Harris County and Texas Commission on Environmental Quality v. International Paper Company
01-15-00354-CV
| Tex. App. | Oct 6, 2016Background
- In 1965–66 International Paper (IP) contracted with McGinnes (MIMC) to remove papermill sludge and deposit it in pits along the San Jacinto River; pits were full in 1966 and subsequently abandoned.
- A 1973 aerial photo shows river water contacting the pits; third‑party commercial dredging in the 2000s indisputably cut into pits and released dioxin.
- Dioxin was identified as hazardous by EPA in 1985 and the site was listed as a Superfund site in 2008; some testing in 2005 found high dioxin near the pits.
- Harris County and TCEQ sued IP (and MIMC) seeking daily civil penalties under later‑enacted environmental statutes (SWDA and Water Code) for alleged long‑running releases (1973/1975–2008); MIMC settled before verdict.
- At trial the jury found no liability for IP; the County appeals, asserting charge errors (refusal to submit nuisance/endangerment, ownership and "mere fact" instructions) and erroneous exclusion of expert evidence on dioxin carcinogenicity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by refusing County's SWDA question that included nuisance and public‑endangerment (instead submitting only discharge/imminent‑discharge theory) | County: pleadings and evidence supported nuisance and endangerment theories independent of discharge; jury should have been asked those bases | IP: County tried case on a discharge theory (daily releases); evidence did not support temporary ‘‘storage’’ or non‑discharge nuisance theory; charge submitted discharge theory adequately | No reversible error: refusal proper because County’s trial proof focused on discharge; nuisance/endangerment tied to same predicate and evidence did not support broader submission |
| Whether exclusion of expert testimony and government reports that dioxin is carcinogenic was erroneous | County: excluded evidence showing dioxin dangerousness and carcinogenicity was relevant to liability and risk | IP: challenged reliability (citing Havner) and Rule 403 prejudice; stipulation already established dioxin is a hazardous substance | Even if exclusion were error, it was harmless because parties stipulated dioxin is hazardous and dangerousness level did not control the discharge‑based liability question |
| Whether instruction that IP did not own the waste after 1966 was improper | County: no contract or document transferring ownership; ownership could not be abandoned for toxic waste; instruction prejudicial | IP: disposal contract and contract terms show intent to transfer ownership to MIMC; directed verdict on ownership proper | Not erroneous: court properly found ownership transferred by contract; instruction harmless because ownership was not required element of County’s theory |
| Whether instruction that "mere fact" of generating waste and contracting for disposal is not, by itself, sufficient to establish liability was an improper comment on weight of evidence | County: instruction improperly favored defendant and tilted jury | IP: instruction states correct law—generating/contracting alone not statutory violation | Instruction was legally correct but constituted an improper comment on weight of the evidence; error was harmless given (1) the charge’s broad causation definition and (2) County repeatedly framed its claim as requiring "something more" (failure to prevent/warn/maintain) which jury rejected |
Key Cases Cited
- Int’l Paper Co. v. Harris Cty., 445 S.W.3d 379 (Tex. App.—Houston [1st Dist.] 2013) (prior appellate discussion of the site and Superfund designation)
- Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) (standards for admissibility of general causation expert testimony in toxic‑exposure cases)
- Interstate Northborough P’ship v. State, 66 S.W.3d 213 (Tex. 2001) (standard for reversible evidentiary error requires showing excluded evidence probably resulted in improper judgment)
- Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851 (Tex. 2009) (harm analysis for jury charge errors)
- City of Brownsville v. Alvarado, 897 S.W.2d 750 (Tex. 1995) (omitted jury question immaterial if answer found elsewhere in verdict)
- Wal‑Mart Stores, Inc. v. Johnson, 106 S.W.3d 718 (Tex. 2003) (jury instructions must not comment on weight of evidence)
- Acord v. Gen. Motors Corp., 669 S.W.2d 111 (Tex. 1984) (instruction that suggests judge’s view can be reversible)
- Lemos v. Montez, 680 S.W.2d 798 (Tex. 1984) (use of "mere" in instruction can highlight and improperly influence jury)