Crofton, Edward v. Amoco Chemical Company

• Court: Court of Appeals of Texas
• Decided: May 30, 2003
• Docket: 01-01-00526-CV
• Status: Published

Opinion

Opinion issued May 30, 2003

In The

Court of Appeals

For The

First District of Texas

NO. 01-01-00526-CV

____________

EDWARD CROFTON, SALVADOR ACEVES, JR., individually and as next friend of SALVADOR ACEVES, III and CARLOS ACEVES, minors, GLEN ACORD, ENOLA ACORD, GLENDA ANTHONY, DAVID AINSTRUP, as representative of THE ESTATE OF JACK AINSTRUP, DONNIE E. AUSMUS, PAULINE AUSMUS, CHESTER A. BARGER, MARGARET A. BARGER, MELISA BARROW, DEBORAH A. BEEBE, BETTY R. BELCHER, ELSA L. BELVA, CHESTER BENNET, LAVERN D. BONIN, CHARLES R. BOTTOMS, CLAUDE F. BRICK, MARIAN BRICK, GEORGE BROWN, JR., GEORGE STEVEN BROWN, ALLIE M. BUCHANAN, DEBORAH J. BUTLER, GENE K. BUTLER, JAMES CHEVALIER, JEFF COCO, PAM COCO, THEMA COWART, individually and as representative of THE ESTATE OF JAMES COWART, ROBERT M. CROFT, SANDRA P. CROFT, HELEN CROFTON, LONNIE J. DELESANDRI, individually and as representative of THE ESTATE OF ETHEL DELESANDRI, DONNA L. DILDY, DICK DIPUCCIO, THOMAS ANTHONY DISPENSA, ZINA ISAIS DISPENSA, individually and as next friend of MATTHEW JOHN DISPENSA and KATHLEEN DISPENSA, minors, SHIRLEY EUBANKS, CONNIE FEARRINGTON, JOHN R. FEARRINGTON, MELVIN FUQUA, MARGARETTE GARRETT, SUSAN GARRETT, as representative of THE ESTATE OF MARGIE GARRETT, KATHY HANCOCK, ALLENE H. HASHA, individually and as representative of THE ESTATE OF ODIS EUGENE HASHA, WILLIAM HENSLER, PATSY HESTER HATCHETT, KATHLEEN HENSLER, JERRY E. HOOPER, PAT RICCIO HOWARD, TROY J. KACHINSKI, GAIL M. KELLY, MADELINE CAROL KERSHAW, BILL R. LAIRD, GERALD LIVAS, AMBER K. LONG, individually and as next friend of JENNIFER LONG, a minor, SHIRLEY A. MAHURIN, STEPHEN A. MAHURIN, CHARLIE T. MAZOCH, SHERRY A. MAZOCH, TAMMY MAZOCH, individually and as next friend of ALEXANDRIA L. MAZOCH, a minor, TIMOTHY N. MAZOCH, JAMES McCONNAUGHEY, LORI McKENZIE, JOHN McWILLIAMS, RUTHIE McWILLIAMS, BRUCE A. MITCHELL, CINDY MITCHELL, individually and as next friend of ANTHONY D. MITCHELL, a minor, ANTHONY T. MITCHELL, DAVID W. MOLINA, PAIGE L. MOLINA, BOBBIE MONTGOMERY, DAVID G. MONTGOMERY, WILLIAM T. MONTGOMERY, BONNIE MONYCH, individually and as next friend of MALLORY MONYCH, a minor, STEFAN E. MONYCH, JR., STEFANI MONYCH, RONNIE D. MORRISON, PAMELA JOYCE MUNDY, THOMAS JAMES MUNDY, STEVEN L. MUSACHIA, GINA A. OLIPHANT, ROBIN OTTO, VICTORIA A. PARKER, individually and as next friend of CAROLYN PARKER and PATRICK PARKER, minors, CHARLES PATTERSON, E.L. PATTERSON, CHARLIE PAYSSE, TEMPLA PAYSSE, VIVIAN L. PAYSSE, HOWARD POWELL, JOANN POWELL, ROBERT PRATT, DOROTHY RAU, HARVEY A. RAU, JAMES M. RICCIO, individually and as next friend of MICHAEL DREW RICCIO and CHRISTOPHER RYAN RICCIO, minors, JAMES R. RICCIO, ARBRA ROBERTS, RICHARD P. SHAFFER, TERRY SHANNON, AGNES C. SITKA, LEON SITKA, MATTHEW SITKA, ELIGAH SMITH, CAROLYN SMITH, WILLIAM BROOKS SMITH, individually and as next friend of WILLIAM BRANDON SMITH, a minor, GRACE STEVENSON, JOHN W. STEVENSON, IRA L. STRICKLAND, ANGELO L. TAMBURINE, GLADYS S. TAMBURINE, DONNIE TISDALE, JODIE TISDALE, WENDY L. TREADWAY, C.F. URODA, HELEN URODA, RAYMOND VAURA, DOUGLAS R. VAVRA, J.E. WAGONER, individually and as representative of THE ESTATE OF JOJANE WAGONER, PATRICIA M. WALTON, ANTHONY WEBER, GERARDA WEBER, JODIE WILLIAMS, GENITA WILLIAMS, HENRY LEE WILLIAMS, COY WILSON, JOHN WILSON, PATRICIA WILSON, AND WILLIAM WILSON, Appellants

