News & Insights

Supreme Court Of Texas Clarifies How Certifying Expert May Demonstrate Knowledge Of The Defendant Design Professional’s Area Of Practice Pursuant To Texas’s Certificate Of Merit Statute

In Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corporation, No. 16-0078, 2017 WL 2492006 (Tex. June 9, 2017), East Rio Hondo Water Supply Corp. contracted with Melden & Hunt, Inc. to provide engineering-design and project-supervision services for a new water-treatment plant in San Benito, Texas. Following substantial completion of the project, East Rio complained about the quality of water treated at the plant and attributed the water-quality issues to the plant’s design and construction. East Rio subsequently filed a complaint against Melden & Hunt asserting claims for breach of contract, breach of express and implied warranties, negligence, and negligent misrepresentation.

East Rio filed the affidavit of Dan Leyendecker, P.E., to comply with Texas’s Certificate of Merit statute. Texas’s certificate of merit statute provides a sworn certificate of merit must accompany a plaintiff’s complaint in any case “arising out of the provision of professional services by a licensed or registered professional” named in the statute, and the licensed or registered professional must be “knowledgeable in the [defendant’s] area of practice.”  Tex. Code § 150.002(a)-(b).

Mr. Leyendecker’s affidavit stated he held a bachelor of science degree in civil engineering from Texas A&M University, was a registered professional engineer in Texas and eight other states, was the president and principal of LNV Engineering, and had twenty-three years’ experience in “master planning, detailed design and construction management.” Mr. Leyendecker further swore he had experience designing and analyzing water-treatment plants, like East Rio’s, and was familiar with the standard of care an engineer of ordinary knowledge and skill should employ when designing such a project.

Melden & Hunt argued Mr. Leyendecker’s affidavit failed to demonstrate he was knowledgeable and competent to testify because his qualifications were “conclusory assertions,” establishing nothing more than his status as an engineer.  The Court disagreed, holding a certificate of merit may be sufficient even if it only contains conclusory assertions not otherwise admissible as expert testimony.  The Court noted Mr. Leyendecker’s recital of his qualifications and experience are factual statements supporting his conclusion that he is knowledgeable in the area of practice and competent to testify.

The Supreme Court previously held Texas’s Certificate of Merit statute’s requirement the expert affiant demonstrate specialized knowledge about the defendant’s area of practice was not a mere formality.  The Court’s decision in Melden & Hunt, Inc. clarifies an affiant may support the knowledge requirement through conclusory statements which would otherwise not be competent evidence for expert testimony.