Donald Bratton v. Pastor, Behling & Wheeler, L.L.C., and Environmental Resources Managment Southwest, Inc.

Opinion issued April 18, 2024

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-23-00015-CV

———————————

DONALD BRATTON AND DONALD MALLARD, INDIVIDUALLY AND

AS REPRESENTATIVE OF THE ESTATE OF JERVIE MALLARD, SR.,

Appellants

V.

PASTOR, BEHLING & WHEELER, L.L.C. AND ENVIRONMENTAL

RESOURCES MANAGEMENT SOUTHWEST, INC., Appellees

On Appeal from the 270th District Court

Harris County, Texas

Trial Court Case No. 2021-30439

MEMORANDUM OPINION ON REHEARING

Appellee Environmental Resources Management Southwest, Inc. moved for

rehearing and en banc consideration of our December 12, 2023 opinion and

judgment. We deny the motion for rehearing, withdraw our opinion and judgment

of December 12, 2023, and issue this opinion and judgment in their stead. Our

disposition remains the same.

We dismiss Environmental Resources Management Southwest, Inc.’s motion

for en banc reconsideration of our prior opinion as moot.1 Appellees Pastor, Behling

& Wheeler, LLC and Environmental Resources Management Southwest, Inc.

provided environmental engineering and geoscience services to Union Pacific

Railroad Company2 in connection with the identification and remediation of creosote

and related contamination on Union Pacific’s property. Appellants Donald Bratton

and Donald Mallard, individually and as representative of the Estate of Jervie

Mallard, Sr., sued Appellees and Union Pacific for negligence claiming creosote and

other toxic chemicals on Union Pacific’s property contaminated Appellants’

neighborhoods. Appellees moved to dismiss Appellants’ claims against them

claiming Appellants failed to file a proper certificate of merit, as required by Section

150.002(a) of the Texas Civil Practice and Remedies Code. The trial court granted

1

Because we are issuing a new opinion, the motion for en banc reconsideration is

moot. In re Wagner, 560 S.W.3d 309, 312 (Tex. App.—Houston [1st Dist.] 2018,

orig. proceeding) (“Because we issue a new opinion in connection with the denial

of rehearing, the motion for en banc reconsideration is rendered moot.”); see also

Poland v. Ott, 278 S.W.3d 39, 41 (Tex. App.—Houston [1st Dist.] 2008, pet.

denied) (stating motion for en banc reconsideration rendered moot by withdrawal

and reissuance of opinion and judgment); Brookshire Bros., Inc. v. Smith, 176

S.W.3d 30, 41 n.4 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (noting that

motion for en banc reconsideration rendered moot when motion for rehearing

granted and new opinion and judgment issue).

2

Union Pacific Railroad Company is not a party to this appeal.

2

Appellees’ motions and dismissed Appellants’ claims against them without

prejudice.

Appellants filed the present interlocutory appeal challenging the trial court’s

order.3 They raise three issues on appeal. In their first issue, Appellants argue the

trial court abused its discretion in dismissing their claims because their claims

against Appellees do not relate to professional engineering services and thus, they

were not required to file a certificate of merit under Section 150.002(a). In their

second and third issues, Appellants argue that even if they were required to file a

certificate of merit, the trial court abused its discretion in dismissing their claims

because (1) Appellees engaged in substantial litigation thus waiving their right to

object to the certificate of merit, and (2) the certificate of merit satisfied the statutory

requirements of Section 150.002(a).

Because we conclude the certificate of merit met the requirements of Section

150.002(a), we hold the trial court abused its discretion in dismissing Appellants’

claims. We reverse the trial court’s orders granting Appellees’ motions to dismiss

and dismissing Appellants’ claims, and we remand this case to the trial court for

further proceedings.

3

See TEX. CIV. PRAC. & REM. CODE § 150.002(f) (“An order granting or denying a

motion for dismissal is immediately appealable as an interlocutory order.”).

3

Background

On May 21, 2021, Appellants Donald Bratton and Donald Mallard,

individually and as representative of the Estate of Jervie Mallard, Sr., sued Union

Pacific and Appellees Pastor, Behling & Wheeler, LLC (“PBW”) and Environmental

Resources Management Southwest, Inc. (“ERM”) for negligence. Appellants

alleged that each defendant was liable vicariously for the negligence of its employees

under the doctrine of respondeat superior. Appellants, who are current and former

residents of Kashmere Gardens and the Fifth Ward, alleged that their residential

neighborhoods had been contaminated with creosote and other toxic chemicals

emanating from Union Pacific’s Englewood Rail Yard. Appellants alleged they

suffered physical injuries, including cancer and death, because of “the exposure to

creosote and toxic chemicals used, stored, managed, and improperly dumped” at the

rail yard.

Among other things, Appellants alleged “Union Pacific and its consulting

geologists, ERM and PBW, failed to properly test, remediate, and/or warn of the real

risks of creosote exposure to the residents of Kashmere Gardens and Fifth Ward.”

