Summary
In T & T Engineering Services, the plaintiff was injured while working on a drilling rig allegedly designed, fabricated, or manufactured by T&T Engineering and Basic Equipment.
Summary of this case from Bratton v. Pastor, Behling & Wheeler, LLCOpinion
01-21-00139-CV
08-23-2022
T & T ENGINEERING SERVICES, INC., Appellant v. JORDAN DANKS, Appellee
On Appeal from the 281st District Court Harris County, Texas Trial Court Case No. 2020-46799
Panel consists of Chief Justice Radack and Justices Countiss and Farris.
MEMORANDUM OPINION
APRIL L. FARRIS JUSTICE
After Jordan Danks was allegedly injured while working on the derrick board of a drilling rig, he sued T&T Engineering Services, Inc., for strict products liability and negligence. T&T Engineering moved to dismiss the claims against it, arguing that the certificate of merit filed by Danks did not comply with the statutory requirements. The trial court denied T&T Engineering's motion to dismiss.
On appeal, T&T Engineering argues that the trial court abused its discretion in denying the motion to dismiss. Specifically, it argues that Danks' certificate of merit was insufficient because (1) the affiant completing the certificate of merit did not practice in the same area of practice as T&T Engineering; (2) the affiant did not hold the same license as T&T Engineering; and (3) the certificate of merit did not identify the particular defendant at fault for Danks' injuries or the specific conduct by T&T Engineering that allegedly contributed to Danks' injuries. We affirm.
Background
On November 7, 2018, Jordan Danks was working as a derrickman on Patterson-UTI Drilling Company Rig 811, allegedly designed, fabricated, or manufactured by T&T Engineering and TEBJES, Inc. d/b/a Basic Equipment.Danks and his fellow crewmembers were "tripping pipe out of the hole," which involves standing on the derrick board of the rig and maneuvering drilling pipes to rest between storage "fingers" of the drill rack. Each pipe is large, nearly 90 feet in length and weighing approximately 1,500 pounds. During this operation, a section of pipe tipped over and crushed Danks' head against the guardrail of the rig. Danks survived, but he was seriously injured.
TEBJES, Inc. d/b/a Basic Equipment is not a party to this interlocutory appeal.
Danks filed suit against T&T Engineering and Basic Equipment and asserted claims for strict products liability and negligence. In asserting his strict products liability claim, Danks alleged that "[a]s designed, manufactured and sold," the rig was "defective and unreasonably dangerous." He also stated that this claim was "directed at the lack of protection for workers against being pinned" and the "failure to provide conspicuous and adequate warnings" of associated dangers.
With respect to his negligence claim, Danks alleged that both T&T Engineering and Basic Equipment were negligent "in the design, manufacture and sale" of the rig because they "failed to provide protection against an unreasonable and defective derrick board design or configuration in which the derrickman can be struck, caught between or pinched by the drilling pipe and parts of the derrick board structure." As examples of protection the defendants should have provided, Danks stated that they should have "follow[ed] design safety standards to identify, eliminate, guard against, warn, instruct or train on the risk of pinch-point or entrapment injury."
Contemporaneously with his original petition, Danks filed and served a certificate of merit completed by Edward R. Ziegler, a licensed professional engineer. Ziegler averred that he had experience working on drilling rig derrick boards; he has trained and supervised workers for the type of work Danks was performing; and he has "engineered, designed, fabricated, inspected, installed, assembled, and modified such structures and equipment including for a derrick board." He stated that his current work includes "the areas of oil and gas well drilling, and design, engineering, fabrication, and safety related to drilling and drilling rigs." Ziegler attached a copy of his resume to the certificate of merit.
Ziegler described the layout of the derrick board, the size of the pipes that Danks handled, and actions that a derrickman takes when "tripping" pipe. He averred that when a derrickman moves a pipe from the center of the rig to the derrick board "fingers" to store the pipe, the worker "must have room to be around and near the top of the pipe stand without being pinched or caught between or struck by the pipe in a manner that can injure the worker." The derrickman might be on any side of the pipe as he moves it, so "it is necessary to avoid a derrick board design or configuration where the derrickman can be struck or caught between or pinched by the pipe and against parts of the derrick board structure." Ziegler averred that the derrick board on this rig "was so configured that a derrickman could be struck, caught between, or pinched while performing his work," and the derrick board was therefore defectively engineered, designed, fabricated, and installed.
Ziegler stated, "Here it was feasible to engineer or remove the . . . hazard by creating space or distance in the work area on the derrick board." However, "Defendant(s) failed to follow and implement these engineering and design and fabrication and installation principles to make the work place safe or not defective."
