Alexander et al v. Halliburton Company et al

Filing 312

ORDER granting in part and denying in part 297 Halliburton's Motion for Summary Judgment on the Emotional Distress Claims of Trial Plaintiffs Eric Auton and Susan Whetstone (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 6/17/2016. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
AMANDA ALEXANDER, et al.,

)
)
Plaintiffs,
)
)
vs.
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)
HALLIBURTON COMPANY,
)
HALLIBURTON ENERGY
)
SERVICES, INC., and SAIC ENERGY,
)
ENVIRONMENT & INFRASTRUCTURE, )
LLC,
)
)
Defendants.
)

Case No. CIV-11-1343-M

ORDER
Before the Court is defendant Halliburton Energy Services, Inc.’s (“Halliburton”) Motion
for Summary Judgment on the Emotional Distress Claims of Trial Plaintiffs Eric Auton and Susan
Whetstone, filed May 18, 2016. On June 8, 2016, plaintiffs Eric Auton and Susan Whetstone
(“Plaintiffs”) filed their response, and on June 13, 2016, Halliburton filed its reply.
I.

Background
From the mid-1960s until 1991, Halliburton 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. As a result, Plaintiffs have alleged negligent
infliction of emotional distress claims against Halliburton, contending that they suffered emotional
distress from exposure to perchlorate.
Halliburton previously filed a motion for summary judgment as to the emotional distress
claims of all plaintiffs, except those asserting bodily injury claims. The Court granted in part and

denied in part Halliburton’s motion. In its order, the Court found that “[t]he parties do not dispute
that under Oklahoma law, ‘upon proper proof, the plaintiff may recover for mental anguish where
it is caused by physical suffering and may also recover for mental anguish which inflicts physical
suffering.’ Ellington v. Coca Cola Bottling Co. of Tulsa, Inc., 717 P.2d 109, 111 (Okla. 1986).”
June 10, 2015 Order [docket no. 225] at 5. The parties disputed whether expert testimony was
required in order to recover for a mental anguish/emotional distress claim. The Court found as
follows:
this Court must determine whether the injury claimed by a plaintiff
is of such character as to require an expert to determine the cause and
extent thereof. In other words, the Court must determine whether the
injury claimed, as well as the causation of that injury, is within the
usual and ordinary experience of the average person. This
determination will necessarily depend on the injury alleged. In the
instant cases, there are various physical injuries alleged by plaintiffs,
such as loss of sleep, nausea, stomach aches, headaches, seizures,
high blood pressure, and ulcers, that plaintiffs contend were caused
by their mental anguish resulting from the alleged contamination.
Certain of these physical injuries, such as headaches, ulcers, and
seizures, are clearly of such character as to require the testimony of
an expert, or at a minimum a plaintiff’s treating physician. Other
physical injuries, such as loss of sleep, fall within the usual and
ordinary experience of the average person and the testimony of an
expert would not be necessary. Additionally, the Court finds the
timing between the mental anguish and the physical injury alleged
will also affect the determination of whether expert testimony is
required. As the claimed physical injury becomes more separated in
time from the mental anguish, the causal relationship becomes more
doubtful and tenuous, and expert testimony would become necessary
to establish causation.
Id. at 6-7. The Court, thus, concluded that summary judgment could not be granted on a global basis
in relation to plaintiffs’ claims for emotional distress and/or mental anguish and that any ruling on
the merits of such a claim would need to be made on a plaintiff by plaintiff basis. See id. at 7.

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On April 7, 2016, the Court selected Plaintiffs as the trial plaintiffs for the first trial.
Plaintiffs are only seeking emotional distress damages. With leave of Court, Halliburton has now
filed a motion for summary judgment in relation to Plaintiffs’ claims.
II.

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
quotations omitted).
III.

Discussion
Halliburton asserts that a review of the physical symptoms claimed by Plaintiffs – which

include stomach aches, diarrhea, headaches, muscle cramps, ulcers, irritable bowel syndrome, cysts,
fibroid tumors, Hashimoto’s thyroiditis, hypothyroidism, high blood pressure, and sinus infections

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– demonstrates that expert testimony is required to prove a causal connection between those physical
ailments and their emotional distress. Because Plaintiffs have not come forward with any expert
testimony, Halliburton contends that their claims for emotional distress fail as a matter of law.
Additionally, Halliburton contends that loss of sleep and/or other sleep issues1 are not physical
injuries but manifestations of emotional distress that are not compensable absent an actual physical
illness or injury.
A.