V.

AMOCO CHEMICAL COMPANY, AMOCO GAS COMPANY, AMOCO OIL COMPANY, AMOCO PRODUCTION, COMPANY, MONSANTO COMPANY, MARATHON PETROLEUM COMPANY, AND STATE STREET BANK AND TRUST COMPANY OF MISSOURI, N.A., AS SUCCESSOR TRUSTEE FOR THE MERCANTILE BANK ST. LOUIS, N.A., TRUSTEE FOR THE MOTCO TRUST GROUP, Appellees

On Appeal from the 10th District Court

Galveston County, Texas

Trial Court Cause No. 95CV1352-C

MEMORANDUM OPINION

In this toxic tort lawsuit, appellants brought claims for recovery of personal injury and property damages against appellees, Amoco Chemical Company, Amoco Gas Company, Amoco Oil Company, Amoco Production Company, Monsanto Company, Marathon Petroleum Company, and The Mercantile Bank St. Louis, N.A., as trustee for the MOTCO Trust Group and/or State Street Bank and Trust Company of Missouri, N.A., as successor trustee. The trial court rendered a no-evidence summary judgment in favor of appellees.

In four issues, appellants contend that the trial court erred in (1) granting a no-evidence summary judgment on all of their claims, (2) granting appellees' motion to strike the affidavit, report, and attached exhibits of one of appellants' expert witnesses, (3) granting a no-evidence summary judgment on appellants' claims for medical monitoring, and (4) denying appellants' motion for continuance.

We affirm.

Facts and Procedural Background

Appellants currently are, or have been, either residents of the Bayou Vista and Omega Bay subdivisions and the Sun Flower Mobile Home Park or employees of Central Freight Lines, all of which are located adjacent to, or in the vicinity of, the MOTCO superfund site (the site) in La Marque, Texas. Appellants assert that appellees occupied or used the property on which the site is located to dispose of hazardous wastes into several uncovered, unlined, or inadequately lined storage pits between 1959 and 1968.

Appellants filed this lawsuit in December 1995, seeking recovery for personal injury and property damages that they allege they sustained as a result of numerous toxic chemicals emanating from the site. Appellants allege that, despite federal cleanup efforts, substantial amounts of hazardous chemicals have continued to migrate beyond the boundaries of the site, adversely affecting their physical health and the value of their property. ⁽¹⁾

In their petition, appellants asserted causes of action for statutory violations, strict liability, negligence, gross negligence, public and private nuisance, trespass, intentional infliction of emotional distress, medical monitoring, and fear of future illness. Appellants also sought recovery of $80 million for their personal injuries, lost wages, and medical expenses alleged to have been caused by exposure to toxic chemicals emanating from the site, for the diminution and depreciation of the value of their real property located near the site, and for exemplary damages.

In 1998, the trial court granted a partial summary judgment in favor of appellees, based on the expiration of the applicable statutes of limitations on appellants' claims for public and private nuisance, nuisance per se, trespass, and "[a]ll claims for property damages under any theory of recovery . . . except as to specific injury to specific property occurring within two years of filing suit." This partial summary judgment was subsequently severed and affirmed on appeal, leaving appellants with their remaining claims for any property damage that occurred within two years of the date the lawsuit was filed, as well as their personal injury claims. ⁽²⁾

In January 2000, the trial court signed a scheduling order requiring appellants to designate and present all testifying expert witnesses for deposition by May 18, 2000. In June 2000, appellees filed a no-evidence motion for summary judgment concerning appellants' remaining claims, arguing that, after adequate time for discovery, appellants had failed to produce any evidence to support their claims.

