CAUSE NO. 13-05-00118-CVK !MICHAEL A. CERNY and § IN THE DISTRICT COURT MYRA L. CERNY, INDIVIDUALLY § and as NEXT FRIENDS of § CAMERON A. CERNY, A CHILD § § VS. § 218th JUDICIAL DISTRICT § MARATHON OIL CORPORATION, § MARATHON OIL EF LLC, and § PLAINS EXPLORATION & PRODUCING § COMPANY § KARNES COUNTY, TEXAS !

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ NO EVIDENCE AND TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT !

NOW COME MICHAEL A. CERNY, MYRA L. CERNY and CAMERON A. CERNY,

the plaintiffs, and file this Response to the Defendants’ No Evidence and Traditional Motions for

Summary Judgment.

FACTUAL BACKGROUND

The plaintiffs moved from the city life in the San Antonio area to their current residence

at 5001 FM 99, Karnes City, TX, located in the rural countryside within Karnes County, Texas

approximately eleven years ago. At the time, the area was quiet and peaceful, the air was clean,

and the residents enjoyed their privacy. Bike rides, long walks and life at a slow pace were the

norm. [See, Affidavit of Myra Cerny]. The plaintiffs’ property consists of a one acre tract of land

with an older home sitting on a pier and beam foundation. The property was free from major

defects and the home, while older, was structurally sound. [See, Affidavit of Michael Cerny].

With the arrival of the technology to capture hydrocarbons in shale formations, came an

influx of oilfield activity into Karnes County, Texas, in the heart of the Eagle Ford Shale.

Production operations, including drilling, completions, workovers, testing, processing, and other

oilfield activities, brought hectic and bustling traffic through the area where the plaintiffs reside.

Heavy equipment created new roads along with lots of dust and noise, some roads being re-made

several times. [See, Affidavit of Myra Cerny]. Laundry hung out to dry by the plaintiffs was

covered in dust, as was everything else on their property. [Id.] The constant traffic, dust, strong

odors, and noise radically altered the lifestyle previously enjoyed by the plaintiffs and made the

enjoyment of their outdoor activities impossible. In early 2012, the plaintiffs found their

property completely surrounded by wells and facilities owned by either Marathon, Marathon EF,

or PXP. [Id.]

With the numerous well sites and production facilities within a short distance from the

plaintiffs’ property, the oilfield operations began having a direct impact on the plaintiffs’ home

and acreage. In 2012, sinkholes began forming in the ground on the plaintiffs’ property, which

the plaintiffs would attempt to fill in with dirt. The sinkholes remain to this day and they

continue to grow. [See, Affidavit of Michael Cerny]. Furthermore, when an oil well was

fractured as either a new completion or a workover to stimulate production, the pier and beam

foundation of the plaintiffs’ home would shift, causing damage to the structure of the home. [Id.]

Today, numerous cracks can be found in the ceiling and on the walls of the plaintiffs’ home, and

the foundation is in need of repair. [Id.] To date, Marathon has frac’d several wells in the

vicinity of the plaintiffs’ home. All wells drilled and frac’d as part of its completion, including

wells which have been undergone a frac job through any workover, which are within two miles

of the Cerny residence have had a significant impact on the plaintiffs’ property and their lives.

[See, Affidavit of Dr. David Mitchell].

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In 2012, the plaintiffs noticed that they were each beginning to experience a worsening of

certain existing health problems, and the commencement of some new health problems. The

symptoms included daily headaches (often migraine), rashes, chest pain, bone pain, strange nerve

sensations, high blood pressure, irregular heartbeats, nausea, irritation of the eyes, nose and

throat, bronchitis, pain in the liver area, numbness in the extremities, and difficulty breathing.

Some of these existed previously, while others were new. The existing conditions were

exacerbated and made worse by the odors and smells on their property coming from the

defendants’ operations. Cameron Cerny began to experience frequent nosebleeds. [See, Affidavit

of Cameron Cerny]. These problems began to manifest themselves in difficulty sleeping,

depression, irritability, anxiety, loss of hope, frustration and anger from the family members.

[See, Affidavits of Michael Cerny, Myra Cerny and Cameron Cerny]. The family had to get rid

of the family pet after it kept getting constant rashes and ultimately developing a large tumor.

Since the plaintiffs’ property is completely surrounded by the defendants’ wells and production

facilities, no matter the wind direction their property is always smelling of noxious odors. [Id.]

Marathon Defendants

Testing from the TCEQ, as well as private industry testing, has proven that noxious

chemicals have been found on the plaintiffs’ property. For example, a TECQ report dated

January 24, 2013 found violations for the emission levels of certain noxious chemicals in excess

of permit levels at the Sugarhorn Central Facility owned by Marathon and/or Marathon EF. The

chemicals found to be contaminating the area included high amounts of Benzene, C9+, Ethane,

Ethyl Benzene, Heptanes, Hexanes, Hydrogen Sulfide, i-butane, i-pentane, Methane, n-butane, n-

pentane, Octanes, Propane, Toluene, and Xylenes. Other violations have also been noted by the

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TCEQ in its limited inspections regarding Marathon defendants’ wells and production facilities,

many in the vicinity of the plaintiffs’ property, including an occasion on June 15, 2012 when

TCEQ investigators left the Sugarhorn facility during an investigation because the VOC

measurement levels were too dangerous to remain on the property. A separate incident in 2012

extending over weeks regarding a leak in Marathon’s Yosko Unit also sent not only noxious and

harmful chemicals and gases onto the plaintiffs’ property, but also a yellowish mist which was

confirmed by neighbors and reported to the TCEQ. Marathon’s East Longhorn Facility has also

emitted odors, particulate matters, gases and chemicals which have migrated onto the plaintiffs’

property through inefficient, black burning flares and faulty equipment as demonstrated through

FLIR video.

In addition, Marathon’s Sugarhorn, East Longhorn, North Longhorn, and East Sugarloaf

facilities, all of which are in the vicinity of the Cerny residence, are releasing Nitrogen Dioxide

well in excess of the National Ambient Air Quality Standard as promulgated by the EPA.

Furthermore, Marathon has numerous wells in the vicinity of the Cerny residence.

During the drilling process of each of these wells, the Marathon defendants dug open air drilling

mud pits through which recycled drilling mud carrying formation fluids containing dangerous

gases and chemical compounds were stored while waiting to be reused. In addition, the drilling

mud returning to the surface with formation cuttings, also a source of the formation gases and

chemical compounds, was put through an open air shaker which agitated the mud to separate it

from the drilled cuttings removed from the Eagle Ford formation. This agitation caused more

gases and chemical compounds to be released into the air. The cuttings were stored on site then

hauled away by truck, while the mud was returned to the mud pit to once again be circulated into

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the formation during the drilling process. The mud pits, the shaker, and the cuttings on stored on

site on each well in the vicinity of the plaintiffs’ home were emitting fugitive emissions at

ground level for which there was no emission permit. These emissions contain compounds

hazardous to human and animal health. These pits, the shaker assembly, and the cuttings and

their fugitive emissions have impacted the plaintiffs and their property. The defendants have

violated Texas law in failing to dewater these pits, dispose of these fluids as required by Texas

law, and by failing to backfill and compact the pit within the time limits outlined in Texas law.

PXP

PXP owns the Kotara-Ridley/Love Crews Drip Station facility which lies to the south of

the plaintiff’s property. PXP has allowed the escape of harmful gases from this facility as

demonstrated by FLIR video taken by a private industry on March 5, 2013. Canister samples

were also taken at the site on the same day with the result being that benzene was found at the

site 20 times higher than the acceptable long-term Air Monitoring Comparison Values set by the

TCEQ. No TCEQ testing has been found on this facility to date. Breezes most often blow from

the south in Karnes County, which have caused these noxious gases and their odors to migrate

onto the plaintiffs’ property. The plaintiffs have often smelled these foul odors and have named

this facility, “Stinkyville”.

PXP also owns the Kotara Ridley Facility and the Love Crews Facility in the vicinity of

the plaintiffs’ property. Each of these facilities have been found leaking fugitive emissions

through FLIR video and each has been witnessed burning black smoke through its flares. These

black flares are the result of combustion that is inefficient and incomplete causing particulate

matter and noxious, harmful gases to be emitted into the air in excess of permit levels. The

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Cernys have seen the black smoke and smelled the odors that have come onto their property from

these facilities, some of which are strong enough to cause a burning sensation in their sinus area

when they breathe.

!NO EVIDENCE SUMMARY JUDGMENT STANDARD !

The purpose of the no-evidence summary judgment procedure, which is modeled after

the federal summary judgment practice, is to pierce the pleadings and evaluate the proof to see if

a trial is necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106

S.Ct. 1348, 1356 (1986). To accomplish this, the no evidence summary judgment procedure is

designed to isolate and dispose of factually unsupported claims or defenses. Celotex Corp. v.

Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553 (1986). To defeat a no evidence motion for

summary judgment, the non-movant must produce more than a scintilla of evidence to raise a

genuine issue of material fact. Tex.R.Civ.P. 166(a)i. The non-movant is not required to marshal

its proof, but need only point out evidence that raises a fact issue on the challenged elements.

Tex.R.Civ.P. 166(a)i Notes and Comments. The trial court must resolve all reasonable doubts

about the facts in favor of the nonmovant. Lehrer v. Zwernemann, 14 S.W.3d 775, 777 (Tex.App.

– Houston [1st Dist.] 2000, pet. Denied).

!NO EVIDENCE ISSUES RAISED BY MARATHON AND PXP DEFENDANTS

1. The defendants allege there is no evidence that their operations caused any injuries or damages to the plaintiffs.

2. The defendants allege there is no evidence of Negligence. 3. The defendants allege there is no evidence of Negligence Per Se. 4. The defendants allege there is no evidence of Private Nuisance, either intentional,

negligent, or abnormal and out of place.

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!PLAINTIFF’S EVIDENCE AND ARGUMENT

Response to No Evidence Issue #1 - No Evidence of Causation

Marathon and PXP’s argument is completely misplaced…the defendants rely heavily and

exclusively on the holding in Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997).

