HOUSTON – A lawsuit brought against Union Pacific Railroad alleging the company failed to adequately warn them about cancer-causing soil and groundwater contaminants has been allowed to continue, thanks to a recent opinion by the First Court of Appeals.
Seeking more than $50 million in damages, 13 residents of Fifth Ward and Kashmere Gardens sued UPR last February, alleging the company’s nearby facilities damaged their health.
UPR sought dismissal of the action under the Texas Citizens Participation Act, which the trial court denied, leading the company to appeal.
On Sept. 2, the First Court affirmed the ruling, concluding the plaintiffs sued UPR on its failure to act, not its communications.
According to the opinion, in 2014 UPR contacted Fifth Ward and Kashmere Gardens property owners, presented them with restrictive covenants, and requested that they agree to not use their groundwater, reasoning that the “chemicals of concern were managed such that human exposure was prevented and that other groundwater resources were protected.”
In August 2019, the TCEQ investigated the occurrence of six types of adult cancers within the Fifth Ward and Kashmere Gardens, which revealed increased occurrences of various cancers. Per the investigation, the toxic chemicals contaminated the soil, air, and water in these neighborhoods and caused property and personal injury damages, including cancer, to the plaintiffs and others.
In response to the suit, UPR asserted that the plaintiffs’ property-damage claims were based on or in response to the company’s exercise of its right of free speech and right to petition.
“As with Union Pacific’s free-speech argument, we also conclude that Union Pacific has not established that the plaintiffs’ suit is based on or in response to Union Pacific’s exercise of the right to petition,” the opinion states. “The plaintiffs’ complaints about Union Pacific’s alleged contamination of the residential neighborhoods and its failure to warn the plaintiffs about the risks of toxic contaminants sparked the plaintiffs’ claims.”
UPR is represented by Baker Worting.
The plaintiffs are represented by Stpehns Reed & Armstrong.
Appeal case No. 01-21-00073-CV