City of San Antonio v. Pollock

dence, are we hold documents therefore,

ambiguous, a fact finder meaning.

should J.M. resolve the See Coker,

Davidson, 230-31; (“When a con

650 S.W.2d at 394 contract a mo ambiguity, granting

tains summary judgment improper

tion for interpretation

because the of the instru issue.”).3 Therefore,

ment becomes a fact argument, hearing

without we reverse the appeals judgment

сourt of and remand to further con proceedings trial court for Tex.R.App. opinion.

sistent with this P.

59.1.4 ANTONIO, Petitioner,

CITY OF SAN Tracy Pollock,

Charles POLLOCK

individually as next friends Sa- Pollock, Child,

rah Jane a Minor Re-

spondents. 04-1118.

No.

Supreme Court of Texas. Oct.

Argued 1,May

Decided Denied

Rehearing June Progressive request- 3. The validity anti-slacking record reflects that 4. Because the jury Kelley argued, during ed a trial provision finding is continent on a that Pro- summary judgment, gressive that the whether policies, issue of issued two we do not ad- policies may there is two be a fact issue. dress it at this time. E. & Callaway, Callaway,

Sharon Crofts P.C., Dunn, M. of Nissa Law Offices Nissa Dunn, P.C., TX, Antonio, San Pamela Law, Baron, Austin, Attorney At Stanton Martin, City F. of Attorney, Andrew Office Jensen, Perkins, Amy Gail A. Eubanks Office, Attorney’s Martha Guadiana Litigation Sepeda, City San Antonio Bernard, Div., D. Atty., Michael Asst. Pasqual, City Atty., San Jack Office Antonio, TX, for Petitioner. Firm, Jr.,

Sylvan Lang Lang S. Law PC, Gray, Susan G. Law Office of Susan Rosenblatt, The Gray, Jennifer Beldon Ro- Firm, Sheehan, Cathy Law J. senblatt Of- Div., City Atty., Laura A. Litigation fice of Cavaretta, Plunkett Copeland, Richard & Gibson, Inc., Jr., The Gilbert Law Vara Vara, Jr., Antonio, San Office of Gilbert TX, Respondent. Monson, S. Asst. Solicitor

Kristofer TX, Gen., Austin, for Amicus Curiae. Justice HECHT delivered Court, in which Justice Chief JEFFERSON, WAINWRIGHT, Justice WILLETT JOHNSON and Justice Justice and in all but Part II-C joined, joined. BRISTER Justice pub- government maintains When substantially it lic nuisance that knows is injury private specific certain to cause I, required article property, 17 of the Texas ary section Constitution1 to diagnosed she was with acute provide adequate compensation for taking (“ALL”). lymphoblastic leukemia Cancer property.2 damaging The claim children, is rare in leukemia is the benzene from a this case is that closed common, most ALL is the most com municipal disposal waste site migrated type mon of childhood leukemia.4 A bone home, nearby to a through the soil reduc- marrow biopsy sixty also found that per causing its value and mi- ing owners’ cent of Sarah’s bone marrow cells had 56 contract leukemia. daughter nor We to 58 expected chromosomes instead of the city hold that there is no evidence the trisomies, pairs; there were a tetraso- substantially knew its actions were certain my, and translocation.5 Following an injuries to cause the asserted or that intensive regimen of chemotherapy lasting personal injuries by exposure were caused more years, than two the cancer went into Accordingly, to benzene. we reverse the remission and the chromosomal anomalies judgment appeals3 of the court of and disappeared. The statistical chance of re judgment petitioner. render for twenty percent.6 currence is

I treatment, After Sarah began the Pol- Tracy Charles and Pollock’s locks decided their daughter family had outgrown Sarah in was born June 1994. In Febru the home in they been in living had I, ("No § person’s art. prop- year. United States each Leukemia accounts Const, 1. Tex. taken, erty damaged destroyed shall be or for about one-third of all cancers in children applied public adequate or use without age under 15 and about one-fourth of all made...."). compensation being occurring age lym- cancers before 20. Acute (ALL) phoblastic ap- leukemia constitutes 310, Jennings, 2. Dallas v. proximately three-fourths of all childhood (Tex.2004) ("We ... hold that when peak leukemias. The occurrence of ALL is governmental entity physically damages pri- ages 2 slightly between and with rates public vate in order to confer a higher among Five-year whites and males. benefit, entity may be liable under Article relative survival greatly from ALL has in- I, (1) specific Section 17 if it that a knows act time, 80%, nearly creased over and is now harm; (2) causing is identifiable or knows primarily improvements due to several in specific property damage that the is substan- treatment.” tially certain to result from an authorized is, government damage action—that that the Normally, pairs 5. each of the 23 of human to, necessarily necessarily is an incident copies chromosome consists of two of a linear consequential government’s result of the ac- material, strand of DNA one from the father city may tion. ... [A] be held liable for a mother, joined together and one from the aat nuisance that rises to the level of a constitu- point along lengths their called centrom- (internal taking.” quotation tional omitted)). marks shape. ere trisomy in a four-аrmed A has three pair, strands instead of a and a tetraso- my has four. In 60% of Sarah's bone marrow (Tex.App.-San 3. 155 S.W.3d 322 Antonio 4, 6, cells there were nine pairs trisomies—at 2004). 9,8, 10, 14, 17, 18, and 23—and a tetraso- my pair 21. A translocation when occurs —at lymphoblastic Acute leukemia is also called part of missing a chromosome is and attached lymphocystic acute leukemia. The American instead to another chromosome. Sarah had a Society reported publication, Cancer in its portion pair of chromosome 1 translocated to (2000), Figures at 19 Cancer Facts pair chromosome http://www.cancer. org/down- available at (last F00.pdf & visited Nov. loads/STT/F 2008): "Leukemia Sarah also faces an risk most form increased of devel- common childhood, oping affecting approxi- secondaiy cancer in cancer as a her result of 2,600 mately age children under chemotherapy regimen. 15 in the January in San Antonio since before crude oil. At room temperature and born, younger her Sarah and sister were pressure, standard benzene is a clear liq- for sale. they put up The home smell, uid with a sweet it evaporates but up quarry to an old limestone backed quickly highly and is flammable. It disposal had used as a waste site from widely gasoline additive, used as a an in- 1967 to 1972 called the Avenue West land- solvent, dustrial a precursor fill. The landfill had bеen closed and cov- chemicals, production of other pres- and is over feet of twenty ered with several dirt cigarette ent smoke. Benzene is a years bought before the Pollocks their known carcinogen. home, always had smelled what report Attached to the the realtor ob- Tracy really strong, pun- described as “a analysis tained was an of gas samples tak- house, odor” in the gent particularly landfill, en at reflecting that small They bathrooms. smelled the same odor traces been had detected —13.3 yard days in the back for several after a ppb in sample one ppb another.8 rain. Tracy report showed the to one of Sarah’s realtor, wanting The Pollocks’ fully Lazarus, oncologists, Dr. Kenneth who be- disclose the condition of the came alarmed and warned her keep her prospective buyers, an April obtained 1998 children yard. out of the back The Pol- report prepared City for the on methane immediately locks moved out of their home gas concentrations around the landfill and $75,000. and sold it a few months later for gave it to the Pollocks. Anaerobic bacte- $77,000 (They paid had for it years seven ria digesting produce landfill waste can $94,000.) earlier and were asking In Janu- Methane, large quantities of methane. the ary the City, Pollocks sued the claim- principal component gas, of natural is a ing thаt Sarah’s ALL by was caused Tra- colorless, gas at tempera- odorless room cy’s exposure to benzene from the West ture and pressure.7 standard It has a during Avenue landfill her pregnancy. explosive lower limit upper of 5% and an years evidence revealed that several 15%, explosive limit of which it means that after City the the in closed landfill it explosive at a concentration of between began receiving complaints nearby toxic, Though 5% and 15% in air. residents by gases about odors caused es- asphyxiation can cause at a concentration caping from the landfill. In City the in production above 14% ah*. Bacterial pockets found that gas methane had methane pres- increases when leachate is landfill, formed near the in potential- some ent. Leachate seeped is water that has ly explosive highest concentrations. The percolated down into a landfill and through it, observed along concentrations were collecting various along contaminants landfill, southwest way. can side of the in the neigh- Methane serve as a carrier for other landfill borhood byproducts and volatile where the home the Pollocks later organic compounds, bought such as benzene. was located. To collect methane Benzene is an hydrocarbon aromatic found from the landfill and prevent migration its measure, moon; safety a trip As consumer a grass foul-smell- 1 blade of aon odorant, ing usually field; methanethiol or ethan- drop football Olympic- of water in an ethiol, gas is added to natural sold for fuel. swimming pool. size http://www.tceq. See state.tx.us/assets/public/remediation/ 8. The Texas Commission on Environmental (last superfund/jonesroad/ppb_chart.pdf visit- Quality gives examples these to illustrate 20, 2008). ed Nov. “ppb" parts per penny billion: 1 in 10 mil- — dollars; years; lion 1 second in 32 1 foot of a hole, area, developed but it City City drilled the filled the surrounding into the later, City around the it a again wells and the filled second system of ventilation pipe, with a by perimeter, connected time. pressure so to lower compressor 1989, City engineer In late recom- into from the landfill be drawn gas would col- major repairs mended to the methane two City purchased also the wells. The system, August in lection gas in which the landfill near residences City contractor hired rec- outside detected, just one two blocks been had system be re- ommended that the entire to use as mon- property, Pollocks’