However, the plaintiffs specifically disclaimed any “personal injury damages” that would have

invoked the holdings in Havner, in the Plaintiffs’ Fourth Amended Petition filed on June 13,

2014, several days before any Summary Judgment motions had been filed. In the Plaintiffs’

Fourth Amended Petition, page 12 it states:

The plaintiffs specifically disclaim any “personal injury damages” that would invoke Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 714-715, 720 (Tex. 1997); Merck & Co., Inc. v. Garza, 347 S.W.3d 256 (Tex. 2011); and Borg-Warner v. Flores, 232 S.W.3d 765, 770 (Tex. 2007). More specifically, the plaintiffs hereby disclaim any and all claims seeking recovery for a diagnosed “disease” that also occurs genetically and for which a large percentage of the causes are unknown. Thus, the plaintiffs do NOT seek recovery in damages for defendants’ actions having caused the particular “disease”. !

Thus, the plaintiffs only seek recovery for “symptoms typical of discomfort rather than disease”,

as allowed, permitted, and recoverable under Texas law. The Texas Supreme Court’s holding

“the affidavit submitted by [the plaintiffs’] medical expert in response to the case management

order alleges causation only as to symptoms typical of discomfort rather than disease, thus

alleging nuisance damages rather than personal injury [disease damages]” is dispositive on the

issues before the Court. See Schneider Nat. Carriers, Inc. v. Bates, 147 SW 3d 264, 269 (Tex.

2004) (citing Vestal v. Gulf Oil Corp., 149 Tex. 487, 235 S.W.2d 440, 441-42 (1951)). The

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Plaintiffs are not required to submit Havner causation proof/evidence for Plaintiffs’ “symptoms

typical of discomfort rather than disease” damages.

Plaintiffs’ “symptoms typical of discomfort rather than disease” include the following, as

stated on pages 13 and 14 of the Plaintiffs’ Fourth Amended Petition:

The plaintiffs seek recovery for their symptoms which are typical of discomfort rather than disease due to unreasonable fear, apprehension, offense, discomfort, annoyance, sickness, injury to health, exacerbation of physical health or pre-existing condition, harm from assault on plaintiffs’ senses, nausea, loss of peace of mind, emotional harm or distress, inconvenience, and deprivation of enjoyment of their property. !

These damages will be referred to as “Symptom damages” for the remainder of this response. As

shown more fully below, Symptom damages do not require Havner proof/evidence of causation.

Disease v. Symptom

There must be a clear distinction made between a “disease” and a “symptom”, and for

that we look to medical dictionaries:

Symptom   (noun):   subjective   evidence   of   disease   or   physical  disturbance   observed   by   the   patient   <headache   is   a   symptom   of  many   diseases>   <visual   disturbances   may   be   a   symptom   of   retinal  arteriosclerosis>;  broadly:  something  that  indicates  the  presence  of  a  physical  disorder.  !Disease   (noun):    an   impairment  of   the  normal   state   of   the   living  animal  or  plant  body  or  one  of  its  parts  that  interrupts  or  modi7ies  the   performance   of   the   vital   functions,   is   typically  manifested   by  distinguishing   signs   and   symptoms,   and   is   a   response   to  environmental   factors   (as   malnutrition,   industrial   hazards,   or  climate),   to   speci>ic   infective  agents   (as  worms,  bacteria,  or  viruses),  to   inherent   defects   of   the   organism   (as   genetic   anomalies),   or   to  combinations  of  these  factors.    !

Merriam-Webster Medical Desk Dictionary, Version 4.6 (2008) (emphasis added); See Also, http://www.medilexicon.com/medicaldictionary.php (defining the terms as follows: (symptom: 1. Any morbid phenomenon or departure from the normal in structure, function, or sensation, experienced by the patient and indicative of disease) and (disease: 1. An interruption, cessation, or disorder of a body, system, or organ

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structure or function. 2. A morbid entity ordinarily characterized by two or more of the following criteria: recognized etiologic agent(s), identifiable group of signs and symptoms, or consistent anatomic alterations.)); http://www.medterms.com/script/main/hp.asp (defining symptom as follows: (symptom: any subjective evidence of disease. In contrast, a sign is objective. Blood coming out a nostril is a sign; it is apparent to the patient, physician, and others. Anxiety, low back pain, and fatigue are all symptoms; only the patient can perceive them.) (emphasis added)).  ! It is without dispute from any witness or expert that the plaintiffs have each been

experiencing “symptoms” which coincide with exposure to oilfield smells, odors, gases, and

chemicals, as will be shown below, and for this the plaintiffs do claim damages in this lawsuit.

A Havner analysis is triggered by the need to resort to epidemiological evidence for

causation of a particular “disease,” which is different than a “symptom.” See, Havner, 953 S.W.

2d at 714. This is undisputed by the parties. Defendants are not claiming that a Havner analysis

is triggered by the need to resort to epidemiological evidence for causation of a “symptom.”,

since that is clearly not what case law states. On the contrary, the defendants’ position will most

certainly be that the plaintiffs’ damages are based on a “disease”, and they will not agree that the

plaintiffs’ complaints are “symptoms”. However, as quoted above in medical literature, a 1

“symptom” may be indicative of more than one disease and can be “diagnosed” by the patient

(and sometimes only by the patient), whereas a “disease” stands alone and must be diagnosed by

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Defendants will almost assuredly refer to any distinction between “symptoms”, such as discomfort and 1

annoyance, and “disease”, as a weak argument and a stretch of the law. However, the distinction between “symptoms typical of discomfort rather than disease” was not created by the plaintiffs, it was created by the Texas Supreme Court. See, Schneider Nat. Carriers, Inc. v. Bates, 147 SW 3d 264, 269 (Tex. 2004) (citing Vestal v. Gulf Oil Corp., 149 Tex. 487, 235 S.W.2d 440, 441-42 (1951)); For cases that show recoverable damages to plaintiff include personal discomfort, annoyance, assault on the senses and emotional harm through fear, apprehension, offense, or loss of peace of mind, see also, Cain v. Rust Indus. Cleaning Servs., 969 S.W.2d 464, 470 (Tex.App. - Texarkana 1998, pet. denied); Ehler v. LVDVD, L.C., 319 S.W.3d 817, 823 (Tex.App. - el Paso 2010, no pet.); Columbian Carbon Co. v. Tholen, 199 S.W.2d 825, 829 (Tex.App. - Houston [14th Dist.] 2001, pet. denied); Meat Producers, Inc. v. McFarland, 476 S.W.2d 406, 410-11 (Tex.App. - Dallas 1972, writ ref’d n.r.e.); Hindman v. Texas Lime Co., 305 S.W.2d 947, 950 (Tex. 1957). The Texas Pattern Jury Charges confirm that a nuisance causes “unreasonable discomfort or annoyance to a person of ordinary sensibilities.” TX PJC 12.1 (2012).

a medical professional. Accordingly, in the case at bar, the type of damages sought is key to

what type of causation evidence is required; it is not claim dependent. If plaintiffs seek recovery

for causation of a specific disease, then Havner applies. However, as plaintiffs have disclaimed

any specific disease and seek recovery for their Symptom Damages, Havner does not apply. 2

The Texas Supreme Court placed “noxious” fumes and their effects on neighboring

landowners in the category of “discomfort” damages. Schneider Nat. Carriers, 147 S.W.3d at

269, 292. In this case, the plaintiffs complained of “noxious” fumes emanating from the

defendants’ facilities, and the effects thereof. Merriam-Webster’s Dictionary defines “noxious”

to mean “physically harmful or destructive to living beings”. When discussing the plaintiffs’

complaints regarding “noxious” fumes, the Texas Supreme Court categorized this as the

plaintiffs’ “discomfort”. Id. at 292. Moreover, while analyzing the plaintiffs’ complaints about

“noxious” fumes, the Court never cited to or mentioned the application of “the Havner line of

cases”.

In a case involving a No-Evidence Summary Judgment such as the one pending in this

case and one which further illustrates the point that discomfort and annoyance damages are

recoverable, consider Belasco v. Pennco, Inc., 2000 WL 1789057 (Tex.App. - Houston [14th

Dist.] Dec. 7, 2000, pet. denied). In this case, seven members of the Belasco family filed suit

against Pennco, claiming they repeatedly detected noxious odors from Pennco’s plant and

suffered various injuries and ill health due to chemicals released from the plant. The plaintiffs

brought claims of nuisance, trespass, negligence, negligence per se and gross negligence. The

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Should this Court hold that any one of the Symptom Damages is a “disease[-type]” damage, then the 2

proper procedural remedy is for Defendants to move to strike the individual “disease[-type]” damage – not a wholesale dismissal of all Symptom Damages.

court first stated the law that a nuisance occurs in one of three ways: (1) by physical harm to the

property, such as by encroachment of a damaging substance or property destruction; (2) physical

harm to a person on his property, such as by an assault on his senses or personal injury; and (3)

by emotional harm to a person from the deprivation of the enjoyment of his property, such as by

fear, apprehension, offense, or loss of peace of mind. Id. at 4 (citing Maranatha Temple v.

Enterprise Prods, 893 S.W.2d 92, 99 (Tex. App.—Houston [1st Dist.] 1994, writ denied)). The

court specifically noted that polluting the atmosphere with noxious or offensive odors, gases or

vapors could become a nuisance if it causes material discomfort and annoyance to one residing

in the area or injures their health or property. Id. To support their nuisance claim, the plaintiffs

offered an investigatory report, which established that “fumes sometimes travel beyond the

property lines when the reactors are operating.” Id. at 5. The court found that this single

admission was sufficient to overcome the defendant’s no-evidence motion for summary judgment

on plaintiffs’ nuisance claim. Id. Additionally, the court clarified that the plaintiffs needed to put

forth some evidence that sulfuric acid vapors escaped beyond the perimeter of Pennco’s property

to survive summary judgment on their claims for “acute respiratory irritation”. Id. at 8. Such

analysis is consistent with that of other Texas appellate courts who have held that, under any of

the 3 possible nuisance claims described above, summary judgment is improper so long as the

plaintiff shows that the toxic substances were deposited on the plaintiff’s property. See Cain v.

Rust Indus. Cleaning Servs., 969 S.W.2d 464, 470-71 (Tex. App.—Texarkana 1998, pet. denied).

Interestingly, the only claims in Belasco that were subjected to a Havner analysis were those

regarding death and long-term hospitalizations. Id. at 8-9.

