May 25, 2022

It ain’t over ‘til it’s over

Posted on May 25, 2022 by L. Mark Walker

Twenty years ago I tried a jury trial which turned out to be a case study regarding the uncertainty of outcomes in litigation and the various twists and turns that lawsuits can take.  One of our local mediators often used this case as an example of litigation uncertainty and why mediating parties need to take their fates into their own hands through settlement.

The case involved a claim that pollutants from an oil and gas reserve pit migrated into the groundwater and poisoned the plaintiffs’ herd of 170 dairy cows.  I represented one of the oil company defendants.  By the time the oil companies were notified of the problem, the plaintiffs had sold the entire herd so it was not possible to evaluate the cows. 

After extensive water sampling and testing, no constituents were found in the groundwater which exceeded any safe drinking water standards.  Nevertheless, the plaintiffs’ expert veterinarian, who also happened to be their brother-in-law, opined that multiple low-level constituents in the water were interacting in such a way as to create a “toxic soup” effect which was deadly to the dairy cows.  However, the veterinarian was unable to cite any peer-reviewed studies or articles that validated this theory.  Notwithstanding the defendants’ Daubert motion, the case was allowed to proceed to trial.

After a four-week trial, the jury returned a $7,250,000 verdict in favor of the plaintiffs.  That was too much for the trial court which granted defendants’ remittitur request and reduced the judgment to $950,000.  Thereafter the trial court awarded $650,000 in attorney fees to the plaintiffs as the prevailing parties.

On appeal, the Oklahoma Court of Civil Appeals held that the veterinarian’s testimony did not satisfy the Daubert standard and reversed and rendered judgment in favor of defendants.  That published opinion can be found at 93 P.3d 51.  On remand the trial court awarded $650,000 in attorney fees to the defendants as the prevailing parties.  This ultimately resulted in the landowner plaintiffs filing for bankruptcy protection to discharge the debt.

From multi-millionaires to bankruptcy debtors in two short years!  You never know what will happen in litigation.  It ain’t over ‘til it’s over!