from the City system installed a new placed. itoring facilities. in early survey quality of the water years, regularly tested Over Aquifer de- in the Edwards several wells for landfill in the ventilation wells and compounds, organic volatile tected various landfill, includ- at several homes near benzene, might have come including monitoring facilities. ing those used as consulting firm hired landfill. A from the air near the Pollocks’ home was field- that methane was concluded times be- tested for methane various through subsurface cracks migrating 1997, using tween 1981 and a hand-held the landfill. Once walls and base of explosimeter. No methane was detected landfill, also methane could outside while lived near the Pollocks’ home along trenches that through flow the soil trial, expert, At the Pollocks’ Dan there. utilities, dug lay been residential had Kraft, engineer experience land- lines, and refilled. like water and sewer management, attempted extrapolate fill carrying way, methane on the presence gas of landfill Pollocks’ migrate to the and other chemicals could Tracy in 1993 and when landfill, endanger- surrounding the houses Sarah, pregnant samples with from was con- The consultants also ing residents. monitoring taken in 1998 from a sealed in had accumulated cluded that leachate 30 feet from the deep, well 128 feet located landfill, increasing production methane yard and 70 feet from their Pollocks’ back reaching it from the ventila- blocking and methane samples home. Those contained recommended The consultants tion wells. (47.7%) 477,000 ppm im- at a concentration of system collection that the methane ppb by remove leach- and benzene at 146 volume. As- drilled to proved and wells tо meth- suming that the ratio of benzene ate from the landfill. over time while ane remained constant in improvements made several landfill was decreas- methane in the landfill contin- but subsidence City agreed ing assumption methane —an impair operation of the ued to EPA using accepted reasonable —and system and the leachate collec- collection model, concluded gas generation Kraft wells, causing portions system tion that, sample had a from the sealed well Subsidence also allowed water collapse. 1993-1994, in it would have been taken surface, pool increasing drainage at the Kraft ppb benzene. contained least the amount of through the landfill and opinion, gas in his then stated that leachate, in turn increased methane entered sample similar to the composition bought production. the Pollocks When regular “on a basis”. the Pollocks’ home home, in the large their there was a hole course, immediately gas would Of landfill to subsidence yard, apparently back due greatly open ah’.9 Even dissipate request, near the At the Pollocks’ landfill. (0.55 gravity temperature and spe- cific at standard lighter than air Methane is much diluted, asphyxi- gence have been in some circumstances.12 jury would no explosive. Kraft offered found that: ating and regarding any concentrations (cid:127) nuisance; the landfill was a in or benzene in the ambient air

methane yard. the Pollocks’ home and (cid:127) negligent; Patel, Dr. Mahendar Sarah’s other (cid:127) malice; the City acted with testified that in his treating oncologist, opinion, by Sarah’s leukemia was caused (cid:127) damages actual caused the nuisance Tracy’s exposure benzene while she was negligence and the were: experi- with Sarah. Patel was pregnant (cid:127) million for past Sarah’s and future $7 ALL diagnosing treating in and but enced physical pain anguish, and mental dis- no research himself on the had done figurement, physical impairment; and any of the disease or connection causes (cid:127) $111,000 care; past medical and ALL and benzene. He based his between (cid:127) care; million for future medical $6 at trial on Kraft’s on several studies of cancer rates work- (cid:127) property damages caused the nui- exposed occupationally ers to benzene. $29,000; sance was expo- None of the studies considered an at a sure to benzene concentration less (cid:127) million exemplary damages should $10 31,000 ppb, over 200 ppm, than 31 which is against City. be assessed sample times the concentration the 1998 The Pollocks elected to on their recover on which Kraft relied. studies also nuisance claim. The trial court reduced subjects, found chromosomal anomalies expenses the award for future medical Sarah’s, somе of which were similar to $500,000 judgment rendered otherwise exposure did not conclude that studies verdict, plus prejudgment on the interest likely to benzene was the most cause of costs, $19,999,223.78. for a total of On like Sarah’s. anomalies City, the appeal by appeals court of exemplary damage reversed the award and disposal removal is a Garbage gov- respects.13 affirmed in all other City ernmental function10 for ‍‌​​‌‌‌​​‌​‌‌‌​​​​​‌​​​​‌‌​‌​​​‌‌​​​‌​‌​​​‌​​‌‌‌‌‍which the liability, granted City’s petition immune from the Pollocks for re- We governmental immunity contend that does view.14 recovery

not bar them for nuisance and I, negligence. Article section 17 of the II requires compensation Texas Constitution A taking

