1. Hart, Quan, and Klein, P.C. | Attorneys at Law
3002 S. Congress Avenue, 12th Floor
Austin, Texas 78704
Telephone: (512)555-1234
January 17th, 2017
Maribel R. Jimenez Francine Maxwell
maribel.jimenez@jjj-law.com francine.maxwell@bkymllc.com
Jones, Jimenez, and Jacobs, LLC Bearing, John, and Maxwell, LLC
993 Nueces, Ste. #430 9300 Arboretum, Ste. #540
Austin, Texas 78702 Austin, Texas 78759
re: Jenkins v. Everlee, et. Al., Travis County District Court No. C-1-CV-16-9999
Date of Mediation: January 23, 2017
Dear Ms. Maxwell,
Thank you for agreeing to meet on this case on behalf of Teresa Everlee and the
Law Offices of Teresa Everlee. Please accept this letter as the Defendants attorney’s
summary of the case. The Plaintiffs attorney, Maribel Jimenez, and our clients want to
achieve a successful outcome in this matter.
Introduction:
Plaintiffs Sam and Rhonda Jenkins are suing Defendants Teresa Everlee and the
Law Offices of Teresa Everlee for legal malpractice in an underlying case where an
automobile accident occurred in August 2013. Ms. Everlee made a clerical error and
failed to make the statute of limitations of the underlying case; this was stipulated and
accepted by the Plaintiffs. The parties have significant differences on the damages the
Plaintiff’s should be rewarded. In this mediation you will find a summation of the
facts, claims, contested legal issues, and the rationale behind our settlement value.
Factual Background:
Sam Jenkins is a 49-year-old self-employed HVAC contractor who makes $126,000
a year. He has a bachelor’s degree from Texas A&M and has been a contractor for 23
years. Rhonda Jenkins, his wife, works as an unpaid secretary at his HVAC company.
Mr. Jenkins was involved in an automobile wreck on Friday, August 16th, 2013. He was
driving on his way home when Thomas Eiserman made an improper U-turn into an
intersection. Police deemed Eiserman at fault for the wreck, but he had auto insurance

2. through State Farm of $100,000 per person or $300,000 per incident. Mr. Jenkins
refused medical attention at the scene but went to work the subsequent day. He took
ibuprofen and used his hot tub to avoid spending “hours and hours in the ER.”
On Thursday, August 22nd, Sam Jenkins saw Diane Brooks, a nurse for Dr. Nancy
Wong, for neck, back, shoulder pain, and pain down his left leg. Records subpoenaed
show that Sam Jenkins had a 5-mm herniated disc at the L4-5 in the lumbar spine. At
this time, Brooks recommend that he go to physical therapy and take the prescribed
muscle relaxant Flexiril. He prolonged making an appointment, but took ibuprofen,
Flexiril, and used his hot tub daily. On September 23rd, 2013, Teresa Everlee and the
Law Office of Teresa Everlee were hired by Mr. Jenkins for a personal injury claim and
by Mrs. Jenkins for a loss of consortium claim. Everlee, a competent lawyer, informed
Mr. Jenkins of mitigating damages of his injury and then he sought physical therapy.
On October 1st, 2013, Mr. Jenkins saw Raul Martinez, a physical therapist, who
works at Martinez Rehabilitation. He treated Mr. Jenkins for pain in the shoulders,
neck, and lumbar (flexion, extension, lateral flexion, and rotation). Also, Martinez
made note of radiating leg pain and a loss of sleep due to pain. The initial prognosis of
the normal active range of motion showed limited mobility in the following areas: 75%
in both shoulders, 67% in the neck, and 67% in the lumbar. Mr. Jenkins was treated
twice a week from October 1st, 2013 through September 2nd, 2014 for a total of 88
visits. After his discharge by Dr. Wong and Martinez in September 2014, a “guarded”
final prognosis was given that showed an increase in the normal active range of motion
in the following areas: 85% in both shoulders, 80% in the neck, and 85% in the
lumbar. Mr. Jenkins claims he still experienced near-daily pain despite doing his
exercises and stretches; he continued taking Ibuprofen and his hot tub 3-4 days a week.
Currently, he claims to still use ibuprofen and his hot tub 1-2 times a week for pain.
