expertise is the same—the epidemiological evidence connecting a chemical exposure and a disease.⁶

We also disagree with our dissenting colleague that Exxon waived error by failing to obtain a record from a pretrial hearing at which its motions to exclude allegedly unreliable expert testimony were first considered. Following this argument to its logical conclusion, every time a pretrial motion to strike expert testimony is denied without a reporter's record, we must presume any jury verdict thereafter is valid (no matter how scientifically unsound). This argument is neither raised nor briefed by the parties, apparently for the same reason they never requested that the hearing be recorded—because no testimony was taken at the pretrial hearing. Not a single line in any party's brief suggests we should look to the pretrial hearing for evidence of reliability, or that it included anything other than what was repeated a few days later at trial.

While this appears to be an issue of first impression, the Supreme Court has given us some guidance. First, it was the plaintiffs' burden to present scientifically reliable evidence of causation at trial.⁷ Second, Exxon was required to object at trial (which it did repeatedly)⁸ so the plaintiffs would have an opportunity to cure any defects regarding reliability and present us with a fully developed record.⁹ Neither of these guidelines suggests a rule that, after its objections were overruled, it remained Exxon's duty to incorporate into the trial record any and all pretrial evidence that supported the reliability of the plaintiffs' experts.¹⁰

It is generally true that unless an appellant files a complete reporter's record (or a limited appeal¹¹), we presume the omitted portions are relevant and support the jury's verdict.¹² But a complete record does not include matters from other proceedings; we normally test the legal sufficiency of a jury verdict by the evidence at the jury trial, not by what happened before or after it.¹³ Moreover, there is an important difference between presuming and pretending. Here, the trial record makes clear that no evidence was presented at the pretrial hearing.¹⁴ And if (as discussed below) the evidence at trial showed that scientific evidence could not support a particular verdict, any presumption that science held the opposite view a few days earlier has been effectively rebutted.¹⁵

Finally, our colleague's reliance on a treatise discussing the admissibility of expert testimony¹⁶ shows he misconstrues Exxon's point. Challenges to both the admissibility and the legal sufficiency of expert testimony involve the same substantive guidelines for determining relevance and reliability.¹⁷ But admissibility of expert testimony is an initial decision made by the trial judge, usually outside the jury's presence, and is subject to an abuse-of-discretion review.¹⁸ By contrast, legal sufficiency of expert testimony tests the jury's decision after the trial, looking at the whole trial record to see if any evidence supports the verdict.¹⁹ Had Exxon complained of the pretrial ruling on admissibility, we would need a record of that hearing to review it. But Exxon does not. It is not our place to change this legal sufficiency point into something else, or dismiss it by reviewing a different decision by a different decision-maker in a different proceeding according to a different standard of review.

II. Benzene and ALL

James Makofski, Jr., was an infant when his family moved to Three Lakes in 1985. In September 1991, he was diagnosed with acute lymphocytic leukemia (ALL).²⁰ Treatment of ALL is expensive and painful; in James's case, it included three years of repeated rounds of chemotherapy and spinal injections. But the trial testimony also indicated current treatment is usually successful; in James's case, annual checkups since 1994 have shown no indications of recurrence.

The plaintiffs alleged James's ALL was a result of his exposure to benzene in the Three Lakes water supply. It was undisputed that current scientific knowledge cannot prove what causes ALL in any particular instance, and that in 95 percent of ALL cases the cause is never known. Because of so many uncertainties, efforts to establish liability for ALL based on exposure to hazardous substances have proved daunting.²¹ Here, the plaintiffs' attorneys used epidemiological studies, a government study, and expert testimony to try to raise a fact question on causation.

The jury found Exxon's negligence caused James's injuries, and awarded him $1.5 million for past medical care, $1 million for future medical care, $400,000 for pain and anguish, and $325,000 for impairment. After reducing the award for future medical expenses to $156,603 (the only estimate of costs presented at trial), the trial court entered judgment in accordance with these awards. Exxon challenges all awards for lack of causation; the plaintiffs challenge the trial court's reduction of the future medical award.

The Epidemiological Studies

In Havner, the Texas Supreme Court held that scientifically reliable epidemiological studies showing more than a doubling of the risk may establish a causation link.²² To benefit from this exception to the normal rules requiring individual proof of causation, a claimant must show a similar exposure to the subjects studied and exclude other plausible causes with reasonable certainty.²³

Benzene has been known to be potentially harmful to humans for more than a century. Thus, a large number of epidemiological studies have been conducted on its effects. The parties' experts agreed that benzene has been shown to cause acute myelogenous leukemia (AML), the most common form of leukemia found in adults. But the same studies have not reached the same conclusion regarding ALL, the most common form found in children.

Unfortunately, almost none of the relevant epidemiological studies appear in the trial court record, though several were marked for identification and discussed at length during the trial. As learned treatises, excerpts from these studies could be read to jurors, but none were admitted as exhibits for jurors' independent review.²⁴ But while the rules of evidence withhold learned treatises from jurors, that does not mean they should be withheld entirely from the record. Without them, we are hard-pressed to conduct the kind of review Havner requires.

Each party here says the other had the responsibility to place relevant studies in the record. A similar disagreement appears to exist among Texas appellate courts: the Sixth Court of Appeals has held studies cannot...