Michael A. Cerny and Myra L. Cerny, Individually and as Next Friends of Cameron A. Cerny, a Child v. Marathon Oil Corporation, Marathon Oil EF LLC, and Plains Exploration & Producing Company

ACCEPTED
04-14-00650-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
2/23/2015 4:16:46 PM
KEITH HOTTLE
CLERK

NO. 04-14-00650-CV

FILED IN
IN THE COURT OF APPEALS 4th COURT OF APPEALS
SAN ANTONIO, TEXAS
FOR THE FOURTH DISTRICT OF TEXAS
02/23/2015 4:16:46 PM
SAN ANTONIO, TEXAS KEITH E. HOTTLE
Clerk

MICHAEL A. CERNY AND MYRA L. CERNY, INDIVIDUALLY AND
AS NEXT FRIENDS OF CAMERON A. CERNY, A MINOR

Appellants
vs.

MARATHON OIL CORPORATION, MARATHON OIL EF LLC, AND
PLAINS EXPLORATION & PRODUCTION COMPANY

Appellees

ON APPEAL FROM THE 218TH JUDICIAL DISTRICT COURT OF
KARNES COUNTY, TEXAS, CAUSE NO. 13-05-00118-CVK
HONORABLE STELLA SAXON, JUDGE PRESIDING

RESPONSE BRIEF OF
APPELLEE PLAINS EXPLORATION & PRODUCTION COMPANY

James J. Ormiston
Michael A. Ackal, III
GRAY REED & McGRAW, P.C.
1300 Post Oak Blvd., Suite 2000
Houston, TX 77056
(713) 986-7000
(713) 986-7100 (Fax)

ORAL ARGUMENT REQUESTED

2485742.1
 TABLE OF CONTENTS
Page

INDEX OF AUTHORITIES........................................................................ iv

STATEMENT OF THE CASE .................................................................... viii

STATEMENT REGARDING ORAL ARGUMENT ................................. ix

ISSUES PRESENTED................................................................................. x

STATEMENT OF FACTS .......................................................................... 1

SUMMARY OF THE ARGUMENT .......................................................... 3

ARGUMENT ............................................................................................... 5

I. Because there is no evidence of hydrocarbon emissions from
a PXP facility migrating to and impacting Plaintiffs and their
property, the trial court properly granted PXP’s motion for
summary judgment ............................................................................ 5

A. No-evidence summary judgment standard of review ............. 5

B. As an initial matter, PXP’s no-evidence motion for summary
judgment properly raised the causation element of Plaintiffs’
causes of action ....................................................................... 7

C. Plaintiffs failed to submit any competent evidence of
causation .................................................................................. 8

1. There is no competent evidence that emissions from
PXP’s facilities migrated to Plaintiffs’ property .......... 8

2. There is no competent evidence that emissions from
PXP’s facilities caused Plaintiffs’ alleged injuries ....... 10

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 TABLE OF CONTENTS CONT’D
Page
II. Plaintiffs did not submit competent summary judgment proof
supporting the other elements of their claims against PXP ............... 11

A. Plaintiffs failed to submit evidence in support of the other
elements of their private nuisance claim against PXP ............ 12

B. Plaintiffs did not submit legally sufficient evidence on their
negligence claim against PXP. ................................................ 13

C. There is no evidence in the record supporting
Plaintiffs’ gross negligence claim against PXP ...................... 14

D. Plaintiffs have no evidence to support their claim for
negligence per se against PXP ................................................ 16

III. In addition, the trial court properly granted summary judgment
in favor of PXP because, as a matter of law, the evidence
conclusively established the lack of a causal nexus between any
alleged act or omission by PXP and Plaintiffs’ alleged
injuries ............................................................................................... 17

A. Traditional summary judgment standard of review ................ 18

B. Plaintiffs’ retained experts conceded the lack of
causation evidence as to PXP .................................................. 19

C. The unrebutted medical expert testimony confirmed the
lack of causation ...................................................................... 22

D. The evidence conclusively established the lack of a causal
link between actual emissions from PXP’s facilities and
the Plaintiffs’ alleged injuries ................................................. 23

IV. The trial court properly sustained PXP’s objections to certain
purported summary judgment evidence submitted by Plaintiffs ....... 24

A. The standard of review ............................................................ 24
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 TABLE OF CONTENTS CONT’D
Page

B. Plaintiffs waived their arguments that the trial court erred
by sustaining PXP’s objections to Plaintiffs’ summary
judgment evidence................................................................... 25

C. The trial court properly sustained PXP’s objections to
Michael and Myra Cerny’s affidavits ..................................... 26

D. The trial court properly sustained PXP’s objections to the
affidavit of Sharon Wilson ...................................................... 28

E. The trial court properly sustained PXP’s objections to
Plaintiffs’ improper attempt to submit unsworn expert
reports as summary judgment evidence .................................. 31

ADOPTION OF MARATHON’S BRIEF ................................................... 33

PRAYER ...................................................................................................... 33

SIGNATURE ............................................................................................... 33

CERTIFICATE OF COMPLIANCE ........................................................... 34

CERTIFICATE OF SERVICE .................................................................... 34

iii

2485742.1
 INDEX OF AUTHORITIES

Cases Page(s)

Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007) ..................................11

Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874 (Tex. App. – Dallas 1990,
no writ) .................................................................................................................26

Crofton v. Amoco Chemical Co., No. 01-01-00526-CV, 2003 WL 21297588
(Tex. App. – Houston 2003, pet. denied) ...............................................................9

Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497
(Tex. App. – Houston [14th Dist.] 2004, pet. denied) .........................................26

Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164 (Tex. 2005)................. 14, 15

Dillard Dep’t. Stores, Inc. v. Silva, 148 S.W.3d 370 (Tex. 2004)...........................15

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995) .... 29, 30

Easter v. Mutual of Omaha Ins. Co., 535 S.W.2d 700 (Tex. App. –
El Paso 1976, no writ) ..........................................................................................32

Emmett Properties, Inc. v. Halliburton Energy Services, Inc., 167 S.W.3d 365
(Tex. App. – Houston [14th Dist.] 2005, pet. denied)................................... passim

Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007) .......................................12

Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) .................................6, 10

Garner v. Long, 106 S.W.3d 260 (Tex. App. – Fort Worth 2003, no pet.) .............28

Garza v. Levin, 769 S.W.2d 644 (Tex. App. – Corpus Christi 1989,
writ denied) ...........................................................................................................28

Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex. 1970) ...............................19

Grace Interest, LLC v. Wallis State Bank, 431 S.W.3d 110
(Tex. App. – Houston [14th Dist.] 2013, pet. denied).............................................7
iv

2485742.1
Hess v. McLean Feedyard, Inc., 59 S.W.3d 679 (Tex. App. –
Amarillo 2000, pet. denied) ..................................................................................30

In re Estate of Denman, 362 S.W.3d 134 (Tex. App. – San Antonio 2011,
no pet.) ..................................................................................................................25

Inglish v. Prudential Ins. Co., 928 S.W.2d 702 (Tex. App. –Houston [1st Dist.]
1996, writ denied) .................................................................................................26

ITT Commercial Fin. Corp. v. Riehn, 796 S.W.2d 248
(Tex. App.—Dallas 1990, no writ).......................................................................29

Jacoby v. Hinojosa, No. 04-06-00507-CV, 2008 WL 80002
(Tex. App. – San Antonio 2008, no pet.) .............................................................19

Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921 (Tex. App. –
Dallas 2007, pet. denied) ....................................................................................6, 7

Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex. 1983) ..........................................6