for a nuisance that amounts to a their claim that property,11 and the Texas Tort Act The Pollocks rest Sa- Claims in útero expo- caused immunity governmental negli- waives for rah’s ALL § I, 11. Tex. vapor, though pressure). Benzene heavier art. 17. Const, air, dissipates rapidly than is volatile and in Agency air. for Toxic & Disease & Rem.Code Substances § Tex. Civ. 101.021. Prac. U.S. Registry, Dept, Servs., of Health & Human Air Health Consultation: Review of On-Site (Tex.App.-San Antonio 13. 155 S.W.3d 322 Monitoring During Data at Le Removal 2004). (2005). Mars Coal Gas Site 7 5, 2006). (May Sup.Ct. J. 567 Tex. 101.0215(a)(6). 10. Tex. Civ. Prac. & Rem Code § (Tex.1997) (“[A]n from the Avenue expert to benzene West S.W.2d sure their opinions experts, conclusory landfill on the witness’s statement ... will City Patel. The contends that Kraft and good neither establish faith at the sum- testimony cоnclusory expert mary judgment stage nor raise a fact a legally support therefore insufficient summary judgment.”). issue to defeat objection judgment. The raised this Furthermore, this Court has held that court, in trial in repeatedly motions conclusory such sup- statements cannot verdict after the Pollocks rested directed port objection a judgment even when no again their case and at the close of the was made to the statements at trial. evidence, by post-trial motions for Gossett, Ry. Dallas & v. Terminal Co. non veredicto and for judgment obstante (1956) 156 Tex. object new trial. But the did not (“It is well settled that the naked and of the evidence. the admission unsupported opinion or conclusion of a witness does not constitute evidence Bare, opinions baseless will not probative support force and will not a if support judgment even there is no jury finding even when admitted without their objection to admission evidence. Rhone, objection.”); 132 S.W.2d at 99 Transportation v. Coastal Co. Crown (holding that “bare conclusions” did not we Corp., Petroleum summarized Central all,” any “amount to evidence and that settled law as follows: “the fact that were admitted with- [Although expert opinion testimony of- objection out nothing to their add[ed] case, valuable provides ten evidence force”); probative see Merrell Dow also opinion, “it the basis of the witness’s Pharms., Havner, Inc. qualifiсations the witness’s or and not (Tex.1997) (“When the expert alone, that can opinions his bare settle ‘brings to court than little more his cre- law; an issue as a matter of a claim will subjective opinion,’ dentials and a this is on mere ipse not stand or fall dixit support judg- not evidence that would witness.” Burrow v. credentialed ... If ment. for some reason such testi- Arce, (Tex.1999). mony were admitted a trial without testimony Opinion conclusory that is objection, reviewing would a court be evidence, speculative is not be- relevant obliged accept it as some evidence? cause it does not tend to make the exis- no.”).15 The answer is probable tence of a material fact “more probable.” or less See Tex.R. Evid. held that a party complain We This Court has labeled such conclusory opinions legally are insufficient evidence,” “incompetent as and has often support to a even if judgment evidence the conclusory testimony held that such can- party object did not to the admission of the support judgment. a Cas. Under- testimony.16 Rhone, 50, writers v. 134 Tex. 132 (1939) When a scientific is not (holding 99 that a wit- S.W.2d conclusory were bare but the basis offered for it is ness’s statements “but conclu- unreliable, incompetent”); party objects may sions and therefore a who com see Montgomery, plain legally also v. 951 the evidence is insuffí- Wadewitz (“We Transp. disagree objection 15. Coastal Co. v. Crown Central Petrol. 16. Id. that an is (Tex.2004) (foot- Corp., preserve challenge needed to a no-evidence to omitted). conclusory expert testimony."). note Coastal, objec- support judgment.17 cient the An the plaintiff to contended that grossly the defendant was in negligent us- the a required give proponent tion is a ing prevent defective device overfilling any deficit and opportunity fair to cure trucks, gasoline tanker resulting spill in a we prevent thus trial ambush.18 As and fire.20 An expert’s opinions that the Coastal, is explained there defendant acted with conscious indiffer- challenges a distinction between ence were simple assertions with no basis no expert’s methodology scientific all, at and we legally held that were where, on the face challenges evidence insufficient the support judgment.21 record, the proba- of the evidence lacked But even when some basis is offered for an expert’s underly- tive value. When the not, face, if opinion, does basis on its court ing methodology challenged, is the the support opinion, the is still conclusory. Volkswagen Our decision in necessarily ex- beyond looks what the America, Inc. v. Ramirez22 example. is an pert reliability said to evaluate the of the There, plaintiffs car bumped against opinion. testimony is expert’s When traveling another vehicle di- same conclusory speculative challenged rection, then a grassy crossed 500-foot face, non-probative and therefore on its to the opposite highway median side of the however, beyond go there is no need to hit a car plain- third head-on.23 The of the to test its reliabili- face record expert tiffs concluded-that the wheel rear ty. We therefore conclude that when plaintiffs car came loose from the reliability requires the challenge court after, axle before the accident rather than underlying methodology, evaluate the caused, and therefore rather than was or foundational data technique, used by, expert caused accident.24 The expert, objection timely must be pointed to several facts to show that the made so that the trial court has the bearing wheel failed noted that after opportunity analysis. to conduct this accident, grass was found the hub of However, challenge when the is restrict- But detached wheel.25 he could not ed to the face of the record-—for exam- explain how the wheel detached before expert ple, specula- when accident but nevertheless remained conclusory tive or its on face—then car’s wheel well while the car crossed party challenge legal sufficiency car.26 median collided another of the evidence even that, absence the ex- assuming We concluded even (the any objection admissibility.19 pert’s to its methodology was reliable defen- Coastal, Pharms., Havner, (citations 17. Inc. Merrell Dow v. 19. omit- (Tex.1997). ted). S.W.2d 20. Id. at 230. Ellis, Corp. Maritime Overseas (Tex. 1998) ("To preserve 21. Mat complaint that scientific evidence unrelia evidence, thus, party object ble and no must (Tex.2004). S.W.3d 897 to the evidence before or evi trial when the at 23. Id. 901-902. requiring timely dence offered. is Without reliability objection to the of the scientific 24. Id. 902. evidence, offering the party given is not exist, opportunity any to cure defect that at 911. Id. subject by appeal and will be trial and to (citations omitted)). ambush.” Id. it) taking generally. to the The Pollocks smelled odors in objected not and dant had value, yard might home back which he then- and face the facts on record at gas, have been landfill subsidence in and his conclusion.27 support not relied did yard might back have been due to their is ad opinion When a scientific underground leachate from the landfill. it objection, without mitted evidence monitoring gas in a sealed well even probative evidence may be considered 128 feet and 30 feet from the Pol- deep unreliable. is if the basis for property tested methane with locks’ 47.7% offered, or is But if no basis for ppb Using benzene volume. support, the provides no the basis offered model, extrapo- EPA-approved Kraft gas conclusory statement opinion merely 1993-1994, gas lated that in the well evi considered probative and cannot be have would been more than 50% methane dence, is no regardless of whether there ppb with 160 volume. Based fall will not stand or objection. claim “[A] analysis, concluded: on this data and Kraft ipse dixit mere of a credentialed on the exposed gas the Pollocks were levels us, the case before witness.”28 In like that in the sealed well. In other City’s argue challenge that the Pollocks words, air property on the Pollock’s would testimony really a chal experts’ their have been like that in the sealed found reliability to its the data used lenge —to well. City The experts’ methodology. City any part The challenge does not that it the relia challenging is not insists his analysis except Kraft’s final conclusion. testimony, bility of Kraft’s and Patel’s City quarrel not with does Kraft’s agrees it much of conceding that even gas taken samples decision use 1998 Rather, con methodology. City their well monitoring from the closest to the that no basis in the record tends there is assumptions Pollocks’ or with his property, experts’ ultimate opinions, for the ratio benzene-to-methane was support judg cannot therefore from constant over time while methane turn each expert ment. We examine decreasing, or conclu- landfill was with his conclude that there was no evidence that therefore the benzene concentra- sion injury dam support personal an award of in the and 1994 tion well between 1993 of nuisance ages on Pollocks’ theories ppb. would have does been negligence. or dispute methane out of migrated landfill possible or B migrate surrounding methane to onto prove Kraft’s was offered to including property, property, Pollocks’ in útero exposed that Sarah Pollock or through utility trenches otherwise. to cause gas high enough landfill at levels none ALL. Landfill had been found contends that gas never analyses supports the time these facts or Kraft’s on the Pollocks’ trial, exposed time but it that the were they lived there to the conclusion Pollocks ppb in the a level of in the air had been in other homes to benzene at found their neighborhood, migrated property. it could have in their home and on As in 1993- suming from Kraft’s data that property along to the under- Pollock’s well would ground utility ground monitoring through lines Arce, (Tex. 28. Burrow v. Id. 1999).

