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‘I Did it, Why Can’t You?’ Expert OK’d in Malpractice Case

March 26, 2018, 5:43 PM

After several layovers, a legal malpractice claim resumed its original course Mar. 20 when a Texas appellate court admitted into evidence a lawyer’s expert declaration it initially excluded as “conclusory.”

The trial court couldn’t exclude an expert affidavit in a malpractice case over a lawyer’s failure to recover a plane the DEA seized, said Justice Douglas S. Lang who wrote for the three-judge panel of the Court of Appeals of Texas for the Fifth District, on remand from the Texas Supreme Court.

In this case, the expert was also an attorney hired by the same company to recover other planes the DEA seized. But unlike the malpractice defendant, the expert succeeded. His opinion stated that the defendant lawyer was negligent because he didn’t do what the expert had done.

The case is notable because if other courts allow this type of anectdotal evidence to demonstrate causation in a malpractice case, it could increase the number of malpractice cases that go to trial and make defending them much more difficult.

The DEA seized a total of seven planes from charter company, Starwood Management, LLC, for alleged violations of a federal law requiring that planes be registered to a company that is majority-owned by U.S. citizens. Starwood’s insurance carrier, Chartis Aerospace Insurance, hired Don Swaim and Rose Walker, L.L.P. to recover one Gulfstream jet, and George Crow to recover the six remaining planes.

Swaim filed suit in federal court, but failed to file a notice with the DEA about Starwood’s claim so the case was dismissed. Swaim also filed a petition for remission or mitigation in federal court, which the DEA denied after Starwood’s owner invoked her Fifth Amendment rights and wouldn’t testify. Starwood never recovered the Gulfstream.

Crow filed suit in federal court to recover the remaining six planes and notified the DEA as required. As of the time of summary judgment in Swaim’s malpractice case, Crow had already recovered three planes for nominal settlements and two without conditions attached. And the DEA never sought testimony from Starwood’s owner in Crow’s cases.

Bumpy Flight

Starwood sued Swaim for malpractice and breach of fiduciary duty. It submitted an affidavit from Crow that was based on his successes for Starwood. He “opined that Swaim’s negligent failure to comply with the notice requirements ‘caused the forfeiture’ of the aircraft,” the appeals court said.

Marjorie S. Hensel of Bush Ross, P.A. in Tampa, Florida told Bloomberg Law that the submission could be described as a, “Well, I did it; why can’t you?” affidavit. Hensel defends lawyers accused of malpractice.

Swaim objected to Crow’s affidavit as “speculative, hearsay, conclusory, not relevant, Rule 403 more prejudicial than probative, and not competent expert witness summary judgment evidence.” The trial court excluded Crow’s affidavit and granted summary judgment for Swaim on both claims.

On appeal, the Court of Appeals for the Fifth District of Texas agreed that Crow’s affidavit should be excluded as conclusory because there was “no case-by-case comparison of the facts in other aircraft seizure cases” with those in this case. It also affirmed the trial court’s summary judgment rulings on both claims.

Starwood appealed to the supreme court, which concluded that Crow’s affidavit wasn’t conclusory. It said the “differences between the airplane at issue here and the six others are not material because the basis for Crow’s conclusion is rooted in procedure, not qualitative facts as to the aircraft.” 33 Law. Man. Prof. Conduct 548. The supreme court said the “extent of the detail into which the affidavit delved goes to quality, not adequacy.” And the facts Crow relied on in his affidavit were “both demonstrable and reasonable.”

The case was remanded to the appeals court, which found the trial court abused its discretion for not admitting Crow’s affidavit, and it reversed the grant of summary judgment for Swaim on Starwood’s negligence claim.

Cruising Altitude

The appeals court relied on the following guidance from the Texas Supreme Court:
“Crow’s ultimate conclusion was that had Swaim complied with the notice provisions required for the federal court proceedings, Starwood’s aircraft would have been recovered. … The basis for the conclusion was that Crow followed the prescribed methodology six times and had a perfect track record on the five cases disposed of as of the time the trial court granted summary judgment. The facts he relied on are both demonstrable and reasonable. …"

Thus, the exclusion of Crow’s affidavit was an abuse of the trial court’s discretion. The appellate court held that for the same reasons, Crow’s affidavit wasn’t speculative or irrelevant.

On Starwood’s negligence claim, the appeals court said the trial court erred in granting Swaim’s summary judgment motions. “Based on the supreme court’s opinion,” the appeals court concluded that “Crow’s affidavit constituted some evidence of causation respecting Starwood’s negligence claim.” So Swaim’s “no evidence” summary judgment motion should not have been granted, the appeals court said. And the appeals court said the “record does not show [Swaim] negated the element of causation as to Starwood’s negligence claim,” so Swaim’s traditional motion for summary judgment should not have been granted.

The appeals court found no error by the trial court in granting Swaim’s summary judgment motions on Starwood’s breach of fiduciary duty claim, and Starwood did not challenge this on appeal.

‘Chilling’ Effect

Hensel told Bloomberg Law that “somebody else’s performance shouldn’t really be the question” in proving but-for causation.

If the “Well, I did it; why can’t you?” approach catches on, Hensel told Bloomberg Law, it could “make it almost virtually impossible to ever get summary judgment,” as a defense lawyer. Taking a general approach to causation that is not based on case-specific facts “really dilute[s] the burden of the plaintiff’s attorney to prove causation,” Hensel said. That dilution is “frightening,” Hensel told Bloomberg Law.

Hensel said admitting as expert testimony the affidavit of someone who achieved the “opposite result” is “chilling.”

Justices Ada Brown and Jason Everett Boatright were on the panel.

Starwood Management LLC was represented by Keeling & Downes, P.C., and Sears & Crawford LLP. Swaim and his firm were represented by Cobb Martinez Woodward PLLC and Kelly, Durham & Pittard LLP.

The case is Starwood Mgmt., LLC v. Swaim, Tex. App., 5th Dist., 05-14-01218-CV, 3/20/18.

To contact the reporter on this story: Mindy L. Rattan in Washington at

To contact the editor responsible for this story: S. Ethan Bowers at