FILED 5/16/2014 3:55:22 PM JOHN F. WARREN COUNTY CLERK DALLAS COUNTY CAUSE NO. CC-11-01650-E LISA PARR, Individually and as Next Friend to her minor daughter, E.D.; and ROBERT “BOB” PARR Plaintiffs vs. ARUBA PETROLEUM, INC., et al. Defendants § § § § § § § § § § § IN THE COUNTY COURT AT LAW NO. 5 DALLAS COUNTY, TEXAS ARUBA PETROLEUM’S MOTION TO DISREGARD JURY FINDINGS AND FOR JUDGMENT NOTWITHSTANDING THE VERDICT Defendant, Aruba Petroleum, Inc. (“Aruba”), files this Motion to Disregard Jury Findings and for Judgment Notwithstanding the Verdict (“Motion for JNOV”) pursuant to Texas Rule of Civil Procedure 301, and respectfully requests that this Court disregard the jury’s answers to Questions 1, 3(a), 3(b), 3(c), and 4 and render a take-nothing judgment in favor of Aruba. INTRODUCTION Under this Court’s pretrial rulings and Plaintiffs’ damage disclaimer, the jury’s $2.925 million verdict cannot stand. Before the trial began, the Court recognized that Plaintiffs lacked the evidence necessary to support any personal injury claims other than those that were “within the common knowledge and experience of a layperson,” where “the sequence of events is such that a layperson may determine causation without the basis of expert evidence.” (1/28/14 Summary Judgment Order.) The damages awarded by the jury do not fall within this very limited category. Instead, to sustain the type of damages awarded, the Plaintiffs were required to present the very expert evidence that this Court recognized was lacking. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 1 Moreover, because there is no legally sufficient evidence that Aruba had the requisite level of intent necessary to support a claim of intentional nuisance, and there is no legally sufficient evidence that Aruba’s conduct proximately caused the Parrs’ claimed injuries, the Court should grant Aruba’s motion, disregard the jury verdict, and enter a take-nothing judgment. 1 ARGUMENT AND AUTHORITIES I. Applicable legal standards. The Court should disregard a jury’s verdict and render a judgment notwithstanding the verdict if the evidence is legally insufficient to support the jury’s findings, the jury’s findings are immaterial, a legal principle precludes recovery, or a directed verdict would have been proper. TEX. R. CIV. P. 301; Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003); see also Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994); John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex. App.—Houston [1st Dist.] 1992, writ denied). The evidence is legally insufficient to support a finding, and the trial court should render a judgment notwithstanding the verdict, when the record discloses a complete absence of evidence of a vital fact, the trial court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, the evidence offered to prove a vital fact is no more than a scintilla of evidence, or the evidence establishes conclusively the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); Cullins v. Foster, 171 S.W.3d 521, 537 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Although the Court should view the evidence in the light most favorable to the verdict, the Court may credit favorable evidence and may disregard contrary evidence only if a reasonable factfinder could do so. City of Keller, 1 In this motion “the Parrs” refer to Robert Parr, Lisa Parr, and Emma Duval. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 2 168 S.W.3d at 827. Scientifically unreliable testimony is not legally sufficient evidence. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1995). A jury question is immaterial if it should not have been submitted, if it was rendered immaterial by other findings, or if it called for a finding not within the jury’s province, such as a legal conclusion. Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994). Applying these standards, Aruba is entitled to judgment in its favor notwithstanding the verdict.2 II. This Court should disregard the jury’s answer to Question 1. Aruba cannot be held liable for an intentional nuisance. First, there is no legally sufficient evidence that Aruba intended to create a nuisance. Second, as a matter of law, there is no intentional nuisance because Aruba’s conduct was reasonable under the circumstances. A. There is no legally sufficient evidence that Aruba “intentionally” caused a nuisance. The Texas Supreme Court has held that a nuisance is intentional if it is “inflicted by conduct which is intended to cause harm.” City of Tyler v. Likes, 962 S.W.2d 489, 503 (Tex. 1997). In this case, there is no evidence that Aruba engaged in any conduct intended to cause harm. The Parrs did not present any evidence whatsoever about Aruba’s state of mind, and the evidence certainly did not show that Aruba meant to harm the Parrs. Nor did the Parrs present any evidence that Aruba actually knew that there was an alleged invasion on the Parrs’ property. According to the Dallas Court of Appeals, “An invasion is intentional if (1) the actor acts for the purpose of causing it, or (2) the actor knows that it is 2 By referring to specific legal arguments, Aruba does not waive any of the arguments it has otherwise preserved in this case. Aruba hereby incorporates by reference all of the matter of law points asserted in prior briefs and motions previously filed in this matter, including but not limited to its motions for summary judgment and motion for directed verdict. Aruba re-urges all of these points as additional grounds for granting the relief sought in this motion. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 3 resulting or is substantially certain to result from his conduct.” City of Princeton v. Abbott, 792 S.W.2d 161, 166 (Tex. App.—Dallas 1990, writ denied); accord Westergard v. Whatley, No. 0593-00535-CV, 1995 WL 44700, at *2 (Tex. App.