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April 04, 2016

MSC to determine whether an expert witness must establish specific causation in a toxic tort case to defeat summary disposition

In Lowery v. Enbridge Energy Limited Partnership, No. 151600, the Michigan Supreme Court granted leave to appeal to determine whether a plaintiff in a toxic tort case sufficiently established causation through expert testimony that inferred the causal link between the incident and the injury.
 
Plaintiff Chance Lowery alleged he was injured as a result of toxic fumes from a July 26, 2010, Enbridge Energy oil spill into Talmadge Creek and the Kalamazoo River.  At trial, the plaintiff’s medical expert determined his injuries, including an arterial rupture, were due to exposure to the toxic fumes, but the expert based his opinion solely on a review of the medical records without ever examining Lowery.  The trial court granted plaintiff’s motion for partial summary disposition under MCR 2.116(C)(10) on the issue of negligent operation of the oil pipeline, but also granted summary disposition to defendant for the plaintiff’s failure to establish a direct link between the exposure to fumes and his arterial rupture.
 
The Court of Appeals reversed the trial court’s decision and reasoned that a plaintiff is permitted to prove his case through circumstantial evidence, and in this instance, there are multiple plausible explanations for plaintiff’s injury.  Therefore, the court concluded that there was enough circumstantial evidence to create a genuine issue of material fact to be resolved by a jury. 
 
The Michigan Supreme Court granted defendant’s application for leave to appeal the judgment.  The two issues to be briefed are: (1) whether the plaintiff sufficiently established causation to avoid summary disposition under MCR 2.116(C)(10); and (2) whether the plaintiff was required to present expert witness testimony regarding general and specific causation.

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