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Even considering the law provided above, it is fully expected that the defendants will

continue to site cases that rely on the Havner analysis. These cases, however, will most certainly

have plaintiffs making personal injury claims where they assert that exposure to the defendant’s

substance caused a specific, articulable disease, and none of those cases will involve the

plaintiffs alleging only symptom-type damages such as discomfort, annoyance or inconvenience.

The following cases illustrate when Havner is applied by the court, and each are distinguishable

from all cases involving symptom-type damages, because each alleges a specific disease:

  Merrell   Dow   Pharms   v.   Havner   –   DX:     Birth   Defects.   The  plaintiffs  claimed  that  the  drug  Bendectin  caused  their  child  to  be  born  with  a   “limb  reduction”  birth  defect.  953  S.W.2d  706,  708  (Tex.  1997).    The  plaintiffs  in  Havner  did  not  complain  that  Bendectin  caused  the  child  to  experience  symptoms  associated  with   discomfort,   annoyance,   or   assault   on   her   senses—they  claimed  that  Bendectin  caused  a  speci>ic  disease.    Thus,  Havner  discusses  at   length   the   level  of   scienti>ic   evidence   required   to  prove   (1)   whether   a   substance   is   capable   of   causing   a  particular  disease  or  condition  (i.e.  limb  reduction  birth  defect)  in   the   general   population,   and   (2)   whether   the   substance  caused   a   particular   individual's   disease   or   condition   (i.e.   the  plaintiff ’s  birth  defect).  !

  Borg-­Warner   v.   Flores   –  DX:     Asbestosis.  The  plaintiff   claimed  that  the  defendant’s  asbestos  caused  him  to  acquire  Asbestosis.    232  S.W.3d  765,  766  (Tex.  2007).    The  plaintiff  in  Flores  did  not  complain   that   asbestos   caused   him   to   experience   symptoms  associated   with   discomfort,   annoyance,   or   assault   on   his  senses.     Instead,   the   plaintiff   claimed   that   his   exposure   to  asbestos  caused  him  to  contract  a  speci>ic  form  of  lung  disease,  which   is   a   connection   that   is   not   within   the   province   of   lay  jurors.    !

  Georgia   Paci:ic   Corp.   v.   Bostic   –   DX:     Mesothelioma.     The  plaintiff   brought   a   wrongful   death   lawsuit   claiming   that   the  defendant’s   asbestos   caused   the   decedent   to   acquire  Mesothelioma,   which   caused   his   death.   320   S.W.3d   588,   590  (Tex.   App.—Dallas   2010,   pet.   denied).     The   plaintiff   in  Bostic  did   not   complain   that   asbestos   caused   the   decedent   to  experience   symptoms   associated  with   discomfort,   annoyance,  

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or  assault  on  his  senses.    Instead,  the  plaintiff  claimed  that  the  decedent’s   exposure   to   asbestos   caused   him   to   contract   a  signature   lung   disease,   Mesothelioma,   which   is   a   connection  that  is  not  within  the  province  of  lay  jurors.  !

  Merck  &  Co.,   Inc.  v.  Garza    –  DX:    Heart  Attack.  The  plaintiff   in  Garza  claimed  that  the  drug  Vioxx  caused  the  decedent’s  death  due  to  “probable  myocardial   infarction”.    347  S.W.3d  256,  259  (Tex.  2011).    Again,  the  plaintiff  in  Garza  did  not  complain  that  Vioxx  caused  the  decedent  to  experience  symptoms  associated  with  discomfort,  annoyance,  or  assault  on  his  senses.    Instead,  the   plaintiff   claimed   that   the   decedent’s   exposure   to   Vioxx  caused   him   to   die   from   “myocardial   infarction”,   which   is   not  within  the  province  of  lay  jurors.      !City  of  San  Antonio  v.  Pollock  –  DX:    Leukemia.  The  plaintiffs  in  Pollock  were  claiming  that  their  child  was  exposed  in  utero  to  land>ill  gas  at  levels  high  enough  to  cause  acute  lymphoblastic  leukemia  and  a  pattern  of  chromosomal  anomalies.    284  S.W.3d  809,  812-­‐13  (Tex.  2009).    !

The plaintiffs have specifically disclaimed any specific diseases, and have never alleged a

specific disease. For these legal reasons, and because the plaintiffs will provide more than a

scintilla of evidence as to their claims, as outlined below, the defendants’ Motion for Summary

Judgment must be denied.

!No Evidence Issue #2 - No Evidence of Negligence ! The defendants allege there is no evidence of Negligence on the part of the defendants. !Negligence actions in Texas require a legal duty owed by one person to another, a breach of that

duty, and damages proximately caused by the breach. El Chico Corp. v. Poole, 732 S.W.2d 306,

311 (Tex. 1987). A legal duty is the obligation that requires the defendant to conform to a certain

standard of conduct to protect others against unreasonable risks. Prosser & Keeton on Torts §30.

The most important factor in determining whether a duty exists is the foreseeability of the risk.

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City of Waco v. Kirwan, 298 S.W.3d 618, 624 (Tex. 2009). The courts also consider whether

one party had superior knowledge of the risk. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d

401, 410 (Tex. 2009).

In the case at bar, the Marathon defendants owed a duty to the plaintiffs because (1) they

had a contractual obligation under the terms of the Oil and Gas Lease binding on both parties to

conduct their operations in compliance with all applicable laws, statutes, rules and regulations of

any federal, state, or local agency with authority over their operations; [See, Addendum to Oil

and Gas Lease, page 2, paragraph R(1)]; (2) they had a contractual obligation under the terms of

the Oil and Gas Lease binding on both parties to not allow the release of any toxic or hazardous

substance in or on the leased premises or on plaintiffs’ adjoining property; [Id., paragraph R(2)].

The Marathon and PXP defendants each owed a duty to the plaintiffs in several ways,

including but not limited to:

1. Duty to operate under the Reasonably Prudent Operator standard; 2. Duty to prevent injury to others when it reasonably appears or should appear to a reasonable person that in the exercise of their lawful rights others may be injured by a dangerous condition that was created by the person; 3. Duty to exercise reasonable care to avoid a foreseeable risk of injury to others; 4. Duty to take affirmative action to control or avoid increasing the danger from a condition that has been at least partially created by the person’s conduct; 5. Duty to use ordinary care in protecting others from peril when the peril is under the individual’s control; 6. Duty not to release emissions of noxious gases or chemicals for which there is no permit or in excess of any permitted values; 7. Duty to promptly repair any leaks in tanks, pits, valves, pipes, pipelines, flares, or engines; 8. Duty to ensure that defendants’ operations and equipment do not cause or contribute to a nuisance or contamination of plaintiffs’ property, including but not limited to noxious emissions, sinkholes, structural damage to plaintiffs’ home, excessive dust, excessive traffic, and excessive noise; 9. Duty to use successful modern methods of development, drilling, completing and producing oil and gas wells to protect the plaintiffs’ persons and their property;

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10. Duty to use ordinary care in maintaining their well sites and facilities in a safe condition by inspecting these sites and facilities routinely and regularly for any dangerous condition and by making safe any latent defect; 11. Duty to notify plaintiffs and neighboring landowners when there has been a release of gases or chemicals for which there is no permit or which is in excess of permit levels; 12. Duty to make certain that exhaust flares operate as designed so that complete combustion occurs; 13. Duty to use infrared cameras to perform frequent and routine inspections at well sites and facilities operated by the defendants for leak detection and leak remediation; 14. Duty to make certain its facilities are operating within all state and federal permit levels for all gases and chemicals, including Nitrogen Dioxide; 15. Duty to follow all applicable statutory laws; 16. Duty to use ordinary care in aiding or protecting others from peril when the peril is under the defendant’s control; 17. Duty to exercise reasonable care in performing services that the defendant should recognize as necessary for the protection of other persons or things !

The defendants breached their duties to the plaintiffs in the following actions and omissions:

1. By failing to operate their well sites and facilities as a reasonably prudent operator; 2. By failing to conduct its oilfield operations in a manner which would not pollute the

plaintiffs’ property and expose the plaintiffs to the constant presence of noxious chemicals and gases;

3. By doing frac work on wells in the vicinity of the plaintiffs’ home causing damage to the plaintiffs’ home and property;

4. By failing to dewater drilling fluids, failing to dispose of these fluids, and failing to backfill and compact the mud pits within the time required by Texas law;

5. By emitting noxious chemicals into the environment surrounding the plaintiffs’ property in excess of permit levels or National Ambient Air Quality Standards in violation of state and federal law, which the plaintiffs assaulted the plaintiffs’ senses while on their property;

6. By allowing the escape of noxious odors and harmful chemical compounds during the drilling process through mud pits, shaker assemblies, and formation cuttings, for which there is no emission permit, which migrate onto the plaintiffs’ property which the plaintiffs assaulted the plaintiffs’ senses;

7. By allowing the escape of particulate matters, noxious odors and harmful chemical compounds through inefficient, black burning flares which blow onto the plaintiffs’ property and which assaulted the plaintiffs’ senses;

8. By failing to timely repair the inefficient flares to halt the escape of particulate matters, noxious odors and harmful chemical compounds;

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9. By allowing the escape of noxious odors and harmful chemical compounds through leaks in faulty equipment, oftentimes demonstrated through FLIR video, which migrate onto the plaintiffs’ property;

10. By failing to notify the plaintiffs or any neighbors when a release of dangerous gases or chemicals occurred at any of its facilities or well sites in the vicinity of the plaintiffs’ property;

11. By failing to conduct routine and frequent monitoring of its equipment using infrared cameras to more accurately detect leaks in their well sites and facilities;

12. By failing to repair the leak at the Yosko Unit in a timely manner, allowing the noxious gases, chemicals and “yellowish mist” to release into the air over many weeks, and which migrated onto the plaintiffs’ property;

13. By conducting its operations in a manner which harmed the plaintiffs’ property by causing the property value to depreciate; and

14. By failing to take corrective action after being made aware of its excessive emissions or released gases in order to halt any further harm to the plaintiffs. !

