Lowery v. Enbridge Energy Ltd. P'ship

500 Mich. 1034

898 N.W.2d 906 (Mem)

Chance LOWERY, Plaintiff–Appellee,

v.ENBRIDGE ENERGY LIMITED PARTNERSHIP and Enbridge Energy Partners LP, Defendants–Appellants.

SC: 151600

COA: 319199

Supreme Court of Michigan.

July 25, 2017

Order

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.

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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 causation³ 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 smell⁴ 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...