# IN THE SUPREME COURT O F TEX AS

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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

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### Argued Dec em ber 5, 2012

J U S T I C E 

### W I L L E T T 

### delivere d the opi nion of t he C ourt, in which C H I E F 

### J U S T I C E 

### J E F F E R S O N 

### , J U S T I C E 

### G R E E N 

### , J U S T I C E 

### J O H N S O N 

### , J U S T I C E 

### G U Z M A N 

### , and J U S T I C E 

### D E V I N E 

### joined.
J U S T I C E 

### B O Y D 

### filed a dissenting opinion, in which J U S T I C E 

### L E H R M A N N 

### joined.
J U S T I C E 

### H E C H T 

### did not participate in the de cision.
I n this leg al-malpra ctice case , the clients sued their former at t o rney s, complaining the attorney s had obtained an inadequa te settlement. The trial court g rante d summary judgme nt for the attorney s, and the c ourt of appe als aff irmed. We aff

irm the court of

appea ls’ judgme nt. I. Background
I n Marc h 2005, an explos ion occur red at the Texas City ref

iner y o f BP Am o co Chemical Company (B P), killing fiftee n worke rs and injuring many others. Approxim ately 4000 claims wer e

### filed ag ainst BP, and BP settled them all. A handful of case s proce eded to trial but settled befor e a

verdic t.
J ose Eliz ondo was working for a BP contra ctor at the plant on the day of the explos ion. The
blast threw him about t wenty fee t. He rece ived m edica l trea tment for neck and back injuries. He

returne d to work a few day s later but claimed he continued to suffe r from psy cholog ical problems.
His wife, Guillermina, claimed that she too suffe red, from loss of consortium. J o s e m et with

att o rn ey W i l l i am Wells and signe d a power of attorney reta ining Wells to repr esent him on “all
claims Imay

have a g ainst BP and other s” ar ising fr om the Marc h 2005 explos ion.
Wells sent a demand letter to BP asking for a settlement of $2 milli on on the Eliz ondos’
claims. The settlement demand was made on behalf of both husband and wife. A few months later, 1



### an attorney for BP offe red to settle “any and all claims of J ose L

. Eliz ondo and his family members” for $50,000. I n an effort to incre ase the settlem en t i n t his and three ot her cases, W ells associate d
Ronald Krist, Kevin Kr ist, and the Krist L aw F irm as additional counsel. Ronald and Kevin Krist met with BP, but could not obtain a larg er se ttlement for the Elizondos.
Wells and Kevin Krist met with J ose t o discuss the s ettlement offer. The y went throug h a
form rele ase prepa

red by BP. J ose decide d to acc ept the settlement off er a nd signe d the re lease in
Fe bruar y 2006. The release cover s J ose and Guillermina, defining the “REL EASORS” as “JOSE

T h e l e t t e r b e g i n s “ R e : O u r C l i e n t s : J o s e E l i z o n d o a n d s p o u s e G u i l l e r m i n a E l i z o n d o
. ” I t s t a t e s t h a t “ O u r o f f i c e 1
r e p r e s e n t s J o s e E l i z o n d o a n d h i s w i f e G u i l l e r m i n a E l i z o n d o ” r e g a r d i n g t h e B P e x p l o s i o n a n d r e q u e s t s “ s e t t l e m e n t t o t h e E l i z o n d o s ” o f $ 2 m i l l i o n
. I t d e s c r i b e s t h e f a m i l y l i f e a n d b a c k g r o u n d o f b o t h s p o u s e s
. I t d e t a i l s J o s e ’ s p h y s i c a l a n d p s y c h o l o g i c a l i n

j u r i e s
. I t s t a t e s t h a t “ M r
. E l i z o n d o a n d h i s w i f e h a v e t h e p r i v i l e g e a n d r e s p o n s i b i l i t y o f p r o v i d i n g f

o r , n u r t u r i n g a n d r a i s i n g f o u r d a u g h t e r s
. T h e e v e n t s o f M a r c h 2 3 a n d f o l l o w i n g d i s r u p t e d t h e i r f a m i l y e x i s t e n c e a n d rd
s e c u r i t y
. ” 2

### EL I Z ONDO, GUI L L ERMI NA EL I Z ONDO, and any of their heirs, executors, ag ents, trustees, assig nees, repr esenta tives, attorney s, advisors, administrators, succe ssors and assig ns.” The rele ase had signa ture lines for J ose and Guillermina, but only J ose signe d it. Guillermina testified that she cannot spe ak or r ead E ng lish. J ose conte nds that when he met with his counsel, he asked w hether
Guillermina nee ded to sig n the ag ree ment and wa s told it was not nec essar y
. I n Aug ust 2007, J ose broug ht this suit ag ainst Wells, Kevin Krist, Ronald Krist, and the Krist
L aw Firm (the Attorney s). Guillermina was later added as a plaintiff, but all the Attorney s deny ever
repr esenting Guillermina. The suit claimed that the Attorney s repr esente d both Eliz ondos and failed

to obtain an adequa

te settlement on their behalf

. The petition as s er t ed claims of profe ssional
neg lige nce, brea ches of fiduciar y duty , and fra

ud, as well as other claims. I t contende d that J ose was “sold down the river” so that Ronald Krist could repr esent BP. After J ose acc epted BP’s settlement
offe r, Ronald Krist did r epre sent BP, but he contends his r epre sentation of J ose had ended months

ear lier. The Eliz ondos also claimed that beca use Guillermina did not sign the rele ase her claim was

never settled, and the A ttorney s should have pursue d her c laim before it became time-barr ed.
The Attorney s filed sever al motions for summary judgmen t o n gro u n ds of no evidenc e of damag es, impermissible “ claim splitt ing,” and no attorney -client rela tionship with Guillermina, as well as other g rounds. I n response to the motions reg arding damag es, the Eliz ondos submitt ed the expert aff idavit of attorney

