Alexander et al v. Halliburton Company et al
ORDER denying 224 defendant Halliburton Energy Services, Inc.'s Motion for Summary Judgment on the "Bodily or Personal Injury" Claims (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 8/31/2015. (ks)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
AMANDA ALEXANDER, et al.,
HALLIBURTON ENERGY SERVICES,
INC., et al.,
MITCHELL MCCORMICK, et al.,
HALLIBURTON ENERGY SERVICES,
BRUCE WILMES, et al.,
HALLIBURTON ENERGY SERVICES,
Case No. CIV-11-1343-M
Case No. CIV-11-1272-M
Case No. CIV-11-1323-M
Before the Court is defendant Halliburton Energy Services, Inc.’s (“HESI”) Motion for
Summary Judgment on the “Bodily or Personal Injury” Claims, filed June 8, 2015. On June 29,
2015, plaintiffs filed their response, and on July 6, 2015, HESI filed its reply. Based upon the
parties’ submissions, the Court makes its determination.
From the mid-1960s until 1991, HESI cleaned missile motor casings for the United States
Department of Defense and its contractors on a portion of its Osage Road facility near Duncan,
Oklahoma (“Site”). Plaintiffs allege that, as a result of those operations, the groundwater at the Site
became contaminated with perchlorate, which has since migrated offsite and into the private water
wells of numerous area residents. Plaintiffs Misti Gilley, Frank Herndon, Mary Herndon, Nancy
Oliver, Linda Pace, and Lauren Wilmes (“Bodily Injury Plaintiffs”) further allege that their alleged
ingestion of perchlorate caused them to develop thyroid conditions and/or exacerbated pre-existing
thyroid conditions. HESI now moves the Court for summary judgment as to the Bodily Injury
Summary Judgment Standard
“Summary judgment is appropriate if the record shows that there is no genuine issue as to
any material fact and that the moving party is entitled to judgment as a matter of law. The moving
party is entitled to summary judgment where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party. When applying this standard, [the Court] examines
the record and reasonable inferences drawn therefrom in the light most favorable to the non-moving
party.” 19 Solid Waste Dep’t Mechs. v. City of Albuquerque, 156 F.3d 1068, 1071-72 (10th Cir.
1998) (internal citations and quotations omitted).
“Only disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Furthermore, the non-movant has a burden
of doing more than simply showing there is some metaphysical doubt as to the material facts.
Rather, the relevant inquiry is whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.”
Neustrom v. Union Pac. R.R. Co., 156 F.3d 1057, 1066 (10th Cir. 1998) (internal citations and
HESI contends that if the Court grants HESI’s motions to exclude the Bodily Injury
Plaintiffs’ medical experts, Drs. Spaeth and Klein, it is entitled to summary judgment on the Bodily
Injury Plaintiffs’ claims because the Bodily Injury Plaintiffs will not have the required medical
expert testimony to establish causation. The Court, in separate orders, has denied HESI’s motions
to exclude Drs. Spaeth and Klein. Accordingly, the Court finds that HESI is not entitled to summary
judgment based upon any lack of required medical expert testimony.
HESI further contends that it is entitled to summary judgment on the Bodily Injury Plaintiffs’
claims because the Bodily Injury Plaintiffs lack evidence of actionable damages.1 Specifically,
HESI asserts that the Bodily Injury Plaintiffs can neither show the aggravation of their auto-immune
thyroid conditions nor quantify the aggravation. Further, HESI asserts that the only difference
between the treatment of their thyroid conditions, with and without their exposure to perchlorate,
is the potential for a higher dose of medication to be administered in connection with their alreadynecessary treatment sessions.
It is the plaintiff’s burden to prove that a defendant’s negligence aggravated their preexisting condition. See Wright v. Cent. Okla. Milk Producers Ass’n, 509 P.2d 464, 466 (Okla.
