Summary
holding that an affidavit was conclusory when there was a "lack of a demonstrable and reasoned basis on which to evaluate [the affiant's] opinion"
Summary of this case from Paxton v. City of Dall.Opinion
No. 11–0438.
2013-12-13
Jose L. ELIZONDO and Guillermina Elizondo, Petitioners, v. Ronald D. KRIST, The Krist Law Firm, P.C., Kevin D. Krist, and William T. Wells, Respondents.
Andrew D. Kumar, Michael J. Lowenberg, The O'Quinn Law Firm, Brian K. Tully, Jesse R. Pierce & Associates, P.C., Donald B. McFall, Kenneth R. Breitbeil, McFall, Breitbeil & Smith, P.C., Levon G. Hovnatanian, Martin Disiere Jefferson & Wisdom LLP, Houston, TX, for Jose L. Elizondo. Jane M.N. Webre, Ryan Squires, Stephen E. McConnico, Scott Douglass & McConnico, L.L.P., Austin, TX, for Respondent Kevin Krist.
Andrew D. Kumar, Michael J. Lowenberg, The O'Quinn Law Firm, Brian K. Tully, Jesse R. Pierce & Associates, P.C., Donald B. McFall, Kenneth R. Breitbeil, McFall, Breitbeil & Smith, P.C., Levon G. Hovnatanian, Martin Disiere Jefferson & Wisdom LLP, Houston, TX, for Jose L. Elizondo. Jane M.N. Webre, Ryan Squires, Stephen E. McConnico, Scott Douglass & McConnico, L.L.P., Austin, TX, for Respondent Kevin Krist.
Jeffrey L. Oldham, Bracewell & Guiliani LLP, Jennifer Rustay, William Fred Hagans, Hagans Burdine Montgomery Rustay, P.C., Warren W. Harris, Bracewell & Giuliani, LLP, Houston, TX, for Respondent Ronald D. Krist.
Diana L. Faust, Cooper & Scully, P.C., Dallas, TX, John Wesley Raley, Raley & Bowick LLP, Kirsten Anne Davenport, Davenport Law Firm PC, Houston, TX, for Respondent William T. Wells.
Justice WILLETT delivered the opinion of the Court, in which Chief Justice JEFFERSON, Justice GREEN, Justice JOHNSON, Justice GUZMAN, and Justice DEVINE joined.
In this legal-malpractice case, the clients sued their former attorneys, complaining the attorneys had obtained an inadequate settlement. The trial court granted summary judgment for the attorneys, and the court of appeals affirmed. We affirm the court of appeals' judgment.
I. Background
In March 2005, an explosion occurred at the Texas City refinery of BP Amoco Chemical Company (BP), killing fifteen workers and injuring many others. Approximately 4000 claims were filed against BP, and BP settled them all. A handful of cases proceeded to trial but settled before a verdict.
Jose Elizondo was working for a BP contractor at the plant on the day of the explosion. The blast threw him about twenty feet. He received medical treatment for neck and back injuries. He returned to work a few days later but claimed he continued to suffer from psychological problems. His wife, Guillermina, claimed that she too suffered, from loss of consortium. Jose met with attorney William Wells and signed a power of attorneyretaining Wells to represent him on “all claims I may have against BP and others” arising from the March 2005 explosion.
Wells sent a demand letter to BP asking for a settlement of $2 million on the Elizondos' claims. The settlement demand was made on behalf of both husband and wife. A few months later, an attorney for BP offered to settle “any and all claims of Jose L. Elizondo and his family members” for $50,000. In an effort to increase the settlement in this and three other cases, Wells associated Ronald Krist, Kevin Krist, and the Krist Law Firm as additional counsel. Ronald and Kevin Krist met with BP, but could not obtain a larger settlement for the Elizondos.
The letter begins “Re: Our Clients: Jose Elizondo and spouse Guillermina Elizondo.” It states that “Our office represents Jose Elizondo and his wife Guillermina Elizondo” regarding the BP explosion and requests “settlement to the Elizondos” of $2 million. It describes the family life and background of both spouses. It details Jose's physical and psychological injuries. It states that “Mr. Elizondo and his wife have the privilege and responsibility of providing for, nurturing and raising four daughters. The events of March 23rd and following disrupted their family existence and security.”
Wells and Kevin Krist met with Jose to discuss the settlement offer. They went through a form release prepared by BP. Jose decided to accept the settlement offer and signed the release in February 2006. The release covers Jose and Guillermina, defining the “RELEASORS” as “JOSE ELIZONDO, GUILLERMINA ELIZONDO, and any of their heirs, executors, agents, trustees, assignees, representatives, attorneys, advisors, administrators, successors and assigns.” The release had signature lines for Jose and Guillermina, but only Jose signed it. Guillermina testified that she cannot speak or read English. Jose contends that when he met with his counsel, he asked whether Guillermina needed to sign the agreement and was told it was not necessary.
In August 2007, Jose brought this suit against Wells, Kevin Krist, Ronald Krist, and the Krist Law Firm (the Attorneys). Guillermina was later added as a plaintiff, but all the Attorneys deny ever representing Guillermina. The suit claimed that the Attorneys represented both Elizondos and failed to obtain an adequate settlement on their behalf. The petition asserted claims of professional negligence, breaches of fiduciary duty, and fraud, as well as other claims. It contended that Jose was “sold down the river” so that Ronald Krist could represent BP. After Jose accepted BP's settlement offer, Ronald Krist did represent BP, but he contends his representation of Jose had ended months earlier. The Elizondos also claimed that because Guillermina did not sign the release her claim was never settled, and the Attorneys should have pursued her claim before it became time-barred.
The Attorneys filed several motions for summary judgment on grounds of no evidence of damages, impermissible “claim splitting,” and no attorney-client relationship with Guillermina, as well as other grounds. In response to the motions regarding damages, the Elizondos submitted the expert affidavit of attorney Arturo Gonzalez.
The trial court granted some of the summary-judgment motions, including the motions regarding damages. The court of appeals affirmed, holding that because the Elizondos had not presented more than a scintilla of competent evidence of damages, the trial court did not err in granting summary judgment on this ground.
II. Discussion
A. The Gonzalez Affidavit Did Not Raise a Genuine Issue of Material Fact on Malpractice Damages.
The parties disagree on whether the Gonzalez affidavit was sufficient to defeat summary judgment on the issue of malpractice damages. Summary judgment was warranted for the Attorneys if, after adequate time for discovery, they demonstrated that the Elizondos had failed to offer competent summary judgment evidence raising a genuine issue of material fact as to damages.