Arturo Gonzalez.
The trial court g rante d some of t h e s u m m ary -judg ment motions, including the motions
reg arding damag es. The court of ap p ea l s af firmed, holding that beca use the Eliz ondos had not

3

### prese nted more than a scintilla of competent evidenc e of dam age s , t h e trial court did not err in

g ranting summary

judgme nt on this ground. 2



### II. Discussion
A. The Gonzale z Affi davit Did Not Raise a G enuin e Issue of Material F act on Malprac tice Dam ages
. The parties disag ree on whether the Gonzalez aff i d av i t was sufficie nt to defe at summary judgme nt on the is s u e of malprac tice damag es. Summary judgme nt was war rante d for the Attorney s 3


### i f, afte r adequate time for discovery , they demonstrated that the Eliz ondos had failed to o ff er competent summary

judgme nt evidence raising a g enuine issue of materia l fac t as to damag es. 4


### I n his eig ht-pag e aff

idavit, Gonzalez rec it es h i s g ener al qualifica tions and his specific
involvement in the BP litigation. He w orked f or two firms that re prese nted claimants in litig ation arising from the plant explos ion a nd was appointed by the 212th district court as plaintiffs’ liaison
counsel. He attested that these experience s familiarized hi m with the s ettlement of many claims.
He stated t hat BP focuse d on ten criteria in deter mining the g ener al value of a case for set t l em en t
purposes: (1) proxi mity to g round zero; (2) when injury was repor t ed t o a s u pervisor; (3)

corr oboration of proxi mity and repor ting of injuries to supervisor or manag ement; (4) ag e of victim; (5) wag e ear

ning capa city and wage loss (pre sent and future) ; (6) injuries and bio-mecha nics of

3 3 8 S

. W

. 3 d 1 7 , 2 4

. 2

T h e t r i a l c o u r t s t r u c k c e r t a i n p o r t i o n s o f t h e a f f i d a v i t a f t e r t h e A t t o r n e y s c o m p l a i n e d t h a t i t w a s c o n c l u s o r y
. 3 U n l i k e t h e c o u r t o f

a p p e a l s , w e d o n o t s e p a r a t e l y a n a l y z e t h i s r u l i n g b u t a d d r e s s w h e t h e r t h e a f f i d a v i t , c o n s i d e r e d i n i t s e n t i r e t y , r a i s e d a m a t e r i a l i s s u e o f f a c t a s t o d a m a g e s
. S e e T E X
. R

. C IV
. P

. 1 6 6 a ( i )

. 4
4

### injuries—e.g ., nature , extent, and duration; (7) medical tr ea t ment rec eived and duration there of

(phy sical and mental/PTSD); (8) surg ical versus non -s u rgi cal interventions; (9) single or marrie d/residual consor

tium claims; and (10) onsite ve rsus offsite c laims. The af fidavit descr ibes
the basic f

acts re g arding J ose’s injuries, fa mily situation, and work history . I t then states:
Ba sed on the fac tual information provided and revie wed by me, my experience in the BP l i t i gation, my knowledg e of g ener al settlement values and in the criter ia an d protocol re lied upon to establish ge nera l settlement values in the BP litiga tion, it i s my opinion that for a plaintiffs’ attorney acting within the standard of car e applicable to the s ame or simil ar circumstanc es, usi ng rea sonable due diligenc e, 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 Mi llion ($2,000,000.00) a nd Three Milli on ($3,000,000.00) dollar s. Guillermina Eliz ondo’s individual claim would repr esent some part of that value, but J ose’s claim would repr esent the majority of that value. The settlement value of the Eliz ondo claim is not distinguished as compensa tory , non-ec onomic or exemplary in nature , but instead i s a s i n gl e value offer ed by BP so that BP could avoid a trial or jury verdic t. The aff idavit sets out the information revie wed by Gonzalez and details why , in Gonzalez’s opinion, the Att orney s failed to exercise due diligenc e in their re p re s en t ati on of t he Eli zondos. I t then states:
The settlement offe r made by BP for the Eliz ondos’ claim was basica lly for nuisance v a lu e
. G iv e n th e e xtr a ordinary circ umstances surrounding the BP explos ion[] c la im s , a rea sonably competent plaintiff’s law y er s h ould have continued to prosec ute the claim until a fair and rea sonable offe r was made by BP. I n my opinion, had that been done, the L awy ers would have g arne red far in excess of the $50,000 offe r which was supposedly

the most that BP would ever pay
. I t then conclude s that, in light of the risk of punitive damag es in the BP explos ion case s, “these case s

wer e heavily evalua ted and settlements obtained we re s i g nificantly highe r as compar ed to the

aver ag e per sonal injury

lawsuit in the [S ]t ate of

Texas.”

5

### At the outset, the Attorney s contend that the Gonzalez aff idavit is defe ctive beca

use a leg almalprac tice suit is a “suit within a suit,” and proof of m alpra ctice damag es re quires proof of wha t the plaintiff would have rec overe d by way of a judgme nt afte r trial absent his attorney ’s neg lige nce. For example, the Att orney s arg ue in their brief that plaintiffs alleg ing ma lprac tice dama g es “must
prove that the ‘true value’ of their case is a collectible rec overy , afte r a trial, that is g rea ter than the

actua l result they rec eived,” and that “[t] o show the exis tence of malprac tice damag es, the Eliz ondos
had to show the true value of their claims was g rea ter than what they rec eived, i.e. , that they would
have rec overe d by way of judgme nt a n amount g rea ter than they did f rom BP.” They

contend that
Gonzalez only analy

zed why the settlement was inadequa te for various rea sons, an d h e d id not discuss what amount the Eliz ondos would h av e re covered if the case had proce eded to judgme nt afte r a tria l. We disagr ee w ith this arg ument.
We have rec og nized that in a leg al-malpra ctice case damag es consist of “the amount of damag es rec overa

ble and collectible

. . . if the suit had been proper ly prosec uted.” I n Keck , Mahin 5


### & Cate v. National Union Fire Insurance Co. , we descr ibed damag es in such case s as the differ ence betwee n the result obtained and the case ’s “true value,” define d as the rec overy that would have been
obtained “following a t rial” in which the client had “re asonably competent, malprac tice-f ree ”
counsel. 6