Loss of sleep/sleep issues

Halliburton asserts that loss of sleep is not a physical injury, but rather is simply a
manifestation of emotional distress, and cannot serve as a basis to recover damages for emotional
distress under Oklahoma law. Halliburton, thus, contends that to the extent Plaintiffs are claiming
that their emotional distress claims are based on sleeplessness as a physical injury, those claims fail
as a matter or law. Plaintiffs assert that Oklahoma courts have recognized loss of sleep as a physical
injury and, thus, their allegations of loss of sleep can serve as a basis to recover damages for
emotional distress.
Having carefully reviewed the parties’ submissions, as well as the cases cited by the parties,
the Court finds that loss of sleep is a physical injury sufficient to serve as a basis to recover damages
for emotional distress. The cases cited by Halliburton are inapplicable to the instant matter and do
not clearly stand for the proposition on which Halliburton asserts they do. Many of the cases
involve the interpretation of the phrase “bodily injury” in insurance policies. Further, some of the
cases do not specifically state that loss of sleep is never a physical injury sufficient to serve as a

1

As set forth above, in its June 10, 2015 Order, the Court found that physical injuries, such
as loss of sleep, fall within the usual and ordinary experience of the average person and the
testimony of an expert would not be necessary. See June 10, 2015 Order at 6.
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basis to recover damages for emotional distress but find that in that particular case the plaintiff did
not submit sufficient evidence that the loss of sleep was causally connected and/or was of sufficient
intensity to create a physical injury. Additionally, numerous cases have found that loss of
sleep/sleeplessness is an adverse physical manifestation of emotional distress sufficient to serve as
a basis to recover damages. See, e.g., Wilson v. Muckala, 303 F.3d 1207, 1213 (10th Cir. 2002)
(finding some evidence of physical harm was presented through plaintiff’s treating psychiatrist’s
testimony that included plaintiff having difficulty sleeping); Woodmen Accident & Life Ins. Co. v.
Bryant, 784 F.2d 1052, 1057 (10th Cir. 1986) (noting that “[s]ome cases recognize that sleeplessness
is an adverse physical manifestation of emotional distress, and thus it can constitute bodily harm
sufficient to establish that element of damages.”); Hutchinson v. City of Okla. City, 919 F. Supp. 2d
1163, 1183 (W.D. Okla. 2013) (finding that trouble sleeping was a physical manifestation of
emotional distress); Fanning v. Washita Freight Sys., Inc., No. CIV-08-411-C, 2009 WL 536860,
at *7 (W.D. Okla. March 3, 2009) (finding difficulty sleeping was a physical injury).
Halliburton further asserts that even if sleeplessness were to be considered a physical injury,
the scientific literature and relevant case law recognize that sleeplessness is a common condition
with multiple potential causes, thus requiring a medical differential diagnosis in order to determine
causation. Having reviewed the parties’ submissions, the Court finds, as it did in its June 10, 2015
Order, that loss of sleep falls within the usual and ordinary experience of the average person and the
testimony of an expert would not be necessary. Halliburton can cross-examine Plaintiffs regarding
other causes and/or reasons for Plaintiffs’ sleeplessness.
Accordingly, the Court finds that Halliburton’s motion for summary judgment as to
Plaintiffs’ emotional distress claims based on sleeplessness as a physical injury should be denied.

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B.

Other physical injuries that serve as a basis for Plaintiffs’ emotional distress claims2