The trial court struck certain portions of the affidavit after the Attorneys complained that it was conclusory. Unlike the court of appeals, we do not separately analyze this ruling but address whether the affidavit, considered in its entirety, raised a material issue of fact as to damages.
SeeTex.R. Civ. P. 166a(i).
In his eight-page affidavit, Gonzalez recites his general qualifications and his specific involvement in the BP litigation. He worked for two firms that represented claimants in litigation arising from the plant explosion and was appointed by the 212th district court as plaintiffs' liaison counsel. He attested that these experiences familiarized him with the settlement of many claims. He stated that BP focused on ten criteria in determining the general value of a case for settlement purposes: (1) proximity to ground zero; (2) when injury was reported to a supervisor; (3) corroboration of proximity and reporting of injuries to supervisor or management; (4) age of victim; (5) wage earning capacity and wage loss (present and future); (6) injuries and bio-mechanics of injuries—e.g., nature, extent, and duration; (7) medical treatment received and duration thereof (physical and mental/PTSD); (8) surgical versus non-surgical interventions; (9) single or married/residual consortium claims; and (10) onsite versus offsite claims. The affidavit describes the basic facts regarding Jose's injuries, family situation, and work history. It then states:
Based on the factual information provided and reviewed by me, my experience in the BP litigation, my knowledge of general settlement values and in the criteria and protocol relied upon to establish general settlement values in the BP litigation, it is my opinion that for a plaintiffs' attorney acting within the standard of care applicable to the same or similar circumstances, using reasonable due diligence, the Elizondo case would have had a general value, by way of settlement or verdict, in the range of between Two Million ($2,000,000.00) and Three Million ($3,000,000.00) dollars. Guillermina Elizondo's individual claim would represent some part of that value, but Jose's claim would represent the majority of that value. The settlement value of the Elizondo claim is not distinguished as compensatory, non-economic or exemplary in nature, but instead is a single value offered by BP so that BP could avoid a trial or jury verdict.
The affidavit sets out the information reviewed by Gonzalez and details why, in Gonzalez's opinion, the Attorneys failed to exercise due diligence in their representation of the Elizondos. It then states:
The settlement offer made by BP for the Elizondos' claim was basically for nuisance value. Given the extraordinary circumstances surrounding the BP explosion[ ] claims, a reasonably competent plaintiff's lawyer should have continued to prosecute the claim until a fair and reasonable offer was made by BP. In my opinion, had that been done, the Lawyers would have garnered far in excess of the $50,000 offer which was supposedly the most that BP would ever pay.
It then concludes that, in light of the risk of punitive damages in the BP explosion cases, “these cases were heavily evaluated and settlements obtained were significantly higher as compared to the average personal injury lawsuit in the [S]tate of Texas.”
At the outset, the Attorneys contend that the Gonzalez affidavit is defective because a legal-malpractice suit is a “suit within a suit,” and proof of malpractice damages requires proof of what the plaintiff would have recovered by way of a judgment after trial absent his attorney's negligence. For example, the Attorneys argue in their brief that plaintiffs alleging malpractice damages “must prove that the ‘true value’ of their case is a collectible recovery, after a trial, that is greater than the actual result they received,” and that “[t]o show the existence of malpractice damages, the Elizondos had to show the true value of their claims was greater than what they received, i.e., that they would have recovered by way of judgment an amount greater than they did from BP.” They contend that Gonzalez only analyzed why the settlement was inadequate for various reasons, and he did not discuss what amount the Elizondos would have recovered if the case had proceeded to judgment after a trial. We disagree with this argument.
We have recognized that in a legal-malpractice case damages consist of “the amount of damages recoverable and collectible ... if the suit had been properly prosecuted.” In Keck, Mahin & Cate v. National Union Fire Insurance Co., we described damages in such cases as the difference between the result obtained and the case's “true value,” defined as the recovery that would have been obtained “following a trial” in which the client had “reasonably competent, malpractice-free” counsel.
Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex.1989); see also Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex.2009).
.20 S.W.3d 692, 703 n. 5 (Tex.2000).
These cases recognize that legal-malpractice damages are the difference between the result obtained for the client and the result that would have been obtained with competent counsel. They do not require that damages can only be measured against the result the client would have obtained if the case had been tried to a final judgment.
In this case, it is undisputed that BP, a large, solvent corporation, made the decision to settle every case arising from the plant explosion. Here, where the same defendant settled thousands of cases, and indeed made the business decision to settle all cases and not try any to a verdict, we see no reason why an expert cannot base his opinion of malpractice damages on a comparison of what similarly situated plaintiffs obtained from the same defendant. This data is perhaps the best evidence of the real-world settlement value of the case. Under Evidence Rule 703, experts may base their testimony on facts or data that are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” That test is met when, in a mass tort litigation involving thousands of similar claimants and arising out of the same event, the expert measures the “true” settlement value of a particular case by persuasively comparing all the circumstances of the case to the settlements obtained in other cases with similar circumstances arising from the event.
.Tex.R. Evid. 703.
Nevertheless, the Attorneys argue that the Gonzalez affidavit was conclusory, while the Elizondos maintain that it was sufficiently specific to raise a fact issue on damages.
“Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence,” and we have “often held that such conclusory testimony cannot support a judgment.” “A conclusory statement of an expert witness is insufficient to create a question of fact to defeat summary judgment.” Further, “a claim will not stand or fall on the mere ipse dixit of a credentialed witness.” Expert testimony fails if there is “simply too great an analytical gap between the data and the opinion proffered.” Courts are not required “to ignore fatal gaps in an expert's analysis or assertions.” Stated another way, in a legal-malpractice case, we have observed that even where an attorney-expert was qualified to give expert testimony, his affidavit “cannot simply say, ‘Take my word for it, I know: the settlements were fair and reasonable.’ ” Conversely, in this case, an attorney-expert, however well qualified, cannot defeat summary judgment if there are fatal gaps in his analysis that leave the court to take his word that the settlement was inadequate.
City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex.2009).
Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.2004).
McIntyre v. Ramirez, 109 S.W.3d 741, 749–50 (Tex.2003).
Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999).
Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex.1998) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)).
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 912 (Tex.2004).
Burrow, 997 S.W.2d at 236.