Mr. Jenkins claims to still have “daily or near daily” neck back and shoulder pain as
a result of the 2013 wreck. He claims to be unable to work in his garden and home
giving rise to $1,500 of landscaping services. Prior to the wreck, the Jenkins danced
once or twice a week; currently they dance one a month. Prior to the wreck, the
Jenkins attended three to four Texas A&M football games a season, but he claims that
he “hasn’t felt up to it”. The Jenkins physical intimacy, which Mr. Jenkins testified
before the wreck had been regular (2-3 times a week), the wreck decreased the
regularity of their physical intimacy (1-2 times a month for four months). Currently,
the Jenkins are intimate one to two times a week. He testified that he asked Martinez
“for advise on how couples deal with intimacy and back injury.” Mr. Jenkins claims to
feel embarrassed conversing about his intimacy. Mr. Jenkins testified that he suffered
sleep loss due to the 2013 wreck. Roughly 1-3 nights per week, he claims to have had
sleep loss due to his pain, but he testifies he took sleeping pills and tea for this issue.

3. The 2013 wreck was not Sam Jenkins’ first automobile accident. Mr. Jenkins
admitted to a single car wreck on December 13th, 2006 wherein which he sustained
personal injury in the same location on his body. He complained of neck and back pain
but refused an ambulance. Mr. Jenkins stated that his “active lifestyle kept [him] going
without having to see doctors for pain” so he took ibuprofen and used his hot tub.
Subpoenaed medical records from orthopedist James Fehler, MD, showed an MRI
depicting a 2mm herniated disc at the L4-5 in Mr. Jenkins’ lumbar spine; this MRI was
taken five days after the wreck. This is the exact same location of injury as in the
underlying crash in 2013. Fehler’s opinion was that the car wreck could have made his
condition symptomatic; it may have been present throughout his years of HVAC work.
Mr. Jenkins went to physical therapy with Raul Martinez at Martinez Rehabilitation
after Fehler’s diagnosis—the same provider from the 2013 wreck. Martinez’s initial
prognosis focused on the same areas of motion: both shoulders, neck, and lumbar
(flexion, extension, lateral flexion, and rotation). The initial diagnosis of the ranges of
motion showed limited mobility in the following areas: 90% in both shoulders, 80% in
the neck, and 85% in the lumbar. From December 2006 to June 2007, Jenkins had 48
sessions of physical therapy, about twice a week. Martinez discharged Mr. Jenkins from
care after June 22, 2007. He continued to use ibuprofen 3-4 times a week and hot tub
4-5 times a week. He did light exercises and stretches daily. The final diagnosis of the
ranges of motion showed improvement: 95% in both shoulders, 90% in the neck, and
90% in the lumbar. Although Mr. Jenkins had a good final prognosis, all his injuries
from the 2006 wreck had gotten better but the 2013 wreck “wiped him out some.” He
conceded that, he was “several years older” than the at the first time of care and
several more years of HVAC work was “probably taking a toll” on his body.
Claims and Defenses:
Mr. Jenkins has made claims for general and special damages. His general damages
include: loss of earnings ($8,000), landscaping services ($1,500), pharmacy expenses
($150), Dr. Nancy Wong’s medical services ($1,200), MRI’s provided by ATX ($1,200),
physical therapy at Martinez Rehabilitation ($11,350). The general damages total to
$23,350. Mr. Jenkins’ special damages include mental anguish damages and future loss
of earnings. He states that the mental anguish claim resulted from a loss in sleep, a
decline in the physical intimacy of his relationship, the decline in his ability to go
dance, and the inability to attend to attend A&M football games or do household
chores. Additionally, Mrs. Jenkins has a special damage claim for loss of consortium,
which is parasitic upon the underlying severity of Mr. Jenkins’ injuries. We expect at
trial that the Plaintiffs will focus on the evidence pertaining to the underlying wreck

4. and the current challenges Mr. Jenkins faces in his day to day life. I will emphasize Mr.
Jenkins’ preexisting injuries, his age and line of work.
Given this, the defense hired expert witness Avery McMasters, an orthopedist that
graduated from Tulane University in 1990, who practices in Austin. McMasters argues
that the soft-tissue injuries to the shoulders, neck, and back are consistent with a
normal progression of function in a man of Mr. Jenkins’ age and line of work.
