City of San Antonio v. Charles Pollock and Tracy Pollock, Individually and as Next Friends of Sarah Jane Pollock, a Minor Child

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-1118

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City of San Antonio,

Petitioner,

v.

Charles Pollock and Tracy

Pollock, Individually and as next Friends of Sarah Jane Pollock, a Minor Child,

Respondents

════════════════════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Fourth District of

Texas

════════════════════════════════════════════════════

Argued October 18,

2006

Justice Medina , joined by

Justice O’Neill , dissenting.

The Pollocks claim that Sarah’s leukemia was

caused by her in utero exposure to benzene,

which had migrated from the West

Avenue landfill into their home. The claim rests on

the testimony of two expert witnesses: Dr. Mahendra

Patel, a pediatric oncologist and Sarah Pollock’s treating physician, and Daniel

Kraft, a petroleum engineer with extensive experience in the design,

construction, and post-closure maintenance of landfills. Kraft gave his opinion

about the amount of benzene in the Pollock home, and how it got there. Dr. Patel

testified that Sarah’s mother’s exposure to benzene during pregnancy caused

chromosomal damage, and Sarah’s acute lymphoblastic

leukemia (ALL). Dr. Patel’s opinion was based on a review of the scientific

literature on the subject, his differential diagnosis, his treatment of Sarah,

and Sarah’s chromosomal injury that he described as a unique fingerprint of

benzene exposure and damage in utero .

The City concedes that methane and benzene migrated from its landfill

into the surrounding community. The City also does not contest the underlying

science relied on by Dr. Patel or the dangers of exposure to benzene, a known

carcinogen. Instead, the City contends that analytical gaps in the testimony of

both experts render their respective opinions conclusory . The Court eventually agrees after delving into

the underlying science. The Court analyzes the relationship between methane and

benzene, the respective physical properties of both gasses, benzene’s

relationship to certain types of leukemia and chromosomal damage, and the

respective testimony of both experts. Most significantly, however, the Court

concludes that the City did not have to object or point out these analytical

gaps in the trial court to preserve error. I respectfully disagree.

As a general rule, an objection is required to preserve error regarding

the admission of evidence, and expert testimony is no exception. See

Tex. R. App. P . 33.1(a); Tex. R. Evid.

103(a )( 1); Osterberg v. Peca, 12 S.W.3d 31, 55

(Tex. 2000).

Without an objection, a trial court simply cannot be expected to fulfill its

role as gatekeeper. Nor can an appellate court assume this role, particularly

after the witnesses have testified, been dismissed, and the record closed.

Nevertheless, the Court here assumes the role of gatekeeper ex post

facto , allowing the City to complain about analytical gaps for the first

time on appeal. Because the City did not object to the reliability of either

expert witness in the trial court or complain about the analytical gaps it now

details in this appeal, I would hold that the complaint has been waived.

I

I agree, however, that analytical gaps can undermine the reliability of

an expert’s opinion. The Supreme Court said as much in General Electric Co.

v. Joiner , 522 U.S. 136 (1997), observing that courts do not have to focus

entirely on the reliability of the underlying methodology or technique as in

Daubert , [1] but are free to test reliability by

analyzing whether the expert’s opinion fits the facts of the case:

[C] onclusions and methodology are not entirely distinct from

one another. Trained experts commonly extrapolate from existing data. But

nothing in either Daubert or the Federal Rules

of Evidence requires a district court to admit opinion evidence . . . connected

to existing data only by the ipse dixit of the

expert. A court may conclude that there is simply too great an analytical gap

between the data and the opinion proffered.

Id. at 146 ; see

also Richard O. Falk & Robert O. Hoffman, Beyond Daubert and Robinson: Avoiding and Exploiting “Analytical

Gaps” in Expert Testimony , 33 The

Advocate 71, 72 (Winter 2005). The Supreme Court also has recognized that

the trial court’s role as gatekeeper, like other rulings on the admission of

evidence, is a discretionary decision subject to review only for an abuse of

that discretion. Joiner , 522 U.S. at

142-43 .

