-i- TO THE SUBROGATE PRESIDENT OF THE ... - Chevron

plaintiffs must prove that my client was negligent and caused specific harm to a diffuse
right.
The plaintiffs’ claim for damages related to the public health is contained in
Chapter VI.2.d of their complaint. This claim seeks the hiring, at the defendant’s
expense, of “specialized persons or institutions in order to design and carry out a plan
for the health improvement and medical monitoring.” 854 Unlike the “diffuse” interest in
the environment, claims for harm to health typically seek to vindicate individual rights,
which when claimed by a group are referred to as “individual homogenous rights” that
are both “individual” and “divisible,” 855 yet it is clear that the plaintiffs have neither pled
nor proved any such personal injuries. To the extent that the plaintiffs are claiming
some generalized interest in public health, they cite no authority for bringing such claims
and, in all events, must prove that my client caused such harm.
Given that plaintiffs are seeking compensation for tort liability, they must, under
Ecuadorian law, prove (i) negligence or intent; (ii) damage; and (iii) a causal nexus
between Chevron’s conduct and the alleged damage. 856 The Supreme Court (now the
National Court) has held that for there to be civil liability, especially tort liability, these
elements must exist and be proven. 857 As discussed below, the plaintiffs have not
established these elements with respect to their claims for environmental remediation or
healthcare costs. 858 The remainder of their requested damages are extra petita and, in
all events, baseless.
(continued…)
in a healthy environment free from pollution as a collective right, a distinction not contained in the current
Constitution.
854 Plaintiffs’ Complaint, filed May 7, 2003, at 11:30 a.m., Record at 73-80v, 80.
855 GIDI, Antonio. Collective Actions and Protection of the Collective and Individual General
Rights in Brazil: A Model for Civil Law Countries, Universidad Nacional Autónoma de México, Instituto de
Investigaciones Jurídicas, Doctrina Jurídica Núm. 151. Mexico, 2004. p. 52.
856 Plaintiffs themselves admit they bear the burden of proof. They argued that “the assertions in
the complaint are to be proven only and exclusively by the Plaintiffs . . . and therefore, if the Plaintiffs
consider the practice of certain evidentiary proceedings to be adequate and others to be unnecessary,
this will should prevail.” Plaintiffs’ Filing, Feb. 15, 2006, at 5:45 p.m., Record at 93628-30, 93628; see
also Judgment of the Supreme Court of Justice, First Civil and Commercial Division, Aug. 29, 2001,
published in Judicial Gazette, series XVII, no. 7, p. 1853.
857 See Judgment of the Supreme Court of Justice, First Civil and Commercial Division, Aug. 29,
2001, published in Judicial Gazette, series XVII, no. 7, p. 1853 (“There must be a causal link between
such misdeeds and the damage.”).
858 The monetary award that the plaintiffs are seeking further illustrates their failure to prove an
actionable tort. While the typical remedy in cases of diffuse harm is to order the defendant to perform a
specific actions to remedy the proven damage—such as remedial work to the public lands—or to revert
money to a government-run fund that would apportion such work, the plaintiffs’ complaint instead seeks to
deliver those funds to a third-party private entity that has not suffered any alleged harm.
CERT. INTERMARK VER: JD
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