King Ranch, Inc. v. Chapman, 111 S.W.3d 742 (Tex. 2003). ...............................5, 6

Lear Siegler, Inc. v. Perez, 819 S.W.2d 470 (Tex. 1991)........................................18

Llopa, Inc. v. Nagel, 956 S.W.2d 82 (Tex. App. – San Antonio 1997,
pet. denied) ...........................................................................................................32

Loewe v. Commons at Willowbrook, Inc., No. 14-07-00265-CV, 2008 WL
5220295 (Tex. App. – Houston [14th Dist.] Dec. 11, 2008, no pet.)...................25

Marin Real Estate Partners, LP v. Vogt, 373 S.W.3d 57, 75 (Tex. App. – San
Antonio 2011, no pet.) ..........................................................................................24

Martinez v. City of San Antonio, 40 S.W.3d 587 (Tex. App. –
San Antonio 2001, pet. denied) ........................................................................9, 31

Merck & Co. v. Garza, 347 S.W.3d 256 (Tex. 2011) ....................................... 11, 27

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex.1997) ......................30

v

2485742.1
Metro Allied Ins. Agency, Inc. v. Lin, 304 S.W.3d 830 (Tex. 2009) .......................11

Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430 (Tex. App. –
Fort Worth 1997, pet denied) ...............................................................................31

Moore v. K Mart Corp., 981 SW.2d 266 (Tex. App. – San Antonio 1998, pet.
denied) ................................................................................................................6, 7

Park Place Hospital v. Estate of Milo, 909 S.W.2d 508 (Tex. 1995) .....................18

Perry v. S.N., 973 S.W.2d 301 (Tex. 1998) .............................................................17

PNP Petroleum I, LP v. Taylor, 438 S.W.3d 723 (Tex. App. –
San Antonio 2014, pet. filed) ...............................................................................25

Purina Mills, Inc. v. Odell, 948 S.W.2d 927 (Tex. App. –
Texarkana 1997, pet. denied) ...............................................................................30

Reid v. Compass Group USA, Inc., 172 S.W.3d 203
(Tex. App. – El Paso 2005, no pet.) .............................................................. 15

Ronald Holland’s A-Plus Transmission & Auto., Inc. v. E-Z Mart Stores, Inc.,
184 S.W.3d 749 (Tex. App. – San Antonio 2005, no pet.) ..................................12

Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996) .....................................27

Trevino v. Lighting Lay Down, Inc., 782 S.W.2d 946 (Tex. App. –
Austin 1990, no writ)..................................................................................... 14, 15

Weiss v. Mechanical Associated Servs., Inc., 989 S.W.2d 120 (Tex. App. –
San Antonio 1999, pet. denied) ............................................................................31

Western Invs. v. Urena, 162 S.W.3d 547 (Tex. 2005) ...................................... 10, 13

Z.A.O., Inc. v. Yarbrough Drive Ctr. Joint Venture, 50 S.W.3d 531
(Tex. App. – El Paso 2001, no pet.) .....................................................................13

vi

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Rules and Statutes

TEX. CIV. PRAC. & REM. CODE§ 41.001(2) ..............................................................16
TEX. CIV. PRAC. & REM. CODE § 41.003(b)............................................................ 16

TEX. R. APP. P. 9.7...................................................................................................33

TEX. R. APP. P. 33.1..............................................................................................7, 25
TEX. R. CIV. P. 166a(c)...............................................................................................8
TEX. R. CIV. P. 166a(f) .............................................................................................32
TEX. R. CIV. P. 166a(i) ...............................................................................................8
TEX. R. EVID. 701 .....................................................................................................29

TEX. R. EVID. 802..................................................................................................32

vii

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STATEMENT OF THE CASE

Nature of the Case: Plaintiffs Michael A. Cerny and Myra L. Cerny,
individually and as next friends of their minor son,
Cameron (“Plaintiffs” or the “Cernys”) filed suit
against Marathon Oil Corporation, Marathon Oil
EF LLC (collectively, “Marathon”), and Plains
Exploration & Production Company (“PXP”)
complaining that emissions from defendants’ oil
and gas operations damaged their health and
property. CR 173-75. The Cernys brought causes
of action for nuisance, negligence, gross
negligence, and negligence per se. Id. at 179-183.
The defendants separately moved for no-evidence
and traditional summary judgment. CR 187-323,
333-84. The defendants also filed separate
motions to strike certain of the Plaintiffs’ summary
judgment evidence. CR 1032-46, 1072-76.

Trial Court: Hon. Stella H. Saxon, 218th Judicial District Court,
Karnes County, Texas.

Trial Court’s Action: Judge Saxon granted both summary judgment
motions in their entirety. CR 1081-86. The trial
court also sustained PXP’s objections to certain
summary judgment evidence submitted by
Plaintiffs. CR 1080. In addition, the Court
granted Marathon’s motion striking portions of the
Plaintiffs’ evidence. CR 1078. The Cernys
appealed the summary judgments granted in favor
of Marathon and PXP. CR 1088.

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 STATEMENT REGARDING ORAL ARGUMENT

The Court can dispose of the Cernys’ appeal without oral argument. This is

a straightforward summary judgment case, and none of the Cernys’ arguments

raises novel or complicated issues. Oral argument is not needed for this Court to

analyze whether the limited evidence offered by the Cernys is sufficient to

preclude summary judgment on their claims.

Of course, if the Court wishes to hear oral argument, PXP requests the

opportunity to appear and present argument.

ix

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 ISSUES PRESENTED

1. Whether the trial court erred in granting PXP’s no-evidence and
traditional motion for summary judgment, where the Cernys
failed to present any competent evidence of hydrocarbon
emissions from a PXP facility migrating to and impacting
Plaintiffs and their property, and where the undisputed evidence
conclusively established the lack of causation between any
alleged act or omission by PXP and Plaintiffs’ alleged injuries.

2. Whether the trial court abused its discretion in sustaining PXP’s
objections to certain portions of the Cernys’ summary judgment
evidence, where the Cernys failed to respond to or object to the
motion below, and where the stricken evidence was unreliable,
unqualified, and/or hearsay.

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TO THE HONORABLE FOURTH COURT OF APPEALS:

Defendant-Appellee PXP submits this brief in support of the final summary

judgment rendered in its favor by the district court. PXP requests the final

summary judgment, which recites Plaintiffs-Appellants take nothing on their

claims against PXP, be affirmed in all respects.

STATEMENT OF FACTS

Plaintiffs-Appellants are Michael and Myra Cerny, husband and wife, and

their teenage son, Cameron. In the trial court, Plaintiffs generally alleged that

unspecified oil and gas operations within the “vicinity” of their home caused

damage to their property and exacerbation of multiple, pre-existing health issues.

CR 173-175, Plaintiffs’ Fourth Amended Petition at 2-4. 1 The Cernys own the

surface estate of a one-acre tract in Karnes County, Texas, along with “an older

home sitting on a pier and beam foundation.” CR 173. The Plaintiffs’ house is

adjacent to FM 99, a highway with a 75 mph speed limit. CR 172.

Plaintiffs sued two Marathon entities, 2 as well as PXP, and asserted causes

of action for private nuisance, negligence, gross negligence, and negligence per se.