Our decision in Burrow v. Arce is instructive. In that case as in today's case, attorneys had settled numerous suits in a mass tort proceeding arising out of a plant explosion. The plaintiffs, former clients of the attorneys, contended that the settlements they received were inadequate for various reasons, including the failure of the attorneys to “fully investigate and assess individual claims.” The trial court granted summary judgment for the attorneys on grounds that the settlements were fair and reasonable and therefore the clients had suffered no actual damages and were not entitled to the forfeiture of fees they sought.
Id. at 232.
Id. at 233.
We held that the affidavits submitted by the attorneys were conclusory and therefore insufficient to entitle the attorneys to summary judgment. We considered three affidavits. The most detailed affidavit, from retained expert-attorney Malinak, set out numerous criteria that were important in evaluating settlements in the case, including the underlying liability facts, the identity of the employer, the elements of damages available to each plaintiff, and the losses to each plaintiff. The expert then declared that he had evaluated the criteria as to each plaintiff and had concluded that the settlement as to each was reasonable and fair. We held that the affidavit was too conclusory to sustain a summary judgment on the element of damages:
Id. at 235.
Id.
The affidavit says no more than that Malinak, an experienced attorney, has considered the relevant facts and concluded that the Clients' settlements were all fair and reasonable.... Credentials qualify a person to offer opinions, but they do not supply the basis for those opinions. The opinions must have a reasoned basis which the expert, because of his “knowledge, skill, experience, training, or education [,”] is qualified to state. That basis is missing in Malinak's affidavit. He does not explain why the settlements were fair and reasonable for each of the Clients. His affidavit ... is nothing more than a sworn denial of plaintiffs' claims and no more entitles the Attorneys to summary judgment than a lawyer's equally conclusory affidavit stating that the Clients had suffered $10 million damages would entitle them to summary judgment.... [T]he issue is whether Malinak's affidavit states a sufficient basis for his opinions. Malinak might have analyzed the Clients' injuries by type, or related settlement amounts to medical reports and expenses, or compared these settlements to those of similar claims, or provided other information showing a relationship between the plaintiffs' circumstances and the amounts received. He did not do so. The absence of such information did not merely make the affidavit unclear or indirect; it deprived Malinak's opinions of any demonstrable basis. We therefore conclude that summary judgment could not rest on Malinak's affidavit.
Id. at 235–36 (quoting Tex.R. Evid. 702).
The Gonzalez affidavit in today's case is similarly conclusory. Like the Malinak affidavit, the Gonzalez affidavit is from an experienced attorney whose credentials are not the problem. The problem is the lack of a demonstrable and reasoned basis on which to evaluate his opinion that the settlement was inadequate. Like the Malinak affidavit, the Gonzalez affidavit explains in some detail the factors or criteria that should inform a determination of the value of the case. Like the Malinak affidavit, the Gonzalez affidavit confirms that the affiant considered the facts relevant to the case, but it fails to offer specifics on why the value of the case was $2–3 million as opposed to the $50,000 received in settlement. A fatal analytical gap divides the recitation of the facts of the Elizondo case and the declaration of its settlement value.
Gonzalez did not evaluate what the Elizondo case would have yielded by way of a judgment if the case had gone to trial. On the contrary, he based his opinion on what the Attorneys should have obtained in settlement. The affidavit makes clear throughout that Gonzalez's opinion of the value of the case stems from his opinion of the settlement the Attorneys should have obtained. As noted above, none of the approximately 4000 claims arising from the BP plant explosion was tried to a verdict. Gonzalez states in the affidavit that through his experience he gained knowledge of the “settlement ranges or case values” in the BP litigation. He then lists the criteria BP used in “determining the general value of a case for settlement purposes.” He states his value of the case based on his “knowledge of general settlement values and ... the criteria and protocol relied upon to establish general settlement values.” He states that “[t]he settlement offer made by BP ... was basically for nuisance value” and that, given the extraordinary circumstances of the BP plant explosion, “a reasonably competent plaintiff's lawyer should have continued to prosecute the claim until a fair and reasonable offer was made by BP.” He concludes by stating that the Attorneys could have “greatly enhanced the settlement value of the Elizondo claim” by developing facts supporting exemplary damages. As explained above, we conclude that an analysis of settlements of cases with injuries and circumstances similar to the Elizondo case might be sufficient to raise a fact issue as to the inadequacy of the settlement, but Gonzalez did not undertake to compare the Elizondo settlement with other actual settlements obtained in the BP litigation. As in Burrow, the expert might have compared this settlement “to those of similar claims, or provided other information showing a relationship between the plaintiffs' circumstances and the amounts received [but he] did not do so.” We are simply left to take his word that the settlement here was inadequate. In this regard, we agree with the court of appeals:
Id. at 236.
[A]lthough Gonzalez lists specific criteria he contends BP “focused on” when determining settlement values, he offers no analysis to explain how these factors would be applied to the Elizondos' situation. He also fails to link settlement amounts to specific injuries and circumstances, and provides no comparison of settlement amounts of similar claims. Thus, Gonzalez's affidavit offers only conclusory and speculative opinions.
We conclude, therefore, that the affidavit did not raise a genuine issue of material fact sufficient to defeat summary judgment.
The dissent reasons that the affidavit raised a fact issue on whether competent counsel would have obtained a settlement in excess of $50,000, which Gonzalez characterized as nuisance value. We differ because, for the reasons stated, the affidavit was devoid of a demonstrable basis, whether we consider that portion of the affidavit claiming the case had a settlement value of $2–3 million, or that portion declaring the settlement value was “far in excess of the $50,000” actually received. These assertions are equally conclusory, suffer from the same fatal gap in analysis, 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 as to the adequacy of the settlement, the same defect we recognized in Burrow.
B. Discovery Disputes in the Trial Court Did Not Warrant Denial of the Summary Judgment Motions on Damages.
The court of appeals dissent noted that at various points in the litigation the Lawyers objected to the discovery of information about other settlements, and this dissent thought it “fundamentally unfair for the Lawyers to thwart discovery as to other settlements and at the same time use the lack of that information to strike Gonzalez's affidavit.” It noted that “[t]he Elizondos asked for a court order to allow Gonzalez to reveal specifics from the BP settlements, and the Lawyers opposed the order.” On the other hand, the court of appeals majority concluded that the Elizondos did not assign as error on appeal that the trial court erred in denying their request to obtain discovery on or otherwise reveal information regarding settlements in other cases. On this issue, we ultimately are not persuaded by the court of appeals dissent—essentially urging that, because the Lawyers objected to discovery regarding other settlements, the Lawyers should be estopped from prevailing on grounds that the Gonzalez affidavit was inadequate. Nevertheless, we find the issue difficult and discuss it at some length herein.