According to Appellants, ERM’s and PBW’s “delays and half measures to remediate

this problem directly caused the continued spread of an underground plume of

creosote sludge known as a dense non-aqueous phase liquid (“DNAPL”). The heavy

nature of DNAPL causes it to sink into the ground and spread outward to the

4

surrounding groundwater, soil, and air far beyond the property line of the Rail Yard.

This process is ongoing and continuous.”

Appellants further alleged that Union Pacific, ERM, and PBW breached their

duties to them in a number of ways, including by failing to (1) “take reasonable steps

to prevent and/or mitigate air, soil, and water contamination caused by creosote and

toxic chemicals known to be hazardous to human health,” (2) “properly monitor and

test for air, soil, and water contamination caused by creosote and toxic chemicals

known to be hazardous to human health,” (3) “protect [Appellants] from the harmful

effects of exposure to creosote and toxic chemicals,” (4) “prevent creosote and toxic

chemicals from permeating ground water and creating a creosote DNAPL beneath

residential properties,” and (5) “take timely and reasonable steps to contain the

creosote DNAPL and mitigate the risks to human health posed by the creosote

DNAPL.”

Pursuant to Section 150.002(a) of the Texas Civil Practice and Remedies

Code, Appellants filed a certificate of merit prepared by their expert Dr. Philip

Bedient together with the filing of their original petition. In the certificate of merit,

Dr. Bedient states that ERM and PBW were hired by Union Pacific “to provide

engineering services in connection with the identification and remediation of

creosote contamination” at a rail yard near Kashmere Gardens in east Harris County

5

that contains a creosote wood treatment plant operated by Union Pacific and its

predecessors (the “Facility”). Dr. Bedient states:

This site was a creosote wood treatment plant operated by Union Pacific

from at least 1950 to 1985 and located in the Rail Yard. For decades,

millions of gallons of creosote were heated in open air vats and ditches

and dumped at the Rail Yard, which directly caused the contamination

of Kashmere Gardens, including the Plaintiffs’ properties (see Figure

1). For years Union Pacific and its consultants ERM and PBW failed to

address, remediate, and/or warn of the real risks of creosote exposure.

Soil samples and monitoring wells in the Rail Yard, Kashmere Gardens,

and the Fifth Ward continue to test positive for unsafe levels of creosote

and toxic chemicals. UPRR, under the guidance of ERM and PBW, has

applied for permits through the Texas Commission on Environmental

Quality (“TCEQ”) to “clean up” portions of the creosote and toxic

chemicals. However, Defendants’ delays and half measures to

remediate this problem directly caused the continued spread of an

underground plume of creosote sludge known as a dense non-aqueous

phase liquid (“DNAPL”). The heavy nature of the DNAPL causes it to

sink into the ground and spread outward to the surrounding

groundwater, soil, and air far beyond the property line of the Rail Yard.

This process is ongoing and continuous.

Dr. Bedient provides specific examples of ERM’s and PBW’s “delays and half

measures to remediate this problem,” which Dr. Bedient asserts “directly caused the

continued spread” of DNAPL.

According to Dr. Bedient, engineers from ERM and PBW “failed to develop

a reasonably reliable Conceptual Site Model (CSM) that captures the key

hydrogeologic features of the site and the major routes of chemical exposure to the

adjacent community” of Kashmere Gardens. Dr. Bedient opines that a CSM that

“reasonably represent[s] the key hydrogeologic features of the site” is necessary “in

6

order to develop an appropriate remediation plan” for the Facility and the

“development and refinement of a reasonably reliable CSM is a key step in the

regulatory process.” Dr. Bedient further contends that the CSM should

“evolve as data [is] collected overtime” and the “CSM should also serve as a

platform for systematically identifying and closing data gaps and moving the

remediation processes forward.” But, according to Dr. Bedient,

In the work of ERM and PBW, their CSM is static and does not appear

to have changed to any degree since the mid-1990’s, even though

additional data was collected showing their CSM was not accurately

representing the key hydrogeologic features of the site and exposure

routes to the surrounding areas.

Dr. Bedient states:

As an example, the engineers’ CSM was developed, and has been

maintained, as a grossly oversimplified and incorrect representation of

the site hydrogeology. In reports submitted to the Texas Council of

Environmental Quality (TCEQ), ERM and PBW have characterized the

subsurface at the site and adjacent areas as a “layered cake” with three

distinct transmissive zones (termed A-TZ, B-TZ, and C-TZ) separated

by distinct layers of clays and silty clays that are significantly less

permeable (see Figure 2 showing the engineers’ CSM and its distinct

layers).

Figure 2, attached to and referenced in Dr. Bedient’s certificate of merit, is a CSM

prepared by PBW.4 Dr. Bedient also states:

This gross misrepresentation in their CSM remained, even after regular

data collection of groundwater flow direction, potentiometric

4

Dr. Bedient identifies Figure 2 as a “CSM showing ‘Layered Cake’ Hydrogeology

Under Site.”

7

elevations and cone penetrometer testing (CPT) data showed at a

minimum that the A-TZ and B-TZ zones are clearly connected by

having the same potentiometric surface (see Figure 3 showing the same

potentiometric elevations in zones A-TZ and B-TZ).