T&T Engineering moved to dismiss Danks' claims against it on the basis that the certificate of merit did not comply with the requirements of Civil Practice and Remedies Code section 150.002. See Tex. Civ. Prac. & Rem. Code § 150.002. T&T Engineering first argued that Ziegler was not qualified to complete a certificate of merit for claims against it because Ziegler-a petroleum engineer-did not practice in the same area of practice as T&T Engineering-a firm practicing structural and mechanical engineering-and Ziegler did not hold the same professional license as T&T Engineering. T&T Engineering also argued that the certificate of merit did not specifically identify T&T Engineering or its conduct allegedly at fault. T&T Engineering argued that the certificate of merit did not establish a factual basis for each claim asserted against it. Instead, it was "conclusory in its allegations all the while failing to identify which actions were committed by which defendant."
After a hearing, the trial court denied T&T Engineering's motion to dismiss. This interlocutory appeal followed. See id. § 150.002(f) ("An order granting or denying a motion for dismissal is immediately appealable as an interlocutory order.").
Sufficiency of Certificate of Merit
In its first and second issues, T&T Engineering argues that the trial court erred by denying its motion to dismiss because the certificate of merit filed by Danks does not meet the statutory requirements. Specifically, in its first issue T&T Engineering challenges the certificate of merit on the grounds that Ziegler does not currently practice in the same area of practice as T&T Engineering and that Ziegler does not hold the same license or registration as T&T Engineering. In its second issue, T&T Engineering argues that the certificate of merit is insufficient because it failed to identify the particular defendant at fault or the specific conduct by T&T Engineering that contributed to Danks' injuries.
A. Standard of Review and Governing Law
Civil Practice and Remedies Code section 150.002(a) requires a claimant in any action for damages arising out of the provision of professional services by a licensed or registered engineer to file a certificate of merit with the complaint. See Tex. Civ. Prac. & Rem. Code § 152.002(a); LaLonde v. Gosnell, 593 S.W.3d 212, 220 (Tex. 2019) (stating that statute gives licensed engineers right to "a professional certification that any complaint about their services has merit before any litigation may be undertaken at all"). The certificate of merit must be an affidavit by a third-party licensed professional engineer who (1) is competent to testify, (2) holds the same professional license or registration as the defendant, (3) practices in the area of practice of the defendant, and (4) offers testimony based on the person's knowledge, skill, experience, education, training, and practice. Tex. Civ. Prac. & Rem. Code § 150.002(a).
From the time Chapter 150.002 was enacted in 2003 until 2009, the statute required the third-party expert completing the certificate of merit to be "practicing in the same area of practice as the defendant." See Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 20.01, 2003 Tex. Gen. Laws 847, 896-97 (current version at Tex. Civ. Prac. & Rem. Code § 150.002(a)(3)). In 2009, the Texas Legislature amended section 150.002(a)(3) to provide that the certificate of merit must be completed by a third-party who is "knowledgeable in the area of practice of the defendant" and offers testimony based on the person's knowledge, skill, experience, education, training, and practice. See Act of May 29, 2009, 81st Leg., R.S., ch. 789, § 2, 2009 Tex. Gen. Laws 1991, 1992 (amended 2019). This Court recognized that the 2009 amendment lowered the claimant's burden in establishing the expert's qualifications. See Gaertner v. Langhoff, 509 S.W.3d 392, 397-98 (Tex. App.- Houston [1st Dist.] 2014, no pet.). In 2019, however, the Texas Legislature amended section 150.002(a)(3) once again, this time providing that the certificate of merit must be completed by a third-party who "practices in the area of practice of the defendant" and offers testimony based on the person's knowledge, skill, experience, education, training, and practice. See Act of May 23, 2019, 86th Leg., R.S., ch. 661, § 2, 2019 Tex. Gen. Laws 1917, 1917-18. This is the current version of the statute and the one that is applicable in this case.
The third-party licensed engineer completing the certificate of merit shall be licensed or registered in Texas and shall be "actively engaged" in the practice of engineering. Id. § 150.002(b); Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 890 (Tex. 2017). The statute does not require that the expert's qualifications appear in the affidavit itself, as long as this information appears in the record. Melden & Hunt, 520 S.W.3d at 891-92.