The Issue of Causation in Negligence ! In cases involving Negligence, Gross Negligence and Negligence Pe Se, the Texas

Supreme Court has held that as a general rule, “when a plaintiff’s medical condition is outside

the common knowledge of a layperson, the plaintiff must provide expert testimony that her

injuries were caused by the defendant’s conduct.” Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex.

2007). However, there is an exception to that general rule which states that a jury can determine

causation without expert testimony when (1) a layperson’s general experience and common sense

will enable the layperson to fairly determine the causal relationship between the event and the

condition; (2) categorical scientific principles, usually proved by expert testimony, establish that

the result in question is always directly traceable back to the event in question; or (3) a probable

causal relationship is shown by expert testimony. Guevara, 247 S.W.3d at 666; Parker v.

Employers Mut. Liab. Ins. Co. of Wis., 440 S.W.2d 43, 46 (Tex. 1969). Thus, generally, "lay

testimony establishing a sequence of events [that] provides a strong, logically traceable

connection between the event and the condition is sufficient proof of causation." Id.; See Also,

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Commerce & Indus. Ins. Co. v. Ferguson-Stewart, 2012 Tex. App. LEXIS 4420, 24, 2012 WL

1656537 (Tex. App.—Corpus Christi 2012, pet. denied) (holding that lay testimony of slurred

speech and forgetfulness was sufficient to allow a lay jury to determine that disorientation and

apparent memory loss was at least partly the cause of the plaintiff’s overdose).

In a case very similar to this pending case, in Morgan v. Compugraphic Corp., 675 S.W.

2d 729 (Tex. 1984), the court held that evidence of exposure to chemical fumes from a

typesetting machine caused the plaintiff’s medical symptoms was legally sufficient without

expert medical evidence. The court reasoned that -

“the evidence shows that Morgan had always been in good health prior to returning to work from her vacation. Upon returning to her job, she worked with her face two inches from a typesetting machine which, it is admitted by default, was leaking chemical fumes. Soon after resuming her employment, that is, soon after being exposed to the fumes emanating from the typesetting machine, Morgan experienced problems with “breathing and swelling and the like.” After four or five days of being constantly exposed to these fumes during her working hours, Morgan developed symptoms such as watering of the eyes, blurred vision, headaches and swelling of the breathing passages. We believe this evidence establishes a sequence of events from which the trier of fact may properly infer, without the aid of expert medical testimony, that the release of chemical fumes from the typesetting machine caused Morgan to suffer injury.” !

Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984) (emphasis added). !! The undisputed testimony will be that the plaintiffs’ injuries, whether exacerbation of

existing conditions or new symptoms such as nosebleeds or any of the other Symptom Damages,

all began to occur after oilfield activity in the area bringing odors, smells, gases and chemicals

on their property. [See, Affidavits of Michael Cerny, Myra Cerny and Cameron Cerny].

Furthermore, all of plaintiffs’ Symptom Damages are within the common knowledge of a

layperson (e.g. Unreasonable Fear; Apprehension; Offense; Emotional Harm/Distress;

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Headaches; Chronic Nose Bleeding; Dizziness; Depression, Anxiety, Nausea; Rapid or Irregular

Heartbeat; Tremors; Confusion; Rashes, etc.). Therefore, to prove their damages, plaintiffs will

not require expert testimony or Havner proof/evidence of causation. That being the case,

plaintiffs still rely on their experts for the basis of providing categorical scientific principles

establishing that the defendants’ conduct in their oilfield operations impacted the plaintiffs and

their property with harmful chemicals and that a probable causal relationship between the

defendants’ conduct and the plaintiffs Symptom Damages. See, Guevara, 247 S.W.3d at 666;

Parker v. Employers Mut. Liab. Ins. Co. of Wis., 440 S.W.2d at 46.

!No Evidence Issue #3 - No Evidence of Negligence Per Se

Negligence Per Se applies when courts have determined that the violation of a particular

statute is negligence as a matter of law. Parrott v. Garcia, 436 S.W.2d 897, 900 (Tex. 1969). The

standard of care in these types of cases is defined by the statute itself rather than by the

reasonably prudent person standard used in general Negligence cases. Smith v. Merritt, 940 S.W.

2d 02, 607 (Tex. 1997). A Negligence Per Se claim can be based on the unexcused violation of a

civil or criminal statute, an ordinance, or an administrative regulation.

In this case, plaintiffs have alleged that the defendants violated the following statutes:

1. 30 T.A.C. §101.4. ”No person shall discharge from any source whatsoever one or more air contaminants or combinations thereof, in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation, or property, or as to interfere with the normal use and enjoyment of animal life, vegetation, or property.”

2. Tex.Civ.Prac.&Rem. Code §75.002(h). “An owner, lessee, or occupant of real property in this state is liable for trespass as a result of migration or transport of any air contaminant, as defined in section 382.003(2) of the Texas Health and Safety Code [“Air contaminant” means particulate matter, radioactive material, dust, fumes, gas,

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mist, smoke, vapor, or odor, including any combination of those items, produced by processes other than natural], other than odor, only upon a showing of actual and substantial damages by a plaintiff in a civil suit.”

3. 40 C.F.R. §50.11. National primary and secondary ambient air quality standards for oxides of nitrogen (with nitrogen dioxide as the indicator). The “National primary ambient air quality standards define levels of air quality which the Administrator judges are necessary, with an adequate margin of safety, to protect the public health. National secondary ambient air quality standards define levels of air quality which the Administrator judges necessary to protect the public welfare from any known or anticipated adverse effects of a pollutant. Such standards are subject to revision, and additional primary and secondary standards may be promulgated as the Administrator deems necessary to protect the public health and welfare.” Id., §50.2. !

As will be shown below, there exists ample evidence these statutes were violated by the

defendants.

!No Evidence Issue #4 - No Evidence of Nuisance (of any type)

Historically, Nuisance actions have formed an integral part of environmental litigation

and common law nuisance has existed to protect landowners long before there were regulations

and regulators like the Texas Commission on Environmental Quality. See, Columbian Carbon

Co. v. Tholen, 199 S.W.2d 825 (Tex. App.—Galveston 1947). In fact, some of the earliest

environmental litigation of the United States can be found in reported decisions of the United

States Supreme Court and involve disputes over pollution of the nation’s air and water. See,

Missouri v. Illinois, 180 U.S. 208 (1901); Georgia v. Tenn. Copper Co., 206 U.S. 230 (1907).

William Prosser described the nuisance doctrine, as a “sort of legal garbage can,” pointing out

that Blackstone’s classic definition – a nuisance is anything that causes hurt, inconvenience, or

damage – is broad enough to cover all conceivable torts. Prosser, Nuisance Without Fault, 20

Tex. L. Rev. 399, 410 (1942).

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The Texas Supreme Court held that nuisance is a field of tort liability or a kind of damage

done, not a particular type of conduct. City of Tyler v. Likes, 962 S.W.2d 489, 504 (Tex. 1997);

See Also, Warwick Towers Council of Co-Owners v. Park Warwick, L.P., 298 S.W.3d 436, 444

(Tex. App.—Houston [14th Dist.] 2009, no pet.). What is interesting about the language from the

Texas Supreme Court in Likes is that the Court focused on the “kind of damage done,” which

speaks to damages and “not a particular type of conduct”. Id. In keeping with mandatory

precedence, plaintiffs provide the same analysis and application of “kind of damage done” (e.g.

Symptom Damages) herein.

“A nuisance is a condition that substantially interferes with the use and enjoyment of land

by causing unreasonable discomfort or annoyance to persons of ordinary sensibilities.” Barnes v.

Mathis, 353 S.W.3d 760, 763 (Tex. 2011); Rankin v. FPL Energy, LLC, 266 S.W.3d 506, 509

(Tex.App.—Eastland 2008, pet denied); Wickham v. San Jacinto River Auth., 979 S.W.2d 876,

880 (Tex.App.—Beaumont 1998, pet. dismissed); Loyd v. ECO Res., 956 S.W.2d 110, 125

(Tex.App.—Houston [14th Dist.] 1997, no pet.); Watson v. Brazos Elec. Power Coop., 918 S.W.

2d 639, 644 (Tex.App.—Waco 1996, writ denied). A nuisance action typically involves an

invasion of the plaintiff’s property by light, sound, odor, or a foreign substance. Rankin v. FPL

Energy, LLC, 266 S.W.3d at 509. Shedding further light on the issue of nuisance relevant to

defendants’ Unconventional Shale Gas Development and Natural Gas Activities, plaintiffs offer

the following from “Beyond Coastal Oil v. Garza: Nuisance And Trespass In Hydraulic

Fracturing Litigation”:

The easiest nuisance and trespass claims for neighboring owners to raise in Texas and elsewhere will likely be those involving pollution at and above the surface as a result of drilling and fracturing. The Court in Garza

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made clear that a fracturing operation that placed materials on the surface of neighboring property would result in an actionable trespass (see Garza, 268 S.W.3d at 11), and as early as 1935, a Texas court noted, in affirming the validity of then-municipal minimum acreage requirements for oil and gas wells, that wells can cause a variety of problems at the surface--"dangers from the escape of gas, explosions, fire, cratering, etc., incident to the drilling of wells, and the production of oil and gas." Tysco Oil Co. v. R.R. Comm'n, 12 F. Supp. 202, 203 (S.D. Tex. 1935). !The Texas Supreme Court recently granted review, for example, in a permanent nuisance case for noise and odor from a natural gas compressor, in which a jury in the 62nd Judicial District Court, Lamar County, awarded $1.2 million in damages and the Texarkana Court of Appeals affirmed. Natural Gas Pipeline Company of America v. Justiss, 2010 WL 1730148 (Tex. App.-Texarkana, Apr. 30, 2010) (rev. granted June 17, 2011). !Neighboring surface owners who can prove that an operator sent large quantities of pollution onto the surface and that this pollution harmed their property may have the highest chances of success. See ERNEST E. SMITH & JACQUELINE L. WEAVER, TEXAS LAW OF OIL AND GAS § 2.1(B) (Matthew Bender 2d ed. 1998 & 2008 Update) for a discussion of surface owner-mineral lessee conflicts. See also, e.g., Lanahan v. Myers, 389 P.2d 92, 93 (Okla. 1963) (in a case decided prior to the passage of Oklahoma's Surface Damage Act, affirming a jury award of damages for an oil operator's use of pits on the surface "for longer than reasonably necessary"); Brown v. Lundell, 162 Tex. 84, 85, 88 (1961) (in a case in which the surface owner also owned the minerals (and was the mineral lessor), finding that it was necessary that "salt water be separated from the oil" in order for the mineral lessee to produce oil but that "the seepage of the salt into the fresh water stratum [from an open pit] could have been prevented and constituted a negligent use of the premises," and affirming a jury's award of damages to the lessor); Stradley v. Magnolia Petroleum Co., 155 S.W.2d 649, 651, 652 (Tex.Civ.App. 1941) (in a case in which the minerals had been severed from the surface, affirming a jury award of damages to the surface owner when the oil development company "used and occupied six acres more of the surface of the land than was reasonably necessary for its full enjoyment of the minerals in and under"). !