819 methodology. ben- ppb methane and 160 data or The concedes have been 50% zene, gas composition epidemi- that of that on appropriately that Patel relied it property, migrated onto Pollocks’ studies that an unborn ological indicating dissipated in the ambient unquestionably exposure her mother to baby’s through was less than landfill air. Unless chemicals, benzene, including capablе is methane of the ambient air—and the 28% causing chromosomal anomalies and child- 14%, with a reduced below concentration study leukemia.29 most favor- hood The ppb 44.8 benzene concentration of —the view that chromo- able to Patel’s found have from, would suffocated Pollocks somal aberrations like Sarah’s result gas like that found methane. Unless to exposure from of ben- concentrations were less than of the ambient the well 10% than 10 60 ppm30 zene less than —more re- the methane air—and concentration level of that Kraft exposure times the methane, below 5% with a benzene duced study claimed. Another on which Patel ppb al- concentration of 16 would —there expo- relied found correlation between explosion have certainly been an most greater to of benzene sure concentrations the methane. There is no evidence ppm particular than 31 and a chromosom- from which infer the whatever one could aberration, effect al but noted that Pollock was Tracy to concentration “clear[ly] dose dependent”.31 was her in the ambient air of home exposed expo- Pollocks’ maximum claimed level of at the yard, highest concentration No only exposure. sure is of that l/200th possible, consequently the methane —and relationship offered study showing was only been the level of benzene—could have like Sa- between chromosomal anomalies monitoring of that fraction sealed the low- exposure rah’s and benzene at chroni- opinion well. Kraft’s that she was er claimed. This is levels Pollocks to benzene concentrations cally exposed hardly since perhaps surprising, In- has no basis in the record. ppb exposure for maximum OSHA standard deed, directly his own contradicted ppm32— is 1 place work showing present such concentrations data expo- more than six times the Pollocks’ in the well. Kraft’s only sure, according large Given this Kraft. sup- that cannot kind of naked conclusion levels in the gap exposure between port judgment. that Dr. Patel relied on and studies Kraft hypothesized concentration C to, been those stud- exposed Pollocks had purpose of Patel’s no basis for his provide ies prove Tracy expo Pollock’s exposure the Pollocks’ claimed benzene to benzene concentrations of 160 sure ALL. Sarah’s caused Kraft ppb assuming was correct—-could — expo- Pollocks’ ALL Patel asserted that the cause Sarah’s in útero. Kraft, benzene, challenge reliability of Patel’s sure to found does Andrews, A. & Study, J. Of 29. David Savitz Kurds W. Epide Re 121 Am. Based Case-Control miology (1985). Epidemiologic on view Evidence Benzene Cancers, Lymphatic Hematopoietic Zhang, supra & at 30. Smith note (1997); Med. Am. J. Of Indus. Martyn Zhang, Luoping T. Smith & Biomark- al., Zhang et Luoping Interphase Cytogenet Model, 106 ers Leukemia Risk: as a Benzene Benzene, Exposed Workers ics of Envtl Persp. (1998); Hen Envtl. Health (1996). Persp. Health al., Van rietta Steensel-Moll et Leu Childhood 1910.1028(c)(1) (2008). § C.F.R. Occupation: Register- kemia and Parental A exposure than the really higher nothing levels in a showed correlation to meet he reports probative on which relied it standard of because evidence set this Court in Merrell Dow period. Pharmaceuti longer occurred over a While it is cals, Inc. v. exposure Havner.35 court conclud possible long-term that a to a low ed opinions the unsupported worse might level of toxin be than a short- experts in that case were no toxin evidence.36 exposure higher term to the at much reasons, For the levels, same we reach likely, abstract, the same it just is opinions conclusion here. Patel’s were that the true.33 opposite Nothing any is conclusory no provided evidence that of the materials on which Patel relied sup- by Tracy’s Sarah’s ALL was caused expo ported his assertion. sure to benzene from the landfill. While some of Sarah’s chromosomal found with exposure anomalies wei*e also Ill ‍‌​​‌‌‌​​‌​‌‌‌​​​​​‌​​​​‌‌​‌​​​‌‌​​​‌​‌​​​‌​​‌‌‌‌‍benzene, Patel testified others were un- property Pollocks claim damages on exposure. related to benzene There is the ground that the West Avenue landfill therefore no for basis Patel’s was a taking nuisance that amounted to a pattern that Sarah’s of chromosomal of property adequate compensa- without ALL anomalies her indicate benzene- I, tion in violation of article section of neither epidemio- induced. Because the Texas Constitution. logical studies nor the similarities in Sa- We held that govern have support rah’s chromosomal anomalies Pa- ment’s negligence eventually “mere tel’s ALL opinion that Sarah’s was caused contributes to the of property destruction útero, by exposure to benzene in his testi- rather, is not a taking”;37 government mony conclusory and cannot support intentionally. must act requirement This liability. is provision rooted in the constitutional tried,

A few months after this case was compensable taking “only occurs if the court of Exxon appeals Corp. v. property damaged appropriated is or all of reviewed the studies applied or public use.”38 An accidental Makofski34 parties produce attempting to link could destruction of does not benefit ALL exposure public. to benzene public-use concluded “is limitation See, 176, e.g., (Tex.App.-Houston 116 S.W.3d Cetrulo, 33. G. 34. Lawrence Toxic Torts ("Proof Litigation 2003, denied). of ex (2008) pet. [14th Dist.] § Guide 5.14 itself, not, posure prove sufficient to plaintiff A medical causation. must also 706, (Tex. 1997). 35. 953 S.W.2d 725-726 prove exposed that he was to a sufficient amount, dose, particular toxin to of a cause Makofski, 116 S.W.3d at 187-188. particular Virtually any agent, disease. water, tap even produce a toxic effect at Likes, 489, City Tyler v. 962 S.W.2d 504-505 sufficiently high exposure. level of Con (T 997); City also see Dallas v. ex.1 versely, may argued that even the deadli (Tex.2004). Jennings, 142 S.W.3d poison sufficiently est at a is harmless low exposure."); level of Center, Federal Judicial Reg'l Gragg, Tarrant Water Dist. v. Scientific Reference Manual on Evidence 403 (Tex.2004) (internal (2000) (stating 554-555 tenet that a central of toxicolo " omitted) quotation gy (quoting poison; marks v. is that 'the makes the Steele dose this Houston, implies agents that all chemical are intrinsi cally Lubbock, hazardous' —whether cause harm (Tex.l980)(citing Davis water, only question of dose. Even if (1959))). con Tex. large sumed in quantities, can be toxic.” (footnote omitted)). distinguishes negligence the factor which The Pollocks contend that the fact action from one under the constitution for City subsidence, knew that ponding, destruction.”39 gas generation migration are in herent in the operation of a landfill is I, For of purposes article sec sufficient City to show that the knew its entity a governmental tion acts inten operation of the landfill was substantially if it “that tionally specific knows either certain to damage property. their We re causing act identifiable harm” or [was] jected essеntially argument the same specific property damage “that the [was] City v. Jennings, Dallas where home substantially certain to result from” the attempted owners city’s show the intent governmental entity act.'40 A is substan damage their property by sewage flood tially damage certain that its actions will ing from city the fact that the knew that property only when the damage is “neces unclogging a sewer can sometimes cause it to, sarily necessarily incident a con up.44 to back governmental entity’s sequential [entity’s] result of the action.”41 awareness of possibility the mere of dam government’s knowledge must be de age is no evidence of intent. acted, damage termined as of the time it not with the Pollocks claim—the migration gas hindsight.42 benefit of property onto their neither necessarily —is The Pollocks that contend incident to or a consequential result of the City management knew its of the West operation aof landfill. It can prevente Avenue landfill43 damaging their City’s d.45 The negligent failure to pre or knew at that property, damage least gas migration vent landfill in this case is property their was a necessary result. no evidence that it damage intended to But the evidence all contrary. to the Pollocks’ property. City Whenever the gas was aware that Since there was no evidence of a com- landfill, migrating from the it took pensable taking, the City is immune stеps prevent damage. It monitored leachate, the Pollocks’ generation, property damage monitored and in claims. systems. stalled methane collection We