The certificate of merit
shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the
professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim.Tex. Civ. Prac. & Rem. Code § 150.002(b). The expert is not required to address the elements of the plaintiff's asserted theories or causes of action. Melden & Hunt, 520 S.W.3d at 896; CBM Eng'rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339, 346 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) (stating that plaintiff is not required to marshal his evidence at certificate-of-merit stage of litigation). Instead, the plaintiff must "get an affidavit from a third-party expert attesting to the defendant's professional errors or omissions and their factual basis." Melden & Hunt, 520 S.W.3d at 896. The trial court must then determine whether the certificate of merit sufficiently demonstrates that the plaintiff's complaint is not frivolous. Id.; CBM Eng'rs, 403 S.W.3d at 346 (stating that function of certificate of merit "is to provide a basis for the trial court to determine merely that the plaintiff's claims are not frivolous" and thus plaintiff may "proceed in the ordinary course to the next stages of litigation").
The claimant's failure to file a certificate of merit in accordance with section 150.002 "shall result in dismissal of the complaint against the defendant." Tex. Civ. Prac. & Rem. Code § 150.002(e). "Absent a properly filed certificate of merit, professionals have the right to avoid litigation entirely." LaLonde, 593 S.W.3d at 220; Melden & Hunt, 520 S.W.3d at 889.
Typically, we review a trial court's ruling denying a motion to dismiss for failure to file a certificate of merit for an abuse of discretion. Kayne Anderson Capital Advisors, L.P. v. Hill & Frank, Inc., 570 S.W.3d 884, 885 (Tex. App.- Houston [1st Dist.] 2018, no pet.). We view the certificate of merit in the light most favorable to the trial court's ruling. Natex Corp. v. Paris Indep. Sch. Dist., 326 S.W.3d 728, 737 (Tex. App.-Texarkana 2010, pet. dism'd w.o.j.). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to guiding rules or principles. CBM Eng'rs, 403 S.W.3d at 342. A trial court does not abuse its discretion simply because the appellate court would decide a discretionary matter differently in a similar circumstance. Gessner Eng'g, LLC v. St. Paraskevi Greek Orthodox Monastery, Inc., 507 S.W.3d 865, 867 (Tex. App.-Houston [1st Dist.] 2016, pet. denied). An abuse of discretion does not occur if some evidence of substantive and probative character supports the trial court's decision. Id.
To the extent the resolution of the appeal turns on questions of statutory interpretation, we review such questions de novo. Kayne Anderson Capital Advisors, 570 S.W.3d at 885. "Under this circumstance, we first determine the statute's proper construction under a de novo standard, then determine if the trial court abused its discretion in applying the statute." Hardy v. Matter, 350 S.W.3d 329, 331 (Tex. App.-San Antonio 2011, pet. dism'd). When construing statutes, our primary purpose is to give effect to the legislature's intent by relying on the plain meaning of the text adopted by the legislature, "unless a different meaning is supplied by statutory definition or is apparent from the context, or the plain meaning leads to absurd results." Gessner Eng'g, 507 S.W.3d at 868 (quoting Couchman v. Cardona, 471 S.W.3d 20, 23-24 (Tex. App.-Houston [1st Dist.] 2015, no pet.)). We read statutes contextually to give effect to every word, clause, and sentence because we presume that the Legislature used every word or phrase with a meaning and purpose. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018).
B. Analysis
1. Whether Ziegler "practices in the area of practice" of T&T Engineering
Section 150.002(a) requires the certificate of merit to be completed by a third-party licensed professional engineer who "practices in the area of practice of the defendant" and offers testimony based on the person's knowledge, skill, experience, education, training, and practice. Tex. Civ. Prac. & Rem. Code § 150.002(a)(3). T&T Engineering argues that Ziegler does not practice in the same area that it does because Ziegler practices in petroleum engineering, while T&T Engineering practices in structural and mechanical engineering. T&T Engineering points to the entry for Ziegler in the Professional Engineer Roster maintained by the Texas Board of Professional Engineers & Land Surveyors ("the Board"), which identifies his branch of engineering as petroleum engineering. See 22 Tex. Admin. Code § 133.97(i) (Tex. Bd. of Prof'l Eng'rs & Land Surveyors, Issuance of License) (providing that board records shall indicate branch of engineering that license holder considers to be primary area of competency). It argues that "'practice' cannot be interpreted to mean the entire engineering profession."
The Texas Supreme Court has not spoken on the meaning of this exact statutory phrase. However, it has construed an earlier version of the statute, which required the expert to be "knowledgeable in the area of practice of the defendant." See Levinson Alcoser Assocs., L.P. v. El Pistolón II, Ltd., 513 S.W.3d 487, 494 (Tex. 2017). The court concluded that the statute's requirement that the expert be "knowledgeable" in the defendant's area of practice was "not synonymous with the expert's licensure or active engagement in the practice; it requires some additional explication or evidence reflecting the expert's familiarity or experience with the practice area at issue in the litigation." Id. In that particular case, nothing existed in the certificate of merit or the appellate record from which the court could draw an inference that the expert "possessed knowledge of the defendants' area of practice beyond the generalized knowledge associated with holding the same license." Id. As a result, the expert had not demonstrated that he was qualified to render a certificate of merit in that case. Id.