CR 179-183. In their pleadings, Plaintiffs complained about the “numerous well

1
Plaintiffs filed their fourth amended petition on June 13, 2014, well after the pleading
deadline of February 14, 2014. CR 96-97, Docket Control Order dated November 15, 2013.
Plaintiffs did not seek leave to file their fourth amended petition after the pleading deadline.
2
Marathon Oil Corporation and Marathon Oil EF LLC.
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sites and production facilities within a short distance” from their home, most of

which are operated by Marathon. CR 174. Plaintiffs did not bring any claims

relating to oil and gas wells operated by PXP. Rather, Plaintiffs’ claims against

PXP were limited to alleged emissions from a small drip station and two

production facilities, none of which are close to the Plaintiffs’ house. The PXP

facilities at issue are:

• the Kotara-Ridley Drip Station (the “Drip Station”) located approximately
1.46 miles from Plaintiffs’ home

• the Kotara-Ridley Central Production Facility (the “Kotara-Ridley CPF”)
located approximately 2.7 miles from Plaintiffs’ home

• the Love-Crews Central Production Facility (the “Love-Crews CPF”)
located approximately 4.1 miles from Plaintiffs’ home

CR 177-178.3

Plaintiffs designated three testifying experts: a toxicologist and two air

modelers. As discussed in more detail below, each of these expert witnesses

admitted to the lack of a causal link between actual emissions from PXP’s facilities

and the Plaintiffs’ alleged injuries. In fact, neither of the air modeling experts were

able to testify that actual emissions from PXP’s three facilities, which are located
3
Plaintiffs’ Original Petition, filed May 21, 2013, did not complain of any specific PXP wells
or facilities. CR 5. Plaintiffs’ First Amended Petition, filed January 17, 2014, identified one
PXP well located approximately 2.01 miles from the Plaintiffs’ house, and the Drip Station
located approximately 1.46 miles from Plaintiffs’ property. CR 107. Plaintiffs’ Second and
Third Amended Petitions deleted the prior references to the well and the Drip Station, and failed
to identify any PXP wells or facilities about which Plaintiffs complain. CR 131-139 and 160-
170.
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1.46 miles, 2.7 miles, and 4.1 miles from the Cernys’ home, encroached on the

Plaintiffs’ property.

The fatal flaw with Plaintiffs’ claims against PXP, and the reason Judge

Saxon granted summary judgment in favor of PXP, is the undisputed evidence

established that emissions from PXP’s facilities did not migrate to and impact

Plaintiffs and their property. Accordingly, PXP’s causation defense is based on the

lack of any credible evidence that Plaintiffs were actually exposed to hydrocarbons

emitted from PXP’s facilities. Stated differently, without proof they were actually

exposed to PXP’s hydrocarbons, Plaintiffs cannot establish the causation element

necessary for each of their causes of action.

SUMMARY OF THE ARGUMENT

The record is devoid of any competent evidence causally linking Plaintiffs’

alleged injuries with any acts or omissions of PXP. Plaintiffs failed to submit

competent summary judgment evidence showing hydrocarbons were emitted from

a PXP facility, migrated several miles to Plaintiffs’ property, and were the

proximate or producing cause of Plaintiffs’ alleged injuries. The trial court

properly granted summary judgment on these no-evidence grounds.

If there was such evidence, Plaintiffs would have specifically pointed it out

to this Court. Instead, Plaintiffs generically cite to an appendix of alleged

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“evidence” attached to their appellate brief, and then eschewed any analysis of the

purported evidence in favor of arguments never raised in the trial court.

For the first time on appeal, Plaintiffs contend PXP’s no-evidence motion

for summary judgment was not sufficiently specific to allow Plaintiffs to respond,

despite the fact Plaintiffs filed a voluminous response in the trial court. Further,

PXP’s motion listed each element for each cause of action alleged by Plaintiffs,

and specifically stated those elements for which no evidence existed. But then

oddly, after dedicating several pages of appellate briefing to this argument,

Plaintiffs concede PXP’s motion was indeed sufficiently specific regarding

Plaintiffs’ lack of causation evidence.

Further illuminating Plaintiffs’ lack of evidence in support of causation is

the deposition testimony of Plaintiffs’ expert witnesses and the unrebutted affidavit

of the only medical expert witness designated in this case. Plaintiffs’ experts

conceded there is no evidence that any actions or omissions by PXP caused

Plaintiffs’ alleged injuries. Additionally, Plaintiffs failed to rebut the testimony of

a physician board certified in occupational medicine who opined Plaintiffs’ injuries

pre-existed defendants’ oilfield activities and were not caused by such activities.

Accordingly, as a matter of law, the undisputed evidence established the lack of

causation for each of Plaintiffs’ claims against PXP.

4

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 Plaintiffs also argue the trial court abused its discretion in granting PXP’s

motion to strike certain of Plaintiffs’ summary judgment evidence. Plaintiffs,

however, failed to respond to PXP’s motion or otherwise contest PXP’s motion in

the trial court, thereby waiving the right to challenge the trial court’s rulings on

appeal. Regardless, the trial court properly struck the conclusory, speculative, self-

serving lay witness opinion affidavits submitted by Plaintiffs in an ill-fated attempt

to gin up some causation proof. Even if the affidavits had not been struck, they do

not constitute competent evidence of causation.

Texas law prescribes exacting causation standards that are intended to

separate the speculative from the probable. Here, Plaintiffs have not bridged the

geographical, medical, and probative gulf with any competent evidence causally

linking their alleged injuries to PXP’s oilfield activities. As such, the Court should

affirm the trial court’s summary judgment in favor of PXP.

ARGUMENT

I. Because there is no evidence of hydrocarbon emissions from a PXP
facility migrating to and impacting Plaintiffs and their property, the
trial court properly granted PXP’s motion for summary judgment.

A. No-evidence summary judgment standard of review

When reviewing the granting of a no-evidence summary judgment, an

appellate court applies the same legal sufficiency standard that is applied in

reviewing a directed verdict. King Ranch, Inc. v. Chapman, 111 S.W.3d 742, 750-
5

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51 (Tex. 2003). The nonmovant in a no-evidence motion for summary judgment

has the burden to raise a genuine issue of material fact by producing more than a

scintilla of probative evidence. Id. at 751; see also Moore v. K Mart Corp., 981

SW.2d 266, 269 (Tex. App. – San Antonio 1998, pet. denied). If the nonmovant

fails to meet its burden, no-evidence summary judgment is proper. See King

Ranch, Inc., 118 S.W.3d at 751; Moore, 981 S.W.2d at 269.

Less than a scintilla of evidence exists when the evidence is “so weak as to

do no more than create a mere surmise or suspicion” of a fact. King Ranch, Inc.,

118 S.W.3d at 751 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.

1983)); Moore, 981 S.W.2d at 269. “When the evidence offered to prove a vital

fact is so weak as to do no more than create a mere surmise or suspicion of its

existence, the evidence is no more than a scintilla and, in legal effect, is no

evidence.” Kindred, 650 S.W.2d at 63; accord Moore, 981 S.W.2d at 269.

PXP agrees that when a trial court grants a combined no-evidence and

traditional motion for summary judgment, the appellate court should first review

the propriety of the summary judgment under the no-evidence standard of Rule

166a(i). Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex. App. –

Dallas 2007, pet. denied); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.

2004). If the nonmovant fails to meet its burden under the no-evidence summary

judgment standard, there is no need to analyze the traditional summary judgment.
6

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See Ridgway, 135 S.W.3d at 600, Kalyanaram, 230 S.W.3d at 925. Thus, PXP

will first address Plaintiffs’ failure to submit any competent evidence that

hydrocarbons from a PXP facility encroached on Plaintiffs’ property and caused

their alleged injuries.

B. As an initial matter, PXP’s no-evidence motion for summary
judgment properly raised the causation element of Plaintiffs’
causes of action.

Initially, Plaintiffs raise an issue on appeal not raised in the trial court below.