HESI’s contention is specifically directed at those Bodily Injury Plaintiffs who have autoimmune thyroid conditions – conditions that it is undisputed were not caused by HESI’s actions –
and allege the perchlorate exposure exacerbated their conditions.
1973). Further, the Oklahoma Uniform Jury Instruction for liability for increased harm in a
negligence case provides:
If you find by the greater weight of the evidence that [Defendant] was
negligent and that [Defendant]’s negligence was a contributing factor
in increasing the harm to [Plaintiff] beyond what was due to other
causes, the [Defendant] is liable for the increased harm.
If you are able to separate the harm that was due to the other causes
from the increased harm from [Defendant]’s negligence, [Defendant]
is liable only for the increased harm from [Defendant]’s negligence.
But if you are not able to separate the harm that was due to the other
causes from the increased harm from [Defendant]’s negligence,
[Defendant] is liable for all the harm to [Plaintiff].
[Defendant] has the burden of proving by the greater weight of the
evidence, that the increased harm from [Defendant]’s negligence can
be separated from the harm due to the other causes.
The Court has carefully reviewed the parties’ briefs and evidentiary submissions. Viewing
the evidence in the light most favorable to the Bodily Injury Plaintiffs and viewing all reasonable
inferences in the Bodily Injury Plaintiffs’ favor, the Court finds that the Bodily Injury Plaintiffs have
presented sufficient evidence of actionable damages. Specifically, the Court finds that the Bodily
Injury Plaintiffs have presented sufficient evidence that HESI’s alleged negligence aggravated their
pre-existing auto-immune thyroid conditions, resulting in legally compensable injuries. HESI’s
arguments are based on the assumption that the Bodily Injury Plaintiffs’ pre-existing auto-immune
thyroid conditions had already caused hypothyroidism to develop and that the Bodily Injury
Plaintiffs’ ingestion of perchlorate simply exacerbated their hypothyroidism, thus resulting in the
possibility of a higher dose of medication. A review of the evidence submitted, and particularly Dr.
Klein’s expert reports and deposition testimony, reveals that this assumption is not entirely accurate
and that the Bodily Injury Plaintiffs are, in fact, alleging that their ingestion of perchlorate
exacerbated their pre-existing auto-immune thyroid conditions which resulted in the development
of hypothyroidism. In his expert reports, Dr. Klein opines that ingestion of perchlorate at the levels
calculated for these plaintiffs would interfere with the function of an already diseased thyroid gland,
which would then cause further impairment of the thyroid gland function, that would then contribute
to the development of hypothyroidism. See Expert Reports of Dr. Klein, attached as Exhibits 7-12
to HESI’s Motion for Summary Judgment on the “Bodily or Personal Injury” Claims and Brief in
Support. Further, in his deposition, Dr. Klein testified that “the minority of patients with
Hashimoto’s [the auto-immune thyroid condition that the Bodily Injury Plaintiffs have] require
thyroid hormone replacement [medication]. So if we’re seeing this in all five patients, statistically
I’m finding that the perchlorate exposure to these patients with Hashimoto’s disease put them at risk
and then manifested as hypothyroidism.” Deposition of Dr. Klein at p. 144, lns 9-15. Thus, if the
ingestion of perchlorate contributed to the development of hypothyroidism, it would also contribute
to those symptoms of hypothyroidism, such as fatigue, weight gain, dry skin, dry nails, etc., that the
Bodily Injury Plaintiffs have submitted evidence that they have experienced.
Accordingly, the Court finds that HESI is not entitled to summary judgment on the Bodily
Injury Plaintiffs’ claims.
For the reasons set forth above, the Court DENIES HESI’s Motion for Summary Judgment
on the “Bodily or Personal Injury” Claims [docket no. 224 in case no. CIV-11-1343-M, docket no.
278 in case no. 11-1272-M, and docket no. 126 in case no. CIV-11-1323-M].
IT IS SO ORDERED this 31st day of August, 2015.
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