Id. at 28 (Christopher, J., concurring and dissenting).
Id. (footnote omitted).
The court of appeals majority noted:
The Elizondos sought to obtain discovery regarding various documents relating to the BP settlements and, in response, the Lawyers asserted various objections. The Elizondos also asked for a court order under which Gonzalez could reveal specific information regarding the BP settlements, and the Lawyers opposed this motion. But, the Elizondos have not asserted on appeal that the trial court sustained the Lawyers' discovery objections or denied this motion, and the Elizondos have not cited any place in the record in which the trial court made any ruling in this regard. In addition, the Elizondos have not assigned error or presented argument challenging any such ruling by the trial court.
Id. at 21 n. 2 (majority opinion).
The settlement agreements in the BP cases contained a confidentiality provision prohibiting disclosure of the details of the settlements to third parties. The Elizondos' expert, Gonzalez, stated in his affidavit that he was bound by this provision. The Attorneys were also bound by this provision. To the extent the Attorneys contended as an initial discovery response that they and others could not disclose information regarding other settlements for contractual reasons, we believe they argued within the bounds of zealous advocacy in contending that the information should not be disclosed even if it might be helpful to the Elizondos.
The Elizondo release applies to the Elizondos and their attorneys and other agents, and provides: “The parties agree to keep confidential and not to disclose to third parties any of the consideration paid under this Agreement or any of the other terms of this Agreement, except that any party may disclose such portions of the Agreement, and to such limited extent, as may be necessary for obtaining tax or legal advice or as may be required by law or court order.”
Further, we can find no place in the record where the Elizondos contended that their expert needed to review and reveal information about other specific settlements in order to prepare a valid expert opinion. The voluminous record before us indicates several pretrial skirmishes where other settlements came up. But the Elizondos point to nothing in the record indicating that, but for objections raised by the Attorneys, Gonzalez would have augmented his affidavit with a more revealing analysis and comparison of other specific settlements obtained in similar cases. On the contrary, he stated in his affidavit that “I am precluded pursuant to the confidentiality provisions from divulging specific settlement amounts related to the monetary payments by BP to specific plaintiffs.” Gonzalez did not indicate that he wished to analyze and describe other specific settlements to buttress his opinion but had been thwarted by the objections of the Attorneys.
For example, the Elizondos sought from the Lawyers production of settlement documents of other BP explosion clients and sought production of settlement documents from third-party law firms who had represented BP. They also sought the production of any matrix or grid used by BP in valuing claims. The Lawyers raised various objections to these requests.
In addition, the Elizondos did not ask the trial court to defer ruling on the summary judgment motions until they could obtain from the Lawyers or third parties evidence of other settlements. The Elizondos should have made such a request if they thought their expert needed this data. Moreover, they do not even now contend that they needed discovery of other settlements so that Gonzalez could provide a comparison of them in opining on the adequacy of the Elizondo settlement. In their principal brief, they argue to us only that the Lawyers' refusal to produce information about other settlements should lead us to hold “that the trial court abused its discretion in striking portions of Gonzalez's affidavit.” As detailed above, even if we consider the entire Gonzalez affidavit, including the portions struck by the trial court, we still conclude that it failed to raise a material issue of fact as to damages.
SeeTex.R. Civ. P. 166a(g) (“Should it appear from the affidavits of a party opposing the [summary judgment] motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”); Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex.1996) (“When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance.”).
See supra note 3 and Part II.A.
As noted above, the Elizondos filed a motion, mentioned by the court of appeals majority and dissent, seeking a trial court order allowing Gonzalez to reveal information regarding other settlements under a proposed protective order. But from the record before us the Attorneys were not actually opposing such disclosures. In fact, the motion sought entry of an order allowing Gonzalez to testify in his deposition about other settlements because the Elizondos anticipated that the Lawyers would ask about these other settlements. Gonzalez sought a court order because the settlement agreements authorized disclosure of settlement amounts if “required by law or court order.”
See supra notes 23–24 and accompanying text. The protective order would have limited disclosure to this lawsuit only.
The court of appeals majority and dissent perhaps noted that the Lawyers opposed the motion because the certificate of conference to this motion stated that counsel for the two sides “have been unable to work out any resolution of this motion,” and that counsel for Kevin Krist was unavailable and would likely oppose the relief requested.
The motion states: “The Lawyer Defendants have made it clear that they intend to inquire of Mr. Gonzalez, or seek documents from him, regarding the specific amounts paid by BP to settle other similar claims ... as referenced by Mr. Gonzalez in his affidavit. Plaintiffs are more than willing for such information to be disclosed, but want to do so in a way that limits disclosure to this lawsuit only and for no other use or purpose. Likewise, Mr. Gonzalez has advised that he is willing to disclose such information under a fair protective order.”
In several pleadings in our record the Elizondos requested a continuance or more discovery before the trial court ruled on the summary judgment motions. These requests met with some success, in that the trial court agreed not to set a hearing on the summary judgment motions until two weeks after the depositions of the Lawyers were taken. In a motion for continuance filed in April 2008, the Elizondos contended that they needed settlement-related documents pertaining to other BP clients of the Lawyers. However, this pleading disclaimed any need for information regarding the amounts of other settlements, stating that the Elizondos were content with redaction of settlement amounts if that information raised confidentiality concerns and that the Attorneys'summary judgment motions on damages were based on a “faulty premise,” namely that the “only way of proving damages is by showing that someone else with identical injuries and claims against BP received a larger settlement.” A pleading styled “Demonstration of Need for Additional Discovery Prior to Hearing on Defendants' Sixteen Motions for Summary Judgment,” also filed in April 2008, stated that the Elizondos needed settlement documents related to other BP clients of the Lawyers, but the stated need was to refute the Lawyers' contention that they did not represent Guillermina, the wife of the plaintiff directly injured in the blast. At least two other pleadings—plaintiffs' April 2008 motion for continuance and a March 2008 motion to compel production of documents—made the same argument. Again, the Demonstration of Need disclaimed any need for discovery of the amounts of the other settlements, stating that “Plaintiffs would not object to limited redactions necessary to comply with confidentiality provisions, such as dollar amounts....” Another motion for continuance, filed in October 2008 and relating specifically to the summary judgment motions on damages, made no request for additional discovery on settlements in other cases. It contended, on the contrary, that the Gonzalez affidavit was adequate to refute all the Lawyers' arguments in favor of summary judgment on grounds that no evidence had been presented on damages, including the Lawyers' argument that “Plaintiffs cannot identify anyone who obtained a larger settlement for the same claims, much less the amount received, which demonstrates that Plaintiffs cannot prove damages.” It asked for a continuance only if the Court was considering granting summary judgment on grounds that Guillermina had no consortium claim because Jose's injuries were not sufficiently “serious, permanent, and disabling,” grounds unrelated to the alleged inadequacy of the Elizondo settlement that might be revealed by an expert comparison of other BP settlements.
