Juarez v. Elizondo, 2007 WL 835427 (Tex. App.--San Antonio 2007).

What do you do when faced with an expert witness who has lots of opinions, but all are unsubstantiated? Appellants were faced with this dilemma in this case. The client hired the attorneys and their law firm to file a lawsuit arising from the death of Elijio Juarez, Jr. This lawsuit alleged that Juarez died as a result of brake failure on an oil tanker he was driving, which caused it to overturn. Because the employer was a workers compensation subscriber, only a claim for gross negligence could be brought against Mr. Juarez’s former employer. A claim was also asserted against an automotive shop that had inspected the truck before the accident; that claim settled before trial. A jury rejected the gross negligence claim and declined to award exemplary damages (which are permitted, even though workers compensation prevents recovery of actual damages). The client did not appeal but instead sued the lawyers, claiming legal malpractice.

The client sought to utilize Retired Justice J. Bonner Dorsey. It was Justice Dorsey’s opinion that the lawyers were negligent in failing to request a jury charge that conditionally submitted the actual damage question on a finding of liability for gross negligence or otherwise inquired about liability for gross negligence before the actual damage question. He also stated that the lawyers were negligent in failing to object to jury argument that compared gross negligence to murder and asserted that the client would only receive the actual damages awarded instead of exemplary damages. Justice Dorsey felt that the jury wanted to give the appellees everything they were entitled to, but that they were mislead by the jury argument.

The trial court granted summary judgment in favor of the lawyers, excluding Justice Dorsey’s expert opinion. The Court of Appeals affirmed.

With regard to the jury charge, Justice Dorsey said that no actual damages question should have submitted. However, when he was presented with authority stating that such a question was necessary, he changed his opinion. He then stated that the question order in the jury charge should have been reversed, so that the jury was not asked about damages until it stated whether there was gross negligence. However, Justice Dorsey also acknowledged that question order in a jury charge is within the court’s discretion and admitted that the charge was legally correct.

The Court of Appeals held that if no proper objection to a jury charge exists, then there can be no negligence for failing to object. In this case, an actual damages question needed to be submitted, and the submitted charge was consistent with the Texas Pattern Jury Charges. Accordingly, a reasonable attorney could have decided not to request any changes.

The court also held that an expert witness’s conclusory statements are insufficient to defeat a summary judgment motion. The court found that Justice Dorsey provided no legal support for his opinions and that the portions of his opinion were properly stricken.

Because we have concluded that Justice Dorsey failed to provide sufficient support for his opinions regarding the jury charge and those portions of his opinion were properly stricken, the remaining testimony does not constitute evidence that the appellees cause the appellants any damage by failing to object to the jury argument. Because the appellants presented no other expert to support their legal malpractice claim, the trial court properly granted the no evidence summary judgment as to this claim.

Accordingly, his remaining testimony did not constitute evidence of legal malpractice, the court found, and the summary judgment was justified.