Wiseman, Hannah. Beyond Coastal Oil v. Garza: Nuisance And Trespass In Hydraulic Fracturing Litigation, 57 The Advocate 8 (Winter 2011).

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See Also, William R. Keffer, Drilling For Damages: Common Law Relief In Oilfield Pollution Cases, 47 SMU L. Rev. 523 (stating that “In Texas, it is clear that a private nuisance claim can support an allegation of property damage and personal injury caused by pollution…. Nuisance claims also permit recovery of "soft" actual damages, such as inconvenience, annoyance, and discomfort, which, after all, constitute the very nature of a nuisance claim.” See,Stanolind Oil & Gas Co. v. Smith, 290 S.W.2d 696 (Tex. Civ. App. -Beaumont 1956, no writ); Vestal v. Gulf Oil Corp., 149 Tex. 487, 235 S.W.2d 440 (1951)). !

Although many nuisance actions are based on property damage, a plaintiff may also

recover personal injury damages caused by a nuisance. See, Schneider National Carriers, Inc.,

147 S.W.3d at 268 n.2. As early as the mid-1800s, the Texas Supreme Court held, “To be

actionable, it is not necessary that the annoyance should be of a character to endanger health; it is

sufficient if it is offensive to the senses and renders the enjoyment of life and property

uncomfortable” Burditt v. Swenson, 17 Tex. 489, 502 (1856). Thus, the Texas Supreme Court has

specifically said that Plaintiffs can recover under nuisance for “annoyance” and “discomfort”,

neither of which require expert testimony as outlined in Havner. Nuisance is well suited for and

can be used to litigate environmental related disputes, as seen in Chapter 12 of the PJC – an

entire chapter now devoted to nuisance. The jury instructions and commentary provide guidance

on the elements and recoverable damages for this tort. For example, property owners to

challenge day and night construction activities giving rise to unreasonable noise, vibration,

pounding and excessive use of bright lights, pollution caused by operations on a turkey farm, and

pollution caused from the operation of an industrial plant. See C.C Carlton Industries, L.T.D. v

Blanchard, 311 S.W.3d 654 (Tex. App.–Austin 2010) (construction activities); Lacy Feed

Company v. Parrish, 517 S.W.2d 845 (Tex. App.–Waco 1975) (turkey farm pollution);

Columbian Carbon Co. v. Tholen, 199 S.W.2d 825 (Tex App.–Galveston 1947) (industrial plant).

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As will be shown below, the plaintiffs have complained repeatedly of noise, odors, noxious

smells, vibrations in their home, excessive traffic, dust, and pollution of their property caused by

the defendants’ operations. These caused the plaintiffs’ Symptom damages as outlined above and

as outlined in the Plaintiff’s Fourth Amended Petition on file.

Evidence for all forms of nuisance are provided below. Furthermore, it is without dispute

that Volatile Organic Compounds and other oilfield gases and chemicals are abnormal and out of

place in a person’s yard and in in their home.

!Evidence of Odors, Traffic, Noises, Oilfield Gases or Chemicals on Cerny property ! Evidence Source

Each plaintiff smelled foul odors, dust and smells on their property, including inside their home.

Affidavits of Myra L. Cerny, Michael Cerny, and Cameron A. Cerny

Marathon conducted air monitoring on the Cerny property which they reported under a May 23, 2012 cover letter. Results confirmed Sulfer Dioxide, Volatile Organic Compounds, Hydrogen Sulfide, and Lower Exposure Limit were measured and found on the Cerny property.

Marathon letter with results dated May 3, 2012 attached as Exhibit ‘1’

Earthworks environmental group took air canister readings on the Cerny property on March 4, 2013 and confirmed the presence of 6 oilfield chemical compounds, including Benzene.

Affidavit of Sharon Wilson with attachments

Myra Cerny writes to Robert Estill of Marathon about the “maddening noise” surrounding her home, the irritation of the eyes from dust and chemicals.

October 5, 2012 letter from Myra Cerny to Marathon executive Robert Estill, attached as Exhibit ‘2’

Constant traffic on road in front of their home which did not exist previously exist before oilfield.

Affidavit of Myra L. Cerny and Michael Cerny, and photographs of traffic in Exhibit ‘3’

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!!!!Evidence of Causation of Cerny Symptoms, along with Symptom Damages ! Evidence Source

Scientific air modeling using latest modeling techniques show emissions from the Marathon Yosko incident reached the Cerny property over a period from January 2012 to March 2012.

Affidavit of Keith Zimmermann, P.E. and his expert report and supplement

Scientific air modeling using latest modeling techniques show emissions reached the Cerny property during the drilling and completion operations of 16 Marathon wells surrounding the Cerny property.

Affidavit of Dr. David Mitchell and his expert report and supplement

Cerny family members each complain of symptoms of discomfort, annoyance and inconvenience including headaches, rashes, difficulty breathing, irritation of eyes and throat (and other symptom damages), which they state they did not have prior to oilfield activities in the area.

Affidavits of Myra Cerny, Michael Cerny and Cameron Cerny

Dr. Dydek relies upon two chemical exposure studies showing that the symptoms resulting from chemical exposure were typical of symptoms of discomfort and annoyance, and included some similar to those complained of the by Cerny family.

Affidavit of Dr. Thomas Dydek, along with his report and supplemental report

Dr. Dydek relies upon air modeling done by Keith Zimmermann and states that the Cerny exposure to nitrogen dioxide while driving by the East Longhorn facility will cause breathing problems.

Affidavit of Dr. Thomas Dydek, along with his report and supplemental report

Dr. Dydek relies upon air modeling done by Dr. David Mitchell and states that the Cerny family is at a high risk due to exposure to VOCs including benzene at the levels generated by the computer model

Affidavit of Dr. Thomas Dydek, along with his report and supplemental report

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!Evidence of Private Nuisance that was Intentional, Negligent, or Abnormal and Out of Place ! Evidence Source Michael Cerny and Myra Cerny state they bought the property in Karnes County which is made the basis of this lawsuit, thus establishing a private interest in the land. Defendants do not dispute this fact.

Affidavits of Michael Cerny and Myra Cerny

Michael Cerny and Myra Cerny state they used to enjoy the quiet surroundings and could take walks, ride bikes. Myra states she could hang out the laundry and there was occasional traffic. Once the oilfield activities began in earnest in their area, they were deprived of these things due to the dust, noise, odors, and traffic.

Affidavits of Michael Cerny and Myra Cerny

Michael Cerny and Myra Cerny each followed the smell coming onto their property during southerly winds and traced the smell back to PXP Kotara Ridley/Love Crews Drip Station which they named “Stinkyville”.

Affidavits of Michael Cerny and Myra Cerny

The Cerny family has repeated stated that these noxious smells are found not only in their yard around their home, but also inside their home. The presence of hydrocarbon compounds that smell of rotten eggs, pest spray, or other indescribable order, inside of a house is unusual, abnormal and out of place as a matter of common sense.

Affidavits of Myra Cerny, Michael Cerny, and Cameron Cerny

The defendants are each aware of the dangers of exposure to VOCs, including benzene, nitrogen dioxide, and other oilfield chemicals as these are well documented in the scientific literature, and exposure limits are set by regulatory action, yet each has continued operations in a manner that emits these compounds in excess of regulatory standards

Affidavits of Dr. Dydek, Dr. Mitchell, and Zimmermann

Marathon knew or should have known of the leak in the Yosko unit which was reported to the TCEQ in January 2012, yet it did not stop the fugitive emissions leak until into March 2012. The emissions figures were so high that the TCEQ Recon Team immediately evacuated the site for fear of exposure! According to Marathon representative Chad Haglin,

TCEQ investigation report dated May 14, 2012 and marked as Exhibit 4

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!Evidence of Negligence and Negligence Per Se ! Evidence Source

Marathon also leaked fugitive emissions, including VOCs such as benzene into the air from its Sugarhorn facility, which is in close proximity to the Cerny property, in excess of permitted levels due to an enclosed barrel flare not operating, as noted by the TCEQ. This investigation commenced as a result of a public complaint made by the Cernys. This investigation was conducted over three different days, August 15, 2012, September 5, 2012, and December 18, 2012. The TCEQ investigators found Marathon Sugarhorn facility was releasing fugitive emissions on all three visits!

TCEQ investigation report dated January 24, 2013, marked as Exhibit 5.

Marathon had a duty not to release any toxic or hazardous substances on the Cerny property or on an adjacent property.!!Marathon had a duty to conduct all its operations in compliance with all statutes, rules, regulations, and laws “of any federal state or local authority at any time applicable to the Lessee’s operations on the leased premises.”

Addendum to Cerny Oil & Gas Lease, paragraph R (1) and (2)

Marathon breached its duty not to release any toxic or hazardous substances on the Cerny property or on an adjacent property as confirmed by its own testing, and the computer air modeling analysis of both Dr. David Mitchell and Keith Zimmermann, P.E.

Marathon letter with results dated May 3, 2012 attached as Exhibit ‘1’; Affidavits of Dr. David Mitchell and Keith Zimmermann

Marathon breached its duty to operate its production facilities in compliance with the National Ambient Air Quality Standard set for by the federal government in 40 C.F.R. §50.11 by greatly exceeding emission levels for Nitrogen Dioxide on the public highways used by the Cernys.

Affidavit of Keith Zimmermann, along with his report

PXP and Marathon breached its duty not to release emissions of noxious gases or chemicals for which there is no permit or in excess of any permitted values.

