Justice Emily Miskel
In a concurring opinion in a case involving evidence (or lack thereof) of pain and suffering damages, Dallas Court of Appeals Justice Emily Miskel reminded the majority that a plaintiff’s conclusory statements about his own allegations of nental anguish damages do not constitute evidence of those damages.
Isaiah Ramirez v. BAM! Pizza Management, Inc. d/b/a Dallas Domino’s Co. (No. 05-23-00311-CV; February 22, 2024) arose from an accident in which a Domino’s employee fell off a bicycle while delivering pizzas. The employee sued Domino’s for negligence, alleging that the bicycle’s gears locked up and threw him off, resulting in a fractured left hand. The employee sought past and future medical expenses, as well as past and future physical impairment, mental anguish, property damage, disfigurement, and past and future lost wages. When Domino’s failed to answer the lawsuit, Plaintiff moved for a default judgment. He sought about $38,000 in past medical expenses and another $60,000 for past pain and suffering and impairment. The trial court entered judgment for the past medicals but not the soft damages. Plaintiff filed a motion to set aside the default judgment or, in the alternative, a motion for new trial or reconsideration. The trial court denied the motion. Plaintiff appealed.
The court of appeals affirmed. In an opinion authored by Justice Kennedy, the court noted that “[t]he process of awarding damages for amorphous, discretionary injuries such as pain and suffering is inherently difficult because the alleged injury is subjective. [citations omitted]. The presence or absence of pain, either physical or mental, is an inherently subjective question because the process is not readily susceptible to objective analysis. [citations omitted]. Accordingly, the trier of fact is given broad discretion when determining such damages. [citations omitted].” Further observing that the “fact-finder is the exclusive judge of the credibility of the witnesses and the weight to give their testimony,” the court turned to Plaintiff’s evidence. This consisted merely of two statements in his own affidavit in which he averred to having suffered pain from the collision and to be unable to “do things in [his] personal life” that he could do prior to the accident. Based on this record, the court concluded that “the trial judge may have disbelieved [Plaintiff’s] affidavit testimony and it was within his role as fact-finder to do so and to award no damages to [Plaintiff for his pain and suffering or physical impairment” [citations omitted].
Justice Miskel concurred in the judgment but disagreed with how the court got there. She would have held that since Plaintiff’s “only evidence supporting his request for damages for pain and suffering and physical impairment consisted of two conclusory statements in his affidavit,” that was the same as no evidence at all. Presented with only Plaintiff’s own word for it, the court should have rendered judgment on that basis rather than proceeding to the weight and credibility of the testimony. This conclusion, Justice Miskel argued, was dictated by the fact that “to receive damages for physical impairment, the injured party must prove that the effort of his physical impairment extends beyond any impedimen to his earning incapacity and beyond any pain and suffering, to the extent that it produces a separate and distinct loss that is substantial and for which he should be compensated” [citation omitted]. Plaintiff instead offered nothing but conclusory allegations.
Justice Miskel’s concurrence, in our view, is a correct reading of the law but, even more importantly, emphasizes the vague and confusing jurisprudence that has agglomerated around noneconomic damages for decades. In the absence of anything objective to go by, juries and judges basically follow their noses. Clearly, as Justice Miskel says, taking a plaintiff’s word for it doesn’t amount to anything, but suppose in this case plaintiff had testified (without corroboration) that he was a left-handed pickleball champion who couldn’t play anymore. That seems to be evidence of something, but if the trial court had believed it and awarded $1 million for past and future mental anguish based on the loss of plaintiff’s favorite hobby, would the court of appeals have felt compelled to affirm? The point is, what the devil constitutes “mental anguish” and how the devil can the plaintiff or anyone else put a price on it?