Plaintiffs argue PXP’s grounds for summary judgment were not “sufficiently

specific to even require a response,” and PXP failed to “clearly stat[e] the grounds

for [the] Traditional MSJ and the specific elements challenged for [the] NEMSJ.”

See Appellants’ Brief, p. 8. However, “[w]hen a non-movant believes a motion for

summary judgment is unclear, ambiguous, or lacks specificity, it must file special

exceptions.” Grace Interest, LLC v. Wallis State Bank, 431 S.W.3d 110, 123 (Tex.

App. – Houston [14th Dist.] 2013, pet. denied). “That party must then obtain a

ruling on the special exceptions to preserve the issue for appellate review.” Id.

(citing TEX. R. APP. P. 33.1). Not only did Plaintiffs fail to file special exceptions

to PXP’s motion for summary judgment and obtain a ruling, but Plaintiffs also did

not raise this issue in any form whatsoever in the trial court. Accordingly,

Plaintiffs did not preserve this argument for appellate review, and it has been

waived. Id.; see also, TEX. R. APP. P. 33.1.
7

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 But even assuming Plaintiffs have preserved and not waived this argument,

it is without merit. Plaintiffs cite only to the “Summary” contained on the first two

pages (CR 334-35) of PXP’s motion for summary judgment for the proposition

that the grounds presented therein are not sufficiently specific. See Appellants’

Brief, p. 10, fn. 7. Plaintiffs ignore pages 9 through 13 of PXP’s motion, where

PXP delineated each element of Plaintiffs’ causes of action and stated with

specificity the elements for which no evidence exists. See CR 342-46. PXP

clearly and unambiguously satisfied the specificity requirements of Texas Rule of

Civil Procedure 166a(c) and (i).

Moreover, Plaintiffs readily admit that “PXP[’s] NEMSJ is sufficiently

specific to require a response on the element of causation.” See Appellants’ Brief,

p. 10; see also, p. 15 (“[T]he element of the Cernys’ causes of action which the

Marathon and PXP NEMSJ’s adequately specify is causation of their damages.”).

PXP certainly agrees. But Plaintiffs wholly failed to produce competent summary

judgment evidence raising a genuine issue of material fact on causation.

C. Plaintiffs failed to submit any competent evidence of causation.

1. There is no competent evidence that emissions from PXP’s
facilities migrated to Plaintiffs’ property.

It is axiomatic that for each cause of action asserted against PXP, Plaintiffs

were required to produce competent summary judgment evidence showing

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hydrocarbons were emitted from a PXP facility, migrated onto Plaintiffs’ property,

and caused Plaintiffs’ alleged injuries. See Emmett Properties, Inc. v. Halliburton

Energy Services, Inc., 167 S.W.3d 365, 373 (Tex. App. – Houston [14th Dist.]

2005, pet. denied) (affirming no-evidence summary judgment because “[plaintiff]

was required [and failed] to show that halogenated hydrocarbons from the

[defendant’s] property migrated onto [plaintiff’s] property and caused injury.”);

see also, Martinez v. City of San Antonio, 40 S.W.3d 587, 595 (Tex. App. – San

Antonio 2001, pet. denied) (affirming no-evidence summary judgment because

plaintiffs failed to submit competent summary judgment evidence showing alleged

injuries from lead contamination were caused by lead emanating and disseminated

in dust from the excavation of a former iron foundry during construction of the

Alamodome); Crofton v. Amoco Chemical Co., No. 01-01-00526-CV, 2003 WL

21297588 at * 5 (Tex. App. – Houston 2003, pet. denied) (affirming no-evidence

summary judgment because plaintiffs offered no evidence that chemicals were

emitted and migrated from superfund site to their property and caused injuries).

Plaintiffs have not produced any competent evidence to satisfy their burden.

Specifically, Plaintiffs did not direct the trial court, and do not direct this Court, to

any competent evidence that hydrocarbons were emitted from the Love-Crews

CPF and migrated 4.1 miles to Plaintiffs’ home; that hydrocarbons were emitted

from the Kotara-Ridley CPF and migrated 2.7 miles to Plaintiffs’ home; that
9

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hydrocarbons were emitted from the Drip Station and migrated 1.46 miles to

Plaintiffs’ home; or that any hydrocarbons were emitted from any PXP facility and

migrated to Plaintiffs’ property. “Causation cannot be established by mere

speculation or conjecture, but must be established by evidence of probative value.”

Emmett Properties, 167 S.W.3d at 373. The record is devoid of any such

competent evidence, including expert opinion testimony. As Plaintiffs do not have

evidence they were exposed to PXP’s hydrocarbons, the judgment in favor of PXP

must be affirmed.

2. There is no competent evidence that emissions from PXP’s
facilities caused Plaintiffs’ alleged injuries.

Not only did Plaintiffs fail to produce evidence that hydrocarbons emitted

from a PXP facility actually migrated to their property, but Plaintiffs also failed to

present competent evidence that PXP’s hydrocarbons caused their alleged injuries.

Plaintiffs were required to prove PXP’s hydrocarbons were the producing or

proximate cause of their injuries. A producing cause is defined as “a substantial

factor in bringing about an injury, and without which the injury would not have

occurred.” Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007).

Similarly, proximate cause constitutes elements of (1) cause-in-fact, and (2)

foreseeability. Western Invs. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). The test

for cause-in-fact under a proximate causation analysis is the same as the producing

10

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cause analysis, i.e., the defendant’s act must be a substantial factor in bringing

about the injury, and without which the harm would not have occurred. Metro

Allied Ins. Agency, Inc. v. Lin, 304 S.W.3d 830, 835 (Tex. 2009).

The Texas Supreme Court recognizes that in a toxic tort case “substantial-

factor causation, which separates the speculative from the probable, need not be

reduced to mathematical precision,” but the court also notes that at a minimum,

“[d]efendant-specific evidence relating to the approximate dose to which the

plaintiff was exposed, coupled with evidence that the dose was a substantial factor

in causing the . . . disease, will suffice.” Borg-Warner Corp. v. Flores, 232 S.W.3d

765, 773 (Tex. 2007). Here, Plaintiffs did not produce a shred of competent

evidence – expert opinion or otherwise – showing that specific hydrocarbon

emissions from a PXP facility were the producing or proximate cause of their

injuries. See e.g., Merck & Co. v. Garza, 347 S.W.3d 256, 265-66 (Tex. 2011).

There is simply no such evidence before this Court, and Plaintiffs point to none in

their brief. Accordingly, affirmance of the judgment in favor of PXP is an easy

call.

II. Plaintiffs did not submit competent summary judgment proof
supporting the other elements of their claims against PXP.

Plaintiffs’ failure to submit competent evidence in response to PXP’s no-

evidence motion for summary judgment is not limited to the causation element of

11

2485742.1
their various claims. Plaintiffs also failed to submit legally sufficient evidence in

support of the other specific elements of their claims challenged in the trial court

by PXP.

A. Plaintiffs failed to submit evidence in support of the other
elements of their private nuisance claim against PXP.

In addition to challenging causation (see Section I, supra), PXP also

challenged the other elements of Plaintiffs’ private nuisance claim. CR 342-43. In

order for their private nuisance claim to be actionable, Plaintiffs must prove that

PXP engaged in: “(1) intentional invasion of another’s interest; (2) negligent

invasion of another’s interest; or (3) other conduct, culpable because abnormal and

out of place in its surroundings, that invades another’s interest.” Ronald Holland’s

A-Plus Transmission & Auto., Inc. v. E-Z Mart Stores, Inc., 184 S.W.3d 749, 758

(Tex. App. – San Antonio 2005, no pet.). The Cernys, however, failed to present

sufficient evidence of any of these elements.