Figure 3, also attached to and referenced in Dr. Bedient’s certificate of merit, is a

document created by ERM, which according to Dr. Bedient, demonstrates that the

subsurface at the Facility and adjacent areas was not separated by layers, as ERM

and PBW asserted in their reports submitted to TCEQ.

Dr. Bedient explains:

In the absence of a reliable CSM of the subsurface, the key steps needed

to understand how to close the site are severely hampered. These

include the effectiveness of remedial decisions for site closure and

assessing routes of exposure to the adjacent community. These tools

and models are not new and represent the standard of care for sites with

contaminated groundwater. The absence of a reasonably accurate and

refined CSM supported by quantitative data from the beginning is a

clear failure by these firms, which has continued for decades after this

process began.

Dr. Bedient asserts that ERM and PBW failed to (1) “fully identify additional areas

of potential contamination, such as the Englewood Intermodal Yard, in order to

develop an appropriate remediation plan,” (2) “characterize, assess and develop a

plan to mitigate dense non-aqueous phase liquids (DNAPL) at the site as required

by [Texas Risk Reduction Program],” and (3) “establish the full extent of community

impacts or develop actions to completely stop those releases.”

ERM and PBW objected to Dr. Bedient’s certificate of merit and moved to

dismiss Appellants’ claims against them under Section 150.002(e) of the Texas Civil

8

Practice and Remedies Code based on Appellants’ alleged failure to file a proper

certificate of merit. See TEX. CIV. PRAC. & REM. CODE § 150.002(e) (“A claimant’s

failure to file the affidavit in accordance with this section shall result in dismissal of

the complaint against the defendant. This dismissal may be with prejudice.”).5 ERM

and PBW argued that Dr. Bedient’s certificate of merit was insufficient under

Section 150.002(a) because in it, Dr. Bedient made collective assertions of

negligence by ERM and PBW, rather than separating the errors and omissions

attributable to ERM from those attributable to PBW. ERM and PBW also criticized

the sources on which Dr. Bedient based his opinions, questioning the credibility and

reliability of his opinions. ERM and PBW also argued that Dr. Bedient could not

provide a factual basis for his allegations against them because he had not reviewed

ERM’s and PBW’s contracts with Union Pacific and thus did not know the scope of

their work for Union Pacific.

PBW argued Dr. Bedient had not conducted an independent investigation of

the relevant facts as evidenced by the fact his certificate of merit was not supported

by the materials on which Dr. Bedient relied and the numerous factual errors

contained in his certificate. According to PBW, Dr. Bedient’s failure to conduct an

independent investigation indicated he was acting more as Appellants’ agent for

5

The affidavits required by Section 150.002 are also referred to as certificates of

merit. See TEX. CIV. PRAC. & REM. CODE § 150.002 (“Certificate of Merit”).

9

purposes of the certificate of merit rather than a “third-party . . . licensed professional

engineer,” as required by Section 150.002(a).

After conducting a hearing on Appellees’ motions to dismiss, the trial court

granted their motions and dismissed Appellants’ claims, without prejudice.

This interlocutory appeal followed.

Certificate of Merit

In their first issue, Appellants argue the trial court abused its discretion in

granting PBW’s and ERM’s motions to dismiss because their claims against

Appellees do not relate to professional engineering services and thus they were not

required to file a certificate of merit under Section 150.002(a). In their second and

third issues, Appellants argue the trial court abused its discretion in dismissing their

claims because even if they were required to file a certificate of merit (1) PBW and

ERM engaged in substantial litigation thus waiving their rights to object to the

certificate of merit, and (2) Dr. Bedient’s timely filed certificate of merit satisfied

the requirements of Section 150.002(a).

Because it is dispositive, we address Appellants’ third issue first.

A. Applicable Law

When a plaintiff sues for damages arising out of the provision of professional

services by a licensed or registered professional, Section 150.002(a) of the Texas

Civil Practice and Remedies Code requires the plaintiff to file a certificate of merit

10

with the petition. TEX. CIV. PRAC. & REM. CODE § 150.002(a). The certificate of

merit must be an affidavit from a third-party licensed architect, licensed professional

engineer, registered landscape architect, or registered professional land surveyor

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. Id.

The certificate of merit need not address the elements of the plaintiff’s various

theories or causes of action. Melden & Hunt, Inc. v. E. Rio Hondo Water Supply

Corp., 520 S.W.3d 887, 894 (Tex. 2017). “The statute instead obligates the plaintiff

to get an affidavit from a third-party expert attesting to the defendant’s professional

errors or omissions and their factual basis.” Id. The trial court then determines

whether the certificate sufficiently demonstrates that the plaintiff’s petition is not

frivolous. Id.