This Court soon followed Joiner , concluding in Gammill v. Jack Williams Chevrolet, Inc ., that

an expert’s opinion can be unreliable if there is too great an analytical gap

between the underlying data and the expert’s opinion. [2] 972 S.W.2d 713, 727

(Tex.

1998). We cautioned, however, that the trial court’s job was not to

determine whether an expert’s conclusions were correct, but only whether the

analysis used to reach them was reliable. Id. at 728. We further noted that the trial court’s gatekeeper

decisions in this regard were to be reviewed under the abuse of discretion

standard. Id. at

727.

A trial court, however, cannot abuse its discretion if it is never asked

to exercise it. Thus, to preserve a no-evidence complaint that expert testimony

is unreliable, a party must object in the trial court. See Mar. Overseas

Corp. v. Ellis , 971 S.W.2d 402, 409-10 (Tex. 1998) (objection made after jury verdict was too

late); see also Gen. Motors Corp. v. Iracheta ,

161 S.W.3d 462, 471 (Tex. 2005) (objection must

be made when deficiency becomes apparent) ; Kerr-McGee Corp. v. Helton ,

133 S.W.3d 245, 252 (Tex. 2004) (motion to strike made immediately

after cross-examination held timely). But an objection is not invariably

required; there is a limited exception to the general rule.

When the expert’s testimony is speculative or conclusory on its face, a party does not have to object to

its admissibility to complain that the expert’s naked opinion is no evidence.

See Coastal Transp . Co. v. Crown Cent. Petroleum

Corp. , 136 S.W.3d 227, 233 (Tex. 2004) (“ bare

conclusions–even if unobjected to–cannot constitute

probative evidence”). It is obviously important then to distinguish unreliable

expert testimony from conclusory expert testimony

because the former requires a timely objection, while the latter does not. What

then separates the conclusory from the merely

unreliable?

The distinction apparently is the difference between something and

nothing. As the Court recently explained in Arkoma Basin Exploration Co. v.

FMF Assocs. 1990-A, Ltd. , 249 S.W.3d 380, 389 (Tex. 2008): An expert’s

testimony is conclusory if the expert merely gave an

unexplained conclusion or asked the jury to “take my word for it” because of his

status as an expert. Arkoma concluded that an expert’s opinions were not conclusory even though the expert’s foundational data was

not in the record, and it was not entirely clear how the expert had reached his

conclusions. We wrote:

[The

expert’s] testimony could have been a lot clearer; his references to “up here”

and “right there” on slides and posters used at trial often make it hard to tell

what he is talking about. But we cannot say on this record that his opinions

were unreliable or speculative. Nor were they conclusory as a matter of law; [the expert] did not simply

state a conclusion without any explanation, or ask jurors to “take my word for

it.” It is true that without the foundational data in the appellate record, we

cannot confirm that “cash off my runs ... divided by mcf ” yielded the $1.62, $1.41, $1.43, and $1.59 prices he

calculated as the low range for damages. But experts are not required to

introduce such foundational data at trial unless the opposing party or the court

insists.

Id . at

389-90 (footnotes omitted). Arkoma further explained when a party

should object to preserve error:

Texas law

requires an objection to expert testimony before or during trial if the

objection “requires the court to evaluate the underlying methodology, technique,

or foundational data,” but no objection is required if the complaint “is

restricted to the face of the record,” as when the complaint is that an opinion

was speculative or conclusory on its face, or assumed

facts contrary to those on the face of the record.

Id . at 388

(footnote omitted) (citing Coastal Transp . Co.,

136 S.W.3d at 233 ). Thus, an objection is not required to preserve an appellate

complaint about an expert’s naked conclusions, but if the expert purports to

rely on something more than his credentials or reputation, an objection is

necessary. This exception is rarely applied, probably because naked conclusions

ordinarily draw immediate objections.

The exception was applied in Coastal , however. In that case,

Coastal failed to object to the following testimony from a trucking-safety

expert regarding gross negligence:

Q: When

viewed objectively from Coastal's point of view at the

time of the September ‘93 incident, in your opinion, did Coastal's failure to stop using probes that could have

[sensor failure] problems, did that involve a high degree of risk, considering

the probability and magnitude of the potential harm to others?

