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Lowery v. Enbridge Energy Limited Partnership

Supreme Court of Michigan

July 25, 2017

CHANCE LOWERY, Plaintiff-Appellee,

         Calhoun CC: 2011-003414-NO

          Stephen J. Markman, Chief Justice Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein, Joan L. Larsen, Kurtis T. Wilder, Justices.


         On order of the Court, leave to appeal having been granted, and the briefs and oral arguments of the parties having been considered by the Court, we REVERSE the April 2, 2015 judgment of the Court of Appeals and REINSTATE the November 8, 2013 order of the Calhoun Circuit Court granting the defendants' motion for summary disposition. A plaintiff may show "cause in fact" through circumstantial evidence and "reasonable inferences" therefrom, but not through "mere speculation" or "conjecture, " Skinner v Square D Co, 445 Mich. 153, 164 (1994), such as reasoning post hoc ergo propter hoc, see Genesee Merchants Bank & Trust Co v Payne, 381 Mich. 234, 248 (1968) (opinion by Kelly, J.) ("But fact-finders, be they jury or court, may not indulge in conjecture. They are constrained to draw reasonable inferences from established facts. Reasoning 'post hoc ergo propter hoc' does not meet this test.") (citation omitted). The plaintiff's expert opined that the defendants' oil spill was the cause in fact of the plaintiff's injury, reasoning that the plaintiff "wasn't having the problems before [the oil spill] and he was having the problems afterwards." Contrary to the Court of Appeals conclusion that the plaintiff's evidence reflects a "logical sequence of cause and effect, " we conclude that the plaintiff's evidence reflects the logical fallacy of post hoc reasoning. Cf. West v Gen Motors Corp, 469 Mich. 177, 186 n 12 (2003) ("Relying merely on a temporal relationship is a form of engaging in the logical fallacy of post hoc ergo propter hoc (after this, therefore in consequence of this) reasoning.") (quotation marks omitted). We, therefore, conclude that the plaintiff has failed to show a genuine dispute of material fact as to causation.

         We do not retain jurisdiction.

          Markman, C.J. (concurring).

         I concur in this Court's decision to reverse the judgment of the Court of Appeals and write separately to provide counsel to the bench and bar concerning toxic tort litigation. This Court granted leave to appeal to consider: (a) the role of expert testimony in toxic tort cases; (b) the applicability of the general-and-specific-causation framework in toxic tort cases; and (c) the sufficiency of plaintiff's evidence of causation in the instant toxic tort case. Lowery v Enbridge Energy Ltd Partnership, 499 Mich. 886 (2016). The importance of these issues is evinced, in part, by the fact that of the 54 cases heard by this Court during the present term, only 13 involved, as did this case, full grants. Today, the Court does not address these issues but instead resolves this case in an order of reversal. Uncertainty continues to characterize our toxic tort jurisprudence despite the fact that the general-and-specific-causation framework has proven uncontroversial in contemporary toxic tort law outside Michigan. Bernstein, Getting to Causation in Toxic Tort Cases, 74 Brook L Rev 51, 52 (2008) ("American courts have reached a broad consensus on what a plaintiff must show to prove causation in a toxic tort case. First, a plaintiff must show that the substance in question is capable of causing the injury in question. This is known as 'general causation.' Second, a plaintiff must show that this substance caused his injury. This is known as 'specific causation.' ") (citations omitted). I write separately only to provide some semblance of guidance to litigants in this and future cases-- to those pursuing and those defending toxic tort claims-- as well as similar guidance to the lower courts of our state in presiding over and in reviewing these claims. Such guidance is critical because in Michigan there is a paucity of law concerning toxic torts, much of what law exists is confusing and contradictory, and all this is occurring at a time when it appears that toxic tort litigation is on the upturn here as in other jurisdictions. I respectfully offer the following analysis to better clarify our toxic tort jurisprudence.

         * * *

         First, I would clarify that Michigan's long-held general rules regarding the necessity of expert testimony apply to toxic torts, i.e., expert testimony on causation is necessary in a toxic tort case when the legal proposition is beyond the common knowledge of an ordinary juror. Second, I agree with the vast majority of other jurisdictions that the general-and-specific-causation framework may be utilized to analyze the cause-in-fact element of a toxic tort claim. At a minimum, this framework should apply when a plaintiff seeks to prove factual causation employing group-based statistical evidence. In this case, plaintiff submitted such evidence to prove cause in fact. Accordingly, applying the framework, I would hold that plaintiff failed to present adequate evidence of cause in fact, specifically evidence establishing either general or specific causation. Therefore, I concur with the Court's reversal of the judgment of the Court of Appeals and remand to the trial court for reinstatement of its order granting summary disposition in defendants' favor.

         A review of the facts that led to this litigation is helpful to understanding my analysis that follows. This case concerns a large and severe oil spill into a Michigan woodland and river. On July 26, 2010, a pipeline belonging to defendants, Enbridge

         Energy Limited Partnership and Enbridge Energy Partners, LP, ruptured and released 840, 000 gallons of crude oil into a woodland area. The oil eventually migrated into Talmadge Creek and the Kalamazoo River and further spread nearly 40 miles throughout Calhoun and Kalamazoo counties. The federal Environmental Protection Agency (EPA) eventually intervened, ordering a cleanup and conducting air monitoring and sampling to measure the level of volatile organic compounds (VOCs) in the air.[1] A voluntary evacuation was issued for the immediate geographic area of the spill.