The purpose of Section 150.002 is to deter plaintiffs from filing frivolous

claims by identifying and disposing of such claims at the outset of litigation. See

LaLonde v. Gosnell, 593 S.W.3d 212, 216 (Tex. 2019) (“The certificate-of-merit

requirement is a substantive hurdle that helps ensure frivolous claims are

expeditiously discharged.”). The function of a certificate of merit “is to provide a

basis for the trial court to determine merely that the plaintiff's claims are not

11

frivolous” and thus the plaintiff may “proceed in the ordinary course to the next

stages of litigation.” CBM Eng’rs, Inc. v. Tellepsen Builders, L.P., 403 S.W.3d 339,

346 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

Section 150.002(b) states that a 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). But at this preliminary stage, a plaintiff

is not required to marshal its evidence or provide the full range of information a

defendant is entitled to obtain through formal discovery. See Melden & Hunt, Inc.,

520 S.W.3d at 896–97; Dunham Eng’g, Inc. v. Sherwin-Williams Co., 404 S.W.3d

785, 795 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (stating “at the certificate-

of-merit stage, before discovery and before other dispositive motions are available,

the plaintiff is not required to fully ‘marshal his evidence’”); CBM Eng’rs, 403

S.W.3d at 346 (“The statute does not require a plaintiff to marshal his evidence or

provide the full range of information that the defendant is entitled to obtain through

formal discovery.”). Rather, Section 150.002 “reflects a legislative goal of requiring

merely that plaintiffs make a threshold showing that their claims have merit.” M–E

Eng’rs, Inc. v. City of Temple, 365 S.W.3d 497, 504 (Tex. App.—Austin 2012, pet.

denied).

12

A claimant’s failure to file a certificate of merit in accordance with Section

150.002(a) “shall result in dismissal of the complaint against the defendant.” TEX.

CIV. PRAC. & REM. CODE § 150.002(e). “This dismissal may be with prejudice.” Id.

“Absent a properly filed certificate of merit, professionals have the right to avoid

litigation entirely.” LaLonde, 593 S.W.3d at 220; see also CTL/Thompson Tex., LLC

v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 301 (Tex. 2013) (noting that

statute provides for dismissal as sanction “to deter meritless claims and bring them

quickly to an end”).

B. Standard of Review

We review a trial court’s order on a motion to dismiss under Section 150.002

for abuse of discretion. TRW Eng’rs, Inc. v. Hussion St. Bldgs., LLC, 608 S.W.3d

317, 319 (Tex. App.—Houston [1st Dist.] 2020, no pet.); see Pedernal Energy, LLC

v. Bruington Eng’g, Ltd., 536 S.W.3d 487, 493–95 (Tex. 2017) (discussing trial

court’s discretion to grant dismissal with or without prejudice). “A court abuses its

discretion if it fails to analyze or apply the law correctly,” and when it makes

decisions in an arbitrary or unreasonable manner, without reference to guiding rules

or principles. TRW Eng’rs, 608 S.W.3d at 319; see Pedernal Energy, 536 S.W.3d

at 492.

13

C. Sufficiency of Dr. Bedient’s Certificate of Merit

Appellees do not dispute that Dr. Bedient (1) is competent to testify, (2) holds

the same professional license or registration as the Appellees, (3) practices in the

same area of practice as the Appellees, and (4) offers testimony based on his

knowledge, skill, experience, education, training, and practice. See TEX. CIV. PRAC.

& REM. CODE § 150.002(a). Rather, ERM and PBW argue Dr. Bedient’s certificate

of merit does not comply with Section 150.002(a) because Dr. Bedient makes

collective assertions of negligence by ERM and PBW. Appellants argue Section

150.002(b) requires Dr. Bedient to distinguish the errors and omissions attributable

to ERM from those attributable to PBW. PBW also argues that the certificate of

merit is insufficient because Dr. Bedient failed to conduct an independent

investigation of the relevant facts. He was thus acting more as Appellants’ agent,

and not a “third-party . . . licensed professional engineer” as required by Section

150.002(a).

Appellants respond that Dr. Bedient’s certificate of merit is sufficient because

ERM and PBW both failed to correct the errors and omissions Dr. Bedient raised in

his certificate of merit, and both ERM and PBW are “guilty of these errors and

omissions.”

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1. Collective Assertions of Negligence

Section 150.002(b) requires a certificate of merit to “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).

“[S]ection 150.002(b) ‘does not allow for collective assertions of negligence’

in the certificate of merit.” T & T Eng’g Servs., Inc. v. Danks, No. 01-21-00139-

CV, 2022 WL 3588718, at *7 (Tex. App.—Houston [1st Dist.] Aug. 23, 2022, pet.

denied) (mem. op.) (quoting 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.)); 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.)

(holding trial court abused its discretion by not dismissing claims against two

defendants 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, the certificate of merit should specifically address

“the conduct of the professional who provided the service at issue,” and “identify

each defendant and that defendant’s specific conduct.” T & T Eng’g Servs., 2022

15

WL 3588718, at *7 (quoting 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.)). “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.’”

T & T Eng’g Servs., 2022 WL 3588718, at *7 (quoting Macina, 2017 WL 4837691,

at *6). Thus, a certificate of merit may make collective assertions of negligence

where it is alleged the defendants were involved in all aspects of the work at issue.