The motion states: “The only apparent confidentiality concern raised by anyone concerns the ‘confidential’ settlement amounts paid to injured BP claimants, as set out in settlement/release agreements. This concern does not apply to any settlement demand made by a plaintiff's lawyer to BP's defense counsel. To the extent the concern is legitimate in regard to any settlement/release agreement, the Court can permit the producing party to redact any actual settlement amounts and thereby protect confidentiality.”
The March 2008 motion to compel similarly states that “Plaintiffs are willing to allow Defendants to redact the actual dollar amounts contained in any demands and in any settlement/release agreements signed by their other clients, so Defendants have no basis to object on these purported confidentiality grounds.”
In sum, none of these discovery skirmishes indicate that the Elizondos took the position in the trial court that (1) discovery of the dollar amount of other settlements in similar cases was needed so their expert could make a valid, non-conclusory determination of the adequacy of the Elizondo settlement or better describe his analysis, and (2) consideration of the summary judgment motions on damages should be continued until such discovery was provided. Accordingly, we do not agree with the court of appeals dissent insofar as it would hold that the Lawyers were not entitled to summary judgment because of their attempts to limit discovery regarding other settlements.
C. The Lay Testimony of the Elizondos Did Not Raise a Genuine Issue of Material Fact on Malpractice Damages.
The Elizondos contend that their own deposition testimony raised fact issues as to damages sufficient to defeat summary judgment. Jose testified about his pain and suffering, and Guillermina testified about her loss of consortium. The Elizondos contend that these unliquidated damages are best left to a jury and that summary judgment therefore was not warranted.
We agree with the Lawyers that even if the Elizondos presented some evidence of actual damages, this does not mean they raised a material issue of fact as to malpractice damages. The two are not the same here, because the case settled for $50,000. Even if the Elizondos suffered some compensable damages, they suffered as a result of the Attorneys' conduct only if, absent malpractice, they probably would have recovered a settlement for more than $50,000. As explained above, the general measure of damages in a legal-malpractice case is the difference between the amount the plaintiff probably would have recovered in the absence of malpractice, and the amount recovered. While a “suit within a suit” analysis is not required in a case like this one, for the reasons explained, the alternative method available to establish attorney-malpractice damages requires an analysis of settlements made under comparable circumstances. While this alternative method is sometimes available, we conclude that such an analysis requires expert testimony. We have in the past noted that proof of attorney malpractice requires expert testimony, because establishing such negligence requires knowledge beyond that of most laypersons. The same is true of proof of damages under a theory that a settlement was inadequate. The Elizondos' own expert attested that a calculation of a reasonable settlement in this case required an analysis of at least ten factors considered by BP in determining settlement values, a balancing and evaluation of which is surely “beyond the ken of most jurors.” We conclude that even these factors are inadequate if considered in a vacuum without evaluation of settlements of comparable cases. Given the complexity of these factors, we conclude that such an analysis requires expert testimony. It cannot be based solely on the testimony of the claimants, particularly where Jose testified that 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 anyone had received a larger settlement in a case involving similarly situated claimants.
See Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119–20 (Tex.2004) (noting that “the wisdom and consequences” of “tactical choices made during litigation are generally matters beyond the ken of most jurors” and that “when the causal link is beyond the jury's common understanding, expert testimony is necessary”).
Id. at 119.
The Elizondos also argue that summary judgment was not warranted as to Guillermina because she recovered nothing. They argue that Guillermina did not sign the release and therefore still had an unsettled claim, and that she received nothing in the settlement. The parties disagree on whether the Lawyers ever represented Guillermina. But even if Guillermina is correct that the Lawyers represented her and had a duty to obtain a settlement for her, or at least advise her that her claim should be pursued before limitations ran, we cannot agree that she raised a fact issue on damages in light of the Elizondos' own evidence proffered in response to the summary judgment motions. The Elizondos offered proof that (1) William Wells advised BP that he represented Jose and Guillermina and made a settlement demand on behalf of both husband and wife; (2) BP responded with a settlement offer to settle “all claims of Jose L. Elizondo and his family” for $50,000; (3) the settlement offer was accepted, and BP drafted a release to be signed with disbursement of the settlement proceeds, defining the “releasors” to include both Jose and Guillermina; (4) the release had signature lines for both husband and wife; (5) Jose alone met with Wells and Kevin Krist to go over the release; (6) Jose was told that Guillermina (who could not speak or read English) did not need to sign the release; and (7) Jose signed the release and received the settlement proceeds. To prevail under the theory that Guillermina received nothing on her claim of loss of consortium, she would have to prove that her claim survived the release because Jose did not have authority to sign the release and accept the settlement proceeds on behalf of both of them, and that she and her lawyers tricked BP into paying $50,000 to settle both claims and BP remained liable on the loss of consortium claim. She would also have to prove that BP could have been persuaded to pay an additional settlement or a trier of fact could have been persuaded to award additional damages in such unsavory circumstances. We have reviewed the record and conclude that Guillermina failed to proffer evidence, expert or otherwise, upon which a reasonable and fair-minded trier of fact could have found damages for her under such a novel theory.
See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007) (“An appellate court reviewing a summary judgment must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all the evidence presented.”).
III. Conclusion
We affirm the court of appeals' judgment. Justice BOYD filed a dissenting opinion, in which Justice LEHRMANN joined.
Justice HECHT did not participate in the decision.
Justice BOYD, joined by Justice LEHRMANN, dissenting.