A: Yes, it

did, very high.

Q: In your

opinion, did Coastal have an actual subjective awareness of the risk involved in

failing to stop using probes that can have [sensor failure] problems?

A: Yes,

again and again.

Q: And in

your opinion, did Coastal nevertheless proceed with conscious indifference to

the rights, safety, or welfare of others?

A: That’s

the only conclusion I can draw.

Id . at

231. Distinguishing a no-evidence reliability complaint from a

no-evidence conclusory complaint, we said that an

expert’s “bare conclusions–even if unobjected to” are

not probative evidence. Id. at

233. We thus drew a “distinction between no evidence challenges to the

reliability of expert testimony in which we evaluate the underlying methodology,

technique or foundational data used by the expert and no evidence challenges to

conclusory or speculative testimony that is

non-probative on its face.” Volkswagen of Am., Inc. v. Ramirez, 159

S.W.3d 897, 910 (Tex. 2004) (citing Coastal Transp . Co., 136 S.W.3d at 233 ). [3] Coastal did not involve a

reliability challenge requiring an objection in the trial court because there

was nothing for the trial court to evaluate; the expert did not purport to use

any methodology, technique, or foundational data but rather merely delivered his

subjective opinion concerning Coastal’s gross

negligence. That is not the present case.

In rendering his opinion, Kraft, the landfill engineer, used a generally

accepted Environmental Protection Agency (“EPA”) landfill air model, [4] testimony regarding odors in the Pollock

home indicative of the presence of organic hydrocarbons, such as benzene, the

City’s gas monitoring records, a physical site inspection, and two decades of

historical geologic records and maps. Because no benzene readings had actually

been taken at the Pollock home, Kraft relied on, among other things, a 1998

benzene reading from a sealed monitoring well known as GMP-9A. This well was in

the landfill 100 feet from the Pollock home and 128 feet underground. Although

the reading at GMP-9A was taken more than four years after Sarah’s alleged in

utero exposure in 1993, Kraft concluded that the

benzene levels in the Pollock home would have been equal to or greater than that

of a sample taken from the well in 1998, that being, 160 ppb (parts per billion)

benzene.

The City argues that Kraft’s opinion is conclusory because he does not explain how the benzene

concentration level in the Pollock home can be the same as that in a sealed

testing well. Although Kraft’s opinions were predicated on various reports and

an EPA landfill gas emissions model, the City maintains that his testimony

contains a fatal “analytical gap” because he failed to account for atmospheric

conditions. This analytical gap, the City argues, renders Kraft’s opinion conclusory .

The complaint, however, goes to Kraft’s methodology or technique in

evaluating the data because he was comparing benzene concentrations not only at

different locations but also at different points in time. Relying on his air

model, Kraft testified that the benzene levels produced by the landfill peaked

in the late seventies and began to diminish thereafter. Thus, benzene levels

would have been higher in 1993 during Sarah’s gestation than in 1998 when the

benzene reading from the monitoring well was taken. Kraft testified to the

following without objection:

Q.

Mr. Kraft, have you done any calculations and projections about the migration of

gas that the – from the West Avenue Landfill to the Pollock home during the

period 1992 to 1994?

A. Yes.

* * *

Q.

Okay. What kind of records did you look at in reaching your opinions?

A.

Field data sheets from methane surveys that were done in the neighborhood

surrounding the landfill, interoffice correspondence with the City of San

Antonio, letters to the City of San Antonio from the TNRCC [Texas National

Resource Conservation Committee] and the Texas Department of Health, records on

geologic data that was collected by City employees, reports that were produced

by the City’s consultants.

* * *

Q.

Do you have an opinion, Mr. Kraft, as to whether the Pollocks were chronically exposed to benzene concentrations

in their home?

A.

Yes, I do have an opinion on that.

Q.

And what is that opinion?

A.

It’s my opinion that they were chronically exposed to landfill gas.

Q.

And did the landfill gas include benzene?

A.

Yes, it did.

Q.