The Cernys expressly disclaim any reliance on an intentional nuisance

theory. See Appellant’s Brief, p. 20. Plaintiffs’ negligent nuisance theory fails for

the same reasons their negligence claims fail. See Sections I and II.B., infra.

The Cernys cannot prove the third and final theory of nuisance because

PXP’s oil and gas operations are not abnormal or out of place, for at least two

reasons. First, the Cernys entered into an oil and gas lease that expressly

12

2485742.1
authorized oil and gas activities on and surrounding their property. CR 232-38.

As a matter of law, the existence of the oil and gas lease precludes a finding that

the complained of oil and gas operations are abnormal or out of place. See Z.A.O.,

Inc. v. Yarbrough Drive Ctr. Joint Venture, 50 S.W.3d 531, 543 (Tex. App. – El

Paso 2001, no pet.).

Second, separate and apart from the lease, PXP’s activities are certainly not

out of place in Karnes County, Texas, which is one of the largest oil and gas

producers in the United States. See CR 204 (Marathon requesting the trial court to

take judicial notice of that fact in connection with its summary judgment motion).

Thus, Plaintiffs failed to submit sufficient evidence to support any of the elements

of their private nuisance cause of action.

B. Plaintiffs did not submit legally sufficient evidence on their
negligence claim against PXP.

To survive a no-evidence motion for summary judgment on a negligence

claim, a plaintiff is required to present legally sufficient evidence that (1)

defendant owed a duty to the plaintiff; (2) the defendant breached that duty; and

(3) the breach of the duty was the proximate cause of the plaintiff’s injuries.

Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). PXP moved the

trial court to grant summary judgment on this claim because there was no evidence

of elements 1-3. CR 343-44. In addition to lacking competent evidence of

13

2485742.1
causation (see Section I, supra), Plaintiffs also failed to present evidence that (1)

PXP owed them a duty, and (2) breached that duty. Plaintiffs’ failure to present

such evidence to the trial court serves as additional grounds for affirming the

judgment below.

C. There is no evidence in the record supporting Plaintiffs’ gross
negligence claim against PXP.

Similar to their negligence claim, Plaintiffs’ gross negligence claim fails on

no-evidence grounds.

First, gross negligence presupposes legally sufficient evidence of ordinary

negligence, which Plaintiffs did not present to the trial court. See Sections I and

II.B, supra; Trevino v. Lighting Lay Down, Inc., 782 S.W.2d 946, 949 (Tex. App. –

Austin 1990, no writ).

Second, PXP asserted no-evidence challenges to both the objective and

subjective prongs of the gross negligence test. CR 344-45. Specifically, Plaintiffs

were required to present legally sufficient evidence that PXP’s acts or omissions

(1) which when viewed objectively from the standpoint of the actor at the time of

its occurrence involves an extreme degree of risk, concerning the probability and

magnitude of the potential harm to others; and (2) of which the actor has actual,

subjective awareness of the risk involved, but nevertheless proceeds with

conscious indifference to the rights, safety, or welfare of others. See Diamond

14

2485742.1
Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, 171-72 (Tex. 2005); Dillard Dep’t.

Stores, Inc. v. Silva, 148 S.W.3d 370, 374 (Tex. 2004). It is the defendant’s

“mental attitude” that “elevates” negligence to gross negligence. Trevino, 782

S.W.2d at 949.

Evidence of simple negligence is not enough to prove either prong of gross

negligence. Hall, 168 S.W.3d at 171-72. As for the objective prong, “extreme

risk . . . means not a remote possibility of injury or even a high probability of

minor harm, but rather the likelihood of serious injury to the plaintiff.” Dillard

Dep’t Stores, Inc. v. Silva, 148 S.W.3d 370, 374 (Tex. 2004). The subjective

prong requires that “the defendant knew about the peril, but its acts or omissions

demonstrated that it did not care.” Id. (citations omitted); see also Diamond

Shamrock, 168 S.W.3d at 173 (“What separates ordinary negligence from gross

negligence is the defendant’s state of mind; in other words, the plaintiff must

show that the defendant knew about the peril, but his acts or omissions

demonstrate that he did not care”) (citations omitted).

Under the no evidence summary judgment standard, the party with the

burden at trial will have the same burden of proof in a summary judgment

proceeding. See Reid v. Compass Group USA, Inc., 172 S.W.3d 203, 205 (Tex.

App. – El Paso 2005, no pet.). As such, Plaintiffs had the burden to submit

clear and convincing evidence of each element of their gross negligence claim.
15

2485742.1
See Tex. Civ. Prac. & Rem. Code § 41.003(b). Evidence is “clear and

convincing” if it “will produce in the mind of the trier of fact a firm belief or

conviction as to the truth of the allegations sought to be established.” Id.; Tex.

Civ. Prac. & Rem. Code § 41.001(2).

Plaintiffs have no evidence of either prong of the gross negligence test.

There is no evidence that PXP’s lawful operation of its facilities in compliance

with applicable regulations created an “extreme risk” of injury to anyone.

Moreover, there is no evidence that PXP disregarded any known risk. For these

reasons, the Court should affirm the judgment in favor of PXP on Plaintiffs’

gross negligence claim.

D. Plaintiffs have no evidence to support their claim for negligence
per se against PXP.

In addition to its causation challenge, PXP moved for summary judgment on

Plaintiffs’ claim for negligence per se because (1) there was no evidence that PXP

violated any of the statutes or rules cited by Plaintiffs in their petition, and (2) as a

matter of law, even if there was such evidence, no Texas court has determined that

a violation of either statute gives rise to negligence per se liability. CR 345-46.

Plaintiffs did not present any evidence to rebut PXP’s challenges. Notably,

Plaintiffs did not present evidence that any actual hydrocarbon emissions from a

PXP facility were discharged into the atmosphere and migrated to Plaintiffs’

16

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property. See Section I, supra.

Additionally, the Cernys failed to demonstrate that (1) they belong to the

class of persons that the statute was designed to protect, and their injuries are of the

type that the statute was designed to prevent; (2) the statute is one for which tort

liability may be imposed when violated; (3) PXP violated the statute without

excuse; and (4) PXP’s acts or omissions proximately caused their alleged injuries.

Perry v. S.N., 973 S.W.2d 301, 305-06 (Tex. 1998). The Cernys did not satisfy

any of these four elements. The Cernys never claimed that the statutes they

identified gave rise to tort liability, much less cite any authority to that effect. See

Appellants’ Brief, pp. 12-14. Further, the Plaintiffs make only a conclusory

statement that their injuries fall within aim of the statutes. Id. at 12-13. Finally,

the Cernys cannot prove that PXP violated any statute or that PXP’s alleged

violation proximately caused their injuries for the reasons stated in Section I,

supra.

III. In addition, the trial court properly granted summary judgment in
favor of PXP because, as a matter of law, the evidence conclusively
established the lack of a causal nexus between any alleged act or
omission by PXP and Plaintiffs’ alleged injuries.

Plaintiffs’ failure to produce competent summary judgment evidence in

support of the causation element of their causes of action is underscored by the

testimony of Plaintiffs’ very own retained expert witnesses. Plaintiffs’ experts

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2485742.1
admitted there is no evidence that hydrocarbon emissions from PXP’s facilities

migrated several miles to Plaintiffs’ home and caused Plaintiffs’ alleged injuries.