To prove the existence of legal malpractice damages, clients who sue their attorneys must establish that “the result obtained for the client” was less (or lower or worse) than “the result that would have been obtained with competent counsel.” See ante at 263. The Court holds that Jose and Guillermina Elizondo failed to submit any evidence that could meet that burden, despite their expert's testimony that, in his opinion, the attorneys' breaches of their duties caused the Elizondos to settle their claims “basically for nuisance value,” and “a reasonably competent plaintiff's lawyer ... would have garnered far in excess” of that amount. I believe the Court imposes too strict a standard at this summary judgment stage. Because the expert based his opinion on facts that could support a finding that the Elizondos' claims had substantial merit but were settled as if they had no merit at all, I would hold that the Elizondos created a fact issue on the existence of malpractice damages. I therefore respectfully dissent.
I.
Standard of Review
This is an appeal from a summary judgment. We must consider the evidence in the light most favorable to the Elizondos, indulging every reasonable inference and resolving any doubts in their favor. See City of Keller v. Wilson, 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 Elizondos submitted no evidence that they incurred any damagesas a result of the defendants' alleged breaches. At this stage of the case, the Elizondos did not have to prove the amount of their damages; they only had to create a fact issue as to the existence of damages—that is, whether they sustained any damages at all. To do this, they had to “produce some evidence from which a reasonable jury could infer” that they sustained some damages. See Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex.2010) (observing that even though there was no evidence of amount of damages, there was evidence that some damages were incurred); see also Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex.2004) (noting that plaintiff must “produce evidence from which a jury may reasonably infer that the attorney's conduct caused the damages alleged”) (citing Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 181 (Tex.1995)). If they have done this, we must reverse the trial court's summary judgment.
II.
A Qualified Expert Witness
The Elizondos relied primarily on the affidavit of their expert witness, Arturo J. Gonzalez. According to his affidavit, Gonzalez is a Texas lawyer who has specialized in personal injury claims for over twenty years. Following a 2005 explosion at BP Amoco Chemical Company's plant in Texas City, Gonzalez assisted in the representation of over 525 plaintiffs who, like the Elizondos, asserted claims for damages against BP. For most of that time, Gonzalez served as the plaintiffs' court-appointed liaison counsel to facilitate discovery and the exchange of information between the parties. He “was intimately involved on a day to day basis with the settlement process” involving these claims, and participated in numerous settlement conferences with BP's representatives and attorneys. He was “directly responsible” for negotiating and settling three cases, and has personal knowledge of the values for which most of the other claims were settled. The defendants may ultimately dispute Gonzalez's assertions and qualifications and, at trial, would be free to disprove them or otherwise undermine his credibility or the reliability of his opinions. But for purposes of summary judgment, as the Court acknowledges, Gonzalez's affidavit establishes that he is “an experienced attorney whose credentials are not the problem.” Ante at 265.
The Court holds that expert testimony is necessary to establish the existence of damages under the comparison-of-settlements method that it approves today, because the balancing and evaluation of factors necessary to compare different claims and their settlement values is “beyond the ken of most jurors.” Ante at 270 (quoting Alexander, 146 S.W.3d at 119–20). Because I would hold that Gonzalez's affidavit was sufficient, under a different method, to create a fact issue and defeat summary judgment, I need not decide in this case whether expert testimony would be necessary in all such cases.
III.
An Acceptable Method of Proof
We have previously held that a client who was the plaintiff in an underlying case can establish the existence of malpractice damages by proving that the amount the client recovered was less than the amount “that would have been recoverable and collectible if the other case had been properly prosecuted.” Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex.2009). Because we have focused on the recoverable and collectible amount of a judgment following trial, courts often refer to this method of proving damages as a “suit-within-a-suit.” See, e.g., Taylor v. Alonso, Cersonsky & Garcia, P.C., 395 S.W.3d 178, 183 (Tex.App.–Houston [1st Dist.] 2012, no pet.) (“This causation burden in this type of legal malpractice claim has been called the ‘suit-within-a-suit’ requirement.”) (citing Greathouse v. McConnell, 982 S.W.2d 165, 173 (Tex.App.–Houston [1st Dist.] 1998, pet. denied)).
Today, the Court holds that a client who was a plaintiff “in a mass tort litigation involving thousands of similar claimants and arising out of the same event” can also establish the existence of malpractice damages by proving that the amount the client received in settlement is lower than the amounts of “the settlements obtained in other cases ... arising from the event.” Ante at 263. This holding is consistent with the Court's comments in Burrow v. Arce, 997 S.W.2d 229, 236 (Tex.1999) (noting that the expert “might have ... compared these settlements to those of similar claims”), and I agree with it. I also agree with the Court's holding that Gonzalez's affidavit was insufficient under this “comparison-of-settlements” method. Gonzalez “did not undertake to compare the Elizondo settlement with other actual settlements obtained in the BP litigation.” Ante at 266. He did not state the values for which any of the other cases settled, and he did not assert that the Elizondos' claims were comparable to, but settled for less than, any of the other cases.
As the Court notes, Gonzalez did not use the “comparison-of-settlements” method because confidentiality agreements prevented him from disclosing the amounts for which the other cases settled. I agree with the Court that, to the extent the Elizondos are now arguing that the attorney defendants thwarted their efforts to compare the values of other settlements, they waived that argument in the court of appeals and in the trial court. Ante at 263.
But the Elizondos did not rely on the comparison-of-settlements method. Instead, they challenged the defendants' “faulty premise” that the “only way of proving damages is by showing that someone else with identical injuries and claims received a larger settlement.” See ante at 269. I agree with the Elizondos that the suit-within-a-suit and the comparison-of-settlements methods are not the only ways to prove the existence of legal malpractice damages. Just as our decisions “do not require that damages can only be measured against the result the client would have obtained if the case had been tried in court to a final judgment,” ante at 263, they also do not require that damages can only be measured against the result the client would have obtained if the case had settled for the amounts for which similar cases settled. Since malpractice damages are “the difference between the result obtained and the case's ‘true value,’ ” see ante at 263, I would hold that any method that provides competent evidence that the case's “true value” was greater than the “results obtained” will suffice to raise a fact issue on the existence of malpractice damages. And I would hold that, by submitting sufficient expert opinion evidence that their claims had merit but were settled as if they had none, the Elizondos satisfied that burden.
IV.