Appellees' no-evidence motion for summary judgment reads, in part, as follows:

1. [Appellants] have offered no evidence that any [appellant] has been exposed to any specific exposure or dose level with respect to any chemical;

2. [Appellants] have offered no evidence that any specific [appellant] has any specific illness or disease caused within a reasonable degree of medical or scientific probability by exposure to any specific chemicals located at or from the [site];

3. [Appellants] have not offered nor cited to any epidemiological study that shows that [appellants] in general or any specific [appellant] has a substantially elevated risk of contracting any specific disease in the future as a result of any alleged chemical exposure from the [site], or any such study which demonstrates a consistent and strong positive association between any specific chemical at issue and the specific disease suffered by any specific [appellant] at any specific dose;

4. [Appellants] have offered no evidence or proof that any [appellant] has been exposed to any dose level of any chemical which has been demonstrated in epidemiological studies to cause any specific disease alleged to be at issue;

5. [Appellants] have offered no evidence negating any other possible cause of any disease which any specific [appellant] has alleged [sic] to have suffered;

6. [Appellants] have offered no evidence regarding any specific medical monitoring protocol that any specific [appellant] should undergo or any evidence that any such medical monitoring protocol is medically necessary for any specific [appellant];

7. [Appellants] have offered no evidence regarding the cost of any future medical monitoring;

8. [Appellants] have offered no evidence of any past or future medical costs sustained or to be sustained by any [appellant] within a reasonable medical probability with respect to any injury or illness alleged to have been caused by exposure to any chemical at or from the [site];

9. [Appellants] have offered no evidence that any real property of any [appellant] suffered any specific damage or injury from the [site] occurring within two years of filing suit . . .;

10. [Appellants] have offered no evidence that any property of any [appellant] has been damaged as a result of the [site]; and

11. [Appellants] have offered no evidence that any chemical or other substance from the [site] escaped or migrated from the [site] via soil, ground water or surface water to [appellants'] property or any other location at which [appellants] allege exposure.

Appellants filed a response to appellees' motion for summary judgment and attached affidavits from their expert witnesses and additional materials as summary judgment evidence. In addition, appellants filed a motion for continuance, requesting additional time to conduct further discovery.

The trial court conducted a hearing on the no-evidence motion for summary judgment on October 25, 2000 and subsequently gave appellants a 45-day extension of time to file any supplemental responses and present any additional summary judgment evidence from their disclosed experts. On February 1, 2001, the trial court granted summary judgment in favor of appellees, finding "[n]o evidence of temporary damages or specific incidents of injury to [appellants'] property." The trial court also granted summary judgment in favor of appellees on the personal injury claims of all but 11 of the appellants. ⁽³⁾ The trial court subsequently severed its no-evidence summary judgment into this cause, rendering it final.

Appeal by Coy Wilson

We initially address appellants' request to add Coy Wilson as an appellant in this cause. Wilson was a plaintiff in the trial court and is a party to the trial court's February 1, 2001 no-evidence summary judgment. Wilson's name was omitted from appellants' original notice of appeal, filed May 1, 2001, and from appellants' first amended notice of appeal, filed May 9, 2001.

On September 13, 2001, appellants filed a second amended notice of appeal seeking "to correct a clerical defect or omission" and add Coy Wilson as an appellant. See Tex. R. App. P. 25.1(f). In response, appellees filed a motion to strike the second amended notice of appeal on the grounds that the addition of Wilson's name was untimely.

An amended notice of appeal is subject to being struck for cause on the motion of any party affected by the amended notice. Id. Here, appellants' original notice of appeal was filed timely and included all named appellants save Coy Wilson, while appellants' second amended notice of appeal was filed well after the appellate deadline for any additional parties to file a notice of appeal from the trial court's judgment in this case. Although appellants' counsel has represented to this Court that Coy Wilson's name was "inadvertently omitted or mistakenly omitted" from the original notice of appeal, we do not consider this omission a "clerical defect" susceptible to correction by amendment. Rather, appellants' second amended notice of appeal was, in effect, Coy Wilson's first notice of appeal from the trial court's judgment. As such, it was untimely filed.

Accordingly, we have no jurisdiction over Coy Wilson's appeal, and we grant appellees' motion to dismiss his appeal.

Exclusion of Summary Judgment Evidence

In their second issue, appellants argue that the trial court erred in striking the exhibits attached to the affidavit of William Forrest, appellants' expert witness on the amount and quality of their property damages. We review the trial court's decision to exclude summary judgment evidence for abuse of discretion. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).