See 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.) (holding certificate of merit sufficient

when certificate contained “numerous alleged acts and omissions with respect to the

design drawings, and [expert] specified in his affidavit that both RPA and Shipley

sealed the documents”) (emphasis in original).”).

ERM and PBW argue Dr. Bedient did not assert in his certificate that ERM

and PBW were involved in all aspects of the work, and he could not do so credibly

because ERM and PBW provided engineering services to Union Pacific at different

16

times, for different phases of the remediation project, and submitted separate reports

to the regulatory agencies.6

In his certificate of merit, Dr. Bedient states that Union Pacific hired ERM

and PBW as consultants to “provide engineering services in connection with the

identification and remediation of creosote contamination” at the Facility, a process

which began in the mid-1990s. Dr. Bedient states that ERM and PBW were

negligent with respect to their obligations to prepare an accurate CSM for the Facility

because, among other things, ERM and PBW “failed to develop a reasonably reliable

[CSM] that captures the key hydrogeologic features of the site and the major routes

of chemical exposure to the adjacent community” of Kashmere Gardens and “these

engineers also failed to update and refine their CSM as more data was collected that

showed the need for such refinement.” Although Dr. Bedient refers to ERM and

PBW collectively when addressing the acts and omissions of negligence with respect

to the CSM, Dr. Bedient states in his certificate of merit that PBW and ERM were

both responsible for the preparation and maintenance of an accurate CSM for the

Facility and that each failed in several respects in preparing an adequate CSM. Dr.

Bedient specifically stated that “[t]he absence of a more realistic CSM has been the

6

During the hearing on Appellees’ motions to dismiss, PBW’s counsel stated:

ERM was there from ‘97 to 2005 or ‘6. [PBW was] there from 2006 to the

current day. We did not work together. There is no way that we could both

have been involved in all aspects of the project.

17

responsibility of these 2 engineering firms for decades.” See Levinson Alcoser

Assocs., L.P. v. El Pistolon II, Ltd., 513 S.W.3d 487, 494 (Tex. 2017) (stating courts

may draw inferences from record and affidavit when assessing sufficiency of

certificate of merit).

Even if those statements were insufficient under Section 150.002, Dr.

Bedient’s certificate of merit also identifies a specific act or omission attributable to

PBW and a specific act or omission attributable to ERM. According to Dr. Bedient’s

certificate of merit, PBW and ERM were both responsible for preparing a “realistic”

and “reasonably accurate” CSM for the Facility, and each failed in that respect. He

explains that “[t]he absence of a reasonably accurate and refined CSM supported by

quantitative data from the beginning is a clear failure by these firms, which has

continued for decades after this process began.” “In the work of ERM and PBW,

their CSM is static and does not appear to have changed to any degree since the mid-

1990’s, even though additional data was collected showing their CSM was not

accurately representing the key hydrogeologic features of the site and exposure

routes to the surrounding areas.” Citing to a CSM prepared by PBW,7 Dr. Bedient

states the CSM erroneously characterizes the subsurface of the Facility and adjacent

areas as “a ‘layered cake’ with three distinct transmissive zones . . . separated by

7

The CSM, which Dr. Bedient identifies as Figure 2, is attached to his certificate of

merit.

18

distinct layers of clays and silty clays that are significantly less permeable.”

According to Dr. Bedient, this is a “gross misrepresentation” of the subsurface

because “data showed at a minimum that [two of the transmissive] zones are clearly

connected by having the same potentiometric surface.” The data allegedly showing

the interconnectedness of the two transmissive zones was prepared by ERM. Stated

otherwise, PBW erroneously characterized the subsurface at the site and adjacent

areas as having distinct and separate layers, as set forth in the CSM prepared by

PBW, and PBW continued to mischaracterize the subsurface despite knowing that

at least some of the layers were connected.

Dr. Bedient’s certificate of merit identifies a similar act or omission

attributable to ERM. According to Dr. Bedient, ERM, which was also responsible

for preparing a “realistic” and “reasonably accurate” CSM for the Facility, failed to

update the CSM after learning the characterization of the subsurface as having

distinct, separate layers was inaccurate. Dr. Bedient explains that a document

prepared by ERM, attached to his certificate of merit,8 demonstrates that two of the

transmissive zones were in fact connected. Dr. Bedient also identifies the factual

basis supporting his allegations against ERM and PBW, identifying specifically the

reports ERM and PBW submitted to TCEQ and the documents PBW and ERM each

8

The ERM document, which Dr. Bedient identifies as Figure 3, is attached to his

certificate of merit.

19

prepared, Figures 2 and 3, respectively. See T & T Eng’g Servs., 2022 WL 3588718,

at *7 (stating certificate of merit should identify professional errors or omissions and

factual basis for each defendant or state all defendants were involved in every aspect

of work).

