## IN THE SUPREME COURT O F TEX AS

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. 11-0438

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F O U R T E E N T H D I S T R I C T O F T E X A S

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 J U S T I C E B O Y D , joined by

J U S T I C E L E H R M A N N , dissenting.
To prove the exis tence of l eg al m alpra ctice d am age s, clients who s ue their attorney s must establish that “the result obtained for the client” was l es s (o r lower or worse) than “the result t hat
would have been obtained with competent counsel.” See ante at __. The Court holds that J ose and
Guillermina Eliz ondo failed to submit any evidenc e that could meet t h at burden, despite their expert’s testimony that, in his opinion, the attorney s’ brea ches of their duties cause d the Eliz ondos

to settle their claims “basic ally for nuisance value,” and “a rea sonably competent plaintiff’s lawy er

. . . would have g arne red far in excess” of that amount. I believe the Court imposes too strict a standard at this summary judgme nt stag e. Be cause the expert based his opinion on fac ts that could support a finding that the Eliz ondos’ claims had substantial merit but wer e settled as if they had no merit at all, I would hold that the Eliz ondos cre ated a fa ct i s sue on the exis tence of malprac tice damag es. I

there fore respe ctfully

dissent.I. Stand ard of Review
This is an app ea l fr o m a summary judgme nt. We must consider the evidenc e in the light

most favor able to the Eliz ondos, indulging ever y rea sonable infere nce and resolving any doubts in
their favor

. See City of Keller v. W ilson , 168 S.W .3d 802, 824 (Tex. 2005); see also Shah v. Moss , 67 S.W .3d 836, 844 (Tex. 2001). The trial court found that the Eliz ondos submitt ed no evidenc e that they incurre d any damag es as a result of the defe ndants’ alleg ed brea ches. At this stag e of the case , the Eliz ondos did not have to prove the amount of their damag es; they only had to cre ate a fac t issue

as to the exis tence of damag es—that is, whether they sustained any damag es at all. To do this, they
had to “produc e some evidenc e from which a rea sonable jury could infer” that they sustained some damag es. See Garcia v. Gomez , 319 S.W .3d 638, 642 (Tex. 2010) (obser ving that even though there

was no evidenc e of amount of damag es, there was evidenc e that some damag es wer e incurre d); see also Alexande r v. Turtur & Assocs., Inc ., 146 S.W .3d 113, 117 (Tex. 2004) (noting that plaintiff

must “produc e evidenc e from which a jury may rea sonably infer that the attorney ’s conduct cause d
the damag es alleg ed”) (citing Hayne s & Boone v. Bowser Bouldin, Ltd. , 896 S.W .2d 179, 181 (Tex. 1995)). I f they

have done this, we must rever se the trial c ourt’s summary judgme nt.
II. A Qualif ied Exp ert

Witness
The Eliz ondos relied primarily on the aff

idavit of their expert witness, Arturo J

. Gonzalez.
Acc ording to his aff

idavit, Gonzalez is a Texas lawy er who has specia liz ed in persona l injury claims
for over twenty y ear s. Follo wi n g a 2005 explos ion at BP Amoco Chemical Company ’s plant in Texas City , Gonzalez a ssisted in the r epre sentation of over 525 plaintiffs who, like the Elizondos,

2asser

ted claims for damag es against BP. For most of t hat t ime, Gonzalez serve d as t he plainti ffs’

court-a ppointed liaison counsel to fac ilitate discovery and the exchang e of information betwee n the parties. He “wa s intim ately involved on a day

to day basis with the settlement proce ss” involving
these claims, and partic i pated in numerous settlement confe renc es with BP’s repr esenta tives and attorney s. He wa s “direc tly responsible” for neg otiating and settling thre e ca ses, and ha s persona l knowledg e of th e v al u es fo r which most of the other claims wer e settled. The defe ndants may ultimately

dispute Gonzalez’s assertions and qua lifications and, at trial, would be free to disprove
them or ot herw ise undermine his cre dibilit y or t he reliability of hi s opinions. But for purposes of
summary judgme nt, as the Court acknow ledg es, Gonzalez’s aff idavit establishes t h at he is “an experience d attorney

whose c rede ntials are not the pr oblem.” Ante at ___. 1
III. An Acce ptable Method of Proof
We have previously held that a client who was the plaintiff in an underly ing case can establish the exis tence of malprac tice damag es by proving that the amount the client rec overe d was less than t he amount “that w o u l d have been recove rable and collectible if the ot her case had been
proper ly prosec uted.” Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev

