Lack of Causation Key Hurdle in Texas Fracking Case

While the recent $2.9 million verdict in Dallas County, Texas in Bob and Lisa Parr’s nuisance suit against Aruba Petroleum grabbed headlines as a “first of its kind” fracking victory for plaintiffs, its precedential value remains unclear — even assuming the verdict is upheld on appeal.  Indeed, in a case with remarkably similar allegations to those made by the Parrs — only this time in Karnes County, Texas, District Judge Stella Saxon just granted the defendants summary judgment, concluding that plaintiffs Mike and Myra Cerny lacked sufficient medical and scientific evidence to prove to a jury that they were sickened by the defendants’ oil field emissions.

As media reports have noted, “[t]he dismissal in Karnes County stands in stark contrast to a case in Dallas County earlier this year in which a jury awarded $2.9 million to a family who also claimed to be sickened by emissions.”  In the Karnes County suit, the Cernys alleged that defendants Marathon Oil Corp. and Plains Exploration & Production (PXP)’s activities in the Eagle Ford Shale caused a host of maladies — traffic, noise, noxious odors, headaches, rashes, bone pain, numbness, nosebleeds, irregular heartbeats and bronchitis.  The Cernys sought between $1 million and $5 million in damages.  Following over a two hour oral argument, however, the Court was simply not convinced the plaintiffs could show that defendants caused the plaintiffs’ alleged ailments.  As reported by local mediaJudge Saxson said the plaintiffs had a “real difficulty” in proving causation — that the two oil and gas companies and not something else in the air caused injury.  “That’s a high hurdle that has to be jumped,” Saxon said.  PXP successfully argued that the plaintiffs would have to prove exposure to not just hydrocarbons, but to specifically PXP’s hydrocarbons, in order to prevail at trial.  The Court agreed with PXP that plaintiffs simply could not meet that burden.

For its part, Marathon also argued that its oil and drilling activities were not out-of-place given the location and, furthermore, the plaintiffs had actually signed a lease with Marathon and received royalties on their land.  In light of such lease, Marathon argued that the plaintiffs’ suit was like “hiring a band and a complaining about the noise.”

Ultimately, the Court granted both defendants’ summary judgment motions, noting that the plaintiffs could take the case to the appeals court in San Antonio.  “Let them decide,” Saxon said. “If it comes back, it comes back.”

The media reports note that the Cernys’ suit was not the only Karnes County case pending with allegations of health complaints from fracking in the Eagle Ford shale — so any appellate decision could have a significant impact on other similar cases.

We will continue to keep a close eye on fracking-related lawsuits and the theories of recovery plaintiffs seek to employ.  While nuisance actions appear to be a recent favorite, the present case suggests that such a theory may be an uphill battle.  As commentators have noted, nuisance cases need to be decided on a case by case basis and involve multiple specific factors including who lives in the area, what is the land being used for, is your use of the land out-of-place for what is already in the area, etc.  And, the more rural or suburban the location, the less likely there will be strict zoning regulations addressing industrial or noise activities.  At the end of the day, a nuisance claim can be a “hard slog” for landowners as one land and mineral owner attorney noted — and that assumes that you can actually tie the alleged offensive conditions to a particular defendant.