Jоseph PRESSIL, Appellant v. Jason A. GIBSON, Jason A. Gibson, P.C. d/b/a The Gibson Law Firm, Clifford D. Peel, II, and Andrew C. Smith, Appellees
NO. 14-14-00731-CV
Court of Appeals of Texas, Houston (14th Dist.).
September 10, 2015
Rehearing En Banc Overruled November 10, 2015
484 S.W.3d 402
To ensure fair proceedings, courts should take these considerations into account in making reliability determinations, especially when the identification is based on voice alone, unaccompanied by visual or other forms of identification. Though the witness in today‘s case did not get a look at the speaker‘s entire face during the criminаl episode, the witness was able to recall and identify facial features. Diana‘s recognition of appellant‘s facial features, though not powerful visual-identification evidence, strengthens, to some degree, the identification.
The gaps in science and law, known and unknown, tell us that the Biggers test may be falling short as a measure of reliability for voice identification. Now is the time to consider what steps can be taken to improve reliability testing in voice-identification cases.
Even though the scientific literature calls into question the validity of the Biggers factors, this court is bound to consider them.16 Appellant did present limited testimony about a witness‘s inability to remember a voice over time. But, the record also reveals the witness had an opportunity to hear the speaker‘s voice during the criminal episode and was keenly focused on his voice; the witness provided a description of the Spanish dialect she detеcted in the speaker‘s voice; and she displayed unshakeable confidence in her identification. Under the precedent applying the Biggers test, these four factors support the trial court‘s admission of the identification evidence.17 So, the result the majority reaches applying the Biggers test is sustainable under current law as is the majority‘s conclusion that the trial court did not err in admitting the witness‘s voice identification into evidence, based on the evidence presented to the trial court. Fоr this reason, I respectfully concur in the judgment.
Richard A. Sheehy, George P. Pappas, Houston, TX, for appellee.
Panel consists of Justices Christopher, Brown, and Wise.
OPINION
Marc W. Brown, Justice
In this legal malpractice case, appellant Joseph Pressil sued appellees Jason A. Gibson, Clifford D. Peel, II, Andrew C. Smith, and Jason A. Gibson, P.C. d/b/a The Gibson Law Firm (collectively, the “Gibson Parties“) for negligence, gross negligence, and breach of fiduciary duty arising frоm the Gibson Parties’ representation of Pressil in a lawsuit. The trial court granted the Gibson Parties’ motion for summary judgment only as to Pressil‘s negligence claims and severed Pressil‘s remaining claims. Pressil challenges the trial court‘s granting of summary judgment in three issues: (1) whether the trial court erred in granting summary judgment when the Gibson Parties did not submit expert testimony; (2) whether the trial court erred in granting summary judgment on the ground that the defendant in the underlying lawsuit did not owe Pressil a legal duty; and (3) whether the trial cоurt erred in granting summary judgment on the ground that, even if Pressil had been represented by competent attorneys, Pressil‘s claims in the underlying lawsuit would have failed because Texas law does not recognize the particular damages sought by Pressil related to the birth of a healthy child. We affirm.
Factual and Procedural Background
The material facts are not in dispute. This case stems from a lawsuit filed by the Gibson Parties on behalf of Pressil against Advanced Fertility Center of Texas and Omni-Med Laboratories, L.L.C. (collectively, the “Clinic“). In 2006, Pressil and Anetria Burnette were involved in a sexual relationship. The couple used condoms for birth control. Pressil later learned that Burnette had surreptitiously collected samples of his sperm and taken them to the Clinic. Burnette apparently told the Clinic that she was Pressil‘s wife and that the couple needed help conceiving a child. The Clinic successfully inseminated Burnette, and Burnette eventually gave birth to healthy twin bоys. According to Pressil, other than the sexual intercourse, all of this occurred without his knowledge or consent.
Pressil hired the Gibson Parties and sued the Clinic for negligence, conversion, violations of the Texas Theft Liability Act,1 and conspiracy (hereinafter, the “Fertility Lawsuit“). Pressil sought damages for mental anguish, loss of opportunity, loss of enjoyment of life, child support, the cost of raising two children, lost earnings, and lost earning capacity. Pressil sought exemplary damages as well. The Clinic moved to dismiss the Fertility Lawsuit on the ground that Pressil‘s claims were health care liability claims under
After the Fertility Lawsuit was dismissed, Pressil sued the Gibson Parties for legal malpractice. The lеgal malpractice suit alleged claims for negligence, gross negligence, and breach of fiduciary duty. In his live petition, Pressil alleged the Gibson Parties committed negligence by: (1) failing to diligently represent Pressil; (2) failing to bring or preserve Pressil‘s claims, rights and/or defenses; (3) failing to protect Plaintiff‘s interests; (4) failing to comply with
The Gibson Parties moved for traditional summary judgment on the following grounds: (1) Pressil‘s claims in the Fertility Lawsuit were barred by limitations; (2) Pressil would not have been able to recover damages in the Fertility Lawsuit; (3) Pressil impermissibly fractured negligence claims into breach of fiduciary duty claims; (4) Pressil could not prove the proximate cause elemеnt of his breach of fiduciary duty claim; (5) Pressil‘s allegation that the Gibson Parties violated the Texas Disciplinary Rules of Professional Conduct was not a private cause of action; and (6) Pressil did not assert any basis for recovering exemplary damages.