assume, as the Pollocks assert and the found, jury that those efforts were inade We therefore ap- reverse the court of quate that City was negligent. peals’ judgment judgment and render But there is no City evidence that nothing Pollocks take on their claims. knew that the Pollocks’ was being damaged or that damage was a Justice MEDINA filed a necessary dissenting consequence. opinion, in which joined. Justice O’NEILL Steele, Gragg, (quoting 39. 151 S.W.3d at 555 public the construction of a work or the sub 792). 603 S.W.2d at sequent one). operation maintenance and Jennings, 40. 142 S.W.3d at 314. Jennings, 44. 142 S.W.3d at (citations omitted). Id. Ball, Jeffrey 45. See Pollution Credits Lets ('TEhere Id. is no evidence that the J., Dumps 20, 2008, Dip, Double Oct. Wall St knew, line, unclogged when it the sewer regula- at Al. The EPA has issued detailed (em- any flooding damage would occur.” regarding operation tions of a methane added)). phasis system. §§ collection 40 C.F.R. 60.750-.759 (2008). Likes, City Tyler 43. See (Tex. 1997) (noting governmen that a entity may taking tal through commit a either justice MEDINA, however, joined cantly, Justice the Court concludes that O’NEILL, dissenting. object did not have to or point out these in the trial analytical gaps court claim Sarah’s leu- The Pollocks preserve I respectfully disagree. error. her expo- in útero kemia was caused benzene, migrated which had from sure to rule, general objection aAs is re- landfill into their home. the Avenue West quired preserve regarding error the testimony the of two rests on The claim evidence, expert admission of and testimo- Patel, Dr. witnesses: Mahendra expert Tex.R.App. ny is no exception. See P. and Sarah Pollock’s pediatric oncologist 33.1(a); 103(a)(1); Osterberg Tex.R. Evid. Kraft, a pe- and Daniel treating physician, Peca, (Tex.2000). 31, v. 55 12 S.W.3d experi- with extensive engineer troleum objection, simply Without an a trial court construction, post- and design, in the ence cannot be to fulfill its expected role as of landfills. Kraft maintenance closure gatekeeper. appellate Nor can an court the gave opinion his about amount of ben- role, particularly assume after this the wit- home, got Pollock and how it zene in the testified, dismissed, nesses have been and Dr. Patel testified that Sarah’s there. Nevertheless, closed. record to benzene exposure during preg- mother’s here the role of gatekeeper Court assumes nancy damage, caused chromosomal -postfacto, City to allowing complain ex lymphoblastic leukemia Sarah’s acute analytical gaps about for the first time on (ALL). opinion on a Dr. Patel’s was based object appeal. City Because the did not literature on the review of the sсientific expert reliability of either witness diagnosis, his treat- subject, his differential the trial about the complain court or ana- Sarah, and Sarah’s chromosomal ment of lytical gaps appeal, it now details this I fin- injury unique that he described complaint would has hold that been exposure damage of benzene gerprint waived. in útero. City concedes that methane and I from its into the migrated landfill however, agree, analytical I gaps community. surrounding also reliability expert’s can undermine the of an the underlying not contest science does opinion. Supreme said as Court much Dr. Patel or dangers relied on Joiner, in General Electric Co. v. 522 U.S. benzene, carcinogen. a known exposure to 136, 512, (1997), 118 139 L.Ed.2d 508 S.Ct. Instead, analytical contends observing have to that courts do not focus testimony of both ren- experts gaps entirely reliability underlying on the respective opinions conclusory. der their Daubert,1 technique as in methodology eventually agrees delving after The Court reliability by are analyzing free to test underlying science. The into the Court whether fits the expert’s opinion facts relationship between meth- analyzes of the case: benzene, respective physical ane and [Cjonclusions methodology are not gasses, of both benzene’s rela- properties entirely one distinct from another. types to certain leukemia tionship commonly experts extrapolate Trained damage, respective and the chromosomal nothing existing data. But in ei~ experts. signifi- of both Most Robinson, Pharms., Inc., (Tex. Co. v. 923 S.W.2d 549 509 & Daubert v. Merrell Dow 579, 590, 1995). S.Ct. L.Ed.2d U.S. (1993); also E.I. du de Nemours see Pont Ellis, Corp. or the Federal Rules Overseas v. ther Daubert (Tex.1998) a district court to ad- requires (objection Evidence made after evidence ... connected to late); mit jury verdict was too see also Gen. existing only by ipse data dixit Iracheta, Corp. Motors A conclude that expert. court (Tex.2005) (objection must be made simply great analytical there is too deficiency when apparent); becomes Kerr- gap between the data and the Helton, Corp. v. McGee proffered. (Tex.2004) (motion to strike made im- 512; mediately after cross-examination Id. at 118 S.Ct. see also Richard held Hoffman, timely). objection Falk & O. But an is not Beyond invariably O. Robert Ex Avoiding required; Daubert and Robinson: and there is a exception limited to ploiting “Analytical Gaps" Expert Tes general the rule. (Winter timony, 83 The Advocate expert’s testimony the specula- When is 2005). Supreme recog The also has Court face, conclusory party tive or on its does gatek nized that the trial court’s role as object not have to admissibility to its eeper, rulings like other on the admission complain expert’s opinion that the naked is evidence, discretionary is a decision sub no evidence. Transp. See Coastal v.Co.

ject only to review for an abuse of that Corp., Crown Petroleum Cent. Joiner, 142-43, 118 discretion. 522 U.S. at (“bare (Tex.2004) conclusions— S.Ct. 512. unobjected even if to—cannot constitute Joiner, This soon followed con- Court evidence”). probative It im- obviously is cluding in Gammill Jack Williams portant then distinguish unreliable ex- Chevrolet, Inc., an expert’s that pert testimony conclusory expert from tes- great can be if there is too unreliable timony the requires because former analytical gap underlying between data timely objection, while the latter does not. expert’s opinion.2 separates conclusory What then from (Tex.1998). cautioned, however, We merely unreliable? job that the trial court’s was not to deter- expert’s mine whether an conclusions were apparently distinction is the differ- correct, only analysis whether the used something nothing. ence between As to reach them was reliable. Id. at 728. recently explained the Court in Arlcoma further noted that the trial We court’s Exploration Basin v. FMF Assocs. Co. gatekeeper regard decisions in this were to (Tex. 1990-A, Ltd., reviewed the abuse of under discretion 2008): testimony conclusory An expert’s standard. Id. at 727. merely gave unexplained if the expert court, jury my conclusion or asked the to “take however, A trial cannot abuse its word for it” because of his status as an discretion if it is never asked to exercise it. Thus, preserve expert. Arkoma concluded that an ex- complaint no-evidence unreliable, conclusory not expert testimony party pert’s opinions were even object though expert’s must in the trial court. See Mar. foundational data was methodology suggested analytical properly explains 2. One observer has how "(1) gaps underlying plaintiff's arriving types: applied are of two to the facts in Keller, gap, Kimberly Bridg- data-facts which focuses on material var- the conclusion.” S. Analytical underlying expert ing Gap: iances between the data Gammill Alterna- plaintiff's Overcoming and the actual Robinson & Havner Chal- facts tive Mary's case; (2) Testimony, methodology-conclusion lenges Expert L.J. 33 St. gap, which expert (2002). focuses on whether the record, entirely plied, and it was not probably because naked conclusions expert ordinarily how the had reached his con- objections. clear draw immediate clusions. wrote: We Coastal, exception applied expert’s] testimony could have [The case, however. Coastal failed to clearer; “up