—Dallas Feb. 1, 1995, writ denied). The Parrs presented testimony from just one Aruba employee at trial, John Goforth, and Goforth did not testify that he or anyone at Aruba knew that there had been an invasion on the Parrs’ property. The Parrs adduced at trial only two pieces of evidence having anything to do with Aruba’s knowledge of an invasion on the Parrs’ property, and neither shows that Aruba knew or was substantially certain about any such invasion. First, Lisa Parr testified that she spoke with workers present at or near Aruba’s pad sites, but not on the Parr property. During these conversations, Lisa Parr relayed her concerns regarding gas drilling operations “in the area,” but she did not identify herself or state where she lived. Such a generalized grievance did not alert Aruba about a potentially harmful invasion of VOCs on the Parrs’ property or any other kind of invasion. Second, Lisa Parr testified that she spoke with a receptionist for Aruba and demanded to know what Aruba’s plans were regarding complaints in the “Allison-Decatur area.” Lisa Parr failed to identify herself, failed to identify the specific “problem wells” at issue, and failed to request any follow-up from Aruba. Lisa Parr’s general grievance did not alert Aruba that its conduct was creating an invasion on the Parrs’ property. Because there is no evidence that Aruba intended to cause a nuisance, the Parrs’ claim for intentional nuisance fails. Likes, 962 S.W.2d at 503; Abbott, 792 S.W.2d at 166. Accordingly, the Court should enter a judgment notwithstanding the verdict in Aruba’s favor regarding Question 1. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 4 B. As a matter of law, the Parrs cannot recover for intentional nuisance because Aruba’s conduct was not unreasonable. Even if there was legally sufficient evidence of intent, this Court should disregard the jury’s finding of an intentional nuisance because, as a matter of law, Aruba’s conduct was not unreasonable. When a nuisance is intentional, a defendant will be held liable only if its conduct is “unreasonable.” Jamail v. Stoneledge Condo. Owners Ass’n, 970 S.W.2d 673, 676 (Tex. App.— Austin 1998, no pet.); Abbott, 792 S.W.2d at 166 (citing Restatement (Second) of Torts § 833). Whether a defendant’s conduct is unreasonable depends upon the circumstances of the particular case. Jamail, 970 S.W.2d at 676. In this case, Aruba’s natural gas operations were completely reasonable. The uncontradicted expert testimony of Terry Payne established that Aruba’s operations complied with best industry practices and met the standard for a reasonable and prudent oil and gas operator. Moreover, when Aruba drilled its wells, there was already significant drilling activity in the area by other operators. Aruba operated only 22 of the over 100 active wells within a twomile radius of the Plaintiffs’ property. In fact, the jury found in Question 2 that Aruba’s operations were not “abnormal and out of place in its surroundings.” It is also relevant that when Robert Parr purchased his property, it was already surrounded by drilling operations. The Parrs cannot now contend that the addition of Aruba’s wells was unreasonable. For this additional reason, the Court should disregard the jury’s answer to Question 1. C. Because Question 1 should be disregarded, the jury’s answers to Questions 3(a), 3(b), 3(c), and 4 are immaterial. In the absence of any ground for liability, the jury’s answers to Questions 3(a), 3(b), 3(c), and 4 concerning damages are immaterial, and should all be disregarded on this basis. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 5 III. The Court should disregard the jury’s answers to Questions 3(a), 3(b), and 3(c). A. There is no legally sufficient evidence of proximate cause. 1. This Court’s pretrial rulings and the Parrs’ disclaimer acknowledged the absence of required evidence of a causal nexus. Because they could not meet the Texas Supreme Court’s exacting standards for scientific evidence, the Parrs expressly disclaimed any personal injury damages requiring expert testimony under Havner and other cases, and this Court granted summary judgment that the Parrs’ personal injury damages were limited to damages within the common knowledge of a layperson. (11th Am. Petition at 24.) In their Eleventh Amended Petition, the Parrs stated: Plaintiffs disclaim any ‘personal injury’ damages that would invoke Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 714-15 (Tex. 1997); Merck & Co., Inc. v. Garza, 347 S.W.3d 256 (Tex. 2011); Borg-Warner v. Flores, 232 S.W.3d 765, 770 (Tex. 2007); and Georgia Pacific Corp. v. Bostic, 320 S.W.3d 588, 596 (Tex. App.—Dallas, pet. granted). (11th Am. Petition at 24.) And this Court granted partial summary judgment, ruling that:  “Plaintiffs take nothing on any personal injury claim that would invoke the proof requirements of Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997),”  “Plaintiffs take nothing on any claim that Defendants’ actions caused a disease that occurs genetically and for which a large percentage of the causes are unknown and that Plaintiffs’ claims for damages are limited only to symptoms typical of discomfort rather than disease,” and  “the plaintiffs’ personal injuries are limited to injuries that are (1) within the common knowledge and experience of a layperson, and (2) the sequence of events is such that a layperson may determine causation without the benefit of expert evidence.” (1/28/14 Summary Judgment Order.) MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 6 The Court’s rulings and the Parrs’ disclaimer left them with an exceedingly narrow window of available claims to be proven at trial. The $2.925 million in damages awarded by the jury do not fall within this very limited category. These purported damages could not be proven by lay testimony. Instead, to sustain the type of damages awarded, the Parrs were required to present the very expert evidence that this Court recognized was lacking. For this reason, this Court should disregard the jury’s answers to Questions 3(a), 3(b), and 3(c). 2. Reliable expert testimony was required to prove causation. “The general rule has long been that expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience of jurors.” Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007). In limited circumstances, non-expert evidence alone is sufficient to support a finding of causation, but only where both the “occurrence and conditions complained of are such that the general experience and common sense of laypersons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence.” Id. at 669. The damages awarded by the jury in this case fall within the general rule that expert testimony is required to prove causation in a toxic exposure case. Abraham v. Union Pacific R.R. Co., 233 S.W.3d 13, 18 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); Baker v. Energy Transfer Co., No. 10-09-00214-CV, 2011 WL 4978287, at *5 (Tex. App.—Waco 2011, pet. denied). “The existence of a causal connection between exposure to a certain chemical and injury or disease requires specialized expert knowledge and testimony because such matters are not within the common knowledge of lay persons.” Abraham, 233 S.W.3d at 18. The Parrs alleged that volatile organic compounds (“VOCs”) from Aruba’s wells invaded their property, and caused an array of symptoms, which included headaches, nosebleeds, rashes, dizziness, “pin point blindness,” anxiety, depression, numbness/tingling of limbs, nausea, cough, MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 7 and a “mental fog.” Unlike an automobile accident case, the subject matter of this suit is far beyond the common knowledge and experience of jurors. Whereas all laypersons fully understand what a car accident is, virtually no laypersons know what a VOC is. Moreover, whereas all laypersons know that a person can break a bone in a car accident, virtually no laypersons have common knowledge about whether VOCs could cause headaches, nosebleeds, rashes, dizziness, “pin point blindness,” anxiety, depression, numbness/tingling of limbs, nausea, cough, and a “mental fog.” Indeed, the Parrs were unable to find an expert who could scientifically support their theory that VOCs from Aruba’s wells caused their alleged injuries, supporting the point that there is no causal link between VOCs and their alleged injuries. It makes no difference whether these alleged conditions occurred in temporal proximity to the drilling of Aruba’s wells. The Texas Supreme Court has held that the mere fact that there is temporal proximity between an occurrence and an alleged injury does not relieve a plaintiff of its obligation to present reliable expert testimony. Guevara, 247 S.W.3d at 667. Thus, expert testimony—meeting the Texas Supreme Court’s requirements for such testimony—was required to prove causation in this case. Lay testimony was legally insufficient to prove causation. See Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010); City of Keller, 168 S.W.3d at 812. 3. The Parrs’ expert testimony was legally insufficient to prove causation. In a case such as this one, involving the effects of alleged exposure to toxins, the Texas Supreme Court has detailed rigorous requirements for scientific evidence. Those requirements were not met here. To begin with, the expert testimony must be reliable. E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 557 (Tex. 1995). “It is especially important that trial judges MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 8 scrutinize proffered evidence for scientific reliability when it is based upon novel scientific theories, sometimes referred to as junk science.” Id. at 554. In toxic tort cases, the plaintiff must show both general and specific causation. Havner, 953 S.W.2d at 715; Georgia-Pacific Corp. v. Bostic, 320 S.W.3d 588, 595 (Tex. App.—Dallas 2010, pet. granted). General causation is whether the allegedly offensive substance is capable of causing a particular injury or condition in the general population, and specific causation is whether that substance caused a particular individual’s injury. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 715 (Tex. 1997); Bostic, 320 S.W.3d at 595. In a case alleging toxic exposure, causation evidence should be premised on evidence from an expert on (1) whether the disease (or injury) can be related to chemical exposure by a biologically plausible theory; (2) whether the plaintiff was exposed to the chemical in a manner that can lead to absorption in the body; and (3) whether the dose the plaintiff was exposed to is sufficient to cause the disease (or injury). Borg-Warner v. Flores, 232 S.W.3d 765, 771 (Tex. 2007) (citing the REFERENCE MANUAL ON SCIENTIFIC EVIDENCE at 419); Baker v. Energy Transfer Co., No. 10-09-00214-CV, 2011 WL 4978287, at *5 (Tex. App.—Waco 2011, pet. denied). The Texas Supreme Court has held that evidence of frequency, regularity, and proximity of exposure to an alleged toxin alone is insufficient to establish causation. Borg-Warner, 232 S.W.3d at 770. Rather, a plaintiff must present defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the condition. Id. at 773; Bostic, 320 S.W.3d at 600. Applying these standards here, the expert testimony presented by the Parrs was legally insufficient. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 9 a. Dr. Rosenfeld’s testimony was legally insufficient. In a half-hearted attempt to establish scientific evidence of causation, the Parrs presented testimony from Dr. Paul Rosenfeld, an environmental chemist. Through Dr. Rosenfeld, the Parrs sought to prove that VOCs released from Aruba’s wells contained harmful chemicals that invaded their property and were capable of causing headaches, nosebleeds, rashes, dizziness, “pin point blindness,” anxiety, depression, numbness/tingling of limbs, nausea, cough, and a “mental fog.” However, Dr. Rosenfeld’s testimony was legally insufficient to prove causation. Dr. Rosenfeld opined only about the total amount of VOCs near the Parrs’ property. (Rosenfeld, 4/10/14, at 42.) This figure is meaningless, because it does not consider whether the specific chemicals that made up the VOC totals were actually harmful. VOCs are volatile organic compounds. They are found everywhere, and would appear in any air sample. (Rosenfeld, 4/10/14, at 43.) They are also naturally present in human breath because humans are organic. (Rosenfeld, 4/10/14, at 43.) Thus, the mere presence of VOCs in the air is not inherently harmful to humans. Dr. Rosenfeld