Sufficient Expert Opinions
Gonzalez did not utilize the comparison-of-settlements method because confidentiality agreements prohibited him from disclosing the amounts for which other cases settled. Nor did he utilize the suit-within-a-suit method, presumably because BP settled every one of the 2005 explosion claims prior to the entry of any judgment. Instead, after stating his experience and qualifications, explaining the confidentiality of BP's settlement amounts, listing the factors that BP considered when determining the settlement value of a case, stating his opinion of the general settlement value of the Elizondos' claims, listing the sources on which he relied, describing the things that a reasonably diligent attorney would have done to pursue the Elizondos' claims, and listing the specific ways in which the attorney defendants failed to meet that standard, Gonzalez stated his opinions as follows:
The settlement offer made by BP for the Elizondos' claim was basically for nuisance value. Given the extraordinary circumstances surrounding the BP explosions claims, a reasonably competent plaintiff's lawyer should have continued to prosecute the claim until a fair and reasonable offer was made by BP. In my opinion, had that been done, the Lawyers would have garnered far in excess of the $50,000 offer[.]
(Emphasis added.) In Gonzalez's opinion, the $50,000 that the Elizondos received to settle their claim was “basically for nuisance value” and not a “fair and reasonable” amount based on the merits of the claim.
Although Gonzalez did not define “nuisance value,” its meaning is common knowledge, at least among American litigators and judges: a nuisance value settlement is a settlement of meritless, frivolous, or groundless claims for an amount that is less than the defendant would have to spend to defeat them. See, e.g., Valores Corp. v. McLane Co., 945 S.W.2d 160, 169 (Tex.App.–San Antonio 1997, writ denied) (noting that summary judgment rule was intended to dispose of “groundless actions instituted by plaintiffs seeking to harass defendants into nuisance value settlements”) (quoting Roy W. McDonald, Summary Judgment,Tex. L.Rev. 286, 286 (1952)); Wolcott v. Trailways Lines, Inc., 774 So.2d 1054, 1055 n. 1 (La.App. 2nd Cir.2000) (“The ‘nuisance value’ of a claim is generally considered to be the cost of defending a claim in which it is doubtful the plaintiff will prevail, but is unwilling to simply dismiss.”); Fletcher v. City of Fort Wayne, Ind., 162 F.3d 975, 976 (7th Cir.1998) (“[a] compromise for less than the cost of defense is a good working definition of a nuisance-value settlement”); R. Kozel & D. Rosenberg, Solving the Nuisance–Value Settlement Problem: Mandatory Summary Judgment, 90 Va. L.Rev. 1849, 1851 (2004) (defining a nuisance-value settlement as “a payoff extracted by a threat to litigate a meritless claim or defense that both parties know the court would readily dismiss as ‘untriable’ or otherwise legally untenable on an applicable dispositive motion for merits review”).
See also Fed. Land Bank of Hous. v. Brooks, 124 S.W.2d 161, 167 (Tex.Civ.App.–Beaumont 1938) (Combs, J., dissenting) (expressing concern that majority's holding would “give to many an unfounded and unjust claim, ‘a nuisance value’ which may encourage such claims being asserted merely in the hope of a settlement”), rev'd,135 Tex. 370, 143 S.W.2d 928 (Tex.Com.App.1940); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 548, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (characterizing suits brought to “realize upon their nuisance value” as suits “brought not to address real wrongs”); Owens Corning v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 257 F.3d 484, 495 n. 6 (6th Cir.2001) (explaining that suit's “nuisance value” is “based on the prospective litigation costs required to effect a dismissal of the action”); Travelers Ins. Co. v. Motorists Mut. Ins. Co., 178 N.E.2d 613, 619 (Ohio.Ct.App.1961) (“The fact that insurers agree to defend groundless claims, otherwise within the coverage of their policies, is a recognition that even groundless claims have a nuisance value subject to defense and settlement.”); Robert A. Sachs, Product Liability Reform and Seller Liability: A Proposal for Change, 55 Baylor L.Rev. 1031, 1040 n. 25 (2003) (noting that parties “pay ‘nuisance value’ to avoid continuing with the defense of a frivolous claim”); Geoffrey P. Miller, Payment of Expenses in Securities Class Actions: Ethical Dilemmas, Class Counsel, and Congressional Intent, 22 Rev. Litig. 557, 592 (2003) (characterizing strike suits and “nuisance value” suits as “litigation without substantial merit”); Cym H. Lowell & Jack P. Governale, U.S. Int'l Tax: Prac. & Proc. ¶ 6.02 (2012) (noting that, under 26 C.F.R § 601.106(f)(2), the IRS will not settle based on “nuisance value,” described as “any concession made solely to eliminate the inconvenience or cost of further negotiations or litigation and is unrelated to the merits of the issues”).
Reading Gonzalez's affidavit in the light most favorable to the Elizondos, and indulging every reasonable inference in their favor, it is Gonzalez's opinion that the Elizondos were paid as if their claims had no merit, when in fact they had substantial merit. If, in fact, the Elizondos' claims had substantial merit but were settled as if they had no merit, a reasonable jury could at least infer that the Elizondos sustained damages of some amount. Although Gonzalez's opinions could not establish any particular amount of damages, in my view they are sufficient to create a fact issue on the existence of damages.
V.
An Adequate Factual Basis
Gonzalez's opinions, however, are not enough. Absent an adequate factual basis, an expert's bare opinion that a claim had merit or that it was settled for nuisance value would be conclusory and, therefore, incapable of creating a fact issue to avoid summary judgment. Gonzalez cannot just expect us to “take his word” for it, see ante at 264; he must provide facts to support his opinions. See, e.g., Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex.2010) (“We have rejected expert opinions not grounded in a sound evidentiary basis: ‘[I]f no basis for the opinion is offered, or the basis offered provides no support, the opinion is merely a conclusory statement and cannot be considered probative evidence, regardless of whether there is no objection.’ ” (citation omitted)); see also Elizondo v. Krist, 338 S.W.3d 17, 25–28 (Tex.App.–Houston [14th Dist.] 2010) (Christopher, J., dissenting) (discussing Gonzalez affidavit). In my view, Gonzalez's affidavit recites numerous facts that, taken in the light most favorable to the Elizondos, constitute evidence that the Elizondos' claims had merit but were settled for nuisance value, as if they did not.
A. Facts supporting merit
Gonzalez provided an extensive recitation of facts supporting his conclusion that the Elizondos' claims had merit. First, he listed ten “criteria or factors” that BP “focused on” when determining the value of claims arising out of the 2005 explosion:
• proximity to ground zero of the explosion;
• when injury was reported to a supervisor;
• corroboration of proximity and reporting of injuries to supervisor or management;
• age of the victim;
• wage earning capacity and wage loss (present and future);
• injuries and biomechanics of injuries—e.g., nature, extent, and duration;
• medical treatment received and duration of (physical and mental/PTSD);
• surgical vs. nonsurgical intervention(s);
• single or married/residual consortium claims; and
• onsite vs. offsite claims.
