Houston’s 14th Court of Appeals handed Union Pacific a limited victory last week when it dismissed negligent misrepresentation claims by 13 residents of a predominantly Black neighborhood against the railroad giant for allegedly polluting the community with creosote, a suspected carcinogen.
The three-judge panel, however, refused to dismiss scores of other claims brought by six dozen residents of the Kashmere Gardens neighborhood who accuse Union Pacific of knowingly contaminating their community and making misleading or false statements about the health risks.
Most of the nearly 80 plaintiffs seek damages for wrongful death, physical impairment, disfigurement, mental anguish and loss of use and enjoyment of real property. Nearly 70 of the 80 plaintiffs have either been diagnosed with cancer or are suing on behalf of a family member who died from cancer.
But 13 cited their only damage from Union Pacific’s misrepresentations was to their property.
Lawyers for Baker Botts, representing Union Pacific, argued such fraud claims are not exempted under the Texas Citizens Participation Act and should be dismissed.
“Union Pacific notes that thirteen of the appellees allege claims only for property damages and not personal injuries,” Justice Ken Wise wrote for the three-judge panel. “Appellees do not dispute this contention but instead suggest that the exception should be applied to the entire lawsuit because some of the appellees seek damages for bodily injury or wrongful death.
“Contrary to appellees’ argument, dismissal under the TCPA is determined not by the action as a whole but on a claim-by-claim basis,” Justice Wise wrote. “Thus, thirteen of the appellees cannot show that the bodily-injury exception applies to their negligent misrepresentation claim.”
The 14th Court rejected Union Pacific’s arguments that even more of the plaintiffs’ claims should be tossed because the TCPA specifically exempts fraud claims involving bodily harm and wrongful death.
Union Pacific’s legal team is led by Baker Botts partner Gavin Villareal in Austin and includes senior associate Maddy Dwertman and associate David Goode. The plaintiffs are represented on appeal by
Jason A. Gibson and Casey L. Gibson of the Gibson Law Firm in Houston, Bill Lee Voss of the Voss Law Firm in The Woodlands and Nomaan Husain of Husain Law + Associates in Houston.
The case, Anna Dorsey, et al. v. Union Pacific Railroad Company, et al., now returns to Harris County’s 281st District Court to be set for trial. The plaintiffs seek more than $100 million in damages, according to court records.