What is your opinion of the range of benzene to which they were exposed? And

please express it in terms of a numerical value.

A.

I believe that they were consistently exposed to benzene concentrations in the

vicinity of 160 parts per billion, or even higher.

Q.

In your report, Mr. Kraft, I believe you said 40 to 160 parts per billion; is

that correct?

A.

That’s correct.

Q.

Why are you now saying it might be higher than 160 parts per billion?

A.

For several reasons.

Q.

And what are those reasons?

A.

Number one would be the gas modeling that I did with the United States

Environmental Protection Agency model, the — you know, the landfill gas

emissions model, which indicates that the amount of benzene produced by the

landfill decreased over time.

Q.

What other reasons, Mr. Kraft?

A.

The analytical results that were collected at GMP-9 in January of 1998, they

also measured the oxygen concentration. Landfill gas – landfill gas samples that

have over 2 percent oxygen indicate that there has been some dilution from

atmospheric air occurring, therefore, the concentrations that were measured in

that sample were likely to be slightly lower than they were in the actual

landfill gas itself, because it was diluted while they were sampling it.

In accordance with the City’s argument, the Court suggests that Kraft

testified that the air in the Pollock’s home was the same as that in the sealed

well, but the above demonstrates this to be an inaccurate representation of his

testimony. Kraft testified that the concentration of gas in the landfill was

likely higher than the samples taken from the well because these samples had

already been diluted with atmospheric air. Thus, the Court assumes the existence

of an analytical gap that may have existed, but also might have been explained

had the City made an appropriate objection.

Next, Dr. Patel, the pediatric oncologist, gave his opinion that Sarah’s

in utero exposure to benzene during the first

trimester caused her ALL. He relied on: (1) his review of the literature, (2)

the matched pattern of abnormalities in Sarah’s chromosomes and the chromosomal

abnormalities in lab-induced carcinogenesis caused by benzene exposure, (3) his

academic background in human genetics, and (4) Kraft’s opinion that Sarah’s

mother was chronically exposed to at least 160 ppb of benzene while Sarah was

in utero . Dr. Patel, moreover, excluded other

plausible factors for Sarah’s ALL, including family history and benzene exposure

from other sources.

While the City acknowledges that Dr. Patel based his opinion, in part, on

his review of certain epidemiological studies, it maintains that Dr. Patel’s

testimony is conclusory because none of these studies

actually support his scientific opinion. In particular, the City argues that

these studies all involve substantially higher exposure levels and, moreover,

fail to find a causative association between benzene exposure and Sarah’s

particular type of leukemia. None of these concerns were brought to the trial

court’s attention, and Dr. Patel testified without objection.

Moreover, Dr. Patel explained that the exposure levels in these studies

were actually less than Sarah’s daily, chronic exposure

during gestation. Dr. Patel explained that the effect of a toxin is based on two

types of exposure, the peak dose exposure and the duration of that exposure.

Taking both into account, the studies report their results as cumulative

exposure over time, often as an annual dosage. Dr. Patel testified that the

Pollocks ’ chronic exposure here would convert to a

much greater annual dosage than those discussed in the studies. Moreover, Dr.

Patel testified that Sarah’s chronic and cumulative in utero benzene exposure as a developing fetus was more

significant than the annual exposure to an adult as described in the studies.

Again, there was no objection to these conclusions.

The underlying epidemiological studies referenced by Dr. Patel reflect a

correlation between exposure to benzene and an increased risk for certain types

of leukemia. For example, the studies in evidence reflected that occupational

benzene exposure in the mother was related to a risk of childhood leukemia,

especially acute nonlymphocytic leukemia (“ANLL”);

that benzene metabolites could cause chromosomal damage in human lymphocytes;

that benzene could cross the placenta and harm a fetus; that exposure to benzene

could cause chromosomal damage similar to that suffered by Sarah; and that

benzene exposure is responsible for at least a portion of childhood cancers of

which ALL is the most common. Dr. Patel further testified about epidemiological

evidence linking benzene to another form of leukemia, acute myeloid leukemia

(“AML”), and quoted from the article “that evidence linking benzene to AML is no

less persuasive than for ALL.” None of this testimony came as a surprise to the

City as Dr. Patel had made these same points in his expert report. [5]

The opinions and testimony of the engineer and doctor here are far

removed from the “bare conclusions” we rejected as conclusory in Coastal . See Coastal Transp . Co. , 136 S.W.3d at 232 (witnesses qualifications

and bare opinion not enough). Neither expert asked the jury to trust their

opinion merely on the basis of their expertise. They instead purported to

analyze the underlying data that they (and apparently the City also) considered

relevant before rendering their respective opinions.