         Plaintiff, Chance Lowery, lived roughly 250 feet from the banks of the Kalamazoo River and approximately 11 to 13 miles downstream from the spill's source. He claimed to have smelled chemicals shortly after the spill and to have become sick as a result--coughing and vomiting for several days, and then proceeding to the hospital.[2] A scan performed at the hospital indicated that plaintiff had a stomach hemorrhage. Dr. John Koziarski, a general and vascular surgeon who is board certified in general surgery and vein diseases, performed a successful operation to repair the hemorrhage, which revealed that "a short gastric vessel midway down the stomach . . . had avulsed off of the spleen."

         On the basis of these injuries and damage to his property, plaintiff filed a complaint alleging defendants' negligence. Regarding causation, the complaint alleged that plaintiff was exposed to "hazardous substances" that constituted "a proximate cause" of plaintiff's injuries. Those injuries included "nausea, a severe cough and violent vomiting, which caused a rupture of his short gastric artery, which required subsequent surgical repair and resulted in a disfiguring prominent surgical scar." Expert testimony on the matter of causation[3] consisted of deposition testimony by the treating physician, Dr. Koziarski, and deposition testimony and a report from Dr. Jerry Nosanchuk, a general physician who is board certified in family medicine. The former testified that plaintiff stated that he had taken Vicodin for a migraine, began vomiting, and then developed severe abdominal pain. Dr. Koziarski testified that Vicodin could cause vomiting but that he had no medical opinion whether Vicodin was what specifically caused plaintiff's vomiting. He also had no opinion concerning whether plaintiff's anti-depression medication, Lamictal, could also cause migraines. Plaintiff never indicated to Dr. Koziarski that fumes wafting from the Kalamazoo River had caused or contributed to his vomiting or his headaches. Dr. Koziarski concluded that he could not opine as to whether plaintiff had exposure to the fumes or whether that exposure accounted for the "rupture or avulsion of the gastric artery[.]" He also could not determine the avulsion's medical cause.

         Given that Dr. Koziarski did not opine as to whether the fumes caused plaintiff's condition, expert testimony on causation before the trial court was limited to Dr. Nosanchuk's testimony. He reviewed plaintiff's hospital records, a Michigan

         Department of Community Health document about the spill, a newspaper report concerning the spill, plaintiff's deposition testimony as well as his interrogatory answers, and photographs of plaintiff's backyard displaying its proximity to the river. He did not physically examine plaintiff. Dr. Nosanchuk was "of the opinion that the fumes from the oil spill caused [plaintiff] to have the migraine headaches, extreme coughing and nausea as well as vomiting. Ultimately, these problems caused a tear of the short gastric artery resulting in hemorrhage within the [stomach]."

         Plaintiff also presented deposition testimony from his roommate, a neighbor, and a friend regarding the noticeable smell[4] near and within his apartment as well as information regarding VOCs exposure from the Centers for Disease Control and Prevention (CDC).[5] After discovery, defendants moved for partial summary disposition under MCR 2.116(C)(10). Following arguments, the trial court granted defendants' motion for summary disposition, limited only to plaintiff's ailments beyond vomiting and headaches. The court determined that there was nothing to link the cause of the ruptured artery to the oil spill. In response, plaintiff's counsel stated that he would rather the court grant summary disposition in its entirety because this "whole case is all about the surgery" and plaintiff would prefer to appeal the ruling immediately. The trial court concurred, and an order was entered by the court affirming its ruling on the record.

         In a split opinion, the Court of Appeals reversed the grant of summary disposition and remanded for further proceedings. Lowery v Enbridge Energy Ltd Partnership, unpublished per curiam opinion of the Court of Appeals, issued April 2, 2015 (Docket No. 319199), p 1. The majority held that expert testimony showing that the toxin, VOCs, was capable of causing the injuries alleged and that it actually did cause such injuries was not required in light of the Court's earlier decision in Genna v Jackson, 286 Mich.App. 413 (2009). Lowery, unpub op at 2-3. The Court found it sufficient that the circumstantial evidence plaintiff had presented established "a strong enough logical sequence of cause and effect for a jury to reasonably conclude that plaintiff's exposure to oil fumes caused his vomiting, which ultimately caused his short gastric artery to rupture." Id. at 3. In dissent, Judge Jansen would have affirmed the trial court's grant of summary disposition. She reasoned that "[p]laintiff's theory of causation was attenuated" and that a jury comprised of lay people would be unable to determine whether the oil fumes could have caused vomiting and the resulting arterial tear absent the aid of expert testimony. Id. at 1 (Jansen, J., dissenting). She further noted that Dr. Nosanchuk was unqualified to give such testimony and therefore that the jury was left on its own to speculate concerning the issue of causation. Id.