PBW argues that Dr. Bedient’s assertions of collective negligence prevents it

from knowing what specific errors, actions, or omissions Dr. Bedient attributes to

PBW, as opposed to ERM. But PBW’s motion to dismiss and its appellate briefing

suggest otherwise. In its motion to dismiss and appellate brief, PBW states that

although “[Dr. Bedient] criticizes PBW for not having employed ‘visualization and

mapping using common tools such as ‘EarthVision™ and Rockware™,’” this

statement is “demonstrably incorrect” because PBW conducted a visualization and

mapping study at the Facility using a tool similar to EarthVision™ and Rockware™,

and it provided the results of the study to TCEQ in August 2020. PBW also argues:

In Paragraph 6, [Dr. Bedient] states that the CSM developed for the

Facility is “static and does not appear to have changed to any degree

since the mid-1990’s.” But several reports in TCEQ’s records reflect

PBW frequently updated the elements of the CSM as additional

hydrogeologic data became available.

In its motion to dismiss, PBW also provided “a list of the reports where PBW

submitted data reflecting revisions [to] the critical elements of the CSM.” PBW also

acknowledged that Dr. Bedient:

asserts that PBW “failed to develop and refine a conceptual site model,”

“failed to fully identify additional areas of potential contamination,”

20

“failed to characterize, assess and develop a plan to mitigate dense non-

aqueous phase liquids (DNAPL) at the site,” and “failed to establish the

full extent of community impacts or develop actions to completely stop

those releases.”

PBW was thus able to understand at least some of the errors or omissions Dr. Bedient

attributed directly to PBW sufficiently enough to challenge the accuracy of the

allegations.

ERM argues that the holding in Macina, Bose, Copeland & Assocs. v. Yanez

(“Macina”) dictates we affirm the dismissal of Appellants’ claims. No. 05-17-

00180-CV, 2017 WL 4837691, at *9 (Tex. App.—Dallas Oct. 26, 2017, pet. dism’d)

(mem. op.). ERM argues that in that case, the court squarely addressed a certificate

of merit that made collective allegations of negligence nearly identical to those in

Dr. Bedient’s certificate, holding the certificate failed to comply with Section

150.002. Id. We find the facts of Macina distinguishable.

In Macina, two architecture firms and three engineering firms were hired to

construct an apartment complex. Erika Yanez sued all five firms for negligence and

gross negligence after her husband suffered serious injuries while working at the

construction site. The architecture firms objected to Yanez’s certificate of merit

because it “did not differentiate between the [architectural firms’] actions.” Id. at

*5. The certificate of merit defined the two architecture firms collectively as “the

Defendant Architectural Firms” or “Defendant Architects.” Among other

allegations, Yanez’s expert asserted the “Defendant Architects’ conduct in

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developing, approving, designing, assessing and documenting . . . fell below the

applicable work product standards of design professionals in Texas.” Id. at *6. The

appellate court determined the certificate of merit provided no basis for ascribing the

alleged acts to one of the companies because it made “no distinction in the work

performed by the two companies,” and failed to state that “both companies were

involved in all aspects of the work.” Id. The court held the certificate of merit did

not satisfy Section 150.002’s requirements. Id. at *6–8. Unlike the certificate of

merit in Macina, Dr. Bedient’s certificate of merit makes a distinction between the

work performed by ERM and PBW both by discussing and attaching documents

created by each defendant and referring to each defendant separately. There is no

indication the defendant’s expert in Macina did the same.

Regardless, we find this Court’s binding opinion in T & T Engineering

Services, Inc. v. Danks, No. 01-21-00139-CV, 2022 WL 3588718 (Tex. App.—

Houston [1st Dist.] Aug. 23, 2022, pet. denied) (mem. op.) more on point. 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. Id. at *1. The plaintiff sued T&T Engineering and Basic Equipment for

strict products liability and negligence. Id. at *8. T&T Engineering objected to the

plaintiff’s certificate of merit and moved to dismiss the plaintiff’s claims. Among

other things, T&T Engineering argued the certificate of merit “failed to identify the

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particular defendant at fault or the specific conduct by T&T Engineering that

contributed to [the plaintiff’s] injuries.” Id. at *2. The trial court denied T&T

Engineering’s motion to dismiss, and T&T Engineering appealed. Id.

This Court observed that “the certificate of merit did not specifically state the

alleged negligence of T&T Engineering as opposed to that of Basic Equipment” or

“expressly state that both T&T Engineering and Basic Equipment were involved in

all aspects of the work performed.” Id. at *8. We explained the certificate of merit

instead:

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.”

Id. (citing Macina, 2017 WL 4837691, at *6). We noted, however, that “T&T

Engineering [had] unequivocally acknowledged in the record before the trial court

that it [had] designed the drilling rig and the derrick board” the plaintiff’s expert

opined was defective, and that the certificate of merit identified the “alleged flaw[s]

in the design of the drilling rig.” T & T Eng’g Servs., 2022 WL 3588718, at *9. We

thus held that the “certificate of merit identifie[d] the alleged error and state[d] the

factual basis for [the expert’s] conclusions” and thus “provide[d] a basis for the trial

court to conclude that [the plaintiff’s] claims [were] not frivolous.” Id. at *10.

