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American Midstream Gas Solutions, LP v. Hall

Court of Appeals of Texas, Twelfth District, Tyler

September 27, 2019

AMERICAN MIDSTREAM GAS SOLUTIONS, LP, APPELLANT
v.
THOMAS EUGENE HALL, JR. AND HEATHER GALE HALL, APPELLEES

          APPEAL FROM THE 4TH JUDICIAL DISTRICT COURT RUSK COUNTY, TEXAS (Tr. Ct. No. 2017-024)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          James T. Worthen, Chief Justice.

         American Midstream Gas Solutions, LP (AMGS), appeals the trial court's judgment in favor of Thomas Eugene Hall, Jr. and Heather Gale Hall. In two issues, AMGS contends the trial court erred in admitting expert testimony and that the evidence is insufficient to support the jury verdict. We reverse and render judgment that the Halls take nothing.

         Background

         The Halls own a parcel of land in Rusk County, Texas, on which they operate a cattle ranch. Running beneath the surface of their land is a natural gas pipeline operated by AMGS. The pipeline is an old, low yield two-and-a-half inch gathering vacuum line used to pump natural gas at low pressure. It is undisputed that this pipeline leaked on three occasions in 2015 and 2016.

         The first leak occurred in October 2015. It was repaired and the Halls do not allege that this leak caused the death of any of their cattle. The second leak occurred in March or April 2016 at a different location from the first leak. Thomas's brother Paul, who assists them in their cattle operation, discovered the leak while the Halls were out of town. The leak occurred in a low-lying drainage slough area of the property. Paul observed AMGS's repair of the second leak, which he described as a clamp that he thought would fail. Thomas returned approximately two weeks later and did not see any problems with the leak. No one reported the leak to the Texas Railroad Commission. Of the approximately 110 cattle owned by the Halls, 87 of them had access to the area where the second leak occurred.

         In late July 2016, several months after the second leak, the Halls discovered the death of one of their cows that appeared to be healthy and pregnant. They buried the cow. Several days later, three more cows died, and additional cows died through September and early October. A total of twenty-two cows died during this period, including several that aborted or gave birth to stillborn calves, or who died while giving birth. At least twelve calves died, although the exact number is unknown. Thomas observed that some of the cows looked like they had just "come out of a show ring, and some of them just went to losing weight just drastically" at the time of their death.

         The third leak occurred in late December 2016. All of the cows that died, except for one, did so prior to this leak. The remaining cow showed signs of illness in 2016 and was eventually euthanized in early 2017. The Halls reported this leak to the Texas Railroad Commission. Consequently, there was significant photographic, documentary, and testimonial evidence concerning the investigation and remediation of the third leak that was later presented at the ensuing trial. However, Thomas admitted that the cattle already died prior to the third leak and that this leak did not kill any of his cattle.

         The Halls hired Dr. David Corley, their veterinarian, to investigate the cattle's cause of death. Thomas believed Dr. Corley first visited the property in August, but Dr. Corley's records reflect, and he agreed, that his first visit was in September 2016, after approximately twenty of the cattle had already died. Accordingly, Dr. Corley did not examine any of those cows.

         Dr. Corley observed the remaining cows and noted that a few of them were thin, but most were not. Dr. Corley took water samples from the pipeline leak location and sampled plants for identification. He sent the samples to the Texas A&M Veterinary Medical Diagnostic Laboratory for testing, a lab he trusts and upon which he relies. The test results showed that the plants were not poisonous to the cows, and that the water sampled from the pipeline leak location was free from any petroleum products and suitable for livestock consumption. He also examined, and was unable to find anything wrong with, the Halls' herd management practices, vaccination practices, the cattle's feed and hay, and looked for objects left in the field which might cause cattle to sicken such as fertilizer or old car batteries. Dr. Corley also ruled out lightning strikes and disease.

