Opinion
Civil Action No. 3:02-CV-1449-D.
July 20, 2004
MEMORANDUM OPINION AND ORDER
Plaintiffs — five persons who were acquitted of criminal charges following a lengthy prosecution and trial — bring this action for fraud, malicious prosecution, defamation, and civil conspiracy against the law firm that represented their employer and that they maintain engaged in conduct that procured their prosecutions and indictments. The court must decide whether plaintiffs can recover for malicious prosecution and, if not, whether their remaining claims are precluded as a result. Concluding that the law firm is entitled to summary judgment, the court dismisses this case for the reasons that follow.
I
This is an action by plaintiffs Sheila Ann Petty ("Petty"), Dale Thomas McQueen ("McQueen"), Michelle Georgina Delgado-Brown ("Delgado-Brown"), Gesheng Dai ("Dr. Dai"), and Chukwujekwu Anozie ("Anozie") against defendant Venable, Baetjer, Howard Civiletti, LLP ("Venable") arising from plaintiffs' prosecution and acquittal on criminal charges in United States v. Jeffus, et al., No. 3:00-CR-375-D (N.D. Tex.) (Fitzwater, J.) ( "Jeffus"). Plaintiffs allege that Venable is liable for fraud, malicious criminal prosecution, defamation (libel and slander), and civil conspiracy based on the conduct of Venable attorneys Thomas J. Kelly, Jr., Esquire ("Kelly"), Maureen E. Donahue, Esquire ("Donahue"), and/or Carla D. Craft, Esquire.
Plaintiffs also sued Intertek Testing Services Environmental Laboratories, Inc., but this defendant was dismissed with prejudice by agreed order filed April 22, 2003.
The court recounts the evidence favorably to plaintiffs as the summary judgment nonmovants and draws all reasonable inferences in their favor. See Clift v. Clift, 210 F.3d 268, 270 (5th Cir. 2000).
Plaintiffs are former employees of Intertek Testing Services Environmental Laboratories, Inc. ("ITS"), a company that conducted environmental analysis of air, liquids, and soil samples. Some ITS clients were federal government agencies, such as the Environmental Protection Agency ("EPA"). Plaintiffs were employed during the relevant period at the ITS Richardson, Texas laboratory. McQueen and Delgado-Brown were analysts in the GC/MS Volatile Laboratory. Dr. Dai was the supervisor of the laboratory's Air Toxics section. Anozie was an analyst in the GC Volatile Laboratory. Petty worked in the ITS Data Review department.
Gas chromatography/mass spectrometry.
In 1997 ITS management discovered during a routine audit of the Richardson laboratory that certain tests — including those performed for the EPA — may have been conducted by improperly manually integrating test data to make data appear to pass quality control standards. Martin Dale Jeffus ("Jeffus"), ITS's Vice-President and Regional Director of North American Operations, contacted Kelly, who advised him that ITS could participate in the EPA's Voluntary Disclosure Program, thereby protecting the company from debarment (i.e., inability to work on government contracts) and more severe fines. In January 1998 Kelly advised the EPA by letter that, under the program, ITS was voluntarily disclosing activities that appeared to have been undertaken by employees that resulted in generating erroneous laboratory data.
See EPA, Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations, 60 Fed. Reg. 66706 (Dec. 22, 1995).
Plaintiffs maintain that Venable (through Kelly) sought to place blame on certain ITS employees, despite obtaining information that the employees lacked standard operating procedures, quality control, or formal instruction concerning how to perform their jobs to comply with the required standards. They posit that Venable did so by (1) blaming employees in Kelly's letter to the EPA; (2) conducting interviews with ITS employees without informing them that they did not have to participate and could have their own counsel present, and giving them at least the impression that the attorneys were representing them and their interests as well as ITS's; (3) failing to record accurately employee statements given in the interviews and disclosing them to the government without ITS management's knowledge; and (4) specifically identifying two plaintiffs — McQueen and Delgado-Brown — as perpetrators of wrongdoing. Plaintiffs argue that during interviews with them, Venable attorneys misrepresented that the law firm was representing them and/or their interests, that the employees had nothing to worry about, that they were not subject to criminal prosecution, and that ITS would probably pay a fine and then it would be business as usual. They maintain that Venable attorneys misstated what the plaintiffs had said during their interviews, and that the misstatements erroneously reflected that they had admitted or were aware of wrongful conduct. Plaintiffs also assert that the Venable attorneys' actions initiated their prosecution, that the government relied on the interviews and statements of Venable rather than its own investigation to prosecute them, and that but for Venable's actions, they would never have been prosecuted or indicted.
In their brief, plaintiffs assert that Venable identified three plaintiffs. See Ps. Br. at 5 (citing Ps. App. 123-24). The part of the record they cite includes four employees, but only two are plaintiffs in this lawsuit.
Plaintiffs assert that Venable is liable for fraud based on misrepresentations and omissions, for malicious criminal prosecution for initiating or procuring their prosecution in Jeffus that resulted in their acquittals, for defamation (libel and slander) for publishing statements that were defamatory and false, and for civil conspiracy for conspiring with ITS to commit fraud, malicious criminal prosecution, and defamation by libel and slander.
