Appeals Court Requires a Medical Expert to Prove Discomfort Causation

The San Antonio Court of Appeals recently affirmed summary judgment for Marathon Oil Corporation in their defense against a case brought by Michael and Myra Cerny.  The underlying litigation alleged that emissions from Marathon plants caused the Cernys various injuries and property damage. However, the Cernys presented no expert medical testimony on the causation of their injuries, instead asserting the injuries claimed were ascertainable by common knowledge available to a lay person. The trial court did not allow defendants’ “discomfort” damages claim to proceed to trial without reliable expert testimony on medical causation, as required in Merrell Dow v. Havner and others.

The appellate court agreed, stating that plaintiffs who seek relief for injuries of any nature associated with a toxic substance must include

  1. epidemiological studies demonstrating a doubling of the risk,
  2. proof that the plaintiff is similar to the subjects in those studies, and
  3. expert testimony excluding other alternative causes.

This case supports that in order to prevail, plaintiffs must offer expert testimony regardless of whether they call their injuries a “disease” or a “discomfort.”  Medical and other experts are freely searchable using expert witness search tools.  



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