HOUSTON - With an appeals court ruling in hand, engineering firms are hoping to shut down mass tort lawyers who sued them over the alleged deadly spread of cancer-causing chemicals at Houston's Kashmere Gardens.
"This case is one of the largest instances of environmental racism in the history of the United States," reads a recent Harris County complaint against Union Pacific Railroad and firms it hired to address creosote contamination - Pastor, Behling & Wheeler and Environmental Resources Management Southwest.
That February lawsuit was the 49th filed by residents of Kashmere Gardens who claim pollution in the African-American neighborhood. Litigation was kickstarted in 2019 when the Texas Department of State Health Services found a cancer cluster there and blamed a Union Pacific site at 4910 Liberty Road.
Years of testing followed, and the late Sylvester Turner, when serving as Houston's mayor in 2023, held a press conference to announce a Relocation Strike Team to move residents living above a creosote plume. Creosote is a wood preservative and a mix of chemicals including benzene classified as a probable human carcinogen by the Environmental Protection Agency.
That contamination came from Houston Wood Preserving Works, a wood treatment plant owned by Southern Pacific, which later merged with Union Pacific, that shut down in 1984. Lawsuits say millions of gallons of creosote were heated in open air vats and ditches then dumped at the Union Pacific Englewood Rail Yard. They spread to neighborhoods once they reached the soil and groundwater, lawyers say.
Union Pacific and the two engineering firms failed to properly test and remediate the site, it is alleged, plus neglected to tell residents of Kashmere Gardens and Fifth Ward of dangers.
But when the cases, some of which represented large groups of plaintiffs, were filed, many didn't include certificates of merit. The engineers said lawsuits when first filed needed to be accompanied by declarations of other engineers, under state law 150.002.
Plaintiffs responded that the nature of their claims did not arise from the firms' professional engineering services, instead calling them "consulting geologists." The trial court disagreed, as did the Fourteenth Court of Appeals on Sept. 19.
A hazardous waste permit obtained in 1994 directed PBW to provide "environmental consulting, contracting and engineering." It proposed the installation of "an engineered soil cap and other engineered physical control measures" at the rail yard in 2015.
"Here, PBW's and ERM's affidavits and supporting documents amount to some evidence that their provision of geoscience services was necessary to plan, progress, or complete engineering services," the appeals court ruled.
"Both (firms) adduced evidence that they performed engineering services in addition to geoscience services, and their services required special education, training and experience in the field of engineering."
The ruling dismissed claims against PBW and ERM but not Union Pacific, which has said the problems at Kashmere Gardens were the result of actions by third parties and that it has complied with federal and state instructions regarding the site.
PBW this month asked for dismissal of a lawsuit that is scheduled to be the first to go to trial but similarly did not include a certificate of merit when it was filed. Plaintiff lawyers continue to push the idea the firms served as "geoscience consultants" and not engineers.
This issue will hit at least 26 of the remaining cases, all brought by Gibson Law Firm. When the firm Collins Elizondo filed the most recent case, it did so with declarations from two engineers to avoid falling into the same hole.
The judge handling the multidistrict litigation, sylvia Matthews, has ordered a status conference on April 9 to discuss the firms' motions to dismiss.