Affidavits of Myra Cerny and Sharon Wilson with FLIR video of PXP Drip Station and Marathon Sugarhorn facility

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!!RELIEF REQUESTED

The plaintiff requests that the court deny the defendant’s No Evidence and Traditional

Motion for Summary Judgment since the plaintiff has brought forth more than a scintilla of

evidence as to each aspect alleged in the defendant’s motion.

Respectfully Submitted, !The Law Office of Tomas Ramirez III Ramirez Professional Building 217 W. Hondo Avenue, Suite 200 Devine, Texas 78016 Office: (830)663-1010 tommy@tramirezlaw.com !By: _____________________ Tomas Ramirez III, Attorney for Plaintiffs State Bar No. 00788239 !!!!

PXP and Marathon breached its duty to use ordinary care in maintaining their well sites and facilities in a safe ! !condition by inspecting these sites and facilities routinely and regularly for any dangerous condition and by making safe any latent defect

Affidavits of Myra Cerny and Sharon Wilson with FLIR video of PXP Drip Station and Marathon Sugarhorn facility

PXP and Marathon have violated 30 T.A.C. §101.4, a statute designed to protect the public, by discharging from any source whatsoever one or more air contaminants or combinations thereof, in such concentration and of such duration as are or may tend to be injurious to or to adversely affect human health or welfare, animal life, vegetation, or property, or as to interfere with the normal use and enjoyment of animal life, vegetation, or property.

Affidavits of Myra Cerny, Keith Zimmermann and expert report, Dr. David Mitchell and expert report, and Sharon Wilson

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CERTIFICATE OF SERVICE ! I certify that a true and correct copy of the foregoing has been delivered via email and

first class mail to Bill Kroger and James Ormiston on this 10th day of July, 2014.

!_________________________

Tomas Ramirez III !

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AFFIDAVIT OF MYRA L. CERNY !THE STATE OF TEXAS § § COUNTY OF KARNES § ! On this ____ day of June, 2014, Myra L. Cerny came before me and after being duly sworn, stated as follows: ! “My name is Myra L. Cerny. I am over the age of 18 years and am of a sound mind. I am personally familiar with the facts as stated in this affidavit as they are based on my personal knowledge, and the facts as stated in this affidavit are true and correct.” ! “My husband Michael A. Cerny and I own the home located at 5001 FM 99, Karnes City, Karnes County, Texas. We purchased that property in 2003 when we were living in San Antonio for the purpose of getting out of the big city and moving to a place where life was quiet and slow-paced. The area was rural with occasional traffic from a local going either to or from Karnes City. We enjoyed the change in lifestyle. I would wash our family clothes and hang them out to dry on a small clothesline we had on the back of the property. We would take walks and ride bikes, enjoying the quiet and peaceful setting. Our son Cameron was young when we made the move, but we all loved the area.” ! “The house we bought was a small, “fixer-upper” that needed some work. The structure of it, however, was sound. The walls and the ceiling were free from cracks. The yard consisted of one acre of land that surrounded the home. It was flat and had no holes.” !

“The Eagle Ford Shale was discovered and the oilfield slowly began moving into Karnes County in about 2010. At the time, it didn’t effect my family or our property. However, in early 2012, we found our property entirely surrounded by oilfield activities. There were wells or production facilities all around our home. It was at this time we began to notice that lots of dust and noise had radically altered our home and our way of living. I found that I could no longer hang the family clothes out to dry because they would be covered in dust. I moved the clothes indoors and have been hanging them in the laundry room in the back ever since. The noise became very loud and upsetting since big trucks and constant traffic were always moving along FM 99 directly in front of our house. Many times, large trucks would park in front of our house and sit there for a period of time, as if waiting for something. Sinkholes also started developing on our property in several places, which had never been there before.” !

“We also began smelling foul odors, sometimes like rotten eggs, other times like pest spray, and other times in ways we could not describe. These smells became constant and it was hard to keep them out of the house since we do not have air conditioning in our home. Michael and I had each had medical issues before the oilfield activities began, but some of these conditions began to get worse such as trouble breathing. We also began to notice that we were

getting headaches daily, instead of occasionally, and they were much more intense. We also began to get rashes. My son began to get nose bleeds, which he never had before. Some of the different things we began to feel included chest pain, bone pain, strange nerve sensations, irregular heartbeats, nausea, irritation of the eyes, nose and throat, pain in the liver area, numbness in the extremities, and difficulty breathing. All of this led to each of us having more anxiety and depression than we had experienced before. We felt hopeless, irritable, and we had trouble sleeping. It has been terrible. Taking walks and bike rides stopped, since the traffic, noise, odors, and dust were always causing us to feel bad.” !

“We have had to leave our home a few times because the odors were so intense that we couldn’t stand it anymore. When we leave the area, we all end up feeling much better after about a day. When we return, those smells return and so do our symptoms.” !

“The wind usually blows from the south in the area where we live. During those south winds we often would smell a strong smell that either caused or worsened many of our symptoms. One day, we decided we were going to head south to see where that smell was coming from. We drove and found Plains Exploration & Producing Company’s Kotara Ridley/Love Crews Drip Station almost directly to the south of our property. The place smelled terrible. From that day forward, we named it “Stinkyville”, and we regularly smell its odors during southerly winds.” !

“In 2013, Marathon came to our property and tested the air. Marathon themselves found the presence of oilfield gases and chemicals on our property, but they alleged that the amounts were lower than the standards set out for an 8 hour workday. We don’t work on our property for 8 hours and then leave. We live there 24 hours a day, 7 days a week.” !

“I began a campaign to stop all this oilfield activity before all was lost. I complained to the Texas Commission on Environmental Quality and the Texas Railroad Commission. I attended town hall meetings and voiced my concerns. I did this in the hopes of getting my family’s life back, and stopping all of this pollution of my property. When nothing worked, I contacted my lawyer and got involved in this lawsuit.” ! Further the Affiant sayeth not. !

__________________________ Myra L. Cerny ! SWORN AND SUBSCRIBED TO BEFORE ME, the undersigned authority, by Myra L. Cerny on this ____ day of June, 2014. !

__________________________ Notary Public for The State of Texas

!AFFIDAVIT OF CAMERON CERNY !

THE STATE OF TEXAS § § COUNTY OF KARNES § ! On this ____ day of June, 2014, Cameron A. Cerny came before me and after being duly sworn, stated as follows: ! “My name is Cameron A. Cerny. I am a minor who has not yet reached the age of 18 years, and am of a sound mind. I am personally familiar with the facts as stated in this affidavit as they are based on my personal knowledge, and the facts as stated in this affidavit are true and correct.” ! “I reside at the home located at 5001 FM 99, Karnes City, Karnes County, Texas. We moved there from San Antonio when I was about 5 years old. The area around our home used to be very quiet and peaceful, with very little traffic moving through the area where we live. That all changed when the oilfield companies moved into the area. We started smelling bad odors from our yard, and even in our house. We don’t have air conditioning in our home so we have to leave the windows and doors open to keep the house cool. The smells were bad, and I started having trouble breathing after a while. I went to the doctor and I was given an inhaler. I also started getting nose bleeds which I had never had before. Today, the nose bleeds happen about once every couple of days. But if I leave to go visit family away from the area, I don’t have the nose bleeds and I breathe easier.” !

“These smells have made my parents feel bad, and we don’t know how we are going to get away from this problem. It has been a terrible time for me and my family, and there has been a lot of stress and frustration that we all have felt.” ! Further the Affiant sayeth not.

__________________________ Cameron A. Cerny ! SWORN AND SUBSCRIBED TO BEFORE ME, the undersigned authority, by Cameron A. Cerny on this ____ day of June, 2014. !

__________________________ Notary Public for The State of Texas

AFFIDAVIT OF MICHAEL A. CERNY !THE STATE OF TEXAS § § COUNTY OF KARNES § ! On this ____ day of June, 2014, Michael A. Cerny came before me and after being duly sworn, stated as follows: ! “My name is Michael A. Cerny. I am over the age of 18 years and am of a sound mind. I am personally familiar with the facts as stated in this affidavit as they are based on my personal knowledge, and the facts as stated in this affidavit are true and correct.” ! “I own the home located at 5001 FM 99, Karnes City, Karnes County, Texas. My wife and I purchased that property in 2003 when we were living in San Antonio for the purpose of getting out of the big city and moving to a place where life was quiet and slow-paced. The area was rural with occasional traffic from a local going either to or from Karnes City. We enjoyed the change in lifestyle. It was a quiet and peaceful setting; life was slow paced and we were content. Our son Cameron was young when we made the move, and we all loved the area.” ! “The house we bought was a small, “fixer-upper” that needed some work. The structure of it, however, was sound. The walls and the ceiling were free from cracks. The yard consisted of one acre of land that surrounded the home. It was flat and had no holes.” !

“The Eagle Ford Shale was discovered and the oilfield slowly began moving into Karnes County in about 2010. At the time, it didn’t effect my family or our property. However, in early 2012, we found our property entirely surrounded by oilfield activities. There were wells or production facilities all around our home. It was at this time we began to notice that lots of dust and noise had radically altered our home and our way of living. We discovered that we could no longer hang the family clothes out to dry because they would be covered in dust. I had also attempted to open a bar-b-que business in a hut I built on my one acre on the side of my house. I was selling BBQ for about a month before I had to close it down; there was too much dust that was getting into the food and I could not sell it that way.” !

“The noise became very loud and upsetting since big trucks and constant traffic were always moving along FM 99 directly in front of our house. Many times, large trucks would park in front of our house and sit there for a period of time, as if waiting for something. The road directly in front of our house, FM 99, developed a lot of pot holes, so the road was re-done a few different times, each time exposing caliche and running large trucks over the road, causing lots of dust and noise. Sinkholes also started developing on our property in several places, which had never been there before.” !

