Joseph Pressil v. Jason A. Gibson, Jason A. Gibson, P.C. D/B/A the Gibson Law Firm, Clifford D. Peel, II, and Andrew C. Smith's
2015 Tex. App. LEXIS 9567
| Tex. App. | 2015Background
- Plaintiff Joseph Pressil sued his former attorneys (the Gibson Parties) for legal malpractice, alleging they negligently handled his suit against a fertility clinic that used his sperm without his consent.
- In the underlying "Fertility Lawsuit" Pressil sought damages for mental anguish, loss of enjoyment, child support, cost of raising two healthy twins, lost earnings, and exemplary damages.
- The trial court dismissed the Fertility Lawsuit as a health-care-liability claim under Texas Civil Practice & Remedies Code chapter 74 because Pressil did not timely file an expert report; Pressil’s attorneys did not appeal that dismissal.
- Pressil then sued his attorneys for negligence, gross negligence, and breach of fiduciary duty; the Gibson Parties moved for summary judgment attacking causation (suit-within-a-suit) and availability of damages.
- The trial court granted summary judgment for the Gibson Parties on the ground that Texas law does not recognize the types of damages Pressil sought for the birth of healthy children and that the clinic owed no tort duty to Pressil; the court severed remaining claims and Pressil appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether summary judgment required expert proof from defendants on causation | Pressil: defendants needed expert evidence to negate causation | Gibson Parties: availability of damages is a question of law; no expert required | Held: No expert required because damages availability is pure law and inadmissible as expert opinion |
| Whether the clinic owed Pressil a legal duty | Pressil: the clinic owed duties in tort and alternative theories (conversion, fraud, IIED) were viable | Gibson Parties: even assuming duty, damages are unavailable so causation fails | Held: Court did not decide duty because damages issue dispositive; alternative torts also fail on damages as a matter of law |
| Whether Texas recognizes damages for costs/support and emotional harm from birth of healthy children (wrongful pregnancy/conception) | Pressil: such damages (support, child-rearing costs, emotional distress) are recoverable | Gibson Parties: Texas law bars recovery for child support/raising costs and limits recoverable damages | Held: Texas limits recovery in wrongful-pregnancy context to medical expenses from the failed procedure; Pressil’s sought damages are not recoverable |
| Whether, but for counsel’s alleged negligence, Pressil would have prevailed in the Fertility Lawsuit (suit-within-a-suit causation) | Pressil: competent counsel would have preserved/obtained recovery on underlying claims | Gibson Parties: underlying claims would have failed as a matter of law because damages are not available | Held: Causation fails—no recovery possible in the underlying suit even with competent counsel; summary judgment affirmed |
Key Cases Cited
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (standard of review for summary judgment)
- Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (summary judgment standard)
- Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009) (elements of legal malpractice)
- Flax v. McNew, 896 S.W.2d 839 (Tex. App.—Waco 1995) (discussing limited-damages rule in wrongful-pregnancy cases)
- Crawford v. Kirk, 929 S.W.2d 633 (Tex. App.—Texarkana 1996) (limiting recovery to medical expenses in wrongful-pregnancy context)
- Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975) (limits on recovery for mental anguish)
- Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617 (Tex. 1986) (nature of alleged injuries governs available remedies)