C o s g r o v e v
. G r i m e s , 7 7 4 S

. W

. 2 d 6 6 2 , 6 6 6 ( T e x
. 1 9 8 9 ) ; s e e a l s o A k i n , G u m p , S t r a u s s , H a u e r & F e l d , L

. L

. P

. 5
v
. N a t ’ l D e v
. & R e s e a r c h C o r p
. , 2 9 9 S

. W

. 3 d 1 0 6 , 1 1 2 ( T e x
. 2 0 0 9 )

. 2 0 S

. W

. 3 d 6 9 2 , 7 0 3 n
. 5 ( T e x
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. 6
6

### These case s rec og nize that leg al-malpra ctice damag es are the differ ence betwee n the result

obtained for the client and the result that would have been obtained with competent counsel. They
do not require that damag es can only be measure d ag ainst the result the client would have obtained
if the ca se had be en tried to a final judg ment.
I n this case , it is undisputed that BP, a larg e, solvent corpor ation, made the decision to settle

ever y case arising from the plant explos ion. Her e, whe re the same de fenda nt settled thousands of

case s, and indeed made the business decision to settle all case s and not tr y any to a verdic t, w e see

no rea son why an expert cannot base his opinion of malprac tice damag es on a compar ison of what
simil arly situated plaintiffs obtained from the same defe ndant. This data is perha ps the best evidenc e of the rea l-world settlement value of the case
. Under Evidence Rule 70 3 , experts may base their testimony on fac ts or data that are “of a ty pe rea sonably relied upon by experts in the particula r field
in forming opinions or infere nces upon the subject.” That test is met when, in a mass tort litigation 7 

### involving thousands of simil ar claimants and arising out of the same event, the expert measure s the
“true ” settlement value of a particula r case by persua sively compar ing all the circ umstances of the

case to the settlements obtained in other c ases with similar circ umstances a rising f rom the eve nt.
Nev er t h eless, the Attorney s arg ue that the Gonzalez aff idavit was conclusory , while the
Eliz ondos maintain that it was sufficie ntly specific to raise a

fac t issue on damag es. “B are , basele ss opinions will not support a judgme nt even i f t h er e i s no objection to their
admission in evidenc e,” and we have “ofte n held that such conclusory testimony cannot support a 8

T E X
. R

. E V ID
. 7 0 3

. 7

C i t y o f S a n A n t o n i o v
. P o l l o c k , 2 8 4 S

. W

. 3 d 8 0 9 , 8 1 6 ( T e x
. 2 0 0 9 )

. 8
7

### judgme nt.” “A conclusory statement of an expert witness is insufficient to cre ate a question of fac t 9


### to defe at summary

judgme nt.” Fur

ther, “ a claim will not stand or fa ll on the mere ipse dixit of a 1 0



### cre dentialed witness.” Ex pert testimony fails if there is “simply too g rea t an analy tical g ap betwee n 1 1


### the d at a and the opinion proff ere d.” Courts are not require d “to ignor e fata l g aps in an expert’s

1 2 

### analy sis or asser

tions.” Stated another way , in a leg al-malpra ctice case , we have observe d that even

1 3


### wher e an attorney -expert was qu ali fied to g ive ex pert testim ony , his aff idavit “ca nnot simply say , ‘Take my word for it, I know: the settlements wer e fair and rea sonable.’” Conversely , in this case , 1 4



### an attorney -expert, howeve r well qualified, cannot defe at summary judgme nt if there are fata l g aps in his analy sis that leave the c ourt to take his word tha t the settlement was inade quate.
Our decision in Burrow v

. Arce is instruc tive. I n that case as in today ’s case , attorney s had

s et t l ed numerous suits in a mass tort proce eding arising out of a plant explos ion. The plaint i ff s , former clients of th e at t orney s, contende d that the settlements they rec eived wer e inadequa te for
various rea sons, including the failure of the attorney s to “fully inves t i gate and assess individual
claims.” The trial court g rante d summary judgme nt for the attorney s on gro u n ds that the

1 5

C o a s t a l T

r a n s p
. C o
. v
. C r o w n C e n t

. P e t r o l e u m C o r p
. , 1 3 6 S

. W

. 3 d 2 2 7 , 2 3 2 ( T e x
. 2 0 0 4 )

. 9

M c I n t y r e v
. R a m i r e z , 1 0 9 S

. W

. 3 d 7 4 1 , 7 4 9

– 5 0 ( T e x
. 2 0 0 3 )

. 10

B u r r o w v
. A r c e , 9 9 7 S

. W

. 2 d 2 2 9 , 2 3 5 ( T e x
. 1 9 9 9 )

. 11

G a m m i l l v
. J

a c k W i l l i a m s C h e v r o l e t

, I n c
. , 9 7 2 S

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. 2 d 7 1 3 , 7 2 6 ( T e x
. 1 9 9 8 ) ( q u o t i n g G e n
. E l e c
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. 12 J o i n e r , 5 2 2 U

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. 1 3 6 , 1 4 6 ( 1 9 9 7 ) )

.