Venable moves for summary judgment. It maintains, inter alia, that plaintiffs cannot recover for malicious prosecution because it did not initiate or procure plaintiffs' prosecutions or because it had probable cause to instigate the prosecutions, and that plaintiffs' claims for fraud, defamation, and civil conspiracy must be dismissed because the true nature of these claims is one for malicious prosecution.
II A
To establish their malicious prosecution claim, plaintiffs must prove that they were subjected to a criminal prosecution, were found not guilty, were innocent and that (1) Venable initiated or procured the prosecution, (2) Venable lacked probable cause to instigate the prosecution, (3) Venable acted with malice, and (4) plaintiffs suffered damages as a result of the prosecution. See Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). Because Venable will not have the burden at trial concerning this cause of action, it can meet its summary judgment obligation by pointing the court to the absence of evidence to support the claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once Venable does so, plaintiffs must then go beyond their pleadings and designate specific facts showing there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F. 3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). Moreover, plaintiffs must produce evidence to establish the existence of each element for which they bear the burden of proof. See Dunn v. State Farm Fire Cas. Co., 927 F. 2d 869, 872 (5th Cir. 1991). Summary judgment is mandatory where plaintiffs fail to meet this burden. Little, 37 F.3d at 1076. Venable has pointed the court to the absence of evidence to support the initiation/procurement element of plaintiffs' malicious prosecution claim.
B
Venable argues that plaintiffs cannot show that it procured their prosecutions because EPA investigators conducted their own, independent investigation and did not rely on any representations by ITS or its attorneys in deciding how to conduct the investigation or in determining which ITS employees had engaged in criminal conduct. It posits that it never alleged that Petty, Dr. Dai, or Anozie had engaged in wrongdoing and in fact informed the government that they had not been involved in misconduct.
Under Texas law, "[a] person procures a criminal prosecution if his actions were enough to cause the prosecution, and but for his actions the prosecution would not have occurred." Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 293 (Tex. 1994) (based on Restatement (Second) of Torts § 653 cmts. d, f-h). A person is not subject to liability for merely aiding or cooperating in causing a criminal prosecution. Id. at 292. His "actions must be the cause in fact of a criminal prosecution before he can be liable for malicious prosecution." Id.
Additionally, "[a] person does not procure a criminal prosecution when the decision whether to prosecute is left to the discretion of another, including a law enforcement official or the grand jury, unless the person provides information which he knows is false." Id. at 293 (based on Restatement (Second) of Torts § 653 cmts. g). The reason for the exception is that "a person who provides false information cannot complain if a prosecutor acts on it. . . . Such a person has procured the resulting prosecution, regardless of the actions of the prosecutor, and the causation element for malicious prosecution is satisfied." Id. at 294.
Plaintiffs maintain that Venable procured their prosecutions through known false statements. To support this assertion, they contend they have shown that Venable misrepresented to the EPA the contents of their interviews with Venable and that three attorneys who represented certain plaintiffs in Jeffus have opined that, but for Venable's actions and misrepresentations, plaintiffs would not have been indicted and prosecuted.
Plaintiffs assert that "Venable's attempt at summary judgment on the procurement issue fails unless Venable can meet its burden of showing that the Plaintiffs can point to no false statement to the EPA that Venable knew was false." Ps. Br. at 16. This contention is somewhat imprecise. Venable is required to point the court to the absence of evidence that Venable provided information that it knew was false.
To the extent that plaintiffs rely on any other argument, it has not been adequately briefed and has not been considered.
C 1
The court considers first plaintiffs' contention that Venable procured their prosecutions by misrepresenting to the EPA the contents of their interviews. At the pertinent part of their brief, plaintiffs cite no record support for the assertion that "Venable misrepresented to the EPA the contents of the Plaintiffs' interviews with Venable." See Ps. Br. at 16. They have thus failed to comply with N.D. Tex. Civ. R. 56.5(c), which requires that they cite "each page of the appendix that supports each assertion that the[y] make concerning the summary judgment evidence." This contention appears, however, to incorporate citations to the record set out at an earlier point in their brief. See Ps. Br. at 5-6. Plaintiffs assert there that Venable attorneys prepared interview notes that misstated what plaintiffs had said to reflect that they had either admitted or were aware of wrongful conduct, and that they performed improper integrations and/or manipulated data, and that Venable provided the interview notes to the government. Id.2
The court need not address plaintiffs' arguments to the extent they relate to Dr. Dai and Anozie. Plaintiffs have cited no evidence that Venable provided the government the interview memoranda of these plaintiffs, and they have implicitly conceded that it did not. See id. at 17 ("Venable will no doubt point out that the Interview Memoranda of Gesheng Dai and Chuck Anozie were handed over — if ever — after the criminal investigation began."). They attempt to overcome this defect by arguing that Kelly's January 1998 letter to the EPA and Venable's false statements concerning the other plaintiffs began the entire criminal investigation; that had Venable not made false statements to the EPA regarding Petty, McQueen, and Delgado-Brown, Dr. Dai and Anozie would not have been investigated; and that Venable's initial false statement eventually led to the prosecutions of Dr. Dai and Anozie. The court concludes, however, that a reasonable jury could not find on this basis that Venable provided the EPA false information about Dr. Dai and Anozie in interview notes that procured their prosecutions.3
The court now considers the summary judgment evidence that plaintiffs cite concerning Petty. See id. at 5 n. 17 (citing Ps. App. 68-71). The citation purports to support the general assertion concerning all plaintiffs that, "[w]ithout exception, the Plaintiffs' statements were misstated to reflect that each Plaintiff either admitted or was aware of wrongful conduct, including the most `damning' statement which was that the Plaintiffs performed `improper' integrations and/or manipulated data." Id. at 5.