Recently, the Corpus Christi-Edinburg Court of Appeals considered Levinson Alcoser when construing the current version of the statute, which is also at issue in this case. See Certain Underwriters at Lloyd's of London v. Mayse & Assocs., Inc., 635 S.W.3d 276, 289 (Tex. App.-Corpus Christi-Edinburg 2021, pet. denied). The court stated that, under Levinson Alcoser, the court did not interpret the phrase "area of practice" to mean the defendant's "general area of practice." Rather, the court construed the phrase as "the practice area at issue in the litigation." Id. The court noted that other courts, including this Court, have reviewed the plaintiff's petition and other documents in the record-such as contractual obligations, procurement documents, deposition testimony, and affidavits-to ascertain the practice area at issue in the litigation. Id.; see, e.g., Jacobs Field Servs. N. Am., Inc. v. Willeford, No. 01-17-00551-CV, 2018 WL 3029060, at *8-9 (Tex. App.-Houston [1st Dist.] June 19, 2018, no pet.) (mem. op.) (considering, in determining area of practice of defendant, allegations in petition, contractual scope of work, and affidavit testimony from individual with knowledge of why defendant had been hired).
Here, Danks alleged that T&T Engineering "engaged in the business of designing, manufacturing, assembling, testing, inspecting, distributing, marketing, advertising, and selling oil field products." Specifically, T&T Engineering allegedly "designed, fabricated, and/or manufactured" the rig on which Danks was injured. Danks asserted a strict products liability cause of action, alleging that "[a]s designed, manufactured and sold," the rig was defective and unreasonably dangerous. Danks also alleged that T&T Engineering was negligent in the design, manufacture, and sale of the rig because it "failed to provide protection against an unreasonable and defective derrick board design or configuration in which the derrickman can be struck, caught between or pinched by the drilling pipe and parts of the derrick board structure." T&T Engineering allegedly "failed to identify, eliminate, guard against, warn, instruct or train on the risk of pinch-point or entrapment injury."
In his certificate of merit, completed in July 2020, Ziegler averred that he is a licensed professional engineer and is actively engaged in the practice of engineering. He averred:
2.9 I have worked with and on drilling rig derrick boards (performing the rig crew derrickman function; as Mr. Danks was performing here), have trained, hired, and supervised workers for such work, and have engineered, designed, fabricated, inspected, installed, assembled, and modified such structures and equipment including for a derrick board.
2.10 I have worked as a consultant or designated expert witness on a number of cases involving (including the engineering and design and fabrication and installation of) derrick boards; and for the type of injury mechanism here ("struck by", "caught between", or a "pinch point").
2.11 The experience described above includes that with my historic employers, for consulting clients and projects, in litigation consulting, with my own engineering and welding and fabrication business, and with and for my several other businesses over the years-with current work in year 2020 including the areas of oil and gas well drilling, and design, engineering, fabrication, and safety related to drilling and drilling rigs.
2.12 I currently own and operate an oil and gas drilling rig in Texas, and have designed, fabricated, assembled, and owned others in the past during my work experience.(Emphasis added). Ziegler also attached a copy of his resume to the certificate of merit. His resume reflected that he has a bachelor's degree in petroleum and natural gas engineering. It also reflected that he has been engaged in "petroleum and safety consulting" from 1981 to the "present," and he described this work as "[o]ilfield, construction, pipelines, and safety management. Safety audits, OSHA, operations, engineering, safety programs, design, regulations, industry standards and practice, ergonomics/human factors/process safety."
Although Ziegler did not state, in either the certificate of merit or his resume, that he practices in the areas of structural or mechanical engineering, which are undisputedly the areas in which T&T Engineering practices, he did state that his current work includes "oil and gas well drilling" and "design, engineering, fabrication, and safety related to drilling and drilling rigs." In its post-hearing briefing, T&T Engineering provided to the trial court screenshots from its archived website describing some of the services that it offers. These services included "conceptual rig design" and "custom product design, from concepts through fabrication" for onshore and offshore drilling operations.
