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San Antonio Court of Appeals Affirms Marathon Win on Shale Play Nuisance Suit

HOUSTON, October 8, 2015 - Baker Botts L.L.P., a leading international law firm, announced today that, in a landmark Texas decision, the San Antonio Court of Appeals has clarified the causation standard for nuisance and negligence claims based on alleged odors, noises, and exposure to toxic chemicals from oil and gas operations in the Texas shale plays. 

In Cerny v. Marathon Oil Corp., No. 04-14-00650-CV, the plaintiffs asserted that noise, odors, and toxic chemicals from Marathon Oil’s and Plains Exploration’s oil and gas operations caused them to become sick and damaged their property and the foundation of their house.

The court of appeals affirmed the Karnes County District Court’s judgment dismissing these claims by applying several well-established legal principles to these types of claims, including the following:

(1)Havner and its progeny apply to nuisance and negligence claims alleging injuries caused by hydrocarbon exposure from oil field operations.

(2)The plaintiffs’ claims must be supported by qualified scientific expert testimony. “The requirement of expert testimony is equally obvious in this case where the Cernys’ claims arise out of the alleged emissions and migration of hazardous substances from nearby oil and gas operations.”

(3)“Absent direct, scientifically reliable proof of actual causation,” Havner requires that plaintiffs asserting such claims against oil and gas operators must establish that exposure “more likely than not” caused the injury by pointing to “at least two epidemiological studies demonstrating a statistically significant doubling of the risk as proof of general causation.”

(4)Furthermore, the plaintiffs must have been exposed to the same substance as in the epidemiological studies, the plaintiffs’ exposure or dose level must be comparable to or greater than those in the studies, the plaintiffs’ exposure must have occurred before the onset of injury, and the timing of the onset of the plaintiffs’ injury was consistent with that experienced by those in the study.

Applying these rigorous, well-established standards, the San Antonio Court of Appeals held that the Cernys failed to present more than a scintilla of evidence in support of their claims. The Cernys suffered from chronic pre-existing health conditions.

The home had foundation damage prior to defendants’ operations. And the Cernys failed to negate other possible sources of chemicals. The court held that “an expert’s failure to rule out alternative causes of injury renders the opinion unreliable, and legally constitutes no evidence.”

The court also rejected the plaintiffs nuisance claims for loss of use and enjoyment of their land due to dust, noise, traffic, and foul odors, because those claims were “too conclusory and speculative.” For example, the court found that affidavits provided by the Cernys and Sharon Wilson of Earthworks were “merely speculative and conclusory as to the source of the odors experienced by the Cernys on their property.”

Marathon’s defense was led by Deana LeFevre and Kevin McDonald of Marathon Oil Corporation.

Baker Botts Partners acting for Marathon Oil included Scott Janoe,  Bill KrogerJason Newman and  Macey Stokes. Associates included Louie Layrisson, Mark Little and Kimberly White. Ricardo Cedillo of San Antonio also represented Marathon during both stages of the case. Jim Ormiston of Gray & Reed represented Plains Exploration. 


Baker Botts is an international law firm of approximately 700 lawyers practicing throughout a network of 12 offices around the globe. Based on our experience and knowledge of our clients' industries, we are recognized as a leading firm in the energy, technology, and life sciences sectors. Since 1840, we have provided creative and effective legal solutions for our clients while demonstrating an unrelenting commitment to excellence. For more information, please visit

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