. & Researc h Corp. , 299 S.W .3 d 1 0 6 , 1 1 2 (Tex. 2009). Be cause we have focuse d on the rec overa ble and collectible

amount of a judgme nt following trial, courts often ref er to this method of proving damag es as a “suitT h e C o u r t h o l d s t h a t e x p e r t t e s t i m o n y i s n e c e s s a r y t o e s t a b l i s h t h e e x i s t e n c e o f d a m a g e s u n d e r t h e c o m p a r i s o n 1
o f

- s e t t l e m e n t s m e t h o d t h a t i t a p p r o v e s t o d a y , b e c a u s e t h e b a l a n c i n g a n d e v a l u a t i o n o f f a c t o r s n e c e s s a r y t o c o m p a r e d i f f e r e n t c l a i m s a n d t h e i r s e t t l e m e n t v a l u e s i s “ b e y o n d t h e k e n o f m o s t j u r o r s
. ” A n t e a t

_ _ _ ( q u o t i n g A l e x a n d e r , 1 4 6 S

. W

. 3 d a t 1 1 9

– 2 0 )

. B e c a u s e I w o u l d h o l d t h a t G o n z a l e z ’ s a f f i d a v i t w a s s u f

f i c i e n t , u n d e r a d i f

f e r e n t m e t h o d , t o c r e a t e a f a c t i s s u e a n d d e f

e a t s u m m a r y j u d g m e n t , I n e e d n o t d e c i d e i n t h i s c a s e w h e t h e r e x p e r t t e s t i m o n y w o u l d b e n e c e s s a r y i n a l l s u c h c a s e s
. 3within-a-suit.” See, e.g. , Taylor v. Alonso, Ce rsonsky & Garcia, P.C. , 395 S.W .3d 178, 183 (Tex.

App.—Houston [1st Dist.] 2012, no pet.) (“This c ausation burde n in this ty pe of leg al malprac tice
claim has been called the ‘suit-within-a-suit’ require ment.”) (citing Greathouse v. McConnell , 982
S.W .2d 165, 173 (Tex. App.—Houston [1s t Dist.] 1998, pet. denied) ). Today , the Court holds that a client who was a plaintiff “in a ma ss tort lit iga tion involvi ng thousands of simil ar claimants and arising out of the same event” can also establish the exis tence of malprac tice damag es by proving that the amount the client rec eived in settlement is lower than the

amounts of “the settlements obtained in othe r case s
. . . arising from the event.” Ante at ___. This holding is consistent with the Court’s comments in Burrow v. Arce , 997 S.W .2d 2 2 9 , 2 3 6 (T ex. 1999) (noting that the expert “mig ht have

. . . compar ed t h es e settlements to those of simil ar cl ai ms”), and I ag ree with it. I also ag ree with the Court’s holding that Gonzalez’s aff idavi t wa s insuf fi ci ent under this “compa rison-of- settlements” method. Gonzalez “did not underta ke to
compar e the Eliz ondo settlement with other actua l settlements obtained in the BP litigation.” Ante

at ___. He did not state the values for which any of the other case s settled, and he did not asser t that
the Elizondos’ claims were compar able to, but settled for less than, any

of the other

case s. 2
But the Eliz ondos did not rely on the compar ison-of-se ttlements method. I nstead, they challeng ed the de fenda

nts’ “fa ulty premise” that the “only

way of proving damag es is by showing
that someone else with identical injuries and claims rec eived a larg er settlement.” See ante at ___.