During her deposition, Petty identified the parts of the memorandum of her January 14, 1998 interview that she thought were inaccurate. She disputed saying that she thought the current evidence of improper manual integrations was shocking. Petty testified that she told Donahue that the integrations that she had seen were different from how she would have done them and that she was surprised because she had been trained one way and that everybody had their own way of doing things, and that she was surprised to see something like that but did not say it was improper. See Ps. App. 70. Petty also challenges whether she told Donahue that, in her view, pressure from upper management made analysts perform improper integrations. Id. She maintains that Donahue asked her if there was a reason anyone would do anything with data and that she told her she could not think of any reason to perform the integrations because they all worked hard, they were not paid extra, and it was not worth their time and effort because it took longer to go in and manually integrate. Id. at 70-71.
A reasonable jury could not find that Venable provided false information in this memorandum that procured Petty's prosecution. The parts of the interview memorandum that Petty challenges are neither inculpatory nor incriminating. The statement in the document that Petty "found the current evidence of improper integration `shocking'" followed immediately Donahue's recollection that Petty had said she was unaware of any improper manual integration in the volatiles lab. See Ps. App. 99. The statement attributed to Petty that "`pressure from upper management was what made' analysts do improper integration," id. at 100, did not refer to Petty, who was not at the time an analyst.
4
The court now turns to the memorandum that Donahue prepared of her January 12, 1998 interview of Delgado-Brown. Plaintiffs cite Delgado-Brown's deposition testimony in support of their assertion that the memorandum procured her prosecution. See Ps. Br. at 5 n. 17 (citing Ps. App. 76). In her testimony, Delgado-Brown makes only one complaint about the accuracy of the interview memorandum: she contends that Kelly and Donahue omitted that she had informed them she had performed manual integrations, how she had done them, and what was happening in the lab. See Ps. App. 76. First, this omission does not support plaintiffs' contention that Venable misstated Delgado-Brown's statements to reflect that she admitted or was aware of wrongful conduct, including that she performed improper integrations and/or manipulated data. If anything, it demonstrates the opposite. Second, a reasonable jury could not find that, by failing to include in this memorandum that Delgado-Brown had stated that she had performed manual integrations, how she had done them, and what was happening in the lab, Venable had provided false information that procured her prosecution.D
Venable moves for summary judgment dismissing plaintiffs' malicious prosecution claim on the additional ground that it had probable cause to convey to criminal authorities that plaintiffs had performed improper manual integrations. The court will address this independent ground in deciding whether McQueen's claim should be dismissed.
The court need not address whether the alleged alterations in McQueen's interview memorandum were false and/or procured his prosecution.
"Malicious prosecution actions involve a delicate balance between society's interest in the efficient enforcement of the criminal law and the individual's interest in freedom from unjustifiable and oppressive criminal prosecution." Richey, 952 S.W.2d at 517. It is initially presumed in malicious prosecution actions that the defendant acted reasonably, in good faith, and had probable cause to initiate the proceedings. Id. Once a plaintiff produces evidence that the motives, grounds, beliefs, and other evidence on which the defendant acted did not constitute probable cause, the presumption disappears, and the burden then shifts to the defendant to offer proof of probable cause. Id. at 518. When the facts underlying the defendant's decision to prosecute are disputed, the trier of fact must weigh the evidence and resolve conflicts to determine if probable cause existed. When the facts are not contested, the question of probable cause is a question of law to be decided by the court. Id.
Because probable cause is presumed, McQueen must produce evidence that the motives, grounds, beliefs, and other evidence on which Venable acted did not constitute probable cause. Plaintiffs cite Castellano v. Fragozo, 311 F.3d 689 (5th Cir. 2002), in which the defendants altered evidence to make it appear the civil plaintiff had admitted committing arson. Id. at 693. The panel held that evidence that the defendant altered tapes and other evidence provided sufficient evidence to permit a reasonable jury to find the defendant acted without probable cause. Id. at 703. Plaintiffs argue that, like the tapes altered in Castellano, Venable altered McQueen's interview statements. Plaintiffs appear to assume that, if they create one fact issue with respect to probable cause, then any other grounds on which defendants rely are insufficient.
As an initial matter, Venable does not appear to rely on the McQueen interview for probable cause. It relies on the ITS investigation that occurred before the interview. Venable points to evidence that McQueen told Joseph Comeau ("Comeau") that he performed improper manual integrations, see D. App. 2, and "knew what he was doing was wrong," id. at 3. Moreover, Comeau told Kelly about McQueen's admissions of wrongdoing and opined that McQueen "had manipulated data results on government and private contracts." Id.