The trial court denied the Gibson Parties’ first, third, fourth, fifth, and sixth grounds for summary judgment. The trial court explicitly granted the motion for summary judgment on two grounds. First, the trial court granted the motion as to the Gibson Parties’ third ground, stating in its order that Texas law does not recognize damages for the birth of healthy children. Second, the trial court granted the motion on the ground that the Clinic did not owe Pressil a duty in tort. Accordingly, the trial court concluded that even if the Gibson Parties had acted competently, Pressil would not have been successful in the Fertility Lawsuit. In effect, the trial court determined as a matter of law that Pressil had no viable claim against the Clinic, and as a result, Pressil could not prоve the causation element of his malpractice suit. After granting summary judgment on Pressil‘s negligence claims, the trial court severed Pressil‘s breach of fiduciary duty claim, rendering the summary judgment final for jurisdictional purposes. Pressil timely appealed.
In three issues, Pressil asserts that the trial court erred in granting summary judgment in favor of the Gibson Parties. Pressil first contends the trial court erred because the Gibson Parties did not present expert testimony in support of their motion for summary judgment. Next, Pressil contends the trial court erred in concluding as a matter of law that the Clinic did not owe him a duty in tort. Finally, Pressil contends the trial court erred in concluding that Texas does not recognize damages for the birth of healthy children.
We review a trial court‘s granting of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). To prevail on a traditional motion for summary judgment, the movant must show that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law.
Analysis
A legal malpractice action is based on negligence. Green v. McKay, 376 S.W.3d 891, 898 (Tex.App.-Dallas 2012, pet. denied). “To prevail on a legal malpractice claim, the plaintiff must prove the defendant owed the plaintiff a duty, the defendant breached that duty, the brеach proximately caused the plaintiff‘s injury, and the plaintiff suffered damages.” Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat‘l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex.2009). To establish proximate cause, a plaintiff must prove both foreseeability and cause in fact. Ambrosio v. Carter‘s Shooting Ctr., Inc., 20 S.W.3d 262, 265 (Tex.App.-Houston [14th Dist.] 2000, pet. denied). To establish cause in fact when the legal malpractice claim is based on the attorney‘s acts during prior litigation, “a plaintiff must prove that, but for the attorney‘s breach of duty, the plaintiff would have been successful in the prior сase.” Taylor v. Alonso, Cerson-sky & Garcia, P.C., 395 S.W.3d 178, 183 (Tex.App.-Houston [1st Dist.] 2012, no pet.). Courts often call this the “suit-within-a-suit” requirement. Kelley & Witherspoon, LLP v. Hooper, 401 S.W.3d 841, 847 (Tex.App.--Dallas 2013, no pet.).
The Gibson Parties attacked only the causation element of Pressil‘s legal malpractice suit in their motion for summary judgment. Pressil alleged in his legal malpractice petition that, but for the Gibson Parties’ negligence, he would have been successful on the medical negligence claim asserted in the Fertility Lawsuit. In their summary judgment motion, the Gibson Parties did not challenge the conduct alleged to be negligent or the damages
Turning to Pressil‘s third issue, to prevail on the underlying negligence claim, i.e., the suit within the suit, Pressil would have had to prove that he suffered damages as a result of the Clinic‘s breach of the standard of care. See Williams v. Briscoe, 137 S.W.3d 120, 125 (Tex.App.-Houston [1st Dist.] 2004, no pet.). Whether damages or particular remedies are available to a plaintiff is a question of law. Sеe Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex.1999). Accordingly, the issue here is strictly one of law: Did the trial court reach the proper legal conclusion regarding whether Pressil could have established the damages element of his claims in the Fertility Lawsuit? We conclude that it did.