A s t h e C o u r t n o t e s , G o n z a l e z d i d n o t u s e t h e “ c o m p a r i s o n - o f

- s e t t l e m e n t s ” m e t h o d b e c a u s e c o n f i d e n t i a l i t y 2
a g r e e m e n t s p r e v e n t e d h i m f r o m d i s c l o s i n g t h e a m o u n t s f o r w h i c h t h e o t h e r c a s e s s e t t l e d

. I a g r e e w i t h t h e C o u r t t h a t , t o t h e e x t e n t t h e E l i z o n d o s a r e n o w a r g u i n g t h a t t h e a t t o r n e y d e f e n d a n t s t h w a r t e d t h e i r e f f o r t s t o c o m p a r e t h e v a l u e s o f o t h e r s e t t l e m e n t s , t h e y w a i v e d t h a t a r g u m e n t i n t h e c o u r t o f a p p e a l s a n d i n t h e t r i a l c o u r t

. A n t e a t

_ _ _ . 4I ag ree with the Eliz ondos that the suit-within-a-suit and the compar ison-of-se ttlements methods are

not the only way s to prove the exis tence of leg al malprac tice damag es. J ust as our decisions “do not require that damag es can only be measure d ag ainst the result the c lient would have obtaine d if the

case had bee n tried i n court to a fina l judgment,” a nte at __, they also do not require that damag es

can only be measure d ag ainst the result the client would have obtained if the case had settled for the

amounts for which simil ar case s settled. Since malprac tice damag es are “the differ ence betwee n the
result obtained and the case ’s ‘true v al u e, ’” see ante at ___, I would hold that any method that provides competent evidenc e that the case ’s “true value” was g rea ter than the “re sults obtained” will

s u ffice to raise a fac t issue on the exis tence of malprac tice damag es. And I would hold t h at , b y submitt ing sufficie nt expert opinion evidenc e that their claims had merit but wer e settled as if they had none, the Eliz ondos satisfied that burde n. IV. Suf fi cient Expert Opin ions
Go n z alez did not utiliz e the compar ison-of-se ttlements method beca use confide ntiality
ag ree ments prohibited him from disclosing the a mounts for which other

case s settled. Nor did he
utiliz e the suit-within-a-suit method, presumably beca use BP settled ever

y one of the 2005 explos ion
cl ai m s prior to the entry of any judgme nt. I nstead, after stating his experience and qualifications, explaining the confide ntiality of BP’s settlement amounts , l i sting the fac tors that BP considere d
when deter

mining the settlement value of a case , stating his opinion of the g ener al settlement value
of the Eliz ondos’ claims, listi ng the s o u rc es o n which he relied, descr ibing the things that a

rea sonably diligent attorney would have done to pursue the Eliz ondos’ claims, a n d li s ti n g the specific

5way s in which the attorney defe ndants failed to meet that standard, Gonzalez stated his opinions as

follows:
The settlement offe r made by BP for the Eliz ondos’ claim was basically for nuisance value

. Given the extraordinary circ umstances surrounding the BP explos ions claims, a rea sonably competent plaintiff’s lawy er s h o u l d h ave continued to prosec ute the cl ai m until a fair and reasonable offer was made by BP. I n my opinion, had that been done , the L awy ers would ha ve g arne red f

ar in e x cess of

the $50,000 offe r[.] (Emphasis added.) I n Gonzalez’s opinion, the $50,000 that t h e E l i z o n d o s rec eived to settle their
claim was “basic ally for nuisance value” and not a “fa ir and rea sonable” amount based on the merits
of the c laim. Although Gonzalez did not define “nuisanc e value,” its meaning is common knowledg e, at least among Americ an litigators and judge s: a nuisance value settlement is a settlement of meritless, frivolous, or g roundless claims for an amount that is less than the defe ndant would have to spend to defe at them. See, e.g. , Valores Corp. v. McLane Co. , 9 4 5 S.W .2d 160, 169 (Tex. App.—San
Antonio 1997, writ denied) (n oting that summary judgme nt rule was intended to dispose of “g roundless ac t i o n s i nstitut ed by plaintiffs seeking to hara ss defe ndants into nuisance value settlements”) (quoting Roy W. McDona ld, Summary Judgme nt , T E X
. L