Because plaintiffs do not dispute this evidence, the question of probable cause is one of law to be decided by the court. See Richey, 952 S.W.2d at 518. Probable cause is "the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor [complainant], that the person charged was guilty of the crime for which he was prosecuted." Id. at 517 (quoting Akin v. Dahl, 661 S.W.2d 917, 921 (Tex. 1983)). "The probable-cause determination asks whether a reasonable person would believe that a crime had been committed given the facts as the complainant honestly and reasonably believed them to be before the criminal proceedings were instituted." Id. Venable unquestionably had probable cause to believe that McQueen had engaged in criminal conduct based on performing improper manual integrations.
Venable also had probable cause to report wrongdoing by Delgado-Brown. She undisputedly told Robert Wyeth that she had performed improper manual integrations, see D. App. 9-11, and she signed a statement and accepted discipline for performing "inappropriate manual integration," id. at 14.
E
Plaintiffs also oppose Venable's motion based on the opinions of three attorneys who represented three plaintiffs at the criminal trial. They opine that, but for Venable's actions and misrepresentations, plaintiffs would not have been indicted and prosecuted. Venable moves to strike these opinions, contending they are conclusory, that two opinions are legal conclusions, and that statements attributed to Assistant United States Attorney John Bradford ("Bradford") are inadmissible hearsay.1
S. Cass Weiland, Esquire ("Weiland"), who represented Petty at trial, opines "that the Venable law firm initiated and/or procured the prosecution of the Plaintiffs and that `but for' the actions of Venable, the Plaintiffs would not have been indicted or prosecuted in the criminal case." Ps. App. 22. Weiland avers that he bases his conclusions on numerous conversations with Bradford and EPA investigators and reviewing many boxes of documents and hundreds of potential trial exhibits, including client interviews conducted by Venable attorneys and EPA investigators and Venable interviews of plaintiffs, and that, as counsel in the Jeffus criminal case, he reviewed documents, interviewed witnesses, attended a suppression hearing and the six-week jury trial, and reviewed grand jury testimony. Id. (referring to prior paragraphs of his affidavit). He states that his conclusions also rest on conversations with Bradford, who informed him that the government was relying on the Venable interviews and discussions with Kelly in obtaining the indictments and prosecuting the criminal case, and on his years of experience working for the Department of Justice and in the public and private sectors. Id.
Jay Ethington, Esquire ("Ethington"), who represented Delgado-Brown, expressed an opinion that is almost identical to Weiland's and is based on essentially the same grounds. See id. at 26.
Ethington's and Weiland's opinions differ only in the use of one word and in capitalizing another few words, and the bases for their opinions are substantially the same. Compare Ps. App. 21-22 with id. at 25-26.
Lawson Pedigo, Esquire ("Pedigo"), who represented McQueen, testified by deposition that, in his view, the conduct of Venable clearly caused the investigation to commence and caused the prosecution of McQueen. Id. at 30-31. The basis for one of his opinions is not entirely clear from the cited portion of his deposition. He also opined that he "guess[ed] that perhaps that does follow" that Bradford would not have recommended that McQueen be indicted had it not been for Venable's conduct. Id. at 31.
Pedigo answered the question, "In your view, the conduct of Venable caused — caused the prosecution of Mr. McQueen?" by stating:
Without restating why, but if I had to end up there, the ultimate conclusion of what happened that I know and that if you change those two facts, [McQueen] was told something different in his interview or they had not targeted him with Mina Shah and given those documents, I don't think he would have been prosecuted. He would have left the company several months later or weeks later, and that would have been the end of it.Id. at 31.
2
"[T]here is a level of conclusoriness below which an affidavit must not sink if it is to provide the basis for a genuine issue of material fact." Orthopedic Sports Injury Clinic v. Wang Labs., Inc., 922 F.2d 220, 224 (5th Cir. 1991). "[U]nsupported affidavits setting forth `ultimate or conclusory facts and conclusions of law' are insufficient to either support or defeat a motion for summary judgment." Shaboon v. Duncan, 252 F.3d 722, 736 (5th Cir. 2001) (quoting Orthopedic Sports Injury Clinic, 922 F.2d at 225). Conclusory statements that are wholly unsupported by evidence in the summary judgment record fail to create a genuine issue of material fact. In re Segerstrom, 247 F.3d 218, 227 (5th Cir. 2001). "To be considered on summary judgment, an expert's affidavit must include materials upon which the expert based his opinion, as well as an indication of the reasoning process underlying the opinion." Celestine v. Petroleos de Venezuella SA, 266 F.3d 343, 357 (5th Cir. 2001). "Without more than credentials and a subjective opinion, an expert's testimony that `it is so' is not admissible." Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987). "A district court has broad discretion to rule on the admissibility of expert's affidavits in the summary judgment context, and its ruling must be sustained unless manifestly erroneous." Celestine, 266 F.3d at 357.