The testimony of Plaintiffs’ experts, along with the unrebutted testimony of a

board certified physician that Plaintiffs’ various medical problems pre-eisted the

oilfield activities at issue, affirmatively proved the lack of causation. Based on

such evidence, the trial court properly granted PXP’s motion for summary

judgment.

A. Traditional summary judgment standard of review

When a party moves for summary judgment based on the summary

judgment evidence, the trial court must grant the motion when the evidence, as a

matter of law, disproves the facts of at least one element of the non-movant’s

claims. See e.g., Park Place Hospital v. Estate of Milo, 909 S.W.2d 508, 511 (Tex.

1995) (holding summary judgment was proper where defendant used the testimony

of plaintiff’s own expert to disprove causation as a matter of law); Lear Siegler,

Inc. v. Perez, 819 S.W.2d 470, 471-72 (Tex. 1991) (causation disproved as a

matter of law).

“[T]he question on appeal, as well as in the trial court, is not whether the

summary judgment proof raises fact issues with reference to the essential elements

of a plaintiff’s claim or cause of action, but is whether the summary judgment

proof establishes as a matter of law that there is no genuine issue of fact as to one
18

2485742.1
or more of the essential elements of the plaintiff’s cause of action.” Jacoby v.

Hinojosa, No. 04-06-00507-CV, 2008 WL 80002 at *1 (Tex. App. – San Antonio

2008, no pet.) (quoting Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.

1970)).

B. Plaintiffs’ retained experts conceded the lack of causation
evidence as to PXP.

Plaintiffs designated three experts to opine about causation issues: two air

modelling experts and a toxicologist. All three conceded there is no evidence that

hydrocarbons emitted from PXP’s facilities migrated to Plaintiffs’ property and

caused Plaintiffs’ alleged injuries.

Plaintiffs’ air modelling experts both admitted during their depositions that

they could not testify hydrocarbon emissions from the Love-Crews CPF, the

Kotara-Ridley CPF, or the Drip Station actually migrated to Plaintiffs’ property.

PXP deposed Plaintiffs’ air modelling expert David Mitchell, Ph.D., on April 22,

2014. CR at 367. Dr. Mitchell did not model emissions from any PXP facility and

testified he could not even identify a PXP facility. Id. at 369-70. Rather, he

modelled emissions from several “pseudo-point sources,” which are not actual

emissions from any PXP facility. Id. at 368. PXP asked Dr. Mitchell, “Is the

purpose of your report to opine that any hydrocarbon emissions from a specific

PXP well or facility has migrated to [ ] Plaintiffs’ property?” Id. at 371. He

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responded, “No.” Id.

PXP deposed Plaintiffs’ second air modelling expert, Keith Zimmerman, on

May 14, 2014. CR 358. Mr. Zimmerman modeled the permitted (not the actual)

emission levels from five facilities operated by Marathon, and only one facility

operated by PXP, i.e., the Love-Crews CPF located 4.1 miles from Plaintiffs’

home. Id. at 359-62. He did not model permitted (or actual) emissions from the

Kotara-Ridley CPF or the Drip Station. See id.

Mr. Zimmerman testified the permitted emissions (not actual emissions)

modelled from the Love-Crews CPF did not reach the Plaintiffs’ home:

Q. And does this show that -- any of the alleged emissions or
[dispersion] from the Love facility actually reaching the Cerny
residence?

A. Again, it shows very low concentrations from the Love facility.

Q. And none of them actually reached the Cerny residence, correct?

A. You can’t really tell from this, but it is not likely.

***

Q. Can you look through any of [the figures in your report] and do
any of those show that the alleged emissions from the Love
facility are actually reaching the Cerny residence by looking at
the contra line?

A. I would say that it is not reaching the Cerny residence in any
appreciable concentration.

Id. at 363.
20

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 PXP also deposed Plaintiffs’ designated toxicologist, Thomas Dydek, Ph.D.

Dr. Dydek admitted there was a lack of evidence causally linking actual emissions

from PXP’s facilities to Plaintiffs’ alleged injuries. CR 351 (Q. “Is it your opinion

to a reasonable degree of toxicological certainty that the symptoms complained of

by the Cernys have been caused by the emissions of the Defendants?” A. “If

you’re limiting it just to cause, I would say no.”). Dr. Dydek also testified he had

not reviewed the Plaintiffs’ medical records (CR 352), and he was unaware of any

act or omission by PXP that caused or contributed to Plaintiffs’ alleged injuries:

Q Are you aware of any TCEQ investigation into any well or
facility operated by PXP within a two-mile radius of the Cerny
home?

A. I don’t know one way or the other.

***

Q. Are you aware, as you sit here today, of any leak from any
equipment, well, or facility operated by PXP within a two-mile
radius of the Cerny home?

A. No.

Q. Are you aware of any upset condition related to any PXP well or
facility within two miles of the Cerny home?

A. I have no evidence to that one way or the other.

Q. Are you aware of any emissions from any PXP well or facility
in excess of the permitted levels within a two-mile radius of the
Cerny home?

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 A. Same answer: I’m not aware of any.

Q. If I re-asked you all of those questions and if I expanded two-
mile radius to three-mile radius, would your answer be the
same?

A. Yes, sir.

CR 353-54.

C. The unrebutted medical expert testimony confirmed the lack of
causation.

PXP and Marathon retained a physician board certified in occupational

medicine to provide expert opinions regarding the cause of Plaintiffs’ alleged

injuries. Dr. J.D. Britton, M.P.H. offered the following opinions in an affidavit

Plaintiffs failed to rebut in response to PXP’s motion for summary judgment:

• Plaintiffs’ health complaints pre-existed any oil or gas activities in the
vicinity of their home (CR 375-84, Affidavit of Dr. J.D. Britton,
M.P.H. at ¶¶ 6, 10, and 15);

• Plaintiffs’ health complaints were not caused by the oil and gas
activities in the vicinity of their home, nor by the emissions or other
conduct alleged in Plaintiffs’ petition (Id.);

• Plaintiffs have failed to provide any epidemiological studies, nor have
their treating physicians mentioned or relied upon any such studies,
demonstrating that the alleged emissions and other oil and gas
activities present a statistically significant doubling of the risk of the
health issues about which they complain (Id. at ¶¶ 7, 11, and 16).

Plaintiffs did not submit evidence from a retained doctor, nor from any of

their numerous treating physicians, to rebut Dr. Britton. As a result, Dr. Britton’s

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2485742.1
unrebutted testimony is more than sufficient to negate the causation element of

Plaintiffs’ claims.

D. The evidence conclusively established the lack of a causal link
between actual emissions from PXP’s facilities and the Plaintiffs’
alleged injuries.

Based on the deposition testimony of Plaintiffs’ experts and the unrebutted

opinions of Dr. Britton, the summary judgment proof established as a matter of law

that there is no genuine issue of fact as to the causation element of Plaintiffs’

claims against PXP. All of the foregoing experts acknowledged Plaintiffs’ lack of

evidence showing hydrocarbon emissions from a PXP facility migrated to

Plaintiffs’ property and caused their injuries. Such admissions not only accentuate

Plaintiffs’ lack of competent evidence to defeat PXP’s no-evidence challenge to

Plaintiffs’ claims, but importantly, the experts’ testimony affirmatively established

lack of causation as a matter of law. For this additional reason, the Court should

affirm the judgment in favor of PXP.