. R E V
. 286, 286 (1952)) ; W olcott v. Trail ways Lines, Inc. , 774 So. 2d 1054, 1055 n.1 (2nd Cir. 2000) (“The ‘nuisance value’
of a claim is g ener ally considere d to be the cost of defe nding a claim in which i t i s doubtful the plaintiff will preva il, but is unwilling to simply dismiss .”); Fletche r v. City of Fort W ayne, Ind. , 162
F.3d 975, 976 (7th Cir. 1998) (“[a] compromise for less than the cost of defe nse is a g ood working
definition of a nuisance -value settlement”); R. Kozel & D. Rosenberg , Solving the Nuisance-Value
Settlement Problem: M

andatory Summary Judgme nt , 90 V A
. L

. R E V
. 1849, 1851 (2004) (def ining

6a nuisance -value settlement as “a pay off extracted by a threa t to litigate a meritless claim or defe nse

that both parties know the court would rea dily dismiss as ‘untriable’ or otherwise leg ally untenable on an applica

ble dispositive moti on for mer its review” ). 3 Reading Gonzalez’s aff

idavit in the light most favor able to the Eliz ondos, and indulging

ever y rea sonable inferenc e in their favor, i t is Gonzalez’s opinion that the El izondos wer e paid as if their claims had no merit, when in fac t they had substantial merit. I f, in fac t, the Eliz ondos’ claims
had substantial merit but wer e settled as if they had no mer it, a rea sonable jury could at lea st infer
that the Eliz ondos sustained damag es of some amount. Although Gonzalez’s opinions could not establish any particula

r amount of damag es, in my view they are sufficie nt to cre ate a fac t issue on the exist ence of dama g es.

S e e a l s o F e d

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“ n u i s a n c e v a l u e , ” d e s c r i b e d a s “ a n y c o n c e s s i o n m a d e s o l e l y t o e l i m i n a t e t h e i n c o n v e n i e n c e o r c o s t o f f u r t h e r n e g o t i a t i o n s o r l i t i g a t i o n a n d i s u n r e l a t e d t o t h e m e r i t s o f t h e i s s u e s ” )

. 7V. An Adequate F actual Basis
Gonzalez’s opinions, howeve r, are not enoug h. Absent an adequate fac tual basis, an expert’s
bare opinion that a claim had merit or that it was settled for nuisance value would be conclusory and,
there fore , incapa

ble of cre ating a fac t issue to avoid summary judgme nt

. Gonzalez cannot just expect us to “take his wor d” for it, see ante at ___; he must provide fa cts to support his opinions. See, e.g. , Jelinek v. Casas , 328 S.W .3d 526, 536 (Tex. 2010) (“We have reje cted expert opinions not
g rounded in a sound evidentiar y basis: ‘ [I ]f no basis for the opinion is offe red, or the basis offe red provides no support, the opinion is m er ely a conclusory statement and cannot be considere d probative evidenc e, reg ardle ss of whether there i s no objection.’” (citation omitted)); see also
Elizondo v. Krist , 338 S.W .3d 17, 25–28 (Tex. App.—Houston [14t h Dist.] 2010) (Christopher, J ., dissenting) (discussing Gonzalez aff idavit). I n my view, Gonzalez’s aff idavit rec ites numerous fac ts that, taken in the light most favor able t o t he Eliz ondos, constitute evidenc e that the Eliz ondos’
claims had mer it but were se ttled for nuisanc e value , as if they did not.
A. F acts supporting me rit
Gonzalez provided an extensive rec itation of fac t s supporting his conclusion that the
Eliz ondos’ claims had merit. First, he listed ten “cr iteri a o r fa ct ors” that BP “foc used on” when
deter mining the va lue of c laims arising out of the 2005 explosion:

• proxi mity

to gr ound zero of the e x plosion;

• when injury

was re ported to a supe rvisor;

• corr oboration of proxi mity and repor ting of injuries to supe rvisor or manag ement;

8• ag e of the victim;

• wag e ea

rning capa city

and wa g e loss (pre sent and futur e);

• injuries and biomechanic s of inj u ri es—e.g ., nature , extent, and duration;

• medi cal trea tment rec eived and duration of (phy sical and mental/PTSD);

• surg ical vs. nonsurg ical interve ntion(s);

• single or marr ied/residual c onsortium claims; and

• onsite vs. offsite cla ims.
He then listed the f

acts of the Eliz ondos’ claims that we re r eleva nt to these fac tors:

• On the date of the explos ion, J ose was working for a subcontrac tor at the B P facility . He wa s 37 y ear s old.