The fact that the Board's Professional Engineers Roster lists Ziegler's "branch" of engineering as petroleum, and not as structural or mechanical, is not dispositive of the question whether he practices in the area of practice of T&T Engineering. As Danks points out, the Board's rules provide that the license issued by the Board "is as a professional engineer, regardless of branch designations or specialty practices." See 22 Tex. Admin. Code § 133.97(h). "Practice is restricted only by the license holder's professional judgment and applicable board rules regarding professional practice and ethics." Id. Board records "shall indicate" the branch of engineering that the license holder considers to be their "primary area of competency," but nothing in the Board's rules provides that the license holder is restricted to that designation if, in his professional judgment, he is competent in other areas of engineering. Id. § 133.97(i).
Ziegler's certificate of merit states that his current work includes "oil and gas well drilling," along with "design, engineering, fabrication, and safety related to drilling and drilling rigs." T&T Engineering's area of practice undisputedly includes designing drilling rigs. Viewing this record in the light most favorable to the trial court's ruling, we conclude that the record includes some evidence that Ziegler practices in the area of practice of T&T Engineering. See Tex. Civ. Prac. & Rem. Code § 150.002(a)(3); Certain Underwriters at Lloyd's of London, 635 S.W.3d at 290-91 (disagreeing with engineering firm defendant that certificate of merit did not comply with statutory requirements on basis that affiant was not actively practicing structural engineering when certificate of merit "on its face" said otherwise); Natex Corp., 326 S.W.3d at 737 (considering certificate of merit "in the light most favorable to the court's ruling" when determining whether affiant practiced in same area of practice as defendant). We hold that the trial court did not abuse its discretion when it impliedly ruled that Ziegler practices in the area of practice of T&T Engineering.
2. Whether Ziegler "holds the same professional license or registration" as T&T Engineering
T&T Engineering next argues that the trial court erred in denying its motion to dismiss because Ziegler, a petroleum engineer, does not "hold the same professional license" as T&T Engineering, which is involved in structural and mechanical engineering. See Tex. Civ. Prac. & Rem. Code § 150.002(a)(2). We find this argument unavailing.
Section 150.002(a)(2) requires the person completing the certificate of merit to "hold the same professional license or registration as the defendant." Id. If a person meets the qualifications to obtain a license from the Board of Professional Engineers and Land Surveyors, the Board "shall issue a license authorizing the practice of engineering" to the applicant. Tex. Occ. Code § 1001.308(a); see id. § 1001.003(c) (defining "practice of engineering"). The license shall show the full name of the license holder, have a serial number, and be signed by the presiding officer and secretary of the Board. Id. § 1001.308(b). The license "is evidence that the person named on the license is entitled to all rights and privileges of an engineer." Id. § 1001.308(c). Rules promulgated by the Board state that "[a] license issued by the board is as a professional engineer, regardless of branch designations or specialty practices." 22 Tex. Admin. Code § 133.97(h). "Practice is restricted only by the license holder's professional judgment and applicable board rules regarding professional practice and ethics." Id.
In Certain Underwriters at Lloyd's of London, the Board's website listed the defendant engineering firm's branch designation as structural engineering, while the website listed the branch designation for the third-party completing the certificate of merit as civil engineering. See 635 S.W.3d at 293. The Corpus Christi-Edinburg Court of Appeals pointed out that although different specialties of engineering exist, the Texas Occupations Code does not state that the issuance of an engineering license "is for a particular specialty." See id. at 294. Instead, "all engineers, regardless of specialty, practice under the same license." Id. The court therefore declined to find the certificate of merit insufficient on the basis that the third-party expert did not hold the "same professional license" as the defendant. Id.
Here, it is undisputed that the Board has licensed both Ziegler and T&T Engineering as professional engineers. This is the only engineering license that the Board issues. See 22 Tex. Admin. Code §§ 133.11, 133.97(h). Although the Board recognizes different branches of engineering and provides a mechanism for licensees to have their area of primary competency listed in the Board's records, the Board does not issue different licenses depending upon the person's designated branch. See id. §§ 133.13, 133.97(h). Thus, Ziegler, as a petroleum engineer, and T&T Engineering, as a structural and mechanical engineering firm, do not hold different professional licenses. See Certain Underwriters at Lloyd's of London, 635 S.W.3d at 294. We therefore conclude that Ziegler's certificate of merit complies with section 150.002(a)(2), and the trial court did not err by denying the motion to dismiss on this basis.
We overrule T&T Engineering's first issue.