V o l k s w a g e n o

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. 15
8

### settlements wer e fair and rea sonable and there fore the clients had suffere d no actua l damag es and

wer e not entitled to the forf eiture of fee s they soug ht. 1 6


### We held that the aff

idavits submitt ed by the attorne y s wer e conclusory and there fore
insufficient to entitle the attorney s to summary judgme nt. We considere d three aff idavits. The most d et ai l ed affidavit, from reta ined expert-attorne y Malinak, set out numerous criter ia that wer e important in evalua ting settlements in the case , including the underly ing liability fac ts, the identity
of the employ er, the elements of damag es av a il a b le to eac h plaintiff, and the losses to eac h plaintiff. 1 7


### The expert then decla

red that he had evalua ted the criter ia as to eac h plaintiff and had conclude d that
the s ettlement as to eac h was reasona ble and fair. We held that the af fidavit was too conclusory 1 8 

### to sustain a summary

judgme nt on the element of damag es: The aff idavit say s no more than t hat Malinak, an experience d attorney , has considere d the rele vant fac ts and conclude d that the Clients’ settlements wer e all fair and reasonable

. . . . Credentials qualify a person to offe r opi nions, but they do not supply the basis for those opinions. The opinions must have a rea soned basis which the ex pert, because of hi s “knowledg e, skill, ex perie nce, training , or education [,”] is quali fi ed to state. That basis is missing in Malinak’s aff idavit. He does not explain why the settlements wer e fair and re as o n able for eac h of the Clients. His aff idavit

. . . is nothing more than a sworn denial of pl aintiffs’ claims and no more entitles the Attorney s to summary judgmen t than a lawy er’ s equally conclusory aff idavit stating that the Clients had suffe red $10 milli on damag es would entitle them to summary judgme nt.

. . . [T] he issue is whether Malinak’s aff i d av i t s tates a sufficie nt basis for his opinions. Malinak might have analy zed the Clients’ injuries by ty pe, or rela ted settlement amounts to medical repor ts and expenses, or compar ed these settlements to those of simil ar claims, or provided other information showing a r elations hip betwee n the pl aintiffs’ circumstance s and the amounts rec eived. He

I d

. a t 2 3 3

. 16

I d

. a t 2 3 5

. 17

I d

. 18
9

### did not do so. The absenc e of s u ch i n fo rm ation did not mere ly make the aff idavit unclea r or indirect; i t deprive d Malinak’s opini ons of any demonstrable basis. We there fore conclude that summary judgme nt could not rest on Malinak’s a ffidavit. 1 9


### The Gonzalez a ffidavit in toda y ’s case is similarly conclusory

. L ike the Malinak aff idavit,
the Gonzalez aff

idavit is from an experience d attorney whose cre dentials are not the problem. The problem is the lack of a demonstrable and rea soned basis on which to evalua te his opinion that the
settlement was inadequate. L ike the Malinak aff idavit, the Gonzalez aff

idavit explains in some detail the fac tors or criter ia that should inform a deter mination of the value of t h e case
. L ike the Malinak affidavit, the Gonz alez aff idavit confirms that the affiant considered the fac ts rele vant t o the ca se, but it f

ails to of fer specific s on why the value of the case was $2–3 milli on as opposed to the $50,000 rec eived in settlement. A fatal analy tical gap divides the r ecitation of the facts of t he
Eliz ondo case and the de clar ation of its settlement value.
Gonzalez did not evalua te what the Eliz ondo case would have y ielded by way of a judgme nt
if the case had go n e t o t ri al

. On the contra ry , he based his opinion on what the Attorney s should
have ob t ai n ed in settlement

. The affidavit m akes clear throug hout that Gonzalez’s opinion of t he
value of the case stems from his opinion of the settlement the Attorney s should ha ve obtained. As
noted above, none of the approximately 4000 claims arising from the BP plant explos ion was tried

to a verdic t. Gonzalez states in the aff idavit that throug h his experience he g ained knowledg e of the
“se t t l em ent rang es or case values” in the BP litigation. He then lists the criter ia BP used in
“de t er m ining the g ener al value of a case for settlement purposes.” He states his value of the case

I d

. a t 2 3 5

– 3 6 ( q u o t i n g T E X
. R

. E V ID
. 7 0 2 )

. 19
1 0

### based on his “ knowledg e of g ener al settlement values and

. . . the criter ia and protocol relied upon

to establish ge nera l settlement values.” H e states that “ [t ]he settlement offer made by BP . . . was basica lly for nuisance value” and that, g iven the extraordinary circ umstances of the BP plant explos ion, “a rea sonably competent plaintiff’s lawy er should have continued to prosec ute the claim
until a fair and rea sonable offe r was made by BP.” He conclude s by stating that the Attorney s could
have “g rea tly enhanc ed the settlement value of the Eliz ondo claim” by developing fac ts supporting exemplary damag es. As explained above, we conclude that an analy sis of settlements of case s with injuries and circ umstances simil ar to the Eliz ondo case might be sufficie nt to raise a fac t issue as to the inadequa cy of the settlement, but Gonzalez did not underta ke to compar e the Eliz ondo settlement
with other actua l settlements obtained in the BP litigation. As in Burrow , the expert might have
compar ed this settlement “to those of simil ar clai m s , or provided other information showing a rela tionship betwee n the plaintiffs’ circ umstances and the amounts rec e iv e d [b u t h e ] d id n ot do so.” 2 0


### We are simply left to take his word that the settlement here was inadequa te. I n this reg ard, we ag ree with the court of a

ppeals: [A] lthough Gonzalez lists specific cr i t er i a he contends BP “foc used on” when deter mining settlement values, he offe rs no analy sis t o ex p l ain how these fac tors would be applied to the Eliz ondos’ situation. He also fails to link settlement amounts to specific injuries and circ umstances, and provides no compar ison of settlement am o u n t s of simil ar claims. Thus, Gonzalez’s aff idavit offe rs only conclusory and specula tive opinions. 2 1