3
The court strikes, on the ground that they are conclusory, the opinions of Weiland and Ethington that Venable procured the prosecutions of plaintiffs and that, but for Venable's actions, plaintiffs would not have been indicted or prosecuted. The court also strikes as conclusory Pedigo's opinion that Venable caused the prosecution of McQueen.
a
In similar language, Weiland and Ethington state that they based their opinions on numerous conversations with Bradford and EPA investigators and reviewing many boxes of documents and hundreds of potential trial exhibits, including client interviews conducted by Venable attorneys and EPA investigators and Venable interviews of plaintiffs, and that, as counsel in the Jeffus criminal case, they reviewed documents, interviewed witnesses, attended a suppression hearing and the six-week jury trial, and reviewed grand jury testimony. They aver that their conclusions also rest on conversations with Bradford, who informed them that the government was relying on the Venable interviews and discussions with Kelly in obtaining the indictments and prosecuting the criminal case, and on their years of experience working for the Department of Justice. See Ps. App. 21-22, 25-26. Apart from one sentence in each affidavit, which the court discusses below, at no point in their affidavits do Weiland and Ethington disclose what they learned from Bradford, EPA investigators, documents, potential trial exhibits, client interviews conducted by Venable attorneys and EPA investigators, Venable interviews of plaintiffs, witness interviews, the suppression hearing, the Jeffus trial, or the grand jury testimony that leads them to conclude that, but for Venable's actions and misrepresentations, plaintiffs would not have been indicted and prosecuted. And except for the conversations with Bradford that are discussed below, their reasoning process for concluding that Venable's conduct is the "but for" cause is not apparent. Essentially, the basis for their opinions can be reduced to this: we reviewed extensive documents, had numerous conversations, were extensively involved in the Jeffus case, observed the trial and related proceedings, reviewed grand jury testimony, and, based on our experience, including with the Justice Department, we believe Venable's conduct was the "but for" cause. Were this sufficient, an expert opinion could defeat summary judgment simply by stating that the expert reviewed extensive relevant materials, he has relevant experience, and he has reached an opinion based on his review of the materials and his experience. This is contrary to Fifth Circuit precedent.
The sole exception to the foregoing analysis is contained in one sentence in Weiland's and Ethington's respective affidavits. Weiland avers that "[m]y conclusions are based upon my discussions with Assistant United States Attorney John Bradford, in which he informed me that the Government was relying upon the interviews conducted by the Venable law firm and his discussions with attorney Tom Kelly in obtaining the indictments and prosecuting the criminal case." Ps. App. 22. In almost identical language, Ethington states that "[m]y conclusions are also based upon my discussions with Assistant United States Attorney John Bradford, in which he informed me that the Government was relying upon the interviews conducted by the Venable law firm and his discussions with Tom Kelly in obtaining the indictments and prosecuting the Criminal Lawsuit." Id. at 26. These assertions arguably set out sufficiently the basis for the attorneys' opinions and their underlying reasoning to render the opinions non-conclusory.
Venable moves to strike this evidence as inadmissible hearsay. One ground for its motion is that plaintiffs have failed to establish under Fed.R.Evid. 703 that the underlying facts or data — here, Bradford's statements — are of a type reasonably relied upon by experts in the particular field. See D. Br. Mot. Strike at 10 n. 36. The court agrees and grants the motion to strike.
Rule 703:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Plaintiffs do not dispute that the statements attributed to Bradford are hearsay; they argue instead that, as experts, Weiland and Ethington are entitled to rely on hearsay. Plaintiffs identify as the controlling Rule 703 question whether Bradford's statements are a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. They state that "the real question [is] whether a criminal defense lawyer would reasonably rely on statements from the prosecuting authorities in order to determine the true origin of the indictment at issue." Ps. Br. Resp. Mot. Strike at 13. Plaintiffs argue that Venable has offered no argument to suggest otherwise, that a criminal defense lawyer relies on a combination of things, and that they relied, inter alia, on Bradford's statements.
The court holds that, to the extent Weiland's and Ethington's opinions are based on the hearsay statements of Bradford, they are inadmissible and should be stricken. The proponent of an expert witness who has relied on facts or data that are not otherwise admissible in evidence must at least establish that the facts or data are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.
Rule 703, however, is not an open door to all inadmissible evidence disguised as expert opinion. Although experts are sometimes allowed to refer to hearsay evidence as a basis for their testimony, such hearsay must be the type of evidence reasonably relied upon by experts in the particular field in forming opinions or inferences on the subject. [Defendant] made no showing that qualified accountants customarily rely on statements to casual business acquaintances when calculating net worth.United States v. Scrima, 819 F.2d 996, 1002 (11th Cir. 1987). "Implicit in [Rule 703] is the court's [obligation] to make a preliminary determination pursuant to Rule 104(a) whether the particular underlying data is of a kind that is reasonably relied upon by experts in the particular field in reaching conclusions." Head v. Lithonia Corp., 881 F.2d 941, 944 (10th Cir. 1989). Plaintiffs point to no evidence in the summary judgment record in which Weiland, Ethington, or any other qualified expert has laid this foundation. Their contention that criminal defense lawyers reasonably rely on statements from prosecuting authorities to determine the true origin of an indictment is simply an assertion in a brief, without support in the record. The court holds that plaintiffs have failed, with respect to the statements attributed to Bradford, to establish that his hearsay statements are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. The court therefore sustains Venable's hearsay objection and grants its motion to strike. Because plaintiffs have failed to demonstrate that the opinions of Weiland and Ethington can be based on the hearsay statements of Bradford, the court concludes that their expert opinions are conclusory and are insufficient to enable plaintiffs to withstand summary judgment.