3. Whether the certificate of merit identifies the particular defendant at fault and the specific conduct of T&T Engineering
In its second issue, T&T Engineering argues that the certificate of merit is defective in two additional respects: (1) it does not identify the specific conduct by T&T Engineering that constitutes an error or omission in the design of the derrick board, and (2) it does not identify whether T&T Engineering or its co-defendant, Basic Equipment, is at fault.
Section 150.002(b) provides:
The affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim.Tex. Civ. Prac. & Rem. Code § 150.002(b). The certificate of merit does not have to address every element of the plaintiff's claims, and the plaintiff is not required to marshal his evidence at this stage. Melden & Hunt, 520 S.W.3d at 896; CBM Eng'rs, 403 S.W.3d at 346. The expert completing the certificate of merit must "attest[] to the defendant's professional errors or omissions and their factual basis." Melden & Hunt, 520 S.W.3d at 896. The trial court must then determine whether the certificate of merit sufficiently demonstrates that the plaintiff's complaint is not frivolous. Id.; CBM Eng'rs, 403 S.W.3d at 346.
Our sister courts of appeals have held that section 150.002(b) "does not allow for collective assertions of negligence" in the certificate of merit. Robert Navarro & Assocs. Eng'g, Inc. v. Flowers Baking Co. of El Paso, LLC, 389 S.W.3d 475, 482 (Tex. App.-El Paso 2012, no pet.); see Macina, Bose, Copeland & Assocs. v. Yanez, No. 05-17-00180-CV, 2017 WL 4837691, at *7-8 (Tex. App.-Dallas Oct. 26, 2017, pet. dism'd) (mem. op.) (concluding that claims against group of defendants should have been dismissed because certificate of merit "did not distinguish between the acts, omissions, and errors of each defendant but collectively assigned the negligence and errors to both of them").
Instead of collective assertions of negligence, the plaintiff must file a certificate of merit that specifically addresses "the conduct of the professional who provided the service at issue," and the certificate must "identify each defendant and that defendant's specific conduct." Fluor Enters., Inc. v. Maricelli, No. 09-19-00121-CV, 2020 WL 2070257, at *5 (Tex. App.-Beaumont Apr. 30, 2020, pet. denied) (mem. op.); DHM Design v. Morzak, No. 05-15-00103-CV, 2015 WL 3823942, at *3 (Tex. App.-Dallas June 19, 2015, pet. denied) (mem. op.) ("The plain language of the statute requires the certificate to speak specifically to the conduct of the professional who provided the service at issue in the theory of recovery. . . . The certificate must identify the particular defendant and that defendant's specific conduct."); see also Robert Navarro & Assocs. Eng'g, 389 S.W.3d at 482 (agreeing with defendant engineers that "[i]t cannot be presumed that anytime two defendants are accused of similar conduct that valid claims exist against both of them-if such claims indeed exist, the expert must actually say so"). In a case involving multiple defendants, the court must be able to "determine which acts or omissions should be ascribed to which company," or the certificate of merit should opine that "both companies were involved in all aspects of the work." Macina, Bose, Copeland & Assocs., 2017 WL 4837691, at *6; see also Res. Planning Assocs., LLC v. Sea Scout Base Galveston & Point Glass, LLC, No. 01-19-00965-CV, 2021 WL 1375797, at *16-17 (Tex. App.-Houston [1st Dist.] Apr. 13, 2021, pet. denied) (mem. op.) (distinguishing Macina on basis that expert averred that both defendants "were involved in all aspects of the work and in the errors and omissions [the expert] outlined").
Here, Danks asserted identical claims of strict products liability and negligence against T&T Engineering and Basic Equipment. In his certificate of merit, Ziegler stated that "[t]he entities subject of this [certificate] are T&T Engineering Services, Inc. ('T&T') and TEBJES, Inc. d/b/a Basic Equipment ('Basic')." After describing the layout of a derrick board and the responsibilities of a derrickman, Ziegler then described potential hazards with respect to derrick board designs and stated it was "necessary to avoid a derrick board design or configuration where the derrickman can be struck or caught between or pinched by the pipe and against parts of the derrick board structure." He opined that the derrick board on the rig that Danks was working on "was so configured that a derrickman could be struck, caught between, or pinched while performing his work" and that "[t]hese hazards created a defective and defectively engineered, designed, fabricated, and installed derrick board."
Ziegler further averred as follows:
Section 4 - Basis for Safe and Proper Design
4.1. Engineers and designers must follow safety standards in their work.
4.2. Controlling exposure to hazards is the fundamental method to make the work place safe and to protect workers. NIOSH [National Institute for Occupational Safety and Health] calls this system the Hierarchy of Controls, and also sets forth this as part of the principle of Prevention Through Design.