In any event, the Cernys waived any argument that they submitted sufficient

causation proof by inadequate briefing in this Court. Their causation argument

consists of the conclusory assertions that “the testimony of the Cernys” and “other

evidence” are “sufficient to show that they smelled foul orders from chemicals that

were serious enough to constitute a nuisance, that they suffered from symptoms

that were caused by the chemicals, and that the chemicals came from the Marathon
23

2485742.1
and PXP facilities.” See Appellants’ Brief, p. 16. The Cernys then cite to one of

their appendices, apparently assuming the Court will take on the burden of sifting

through their evidence and making their arguments for them. Id. Accordingly, the

Cernys have waived their causation argument by failing to adequately brief it. See

Marin Real Estate Partners, LP v. Vogt, 373 S.W.3d 57, 75 (Tex. App. – San

Antonio 2011, no pet.) (“Marin’s brief failed to meet the basic requirements of a

clear and concise argument containing substantive analysis. Rather, the brief

contains three conclusory statements . . . . Martin has therefore waived this

portion of issue two due to inadequate briefing.”).

IV. The trial court properly sustained PXP’s objections to certain
purported summary judgment evidence submitted by Plaintiffs.

Marathon filed a motion to strike some of Plaintiffs’ summary judgment

evidence. CR 1033-46. PXP joined Marathon’s motion and separately moved to

strike certain additional portions of Plaintiffs’ summary judgment evidence. CR

1073-76. The trial court granted both Marathon’s and PXP’s motions. CR 1078

and 1080. The trial court did not abuse its discretion in sustaining PXP’s

objections and striking certain purported “evidence” submitted by Plaintiffs in

response to PXP’s motion for summary judgment.

A. The standard of review

A trial court’s rulings on objections to summary judgment evidence are

24

2485742.1
reviewed under an abuse of discretion standard. PNP Petroleum I, LP v. Taylor,

438 S.W.3d 723, 732 (Tex. App. – San Antonio 2014, pet. filed) (internal citations

omitted). “A trial court abuses its discretion if it acts without reference to any

guiding rules or principles.” Id. “Merely because a trial court may decide a

discretionary matter differently than the appellate court does not demonstrate an

abuse of discretion.” In re Estate of Denman, 362 S.W.3d 134, 141 (Tex. App. –

San Antonio 2011, no pet.) “To obtain reversal for an erroneous exclusion or

admission of evidence, the appellant must establish the error was harmful, that is, it

was calculated to cause and probably did cause the rendition of an improper

judgment.” Id. “Errors in admission or exclusion of evidence are generally not

reversible unless the appellant can show the whole case turns on the complained of

evidence.” Id.

B. Plaintiffs waived their arguments that the trial court erred by
sustaining PXP’s objections to Plaintiffs’ summary judgment
evidence.

It is fundamental that “[a]s a prerequisite to presenting a complaint for

appellate review, the record must show that … the complaint was made to the trial

court by a timely request, objection, or motion . . . .” TEX. R. APP. P. 33.1; see also,

Loewe v. Commons at Willowbrook, Inc., No. 14-07-00265-CV, 2008 WL

5220295, at *3 (Tex. App. – Houston [14th Dist.] Dec. 11, 2008, no pet.).

Here, the record reflects Plaintiffs did not file a response to PXP’s motion to
25

2485742.1
strike; did not object in the trial court to the striking of their summary judgment

evidence; and did not request the trial court reconsider its ruling. By failing to

object in the trial court, Plaintiffs have waived the right to complain on appeal

about the trial court’s ruling. See id. (holding appellant waived complaint on

appeal by failing to file any response to defendant’s motion to strike, failing to

object to the trial court’s ruling, or failing to request the trial court reconsider its

decision); Cruikshank v. Consumer Direct Mortgage, Inc., 138 S.W.3d 497, 499

(Tex. App. – Houston [14th Dist.] 2004, pet. denied) (same); Inglish v. Prudential

Ins. Co., 928 S.W.2d 702, 705 (Tex. App. –Houston [1st Dist.] 1996, writ denied)

(holding that because appellants never requested an opportunity to amend their

summary judgment responses, appellants could not complain on appeal of the trial

court’s ruling sustaining objections and special exceptions to their affidavit);

Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 878 (Tex. App. – Dallas 1990,

no writ) (holding appellant waived issue on appeal by not objecting to, or

protesting, the motion to strike before the trial court).

C. The trial court properly sustained PXP’s objections to Michael
and Myra Cerny’s affidavits.

Even assuming Plaintiffs did not waive the right to challenge the trial court’s

rulings on their evidence, Judge Saxon did not abuse her discretion in excluding

Plaintiffs’ affidavits. Plaintiffs Myra Cerny and Michael Cerny each submitted

26

2485742.1
affidavits in opposition to PXP’s motion for summary judgment in an effort to

provide some causation proof. Plaintiffs’ affidavits each stated:

The wind usually blows from the south in the area where
we live. During those south winds we often would smell
a strong smell that either caused or worsened many of
our symptoms. I got on my motorcycle and decided to
head south to see where that smell was coming from. I
drove and found Plains Exploration and Production
Company’s Kotara Ridley/Love Crews Drip Station
almost directly to the south of our property. The place
smelled terrible. From that day forward, we named it
“Stinkyville”, (sic) and we regularly smell its odors
during southerly winds.

CR 508-9; 511-12.

PXP moved to strike the affidavit testimony quoted above on two grounds.

CR 1073-74. First, PXP objected because expert testimony is required to establish

the causation element of Plaintiffs’ causes of action, i.e., whether hydrocarbons

emanated from PXP’s facilities, migrated onto Plaintiffs’ property, and caused

Plaintiffs’ alleged injuries. See Emmett Properties, 167 S.W.3d at 373; Garza, 347

S.W.3d at 265-66. Mr. and Mrs. Cerny are not qualified to testify as to causation

in this regard.

Second, PXP objected that the foregoing testimony is conclusory and

inadmissible for purposes of proving causation. Conclusory statements are not

competent summary judgment evidence. Ryland Group, Inc. v. Hood, 924 S.W.2d

120, 122 (Tex. 1996). A conclusory statement is one that does not provide
27

2485742.1
underlying facts to support a conclusion. Garner v. Long, 106 S.W.3d 260, 267

(Tex. App. – Fort Worth 2003, no pet.). Moreover, the mere conclusion or opinion

of a lay witness is not competent summary judgment proof on issues that require

expert testimony. See e.g., Garza v. Levin, 769 S.W.2d 644, 646 (Tex. App. –

Corpus Christi 1989, writ denied) (medical conclusions of lay witness not

competent evidence for purpose of controverting expert opinion evidence).

Plaintiffs’ affidavit testimony does not qualify as probative evidence of causation.

It is merely speculation and conjecture of lay persons. Emmett Properties, 167

S.W.3d at 373.

The trial court acted well within its discretion in sustaining PXP’s

objections. Numerous wells and facilities surround Plaintiffs’ property. The

closest PXP facility to Plaintiffs’ property is the Drip Station, which is 1.46 miles

away. Plaintiffs’ lay opinions regarding the Drip Station are wholly conclusory

and without any basis in fact. As a result, the Court properly sustained PXP’s

objections and struck the referenced portions of Plaintiffs’ affidavits.

D. The trial court properly sustained PXP’s objections to the
affidavit of Sharon Wilson.

Plaintiffs also offered the affidavit of Sharon Wilson as purported summary

judgment evidence of causation. CR 517-18. Ms. Wilson is not an expert and

does not qualify as an expert to opine whether hydrocarbons emanated from a PXP

28

2485742.1
facility, migrated to Plaintiffs’ property, and caused Plaintiffs’ alleged injuries.

Accordingly, PXP objected pursuant to Texas Rule of Evidence 701, and requested

Ms. Wilson’s testimony be struck. CR 1035-36; 1073-74.