Conclusory assertions, made without any citation to evidence, are insufficient to withstand summary judgment. See, e.g., Ramsey v. Henderson, 286 F.3d 264, 269 (5th Cir. 2002). The court need not "comb the record" for an indication that the predicate has been laid for admitting Bradford's hearsay statements.
b
Assuming that Pedigo's opinion is comprehensible, see supra note 14, it is even more conclusory than are the opinions of Weiland and Ethington. In the few answers that plaintiffs cite, Pedigo does not adequately explain the grounds for his opinion or his reasoning. The court concludes that his opinion is insufficient to permit plaintiffs to withstand summary judgment.
F
The court holds that plaintiffs have failed to raise a genuine issue of material fact concerning the essential element of their malicious prosecution claim that Venable procured the criminal prosecutions of Dr. Dai, Anozie, Petty, and Delgado-Brown. Their failure to adduce proof as to this ineluctable element renders all other facts immaterial. See Celotex Corp., 477 U.S. at 323. Likewise, they have failed to raise a genuine issue of material fact concerning the probable cause element of McQueen's claim. Accordingly, plaintiffs' cause of action for malicious prosecution is dismissed with prejudice.
III
Venable moves for summary judgment dismissing plaintiffs' actions for fraud, defamation, and civil conspiracy on the ground that the true nature of each is a claim for malicious prosecution. Plaintiffs respond that their other claims are independent and can coexist with one for malicious prosecution.
Venable also moves to dismiss these claims on the merits. The court need not address these arguments.
A
Texas holds that a malicious prosecution claim cannot be converted "into another cause of action at the convenient labeling of the parties." Delese v. Albertson's Inc., 83 S.W.3d 827, 830 (Tex.App. 2002, no pet.) (alleging fraud and civil conspiracy). "The true nature of a lawsuit depends on the facts alleged in the petition, the rights asserted and the relief sought, not on the terms used to describe the cause of action." Id. This rule largely rests on Texas' attempt to balance the competing interests at play when a person reports the criminal conduct of another. The Texas Supreme Court explained these interests in Browning-Ferris:
It is important that every citizen should be protected against malicious prosecutions, and it is equally important that crimes should be punished, in order that the law-abiding citizen may be secure in life, liberty, and property. To make the citizen liable to be mulcted in damages for an honest discharge of duty is to give immunity to crime, and to weaken the restraining power of the criminal law, thereby endangering the security of law-abiding people. The Restatement (Second) of Torts describes these competing interests similarly: The first is the interest of society in the efficient enforcement of the criminal law, which requires that private persons who aid in the enforcement of the law should be given an effective protection against the prejudice that is likely to arise from the termination of the prosecution in favor of the accused. The second is the interest that the individual citizen has in being protected against unjustifiable and oppressive litigation of criminal charges, which not only involve pecuniary loss but also distress and loss of reputation. These interests are balanced by carefully defining the elements of an action for malicious prosecution, and the balance is maintained by strictly adhering to these elements.Browning-Ferris, 881 S.W.2d at 290-91 (quoting Sebastian v. Cheney, 25 S.W. 691, 694 (Tex. 1894); Restatement (Second) of Torts ch. 29, topic 6, intro. note, at 405 (1977)).
In Kale v. Palmer, 791 S.W.2d 628 (Tex.App. 1990, writ denied), the court held, in a civil malicious prosecution context, that a claim that someone had interjected a fabricated theory to facilitate recovery was in reality one for malicious prosecution — making a person subject to the legal process to his detriment. Id. at 632. Although the plaintiffs had alleged fraud and civil conspiracy, Kale held that their claim was for malicious prosecution, "regardless of other words of phrases used in [their] pleadings in an effort to make it otherwise." Id.
In Smith v. Sneed, 938 S.W.2d 181 (Tex.App. 1997, no writ), and Wal-Mart Stores, Inc. v. Medina, 814 S.W.2d 71 (Tex.App. 1991, writ denied), the courts also sought to maintain the delicate balance preserved in the essential elements of malicious prosecution. Smith and Wal-Mart involved negligence claims and noted that a duty to refrain from alleging criminal activity does not exist apart from malicious prosecution. Smith, 938 S.W.2d at 185; Wal-Mart, 814 S.W.2d at 74. This conclusion from Wal-Mart is instructive.