• J o s e wa s approximately 200 to 300 fee t from the blowdown stack when the explos ion occur red. The forc e of the explos ion blew him a number of f

eet into a por

t-a-potty

.

• J ose wa s near

Mr. Eame llo at the time of the blast.

• J ose sustained injuries to his neck and lower back and suffe red such mental ang uish and emotional distress that he was considere d to have post-traumatic stre ss disorder.

• J ose was first trea ted for his neck and back injuries b y Dr. Ron Kirkwood and Dr. E n gl ish of Kirkwood Medica l Associates, on Marc h 26, 2005.

• J ose saw Dr. David Winberly at Fondr en Orthopedic on Apri l 1, 2005, for complaints of neck and lower back pain, and had a followup visit on J une 7, 2005 for persistent nec k and bac k pain.

• J ose rec eived phy sical thera py at TI RR twelve time s over the six

9wee k period be tween A pril 7 and May

19, 2005.

• J ose was first trea ted for mental ang uish or emotional distress by Dr. Susana Rosin on M ay 6, 2005. He attended additional thera py sessions on May 20, J uly 6, and Aug ust 3, 2005. His trea tment lasted approximately

three months.

• J ose i s marrie d to Guillermina Elizondo, and they had four children at the time of the e x plosion. They now have five c hildren.

• J ose ear

ned about $23 per hour at the time of the explos ion, and worke d about 50 to 60 hours ea ch we ek.

• J ose missed work a s a re sult of the explos ion.

• J ose has not been phy sically or medically restric ted from w orking , but he wa s injured in the explosi on. Ba sed on these fac ts and the “cr iteria and protocol relied upon to establish g ener al settlement
values i n t h e BP litigation,” Gonzalez opined that the Eliz ondo case “would have had a g ener al value, by way of settlement or verdic t, in the rang e of betwee n Two Milli on
. . . and Three Milli on

. . . dollars,” and he later summarized his view by opining that the claims wer e worth “fa r in excess”
of the $50,000 that BP paid. Whether the fac ts that Gonzalez rec ited wer e sufficie nt to support his $2–3 milli on valuation is doubtful (at best), but, in my view, they constitute some evidenc e that the
Eliz ondos’ claims had me rit.
B. F acts supporting n uisan ce value Next, Gonzalez rec ited fac ts to support his vi ew that the c laims were settled “basic ally for
nuisance value,” as if t h ey h ad no merit. First, he descr ibed in some detail what a “plaintiff’ s attorney using rea sonable d u e d i lige nce” would have done to establish the claims’ merit. Specifica lly , a re asonably diligent a ttorney

would have:

1 0taken steps that includ ed prosec uting the case to its fullest extent including

investiga tio n , prosec ution and filing of a lawsuit

. . . , the taking of depositions or sworn statements of impor t an t witnesses, reque sting or obtaining and revie wing liability documents, coordina ting efforts to develop liability and damag es in this matter, interviewing other potential fac t witnesses that can deter mine the extent and location of the injuries sustained by their client, deter mining any and all responsible parties, deter

mining all claims that their clients could respe ctfully (sic) have

. . . , and addre ssing and developing fac ts and issues rele v ant to establishing the eg reg ious conduct of