         Defendants subsequently filed an application seeking leave to appeal in this Court, and we granted its application, requesting that the parties address "(1) whether the plaintiff in this toxic tort case sufficiently established causation to avoid summary disposition under MCR 2.116(C)(10); and (2) whether the plaintiff was required to present expert witness testimony regarding general and specific causation." Lowery, 499 Mich. 886.

         I. ANALYSIS

         In a typical tort claim grounded in negligence, plaintiffs "must prove (1) that defendant owed them a duty of care, (2) that defendant breached that duty, (3) that plaintiffs were injured, and (4) that defendant's breach caused plaintiffs' injuries." Henry v Dow Chemical Co, 473 Mich. 63, 71-72 (2005). "Proof of causation requires both cause in fact and legal, or proximate, cause." Haliw v Sterling Heights, 464 Mich. 297, 310 (2001). "[L]egal cause or 'proximate cause' normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences." Skinner v Square D Co, 445 Mich. 153, 163 (1994). "The cause in fact element generally requires showing that 'but for' the defendant's actions, the plaintiff's injury would not have occurred." Id. A plaintiff must demonstrate as a threshold matter that there is "more than a mere possibility" that the defendant caused the injury, id. at 166 (citation and quotation marks omitted), and must then present "substantial evidence" from which a jury could conclude that, more likely than not, "but for the defendant's conduct, the plaintiff's injuries would not have occurred, " Weymers v Khera, 454 Mich. 639, 647-648 (1997) (citation and quotation marks omitted). That substantial evidence "must exclude other reasonable hypotheses with a fair amount of certainty, " Skinner, 445 Mich. at 166 (citation and quotation marks omitted), because a jury cannot be permitted to merely guess about causation, id. at 174.

          This Court has defined "an ordinary 'toxic tort' cause of action" as one in which "a plaintiff alleges he has developed a disease [or other injury] because of exposure to a toxic substance negligently released by the defendant." Henry, 473 Mich. at 67. Toxic torts are thus a specific type of negligence claim. In order to establish a claim under a toxic tort theory, a plaintiff must prove an injury arising from exposure to a toxic substance. Id. at 72-73 (holding that plaintiffs could not maintain a toxic tort claim to recover damages for the cost of medical monitoring for potential future injuries), citing Larson v Johns-Manville Sales Corp, 427 Mich. 301 (1986). This Court has not yet addressed whether the causation element of a toxic tort claim differs in any meaningful way from that of a traditional negligence claim. Indeed this case implicates several issues regarding causation in toxic tort cases in Michigan: namely, whether the cause-in-fact element of a toxic tort claim includes separate analyses of general and specific causation; if so, what evidence a plaintiff must provide on those issues to survive a summary disposition motion; and whether such evidence must include expert testimony. To address these questions, I begin with an analysis of the unique challenges posed by the cause-in-fact element of a toxic tort claim, i.e., those challenges that arise in addressing the general-and-specific-causation inquiries subsumed within.

         A. CAUSE IN FACT

         The great majority of jurisdictions have bifurcated the cause-in-fact element in toxic tort cases into separate and distinctive analyses of "general causation" and "specific causation."[6] This analytical approach for determining causation in toxic tort cases also finds support in the secondary literature.[7] Therefore, application of the general-and-specific-causation framework in toxic tort cases has been far from untested. The Restatement (Third) of Torts provides a lengthy discussion of the bifurcated general-and-specific-causation framework in its comments, noting in particular that

[c]ases involving toxic substances often pose difficult problems of proof of factual causation. . . . Sometimes it is difficult to prove which defendant was connected to the toxic agent or whether an adequate warning would have prevented the plaintiff's harm. The special problem in these cases, however, is proving the connection between a substance and development of a specific disease. [Restatement Torts, 3d, Liability for Physical and Emotional Harm, § 28, comment c, p 402 (citations omitted).]

         After noting that most causation issues in this context are resolved under the "but for" standard of factual causation, the Restatement provides that when a plaintiff presents "group-based statistical evidence" concerning a toxin, a plaintiff must prove that "the substance must be capable of causing the disease ('general causation') and that the substance must have caused the plaintiff's disease ('specific causation')." Id. at 404.

         This is not a novel concept. General causation is implicit in all negligence claims, but in negligence claims that do not involve toxic torts, the plaintiff typically does not need to present separate proof of each type of causation because the relationship between general and specific causation is sufficiently direct and straightforward such that both types of causation are effectively proven together. By analogy, imagine a simple negligence claim in which the defendant drove his car over the plaintiff's foot, breaking it. Evidence proving that the car broke the plaintiff's foot practically proves both the "general" causation requirement of proof (that the car was capable of causing the injury) and the "specific" causation requirement (that the car did in fact break the foot). In other words, in a typical negligence claim, the same evidence will often prove that exposure to the harm produced by the defendant's negligence could and did cause the injury in dispute. See Restatement, § 28, comment c, p 402 ("In most traumatic-injury cases, the plaintiff can prove the causal role of the defendant's tortious conduct by observation, based upon reasonable inferences drawn from everyday experience and a close temporal and spatial connection between that conduct and the harm. Often, ...

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