The City’s present complaints about analytical gaps is

nothing more than an unpreserved reliability challenge. Analytical gaps are not

complaints about naked opinions, lacking any basis in the record, but rather are

assertions that specific errors or omissions in an expert’s analysis render his

or her opinion unreliable. See, e.g., Ford Motor Co. v. Ledesma , 242 S.W.3d 32, 38-39 (Tex. 2007); Mack

Trucks, Inc. v. Tamez , 206 S.W.3d 572, 578 (Tex.

2006); Cooper Tire & Rubber Co. v. Mendez , 204 S.W.3d 797, 800 (Tex.

2006); Kerr-McGee Corp. , 133 S.W.3d at 254 ; Exxon Pipeline Co. v.

Zwahr , 88 S.W.3d 623, 629 (Tex. 2002). When the

complaint is that the expert’s analysis of otherwise reliable scientific data is

flawed or that the underlying data itself is questionable, a party must object

to preserve its complaint. See Guadalupe-Blanco River Auth. v.

Kraft , 77 S.W.3d 805, 807 (Tex. 2002) (“a party must object to the

testimony before trial or when it is offered”); see also Gen. Motors

Corp. , 161 S.W.3d at 471 (objection must be made when deficiency becomes

apparent). And the failure to object to expert testimony cannot be cured through

cross-examination or counter-expert testimony. Gen. Motors

Corp. v. Sanchez , 997 S.W.2d 584, 590-91 (Tex. 1999). The Court’s opinion today

unfortunately blurs the distinction between expert testimony that purports to

have a basis in science (unreliable expert testimony) and expert testimony that

lacks any apparent support apart from the expert’s claim to superior knowledge

( conclusory expert testimony). [6] The Court’s decision today is not only

wrong, it is also unfair and may encourage gamesmanship

in the future. Why have a pretrial Robinson hearing or make a reliability

objection during trial and run the risk that the proffering party may fix the

problem, when the expert’s opinion can be picked apart for analytical gaps on

appeal? See Robinson , 923 S.W.2d at 552; see also Ellis, 971

S.W.2d at 411 .

Reliability objections are important; they serve several purposes. First,

they give the proffering party an opportunity to cure any defects, thus,

avoiding trial and appeal by ambush; second, they give the trial court the

opportunity to test and question the expert’s testimony and thereby

intelligently perform its role as gatekeeper; and, third, they result in a more

fully developed record for appellate review under the abuse of discretion

standard. Ellis, 971 S.W.2d at 409, 412 . Because

the City’s complaints here go to reliability, an objection was required. Because

the Court holds otherwise, I dissent.

II

I agree with the Court, however, that there is no evidence to support the

Pollocks ’ takings claim under article I, section 17 of

the Texas Constitution for damage to their property. The Pollock’s theory in

this case was that the City effectively took their property (and caused their

daughter’s illness) by failing to abate the migration of benzene gas from the

landfill after learning of the problem. I agree with the Court that there is no

evidence of the City’s requisite intent for a takings claim here. ___ S.W.3d at

___ (citing City of Dallas v. Jennings , 142 S.W.3d 310, 314 (Tex. 2004)). Nor do I

find any basis for the Pollocks ’ personal injury claim

under this constitutional provision.