BP.
He then descr ibed specific ally how the attorney s failed to do these things: they did not file a lawsuit;
conduct any investiga tion into the liability and damag es fac ts; send out any discovery reque sts; take
any depositions; investiga te and develop evidenc e of g ross neg lige nce; or investiga te and deter

mine
how BP v alued the explos ion claims. I nstead, Gonzalez asser ted, the attorney s “per form[ed] no work other

than to revie w a de mand pac kag e pre pare d by a re fer ring lawy er.”
These fac ts, if true, would cer tainly support the duty and brea ch elements of the Eliz ondos’ malprac tice claims. But in my view, they also support Go n z alez ’s opinion that the claims wer e settled for nuisance value, as if they had no merit. I f, in fac t, the attorney defe ndants did nothing to develop the claims and establish their merit, a rea sonable jury could infer that the amount BP paid
ref lected the cost of defe nse and the claims’ lac k of merit, and tha t the amount was lowe r than B P
would have paid for a meritorious claim. Ag ain, al t h oug h this cannot constitute evidenc e of any particula r amount of damag es, in my view it does constitute evidenc e of the exis tence of damag es. VI. Distingui shin g Burr ow v. Arce
I n reje cting Gonzalez’s aff idavi t , t he court of appea ls relied heavily on our decision in
Burrow v. Arce , 997 S.W .2d 229 (Tex. 1997), as does this Court. I n Burrow , the defe ndants’ expert

1 1testified by aff idavit that he had considere d the rele vant fac tors (including the underly ing fac ts, the identity of the defe ndant, the elements of damag es available , and the losses eac h plaintiff incurre d)
and conclude d based on these fac tors that eac h plaintiff was “re asonably and fairly compensa ted.”
Id. at 235. The Court he ld that this aff idavit w as conclusory beca use the expert “[did] not expl ain why the settlements wer e fair and re asonable .” Id. at 235–36. To do this, the Court expl ained, he “mig ht have analy

zed the Clients’ injuries by ty pe, or rela ted settlement amounts to medical repor ts and expenses, or compar ed the settlements to those of simil ar claims, or provided other information showing a rela tionship betwee n the plaintiffs’ circ umstances and the amounts rec eived.” Id. at 236.
I n the prese nt case , the Court conclude s that Gonzalez’s a ffidavit is “ simil arly conclusory ”
beca use it “ fails to of

fer specific s on why the value of the case was $2–3 milli on as opposed to the $50,000 received in settlement.” Ante at __. But to avoid summary judgme nt, Gonzalez did not have to establish that the case was worth $2–3 mill i o n as o p p o s ed to $50,000; he only had to establish that the case was worth more than $50,000. By providing specific s on why $50,000 ref lects
the value of a case that had “basic ally ” no merit, and specific s on why the Eliz ondos’ case had merit,
I would hold that he has done that.
Burrow is distinguishable from this case in all mater ial aspec ts. I n Burrow , the def endants
soug ht and obtained a traditional summary judgme nt—they had the burden to prove the absenc e of
dam age s as a m at ter of law. 997 S.W .2d at 234. Her e, the Eliz ondos are defe nding ag ainst a noevidenc e summary judgme nt—they need only raise a question of fac t on the exis tence of damag es. More importantly , the expert in Burrow provided no fa cts to support his opinion t hat the “fa ir and

rea sonable” amounts the plaintiffs rec eived wer e equal to or g rea ter than their true value. Her e, by

1 2contra st, Gonzalez provided extensive fac ts to support his conclusion that the Eliz ondos’ settlement

was “basic ally for nuisance value,” meaning it did not ref lect any merit at all. Be cause a rea sonable jury can infer that a claim that lacks merit is worth less than a claim that has merit, I would hold that
Gonzalez’s testimony was sufficie nt to defe at summary judgme nt, and that Burrow does not counsel
otherwise.
VII. Conclusion
I n response to the attorney defe ndants’ motions for summary jud g me n t, th e E li zondos’ expert testified that, in his opinion, their claims had merit but w ere settled as if they had no mer it, and he
did so in an aff

idavit in which he identified numerou s fac ts that support eac h of these two propositions. Be cause I would hold that the expert’s aff idavit constitutes competent evidenc e from
which a r easona

ble jury could infer

the exist ence of dama g es, I respe ctfully

dissent.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J eff rey S. Boy d J ustice
OP INION DELIVERED: Aug ust 30, 2013

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