The gist of [plaintiff's] case was clearly to seek recovery for injuries caused by the prosecution. The evidence showed that [plaintiff's] damages were caused by Wal-Mart's disclosure of this information to the police and the subsequent prosecution. . . . These damages clearly fall within the scope of the tort of malicious prosecution. In light of public policy considerations and the law of malicious prosecution as described earlier, it would be improper for us to apply principles of negligence here.Wal-Mart, 814 S.W.2d at 74; accord ITT Consumer Fin. Corp. v. Tovar 932 S.W.2d 147, 155 (Tex.App. 1996, writ denied) ("In the instant case, as with [ Wal-Mart], [plaintiff] brought suit to recover for injuries caused by his prosecution. Indeed, were there no prosecution of [plaintiff], we would not be hearing this appeal.").
Smith also noted that defamation may impose a duty apart from malicious prosecution. This is not inconsistent with this court's conclusion that plaintiffs' defamation case is in reality one for malicious prosecution because, here, plaintiffs allege that their damages flow from being indicted.
This statement is arguably dictum. Although Wal-Mart noted that "it would be improper for us to apply principles of negligence here[,]" the court held that "there is no evidence that [the defendant] breached a duty of care to [plaintiff]." Wal-Mart, 814 S.W.2d at 74. The court specifically noted that "[b]ecause [plaintiff] failed to prove a negligence case . . . we need not decide whether a cause of action for negligence . . . is barred in all cases where the elements of malicious prosecution are established." Id. at 74 n. 5.
In Mitchell v. State Farm Mutual Automobile Insurance Co., 1997 WL 810034 (N.D. Tex. Dec. 22, 1997) (Boyle, J.), the defendant challenged the plaintiff's attempt to assert "multiple legal theories in an effort to circumvent the stringent requirements necessary . . . to prevail on a malicious prosecution action." Id. at *4. It sought summary judgment dismissing claims for negligence, intentional infliction of emotional distress, misrepresentation, and promissory estoppel if the malicious prosecution claim failed. The court agreed, noting that Texas courts "frown on attempts to fracture one cause of action into three or four." Id. at *5. There, as here, all the causes of action arose from the prosecution of the prior suit. Id.
B
Plaintiffs maintain that the cases on which Venable relies are distinguishable because the plaintiffs in those cases could not establish malicious prosecution. They also contend that the Wal-Mart court left open the possibility of multiple causes of action and that there are several cases in which plaintiffs have succeeded in recovering for malicious prosecution and on other claims.Plaintiffs' reliance on Wal-Mart's statement that it "need not decide whether a cause of action for negligence, or negligent infliction of emotional distress, is barred in all cases where the elements of malicious prosecution are established" is misplaced. Wal-Mart, 814 S.W.2d at 74 n. 5. The court did not suggest that other causes of action would still be available if, as here, the plaintiff claimed that her damages were the same under each theory asserted.
Assuming that Wal-Mart left anything open, it declined to decide whether other claims can exist if "malicious prosecution [is] established." Wal-Mart, 814 S.W.2d at 74 n. 5. In this case, plaintiffs have not established malicious prosecution.
Plaintiffs also cite other decisions that they contend support the right to recover on multiple theories. See Ps. Br. at 32 (citing San Antonio Credit Union v. O'Connor, 115 S.W.3d 82 (Tex App. 2003, pet. denied); Kroger Tex. Ltd. P'ship v. Suberu, 113 S.W.3d 588 (Tex.App. 2003, pet. filed); Carr v. Mobile Video Tapes, Inc., 893 S.W.2d 613 (Tex.App. 1994, no writ); and Marathon Oil Co. v. Salazar, 682 S.W.2d 624 (Tex.App. 1984, writ ref'd n.r.e.)). These cases are unavailing. Texas courts of appeals address points of error that are properly raised and briefed. See, e.g., Naydan v. Naydan, 800 S.W.2d 637, 642 (Tex.App. 1990, no writ) ("Points of error not separately briefed are waived. A point of error that is not briefed fails to meet the minimum requirements of Rule 418, Texas Rules of Civil Procedure [now Tex. R. App. P. 74(f)], and the appellate court considers such a point to be waived. . . . Indeed, the court of appeals may not reverse a trial court's judgment in the absence of properly assigned error." (citations omitted)). There is no indication in these cases that the appellants advanced the argument that Venable now makes or that the courts expressly decided the question whether a plaintiff can recover under another theory the same damages that would be recoverable for malicious prosecution. They do not therefore support plaintiffs' contention that they can recover on other theories even if they cannot recover for malicious prosecution.
Kroger and San Antonio Credit Union are also inapposite because in those cases, like Wal-Mart, the plaintiff prevailed on a malicious prosecution claim. Moreover, San Antonio Credit Union does not support the premise that a plaintiff can rely on another theory for the same damages claimed under malicious prosecution. The case was remanded because the damages question was submitted in broad form and did not identify the individual claims for which they were awarded. See San Antonio Credit Union, 115 S.W.3d at 102, 108. The court did not address whether the damages all flowed from the malicious prosecution claim, and it does not appear that the parties did so. Had the argument been raised, and had the damages been the same for each cause of action, a remand would have been unnecessary because a finding for the plaintiff on any of the three causes of action would have been sufficient to uphold the damages award.