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Apart from the errors and omissions associated with the CSM, Dr. Bedient

states in his certificate of merit that ERM and PBW each failed to (1) “fully identify

additional areas of potential contamination, such as the Englewood Intermodal Yard,

in order to develop an appropriate remediation plan,” (2) “characterize, assess and

develop a plan to mitigate dense non-aqueous phase liquids (DNAPL) at the site as

required by [Texas Risk Reduction Program],” and (3) “establish the full extent of

community impacts or develop actions to completely stop those releases.”

In its motion to dismiss, ERM acknowledged that Union Pacific hired ERM

in 1997 “to provide certain environmental consulting and engineering services at the

Facility,” and as Union Pacific’s environmental consultant and engineer

ERM was regularly engaged in the practice of environmental

engineering and was required to exercise its employees’ engineering

education, training, and experience to perform tasks necessary pursuant

to [Union Pacific]’s permit, including sampling, analysis, and

delineation of specified constituents of concern; analysis related to the

conceptual site model; evaluation of exposure pathways or lack thereof;

design of remedial action; and the like. ERM continued to provide

environmental engineering services to [Union Pacific] until 2006, when

PBW replaced ERM as [Union Pacific]’s environmental consultant and

engineer at the Facility. PBW is still the environmental consultant and

engineer at the Facility.

And in its motion to dismiss, PBW stated:

PBW undertook a visualization and mapping study at the Facility using

“Earth Volumetric Studio” (“EVS”) to develop a three-dimensional

visualization model of the Facility hydrogeology, EVS is a tool similar

to the ones that Dr. Bedient identified as appropriate for projects like

this one. PBW provided the results of the EVS study it performed at:

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the Facility to TCEQ in August 2020 in a document entitled “Response

Action Plan - Revision No. 5.”

PBW argued that contrary to Dr. Bedient’s assertions, PBW “frequently updated the

elements of the CSM as additional hydrogeologic data have become available,” and

“conducted detailed investigations of the Englewood Intermodal Yard and reported

the results to TCEQ (including the identification of the Englewood Intermodal Yard

as an [area of concern]) in several reports.” PBW argued that it “collected DNAPL

samples as early as 2007 on behalf of Union Pacific to evaluate the chemical and

physical characteristics of the NAPL at the Facility,” “conducted DNAPL recovery

tests on selected wells . . . to evaluate recoverable characteristics of the NAPL,” and

submitted a report detailing the “comprehensive NAPL investigations that PBW

conducted at the Facility in 2019 and 2020.” According to PBW, “[n]umerous

reports and other documentation that describe PBW’s plans to mitigate NAPL

migration from the Facility were available to Dr. Bedient in TCEQ’s records” when

he prepared the certificate of merit. PBW also asserted that it performed soil

investigations at the Facility.

Thus, as in T & T Engineering Services, the record reflects ERM and PBW

both acknowledge in their motions to dismiss that they were responsible for one or

more aspects of the remediation project Dr. Bedient addresses and criticizes in his

certificate of merit, such as the preparation and refinement of the CSM, the design

of remedial action, or the evaluation and identification of evaluation of exposure

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pathways. Dr. Bedient’s certificate of merit thus identifies specific acts or omissions

by ERM and PBW, and ERM and PBW both acknowledge they were involved in

such aspects of the work at the Facility. See T & T Eng’g Servs., 2022 WL 3588718,

at *7 (stating certificate of merit should specifically address “the conduct of the

professional who provided the service at issue,” and “identify each defendant and

that defendant’s specific conduct”) (quoting Fluor Enters., 2020 WL 2070257, at

*5)).

We thus conclude the certificate of merit provided a basis for the trial court to

conclude that Appellants’ claims are not frivolous, and they may thus “proceed in

the ordinary course to the next stages of litigation.” See T & T Eng’g Servs., 2022

WL 3588718, at *10 (quoting CBM Eng’rs, 403 S.W.3d at 346).

2. Dr. Bedient’s sources and accuracy of his assertions

ERM and PBW also criticize Dr. Bedient’s sources and the accuracy of his

factual assertions and opinions. According to ERM and PBW, the certificate of merit

simply repeats allegations the Harris County attorney asserted in its letter to TCEQ,

which according to ERM “call[s] into question the credibility and technical

soundness of the certificate’s allegations.” ERM and PBW argue Dr. Bedient should

have reviewed ERM’s and PBW’s relevant contracts and agreements with Union

Pacific establishing their scope of work at the Facility. Without this information,

they contend, Dr. Bedient cannot provide a factual basis for his assertions against

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them. PBW also argues that its contract with Union Pacific demonstrates that Union

Pacific “decide[d] what activities PBW would be permitted to undertake and when,

and whether PBW ha[d] completed the requested work” and Union Pacific, not

PBW, is the only party with “responsibility for the work performed or not

performed” at the Facility as a part of the remediation project.

Even if accurate, ERM’s and PBW’s arguments do not alter our conclusion.

The question before the trial court and before us on appeal is only whether Dr.

