Chance Lowery v. Enbridge Energy Limited Partnership
151600
| Mich. | Jul 25, 2017Background
- On July 26, 2010 an Enbridge pipeline ruptured, releasing ~840,000 gallons of crude oil; volatile organic compounds (VOCs) migrated into Talmadge Creek and the Kalamazoo River and dispersed in the surrounding area.
- Plaintiff Chance Lowery lived ~11–13 miles downstream, alleged he smelled fumes, developed coughing, vomiting and headaches, and later suffered a short gastric artery avulsion requiring surgery.
- Plaintiff sued for negligence; the trial court granted defendants’ summary disposition as to injuries beyond vomiting/headaches, then entered an order dismissing the whole case; the Court of Appeals reversed in part; the Michigan Supreme Court granted leave.
- Plaintiff’s causation proof relied primarily on (1) CDC/EPA documents about VOCs and (2) expert testimony of Dr. Jerry Nosanchuk (no personal exam), plus lay testimony about odors; treating surgeon gave no causation opinion.
- The Court analyzed whether toxic-tort plaintiffs must prove general and specific causation, what evidence is required for each, and whether expert testimony is necessary to avoid speculative post hoc reasoning.
- The Supreme Court reversed the Court of Appeals and reinstated summary dismissal, concluding plaintiff failed to present admissible evidence sufficient to create a genuine issue of material fact on causation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff presented sufficient cause-in-fact evidence to avoid summary disposition | Lowery argued circumstantial evidence, CDC/EPA documents, lay reports of odor, and Dr. Nosanchuk’s opinion created a reasonable inference that VOC exposure caused his vomiting and arterial avulsion | Enbridge argued plaintiff failed to show actual exposure levels, did not rule out other causes, and relied on post hoc reasoning and unqualified/insufficient expert opinion | Held: Insufficient. Plaintiff failed to prove general and specific causation; summary disposition for defendants reinstated |
| Whether general-and-specific-causation framework applies in toxic-tort cases | Lowery disputed need for bifurcation, relying on Genna (Court of Appeals) to permit circumstantial proof without rigorous bifurcation | Defendants argued the framework applies, at least when group-based/statistical or scientific evidence is used, to prevent speculation | Held: Framework applies when plaintiff relies on group-based/statistical/scientific evidence; plaintiff here used such evidence so framework applied |
| Whether expert testimony was required on causation | Lowery relied largely on his physician’s clinical judgment and lay evidence; claimed circumstantial proof sufficed | Enbridge argued issues (e.g., whether vomiting could cause gastric artery avulsion and whether VOC exposure levels were sufficient) were beyond common knowledge and required expert proof | Held: Expert testimony required where causation issues are beyond common knowledge; here the relevant causation questions were scientific and needed reliable expert proof |
| What proof is required for specific causation (exposure and alternative causes) | Lowery contended temporal proximity, odor reports, population symptoms, and Dr. Nosanchuk’s opinion were adequate to show exposure and to eliminate other causes | Enbridge maintained plaintiff failed to (1) estimate his own exposure level, (2) employ differential etiology to exclude plausible alternatives (medications, smoking, migraines), and (3) show vomiting caused the arterial avulsion | Held: Specific causation requires at least a rough estimate of plaintiff’s exposure and reasonable elimination of other plausible causes; plaintiff failed on both counts |
Key Cases Cited
- Skinner v. Square D Co., 445 Mich 153 (Mich. 1994) (circumstantial proof must permit reasonable inferences and exclude mere speculation)
- Genesee Merchants Bank & Trust Co. v. Payne, 381 Mich 234 (Mich. 1968) (fact-finders must not indulge in conjecture; post hoc reasoning insufficient)
- West v. General Motors Corp., 469 Mich 177 (Mich. 2003) (reliance solely on temporal relationship may be post hoc ergo propter hoc)
- Henry v. Dow Chemical Co., 473 Mich 63 (Mich. 2005) (defines ordinary toxic-tort claim in Michigan negligence framework)
- Haliw v. Sterling Heights, 464 Mich 297 (Mich. 2001) (distinguishes cause-in-fact and proximate cause; cause-in-fact requires but-for showing)
- Mulholland v. DEC Int’l Corp., 432 Mich 395 (Mich. 1989) (plaintiff must show more than evenly balanced probability that defendant’s conduct was cause in fact)