The Houston [1st] Court of Appeals has reversed a trial court order dismissing a lawsuit against two engineering firms retained by Union Pacific Railroad to assist in cleaning up creosote contamination emanating from UP’s Englewood Rail Yard in Harris County.
In Donald Bratton and Donald Mallard, Individually and as Representative of the Estate of Jervie Mallard, Sr. v. Pastor, Behling & Wheeler, L.L.C. and Environmental Resources Management Southwest, Inc. (No. 01-23-00015-CV; April 18, 2024), Plaintiffs, residents of Kashmere Gardens and the Fifth Ward, sued UP and two geological consulting firms for negligence, alleging that creosote and other toxins migrating from the nearby railyard contaminated their neighborhoods and caused physical injuries, such as cancer, and death from exposure to the chemicals. Specifically, Plaintiffs asserted that the two firms failed to properly test, remediate, and warn of the risks of creosote exposure and that delays and “half-measures” to remediate the site caused the continued spread of an underground plume of creosote sludge. The sludge contaminated groundwater, soil, and air in the neighborhoods. Plaintiffs filed a certificate of merit pursuant to § 150.002(a), CPRC, in support of their suit against the Defendant consulting firms. Defendants objected to the certificate of merit on the grounds that it was insufficient because the expert “made collective assertions of negligence by [Defendants], rather than separating the errors and omissions attributable” to each Defendant. They further attacked the reliability and credibility of the expert’s opinions. The trial court agreed and dismissed the case without prejudice. Plaintiffs filed an interlocutory appeal.
In an opinion by Justice Rivas-Molloy, the court of appeals reversed. Plaintiffs asserted that the trial court abused its discretion because the certificate of merit met the statutory requirements of § 150.002(a). In the alternative, Plaintiffs argued that their claims did not relate to professional engineering services and thus no certificate of merit was required and that Defendants waived their objection to the certificate of merit because they engaged in substantial litigation. Since the sufficiency of the certificate of merit disposed of the appeal, the court narrowed their analysis to that issue first.
The question came down to whether the certificate impermissibly constituted a “collective assertion of negligence” or sufficiently identified the specific negligent acts attributed to each defendant separately, as required by § 150.002(b) (Defendants did not challege the expert’s qualifications and background). Defendants argued that Plaintiffs’ expert merely lumped them together and attributed the same negligent acts to both, despite the fact that the two firms served as UP’s consultants at different times with somewhat different contractual duties. The court, however, found that the certificate adequately identified the negligent acts of each consultant with respect to Plaintiffs’ central allegation: that each defendant, at different times, failed to develop, maintain, and update a “reasonably reliable Conceptual Site Model (CSM) that captures the key hydro-geologic features of the site and the major routes of chemical exposure in the adjacent community.” The failure to produce a reliable CSM, in turn, rendered the remediation plan inadequate and ineffective to address the extent of contamination of the site. Defendants objected that Plaintiffs’ expert did not conduct an independent analysis of the site but instead relied on materials from the Harris County attorney and remediation reports the consultants filed with TCEQ. They argued further that this made the expert the Plaintiffs’ “agent” and not a third-party expert.”
The court rejected both the collective assertion and agency theories. First, the certificate of merit included attachments that detailed each of the Defendants’ filings with TCEQ that Plaintiffs allege erroneously characterized the subsurface. This level of specificity would allow the trial court to determine whether, in accordance with § 150.002, Plaintiffs claims against each defendant were frivolous or had merit. The court further pointed out that Defendants’ objections to the expert’s report likewise contained relevant details indicating that Defendants knew exactly what Plaintiffs alleged against them, thus undercutting their collection assertion argument. For this reason, it was not necessary for the certificate to state expressly that each defendant was involved “in all aspects of the work involved,” only that it provide a basis for the trial court to determine which negligent acts were ascribed to which defendant. As to the agency theory, the court cited authority to the effect that “third party” means just that: a party not involved in the litigation. Just because the expert reviewed Plaintiffs’ petition and the Harris County attorney’s letter didn’t make him Plaintiffs’ agent or disqualify him from stating a third-party opinion. Finally, the court ruled that Defendants’ objections to factual allegations in the certificate go to summary judgment, not the sufficiency of the certificate of merit.
This case is instructive for both plaintiffs and defendants because it helps delineate the boundary between a sufficient certificate and one that does not go far enough to separate and ascribe negligent acts on an individual defendant basis. It also points to the continuing development of jurisprudence around the satellite litigation that has grown up around Chapter 150 (as it has around Chapter 74 expert reports). It’s easy to see why the defendants in this case, which is a mass toxic tort with enormous potential liability attached to it, would want to fall on their sword over the sufficiency of the certificate. It’s also important to note that even a small claim that invokes Chapter 150 could put a small engineering or architecture firm out of business. That’s why cases testing the sufficiency of certificates (or expert reports, for that matter) are so critical and why we make the effort to report on them.