testified generally that VOCs “can include” benzene, xylene, hexane, toluene, pentane, ethane, hydrochloric accident, and “a lot” of other chemicals. (Rosenfeld, 4/10/14 at 17.) Dr. Rosenfeld admitted that his total VOC figure included a portion of VOCs that are “harmful” and “some” that are “not harmful.” (Rosenfeld, 4/10/14, at 43.) However, Dr. Rosenfeld’s air model did not identify the individual VOCs making up the total VOCs or differentiate between the individual VOCs that are harmful, and those that are not. (Rosenfeld, 4/10/14, at 43.) Additionally, Dr. Rosenfeld did not quantify the individual chemicals to determine whether they existed at a dose that could harm the human body. Thus, it is impossible to tell from Dr. Rosenfeld’s testimony whether any VOCs in the air near the Parr’s property MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 10 could have harmed them physically. Therefore, Dr. Rosenfeld’s testimony was legally insufficient to establish causation. b. The expert testimony presented by the Parrs was legally insufficient because it did not rule out other causes of the Parrs’ alleged injuries. The expert testimony presented by the Parrs was also legally insufficient because it did not rule out other causes of the Parrs’ injuries with reasonable certainty. An expert’s failure to rule out other causes of the damages renders his opinion little more than speculation, and therefore unreliable. Havner, 953 S.W.2d at 720; Emmett Props., Inc. v. Halliburton Energy Servs., Inc., 167 S.W.3d 365, 373 (Tex. App.—Houston [14th Dist.] 2005, pet. denied); Weiss v. Mech. Associated Servs., 989 S.W.2d 120, 125 (Tex. App.—San Antonio 1999, pet. denied); Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 447-48 (Tex. App.—Fort Worth 1997, pet. denied). For example, in Mitchell Energy Corp. v. Bartlett, the plaintiffs alleged that hydrogen sulfide had migrated from the defendant’s gas wells and into their water. Mitchell, 958 S.W.2d at 445. Although the defendant was one of 22 operators in the area and operated less than half of the nearby gas wells, the plaintiffs’ expert did not gather any evidence of the chemical make-up of the other gas wells in the plaintiffs’ vicinity. Id. at 447. Because the expert failed to rule out the possibility that the hydrogen sulfide could have come from a different source, the court of appeals held that the expert’s testimony was no evidence that the defendant polluted the plaintiffs’ water. Id. at 447-48. Similarly, Dr. Rosenfeld did not attempt show that any VOCs in the air at the Parrs’ property originated at Aruba’s facilities, as opposed to other operators’ facilities. The evidence at trial showed that Aruba operated only 22 of the over 100 active wells within a two-mile radius of the Plaintiffs’ property. The non-Aruba wells outnumber the Aruba wells 4:1, and the actual MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 11 amount of Aruba emissions was minor compared to the aggregation of all other operators’ emissions. Dr. Rosenfeld acknowledged that some of Burlington’s wells were the highest producers of VOC emissions in the area. Indeed, just one pad site was capable of emitting over 160 tons of emissions per year, according to Dr. Rosenfeld. Dr. Rosenfeld also detailed severe and systematic problems with Encana’s operations in the area—problems best summarized by what Dr. Rosenfeld called a “primitive corporate attitude” towards emissions reduction and pollution controls. Yet, Dr. Rosenfeld failed to rule out Burlington, Encana or any other operators as the cause of the VOCs that allegedly invaded the Parrs’ property. In fact, the Parrs initially sued four other operators and four service companies, alleging that they all were at fault for creating the nuisance on their property. Thus, Dr. Rosenfeld’s failure to rule out other causes renders his testimony unreliable, and therefore, legally insufficient. See Havner, 953 S.W.2d at 720; Emmett Props., 167 S.W.3d at 373; Weiss, 989 S.W.2d at 125; Mitchell, 958 S.W.2d at 44748. Additionally, neither Dr. Rosenfeld nor any other expert attempted to rule out other medical causes of the Parrs’ symptoms.3 The Parrs’ symptoms—such as headaches, nosebleeds, and nausea, among others—are common in the general population and could have been caused by any number of conditions or events. For example, both Robert and Lisa Parr smoke cigarettes regularly, and Lisa Parrs’ medical records reveal that she has suffered from Lyme disease. The Parrs’ medical records also indicated a history of depression and anxiety before Aruba began drilling in the two-mile area. Yet, the Parrs did not make any effort to present expert testimony ruling out these or other potential causes for their symptoms and alleged mental anguish. To the extent that Dr. Rosenfeld or Dr. Didriksen might have weakly suggested that Aruba’s actions 3 Indeed, Dr. Rosenfeld would have been unqualified to do so, because he has no medical training. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 12 might have caused the Parrs’ medical symptoms, their testimony is unreliable and legally insufficient. See Havner, 953 S.W.2d at 720; Emmett Props., 167 S.W.3d at 373; Weiss, 989 S.W.2d at 125; Mitchell, 958 S.W.2d at 447-48. c. The Parrs wholly failed to establish specific causation because they did not present evidence of dose. Moreover, the Parrs did not present any evidence of dose. In a toxic tort case, an opinion on causation must show whether the dose to which the plaintiff was exposed is sufficient to cause the condition. Borg-Warner, 232 S.W.3d at 771. The Texas Supreme Court has explained, “One of toxicology’s central tenets is that ‘the dose makes the poison.’” Id. at 770. “Even water, in sufficient doses, can be toxic.” Id. Dose refers to the amount of chemical that enters the body and is the most important factor to consider in evaluating whether an alleged exposure caused a specific adverse effect. Id. Here, the Parrs wholly failed to present any evidence of dose to support specific causation. The Parrs presented no toxicological or medical testimony pertaining to dose. The Parrs also failed to present any evidence of medical testing showing the presence of any of the VOCs modeled by Dr. Rosenfeld in their bodies. In fact, the only evidence at trial pertaining even remotely to dose was presented by Aruba’s experts Dydek and Eklund, and it showed that the VOCs on the Parrs’ property existed in trace amounts that could not cause harmful health effects, and these were actual measurements, not model estimates. Although Dr. Rosenfeld offered conclusory testimony that he did a dose reconstruction, this unsupported assertion is not evidence. If he indeed conducted a dose reconstruction, Dr. Rosenfeld did not share it with the jury. The use of “magic words” about dose reconstruction cannot transform Dr. Rosenfeld’s unreliable testimony into reliable testimony. Havner, 953 MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 13 S.W.2d at 711-12. “An expert’s bare opinion will not suffice.” Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 906 (Tex. 2004) (citing Havner, 953 S.W.2d at 711). In a weak effort to connect VOCs to the Parrs’ alleged injuries, Dr. Rosenfeld listed chemicals that the Parrs were potentially exposed to and suggested that those chemicals were capable of causing their conditions. Although he was not qualified to opine as to any medical conditions, Dr. Rosenfeld read to the jury Material Safety Data Sheets (“MSDS sheets”) pertaining to each chemical, stating:  Benzene can have effects on the skin, lungs, brain, eyes, and stomach.  Toluene can cause skin irritation, eye irritation, burning sensation, wheezing, restlessness, light-headedness, memory loss, insomnia, impaired reaction time, drowsiness, acute pulmonary edema, and vision disturbances.  Ethyl benzene has the same toxic effects as benzene and toluene.  Xylene has “the same toxic effects on humans that we discussed earlier.”  Hexane causes drowsiness, sleeplessness, irritation of the skin, and peripheral neuropathy like numbness of the fingers, and “I believe” it causes headaches.  Hydrochloric acid has “toxic effects similar to the other toxic effects that we’ve discussed.” (Rosenfeld, 4/10/14 at 17-21.)4 In so testifying, Dr. Rosenfeld did not even attempt to identify what dose of the chemicals could cause the above-listed symptoms. Dr. Rosenfeld did not mention the TECQ’s air monitoring comparison values (“AMCVs”), or any other reliable measures, which would have indicated whether the chemicals in the air near the Parrs’ property exceeded harmful thresholds. This kind of testimony has been expressly rejected by the Texas Supreme Court, which has emphasized that it is not enough for plaintiffs to list chemicals to which they were 4 Dr. Rosenfeld read these health effects from generic MSDS because he has no personal knowledge of these health effects. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 14 “potentially exposed,” and suggest that those chemicals are “capable of causing” their medical condition. In re Allied Chemical Corp., 227 S.W.3d 652, 656 (Tex. 2007). “Evidence that a chemical can cause a disease is no evidence that it probably caused the plaintiff’s disease.” Id. Moreover, Dr. Rosenfeld’s testimony comparing air samples from the Denton airport with air samples from the TCEQ near the Parr’s home did not show whether the chemicals exceeded a harmful dose. (Rosenfeld, 4/14/1/14, at 12-13.) Dr. Rosenfeld opined that the concentration of benzene, toluene, ethylbenzene, xylene, and hexane were all higher at the Parrs’ property than they were at the Denton airport. But, of course, air samples at the Denton airport do not provide any kind of scientific yardstick for determining whether a chemical exists at harmful levels. Had Dr. Rosenfeld actually compared the air samples to the TCEQ’s AMCVs, or any other reliance scientific source, such a comparison would have revealed that the specific VOCs present near the Parrs’ property existed in trace amounts that were all well below harmful levels. Also, the testimony of Dr. Nancy Didriksen, a neuropsychologist, did not establish specific causation either. Dr. Didriksen merely verified the existence of the Parrs’ symptoms, but she did not testify that these symptoms were caused by VOCs on the Parrs’ property. Dr. Didriksen was also unqualified to give a medical opinion because she is not a medical doctor. Thus, the Parrs offered no legally sufficient evidence of specific causation. d. The Court should disregard the jury’s answers to Questions 3(a), 3(b), and 3(c) because there is no evidence that Aruba’s operations were a proximate cause of the Parrs’ injuries. With no reliable scientific testimony to support their theories, the Parrs failed to produce evidence that Aruba’s operations were a proximate cause of their personal injuries. To prove proximate cause, a plaintiff must show that Aruba’s acts were a “substantial factor” in bringing about their injuries. Borg-Warner Corp., 232 S.W.3d at 770; Bostic, 320 S.W.3d at 596. The MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 15 word “substantial” means that the defendant’s conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause. Borg-Warner Corp., 232 S.W.3d at 770. To prove proximate cause, a plaintiff must also prove that without the condition created by the defendant, the damages would not have occurred. Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 222-23 (Tex. 2010); Bostic, 320 S.W.3d at 596-97. In other words, plaintiffs must prove “but for” causation. Bostic, 320 S.W.3d at 596-97. Here, there was no evidence—whether from an expert or even a lay person—that the alleged personal injuries would have not have occurred without Aruba’s operations. As explained above, Aruba’s wells comprised just a fraction of the wells surrounding the Parrs’ property. Moreover, the closest Aruba well to the Parrs’ home was more than 1000 feet away. However, neither Dr. Rosenfeld nor any other witness even attempted to show that the VOCs present on the Parrs’ property originated from Aruba’s wells, as opposed to some other source. Thus, it is impossible to tell whether Aruba’s operations were a substantial factor in producing the VOCs at or near the Parrs’ property. It is also impossible to tell whether the VOCs would have been present on the Parrs’ property but for Aruba’s operations. Moreover, the Parrs’ personal injuries pre-dated Aruba’s operations. The evidence at trial showed that the Parrs had virtually the same symptoms that they complained about at trial prior to Aruba’s commencement of drilling in late 2008. Although Lisa Parr testified that there was Aruba activity on days that she experienced a health symptom, she also testified that she could not rule out other causes of her symptoms. The Parrs vaguely testified that their symptoms became “different” once Aruba began drilling, but this is not legally sufficient evidence that the Parrs’ injuries would not have occurred in the absence of Aruba’s wells. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 16 Indeed, the Parrs attempted to establish causation based on nothing more than the logical fallacy of post hoc ergo propter hoc (after this, therefore because of this). But this is no evidence of causation. The Texas Supreme Court has recently warned, “Care must be taken to avoid the post hoc ergo propter hoc fallacy, that is, finding an earlier event caused a later event merely because it occurred first. Stated simply, correlation does not necessarily imply causation.” Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010). Because the Parrs failed to present legally sufficient evidence that their damages would not have occurred in the absence of Aruba’s operations, this Court should disregard the jury’s answers to Questions 3(a), 3(b), and 3(c). B. There is no legally sufficient evidence of the amounts awarded. The evidence is also legally insufficient to support the amounts of damages awarded by the jury in Questions 3(a), 3(b), and 3(c). See, e.g., Formosa Plastics Corp. USA v. Presidio Engineers and Contractors, Inc., 960 S.W.2d 41, 50 (Tex. 1998) (holding that although there was evidence to support some damages awarded by the jury, the evidence was legally insufficient to support the entire amount of the jury’s damages award). 1. The evidence is legally insufficient to support the amount of damages awarded by the jury in Question 3(a). In Question 3(a), the jury awarded damages for past pain and suffering in the amount of: $750,000 for Robert Parr, $750,000 for Lisa Parr, and $500,000 for Emma Duval. The Parrs’ minor claimed injuries—including rashes, headaches, and nosebleeds, for example—do not constitute legally sufficient evidence to support an award of $2,000,000 for past pain and suffering. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 17 2. The evidence is legally insufficient to support the amount of damages awarded by the jury in Question 3(b). The evidence is also legally insufficient to support the jury’s answers to Question 3(b) because the Parrs did not present any evidence at trial that their alleged symptoms currently persist and will persist in the future. In fact, Robert and Lisa Parr’s testimony was the exact opposite—both testified that their symptoms had subsided due to treatment. Moreover, no doctor or medical expert testified that any of the Parrs’ medical conditions were on-going and would extend into the future. Thus, there was thus no legally sufficient evidence of future pain and suffering. Weidner v. Sanchez, 14 S.W.3d 353, 372 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (requiring more than a scintilla of evidence showing that injuries are on-going). Alternatively, even if there were some evidence of future pain and suffering, the evidence was legally insufficient to support the amount of damages awarded by the jury in Question 3(b). The jury awarded: $100,000 to Robert Parr, $100,000 to Lisa Parr, and 50,000 to Emma Duval. These awards are not supported by legally sufficient evidence. 3. The evidence is legally insufficient to support the amount of damages awarded by the jury in Question 3(c). Additionally, there was no legally sufficient evidence to support the jury’s awards of mental anguish damages. An award of mental anguish damages must be supported by direct evidence that the nature, duration, and severity of mental anguish was sufficient to cause, and did cause, either a substantial disruption in the plaintiff’s daily routine or a high degree of mental pain and distress. Service Corp. Intern. v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011). “There must be both evidence of the existence of compensable mental anguish and evidence to justify the amount awarded.” Hancock v. Variyam, 400 S.W.3d 59, 68 (Tex. 2013). Here, the little evidence produced by the Parrs concerning their mental condition was well below the threshold for recovery of mental anguish damages. In fact, much stronger MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 18 evidence has been found insufficient to support a mental anguish award. See, e.g., Lefton v. Griffith, 136 S.W.3d 271, 279 (Tex. App.—San Antonio 2004, no pet.) (testimony that plaintiff was “unable to sleep, was depressed, and suffered from anxiety” was insufficient to support a mental anguish award); Anderson v. Long, 118 S.W.3d 806, 811 (Tex. App.—Fort Worth 2003, no pet.) (testimony that experience caused plaintiff to lose sleep, had been “extremely nerve racking,” and “extremely embarrassing on a daily basis” was insufficient to support mental anguish award); GTE Mobilnet of South Texas Ltd Partnership v. Pascouet, 61 S.W.3d 599, 619 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (testimony that plaintiffs experienced anger, stress, distress, anguish, disappointment, fear, lost sleep, worry, and embarrassment was insufficient to support a mental anguish award); TMC Foods L.L.C. v. Mason, No. 09-03-217 CV, 2004 WL 918650, *4-5 (Tex. App.—Beaumont 2004, no pet.) (testimony that plaintiff was devastated, “really upset,” and humiliated was insufficient to support a mental anguish award); Mantas v. Bradley, No. 05-97-01910-CV, 2001 WL 959389, *9 (Tex. App.