Plaintiff Auton has alleged that he suffered stomach aches, diarrhea, and muscle cramps as
a result of the exposure to perchlorate. Plaintiff Auton has further alleged that he suffered anxiety
and worry as a result of learning of his alleged exposure to perchlorate and that this anxiety and
worry caused him to suffer headaches and nervousness. Plaintiff Whetstone has alleged that she
suffered headaches, depression, anxiety, stomach problems, ulcers, and irritable bowel syndrome,
and developed cysts, fibroid tumors, hypothyroidism, and Hashimoto’s thyroiditis from her exposure
to perchlorate. Plaintiff Whetstone has further alleged that she suffered anxiety and worry as a result
of learning of her alleged exposure to perchlorate and that this anxiety and worry caused her to
suffer headaches, irritable bowel syndrome, ulcers, high blood pressure, and sinus infections.
Because Plaintiffs have produced no expert medical evidence to show that perchlorate caused
the above referenced physical injuries, or that those conditions proximately caused their particular
emotional distress symptoms, Halliburton contends that Plaintiffs’ claims for emotional distress
based upon these physical injuries fail as a matter of law. Plaintiffs assert that their personal
testimony, supplemented with the testimony of their healthcare providers, shall meet their burden
at trial and no additional testimony from experts is required to demonstrate their specific emotional
distress. In their response to Halliburton’s motion, however, Plaintiffs do not include any affidavits
from their treating physicians or deposition testimony of their treating physicians; in fact, Plaintiffs
present no evidence regarding the testimony of their treating physicians – they simply state they will
be testifying.

2

The other physical injuries addressed in this section include all of Plaintiffs’ alleged
physical injuries except loss of sleep/sleeplessness.
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The Oklahoma Supreme Court has held:
The rule of law is established in this jurisdiction that where an injury
is of such character as to require skilled and professional men to
determine the cause and extent thereof, the question is one of science
and must necessarily be determined by the testimony of skilled and
professional persons, and cannot be determined by the testimony of
unskilled witnesses having no scientific knowledge of such injuries.
Cushing Coca-Cola Bottling Co. v. Francis, 245 P.2d 84, 85 (Okla. 1952). In its June 10, 2015
Order, the Court found that it “must determine whether the injury claimed by a plaintiff is of such
character as to require an expert to determine the cause and extent thereof.” June 10, 2015 Order
at 6. The Court further held that “[c]ertain of these physical injuries, such as headaches, ulcers, and
seizures, are clearly of such character as to require the testimony of an expert, or at a minimum a
plaintiff’s treating physician.” Id. Regarding the other physical injuries that serve as a basis for
Plaintiffs’ emotional distress claims, specifically, stomach aches, diarrhea, muscle cramps,
headaches, ulcers, irritable bowel syndrome, cysts, fibroid tumors, hypothyroidism, Hashimoto’s
thyroiditis, high blood pressure, and sinus infections, the Court finds that these other physical
injuries all require the testimony of an expert, or at a minimum testimony of Plaintiffs’ treating
physicians.
It is undisputed that Plaintiffs have not retained an expert to testify regarding these other
physical injuries. Additionally, Plaintiffs have not submitted any evidence regarding what Plaintiffs’
treating physicians’ testimony will be. In responding to a motion for summary judgment, a plaintiff
cannot simply rely on their allegations in the complaint and descriptions of the evidence he hopes
to introduce at trial. “Unsupported conclusory allegations . . . do not create an issue of fact.”
MacKenzie v. City and Cty. of Denver, 414 F.3d 1266, 1273 (10th Cir. 2005) (internal citation
omitted).
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Accordingly, because Plaintiffs’ emotional distress claims based upon these other physical
injuries require the testimony of an expert, or at a minimum testimony of Plaintiffs’ treating
physicians, to be viable, and because Plaintiffs have not retained an expert or submitted any
evidence from Plaintiffs’ treating physicians, the Court finds that Halliburton is entitled to summary
judgment as to these claims.3
IV.

Conclusion
Accordingly, the Court GRANTS IN PART and DENIES IN PART Halliburton’s Motion

for Summary Judgment on the Emotional Distress Claims of Trial Plaintiffs Eric Auton and Susan
Whetstone [docket no. 297] as follows:
(A)
(B)

The Court DENIES the motion for summary judgment as to Plaintiffs’ emotional
distress claims based on sleeplessness as a physical injury, and
The Court GRANTS the motion for summary judgment as to Plaintiffs’ emotional
distress claims based upon other physical injuries.

IT IS SO ORDERED this 17th day of June, 2016.

3

In their response, Plaintiffs assert that because of Halliburton’s alleged “willful” conduct,
Plaintiffs do not have to show any physical injury. Oklahoma law is clear that in relation to
emotional distress damages based upon negligence - the claim at issue in this case, a plaintiff must
show a physical injury. While a physical injury may not be required in relation to intentional
infliction of emotional distress, Plaintiffs have not pled such a claim.
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