Article I, section 17, entitled “Taking, damaging or destroying property

for public use,” does not mention bodily injury or death. Tex. Const . art. I, §

17. It refers only to property, granting the government the legal right

to take property for a public purpose with the corresponding obligation to pay

for it. Thus, the “State, in the exercise of its sovereign power, has the

unquestioned right to take, damage, or destroy private property for public use,”

State v. Hale , 146 S.W.2d 731, 736 (Tex. 1941), but the constitution does not

authorize the state to kill or cause bodily injury when doing so. Government

actions that cause death or personal injury are neither validated, nor

compensated, as the lawful exercise of the State’s eminent domain authority.

Such actions may be subject to other types of lawsuits, but they are not the

basis for liability under the takings clause of our constitution. 1 George D. Braden, et al., The Constitution of

the State of Texas: An Annotated and Comparative

Analysis 63 (1977).

I accordingly agree with the Court that the Pollocks cannot recover under Article I, Section 17 because

there is no evidence that the City intended a taking, and, apart from that, no

basis for the award of personal injury damages even had the City intended to

damage the Pollocks ’ property.

III

Although the Pollocks do not have a takings

claim, they have also asserted a negligence claim, raising the issue of whether

the Tort Claims Act applies here to waive the City’s governmental immunity.

See Tex. Civ. Prac. & Rem. Code §§

101.001-.109. The Tort Claims Act provides a limited waiver

of governmental immunity “when personal injury or death is caused by a ‘use of

tangible personal or real property if the governmental unit would, were it a

private person, be liable to the claimant according to Texas law.’” Texas

A&M Univ. v. Bishop , 156 S.W.3d 580, 583

(Tex. 2005)

(quoting Tex. Civ. Prac. & Rem. Code §

101.021(2)). Neither the court of appeals nor this Court

has considered this issue, albeit for different reasons. The court of appeals,

having concluded that the Texas Constitution authorized the Pollocks ’ claims, found application of the Tort Claims Act

unnecessary. 155 S.W.3d 322, 332-33 . This Court, on the

other hand, renders any waiver under the Act irrelevant by concluding there is

no evidence that the City’s negligence caused Sarah’s leukemia. Because I

disagree with both conclusions, I turn now to the arguments on this issue.

The City argues that the Tort Claims Act does not apply in this case

because the Pollocks failed to establish a claim

within its narrow waiver of immunity. The City’s argument focuses on the court’s

charge that asked the jury (1) whether the “negligence, if any, of the City of

San Antonio

proximately caused the occurrence or injury in question” and (2) whether the

City’s “operation of the West Avenue Landfill constituted a nuisance” as that

term was defined in the charge. The jury answered yes to both questions. The

City objected to the charge, arguing that the case should be submitted as a

premises liability case rather than as a case of general negligence and

nuisance. The City submits that this charge error is fatal to the Pollocks ’ claim of waiver under the Act. I disagree.

“Premises liability is the body of law that [defines] the duties owed by

an owner or occupier of land to persons who come onto his or her real property

to protect them from injury on account of dangerous conditions or activities on

the property.” 19

William V. Dorsaneo III,

Texas Litigation Guide § 310.01[1] at 310-6 (2009).

It is not a separate species of tort but rather a branch of the law of

negligence that categorizes duty in relation to the plaintiff’s purpose for

entering the property, that is, as an invitee, licensee, or trespasser. Western Invs ., Inc. v. Urena , 162 S.W.3d 547, 550 (Tex. 2005). A

premises liability case requires that the jury be instructed on the elements of

the landowner’s duty and thus the distinction between general negligence and

premises liability remains important in Texas. See Clayton W. Williams, Jr., Inc.

v. Olivo , 952 S.W.2d 523, 529 (Tex. 1997) (rule stated in context of general

contractor's liability for negligence of subcontractor); see also Nixon v.

Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 551 (Tex. 1985) (Kilgarlin, J., concurring)

(suggesting that modern trend is “away from basing a landowner's liability on

his visitor’s artificially determined purpose of entry”).

By definition then a premises liability case involves an injury on the

defendant’s premises. But Sarah Pollock was not injured on the City’s property;

she became ill at her own home, allegedly because of the City’s negligent use

and management of the neighboring landfill. The duty owed by the City under

these circumstances is not dependent on Sarah’s status as an invitee, licensee,

or trespasser, and thus the Pollocks ’ claim is not a

premises liability case. The duty here instead rests on the City’s obligation

not to contaminate adjoining private property with its waste disposal operations

at the West Avenue Landfill.