been a lot his references to object to the following from a “right here” and there” on slides and trucking-safety expert regarding gross at trial posters used often make it hard negligence: talking to tell what he is about. But we Q: objectively When viewed say cannot on this rеcord that opin- his point Coastal’s of view at the time of the speculative. ions were unreliable or incident, September in your opinion, '93 they conclusory were as a matter of Nor did stop using probes Coastal’s failure to law; expert] simply did not state a [the that could have prob- [sensor failure] any explanation, conclusion without lems, did that a high degree involve jurors my ask to “take word for it.” It risk, considering probability is true that without the foundational magnitude of potential harm to oth- record, appellate data in the we cannot ers? my confirm that “cash off runs ... di- $1.62, $1.41, by yielded vided mcf” the Yes, did, very high. A: $1.43, prices he calculated as $1.59 Q: In your opinion, did have an Coastal low for range damages. experts the But subjective actual awareness of the risk not required are to introduce such foun- failing stop using involved in to probes dational data at trial unless the opposing that can have problems? [sensor failure] or party the court insists. Yes, again A: again. (footnotes omitted). at Id. Arkoma Q: your And in opinion, did Coastal explained further when a party should ob- proceed nevertheless in- conscious ject preserve to error: rights, safety, difference to the or wel- requires objection Texas law an to ex- fare of others? pert during before or trial if A: the only That’s conclusion I can objection “requires the the court to eval- drаw. underlying methodology, uate the tech- data,” nique, or foundational but no ob- Id. at 231. Distinguishing a no-evidence

jection required is if complaint the “is reliability complaint from a no-evidence record,” restricted to the face of the as conclusory complaint, we said that an ex- when the complaint opinion is that an pert’s “bare if unobject- conclusions—even face, speculative conclusory was or on its probative ed to” are not evidence. Id. at or contrary assumed facts to those on thus a We drew “distinction between the face of the record. no evidence to challenges reliability the (footnote omitted) Id. at 388 (citing expert testimony in we Coast- evaluate the Co., 233). Thus, Transp. al underlying methodology, technique S.W.3d at or objection not required preserve an is to an data expert foundational used the appellate complaint expert’s challenges conclusory about an no evidence or conclusions, but if expert pur- speculative testimony non-probative naked that is Am., ports rely on more something Volkswagen than his on its face.” Inc. v. Ramirez, (Tex.2004) reputation, objection credentials or an is Co., necessary. exception rarely (citing This at ap- Transp. Coastal 233).3 reliability sample did not involve a taken well Coastal from the in billion) being, ppb (parts per benzene. objection in the tri- challenge requiring nothing al court because there argues The City that Kraft’s ‍‌​​‌‌‌​​‌​‌‌‌​​​​​‌​​​​‌‌​‌​​​‌‌​​​‌​‌​​​‌​​‌‌‌‌‍evaluate; expert trial did not court conclusory because he does explain methodology, purport any use tech- how the benzene concentration level nique, or foundational data but rather Pollock home can be the same as that in a sealed subjective opinion testing Although well. merely delivered his Kraft’s opinions predicated were on various re- negligence. concerning gross Coastal’s ports gas EPA landfill emissions That case. present is not model, maintains that his testimo- Kraft, rendering opinion, his ny “analytical contains fatal gap” be- engineer, generally accepted landfill used cause atmospheric he failed account for (“EPA”) Agency Environmental Protection analytical gap, conditions. This model,4 testimony regarding landfill air argues, renders Kraft’s conclusory. Pollock odors home indicative however, The complaint, goes to Kraft’s such presence organic hydrocarbons, technique methodology evaluating the benzene, the City’s monitoring rec- data because he comparing benzene ords, inspection, site and two physical only concentrations not at different loca- geologic decades of historical records and tions points but also different in time. maps. readings no had Because model, Relying on his air Kraft testified home, actually been taken at Pollock produced the benzene levels on, Kraft other a 1998 among things, relied landfill in peaked the late seventies and reading benzene from a monitoring sealed Thus, began to diminish thereafter. ben- well known GMP-9A. This well was in zene in higher levels would have been the 100 feet from the landfill Pollock home during gestation Sarah’s than in when the underground. Although reading monitoring and 128 the benzene from the feet well the was taken. Kraft testified to fol- reading at GMP-9A was taken more than lowing objection: without years alleged four after Sarah’s in útero exposure in that Kraft, Kraft concluded the Q. you any Mr. have done calcu- benzene in the Pollock levels home would projections lations and the about equal greater have that that migration gas been than of of the—from the constructionist, suggests plaintiff’s 3. The that concerned the accident Court re Ramirez only conclusory challenge, case but the also testimony analyzed by that the Court reliability complaint. signifi- involved a One reliability.” under Id. "the standards at cant issue the case was when the left rear 904. The Court concluded that Ramirez Volkswagen wheel the its on came off axle. indeed Walker's unreliable be- Ramirez, Cox, at 902. S.W.3d Edward particular analytical gap cause of a in his trial, plaintiff's metallurgical expert at tes- Thus, analysis. Id. at 906. the trial court bearing tified that defective caused the admitting abused its discretion in the testimo- separate wheel at from axle. Id. ny sustaining Volkswagen's erred not as an Cox "was offered accident recon- objection. help ... structionist establish when accident,” defect caused the and the Court gener- 4. Kraft estimated the methane-benzene rejected opinions his "limited on the causa- by using ation ratio the USEPA Landfill Gas conclusory. tion issue” as Id. at 910-11. (LandGEM) Model 2.01. Generation version says When Court that here there was no developed by The model was the EPA's Con- objection, referring testimony. it is to Cox's Technology estimating trol landfill Volkswagen Center See 284 at & n. Walker, objected gas Ronald emissions. That’s correct. the Pollock A. Avenue Landfill to West 1992 to period during home Q. Why you saying might are now 1994? than billion? higher parts per A. Yes. A. For several reasons. are

Q. And what those reasons? mod- gas one be the A. Number would you did of records Q. Okay. What kind eling that I with the United did reaching your opinions? inat look States Environmental Protection from methane data A. Field sheets know, model, you Agency the— done surveys that were model, gas landfill emissions land- surrounding neighborhood ben- that the amount of indicates fill, correspondence interoffice de- produced by zene the landfill Antonio, letters to City of San over creased time. from the City of San Antonio reasons, Q. other Mr. Kraft? What National Resоurce [Texas TNRCC analytical col- A. The results that were and the Committee] Conservation January lected GMP-9 in Health, rec- Department Texas con- they oxygen also measured that was col- geologic ords on data gas centration. Landfill —landfill reports by City employees, lected samples per- have over gas City’s produced by were oxygen that there has cent indicate consultants. atmospher- some been dilution therefore, the con-

ic air occurring, centrations that were measured Kraft, Mr. opinion, have Q. you Do sample likely slight- to be were were as to whether the Pollocks the actu- ly they lower than were in chronically con- exposed itself, it was al landfill because centrations home? in their it. sampling while diluted were Yes, on that. opinion A. I do an have City’s argument, In accordance with the Q. what opinion? And is that suggests Kraft testified the Court that they were my opinion A. It’s that in the home was the that the air Pollock’s gas. landfill chronically exposed well, in the as that sealed but same gas include ben- Q. And did landfill an inaccu- above demonstrates this zene? testimony. representation rate of his Yes, it A. did. of testified that concentration Kraft than likely higher in the landfill range of Q. your opinion of What samples taken from the well because they were ex- benzene to which diluted samples already these had been it in posed? please express And Thus, atmospheric air. the Court value. terms of numerical analytical gap the existence of an assumes consistently A. I believe that were existed, have might have also that exposed to concentrations benzene ap- had the made explained been per bil- parts in the vicinity of objection. propriate lion, or even higher. Patel, Kraft, Next, Q. oncologist, Dr. your report, pediatric I believe Mr. billion; that Sarah’s in útero ex- you said 40 his parts per gave to 160 trimes- during to benzene the first posure is that correct? (1) dosage. Dr. Patel testi- on: his often as an annual ALL. He relied caused her ter (2) literature, exposure chronic matched that the Pollocks’ fied review an- greater in Sarah’s chro- would convert to a much here of abnormalities pattern abnormali- discussed in the dosage and the chromosomal nual than those mosomes Moreover, caused carcinogenesis Dr. Patel testified that in lab-induced studies. ties (3) his academic cumulative in útero by exposure, benzene Sarah’s chronic and (4) genetics, in human background developing as a fetus exposure benzene that Sarah’s mother expo- Kraft’s than the annual significant was more of ppb to at least 160 chronically exposed to an adult as described stud- sure was in útero. Dr. while Sarah objection benzene Again, there was no ies. Patel, morеover, plausible other excluded these conclusions. ALL, including family for Sarah’s