He then listed the facts of the Elizondos' claims that were relevant to these factors:
• On the date of the explosion, Jose was working for a subcontractor at the BP facility. He was 37 years old.
• Jose was approximately 200 to 300 feet from the blowdown stack when the explosion occurred. The force of the explosion blew him a number of feet into a port-a-potty.
• Jose was near Mr. Eamello at the time of the blast.
• Jose sustained injuries to his neck and lower back and suffered such mental anguish and emotional distress that he was considered to have post-traumatic stress disorder.
• Jose was first treated for his neck and back injuries by Dr. Ron Kirkwood and Dr. English of Kirkwood Medical Associates, on March 26, 2005.
• Jose saw Dr. David Winberly at Fondren Orthopedic on April 1, 2005, for complaints of neck and lower back pain, and had a follow-up visit on June 7, 2005 for persistent neck and back pain.
• Jose received physical therapy at TIRR twelve times over the six-week period between April 7 and May 19, 2005.
• Jose was first treated for mental anguish or emotional distress by Dr. Susana Rosin on May 6, 2005. He attended additional therapy sessions on May 20, July 6, and August 3, 2005. His treatment lasted approximately three months.
• Jose is married to Guillermina Elizondo, and they had four children at the time of the explosion. They now have five children.
• Jose earned about $23 per hour at the time of the explosion, and worked about 50 to 60 hours each week.
• Jose missed work as a result of the explosion.
• Jose has not been physically or medically restricted from working, but he was injured in the explosion.
Based on these facts and the “criteria and protocol relied upon to establish general settlement values in the BP litigation,” Gonzalez opined that the Elizondo case “would have had a general value, by way of settlement or verdict, in the range of between Two Million ... and Three Million ... dollars,” and he later summarized his view by opining that the claims were worth “far in excess” of the $50,000 that BP paid. Whether the facts that Gonzalez recited were sufficient to support his $2–3 million valuation is doubtful (at best), but, in my view, they constitute some evidence that the Elizondos' claims had merit.
B. Facts supporting nuisance value
Next, Gonzalez recited facts to support his view that the claims were settled “basically for nuisance value,” as if they had no merit. First, he described in some detail what a “plaintiff's attorney using reasonable due diligence” would have done to establish the claims' merit. Specifically, a reasonably diligent attorney would have:
taken steps that included prosecuting the case to its fullest extent including investigation, prosecution and filing of a lawsuit ..., the taking of depositions or sworn statements of important witnesses, requesting or obtaining and reviewing liability documents, coordinating efforts to develop liability and damages in this matter, interviewing other potential fact witnesses that can determine the extent and location of the injuries sustained by their client, determining any and all responsible parties, determining all claims that their clients could respectfully (sic) have ..., and addressing and developing facts and issues relevant to establishing the egregious conduct of BP.
He then described specifically how the attorneys failed to do these things: they did not file a lawsuit; conduct any investigation into the liability and damages facts; send out any discovery requests; take any depositions; investigate and develop evidence of gross negligence; or investigate and determine how BP valued the explosion claims. Instead, Gonzalez asserted, the attorneys “perform[ed] no work other than to review a demand package prepared by a referring lawyer.”
These facts, if true, would certainly support the duty and breach elements of the Elizondos' malpractice claims. But in my view, they also support Gonzalez's opinion that the claims were settled for nuisance value, as if they had no merit. If, in fact, the attorney defendants did nothing to develop the claims and establish their merit, a reasonable jury could infer that the amount BP paid reflected the cost of defense and the claims' lack of merit, and that the amount was lower than BP would have paid for a meritorious claim. Again, although this cannot constitute evidence of any particular amount of damages, in my view it does constitute evidence of the existence of damages.
VI.
Distinguishing Burrow v. Arce
In rejecting Gonzalez's affidavit, the court of appeals relied heavily on our decision in Burrow v. Arce, 997 S.W.2d 229 (Tex.1999), as does this Court. In Burrow, the defendants' expert testified by affidavit that he had considered the relevant factors (including the underlying facts, the identity of the defendant, the elements of damages available, and the losses each plaintiff incurred) and concluded based on these factors that each plaintiff was “reasonably and fairly compensated.” Id. at 235. The Court held that this affidavit was conclusory because the expert “[did] not explain why the settlements were fair and reasonable.” Id. at 235–36. To do this, the Court explained, he “might have analyzed the Clients' injuries by type, or related settlement amounts to medical reports and expenses, or compared the settlements to those of similar claims, or provided other information showing a relationship between the plaintiffs' circumstances and the amounts received.” Id. at 236.
In the present case, the Court concludes that Gonzalez's affidavit is “similarly conclusory” because it “fails to offer specifics on why the value of the case was $2–3 million as opposed to the $50,000 received in settlement.” Ante at 265. But to avoid summary judgment, Gonzalez did not have to establish that the case was worth $2–3 million as opposed to $50,000; he only had to establish that the case was worth more than $50,000. By providing specifics on why $50,000 reflects the value of a case that had “basically” no merit, and specifics on why the Elizondos' case had merit, I would hold that he has done that.
Burrow is distinguishable from this case in all material aspects. In Burrow, the defendants sought and obtained a traditional summary judgment—they had the burden to prove the absence of damages as a matter of law. 997 S.W.2d at 234. Here, the Elizondos are defending against a no-evidence summary judgment—they need only raise a question of fact on the existence of damages. More importantly, the expert in Burrow provided no facts to support his opinion that the “fair and reasonable” amounts the plaintiffs received were equal to or greater than their true value. Here, by contrast, Gonzalez provided extensive facts to support his conclusion that the Elizondos' settlement was “basically for nuisance value,” meaning it did not reflect any merit at all. Because a reasonable 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 sufficient to defeat summary judgment, and that Burrow does not counsel otherwise.
VII.
Conclusion
In response to the attorney defendants' motions for summary judgment, the Elizondos' expert testified that, in his opinion, their claims had merit but were settled as if they had no merit, and he did so in an affidavit in which he identified numerous facts that support each of these two propositions. Because I would hold that the expert's affidavit constitutes competent evidence from which a reasonable jury could infer the existence of damages, I respectfully dissent.