Michigan Court: Toxic Tort Plaintiffs Only Need Circumstantial Evidence to Prove Injury Posted on September 28, 2015 by Larry Bodine Health concerns persist after a 2010 Kalamazoo River oil spill. The Michigan Court of Appeals has lowered the bar tremendously for tort law plaintiffs attempting to show a causal link between chemical exposure and injury. Going forward, circumstantial evidence and reasonable inferences — as opposed to direct evidence or expert testimony — will be enough to demonstrate a causal link in toxic tort cases. This low standard will undoubtedly bring more opportunities to Michigan personal injury attorneys and could perhaps be influential to other jurisdictions. The Element of Causation Plaintiff Chance Lowery sued Enbridge Energy Limited Partnership (Enbridge) after he suffered toxic fume exposure from an oil pipeline that spilled into a stretch of the Kalamazoo River near his home. The spill, which occurred on July 26, 2010, also affected the Talmadge Creek area. Lowery, who lived 250 feet away from the Kalamazoo River in Battle Creek, testified in deposition he began experiencing severe headaches less than 24 hours after the spill. Lowery went to the emergency room after suffering migraines for one week, a constant bout of vomiting and severe abdominal pain. A Bronson Battle Creek Hospital C.T. scan revealed Lowery had suffered an avulsion of his short gastric artery that led to internal bleeding. It was unclear at the time of appeal when Lowery initially told his doctor about the exposure to gaseous fumes. Now, however, it is irrelevant what Lowery’s doctor would testify to. The Court said: “Here, there was a strong enough logical sequence of cause and effect for a jury to reasonably conclude that plaintiff’s exposure to oil fumes caused his vomiting, which ultimately caused his short gastric artery to rupture. Given the proffered evidence, the claim that the already-adjudged negligence of defendants in the release of oil into the Kalamazoo River caused the artery rupture goes beyond mere speculation.” A Clear Causal Link See Also: Man Burned by Chemical Vapor Explosion Awarded $10M The appeals court noted there were still other plausible explanations of Lowery’s injury and acknowledged there may be potentially damaging facts on remand for Lowery. Defendant Enbridge urged the Court of Appeals to adopt the requirements that toxic tort plaintiffs must: Prove the alleged toxin is capable of causing injuries like those suffered by the plaintiff in other humans subjected to the same exposure as the plaintiff, and The toxin was the cause of injury. Regardless, Judges Patrick M. Meter and Jane M. Beckering held there was sufficient evidence before them to let Lowery’s case survive a summary judgment motion. Lowery will still have to demonstrate a sufficient causal link between the spill and his ruptured artery on remand, but negligent operation of the oil pipeline has been affirmed against Enbridge. A positive effect on plaintiffs Allowing tort plaintiffs to prove cases through circumstantial evidence and reasonable inferences opens the door for plaintiffs who may not necessarily have direct, hard evidence of toxin exposure, but can string together a decently strong chain of events that could reasonably lead to harm. Not only will this decision have a positive effect on individual plaintiffs, but toxic tort class actions, which typically arise in the employment and residential setting, will also be much easier to allege and prove. The case is Chance Lowery v. Enbridge Energy Limited Partnership and Enbridge Energy Partnership, Case No. 319199 in the State of Michigan Court of Appeals, Calhoun Circuit Court.