The trial court ordered appellants to present all testifying experts for deposition by May 18, 2000. Appellants did not designate Forrest as an expert until after the trial court's October 25, 2000 hearing on appellees' no-evidence motion for summary judgment, and they did not provide appellees with an affidavit and market study prepared by Forrest until December 11, 2000. The trial court subsequently struck Forrest's affidavit and market study because of appellants' violation of the trial court's previous order to disclose and present experts.

Appellants concede that they presented Forrest's affidavit and attendant exhibits well after the trial court had ordered appellants to designate and present their expert witnesses, and appellants do not contest the trial court's decision to strike Forrest's affidavit. Instead, without citation to any specific portions of the voluminous record or any relevant case law, appellants argue that the trial court erred in striking the exhibits attached to Forrest's affidavit because the exhibits contained "publicly available records and facts contained in those records." Appellants do not explain what portions of the volumes of exhibits attached to Forrest's affidavit were admissible as "publicly available records" or why.

Here, in the absence of any testimony explaining the nature of the exhibits and the source and relevance of the information compiled and contained therein, there was no basis for the trial court to consider such evidence. Accordingly, we hold that the trial court did not abuse its discretion in striking the exhibits attached to Forrest's affidavit.

We overrule appellants' second issue.

No-Evidence Summary Judgment

In their first issue, appellants argue that the trial court erred in rendering a no-evidence summary judgment against them because they presented sufficient summary judgment evidence to raise a material fact question on their claims for personal injuries and property damage.

To prevail on a no-evidence summary judgment motion, a movant must allege that there is no evidence of an essential element of the adverse party's claim. Tex. R. Civ. P. 166a(i); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.). Although the non-moving party is not required to marshal its proof, it must present evidence that raises a genuine fact issue on each of the challenged elements. Tex. R. Civ. P. 166a(i). A no-evidence summary judgment may not be properly granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact. Id. When reviewing a summary judgment, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Grant, 73 S.W.3d at 215.

The trial court found that all but the 11 specific appellants named in its summary judgment had failed to present competent summary judgment evidence sufficient to raise a material fact issue concerning their claims for personal injuries. After reviewing the summary judgment record presented, we agree.

Appellants presented affidavit and deposition testimony from four expert witnesses: Dr. Arch Carson; K. C. Donnelly, Ph.D.; Jack V. Matson, Ph.D.; and Colin J. Baynes, Ph.D.

Dr. Carson, a medical doctor board certified in the combined fields of preventive medicine and occupational medicine, is a practicing physician and professor at the University of Texas Medical School of Public Health. Dr. Carson reviewed summaries of appellants' medical records and, in his December 10, 2000 affidavit, testified, in part, as follows:

The illnesses diagnosed in the plaintiffs . . . correspond well to potential risks from exposure to the chemicals present over the years in the Motco pits. . . . I must conclude, based on the scientific and medical evidence available to me, that emissions from the Motco pits over the years have caused a wide variety of disease and injury in nearby inhabitants.

The record does not reflect which, if any, of the appellants were examined by Dr. Carson. Although Dr. Carson testified generally that exposure to chemicals from the site "caused a wide variety of disease and injury," he did not present any expert opinion concerning the occurrence of any particular illness in any individual appellant as having been caused by exposure to specific chemicals present at or emitted from the site.

Donnelly, a toxicologist, testified in his December 10, 2000 affidavit, in part, as follows:

The employees of Central Freight Lines located immediately to the south and east of the MOTCO site, the residents of the Sunflower Trailer Park located adjacent to the MOTCO site, and to a lesser extent, residents of Omega Bay and Bayou Vista, were exposed to a mixture of chemicals released from the MOTCO site. This mixture of chemicals included agents that are capable of irritation, as well as chemicals known to initiate . . . and promote . . . the carcinogenic process.

Donnelly did not offer any expert opinion as to whether any of the individual appellants' exposure to the chemicals from the site caused them to suffer any specific illness.

Matson, an environmental engineer, offered expert opinion testimony and calculations concerning the concentration levels and emission rates of various chemicals present in the pits at the site. However, Matson did not offer any expert opinion concerning whether any individual appellant was actually exposed to the chemicals present at the site or whether any such exposure caused them to suffer any specific illness.

Baynes, an engineer, offered expert opinion testimony concerning dispersion modeling calculations that he performed to estimate airborne concentrations of chemicals from the site over appellants' residences. Baynes testified that certain chemicals from the site were "present in the ambient air in the community" and were "deposited in the ground in the community." However, Baynes offered no expert opinion as to whether any individual appellant was actually exposed to the chemicals present at the site or whether such exposure caused them to suffer any specific illness. None of the expert opinion testimony offered by appellants raised a fact question as to whether the presumed exposure of individual appellants to chemicals present at the site caused the occurrence of any specific illness or injury. Here, the record indicates that all but 11 of the appellants presented no competent summary judgment evidence sufficient to raise a material fact issue on their claims for personal injuries resulting from their alleged exposure to chemicals emanating from the site. Therefore, the trial court properly granted appellees' no-evidence motion for summary judgment on such claims.

