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 ...