Texas Supreme Court

AUSTIN – Bexar County jurors believed an engineer's naked conclusions and a doctor's conclusory opinions in linking a child's leukemia to a San Antonio landfill, the Texas Supreme Court ruled on May 1.

Six Justices reversed a verdict that would have awarded at least $8 million to Sarah Pollock and her parents, Charles and Tracy Pollock.

Jurors found that the city of San Antonio negligently allowed benzene to migrate with methane from a landfill to the Pollock home, damaging Sarah before birth.

The Justices found otherwise.

"We hold that there is no evidence the city knew it actions were substantially certain to cause the asserted injuries or that the personal injuries were caused by exposure to benzene," Justice Nathan Hecht wrote.

The Justices discarded evidence from landfill engineer Dan Kraft and Sarah's oncologist, Mahendar Patel, though the city hadn't objected to the evidence.

"Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence," Hecht wrote.

He wrote that if the home contained as much methane and benzene as Kraft reported, the methane would have suffocated the family or exploded.

Chief Justice Wallace Jefferson and Justices Dale Wainwright, Phil Johnson and Don Willett joined Hecht.

Justice Scott Brister joined the decision but did not join the criticism of Patel.

Justices David Medina and Harriet O'Neill dissented, arguing that the city had to object or point out analytical gaps at trial to preserve error.

"Without an objection, a trial court simply cannot be expected to fulfill its role as gatekeeper," Medina wrote.

Justice Paul Green did not participate in the decision.

The city started disposing of waste at the site, a former rock quarry, in 1967

In five years the city closed the landfill and covered it with dirt.
Neighbors complained of odors, and in 1980 the city found pockets of methane.

The city drilled wells on the perimeter and installed a compressor to lower pressure and draw gas to the wells.

In 1982 consultants found methane migrating through cracks in the wall around the landfill and the base below.

The city carried out improvements in 1985, but the landfill subsided and portions of the collection system collapsed.

In 1991, the Pollocks bought a home near the landfill for $77,000.

At their request the city filled a big hole in the back yard, and at their request filled it a second time.

In 1994, Tracy gave birth to Sarah. In 1998, doctors diagnosed Sarah with acute lymphoblastic leukemia, the most common type of childhood leukemia.

A bone marrow biopsy found anomalies in the girl's chromosomes.

The Pollocks decided the wanted to move. Their realtor obtained a city report on methane at the landfill and showed it to Tracy, who showed it to oncologist Dr. Kenneth Lazarus.

He allegedly warned Tracy to keep her children out of the yard.

The Pollocks immediately moved out. Months later they sold the house for $75,000.

They sued the city in 2000. Around that time Sarah's cancer went into remission and the anomalies in her chromosomes disappeared.

"The statistical chance of recurrence is 20 percent," Hecht wrote.

To win the case, the Pollocks had to overcome governmental immunity under the state constitution and the Texas Tort Claims Act.

At trial Kraft testified that Tracy was exposed to benzene at 160 parts per billion.

Patel testified about studies showing that exposure of an unborn baby to benzene through her mother could cause chromosomal anomalies and childhood leukemia.

He testified that the exposure of the Pollocks was greater than that in the studies because it occurred over a longer period of time.

Jurors found that the city waived immunity by negligently maintaining a nuisance and acting with malice.

They awarded $7 million for pain, anguish, disfigurement and impairment, $111,000 for past medical care, $6 million for future medical care, $29,000 in property damage and $10 million exemplary damages, for a total of $23,140,000.

District Court Judge Andy Mireles slashed future medical expenses to $500,000, shrinking the verdict to $17,640,000.

The Fourth District appeals court in San Antonio wiped out most of that by reversing the exemplary damages.

The state Supreme Court wiped out the rest.

"Kraft's opinion that she was chronically exposed to benzene concentrations of 160 ppb has no basis in the record," Hecht wrote.

"Kraft's opinion is the kind of naked conclusion that cannot support a judgment," he wrote.

He wrote that Patel's studies found chromosomal aberrations at 60 times and 200 times the level Kraft claimed were found in Sarah.

"No study was offered showing a relationship between chromosomal anomalies like Sarah's and exposure to benzene at the lower levels the Pollocks claimed," Hecht wrote.

Hecht discarded Patel's assertion that long exposure at low levels caused more harm than short exposure at high levels.

"Nothing in any of the materials on which Patel relied supported his assertion," he wrote.

Medina wrote in dissent that, "The Court's decision today is not only wrong, it is also unfair and may encourage gamesmanship in the future."

He asked why anyone would object to reliability at trial and run the risk of an opponent fixing the problem when the opinion can be picked apart on appeal.

"Neither expert asked the jury to trust their opinion merely on the basis of their expertise," Medina wrote. "They instead purported to analyze the underlying data that they (and apparently the city also) considered relevant before rendering their respective opinions."

Sharon Callaway, Nissa Dunn, Amy Eubanks-Perkins, Donald Bayne and Pamela Baron represented San Antonio.

Sylvan Lang Jr., Susan Gray, Cathy Sheehan, Laura Cavaretta and Jennifer Rosenblatt represented the Pollocks.

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