—Dallas 2001, no pet.) (testimony that plaintiff became “very distraught,” had difficulty sleeping and suffered upset stomachs, and that her relationship with her boyfriend became strained was insufficient to support a mental anguish award); River Oaks L-M, Inc. v. Whalen, No. 01-97-00299-CV, 1998 WL 614435, *5 (Tex. App.—Houston [1st Dist.] 1998, no writ) (testimony that plaintiff was “distraught,” “real put out,” “very angry,” “annoyed,” “frustrated,” “experiencing anxiety,” “shocked,” “furious,” and “disgusted” was insufficient to support a mental anguish award). At most, the Parrs’ testimony shows anxiety, anger, and fear, but the evidence did not rise to a level supporting compensable mental anguish damages. Alternatively, even if there were some evidence to support mental anguish damages, the evidence was legally insufficient to support the amount of mental anguish damages awarded by the jury. The jury awarded for MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 19 mental anguish: $150,000 to Robert Parr, $150,000 to Lisa Parr, and $100,000 to Emma Duval. These damage awards were not supported by legally sufficient evidence. For this reason, the evidence is legally insufficient to support the jury’s findings as to Question 3(c). 4. The Court should disregard the jury’s answers in Question 3 awarding Emma Duval damages. In Questions 3(a), 3(b), and 3(c), the jury awarded Emma $500,000 for past pain and suffering, $50,000 for future pain and suffering, and $100,000 for mental anguish. Yet, the evidence of these damages was limited to a nosebleed, a rash, and inconvenience regarding Emma’s school. Although Dr. Didriksen tested Robert and Lisa Parr to verify their symptoms, she did not do a similar test for Emma Duval. The evidence of Emma’s claimed injuries did not rise to a compensable level of pain and suffering or mental anguish, much less $650,000 in damages. The awards to Emma Duval lack legally sufficient evidence for these additional reasons. IV. The Court should disregard the jury’s answer to Question 4. A. Dr. Kilpatrick’s testimony is unreliable and legally insufficient. Dr. John Kilpatrick testified that that the impaired value of the Parrs’ property was $0. His opinion was based on the assumption that Dr. Rosenfeld’s air model was correct and that the Parr’s property was “contaminated” by toxic VOCs. However, as explained above, Dr. Rosenfeld did not tie VOCs in his air model to Aruba’s operations or exclude other sources of VOCs. Thus, Dr. Kilpatrick’s testimony was all based on an unreliable foundation and flawed methodology, and it likewise fails to constitute legally sufficient evidence. See Havner, 953 S.W.2d at 714 (“If the foundational data underlying opinion testimony are unreliable, an expert MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 20 will not be permitted to base an opinion on that data because any opinion drawn from that data is likewise unreliable.”). B. There is no legally sufficient evidence that Aruba’s operations were the proximate cause of diminished market value. With no reliable scientific testimony to support their theory that toxic VOCs contaminated their property, the Parrs failed to produce evidence that Aruba’s operations were a proximate cause of their property damage. See Borg-Warner Corp., 232 S.W.3d at 770; Bostic, 320 S.W.3d at 596. Neither Dr. Rosenfeld, Dr. Kilpatrick, nor any other witness even attempted to show that the VOCs present on the Parrs’ property originated at Aruba’s wells, as opposed to some other source. Furthermore, no witness testified that the market value of the Parrs’ property would not have decreased but for Aruba’s operations. Because the Parrs failed to present legally sufficient evidence that their claimed property damages would not have occurred in the absence of Aruba’s operations, this Court should disregard the jury’s answers to Question 4. C. There is no legally sufficient evidence of the amount of damages awarded by the jury in Question 4. The jury’s answer to Question 4 should also be disregarded because there is no evidence of the amount of damages awarded by the jury. See Formosa Plastics, 960 S.W.2d at 50. Although both the Parrs and Aruba presented expert testimony regarding the value of the Parrs’ property, no witness testified that the Parrs’ property decreased in market value by $275,000, or any similar figure. Thus, the amount of damages awarded by the jury in Question 4 is not supported by legally sufficient evidence and should be disregarded. ADDITIONAL LEGAL SUFFICIENCY AND MATTER OF LAW POINTS In addition to the points raised above, this Court should disregard the jury’s verdict and award judgment notwithstanding the verdict for the following reasons. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 21 1. There is no legally sufficient evidence to support the jury’s answer to Question 1. 2. There is no legally sufficient evidence to support any findings, whether express, implied, or deemed in Question 1 as a result of Question 1 or any accompanying or general instructions. 3. Because the jury’s answer to Question 1 should be disregarded for the reasons stated in this Motion, the jury’s answers to Questions 3 and 4 should be disregarded because they are immaterial. 4. There is no legally sufficient evidence to support the jury’s answers to Questions 3(a), (b), and (c). 5. There is no legally sufficient evidence to support any findings, whether express, implied, or deemed in Questions 3(a), 3(b), or 3(c) as a result of Questions 3(a), 3(b), or 3(c) or any accompanying or general instructions. 6. There is no legally sufficient evidence to support the jury’s answer to Question 4. 7. There is no legally sufficient evidence to support any findings, whether express, implied, or deemed in Question 4 as a result of Question 4 or any accompanying or general instructions. 8. There is no legally sufficient evidence to support the jury’s answer to Question 1 that Aruba created a nuisance that substantially interfered with the Parrs’ use and enjoyment of their land. 9. There is no legally sufficient evidence supporting the jury’s answer to Question 1 that the alleged nuisance would have caused unreasonable discomfort or annoyance to a person or ordinary sensibilities. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 22 10. There is no legally sufficient evidence support the jury’s answer to Question 1 because there was no reliable expert testimony that VOCs from Aruba’s wells invaded the Parrs’ property. 11. There is no legally sufficient evidence supporting the jury’s award of damages to Robert Parr in Question 3(a) or (b) for past and future pain and suffering. 12. There is no legally sufficient evidence supporting the jury’s award of damages to Lisa Parr in Question 3(a) or (b) for past and future pain and suffering. 13. There is no legally sufficient evidence supporting the jury’s award of damages to Emma Duval in Question 3(a) or (b) for past and future pain and suffering. 14. There is no legally sufficient evidence supporting the jury’s award of damages to Robert Parr in Question 3(c) for mental anguish. 15. There is no legally sufficient evidence supporting the jury’s award of damages to Lisa Parr in Question 3(c) for mental anguish. 16. There is no legally sufficient evidence supporting the jury’s award of damages to Emma Duval in Question 3(c) for mental anguish. 17. There is no legally sufficient evidence of causation supporting the jury’s answers to Question 3. 18. There is no legally sufficient evidence to support the jury’s award of damages in Question 3 because none of the Parrs’ symptoms were verified by a qualified medical doctor. 19. There is no legally sufficient evidence to support the jury’s award of damages in Question 3 because a qualified medical expert did not testify that the Parrs’ alleged symptoms could have been caused by VOCs. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 23 20. There is no legally sufficient evidence of lost market value supporting the jury’s award of damages in Question 4. 21. There is no legally sufficient evidence of causation supporting the jury’s answer to Question 4. 22. All of the Parrs’ damages in Question 3 are barred because they disclaimed those damages. 23. All of the Parr’s damages in Question 3 are barred by this Court’s summary judgment ruling. 24. There is no legally sufficient evidence supporting the entire amount of damages found by the jury in response to each subpart of Question 3(a), each subpart of Question 3(b), each subpart of Question 3(c) and Question 4. 25. There is no legally sufficient evidence to support damages for nuisance in any amount. 26. There is no legally sufficient evidence to support the damages award because it is based on lay and expert testimony that lacked probative value, was speculative, unreliable, unfounded, and conclusory, and Plaintiffs’ witnesses were unqualified to proffer such testimony. 27. Dr. Paul Rosenfeld’s testimony was legally insufficient evidence. 28. Dr. Rosenfeld’s testimony was unreliable, and did not meet the Texas Supreme Court’s standards for expert testimony. 29. Dr. Rosenfeld’s testimony was legally insufficient because he was unqualified to testify about causation and, indeed, was not designated to testify about causation of the Parrs’ injuries and damages. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 24 30. To the extent that Dr. Rosenfeld testified about medical conditions, his testimony was legally insufficient because he was unqualified to do so. 31. Dr. Nancy Didriksen’s testimony was legally insufficient evidence. 32. Dr. Didriksen’s testimony was unreliable, and did not meet the Texas Supreme Court’s standards for expert testimony. 33. Dr. Didriksen’s testimony was legally insufficient because she was unqualified to testify about causation and, indeed, was not designated to testify about causation of the Parrs’ injuries and damages. 34. To the extent that Dr. Didriksen testified about medical conditions, her testimony was legally insufficient because she was unqualified to do so. 35. Dr. John Kilpatrick’s testimony was legally insufficient evidence. 36. Dr. Kilpatrick’s testimony was unreliable, and did not meet the Texas Supreme Court’s standards for expert testimony. 37. As a matter of law, the Parrs’ nuisance claim was preempted and was a non-justiciable political question. The Parrs’ claim for intentional nuisance is preempted and barred by the federal and state Clean Air Acts and the political question doctrine. Federal and state laws set permissible emission limits designed to protect the health, safety and welfare of its citizens and preempt claims that are inconsistent or in conflict with those laws. Plaintiffs cannot impose their own self-chosen lower emission limits through a nuisance claim. 38. As a matter of law, the Parrs’ nuisance claim is barred by the statute of limitations. 39. As a matter of law, the Parrs disclaimed all of their personal injury damages. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 25 40. As a matter of law, the Parrs’ personal injury damages are all barred by this Court’s summary judgment rulings. PRAYER For the reasons stated herein, Aruba respectfully requests that the Court disregard the jury’s answers to Questions 1, 3(a), 3(b), 3(c), and 4, and enter a take-nothing judgment. Aruba further requests such other and further relief to which it is justly entitled. Respectfully submitted, /s/ Nina Cortell Nina Cortell Texas Bar No. 04844500 Michael J. Mazzone Texas Bar No. 13313000 Christina Crozier Texas Bar No. 24050466 Haynes and Boone, LLP 1 Houston Center 1221 McKinney, Suite 2100 Houston, Texas 77010 713.547.2115 Phone 713.236.5662 Fax and Ben K. Barron Texas Bar No. 01817315 Ben K. Barron, P.C. 4516 Lovers Lane, Suite 280 Dallas, Texas 75225 214.855.6632 Phone 214.855.6633 Fax Attorneys for Defendant, Aruba Petroleum, Inc. MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 26 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document was served upon the party listed below in accordance with the TEX. R. CIV. P. on May 16, 2014. Bradford J. Gilde Gilde Law Firm, PLLC 55 Waugh Drive, Suite 850 Houston, Texas 77007 Via Email Richard Capshaw Capshaw & Associates 3031 Allen St., Suite 201 Dallas, Texas 75204 Via Email /s/ Michael J. Mazzone Michael J. Mazzone D-2270114_1 MOTION TO DISREGARD JURY FINDINGS AND FOR JNOV PAGE 27