“We also began smelling foul odors, sometimes like rotten eggs, other times like pest

spray, and other times in ways we could not describe. These smells became constant and we couldn’t escape them even when we were inside our house, since we do not have air conditioning in our home. It is very demoralizing to not find any solace or respite from those smells even when inside my own house. Myra and I had each had medical issues before the oilfield activities began, but some of these conditions began to get worse after the dust and noxious smells such as trouble breathing. We also began to notice that we were getting headaches daily, instead of occasionally, and they were much more intense. We also began to get rashes. My son began to get nose bleeds, which he never had before. Some of the different things we began to feel included chest pain, bone pain, strange nerve sensations, irregular heartbeats, nausea, irritation of the eyes, nose and throat, pain in the liver area, numbness in the extremities, and difficulty breathing. All of this led to each of us having more anxiety and depression than we had experienced before. We felt hopeless, irritable, and we had trouble sleeping because we were afraid this was a permanent situation which would not change. It has been terrible. Taking walks and bike rides stopped, since the traffic, noise, odors, and dust were always causing us to feel bad, and we didn’t feel safe anymore.” ! “Many times we could see black burning flares where the wind was blowing in our direction from that black smoke. There were several flares around our house and many times they burned black and towards our property. Sometimes the black smoke would give off an odor and we would feel irritation of the eyes, nose and throat, or other of the symptoms I mentioned above.” !

“We have had to leave our home a few times because the odors were so intense that we couldn’t stand it anymore. When we leave the area, we all end up feeling much better after about a day. When we return, those smells assault our senses and our symptoms return.” !

“The wind usually blows from the south in the area where we live. During those south winds we often would smell a strong smell that either caused or worsened many of our symptoms. I got on my motorcycle and decided to head south to see where that smell was coming from. I drove and found Plains Exploration & Producing Company’s Kotara Ridley/Love Crews Drip Station almost directly to the south of our property. The place smelled terrible. From that day forward, we named it “Stinkyville”, and we regularly smell its odors during southerly winds.” !

“In 2013, Marathon came to our property and tested the air at our house. Marathon themselves found the presence of oilfield gases and chemicals on our property, but they alleged that the amounts were lower than the standards set out for an 8 hour workday. We don’t work on our property for 8 hours and then leave. We live there 24 hours a day, 7 days a week.” ! Further the Affiant sayeth not. !

__________________________ Michael A. Cerny

! SWORN AND SUBSCRIBED TO BEFORE ME, the undersigned authority, by Michael A. Cerny on this ____ day of June, 2014.

__________________________ Notary Public for The State of Texas

AFFIDAVIT OF SHARON WILSON !THE STATE OF TEXAS § § COUNTY OF DALLAS § ! On this ____ day of June, 2014, Sharon Wilson came before me and after being duly sworn, stated as follows: ! “My name is Sharon Wilson. I am over the age of 18 years and am of a sound mind. I am personally familiar with the facts as stated in this affidavit as they are based on my personal knowledge, and the facts as stated in this affidavit are true and correct.” ! “I am the Gulf Regional Organizer for Earthworks, a XXX. I have been involved in the environmental aspect of the Barnett shale production in Pennsylvania and Colorado, as well as the Eagle Ford shale operations in Texas. As part of my duties, I have met with officials at the Environmental Protection Agency and have worked with the Texas OGAP Steering Committee in drafting Drill-Right Texas: Best Oil and Gas Accountability Practices for Texas.” ! “I have also worked in the oil and gas industry for 12 years, and I learned much about the oilfield operations from these 12 years.” !

“Earthworks became very concerned about the Eagle Ford shale operations when they began in south Texas. I visited the area and began working to notify the public about the dangers of the shale operations. It was during my work in Karnes County that I met Myra and Michael Cerny, along with their son, Cameron. I visited with the family a few times and listened to their concerns. They complained about the terrible smells, which I myself could smell while on their property, that they could not get away from. They complained about how they were experiencing rashes and headaches, along with difficulty breathing. They said Cameron was getting nosebleeds.” !

“The Cernys spoke about a place they had named “Stinkyville”. I wanted to see it so they took me there. It was a Plains Exploration & Producing Company (“PXP”) facility named Kotara Ridley/Love Crews Drip Station. I told them that I could take FLIR video of it, and that we could also take suma canister readings at the site. On March 4, 2013, I along with 4 other persons from Earthworks placed a sums canister immediately outside of the fence line to the drip station. The readings showed several hazardous substances being released at the site, including Benzene at a rate 20 times above the Texas Commission on Environmental Quality’s (“TCEQ”) Long Term Health Effects Screenings Limit. At the time, four of us did not use any breathing masks, while one of our group did. The four who did not, including myself, got very nauseous and felt ill. My symptoms did not relieve themselves until the next day when I was back home and away from Karnes County. The one person who did use a mask felt fine.” !

“In order to see if any of these hazardous substances were migrating onto the Cerny property, we placed a second canister at the Cerny property, outside of their house. The wind was blowing from the south pretty strong that day, but even so, the canister at the Cerny property demonstrated that 6 of the hazardous substances found at the PXP drip station were also found on the Cerny property, including the Benzene. The canister results are attached to this affidavit, with Air Sample Eagle Ford Shale 001 being at the drip station and 002 being at the Cerny home.” !

“Marathon also placed a canister at the Cerny home that same year and also confirmed the presence of these hazardous substances.” !

“I am trained and certified on how to use FLIR video cameras, and I take FLIR video on a regular basis for my work. FLIR video is one of the methods used to see gases and other substances that are escaping from production facilities, which are not visible to the naked human eye. The TCEQ uses FLIR to check on facilities during the performance of its duties, and the industry will use FLIR video as part of its maintenance program. As part of my job with Earthworks, I have taken well over 25 FLIR videos in Karnes County, some of Marathon facilities and others of PXP facilities. I have taken these videos at different times on a random basis in order to see if the facilities are leaking gases into the air regularly or sporadically. Each time I took FLIR video, these facilities were ALWAYS leaking gases into the air. I have attached to this affidavit one FLIR video of the drip station and one of the Marathon Sugarhorn production facility, both of which are in close proximity to the Cerny property.” ! Further the Affiant sayeth not. !

__________________________ Sharon Wilson ! SWORN AND SUBSCRIBED TO BEFORE ME, the undersigned authority, by Sharon Wilson on this ____ day of June, 2014. !

__________________________ Notary Public for The State of Texas

AFFIDAVIT OF KEITH ZIMMERMANN, P.E. !THE STATE OF TEXAS § § COUNTY OF TRAVIS § ! On this ____ day of June, 2014, Keith Zimmermann came before me and after being duly sworn, stated as follows: ! “My name is Keith Zimmermann. I am over the age of 18 years and am of a sound mind. I am personally familiar with the facts as stated in this affidavit as they are based on my personal knowledge, and the facts as stated in this affidavit are true and correct.” ! “I am a Registered Professional Engineer and have been ” ! “I have worked as an air quality professional expert for 35 years. I have performed air modeling as an industry professional as well as an engineer for the Texas Air Control Board and the Texas Commission on Environmental Quality. I have taught numerous courses on air dispersion modeling and air pollution meteorology. I have also authored numerous publications in the field of air modeling. I have attached a true and correct copy of my Curriculum Vitae to this affidavit.” !

“I was employed to perform air modeling of the production facilities surrounding the Cerny property, including any documented upset conditions. The air modeling I performed is in conformity with the Environmental Protection Agency’s AERMOD computer model, which is the most modern and accurate scientific method for performing air modeling, and is the model used by the scientific air modeling community in applications such as this.” !

“The report I generated was based on data obtained from the TCEQ, along with meteorological data obtained from the National Weather Service. The conclusions in my report are within reasonable scientific certainty, and are highly probable.” !

“In my modeling analysis, I modeled an upset condition that occurred over several weeks at the Marathon Yosko facility, as outlined and investigated by the TCEQ. I also modeled the Marathon production facilities in the vicinity of the Cerny property based upon the permit data submitted by Marathon to the TCEQ. In my conclusions, the computer modeling showed that the Cerny property was clearly impacted by the leak at the Yosko facility with fugitive hazardous compounds being carried onto the Cerny property over a few weeks. The complete analysis as well as the conclusions are outlined in my report which is already on file in this case.” !

“I also modeled the Marathon production facilities and found, based on the permit figures submitted by Marathon to the TCEQ, that the Marathon’s North Longhorn facility, East Sugarloaf facility and East Longhorn facility were all greatly exceeding the federal National

Ambient Air Quality Standard as outlined in 40 C.F.R. §50.11 for Nitrogen Dioxide, with those results being listed on page 47 of my report. Those results were taken from a receptor on the highway outside of the facility, so that anytime anybody from the public drove by one of those facilities, they were exposed to a high dosage of nitrogen dioxide.” !

“I have been to the Cerny property and have personally visited each of the production facilities which I modeled in my analysis. It is not possible for the Cernys to travel from their home to Karnes City without passing right by the Marathon East Longhorn facility, thus being exposed to the excessive nitrogen dioxide. I also met Mike Cerny and Myra Cerny, and I recall Mike Cerny rode a motorcycle.” ! Further the Affiant sayeth not. !

__________________________ Keith Zimmermann ! SWORN AND SUBSCRIBED TO BEFORE ME, the undersigned authority, by Keith Zimmermann on this ____ day of June, 2014. !

__________________________ Notary Public for The State of Texas

AFFIDAVIT OF DR. DAVID L. MITCHELL, Ph.D. !THE STATE OF TEXAS § § COUNTY OF HARRIS § ! On this ___ day of June, 2014, Dr. David L. Mitchell, Ph.D., came before me and after being duly sworn, stated as follows: ! “My name is David L. Mitchell. I am over the age of 18 years and am of a sound mind. I am personally familiar with the facts as stated in this affidavit as they are based on my personal knowledge, and the facts as stated in this affidavit are true and correct.” ! “I am a Consulting Forensic Meteorologist and have been working in this field since 1976. I am also a Certified Professional Geoscientist. I have worked for oilfield companies such as Conoco, Inc. and Tenneco Oil Company for over fifteen years and I have knowledge about oilfield operations and their impact on the environment. I have worked on matters involving air pollution for over thirty five years. A copy of my Curriculum Vitae is attached to this affidavit.” ! “I was employed to perform air dispersion modeling of the well sites surrounding the Cerny property. The air dispersion modeling I performed is in conformity with the Environmental Protection Agency’s AERMOD computer model, which is the most modern and accurate scientific method for performing air dispersion modeling, and is the model used by the scientific air dispersion modeling community in applications such as this. The report I generated was based on data obtained from the deposition of Chad Haglin, a Marathon corporate representative, climatological data obtained from the Texas Commission on Environmental Quality. The conclusions in my report are within reasonable scientific certainty, and are highly probable.” !