factors studies underlying epidemiological from other exposure and benzene history Dr. Patel reflect a correla referenced sources. exposure between to benzene and tion Dr. acknowledges that types While for certain leu increased risk part, on his opinion, his Patel based in evi example, kemia. For the studies studies, it epidemiological review of certain occupational that benzene reflected dence Dr. that Patel’s maintains to a in the mother was related exposure studies conclusory because none these leukemia, especially acute of childhood risk opinion. In actually support his scientific (“ANLL”); that leukemia nonlymphocytic City argues that these stud- particular, chromo metabolites could cause expo- substantially higher ies all involve damage lymphocytes; in human somal moreover, and, fail to find sure levels placenta and harm benzene could cross ex- between benzene causative association fetus; exposure to benzene could type of leu- particular and Sarah’s posure to that damage similar cause chromosomal these concerns were kemia. None of Sarah; expo and that benzene suffered attention, and brought to the trial court’s portion at least a responsible for sure is objection. Dr. Patel testified without of which ALL is the childhood cancers Dr. Patel further testified most common. Moreover, that the explained Dr. Patel linking evidence epidemiological about were actu- levels in these studies exposure leukemia, form of acute benzene to another daily, expo- ally than Sarah’s chronic less (“AML”), quoted myeloid leukemia explained Dr. Patel during gestation. sure linking ben “that evidence article on two the effect of a toxin is based than persuasive AML is no less zene to exposure exposure, peak dose types testimony came as a this ALL.” None of exposure. Taking the duration of that Dr. Patel had made account, to the surprise their report the studies both into time, expert report.5 in his points these same exposure over results as cumulative Sarah, specifically for chromo- report, noted for concluding paragraphs of that In 8,7, noted It should be somes: 9 and Dr. Patel stated: leu- childhood that the association with looks at Sarah's chromosomal If one re- exposure has been benzene kemia and above, specific mentioned markers as States, China, Holland, United ported aberrations noted and those chromosomal Japan. Britain and benzene-exposed are in workers detected exposure of Particularly parental solvents of remarkably aneuploidy, similar. There is benzene, increased containing there is an > specifically in i.e.: 46 chromosomes and ratio The odds childhood leukemia. risk of exposed there were triso- benzene workers high exposure was as parental group chromosomes as mies in the G 828 254; opinions and of the testimony engi- Corp., 133 S.W.3d at Pipeline Exxon (Tex. Zwahr, and doctor here removed 623,

neer are far from Co. v. 88 S.W.3d 629 2002). rejected the “bare conclusions” we as con- complaint When the is that clusory Transp. in Coastal. See Coastal analysis of expert’s otherwise reliable sci (witnesses Co., qualifica- 136 at 232 S.W.3d is underly entific data flawed or that the opinion enough). and bare Nei- tions questionable, ing party data itself must expert jury asked the to trust their ther object preserve complaint. to its Gua See their opinion merely exper- on the basis of dalupe-Blanco Kraft, River Auth. v. They analyze instead to purported tise. (Tex.2002) 805, (“a 5.W.3d must party (and underlying data appar- that object the testimony before trial or also) ently relevant considered offered”); when it is see also Gen. Motors rendering opinions. them respective before Corp., (objection 161 S.W.3d must deficiency appar- be made when becomes City’s present about an complaints ent). expert the failure object And than an alytical gaps nothing more un- testimony cannot be cured cross- through reliability Analytical preserved challenge. testimony. or counter-expert examination complaints opin are not gaps about naked Sanchez, Corp. v. Gen. Motors ions, record, lacking any basis in the (Tex.1999). opin- 590-91 The Court’s are specific rather assertions errors today unfortunately ion blurs distinc- analysis in an expert’s or omissions render expert pur- See, testimony tion between or her e.g., his unreliable. (unreliable ports to have basis science Ledesma, Ford v. Motor Co. S.W.3d (Tex.2007); Trucks, expert testimony) expert Inc. v. Mack Tamez, (Tex.2006); any apparent apart support lacks Mendez, expert’s Tire & Cooper superior Rubber Co. v. from the claim to knowl- (Tex.2006); edge (conclusory expert testimony).6 Kerr-McGee sug- hydrocarbons as 5.81. it As mentioned above was acids and in the environment gested development benzene and its metabolites of ALL Pol- in Sarah cells, genetic damage germ cause lock. passed offspring then are on to the and/or genetic damage developing mixing cause direct indiscriminate unreli The Court’s following exposure. conclusory expert opinions fetus maternal able and is most suggests apparent Corp. It also that there is increased in its reliance on v. Exxon exposure Makofski, likelihood of ALL (Tex.App.-Houston when such 116 S.W.3d 176 denied), during orgаnogenesis pet. occurs the critical Dist.] [14th court phase germ appeals’ if not as mutation. In-vitro written a current member Court, Pharms., experimentation using human leukemia of this and Metrell Inc. Dow Havner, 1997). (Tex. lymphocytes cells HL60 and human follow- 953 S.W.2d 706 benzenetriol, cases, ing exposure timely objections a direct deriv- both were made benzene, reliability respective ative of DNA experts. shows oxidated dam- JUS BRISTER, age. damage writing Similar DNA has also been TICE for the Fourteenth sys- Appeals, shown to correlate in model animal Court observed that it was tems. It responsibility object has been mentioned that benzene defendant's "to at trial leukemia; (which myeloid is associated repeatedly) with acute did plaintiffs so the however, clearly any the overall opportunity data does not would de have to cure indicate regarding reliability present association limited AMLbut to also fects us with ALL. fully developed Makofski, to Thus, record.” (citations omitted). reviewing after Having the and Sa- literature S.W.3d at case, se, per my rah’s opin- preserved complaint, it is in medical its appeals the court of subsequently ion that there is medical and expert's reasonable concluded that the testi certainty probability mony scientific of link- was unreliable and thus no evidence benzene, ing exposure organic maternal epidemiological study to estab ”[n]o because today only wrong, decision is not here. 284 at 812 (citing City Court’s S.W.3d may encourage games- unfair and is also Jennings, Dallas Why pre- in the future. have a manship (Tex.2004)). Nor do I any find for basis hearing or make reliabili- trial Robinson personal the Pollocks’ injury claim under ty objection during trial and run risk provision. this constitutional proffering party may fix the prob- that the I, Article section “Taking, entitled lem, expert’s can be when damaging destroying property pub- or for on picked apart analytical gaps appeal? use,” lic not bodily does mention or injury Robinson, 552; see See S.W.2d at also I, § death. art. refers It Ellis, Const, at 411. 971 S.W.2d Tex. only property, granting to the government Reliability objections important; are to legal right property pub- take for a First, purposes. they several they serve lic purpose with the obli- corresponding give proffering party an to opportunity Thus, “State, gation pay to for it. defects, thus, any trial avoiding cure of its sovereign power, exercise has the ambush; second, by give the appeal they take, unquestioned right damage, to or test opportunity trial court use,” destroy private property for public expert’s question testimony and there- Hale, State v. 136 Tex. intelligently perform gatek- its role (1941), but the and, third, constitution does not eeper; they in a more result authorize the state to kill or developed bodily cause fully appellate record for review injury doing abuse of so. under the discretion standard. when Government actions Ellis, 971 S.W.2d at 412. Because the death personal injury cause are City’s complaints go reliability, here validated, neither nor compensated, as the objection required. Because the lawful of the exercise State’s do- eminent otherwise, holds I Court dissent. authority. main Such actions sub-