         However, a few days later, Dr. Corley's partner visited the property and took tissue samples from a dead calf showing that it had "intra-alveolar meconium, moderate (meconium aspiration syndrome)" in its lungs, and that the potential causes of death were meconium syndrome, fetal hypoxia, and fetal stress due to dystocia, fetal disease, or placental insufficiency, none of which are related to the cow's ingestion of petroleum.

         Dr. Corley visited the property again in February 2017 to examine the remaining sick cow, which he euthanized and ordered a necropsy along with a test designed to detect petroleum in the cow's rumen. The results did not detect ingestion of any petroleum product. Dr. Corley stated that this did not surprise him, because that result also occurred in other cases in which he knew the cow ingested petroleum. However, the test result showed the presence of a worm parasite Trichostrongyle. A normal test shows an amount of five or less. This cow had an elevated result of 41.8. Dr. Corley noted that there are a variety of causes of worms, but they can spread throughout a herd, and can cause a cow to become anemic and die or to abort a fetus, and can also cause fetal hypoxia. The test reports also showed that the cow had bacteremia, which is bacteria in the cow's bloodstream. It causes inflammation of the heart, changes to the spleen and liver, and is not a normal finding in a healthy cow. Dr. Corley noted that bacteremia cannot be caused by a cow ingesting petroleum.

         Despite these findings, Dr. Corley was unable to determine any medical cause for the sudden death of the cattle. Based on the timing and number of deaths, the fact that the only cattle to die had access to the area where the pipeline leak occurred, and the lack of any other cause, Dr. Corley concluded that it was more likely than not that they died from their exposure to the materials spilled from the pipeline leak. Specifically, he believed that the gas leak was his "strongest suspicion" as to the cause, and that he believed the cause was "something in the water" after ruling out the other possibilities.

         Accordingly, the Halls filed suit against AMGS, alleging that its negligence in failing to properly inspect, maintain, and repair its pipeline proximately caused the death of their cattle, and sought to recover damages for their market value prior to death. AMGS filed a motion to exclude Dr. Corley's testimony alleging that it was speculative and unreliable on causation. After a hearing, the trial court denied the motion.

         The matter proceeded to a jury trial, whereupon AMGS renewed its objections to Dr. Corley's testimony, which were denied by the trial court. AMGS also moved for a mistrial and directed verdict based on the trial court's admission of Dr. Corley's testimony after the Halls rested, which were also denied. During the trial, AMGS offered evidence from its own expert, Dr. Tam Garland. Dr. Garland is a veterinary toxicologist and was the head of the toxicology section of the Texas A&M Veterinary Medical Diagnostic Laboratory. Dr. Garland testified that the reports and lab results she reviewed in this case presented no indications that the cattle had lesions in their lungs consistent with petroleum ingestion or other symptoms suggesting that the cattle ingested petroleum. The jury found that AMGS was negligent and that its actions proximately caused the death of the Halls' cattle. The jury awarded $89, 700.00 in damages to the Halls. AMGS filed this appeal.

         Partial Record

         When AMGS perfected its appeal and requested the reporter's record, it requested all the transcripts from the trial, but designated only some of the exhibits to be included within the record. The Halls argue in their brief that we should apply the presumption that the omitted portions of the record are relevant and support the trial court's judgment in the absence of a statement of appellate issues by AMGS. See Tex. R. App. P. 34.6(c)(1), (4); Garcia v. Sasson, 516 S.W.3d 585, 590-91 (Tex.App.-Houston [1st Dist.] 2017, no pet.). Accordingly, their argument continues, we need not consider the merits of this appeal. We disagree. Prior to submission of this appeal, AMGS moved for leave to supplement the record, which we granted. See Tex. R. App. P. 34.6(d). The court reporter supplemented the record to contain the missing exhibits admitted at trial as requested by AMGS. Therefore, the appellate record is complete, the presumption does not apply, and we may consider the merits of the appeal.

         Expert Testimony ...


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