The jury found that the City’s operation of the landfill was both

negligent and a nuisance. Although there was not evidence that the nuisance rose

to the level of a taking, there was evidence that the City’s negligence was a

cause of the nuisance created by the landfill. We have said that personal injury

damages may be recovered under these circumstances. See

Vann v. Bowie Sewerage Co ., 90 S.W.2d 561, 563

(Tex. 1936) (nuisance created by private sewage

company sickening neighboring property owner); City of Fort Worth v.

Crawford , 12 S.W. 52, 54 (Tex. 1889) (nuisance

created by operation of garbage dump causing illness).

Moreover, this Court and others have recognized that an owner or occupier’s

negligence on its own property may lead to liability for injuries suffered on

adjoining property. [7]

I conclude then that the negligent operation of a landfill that causes a

neighbor to become ill on her adjoining property is a condition or use of

property causing personal injury within the contemplation of the Tort Claims

Act. See Tex. Civ. Prac. &

Rem. Code § 101.021(2) (governmental unit of the State may be liable for

personal injury or death caused by a condition or use of tangible personal or

real property if a private person would be liable under Texas law). The Tort

Claims Act, however, limits the State’s liability for the bodily injury or death

of a person to the “maximum amount of $250,000.” Tex. Civ. Prac. & Rem.

Code § 101.023(a). I

therefore would modify the court of appeals’ judgment to reflect the $250,000

cap imposed by the Tort Claims Act, and, as modified, affirm the judgment

awarding damages for Sarah Pollock’s personal injury.

___________________________________________

David M. Medina

Justice

OPINION ISSUED: May 1, 2009

[1]

Daubert v. Merrell Dow Pharms ., Inc ., 509 U.S. 579, 590 (1993); see also E.I.

du Pont de Nemours & Co. v. Robinson , 923

S.W.2d 549 (Tex. 1995).

[2]

One observer has suggested that analytical gaps are of two types: “(1) the

underlying data-facts gap, which focuses on material variances between the data

underlying the expert opinion and the actual facts of the plaintiff's case; and

(2) the methodology-conclusion gap, which focuses on whether the expert properly

explains how the methodology was applied to the plaintiff’s facts in arriving at

the conclusion.” Kimberly S. Keller, Bridging the Analytical Gap: The Gammill Alternative to

Overcoming Robinson & Havner Challenges to Expert

Testimony , 33 St . Mary’s L.J . 277, 310 (2002).

[3]

The Court suggests that Ramirez concerned only a conclusory challenge, but the case also involved a

reliability complaint. One significant issue in the case was when the left rear

wheel on the Volkswagen came off its axle. Ramirez , 159

S.W.3d at 902 . Edward Cox, the plaintiff’s metallurgical expert at trial,

testified that a defective bearing caused the wheel to separate from the axle.

Id. at

910. Cox “was not offered as an accident reconstructionist to help establish when . . . the

defect caused the accident,” and the Court rejected his “limited opinions on the

causation issue” as conclusory . Id. at

910-11. When the Court says here that there was no objection, it is

referring to Cox’s testimony. Se e ___ S.W.3d at ___ & n.27.

Volkswagen objected to the testimony of Ronald Walker, the plaintiff’s accident

reconstructionist , and that

testimony was analyzed by the Court under “the standards of reliability.”

Id . at

904. The Ramirez

Court concluded that Walker’s opinion was indeed unreliable because

of a particular analytical gap in his analysis. Id . at 906. Thus, the trial court abused its discretion in

admitting the testimony and erred in not sustaining Volkswagen’s

objection.

[4]

Kraft estimated the methane-benzene generation ratio by using the USEPA Landfill

Gas Generation Model ( LandGEM ) version 2.01. The model

was developed by the EPA’s Control Technology Center for estimating landfill gas

emissions.