ject types lawsuits, other are II not for liability takings the basis under the however, Court, I with the agree clause of our constitution. 1 GeoRGe D. there no evidence the Pol- support BRADEN, AL„ ET THE THE CONSTITUTION OF I, takings claim locks’ under article section CompaR- An State of Texas: ANNOTATED and damage 17 of the Texas Constitution for (1977). Analysis ative property. theory their Pollock’s accordingly agree I with the Court that City effectively was that the this case took cannot Pollocks recover under Article (and daugh- their caused their I, Section 17 because there no evidence illness) by failing migra- ter’s to abate the and, taking, apart that the intended a City tion of from after the landfill that, per- from no basis for the award ‍‌​​‌‌‌​​‌​‌‌‌​​​​​‌​​​​‌‌​‌​​​‌‌​​​‌​‌​​​‌​​‌‌‌‌‍of problem. of the I learning agree with the injury damages City sonal even had Court there is no evidence requisite City’s takings damage intent for a claim property. intended to the Pollocks’ statistically significant doubling significant part lished into the statistical of Havner exposure of ALL the risk to benzene” as object did beсause we to the scientific required Havner. See id. at 188. This reliability, objection we didn’t make a Daubert then Court concludes that the same '‘[i]or Thus, and we not tried to have do that.” reasons, we reach the same here.” conclusion authority conclusion is based on an Court’s at 820. But this case is not expressly ap has conceded does not or Havner as the conceded dur Makofski ply- argument, ing stating: go oral ”We cannot 830 charge error fatal to the Pollocks’ claim

III under the I disagree. of waiver Act. do not have Although the Pollocks claim, they have also asserted takings body liability “Premises is the of law claim, the issue of raising negligence that the duties owed an owner [defines] here applies Tort Claims Act whether occupier of who persons or land to come immuni- City’s governmental to waive property protect onto his or her real ty. See Rem.Code Tex. Civ. Prac. & injury dangei-ous them from on account of pro- The Tort Claims Act §§ 101.001-.109. property.” or on the conditions activities im- governmental waiver of a limited vides Litiga- III, V. Texas William Dorsaneo injury or death is personal “when munity (2009). § It 310.01[1] tion Guide or tangible personal ‘use of by a caused separate species is not a of tort but rather unit if the governmental real of the negligence a branch law of that would, liable to private person, were it a be ” duty plain- categorizes in l'elation to to Texas law.’ according the clаimant for purpose entering property, tiffs Bishop, & M Univ. v. Texas A is, licensee, invitee, trespass- that as an or (Tex.2005) (quoting Tex. Prac. Civ. Urena, Invs., 101.021(2)). v. § the er. Western Inc. Neither & Rem.Code (Tex.2005). A appeals premises nor has consid- court of this Court S.W.3d issue, this albeit for different reasons. liability requires jury ered case that appeals, having concluded The court instructed on the elements of the landown- the Texas Constitution authorized that duty er’s and thus between the distinction claims, of the application found Pollocks’ general negligence premises liability Act unnecessary. 155 S.W.3d Tort Claims important Clayton remains in Texas. See Court, This on the other 332-33. Williams, Jr., Olivo, W. Inc. hand, any under the Act rendei'S waiver (Tex.1997) (rule stated context there is no evi- concluding irrelevant liability general negli- contractor’s City’s negligence caused dence subcontractor); gence of also Nixon v. see disagree leukemia. I Because Sarah’s Co., Mgmt. Prop. Mr. conclusions, I turn to the both now (Tex.1985) J., (Kilgarlin, concurring) (sug- arguments on this issue. “away gesting modern trend is City argues The the Tort Claims on his basing liability landowner’s visi- apply not case because the Act does this artificially purpose tor’s determined en- Pollocks failed to establish claim within try”). City’s The immunity.

its nai-rowwaiver of By premises liability definition then a charge argument focuses on the court’s injury case involves an on the defendant’s (1) “negli- jury that asked the whether the But not premisеs. Sarah Pollock was in- any, if of the of San Antonio gence, City’s jured property; on the she became inju- caused or proximately the occurrence home, allegedly ill at her own because of (2) City’s question” whether the ry City’s negligent management use and Landfill “operation of West Avenue neighboring duty landfill. The owed term was constituted a nuisance” as that City under by the these circumstances is charge. jury answered defined dependent not on status as an Sarah’s questions. City objected both yes to invitee, licensee, tx*espasser, thus charge, arguing to the that the case should claim liabili- premises the Pollocks’ is not a premises liability as a case be submitted ty duty instead rests on case. hex-e negligence than as a case general rather City’s obligation this to contaminate and nuisance. The submits that property injury person with its waste or death of a adjoining private the “maxi- $250,000.” at the Avenue disposal operations West mum amount of Tex. Civ. Prac. Landfill. 101.023(a). § I therefore & Rem.Code modify appeals’ would the court of judg- jury City’s operation found that the $250,000 ment to cap reflect the imposed and a negligent of the landfill was both Act, and, modified, by the Tort Claims evi- Although nuisance. there was not affirm the judgment awarding damages for dence that the nuisance rose the level of personal Sarah Pollock’s injury. there was evidence that taking, a City’s negligence wаs cause of the nui- by

sance created the landfill. We have Justice participate GREEN did not personal injury damages may be said that the decision.

recovered under these circumstances. See Co., 97, Sewerage

Vann v. Bowie 127 Tex. (1936) (nuisance 561,

90 S.W.2d creat- by private sewage company sickening

ed owner); property Fort

neighboring 404, Crawford, v. 74 Tex. 12 S.W. Worth (1889) (nuisance

52, by opera- created illness). dump causing of garbage tion KAPPUS, Petitioner, John Moreover, this and others have rec- Court ognized occupier’s negli- that an owner or v. gence property may on its own lead to KAPPUS, Respondent. Sandra L. liability injuries adjoining suffered on property.7 No. 08-0136. I negligent opera- conclude then Supreme Court of Texas. of a landfill that neighbor

tion causes adjoining become ill on her is a property 10, Argued Dec. of property causing per- condition or use 15, May Decided injury sonal within the contemplation the Tort Claims Act. See Tex. Prac. & Civ. 101.021(2) § (governmental unit

Rem.Code personal

of the State be liable for

injury or death or caused condition tangible

use of or if personal real person

a private would be liable under law). Act,

Texas The Tort Claims howev-

er, liability bodily limits the State’s for the See, Kraus, ref'd) e.g., (duty keep premises Nat’l Alamo Bank free of combusti- 908, (Tex.1981) (owner S.W.2d 910-911 spread ble materials to avoid fire that could injury occupier liable for caused debris neighboring property); Shelly Oil Co. v. John- falling public building across street from be- ston, (Tex.Civ.App.- demolished); ing Co., Ry. Atchison v. Tex. & P. ref'd) (gasoline Amarillo writ manufac- (1945) 143 Tex. turing plant creating liable for oil slick on (duty grass breached when smoke from a fire adjoining highway); see also J. Edgar, Hadley premises adja- on defendant's reached an Jr. & James B. Sales, Texas Torts & Remedies collision); public highway, causing cent 20.08, Liability ‍‌​​‌‌‌​​‌​‌‌‌​​​​​‌​​​​‌‌​‌​​​‌‌​​​‌​‌​​​‌​​‌‌‌‌‍Property § for Losses Outside Brandon, Ry. P. Texas & 212, Co. v. (2009). (Tex.Civ.App.-Eastland writ

Case Details

Case Name: City of San Antonio v. Pollock

Court Name: Texas Supreme Court

Date Published: May 1, 2009

Citation: 284 S.W.3d 809

Docket Number: 04-1118

Court Abbreviation: Tex.