Ms. Wilson’s affidavit states she took an air sample near PXP’s Drip Station

(1.46 miles from Plaintiffs’ property) with a Summa Canister. CR 517-18. She

did not explain or describe anything more, including what a Summa Canister is or

the methodology for taking or analyzing the alleged air sample. Id. Ms. Wilson

then attempted to bridge the logical abyss to show hydrocarbons from the Drip

Station migrated 1.46 miles to Plaintiffs’ home by stating “6 of the [alleged 13]

hazardous substances found at the PXP [D]rip [S]tation were also found on the

Cerny property” after Ms. Wilson had placed a “12-hour canister” outside the

Plaintiffs’ home. Id. Ms. Wilson did not, however, purport to opine that the

hydrocarbons allegedly present at the Cernys’ home were from the Drip Station.

Id.

Mr. Wilson’s affidavit is nothing more than rank speculation by an

unqualified lay witness. Experts must be qualified, and the party offering an

expert’s opinion has the burden to show such qualifications. ITT Commercial Fin.

Corp. v. Riehn, 796 S.W.2d 248, 250 (Tex. App.—Dallas 1990, no writ); see also

E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995)

(setting forth trial court’s gatekeeping function with regard to experts). Plaintiffs
29

2485742.1
failed to satisfy this burden, and the trial court acted within its discretion to strike

Ms. Wilson’s affidavit.

Moreover, even if Ms. Wilson’s affidavit should not have been struck and

she was somehow indeed qualified to render an expert opinion on the migration of

hydrocarbons over several miles or the cause of Plaintiffs’ injuries, her opinion

does nothing of the sort. An expert’s testimony must be both relevant to the issues

and based on a reliable foundation. Robinson, 923 S.W.2d at 556. An expert’s

failure to rule out other causes of the damage renders her opinion little more than

speculation, and therefore, unreliable and constituting no-evidence. See Merrell

Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex.1997) (“[I]f there are

other plausible causes of the injury or condition that could be negated, the plaintiff

must offer evidence excluding those causes with reasonable certainty.”); Robinson,

923 S.W.2d at 559 (“An expert who is trying to find a cause of something should

carefully consider alternative causes.”); Hess v. McLean Feedyard, Inc., 59 S.W.3d

679, 687 (Tex. App. – Amarillo 2000, pet. denied) (“[A]n expert should carefully

consider and rule out alternative causes, and the failure to rule out other causes

results in speculation and conjecture and amounts to no evidence of causation.”);

Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 934 (Tex. App. – Texarkana 1997,

pet. denied) (analyzing expert testimony under Robinson factors and concluding

testimony unreliable when experts failed to exclude other potential causes).
30

2485742.1
 Ms. Wilson’s averment that her air sampling at Plaintiffs’ home revealed six

out of the same thirteen “hazardous substances” also found at PXP’s Drip Station

is not competent evidence of causation in support of Plaintiffs’ claims. See

Emmett Properties, 167 S.W.3d at 373-74 (quoting Mitchell Energy Corp. v.

Bartlett, 958 S.W.2d 430, 446 (Tex. App. – Fort Worth 1997, pet denied) (“An

expert who is trying to find the cause of something should carefully consider and

rule out alternative causes. The expert’s failure to rule out other causes of the

presence of hydrogen sulfide in [plaintiffs’] water renders his opinion little more

than speculation. Mere guess or conjecture is not probative evidence.”); see also

Martinez, 40 S.W.3d at 595 (wherein the San Antonio Court of Appeals held the

plaintiffs’ expert testimony constituted no evidence the defendant caused the

plaintiffs’ injuries because the expert failed to rule out alternative sources of lead

contamination in arriving at his conclusion); Weiss v. Mechanical Associated

Servs., Inc., 989 S.W.2d 120, 125–26 (Tex. App. – San Antonio 1999, pet. denied)

(holding expert testimony properly struck when experts were unable to rule out

other potential causes of the plaintiff’s illness with reasonable certainty). The trial

court accordingly acted within its discretion by striking Ms. Wilson’s conclusory

lay opinion.

E. The trial court properly sustained PXP’s objections to Plaintiffs’
improper attempt to submit unsworn expert reports as summary
judgment evidence.
31

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 Plaintiffs submitted as purported summary judgment evidence unsworn

copies of reports prepared by their various experts. CR 532-93; 595-623; 630-60;

662-92; 694-718; 724-30; and 732-35. These reports were not sworn, verified

under oath, nor contained in affidavit form similar to the properly sworn Affidavit

of Dr. J.D. Britton, M.P.H. (CR 375-84) submitted by PXP as Exhibit 4 to its

motion for summary judgment. Accordingly, PXP objected to the unsworn reports

of Plaintiffs’ experts as inadmissible hearsay under Texas Rule of Evidence 802.

CR 1036-39; 1073-74.

An expert witness’s unsworn statement is mere hearsay and is not competent

summary judgment evidence. See Easter v. Mutual of Omaha Ins. Co., 535 S.W.2d

700, 703 (Tex. App. – El Paso 1976, no writ) (holding that “the unsworn report of

the doctor was merely hearsay and incompetent [summary judgment evidence]”).

Documents submitted as summary judgment proof must be sworn to or certified.

Llopa, Inc. v. Nagel, 956 S.W.2d 82, 87 (Tex. App. – San Antonio 1997, pet.

denied) (citing TEX. R. CIV. P. 166a(f)). “Unauthenticated or unsworn documents,

or documents not supported by any affidavit, are not entitled to consideration as

summary judgment evidence.” Id. Accordingly, the trial court acted within its

discretion and properly excluded the unsworn reports of Plaintiffs’ experts on

hearsay grounds.

32

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 ADOPTION OF MARATHON’S BRIEF

Pursuant to Texas Rule of Appellate Procedure 9.7, PXP hereby adopts by

reference the entirety of the Brief of Appellees Marathon Oil Corporation and

Marathon Oil EF LLC filed on February 23, 2015.

PRAYER

PXP respectfully requests that the Court affirm the final summary judgment

in its favor in all respects. PXP further requests all relief to which it may be justly

entitled.

Respectfully submitted,

GRAY REED & McGRAW, P.C.

By /s/ James J. Ormiston
James J. Ormiston
Texas Bar No. 15307500
jormiston@grayreed.com
Michael A. Ackal, III
Texas Bar No. 24045367
mackal@grayreed.com
1300 Post Oak Blvd.
Suite 2000
Houston, TX 77056
(713) 986-7000
(713) 986-7100 (Fax)

ATTORNEYS FOR APPELLEE
PLAINS EXPLORATION &
PRODUCTION COMPANY

33

2485742.1
 CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using
Microsoft Word 2013 and contains 7,299 words, as determined by the computer
software’s word-count function, excluding the sections of the document listed in
Texas Rule of Appellate Procedure 9.4(i)(1).

/s/ James J. Ormiston
James J. Ormiston

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was
duly furnished to the following counsel of record via certified mail, return receipt
requested on this 23rd day of February, 2015:

Tomas Ramirez, III
217 W. Hondo Avenue, Suite 200
Devine, Texas 78016

David D. Towler
P.O. Box 569
410 Collins
San Diego, Texas 78384

William K. Kroger
Macey Reasoner Stokes
Baker Botts L.L.P.
One Shell Plaza
910 Louisiana Street
Houston, Texas 77002-4995

Ricardo G. Cedillo
Les J. Streiber, III
Davis, Cedillo & Mendoza, Inc.
755 E. Mulberry, Suite 500
San Antonio, Texas 78212
/s/ James J. Ormiston
James J. Ormiston
34

2485742.1