4.3. A similar presentation of the principle is called the Safety Hierarchy or Design Precedence.
4.4. These design principles state: (a) hazards must be identified; (b) hazards must be eliminated or removed from the system where feasible; (c) if the hazard cannot be removed it must be guarded against; and (d) if guarding is not feasible then warnings, instruction, or training must be in place.
4.5. Here it was feasible to engineer or remove the struck by, caught between, or pinch point hazard by creating space or distance in the work area on the derrick board.
4.6. Engineers and similar professionals must reasonably follow the Hierarchy of Controls or Safety Hierarchy.
4.7. Here Defendant(s) failed to follow and implement these engineering and design and fabrication and installation principles to make the work place safe or not defective.
Section 5 - Summary and Conclusions
5.1. Defendant(s) failed in engineering and other aspects of the Work.
5.2. Defendant(s) failed to follow the Hierarchy of Controls or the Safety Hierarchy.
5.3. Based on information reviewed to date, the identified engineering failures, errors, and omissions of Defendant(s) are set forth in this [certificate of merit].
5.4. As to the degree of errors, omissions, and failures of Defendant(s), there was an extreme degree of risk to persons working on the subject derrick board.
5.5. The subject engineering and design was negligent in various degrees and/or created defects.
Although there are multiple defendants in this case, the certificate of merit did not specifically state the alleged negligence of T&T Engineering as opposed to that of Basic Equipment. It also did not expressly state that both T&T Engineering and Basic Equipment were involved in all aspects of the work performed. Instead, the certificate of merit grouped both defendants together and attributed the alleged failures in the design and installation of the derrick board to both defendants without stating which defendant was responsible for which acts or omissions, or if they were both responsible for all acts and omissions. There was, therefore, no way for the trial court to determine, based on the face of the certificate of merit, "which acts or omissions should be ascribed to which company." See Macina, Bose, Copeland & Assocs., 2017 WL 4837691 at *6.
In its appellate brief, T&T Engineering stated that the certificate of merit "groups T&T and [Basic Equipment] together, alleging that each defendant was identically negligent and equally involved in all aspects of the work." T&T Engineering stated its assertion in another way in its motion to dismiss, arguing that Ziegler "made no distinction in the work performed by the two defendants" and did not "state that both companies were involved in all aspects of the design, manufacture, and sale of the derrick board."
In this case, the parties filed additional briefing with additional evidence after the trial court held a hearing on T&T Engineering's motion to dismiss. In its post-hearing brief, T&T Engineering stated that its specific area of practice was "the design of drilling rigs." T&T Engineering attached an unsworn declaration of employee Adrian Marroquin and several screenshots from T&T Engineering's archived website. Marroquin declared that he was a "production manager" for T&T Engineering for fourteen years, and during this time "part of [his] job duties involved the fabrication of the Maverick 750K drilling rig, part of which is at issue in this lawsuit." T&T Engineering described one of the attached screenshots as "T&T's publicly-available archived website Maverick 750 K page showing that it designed the rig at issue in this suit." T&T Engineering also acknowledged that its engineer of record, Keith Orgeron, designed the derrick board at issue, and it attached the schematics for the derrick board. The schematics were signed by Orgeron and stated, "T&T Engineering Services, Inc."
T&T Engineering attached a screenshot of a page for the "Maverick 550 K Fast Moving Rig," but the sidebar on the website reflected that T&T Engineering also designed a "Drilling Structure" called a "750K Maverick."
T&T Engineering also stated in its appellate brief that Orgeron "designed the derrick boards here."
T&T Engineering therefore unequivocally acknowledged in the record before the trial court that it designed the drilling rig and the derrick board at issue in this case. The certificate of merit stated that, when maneuvering a drilling pipe into the storage "fingers" on the derrick board, a derrickman "might be on any side of the pipe to reasonably perform his work," and this must be planned for in designing the derrick board. Ziegler averred that "it is necessary to avoid a derrick board design or configuration where the derrickman can be struck or caught between or pinched by the pipe and against parts of the derrick board structure." The derrick board should "have sufficient space to avoid" pinching hazards.