With regard to their claims for property damages, appellants presented no competent summary judgment evidence to the trial court supporting their claims for such damages. As noted above, the only summary judgment testimony and evidence relevant to appellants' property damage claims were properly excluded by the trial court.

Accordingly, we hold that the trial court did not err in granting its no-evidence summary judgment in favor of appellees on the personal injury and property damage claims presented by the specific appellants as noted in the trial court's February 1, 2001 judgment.

We overrule appellant's first issue.

Medical Monitoring Claims

In their third issue, appellants argue that the trial court erred in granting summary judgment against them on their claims for medical monitoring and fear of future illness because appellees "did not challenge these claims" in the no-evidence motion for summary judgment.

The record indicates that appellants' assertion that appellees "did not challenge" appellants' claims for medical monitoring is incorrect. As noted above, the enumerated grounds as set forth by appellees in their no-evidence motion for summary judgment included the argument that "[Appellants] have offered no evidence regarding any specific medical monitoring protocol that any specific [appellant] should undergo or any evidence that any such medical monitoring protocol is medically necessary for any specific [appellant]." Appellants refer us to no such evidence in the record, and we have found none.

Further, because we have held that the trial court did not err in granting summary judgment against appellants on their claims for personal injuries, we hold that the trial court did not err in granting summary judgment on these claims as well.

We overrule appellants' third issue.

Motion for Continuance

In their fourth issue, appellants contend that the trial court erred in denying their motion for continuance to gather additional summary judgment evidence.

We review the trial court's decision to deny a motion for continuance for abuse of discretion. State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984); Verkin v. Southwest Ctr. One, Ltd., 784 S.W.2d 92, 94 (Tex. App.--Houston [1st Dist.] 1989, writ denied). A trial court abuses its discretion when it acts without reference to any guiding legal rules or principles or misapplies the law to the established facts of the case. Dyson Desendant Corp. v. Sonat Exploration Co., 861 S.W.2d 942, 950 (Tex. App.--Houston [1st Dist.] 1993, no writ). As the Texas Supreme Court has noted, "[t]he mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred." Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).

Appellants argue that additional time for discovery was needed to allow them to (1) secure a database of meteorological data for the site from 1991 to 1994, (2) access and review analytical data from the Environmental Protection Agency regarding the site, (3) obtain full reports from or depose appellees' designated experts, and (4) depose representatives or employees of appellees regarding the investigation and remediation of the site.

However, appellants have offered no explanation concerning how such additional evidence would have assisted them in raising a material fact question concerning their individual claims for personal injuries. Moreover, in its February 1, 2001 no-evidence summary judgment, the trial court specifically noted that appellants had "more than adequate opportunity to conduct discovery" because: (1) the case had been "active" since December 12, 1995; (2) the trial court had set a May 18, 2000 deadline for appellants to present their expert witnesses; (3) appellees filed their no-evidence motion for summary judgment on June 20, 2000; (4) no hearing was held on the motion until October 25, 2000; and (5) after the hearing, the trial court gave appellants an additional 45 days to file any supplemental summary judgment responses.

Based on the record presented, we agree with the trial court that appellants had "more than adequate opportunity to conduct discovery." Accordingly, we hold that the trial court did not abuse its discretion in denying appellants' motion for continuance.

We overrule appellants' fourth issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Jennings.

1.

In 1999, a settlement agreement was reached between all but a handful of appellants herein and several other entities originally named as defendants in the trial court below. See Crofton v. Occidental Chem. Corp., No. 14-98-00808-CV (Tex. App.--Houston [14th Dist.] July 15, 1999, no pet.) (not designated for publication).

2.

See Crofton v. Amoco Chem. Co., No. 14-98-01412-CV (Tex. App.--Houston [14th Dist.] Dec. 9, 1999, pet. denied) (not designated for publication).

3.

Appellants whose personal injury claims survived summary judgment are: Claude Brick, George Brown, Jr., Helen Crofton, Connie Fearrington, William Hensler, Shirley Mahurin, Ruthie McWilliams, Anthony Mitchell, Gladys Tamburine, Raymond Vaura, and John Wilson. These appellants appeal solely from the trial court's rendition of summary judgment on their claims for property damage.