Plaintiffs also cite Marathon Oil and Carr for the proposition that, "where the courts have denied plaintiffs damages under multiple theories of recovery, those decisions have been based upon the merits of the respective claims and not because multiple theories or recovery were advanced." Ps. Br. at 32. The verdict in Marathon Oil awarded damages based on malicious prosecution, libel, and slander. The court of appeals reversed and remanded because the trial court submitted an erroneous definition of probable cause. It had no reason to decide whether actions independent of an unmerited malicious prosecution claim, but based on the same facts, could survive. See Marathon Oil, 682 S.W.2d at 629. Carr involved two separate publications of allegedly false statements. See Carr, 893 S.W.2d at 616. Not only had a defendant given allegedly false statements to the police, it had also contacted a television station and contributed to a news story, meaning that the other causes of action — defamation, false light, intentional and negligent infliction of emotional distress, invasion of privacy, and trespass — were not based only on the facts that supported the malicious prosecution claim and that the damages had multiple sources.
The court has located on its own a case that neither side cites but, because of its similarities to the present case, the court will address and distinguish. In Perez v. Kirk Carrigan, 822 S.W.2d 261 (Tex.App. 1991, writ denied), a truck driver, Ruben Perez ("Perez"), sued, inter alia, a law firm based on its conduct following an accident that led to his indictment for involuntary manslaughter. His employer retained Kirk Carrigan to represent it. The attorneys took Perez's statement. He alleged that they told him they were his and his employer's lawyers and that anything he told them would be kept confidential. On this understanding, he gave them a sworn statement concerning the accident. Id. at 263. The attorneys stated that they had turned Perez's statement over to the District Attorney to comply with a request of that office and under threat of subpoena. Based in part on the statement, Perez was indicted for involuntary manslaughter. Id. at 264.
Perez sued Kirk Carrigan for breach of fiduciary duty, negligent and intentional infliction of emotional distress, violation of the Texas Deceptive Trade Practices-Consumer Protection Act, and conspiracy to violate the Texas Insurance Code. He alleged that the law firm had caused him to suffer public humiliation and emotional distress by turning over his supposedly-confidential statement to the District Attorney. He also asserted that the law firm, his employer, and an insurance company had engaged in a plan to shift the blame to him. Id.
Kirk Carrigan moved for summary judgment on several grounds, one of which was that Perez's claims, including those for breach of fiduciary duty and negligent and intentional infliction of emotional distress, were in reality claims for malicious prosecution, and that he should not be able to label his causes of action as something else to avoid having to prove all the elements of malicious prosecution. Id. at 267. The court of appeals disagreed. It distinguished two other cases, including its prior decision in Wal-Mart, reasoning
that the wrong alleged is not, and cannot be judicially characterized as, the bringing or encouragement of a groundless indictment or prosecution. Rather, the wrong alleged is that a supposedly confidential statement was wrongfully revealed in breach of the attorneys' fiduciary duty, without regard to the truth of the statement or probable cause to support the resulting indictment. The process of criminal indictment was merely the mechanism by which Perez was thus exposed to public humiliation and embarrassment resulting from the attorneys' breach of fiduciary duty to keep the statement confidential as promised.Id. at 267-68. In other words, Perez had alleged that he suffered public humiliation and emotional distress from the turning over of the confidential statement to the District Attorney. Id. at 264. The process of criminal indictment was merely the mechanism by which he was exposed to the public humiliation and embarrassment of which he complained. Id. at 268.
The dispositive reasoning of Perez is thus distinguishable from the instant case. The court did not specifically address whether the damages Perez sought for his other claims were the same as for malicious prosecution. Instead, it examined the nature of a malicious prosecution claim in relation to the conduct of the law firm that formed the basis for the suit. Perez did not allege as wrongful the bringing or encouraging of a groundless indictment or prosecution. He asserted that Kirk Carrigan wrongfully revealed his confidential statement. Id. at 267-68. The criminal indictment was merely the means by which he was exposed to public humiliation and embarrassment. Id. at 268. In the present case, however, Venable does rely on the coextensive nature of the damages that plaintiffs seek for each claim, and plaintiffs have testified that they were damaged because they were indicted. In other words, this case is like Wal-Mart in that plaintiffs "clearly . . . seek recovery for injuries caused by the prosecution." Wal-Mart, 814 S.W.2d at 74.
C
The court holds that plaintiffs cannot recover for fraud, defamation, and civil conspiracy because the damages they seek are identical on each theory and all flow from having been indicted, and their malicious prosecution claim has been dismissed on the merits. Venable has pointed to summary judgment evidence that shows that each plaintiff's claim for damages is based on having been indicted. See D. Br. at 29-30 (citing D. App. 92 (Dr. Dai), 69 (McQueen), 58 (Delgado-Brown), 76 (Petty), 113 (Anozie)). Plaintiffs do not dispute this. See Ps. Br. at 31-33. Their claims for fraud, defamation, and civil conspiracy are in reality actions for malicious prosecution and, because they cannot recover for malicious prosecution, must also be dismissed.* * *
Venable has demonstrated that plaintiffs cannot recover for malicious prosecution. Their claims for fraud, defamation, and civil conspiracy are barred because they are in reality actions for malicious prosecution. Accordingly, Venable's motion for summary judgment is granted, and this action is dismissed with prejudice.
SO ORDERED.