Southeast Texas Record

Thursday, April 9, 2020

Attorney Mark Lanier argues judge abused discretion by not sending malpractice suit against him to arbitration

Attorneys & Judges

By David Yates | Mar 10, 2020

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Lanier

HOUSTON – After months of inactivity, appellate briefs have finally been filed in a legal malpractice lawsuit against renowned attorney Mark Lanier – a suit alleging he dropped the ball on litigating a client’s BP oil spill claim.

Last May, Sheri Dorgan, who was diagnosed with benzene toxicity following the Deepwater Horizon well blowout, filed suit against Lanier, claiming the attorney had “more important” things to do instead of handling her claim against BP.

Dorgan previously told The Record that she does not expect to love long enough to see a verdict in her case. “I am sure Mark Lanier knew that from the beginning,” she said.

Lanier responded to the lawsuit against him by asserting that Dorgan’s claims “must be resolved by binding arbitration” because of an agreement she signed when hiring the firm to represent her.

However, a trial court ruled against him on Oct. 14 and an appeal immediately ensued.

Now, nearly a year after the suit was filed, appellate briefs have been filed, in which Lanier argues the trial court abused its discretion by not enforcing the arbitration provision of the agreement.  

Before actually filing his brief on Feb. 14, Lanier, on several occasions, filed extension of time motions, court records show.

In his brief, Lanier argues the arbitration agreement Dorgan signed was not superseded when Charles Herd, a former Lanier Law Firm attorney, took over her case. 

While he was still with the firm, Herd handled Dorgan’s BP claim. When Herd left to start his own firm, Lanier made a request to Dorgan, asking that the two firms work on the case together.

“Dorgan agreed, but she ultimately entered into a separate contract directly with the Herd law firm, which ‘replaced the one that [Dorgan] signed with the Lanier firm,’” states Dorgan’s appellate brief, filed on March 5. “The Herd Agreement did not contain an arbitration provision: it stated that ‘suit may be filed by either party in the state or federal courts in Harris County, Texas.’

“Because the Herd Agreement superseded the Lanier Agreement, Dorgan considered the Lanier Agreement revoked, along with any agreement to arbitrate.”

Herd also has an appellate brief on file, in which he argues that the “The Herd Agreement is limited to the Herd Defendants representing Dorgan related to the recent death of her husband, and is not related in any manner to her prior claim covered by the Lanier Agreement.”

Both Lanier and Herd are also challenging whether the trial court acted within its discretion by determining that enforcement of the arbitration provision would be unconscionably cost-prohibitive for Dorgan.

The trial court determined that Dorgan’s financial state prevented her from effectively vindicating her rights through arbitration, court records show.

Court records show Dorgan’s benzene exposure caused blood blisters on her arms, legs and side, progressive respiratory issues and chemical pneumonia. Because of her injuries, she has been unable to work since May 2010.

Dorgan is accusing the attorneys of negligence and gross negligence and seeks to recover actual and exemplary damages, plus damages for emotional distress.

Houston attorney Lance Kassab represents her.

Lanier is represented by Aaron Pool, attorney for the Houston law firm Donato, Minx, Brown & Pool.

Case No. 2019-31827

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Organizations in this Story

Herd Law FirmLANIER LAW FIRM