I d

. a t 2 3 6

. 20

3 3 8 S

. W

. 3 d a t 2 1

– 2 2

. 21
1 1

### We conclude , there fore , that the aff idavit did not raise a g enuine issue of materia l fac t sufficie nt to defe at summary

judgme nt. The dissent rea sons that the aff idavit raised a fac t issue on whether competent counsel would
have obtained a settlement in excess of $50,000, which Gonzalez char acte rized as nuisance value.
We differ beca

use, for the rea sons stated, the aff idavit was devoid of a demonstrable basis, whether

we c onsider that portion of the a ffidavit claiming the case had a settlement value of $2–3 milli on,

or that portion decla

ring the settlement value was “fa r in excess of the $50,000” actua lly rec eived.
These asser

tions are equally conclusory , suffe r from the same fata l g ap in analy sis, and, as in
Burrow , rely on nothing more than the ipse dixit of the expert. We are simply left to take the expert’s word a s to the adequa cy of the settlement, the sa

me def ect we rec og nized in Burrow

. B. Discovery D ispu tes in the Trial Court Did Not War rant De nial of the Su m m ary Judgm ent Mot ions on Dam ages. The court of appea ls dissent noted that at various points in the litigation the L awy ers objected
to the discovery of information about other settlements, and this dissent thought it “ fundame ntally
unfair for the L awy ers to thwart discovery as to other settlements and at the same time use the lack
of that information to strike Gonzalez’s aff idavit.” I t noted that “[t] he Eliz ondos asked for a court

2 2


### order to allow Gonzalez to reve al specific s from the B P settlements, and the L awy ers oppose d the
order .” On the o t h er h an d , the court of appea ls majority conclude d that the Eliz ondos did not

2 3 

### assig n as err or on appea l that the trial court err ed in deny ing their reque st to obtain discovery on or

I d

. a t 2 8 ( C h r i s t o p h e r , J

. , c o n c u r r i n g a n d d i s s e n t i n g )

. 22

I d

. ( f o o t n o t e o m i t t e d )

. 23
1 2

### otherwise reve al information reg arding settlements in other case s. On this issue, we ultimately are 2 4



### not persua ded by the court of appea ls dissent—essentially urg ing that, beca use the L awy ers objected

to d iscovery reg arding other settlements, the L awy ers should be estopped from preva iling o n g r o u n d s that the Gonzalez a ffidavit was inadequa te. Neve rtheless, we find the issue difficult and discuss it at some leng th here in.
The settlement ag ree ments in the BP case s contained a confide ntiality provision prohibiting
disclosure of the details of the settlements to third parties. The Eliz ondos’ expert, Gonzalez, stated
in his aff idavit that he was bound by this provision. The Attorney s wer e also bound by this provision. To the extent the Attorney s contende d as an i n itial discovery response that they and

2 5


### others could not disclose information reg arding other settlements for contra ctual rea sons, we believe they arg ued within the bounds of zealous advoca cy in contending that the information should not be
disclosed eve n if it might be he lpful to the Eliz ondos.

T h e c o u r t o f a p p e a l s m a j o r i t y n o t e d : 24

T h e E l i z o n d o s s o u g h t t o o b t a i n d i s c o v e r y r e g a r d i n g v a r i o u s d o c u m e n t s r e l a t i n g t o t h e B P s e t t l e m e n t s a n d , i n r e s p o n s e , t h e L a w y e r s a s s e r t e d v a r i o u s o b j e c t i o n s
. T h e E l i z o n d o s a l s o a s k e d f o r a c o u r t o r d e r u n d e r w h i c h G o n z a l e z c o u l d r e v e a l s p e c i f i c i n f o r m a t i o n r e g a r d i n g t h e B P s e t t l e m e n t s , a n d t h e L a w y e r s o p p o s e d t h i s m o t i o n
. B u t , t h e E l i z o n d o s h a v e n o t a s s e r t e d o n a p p e a l t h a t t h e t r i a l c o u r t s u s t a i n e d t h e L a w y e r s ’ d i s c o v e r y o b j e c t i o n s o r d e n i e d t h i s m o t i o n , a n d t h e E l i z o n d o s h a v e n o t c i t e d
a n y p l a c e i n t h e r e c o r d i n w h i c h t h e t r i a l c o u r t m a d e a n y r u l i n g i n t h i s r e g a r d

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

. I d

. a t 2 1 n
. 2 ( m a

j o r i t y o p i n i o n )

. T h e E l i z o n d o r e l e a s e a p p l i e s t o t h e E l i z o n d o s a n d t h e i r a t t o r n e y s a n d o t h e r a g e n t s , a n d p r o v i d e s : “ T h e p a r t i e s 25
a g r e e t o k e e p c o n f

i d e n t i a l a n d n o t t o d i s c l o s e t o t h i r d p a r t i e s a n y o f t h e c o n s i d e r a t i o n p a i d u n d e r t h i s A g r e e m e n t o r a n y o f t h e o t h e r t e r m s o f t h i s A g r e e m e n t , e x c e p t t h a t a n y p a r t y m a y d i s c l o s e s u c h p o r t i o n s o f t h e A g r e e m e n t , a n d t o s u c h l i m i t e d e x t e n t , a s m a y b e n e c e s s a r y f o r o b t a i n i n g t a x o r l e g a l a d v i c e o r a s m a y b e r e q u i r e d b y l a w o r c o u r t o r d e r
. ”

1 3

### Fur ther, we can find no place in the rec ord wher e the Eliz ondos contende d that their expert neede d to revie w and reve al information about other specific settlements in order to prepa re a valid expert opinion. The voluminous rec ord befor e us indicates sever al pretria l skirmishes wher e other
settlements came up. But the Eliz ondos point to nothing in the rec ord i n d i ca t i n g t h at, but for 2 6 

### objections raised by the Attorney s, Gonzalez would have aug mented his aff idavit with a more

reve aling analy sis and comparis o n o f o t h er specific settlements obtained in simil ar cases. On t he

contra ry , h e s t at ed i n his aff

idavit that “I am prec luded pursuant to the confide ntiality provisions
from divulging specific settlement amounts rela ted to the monetary pay ments by BP to s p ecif

ic plaintiffs.” Gonzalez did not indicate th at h e wished to analy ze and descr ibe other specific settlements to buttress his opinion but had bee n thwarte d by the objections of the A ttorney s.
I n addition, the Eliz ondos did not ask the trial court to defe r ruling on the summary judgme nt motions until they could obtain from the L awy ers or third parties evidenc e of other settlements. The
Eliz ondos should have made such a reque st if they thought their expert neede d this data. Moreove r, 2 7 