Bedient’s certificate of merit complied with Section 150.002(a). The accuracy of

Dr. Bedient’s opinions and the reliability of his foundational materials do not impact

the sufficiency of his certificate of merit under Section 150.002, which a plaintiff

must file at the onset of litigation before any discovery has occurred. Rather, such

arguments, which ERM and PBW are not foreclosed from making in the future, are

more appropriately raised in a motion for summary judgment or motion to exclude

expert testimony.9 See CBM Eng’rs, 403 S.W.3d at 346 (stating Section 150.002

does not “foreclose the defendant 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 also

9

Indeed, the only authority PBW relies on for this proposition involves a summary

judgment proceeding. See Dukes v. Philip Johnson/Ala Ritchie Architects, P.C.,

252 S.W.3d 586, 594 (Tex. App.—Fort Worth 2008, pet. denied) (stating “we look

only to the . . . contractual agreement” to determine scope of professional’s duty).

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generally Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997)

(“If the foundational data underlying opinion testimony are unreliable, an expert will

not be permitted to base an opinion on that data because any opinion drawn from

that data is likewise unreliable. . . A flaw in the expert’s reasoning from the data may

render reliance on a study unreasonable and render the inferences drawn therefrom

dubious. Under that circumstance, the expert’s scientific testimony is unreliable and,

legally, no evidence.”).

3. Third-Party Licensed Professional Requirement

PBW also argues Dr. Bedient’s certificate of merit fails to comply with the

requirement of Section 150.002(a) that the certificate be from a third-party licensed

professional because Dr. Bedient is acting more as Appellants’ agent. See TEX. CIV.

PRAC. & REM. CODE § 150.002(a). We rejected a similar argument in Gartrell v.

Wren, No. 01-11-00586-CV, 2011 WL 6147786 (Tex. App.—Houston [1st Dist.]

Dec. 8, 2011, pet. denied) (mem. op.).

In Gartrell, Ernest and Beverly Wren sued Joseph Gartrell for negligence and

gross negligence related to Gartrell’s preparation of land surveys for the Wrens.

Gartell moved to dismiss the Wrens’ claims pursuant to Section 150.002. Id. at *1.

According to Gartrell, the Wrens’ expert, Christopher Trusky, “was not a third-party

licensed professional within the meaning of Chapter 150 because he had been

employed by the Wrens and purportedly had corrected parts of the surveys he

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criticized in his affidavit.” Id. at *5. Rejecting Gartrell’s argument, this Court

stated:

Nothing in the statute expressly precludes a third-party fact or expert

witness from serving as the third-party affiant. This is consistent with

the conventional and common-sense understanding of a “third party”

as “[a] person who is not a party to a lawsuit, agreement or other

transaction but who is usually somehow implicated in it; someone other

than the principal parties.” Trusky is not the plaintiff, the defendant, or

an officer or agent of either. He is a person other than the principal

parties to the litigation and is, therefore, a third party with respect to the

lawsuit.

Id. (internal citations omitted).

According to PBW, Dr. Bedient is acting as Appellants’ “agent,” because Dr.

Bedient did not conduct “an independent investigation of the facts,” and instead

relied on Appellants’ assertions of fact and a technical comment letter the Harris

County attorney submitted to TCEQ. On the contrary, Dr. Bedient states in his

certificate of merit that, in addition to reviewing Appellants’ draft petition and the

Harris County attorney’s letter, he also reviewed the reports ERM and PBW

submitted to TCEQ and TCEQ Regulatory Guidance: Risk-based management of

NAPL. Dr. Bedient also discusses and cites to these sources in his certificate. While

Dr. Bedient’s alleged reliance on Appellants’ petition and the Harris County

attorney’s letter may raise questions about the reliability of Dr. Bedient’s opinions,

it does not render him an “agent” of Appellants or otherwise disqualify him from

serving as “third-party” licensed professional under Section 150.002.

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Further, as we have explained, the accuracy of Dr. Bedient’s assertions and

the appropriateness of his source material is not relevant at this initial stage of the

litigation and may be raised later. See generally CBM Eng’rs, 403 S.W.3d at 346

(stating Section 150.002 does not “foreclose the defendant 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”); T & T Eng’g Servs., 2022 WL 3588718, at *10 (holding certificate of

merit sufficient for purposes of Section 150.002 and stating defendant could

challenge sufficiency of plaintiff’s evidence and admissibility of expert’s opinion

later in litigation).

We conclude Dr. Bedient’s certificate of merit identifies the alleged errors of

PBW and ERM and the factual basis for his conclusions. The certificate of merit

thus provided a basis for the trial court to conclude that Appellants’ claims are not

frivolous, and they may thus “proceed in the ordinary course to the next stages of

litigation.” Id. at *10 (quoting CBM Eng’rs, 403 S.W.3d at 346).

We hold the trial court abused its discretion in granting Appellees’ motions to

dismiss and dismissing Appellants’ claims.10

10

Given our disposition, we need not address Appellants’ first or second issues.

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Conclusion

We reverse the trial court’s orders granting PBW’s and ERM’s motions to

dismiss and dismissing Appellants’ claims against PBW and ERM without

prejudice. We remand this case to the trial court for further proceedings.

Veronica Rivas-Molloy

Justice

Panel consists of Chief Justice Adams and Justices Landau and Rivas-Molloy.

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