Although the unique facts of the Fertility Lawsuit defy classification, the case seems to fall into the subgroup of medical malpractice claims described as wrongful pregnancy actions. In general, a wrongful pregnanсy action is simply a lawsuit brought by the parents of a healthy, but unexpected, unplanned, or unwanted child against a medical provider for negligence leading to conception or pregnancy. Flax v. McNew, 896 S.W.2d 839, 841 n. 3 (Tex.App.-Waco 1995, no writ). The claim usually arises after a negligently performed sterilization procedure. Id.; see, e.g., Hays v. Hall, 488 S.W.2d 412, 413 (Tex.1973) (vasectomy); Santos v. Holzman, No. 13-02-00662-CV, 2005 WL 167309, at *1 (Tex.App.-Corpus Christi Jan. 27, 2005, pet. denied) (mem.op.) (vasectomy); Crawford v. Kirk, 929 S.W.2d 633, 635 (Tex.App.-Texarkana 1996, writ denied) (tubal ligation); Garwood v. Locke, 552 S.W.2d 892, 893 (Tex.Civ.App.-San Antonio 1977, writ ref‘d n.r.e.) (tubal ligation). Such claims have also been predicated on the failure to properly diagnose a pregnancy or perform an abortion; negligence in the insertion or removal of an intrauterine birth-control device, or in dispensing contraception prescriptions; or the failure of a contraceptive pill or a condom. Michael A. Mogill, Misconceptions of the Law: Providing Full Recovery for the Birth of the Unplanned Child, 1996 Utah L.Rev. 827, 830 (1996).
In describing this lawsuit, we acknowledge that the First Court of Appeals has stated, “Texas does not recognize a cause of action for wrongful pregnancy.” Zapata v. Rosenfeld, 811 S.W.2d 182, 184 (Tex.App.-Houston [1st Dist.] 1991, writ denied). In our view, however, “wrongful pregnancy” generally is “merely a descriptive label for a form of [medical] malpractice,” and Texas has long allowed recovery for negligence by medical practitioners. Flax, 896 S.W.2d at 843; see also Mogill, supra, at 828 (“While an action for wrongful pregnancy cоnsists of the parents’ claim for damages due to the birth of a healthy, unplanned child because of another‘s fault, it is generally viewed as a traditional case of medical malpractice.“). Therefore, we agree that Texas does not recognize a unique cause of action called “wrongful pregnancy“; rather, Texas recognizes the medical malpractice claims many courts describe as “wrongful pregnancy” оr “wrongful conception” actions. See Flax, 896 S.W.2d at 841 n.3 (“wrongful
The key issue in this case is not how we should label the cause of action but rather what types of damages are available to a plaintiff who asserts such a claim. As an initial matter, in Texas, a plaintiff cannot recover damages related to the support and maintenance of a healthy child born as a result of the medical provider‘s nеgligence. Id. at 637; Flax, 896 S.W.2d at 841-42; Terrell v. Garcia, 496 S.W.2d 124, 128 (Tex.Civ.App.-San Antonio 1973, writ ref‘d n.r.e.), cert. denied, 415 U.S. 927 (1974). This is because the intangible benefits of parenthood far outweigh the monetary burdens involved. Hickman v. Myers, 632 S.W.2d 869, 870 (Tex.App.-Fort Worth 1982, writ ref‘d n.r.e.); Terrell, 496 S.W.2d at 128.
There is disagreement among Texas courts, however, as to what damages a plaintiff can recover. In Flax, the plaintiff sued her doctor for medical negligence resulting from a failed sterilization procedure. 896 S.W.2d at 840. The plaintiff alleged that during her pregnancy and after childbirth she suffered frоm swelling, nausea, fatigue, bladder-control problems, personality changes, scarring, physical impairment, physical and mental pain and suffering, and detrimental effects to her relationship with her husband. Id. at 841. The Flax court adopted a “limited-damages rule,” which would potentially allow the plaintiff to recover the following damages: (1) expenses for the failed procedure and any corrective procedures; (2) prenatal and postnatal expenses; (3) pain and suffering during pregnancy and delivery; (4) loss of consortium; (5) emotional distress; (6) lost wages; (7) pain and suffering associated with the corrective procedure; and (8) any permanent impairment suffered by the parents as a result of the pregnancy, the delivery, or the corrective procedure. Id. at 843, 845.