It is not clear if the trial court can look beyond the four corners of the certificate of merit to determine if the requirements of section 150.002(b) are met. The Texas Supreme Court has held that the certificate of merit itself does not need to contain statements concerning the third-party expert's qualifications for rendering a certificate of merit as long as the qualifications are apparent from somewhere else in the record. See Melden & Hunt, Inc. v. E. Rio Hondo Water Supply Corp., 520 S.W.3d 887, 891-92 (Tex. 2017). However, that case concerned the expert's qualifications under section 150.002(a) and not the substance of the certificate of merit under section 150.002(b). Section 152.002(b) provides that "[t]he affidavit shall set forth specifically for each theory of recovery for which damages are sought, the negligence, if any, or other action, error, or omission of the licensed or registered professional in providing the professional service, including any error or omission in providing advice, judgment, opinion, or a similar professional skill claimed to exist and the factual basis for each such claim." Tex. Civ. Prac. & Rem. Code § 150.002(b).
Ziegler opined that the derrick board on this rig "was so configured that a derrickman could be struck, caught between, or pinched while performing his work." "[I]t was feasible to engineer or remove the struck by, caught between, or pinch point hazard by creating space or distance in the work area on the derrick board." However, the "defendants" did not follow this design principle, and they "failed to follow the Hierarchy of Controls or the Safety Hierarchy," which requires removing hazards where feasible, guarding against hazards that cannot be removed, or warning, instructing, or training about hazards that cannot be guarded against. These failures constituted "an extreme degree of risk to persons working on the subject derrick board" and made the work place defective. Ziegler based his opinions on his experience working on and designing drilling rigs and derrick boards, his familiarity "with the subject drilling rig design and derrick board system," and his review of "a rig-series data plate and photographs of similar rigs in the rig-series."
The certificate of merit therefore identified the alleged negligence "or other action, error, or omission" of the licensed engineer "in providing the professional service." See Tex. civ. Prac. & Rem. Code § 150.002(b). Specifically, Ziegler averred that the design of the derrick board should have incorporated "space or distance in the work area on the derrick board" to remove the "struck by, caught between, or pinch point hazard." If that was not feasible, the hazard should have been guarded against or warning, instructions, or training should have been provided. The defendants did not do this. Ziegler therefore identified an alleged flaw in the design of the drilling rig. T&T Engineering did not dispute that it designed the drilling rig at issue. Indeed, it presented affirmative evidence to the trial court that it designed the rig and the derrick board.
T&T Engineering also faults Ziegler's certificate of merit for failing to provide details concerning "industry standards on spacing or spacing on similar rigs," failing to discuss "the specific spacing on the derrick board here or how much more spacing should have been included in the initial design," and for failing to discuss "what Ziegler would consider to be proper spacing." However, section 150.002(b) "does not require the certificate of merit to contain that level of detail." CBM Eng'rs, 403 S.W.3d at 346; Couchman, 471 S.W.3d at 26. Instead, Chapter 150 "requires only that a similarly licensed professional . . . provide a sworn written statement certifying that the defendant's professional actions or omissions were negligent or otherwise erroneous and the factual basis for such claims." See Melden & Hunt, 520 S.W.3d at 897.
Additionally, to the extent T&T Engineering argues that Ziegler's affidavit does not meet the requirements of section 150.002(b) because it contains conclusory statements, several of our sister courts have held that no authority provides that a certificate of merit is insufficient if it contains conclusory or inadmissible statements. See, e.g., H.W. Lochner, Inc. v. Rainbo Club, Inc., No. 12-17-00253-CV, 2018 WL 2112238, at *7 (Tex. App.-Tyler May 8, 2018, no pet.) (mem. op.); Charles Durivage, P.E. v. La Alhambra Condo. Ass'n, No. 13-11-00324-CV, 2011 WL 6747384, at *2 (Tex. App.-Corpus Christi-Edinburg Dec. 21, 2011, pet. dism'd) (mem. op.); Benchmark Eng'g Corp. v. Sam Houston Race Park, 316 S.W.3d 41, 47 (Tex. App.-Houston [14th Dist.] 2010, pet. granted, judgm't vacated w.r.m.).
Ziegler's certificate of merit identifies the alleged error and states the factual basis for his conclusions. This certificate provides a basis for the trial court to conclude that Danks' claims are not frivolous, and he therefore may "proceed in the ordinary course to the next stages of litigation." See CBM Eng'rs, 403 S.W.3d at 346. T&T Engineering is not "foreclosed" from "later challenging the sufficiency of the plaintiff's evidence or the admissibility of an expert's opinion, such as by filing a motion to exclude expert testimony or a motion for summary judgment." See id. We conclude that the trial court did not abuse its discretion in determining that Ziegler's certificate of merit met the requirements of Civil Practice and Remedies Code section 150.002(b). See Tex. Civ. Prac. & Rem. Code § 150.002(b); Couchman, 471 S.W.3d at 27.
We overrule T&T Engineering's second issue.
Conclusion
We affirm the order of the trial court.