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How Many Aggies Does It Take to Void a Rule 11 Agreement?

BlogAggie Image.jpgThe Case:

Nancarrow v. Whitmer, 2015 Tex. App. LEXIS 4505 (Tex. App.-Waco, Apr. 30, 2015)

Brief Facts: On December 20, 2011, Veronica Nacarrow filed suit against Dr. Wade Whitmer in 361st District Court, Brazos County, alleging medical negligence during surgery on her shoulder. On July 1, 2013, the Plaintiff sent a settlement demand to the Defendant's counsel, offering to settle the case at the policy limits of $200,000. Two days later, the Defendant served the Plaintiff his responses to requests for disclosure. However, in those requests, the Defendant included several statements that were allegedly false. He designated Dr. Bramhall-a respected orthopedic surgeon-as a testifying expert, even though Dr. Bramhall had actually refused to serve as a witness. Dr. Bramhall even told the Defendant he should not compel his testimony "as [he] would likely prejudice that defense." 

Nevertheless, the Defendant asserted in his responses:

It is Bramhall's professional opinion that Dr. Whitmer's evaluation, care, and treatment of patient Veronica Nancarrow met all applicable standards of care for a board certified orthopedic surgeon practicing in College Station, Texas, and that no action of [sic] omission of Dr. Whitmer was a proximate cause of Plaintiff's alleged damages herein. Dr. Bramhall will testify Plaintiff suffered a severe injury to her shoulder in the fall of 10/13/2009 which, in the absence of any action or omission of Defendant, was a proximate cause of Plaintiff's ultimate injuries and/or damages herein[.]

After the Plaintiff's counsel received these discovery responses, her counsel received a telephone call from opposing counsel, asking to settle the case at the earlier offer. The settlement was memorialized on July 23 in a Rule 11 Agreement. The trial court upheld the agreement as valid.

The Decision by the Waco Court of Appeals:

The Waco Court of Appeals reversed and remanded the trial court's granting of summary judgment in favor of Dr. Whitmer. The court held there was a fact issue as to whether the settlement was fraudulently induced. The Appellant's counsel testified that he only entered the agreement because he was worried about the potential testimony of Dr. Bramhall himself. Dr. Bramhall was thought to be the appellee's only expert witness and a strong witness, having served as lead surgeon for Texas A&M University's Department of Athletics for over 20 years. The Appellant's attorney worried that Dr. Bramhall would "carry the day" among a Brian-College Station jury.

What to Take Away:

First, settlement agreements only become enforceable once they (1) are in writing, signed by the parties or attorneys, and filed as part of the record, or (2) made orally in open court and entered a part of the record. See Tex. R. Civ. P. 11; Neasbitt v. Warren, 05 S.W.3d 113,116 (Tex. App.-Fort Worth 2003, no pet). Second, predictions about the future that are made with present knowledge that the statements are false are actionable misrepresentation. See Bryant v. Transcontinental Gas Pipe Line Corp., 821 S.W.2d 187, 190 (Tex. App.- Houston [14th District] 1991, writ denied). Nancarrow suggests this is true even regarding statements made in signed requests for disclosure. See Tex. R. Civ. P. 191.3(b).

And finally, when providing responses to disclosures, attorneys should refrain from guessing as to the precise content of an expert's testimony. For example, an attorney might state that "Dr. Seuss will testify as to the reasonableness and/or accuracy of the Plaintiff's future medical expenses," instead of "Dr. Seuss will testify that the Plaintiff's future medical expenses are unreasonable and inflated." Not only does this avoid the dangers presented in this case, but it also avoids tipping opposing counsel as to the precise nature of the expert's testimony.  So, how many Aggies does it take to void a Rule 11 agreement?  Just one.

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