Filing a certificate of merit (“COM”) can quickly become a sticky situation for any plaintiff pursuing a claim against a design professional. Plaintiffs who comply with the COM requirements can still have their claims dismissed for various reasons. This post focuses on the necessary qualifications of the expert hired to issue a COM. Must a plaintiff hire a licensed architect to issue a COM for a claim asserted against an architect? But what if the architect’s decisions that lead to the litigation were decisions not typically made by an architect? Would it not make more sense to have a design professional who has experience making those types of decisions opine on the merits of the claim?
The short answer: the COM statute’s plain language requires that the design professional authoring the certificate have the same expertise as the defendant professional. Tex. Civ. Prac. & Rem. Code § 150.002(a)(2). In Gignac & Associates, LLP v. Hernandez, the plaintiff sued Gignac, the architectural design firm, for the negligent and grossly negligent design of a roundabout intersection that lead to two pedestrian injuries. 13-17-00336-CV, 2018 WL 898144, at *1 (Tex. App.—Corpus Christi Feb. 15, 2018, no pet. h.). The petition contained a COM authored by an engineer specializing in traffic engineering. Id. According to the Texas Civil Practice and Remedies Code, Section 150.002(a), “[t]he sworn certificate or affidavit must come from a third-party professional who: holds the same professional license or registration as the defendant.” The Gignac court held that the COM statutory language is clear and unambiguous. Id. at *3. Therefore, because the expert held a different license than that of the defendant, the plaintiff had not complied with Section 150.002(a)(2) even though the traffic engineer was arguably more qualified to render a COM in the case.
Now consider this: the plaintiff’s expert who rendered the COM has the same professional license as the defendant. The plaintiff is in the clear, right? Not necessarily. Merely having the same credentials no longer solidifies that the expert is qualified to render a COM in your case. The Texas Supreme Court recently held that “the [COM] statute’s knowledge requirement . . . requires some additional explication or evidence reflecting the expert’s familiarity or experience with the practice area at issue in the litigation.” Levinson Alcoser Associates, L.P. v. El Pistolon II, Ltd., 513 S.W.3d 487, 494 (Tex. 2017), reh’g denied (Apr. 21, 2017). In other words, it is no longer satisfactory for the COM expert to merely have the same licensure or active engagement in the practice; the expert must demonstrate some knowledge with the practice area at issue in the case. To what extent the expert must demonstrate knowledge on the issues in the litigation is left open by the Levinson Court, seemingly leaving discretion with the trial judge to make such determination.
Emily Pendleton is an associate in the litigation practice group of Porter Hedges. Her practice focuses on all types of business, commercial and construction litigation. To read Emily’s full bio, click here.