Pierre Grosdidier in Texas Bar Journal: Why Plaintiffs’ Attorneys Should Start Early When Suing Providers of Custom-Designed Industrial Software

04/03/2019

A recent Texas appellate decision, Jacobs Field Servs. N.A., Inc. v. Willeford, illustrates the challenges that the state’s certificate of merit statute places on a plaintiff wanting to sue a professional services organization for allegedly defective custom-designed industrial software. Troy Willeford sued a refiner and three Jacobs entities, among others, for injuries he allegedly suffered after responding to an accident. The accident involved heavy equipment normally suspended vertically from a cable under tension. The cable lost tension during operations and severed Willeford’s co-worker’s feet when it suddenly snapped into place.

Willeford alleged that Jacobs negligently configured the programmable logic controllers, or PLCs, that controlled the equipment’s operation. Willeford filed a Chapter 150 certificate of merit with his petition, an affidavit by a qualified third-party professional who “holds the same professional license or registration as the defendant.” The certificate seeks to prevent frivolous suits against professionals by requiring that the affiant “set forth specifically for each theory of recovery … the negligence, if any, or other action, error, or omission of the licensed or registered professional…” The certificate’s author must be “knowledgeable” in the defendant’s practice area.

In his petition, Willeford alleged that Jacobs defectively designed, wired, installed, constructed, and programmed the PLCs. The certificate identified various shortcomings in the equipment and the procedures but did not specifically identify how the PLCs were incorrectly programmed. Its author, Gregg Perkin, declared that he was a registered professional mechanical engineer with expertise in process equipment but said nothing about his computer expertise.

Excerpted from the Texas Bar Journal. To read the full article, click here.

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