### they do not even now contend that they neede d discovery of other settlements so that Gonzalez could provide a compar ison of them in opining on the adequa cy of the E l i z o n d o s et tlement. I n their

F o r e x a m p l e , t h e E l i z o n d o s s o u g h t f r o m t h e L a w y e r s p r o d u c t i o n o f s e t t l e m e n t d o c u m e n t s o f o t h e r B P 26
e x p l o s i o n c l i e n t s a n d s o u g h t p r o d u c t i o n o f s e t t l e m e n t d o c u m e n t s f r o m t h i r d

- p a r t y l a w f

i r m s w h o h a d r e p r e s e n t e d B P

. T h e y a l s o s o u g h t t h e p r o d u c t i o n o f a n y m a t r i x o r g r i d u s e d b y B P i n v a l u i n g c l a i m s
. T h e L a w y e r s r a i s e d v a r i o u s o b j e c t i o n s t o t h e s e r e q u e s t s
.

S e e T e x
. R

. C i v
. P

. 1 6 6 a ( g ) ( “ S h o u l d i t a p p e a r f r o m t h e a f

f i d a v i t s o f a p a r t y o p p o s i n g t h e [ s u m m a r y 27 j u d g m e n t ] m o t i o n t h a t h e c a n n o t f o r r e a s o n s s t a t e d p r e s e n t b y a f f i d a v i t f a c t s e s s e n t i a l t o j u s t i f

y h i s o p p o s i t i o n , t h e c o u r t m a y r e f u s e t h e a p p l i c a t i o n f

o r j u d g m e n t o r m a y o r d e r a c o n t i n u a n c e t o p e r m i t a f f i d a v i t s t o b e o b t a i n e d o r d e p o s i t i o n s t o b e t a k e n o r d i s c o v e r y t o b e h a d o r m a y m a k e s u c h o t h e r o r d e r a s i s j u s t

. ” ) ; T e n n e c o I n c
. v
. E n t e r
. P r o d s
. C o
. , 9 2 5 S

. W

. 2 d 6 4 0 , 6 4 7 ( T e x
. 1 9 9 6 ) ( “ W h e n a p a r t y c o n t e n d s t h a t i t h a s n o t h a d a n a d e q u a t e o p p o r t u n i t y f o r d i s c o v e r y b e f

o r e a s u m m a r y j u d g m e n t h e a r i n g , i t m u s t f i l e e i t h e r a n a f

f i d a v i t e x p l a i n i n g t h e n e e d f o r f u r t h e r d i s c o v e r y o r a v e r i f i e d m o t i o n f o r c o n t i n u a n c e
. ” )

. 1 4

### principal brief, t hey arg ue to us only that the L awy ers’ ref usal to produce information about other

s et t l em en ts should lead us to hold “that the trial court abused i ts discretion in striking portio n s o f
Gonzalez’s aff

idavit.” As detailed above, even if we consider the enti re Gonz alez aff idavit, 2 8 

### including the portions struck by the trial court, we still conclude that it failed to raise a materia l issue
of fa ct as to dama g es. As noted above, the Eliz ondos filed a motion, mentioned by the court of appea ls majority and dissent, seeking a trial court order allowing Gonzalez to reve al in fo rm ation reg arding other
settlements under a proposed protec tive order

. But from the rec ord befor e us the Attorney s wer e 2 9



### not actua lly opposing such d i s cl osures. I n fac t, the motion soug ht entry of an order allowing 3 0


### Gonzalez to testify in his deposition about other settlements beca use the Eliz ondos anticipated that
the Lawyers would ask about these other settlements. Gonzalez soug ht a court order beca use the 3 1


### settlement ag ree ments authorized disclosure of settlemen t amounts if “re quired by law or court order .”

S e e s u

p r a n o t e 3 a n d P a r t I I

. A

. 28

S e e s u p r a n o t e s 2 3

– 2 4 a n d a c c o m p a n y i n g t e x t

. T h e p r o t e c t i v e o r d e r w o u l d h a v e l i m i t e d d i s c l o s u r e t o t h i s 29 l a w s u i t o n l y
.

T h e c o u r t o f a p p e a l s m a j o r i t y a n d d i s s e n t p e r h a p s n o t e d t h a t t h e L a w y e r s o p p o s e d t h e m o t i o n b e c a u s e t h e 30
c e r t i f i c a t e o f c o n f

e r e n c e t o t h i s m o t i o n s t a t e d t h a t c o u n s e l f o r t h e t w o s i d e s “ h a v e b e e n u n a b l e t o w o r k o u t a n y r e s o l u t i o n o f t h i s m o t i o n , ” a n d t h a t c o u n s e l f o r K e v i n K r i s t w a s u n a v a i l a b l e a n d w o u l d l i k e l y o p p o s e t h e r e l i e f r e q u e s t e d

. T h e m o t i o n s t a t e s : “ T h e L a w y e r D e f e n d a n t s h a v e m a d e i t c l e a r t h a t t h e y i n t e n d t o i n q u i r e o f M r
. G o n z a l e z , 31
o r s e e k d o c u m e n t s f

r o m h i m , r e g a r d i n g t h e s p e c i f i c a m o u n t s p a i d b y B P t o s e t t l e o t h e r s i m i l a r c l a i m s
. . . a s r e f e r e n c e d b y M r
. G o n z a l e z i n h i s a f f i d a v i t