McMasters states that it is difficult to medically establish if the 2013 car wreck was the
sole cause of nerve impingement in the lumbar spine. As well, his complaint of
radiating leg pain, as the record, was an intermittent issue. The soft-tissue injuries to
the shoulders, neck, and pain—whether from preexisting injury, the underlying car
wreck, his age or his line of work—could not have been improved upon by more than
20 physical therapy sessions. These additional therapy sessions would not have reduced
injury from the wreck nor strengthened his muscles. According to McMasters’ report,
an estimated value of $3,000 of physical therapy was only deemed necessary.
Contested Legal Issues:
The Plaintiffs’ attorney Maribel Jimenez retained expert Tyson Carlyle, an attorney
from Austin, Texas with 15 years of experience. Carlyle stated that the personal injury
case-within-a-case is worth between $58,000 and $68,000. This range includes $8,000
for the loss of earnings, 100% of the medical charges and additional household
expenses, and compensation for general and special damages. This reasons for this
estimation are based on the 100% liability of Eiserman, Mr. Jenkins’ generally good
health after his treatment for both accidents in 2006 and 2013, and “Mr. Jenkins’
course of treatment, his age, his medical records, and all the testimony.” Also, Carlyle
testified that Mrs. Jenkins’ loss of consortium claim is worth $2,500 to $4,000.
Although he finds cases with uninjured spouses with claims of loss of consortium
difficult to value, he testifies that “they still have some value.”
Given Tyson Carlyle’s statement, the defense asserts that Carlyle’s testimony as an
expert witness is not admissible because it fails to establish adequate evaluation of his
opinion. Prior case law gives rationale for not allowing his testimony to be used in
court. In Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998), the
plaintiffs hired a qualified expert, Huston, to testify in their product liability case.
Huston, although highly detailing the sustained injuries, fibers, and markings on Jamie
Gammill’s body, supported only one conclusion and did not provide an explanation
for highlighted evidence. Id. at 727-28. In Gammill, the expert’s testimony was ruled to
be inadequate on the basis of “subjective belief or unsupported evidence.” Id. Similarly,
Tyson Carlyle, hired by Plaintiffs Mr. and Mrs. Jenkins, is also qualified to testify in the
stipulated legal malpractice claim. Carlyle provides a range of values for both Mr. and

5. Mrs. Jenkins’ claims, but Carlyle fails to establish how his “training, education,
experience, and professional judgement” lead to the valuations. Given this, Carlyle’s
subjective belief does not attempt to provide nor omit alternative explanations for Mr.
Jenkins’ injuries and therefore his testimony is purely speculative.
Also, in Elizondo v. Krist, 415 S.W.3d 259 (Tex. 2013), a worker with similar injuries
to Mr. Jenkins sued his former attorneys because he believed he received an inadequate
settlement. Like the plaintiff in Elizondo, Mr. Jenkins as well claims damages from a
legal malpractice matter. Although Gonzalez, the expert witness in Elizondo, was
qualified, he did not establish the connection between Plaintiffs wanted settlement
amount to his specific circumstance and injuries. Id. at 262-63. Gonzalez does not
compare this case to the “approximate 4000 claims” arising from the BP explosion. Id.
In our claim, Mr. Carlyle is a qualified witness, has not explained his valuation of this
case to the Plaintiffs’ specific injuries and circumstances. Unlike Elizondo, Carlyle
attempts to create a relationship between Plaintiff’s injuries and the Plaintiff’s wanted
settlement by referencing a case tried in Jefferson County, but this association is
dissimilar because of the plaintiff-friendly nature of the county. We assert that the
conclusory nature of Carlyle’s testimony to value the Jenkins’ claim may be
inadmissible in court.
Settlement Position and Rationale:
Based on testimony provided by Avery McMasters, instances immediately after
both the 2006 and 2013 wrecks where Mr. Jenkins did not mitigate his damages, and
his line of work and age, there is a high probability that the valuation Tyson Carlyle
suggested is not reasonable. We predict that $33,550 is a reasonable value for Mr.
Jenkins’ damages. Based on the direct correlation of the loss of consortium claim to
Mr. Jenkins’ injuries—which we have established are not worth Carlyle’s valuation—
we predict that Mrs. Jenkins’ damages to be worth $1,500.
We look forward to meeting with you.
Sincerely,
Christopher A. Frasquieri
Hart, Quan, & Klein, P.C. | Attorneys at Law
3002 S. Congress Avenue, 12th Floor | Austin, Texas 78704
(512) 555-1234 | christopher.frasquieri@hqklaw.com
Attorneys for Defendants
c.c. Teresa Everlee