In a case arising from a rear-end collision involving a tractor-trailer and a passenger vehicle, the Houston Court of Appeals [14th] affirmed a trial court judgment on a jury verdict awarding the plaintiffs more $12 million in damages for physical pain and mental anguish.
Roberto Alonzo and New Prime, Inc. v. Christine John and Christopher Lewis (No. 14-20-00148-CV) ensued from an accident in which Alonzo rear-ended John on I-45, pushing her into another vehicle. John hit her head, and an MRI performed at the hospital showed bulging and herniated discs in her spine. Shortly after the accident, she began feeling intense pain in her face and jaw, which was eventually diagnosed as trigeminal neuralgia, a rare condition her physicians attributed to nerve damage from the accident. Though doctors tried to treat her pain with medications, they were not effective, and more invasive procedures held out little hope for significant improvement. The defendants stipulated to liability but contested the damages. Based on John’s testimony, the jury awarded $2.5 million for past physical pain, $4.7 million for future physical pain, $1.7 million for past mental anguish, and $3.1 million for future mental anguish. John did not seek damages for future medical expenses or lost wages. Lewis, the passenger in the vehicle, sustained back and neck injuries and was awarded $150,000 in past physical pain and $300,000 in future mental anguish. The trial court overruled defendants’ motion for new trial.
The court of appeals affirmed the verdict against legal sufficiency, improper voir dire, and improper jury argument challenges. The court likewise rejected the defendants’ argument that the cumulative award of 24:1 noneconomic to economic damages ratio was excessive. As the court noted, noneconomic damages are inherently subjective and require a case-by-case review to determine whether legally sufficient evidence supported the verdict. The court of appeals likewise premised its analysis on the high level of deference an appellate court will pay to the jury’s decision, since the jury is in the best position to evaluate the credibility of the evidence. “The ultimate test for legal sufficiency,” the court stated, “is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.”
A finding of compensability for mental anguish requires a “substantial disruption in the daily routine or a high degree of mental pain and distress” (citation omitted). Mental anguish damages “cannot be awarded without either (1) direct evidence of the nature, duration, or severity of the plaintiff’s anguish, thus establishing a substantial disruption of the plaintiff’s daily routine, or (2) other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger” (citing Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.3d 607, 614 (Tex. 1996)). Damages for future mental anguish may be recovered if there is a “reasonable probability that the plaintiff will suffer compensable mental anguish in the future” (citing Saenz).
We recite the case law here partly to point how few guidelines really exist to guide appellate review of mental anguish damages, particularly when they are substantially disproportionate to the economic damages, as they are in this case. The jury’s verdict rested on plaintiff’s testimony, together with medical evidence about the nature and treatments for trigemenial neuralgia, and it is not entirely clear from the court’s opinion where the line should be drawn between evidence of physical pain and evidence of mental anguish. The defendants argued that the jury had conflated the two separate measures of damages, but the court deferred to the jury on the basis of “John’s testimony about her present condition and the doctors’ testimony about the lack of effective treatment and potential worsening of the condition over time,” which showed “with reasonable probability that she will suffer compensable mental anguish in the future.” The evidence on “substantial disruption of the plaintiff’s daily routine” came down to changes in the plaintiff’s social activities and relations with her husband caused by periodic bouts of facial pain. While the pain did not appear to interfere with the plaintiff’s career, the court concluded that the evidence of home life effects was enough. With respect to the plaintiff’s husband, the evidence of substantial disruption seemed much weaker and focused on his reactions to her pain, rather than his own. Indeed, Justice Wise dissented to this part of the award on legal sufficiency grounds.
Where the opinion seems really problematic to us is in its discussion of proportionality and its waving off of improper conduct by the plaintiff’s lawyer. With regard to the 24:1 ratio, the court rightly pointed out that no precedent exists for using a ratio analysis for noneconomic damages, unlike in SCOTX’s injunction again excessive punitive damages awards in defamation cases. Texas precedent exists that upheld a 58:1 ratio, in fact. Defendants pointed out a case out of the Tyler Court of Appeals that reversed a jury verdict partly on the basis of an excessive ratio, FTS Int’l Servs. LLC v. Patterson No. 12-19-00040-CV, 2020 WL 5047913, at *13-26 (Tex. App.—Tyler Aug. 26, 2020, pet. filed) but distinguished it because “evidence of pain and mental anguish was far weaker than here; and improper arguments also undermined the verdict.” While that might be the case (and SCOTX has the chance to weigh in on this one), mental anguish damages are so subjective and standards for appellate review so general that nobody really knows where the boundaries are.
This lack of clarity encourages, at least to some extent, gamesmanship designed to predispose the jury to think in the plaintiff’s terms with regard to mental anguish damages. In this case, the plaintiff’s lawyer did four questionable things: (1) suggested to the veniremen in voir dire that he would seek $10-12 million in noneconomic damages and asked if anyone had an objection to awarding that much (several did, and all were struck for cause); (2) brought up a “study,” also in voir dire, that purported to show that women and African-Americans tend to get less for the same injuries; (3) alluded to attorney’s fees in voir dire; and (4) in closing argument suggested that the defendants would not pay the verdict. The court of appeals rejected the defendants’ argument that, taken cumulatively, these comments sufficiently tainted the jury to require a new trial. While we see that there is a fine line between hyperbole and “inflammatory and prejudicial conduct,” in this case at least it is hard not to discern a connection between the specific improper conduct that occurred here and the disproportionality of the noneconomic damages award.
We do not mean to be taken as criticizing the court of appeals for its decision. This looks like a pretty close case, and we have certainly seen more egregious attorney misconduct than apparently happened here. But we continue to be concerned about the vague and amorphous standards of review for mental anguish damages and the clear link between the plaintiff’s trial tactics and jury awards with high ratios of noneconomic to economic damages. Perhaps SCOTX, given the right case, might look at whether some kind of proportionality analysis could be part of the standard of review. While trucking cases seem to be the flashpoint for these issues right now, they are once again becoming part of the civil justice landscape, as they were so prominently in the 1980s.