. P l a i n t i f

f s a r e m o r e t h a n w i l l i n g f o r s u c h i n f

o r m a t i o n t o b e d i s c l o s e d , b u t w a n t t o d o s o i n a w a y t h a t l i m i t s d i s c l o s u r e t o t h i s l a w s u i t o n l y a n d f o r n o o t h e r u s e o r p u r p o s e
. L i k e w i s e , M r
. G o n z a l e z h a s a d v i s e d t h a t h e i s w i l l i n g t o d i s c l o s e s u c h i n f o r m a t i o n u n d e r a f

a i r p r o t e c t i v e o r d e r
. ” 1 5

### I n sever al pleading s in our rec ord the Eliz ondos reque sted a continuance or more discovery

befor e the t ri al court ruled on the summary judgme nt motions. These reque sts met with some

succe ss, in that the trial court ag ree d not to set a hear ing on the summary judgme nt motions until two

wee ks after

the depositions of the L awy ers we re taken. I n a mot ion for continuance filed in April 2008, the Eliz ondos contende d that they neede d settlement-re lated documents perta ining to other BP
clients of the L awy ers. Howeve r, this plea ding disclaimed any need for infor mation reg arding the
amounts of other se ttlements, stating that the Elizondos wer e content with reda ction of settlement

amounts if that information raised confide ntiality conce rns and that the Attorney s’ s u m m ar y 3 2 

### judgme nt motions on damag es wer e based on a “fa ulty premise,” n am el y that the “only way of proving damag es is by showing that someone else with identical injuries and claims ag ainst BP

rec eived a larg er settlement.” A pleading sty led “De monstration of Nee d for Additional Discover y Prior to Hea

ring on Def

endants’ Six teen Motions for Summary J udg ment,” also filed in April 2008,
stated t hat the Eli zondos neede d settlement documents related to other BP clients of t he L awy ers, but the stated need was to ref ute the L awy ers’ contention that they did not repr esent Guillermina, the
wife of the plaintiff direc tly injured in the blast. At least two other pleading s—plaintiffs’ April 2008
motion for c ontinuance a nd a Mar ch 2008 motion to compel production of doc uments—made the

same arg ument. Ag ain, the Demon s tration of Nee d disclaimed any need for discovery of the

amounts of the other settlements, stating that “Plaintiffs would not object to limit ed reda ctions

T h e m o t i o n s t a t e s : “ T h e o n l y a p p a r e n t c o n f i d e n t i a l i t y c o n c e r n r a i s e d b y a n y o n e c o n c e r n s t h e ‘ c o n f i d e n t i a l ’ 32
s e t t l e m e n t a m o u n t s p a i d t o i n j u r e d B P c l a i m a n t s , a s s e t o u t i n s e t t l e m e n t / r e l e a s e a g r e e m e n t s
. T h i s c o n c e r n d o e s n o t a p p l y t o a n y s e t t l e m e n t d e m a n d m a d e b y a p l a i n t i f f ’ s l a w y e r t o B P ’ s d e f

e n s e c o u n s e l

. T o t h e e x t e n t t h e c o n c e r n i s l e g i t i m a t e i n r e g a r d t o a n y s e t t l e m e n t / r e l e a s e a g r e e m e n t , t h e C o u r t c a n p e r m i t t h e p r o d u c i n g p a r t y t o r e d a c t a n y a c t u a l
s e t t l e m e n t a m o u n t s a n d t h e r e b y p r o t e c t c o n f i d e n t i a l i t y
. ” 1 6

### nece ssary to comply with confide ntiality provisions, such as dollar amounts

. . . .” Another motion 3 3


### for continuance , filed in Octobe r 2008 and r elating specific ally to the summary judgme nt motions

on damag es, made no reque st f or additional discovery on settlements in othe r case s. I t c ontended,

on the contra

ry , that the Gonzalez aff

idavit was adequate to ref ute all t h e L aw y er s’ arg uments in
favor of summary judgme nt on g rounds that no evidenc e had been prese nted on damag es, including
the L awy ers’ arg ument that “Plaintiffs cannot identify any one who obtained a larg er settlement for
the s ame claims, much l ess t he amount rec eived, which demonstrates t h at P l ai n tiffs cannot prove damag es.” I t asked for a continuance only if the Court was considering g ranting summary judgme nt

on g rounds that Guillermina had no consortium claim beca use J ose’s injuries wer e not sufficie ntly
“ser ious, perma

nent, and disabling,” g rounds unrela ted to the alleg ed i n adequa cy of the Eliz ondo settlement that might be reve aled by an expert compa

rison of other B P settlements.
I n sum, none of these discovery skirmishes indicate that the Eliz ondos took the position i n the trial court that (1) discovery of the dollar amount of other settlements in simil ar case s was neede d

so their ex pert could make a va lid, non-conclusory deter mination of the ade quacy of the Elizondo
settlement or better descr ibe his a naly sis, a nd (2) considera

tion of the summary judgme nt motions

on damag es should be continued until such discovery was provided. Acc ording ly , we do not ag ree with the court of appea ls dissent insofar as it would hold that the L awy ers wer e not entitl ed to
summary judgme nt beca

use of their

attempts to lim it discovery reg arding other settlements.

T h e M a r c h 2 0 0 8 m o t i o n t o c o m p e l s i m i l a r l y s t a t e s t h a t “ P l a i n t i f f s a r e w i l l i n g t o a l l o w D e f e n d a n t s t o r e d a c t 33 t h e a c t u a l d o l l a r a m o u n t s c o n t a i n e d i n a n y d e m a n d s a n d i n a n y s e t t l e m e n t / r e l e a s e a g r e e m e n t s s i g n e d b y t h e i r o t h e r c l i e n t s , s o D e f

e n d a n t s h a v e n o b a s i s t o o b j e c t o n t h e s e p u r p o r t e d c o n f i d e n t i a l i t y g r o u n d s
. ” 1 7