[5]

In the concluding paragraphs of that report, Dr. Patel stated:

If one looks at Sarah’s chromosomal markers as mentioned

above, the specific chromosomal aberrations noted and those detected in

benzene-exposed workers are remarkably similar. There is aneuploidy , i.e.: > 46 chromosomes and specifically in

benzene exposed workers there were trisomies in the G

group of chromosomes as noted for Sarah, specifically for chromosomes: 7, 8, 9

and 21. It should be noted that the association with childhood leukemia and

benzene exposure has been reported from Holland,

China, United States, Britain and Japan.

Particularly of parental exposure of solvents containing

benzene, there is an increased risk of childhood leukemia. The odds ratio for

parental benzene exposure was as high as 5.81. As mentioned above it was

suggested benzene and its metabolites may cause genetic damage in germ cells,

which are then passed on to the offspring and/or cause direct genetic damage in

developing fetus following maternal exposure.

It also suggests that there is an increased likelihood

of ALL when such an exposure occurs during the critical organogenesis phase if

not as germ mutation. In-vitro experimentation using

human leukemia cells HL60 and human lymphocytes following exposure to benzenetriol , a direct derivative of benzene, shows oxidated DNA damage. Similar DNA damage has also been shown

to correlate in animal model systems. It has been mentioned that benzene is

associated with acute myeloid leukemia; however, the overall data clearly does

not indicate association limited to AML but also to ALL.

Thus, after reviewing the literature and Sarah’s case,

per se, it is in my medical opinion that there is reasonable medical and

scientific certainty and probability of linking maternal exposure to benzene,

organic acids and hydrocarbons in the environment with the development of ALL in

Sarah Pollock.

[6]

The Court’s indiscriminate mixing of unreliable and conclusory expert opinions is most apparent in its reliance

on Exxon Corp. v. Makofski , 116 S.W.3d 176

(Tex. App.–Houston [14th Dist.] 2003, pet. denied), a court of appeals’ opinion

written by a current member of this Court, and Merrell Dow Pharms ., Inc. v. Havner , 953

S.W.2d 706 (Tex. 1997). In both cases, timely objections were made to the

reliability of the respective experts. Justice Brister , writing for the

Fourteenth Court of Appeals, observed that it was the defendant’s responsibility

“to object at trial (which it did repeatedly) so the plaintiffs would have an

opportunity to cure any defects regarding reliability and present us with a

fully developed record.” Makofski , 116 S.W.3d at

180-81 (citations omitted). Having preserved its complaint, the court of

appeals subsequently concluded that the expert’s testimony was unreliable and

thus no evidence because “[n]o epidemiological study established a statistically

significant doubling of the risk of ALL from exposure to benzene” as required by

Havner . See id. at 188. This Court then concludes that “[f]or the same

reasons, we reach the same conclusion here.” ___ S.W.3d at

___. But this case is not Makofski or

Havner as the City conceded during oral

argument, stating: “We cannot go into the statistical significant part of Havner because we did not object to the scientific

reliability, we didn’t make a Daubert objection

and we have not tried to do that.” Thus, the Court’s conclusion is based on an

authority the City has expressly conceded does not apply.

[7]

See, e.g., Alamo Nat’l Bank v. Kraus , 616 S.W.2d 908 , 910–911 (Tex. 1981)

(owner or occupier liable for injury caused by debris falling across public

street from building being demolished); Atchison v. Tex. & P. Ry . Co., 186 S.W.2d 228, 229 (Tex. 1945) (duty breached

when smoke from a grass fire on the defendant’s premises reached an adjacent

public highway, causing a collision); Texas & P. Ry . Co. v. Brandon , 183 S.W.2d 212, 214 (Tex. Civ . App.—Eastland 1944, writ ref’d ) (duty to keep premises free of combustible materials

to avoid fire that could spread to neighboring property); Skelly Oil Co. v. Johnston , 151 S.W.2d 863,

863-67 (Tex. Civ . App.—Amarillo 1941, writ ref’d ) (gasoline manufacturing plant liable for creating oil

slick on adjoining highway); see also J. Hadley Edgar, Jr. & James B. Sales,

Texas Torts & Remedies § 20.08, Liability for Losses Outside Property

(2009).