In Crawford, on the other hand, the Texarkana Court of Appeals further limited the plaintiff‘s recovery to the actual medical exрenses incurred as a result of the failed sterilization procedure. 929 S.W.2d at 637. In that case, a failed tubal ligation resulted in the birth of healthy twin girls. Id. at 635. The plaintiff-mother sued her doctor and sought damages for all medical expenses associated with the pregnancy, physical and mental pain and suffering, and the costs of raising the twins. Id. The court of appeals reviewed extant case law and rejected the Flax court‘s limited-damages rule. Id. at 637. Citing Jacobs v. Theimer, 519 S.W.2d 846, 849-50 (Tex.1975), the Crawford court reasoned that if the parents оf an impaired child could not recover mental anguish damages, then the parents of a healthy child could not recover mental anguish damages. 929 S.W.2d at 637. The Crawford court further reasoned that the San Antonio Court of Appeals’ holding in Garwood only approved recovery of the medical expenses in a suit brought by the
We agree with the Crawford court and reject Flax‘s expansion of the types of damagеs available in a so-called wrongful pregnancy action. We conclude that the measure of damages available to plaintiffs in wrongful pregnancy cases is limited to the medical expenses associated with the failed procedure that produced the healthy but unwanted child. See Crawford, 929 S.W.2d at 637.
None of the damages sought by Pressil in the Fertility Lawsuit is recoverable under Texas law. Pressil did not request damages for the medical expenses associated with any medical procedure. Nor could he have; no medical procedure was performed on him. Moreover, the medical procedure performed on Burnette was apparently a rousing success, resulting in the birth of healthy twin boys. The only damages Pressil sought in the Fertility Lawsuit were costs generally associated with the support and maintenance of children, such as mental anguish, loss of opportunity, loss of enjoyment оf life, child support, the cost of raising two children, lost earnings, and lost earning capacity. Under prevailing Texas law, none of these damages was recoverable. Therefore, the trial court properly granted the Gibson Parties’ motion for summary judgment on the ground that the claims in the Fertility Lawsuit would have failed as a matter of law because there were no damages even if Pressil had been represented by a reasonably competent lawyer. We overrule Pressil‘s third issue.3
Because the trial court properly concluded that Pressil‘s claims in the Fertility Lawsuit would have failed as a matter of law because of Texas law, we need not consider the bulk of Pressil‘s second issue—whether the trial court erred in concluding that the Clinic did not owe Pressil a legal duty. See
Accordingly, the trial court‘s granting of summary judgment on the damages ground also was proper with regard to these alternative theories. See Coterill-Jenkins v. Tex. Med. Ass‘n Health Care Liability Claim Trust, 383 S.W.3d 581, 592 (Tex.App.-Houston [14th Dist.] 2012, pet. denied) (summary judgment appropriate where ground asserted in motion conclusively negates common element or is broad enough to encompass additional claims). We overrule this subissue. We now consider Pressil‘s first issue.
In his first issue, Pressil contends that the trial court erred in granting summary judgment because the Gibson Parties did not present expert testimony on the issue of proximate cause. Expert testimony is required in legal malpractice cases when the causal link between the attorney‘s negligence and the client‘s harm is beyond the trier of fact‘s common understanding. See Cooper v. Harris, 329 S.W.3d 898, 901-02 (Tex.App.-Houston [14th Dist.] 2010, pet. denied). An expert cannot, however, testify on pure questions of law. Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 94 (Tex.App.-Houston [14th Dist.] 2004, no pet.). As previously stated, the availability of damages or remedies in a particular case is a question of law. See McKenzie, 997 S.W.2d at 280. Consequently, any expert testimony on whether Texas law would afford Pressil a remedy in the Fertility Lawsuit would have been inadmissible. See
Conclusion
The trial court properly granted summary judgment in favor of the Gibson Parties. Even if he had been represented by competent counsel, Pressil would not have been successful in the Fertility Lawsuit because the types of damages sought by Pressil in the Fertility Lawsuit are not available under Texas lаw. We need not consider Pressil‘s second issue concerning the Clinic‘s legal duty. Because the question of whether Pressil could recover damages in the Fertility Lawsuit was purely one of law, the Gibson Parties were not required to present an expert witness to establish their right to summary judgment. Accordingly, we affirm the trial court‘s judgment.
Jeffery J. SHELDON and Andras Konya, MD, PH.D., Appellants
v.
PINTO TECHNOLOGY VENTURES, L.P., Pinto TV Annex Fund, L.P., PTV Sciences II, L.P., Rivervest Venture Fund I, L.P., Rivervest Venture Fund II, L.P., Rivervest Venture II (Ohio), L.P., Bay City Capital Fund IV, L.P., Bay City Capital Fund IV Co-Invest-ment Fund, L.P., Chris Owens, Bill Burke, Reese Terry, and Craig Walk-er, Appellees
NO. 14-13-01066-CV
Court of Appeals of Texas, Houston (14th Dist.).
Opinions filed September 10, 2015
Rehearing En Banc Overruled November 19, 2015