### C. The Lay Testim ony of the Elizondos Did Not Raise a G enuin e Issue of Material F act on Malprac tice Dam ages
. The Eliz ondos contend that their own deposition testimony raised fac t issues as to damag es sufficie nt to defe at summary judgme nt. J ose testified about his pain and suffe ring , and Guillermina
testified about her loss of consortium. The Eliz ondos contend that these unliquidated damag es are best left to a jury

and that summary

judgme nt theref

ore w as not war

rante d.
We ag ree with the L awy ers that even if the Eliz ondos prese n t ed s o m e evidence of actua l damag es, this does not mean they raised a materia l issue of fac t as to malpractice damag es. The two

are not the same here , beca use the case settled for $50,000. Even if t h e E l izondos suffe red some
compensa ble damag es, they suffe red as a result of the Attorney s’ conduct only if, absent malprac tice, they probably would have rec overe d a settlement for more than $50,000. As explained above, the
g ener al measure of damag es in a leg al-malpra ctice case is the differ ence betwee n the amount the plaintiff probably would have rec overe d in the absenc e of malprac tice, and the amount rec overe d.
Whil e a “suit within a suit” analy sis is not require d in a case like this one, for the rea sons explained,
the alternative m ethod available t o establish attorney -malpra ctice da mag es re quires an analy sis of
settlements made under compar able circ umstances. W h i l e this alterna tive method is sometimes
available , we c onclude that suc h an ana ly sis r equire s expert testimony

. We have in the pa st noted that proof of attorney malprac tice require s expert testimony , beca use establishing such neg lige nce require s knowledg e bey ond that of most lay persons. The same is true of proof of damag es under

3 4

S e e A l e x a n d e r v
. T

u r t u r & A s s o c s
. , I

n c
. , 1 4 6 S

. W

. 3 d 1 1 3 , 1 1 9

– 2 0 ( T e x
. 2 0 0 4 ) ( n o t i n g t h a t “ t h e w i s d o m a n d 34
c o n s e q u e n c e s ” o f “ t a c t i c a l c h o i c e s m a d e d u r i n g l i t i g a t i o n a r e g e n e r a l l y m a t t e r 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 d t h a t

“ w h e n t h e c a u s a l l i n k i s b e y o n d t h e j u r y ’ s c o m m o n u n d e r s t a n d i n g , 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 ” )

. 1 8

### a theory that a settlement was inadequa te. The Eliz ondos’ own expert attested that a calc ulation of

a re asonable settlement in this case re quired a n analy sis of at least ten fac tors considere d by BP in
deter mining settlement values, a balanc ing and evalua tion of which is su re l y “b ey o nd the ken of

most jurors.” We conclude that even these fac tors are inadequa te if co n s i dere d in a vacuum

3 5


### without evaluation of settlements of compar able case s. Given the c omplex ity of these f actor s, we conclude that such an analy sis require s expert testimony

. I t cannot be based solely on the testimony
of the claimants, particula rly wher e J ose t es t i fi ed t h at he did not know the value of his claim, he
testified that he had “no idea” of the value of his wife’ s claim, and both husband and wife testified
that they did not know whether any one had rec eived a larg er settlement in a case involving simil arly
situated claimants.
The Eliz ondos also ar gu e t h at summary judgme nt was not war rante d as to Guillermina
beca use she rec overe d nothing. They arg ue that Guillermina did not sign the rele ase and there fore
still had an unsettled claim, and that she rec eived nothing in the settlement. The parties disag ree on whether the L awy ers ever repr esente d Guillermina. But even if Guillermina is corr ect that the
L awy ers repr esente d her and had a duty to obtain a settlement for her, or at least advise her that her
claim s h o u l d b e pursued befor e limit ations ran, we cannot ag ree that she raised a fac t issue on damag es in light of the Eliz ondos’ own evidenc e proff ere d in response t o t he summary judgme nt motions. The Eliz ondos offe red proof that (1) Wil liam Wells advised B P that he repr esente d J ose and Guillermin a an d m ad e a settlement demand on behalf of both husband and wife; (2) BP

I d

. a t 1 1 9

. 35
1 9

### responde d with a settlement offe r to settle “all claims of J ose L

. Eliz ondo an d h i s fa m ily ” for

$50,000; (3) the settlement offe r wa s accepted, and BP draf ted a rele ase to be signe d with
d i s b u rsement of the settlement proce eds, defining the “re leasors” to include both J ose an d Guillermina; (4) the rele ase had signa ture lines for both husband and wife; (5) J ose alone met with
Wells and Kevin Krist to g o over the rele ase; (6) J ose was told that Guillermina (who could not speak or rea d Eng lish) did not need to sign the rele ase; and (7) J ose signe d the rele ase and rec eived
the settlement proce eds. To preva il under the theory that Guillermina rec eived nothing on her claim
of loss of consortium, she would have to prove that her claim survived the rele ase beca use J ose did

not have authority to sign the rele ase and acc ept the settlement proce eds on behalf of both of them,
and that she and her lawy ers tricked BP into pay ing $50,000 to settle both claims and BP rema ined
liable on the loss of consortium claim. She woul d also have to prove that BP could have been
persua ded t o p ay an ad ditional settlement or a trier of fac t could have been persua ded to awa rd
additional damag es in such unsavory circ umstances. We have revie wed the rec ord and conclude that
Guillermina failed to proff er evidenc e, expert or otherwise, up o n w h ic h a r e a s onable and fair- minded
trier of fac t could have f

ound damag es for

her unde r such a

novel theory

. 3 6


### III. Conclusi on We affir m the court of a

ppeals’ judg ment.

S e e G o o d

y e a r T i r e & R u b b e r C o
. v
. M a y e s , 2 3 6 S

. W

. 3 d 7 5 4 , 7 5 5 ( T e x
. 2 0 0 7 ) ( “ A n a p p e l l a t e c o u r t r e v i e w i n g 36
a s u m m a r y j u d g m e n t m u s t c o n s i d e r w h e t h e r r e a s o n a b l e a n d f a i r - m i n d e d j u r o r s c o u l d d i f f e r i n t h e i r c o n c l u s i o n s i n l i g h t o f a l l t h e e v i d e n c e p r e s e n t e d

. ” )

. 2 0

### _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Don R. Wi llett J ustice

OP INION DELIVERED: Aug ust 30, 2013

2 1