“In my modeling analyses, I modeled the source points for all fugitive emissions generated on a well site within one mile of the Cerny home. These sources of fugitive emissions included but are not limited to open air mud pits, open air shaker assemblies, open air storage of formation cuttings, and emissions from tanks, valves, and connections. These source points are modeled using a pseudo-point to represent the emissions from these combined source points. This was done for 16 wells within a mile of the Cerny property.” !

“When performing an advanced air dispersion modeling such as used in this case, it is customary for the scientific community to make reasonable assumptions to run the computer model when actual hard data is unavailable. The assumptions made in my modeling in this case were customary and reasonable in the scientific community.” !

“The ultimate source for all emissions on the well site are from the chemicals brought on the site by the oil companies or the service companies, as well as the fluids coming to the surface

from the producing formation underground. It is from these sources that emissions release into the air and pollute surrounding property. The results of the air modeling program in the Cerny case show that a significant amount of Volatile Organic Compounds, including benzene, have impacted the Cerny property in rates exceeding the one-hour average Effects Screening Level (ESL) for benzene established by the Texas Commission on Environmental Quality by almost four times. The impact also greatly exceeds the annual TCEQ average ESL for benzene exposure by over four times.” !

“I have been to the Cerny property and have met Mike Cerny and Myra Cerny. I have personally visited the area around their home, and I have viewed the latest satellite imagery showing the well sites around their home, and have been provided with a map generated by Marathon showing the well sites around the Cerny property. I used this information to identify each well site used in my air modeling.” ! Further the Affiant sayeth not. !!

________________________________ Dr. David L. Mitchell, Ph.D. !! SWORN AND SUBSCRIBED TO BEFORE ME, the undersigned authority on this 26th day of June, 2014. !!

__________________________ Notary Public for The State of Texas

AFFIDAVIT OF DR. THOMAS DYDEK, Ph.D., D.A.B.T., P.E. !THE STATE OF TEXAS § § COUNTY OF TRAVIS § ! On this ___ day of June, 2014, Dr. Thomas Dydek, Ph.D., D.A.B.T., P.E., appeared before me and after being duly sworn, stated as follows: ! “My name is Thomas Dydek. I am over the age of 18 years and am of a sound mind. I am personally familiar with the facts as stated in this affidavit as they are based on my personal knowledge, and the facts as stated in this affidavit are true and correct.” ! “I am a Board Certified Toxicologist as a Diplomat of the American Board of Toxicology (D.A.B.T.) and a Licensed Professional Engineer (P.E.). I have over 30 years of continuous experience in the environmental field as a toxicologist focusing on human health risk assessments and evaluations of the potential for adverse public health effects of exposure to air contaminants. I have a Bachelor’s Degree in Mechanical Engineering and a Master's Degree in Environmental Science and Engineering from Rice University in Houston, Texas. My doctoral degree is in Environmental Science and Engineering from the University of North Carolina School of Public Health. I have also done a Post-Doctoral Fellowship in Toxicology in the College of Pharmacy at the University of Texas at Austin. I have attached a true and correct copy of my Curriculum Vitae to this affidavit which demonstrates my experience in the field of toxicology.” ! “I have worked as an air quality professional expert for 38 years. I have worked as an air quality professional expert for 38 years. I have performed human health risk assessments as a solo practice toxicology consultant at my own company, as a private industry professional, and as Senior Staff Toxicologist for the Texas Air Control Board (TACB) which was a predecessor agency to the Texas Commission on Environmental Quality. I developed some of the health effects evaluation procedures used by that agency while working in the Research Division. I have taught courses in toxicology, industrial hygiene, and human health risk assessment. I have also authored or co-authored publications in the fields of health effects evaluations and human health risk assessment. I have attached a true and correct copy of my Curriculum Vitae to this affidavit which details my credentials including my publications, descriptions of my work for the United States EPA, the Texas Air Control Board, in private consulting, and as a technical advisor for the television shows CSI: Las Vegas and Bones.” !

“I was employed in the Cerny case to perform a toxicological assessment of the Cerny family and their property based upon data obtained from the the expert reports of Dr. David L. Mitchell and Keith Zimmermann, P.E., as well as from information obtained from the Cerny family, data produced through documentation generated in this case, and from my personal observations while visiting the Cerny property and the surrounding area.”

!“After reviewing the data available to me, I generated a report which outlined my

conclusions. Since there was deadline by which to file this report, I reserved the right to amend my report as new data became available to me. I have since filed a brief supplement to my report. The original report and the supplement are attached to this affidavit. The conclusions in my report are within reasonable toxicological scientific certainty, and are highly probable.” !

“Marathon itself has acknowledged through its own air testing at the Cerny residence that hydrocarbon chemicals were found on the Cerny property. Keith Zimmermann in his air modeling report using data from the National Weather Service and the Texas Commission on Environmental Quality found that through the Marathon Yosko event over a period of several weeks that chemicals migrated on to the Cerny property. Dr. David L. Mitchell in his air modeling report found that excessive levels of benzene and other volatile organic compounds (“VOCs”) impacted the Cerny property based on the drilling and completion operations of the well sites within a one mile radius of the Cerny property. Earthworks, an environmental group based out of Washington D.C. did private air testing at the Cerny property and also found the presence of six oilfield VOC chemical compounds including benzene. The Cerny family itself has been complaining about noxious odors on their property and inside their home for at least two years. It is without dispute from the evidence presented to me that the Cernys have been exposed to chemical compounds.” !

“In my supplemental report, I cite two epidemiological studies (Partti-Pellinen, et al., “The South Karelia Air Pollution Study: Effects of Low-Level Exposure to Malodorous Sulfur Compounds on Symptoms”, Archives of Environmental Health 51(4):315-320, 1996 and Shusterman, D., et al., “Symptom Prevalence and Odor-Worry Interaction near Hazardous Waste Sites”, Environmental Health Perspectives 94:25-30, 1991). These studies found excess risks of headache, nausea, eye irritation, and throat irritation among groups of people exposed to chemical odors. In these two studies, the two study groups were routinely exposed to unpleasant chemical odors. Interestingly, the exposure of the two groups were to different chemical compounds from different emission sources. The results, however, were similar in that the two groups reported the same symptoms of discomfort and annoyance referenced above.” !

“The Cerny family has also complained of frequent exposures to noxious odors which they claim never existed prior to the oilfield activities surrounding their property. The symptoms of which they complain are very much the same as those of the two study groups cited above. The presence of the chemical odors will cause people routinely exposed to experience symptoms of discomfort and annoyance.” !

“Keith Zimmermann in his report found that emissions from the operation of the Marathon East Longhorn facility would cause exceedances of the National Ambient Air Quality Standard (NAAQS) for nitrogen dioxide as set forth by federal law. According to Mr. Zimmermann’s report, his receptor readings were located on Texas highway FM 99 outside of the facility. I have been to the Cerny property and it is not possible for the Cerny family to travel

to and from Karnes City (taking the usual, direct route) without passing by the East Longhorn facility on FM 99 where elevated levels of nitrogen dioxide were shown to occur. That being said, the Cerny family has very likely been exposed to levels of nitrogen dioxide in excess of the NAAQS for many months while traveling back and forth to Karnes City. It is without dispute that exposure to high levels of nitrogen dioxide causes difficulty breathing, and if a person already had breathing problems prior to any such exposure such as Myra Cerny, then excessive exposures to nitrogen dioxide will surely exacerbate and intensify the person’s breathing problems.” !

“Dr. David L. Mitchell in his most recent report found that the Cerny property was being impacted by oilfield chemical compounds generated during the drilling and completion phases for each well site within one mile of the Cerny residence; benzene was one of the compounds noted on the property. Benzene is a well known carcinogen and at sufficient levels it greatly increases the risk of developing cancer in humans. Dr. Mitchell revised his modeling of the emissions of volatile organic compounds including benzene from Marathon facilities based on new information obtained from the deposition of Chad Haglin, a Marathon corporate representative. This revised modeling has shown a one-hour average benzene concentration of 670 µg/m3 and an annual average benzene level of 20 µg/m3 at the Cerny residence. These revised impacts are 50 percent higher for the one-hour average and 100 percent higher for the annual average compared to Dr. Mitchell’s original numbers.” ! “The new modeled one-hour average exposure level is almost four times the one- hour average Effects Screening Level (ESL) for benzene established by the Texas Commission on Environmental Quality (TCEQ). The new annual average benzene exposure level is 4.4 times the TCEQ’s annual average ESL for benzene. The annual average ESL for benzene is based on cancer risk. Because these benzene impacts are even higher than those obtained in his original report, it is my opinion that the Cernys face an even greater risk from benzene exposure than I had originally stated in my first expert report for this case. These conclusions are based on the current state of toxicological science, are within reasonable toxicological certainty, and are highly probable.” ! Further the Affiant sayeth not. !

______________________________________ Dr. Thomas Dydek, Ph.D., D.A.B.T, P.E. ! SWORN AND SUBSCRIBED TO BEFORE ME, the undersigned authority on this ___ day of June, 2014. !

__________________________ Notary Public for The State of Texas

CAUSE NO. 2012-CI-04360 !Myra L. Cerny § IN THE DISTRICT COURT § VS. § 225th JUDICIAL DISTRICT § ELIZABETH DUNCAN § BEXAR COUNTY, TEXAS !

ORDER DENYING DEFENDANT’S NO EVIDENCE AND TRADITIONAL MOTION FOR SUMMARY JUDGMENT !

LET IT BE KNOWN that on this 10th day of April, 2013, the court held a hearing on the

Defendant’s No Evidence and Traditional Motion for Summary Judgment. The court, having

read the pleadings and hearing the arguments of counsel, is of the opinion that such motion must

be denied.

IT IS THEREFORE ORDERED that the Defendant’s No Evidence and Traditional

Motion for Summary Judgment is hereby DENIED.

SIGNED this 10th day of April, 2013.

!________________________

Judge Presiding !!APPROVED AS TO FORM: !!_____________________ Tomas Ramirez III, Attorney for Plaintiff !!_____________________ Scott Seelhoff, Attorney for Defendant