A controversial Dallas Court of Appeals opinion filed in late November 2020 has reached the merits briefing stage at the Texas Supreme Court. In addition to the very significant substantive law issue in the case—what standards must a trial court and jury follow in evaluating mental anguish damages in a wrongful death case—Gregory v. Chohan, 615 S.W.3d 277 (Tex. App.—Dallas, 2020, pet. pending)—has an eyebrow-raising procedural history that sheds additional light on the internal political machinations of the Dallas Court of Appeals.
The initial oral arguments in the case occurred in September 2019 before a three-judge panel that included Justice Schenk. Justice Schenk drafted an opinion representing the majority view of the panel that heard the arguments. In his concurring and dissenting opinion, Justice Schenk specifically alludes to this fact in concurring with eight of the nine parts of the eventual majority opinion that he previously drafted. Part VIII, however, which dealt with the standards governing the amount of mental anguish awards, was revised following an unusual en banc review of the panel’s opinion to reach a different conclusion. This review included additional briefing and oral arguments on the mental anguish damages issue. The en banc opinion, authored by Justice Reichek, upheld the jury’s award of $17 million in mental anguish damages, which, as discussed below, had dubious evidentiary support. What makes this unusual procedural history noteworthy is the extraordinary turnover of the Dallas Court of Appeals in the 2018 election. The original panel in the case consisted of three incumbents who were on the court prior to that election. The new court, which counted 8 new justices, voted to hear the case en banc and then split on party lines in the en banc opinion. It is reasonable to conclude that in this case at least, the dramatic change in the partisan composition of the court that occurred in the 2018 election had a direct impact on the decision in this case. (This is why judicial selection reform is so imperative, but don’t get us started.)
Obviously, SCOTX does not and should not determine whether to accept review based on the outcome of an election. Even if the new court of appeals had adopted Justice Schenk’s draft of Part VIII and remanded the case for a new trial, it may well have come back to the court of appeals in essentially the same posture, in which event we would be in exactly the same position as we are now. So, what is the issue, and why does this particular case foreground it in such stark and controversial terms?
The case arose from a 2013 multi-vehicle accident on I-40 on just east of the Texas-New Mexico border. The facts are complex, but suffice it to say that a tractor-trailer (driven by Gregory, New Prime’s employee) jack-knifed when it hit a patch of black ice, blocking the left lane and half the right lane of the roadway. The driver left the vehicle without activating the emergency flashers or putting out any reflective triangles or flares. Soon thereafter, a total of six tractor-trailers and two passenger vehicles crashed, either into the jack-knifed truck or each other, as they attempted to avoid collision. Four people were killed and others injured. The driver and trucking company settled with most of the plaintiffs, leaving only the widow of one of the truck drivers involved in the appeal (Deol). Deol was killed after he left his truck and was struck by one of the other vehicles involved in the chain collision. (There is an issue as to whether the original accident proximately caused the driver’s death, though the petition for review focuses on the mental anguish claims.) The jury awarded about $17 million in noneconomic damages divided between six of Deol’s survivors: his widow ($7,437,500), two sons ($2,445,000 each), a daughter ($1,457,000), and his two parents ($640,000 each). These included awards for loss of past companionship, loss of future companionship, past mental anguish, and future mental anguish. These likewise include a $500,000 to the estate for Deol’s pain and mental anguish.
As noted, the court of appeals issued an en banc decision upholding the award against factual and legal sufficiency challenges. Justices Schenk and Whitehill concurred in part but dissented with respect to the noneconomic damage awards. The majority opinion held that the awards were not excessive or disproportionate to the economic damages awarded to the families. It further held that the awards were individualized to each member of the family. Finally, the majority found that the awards had sufficient factual and legal support, despite the fact that (1) they were based solely on the testimony of the widow, and (2) plaintiff’s counsel’s closing argument suggested an arbitrary formula to the jury that produced almost exactly the amount of damages the jury ultimately awarded.
In his thorough and meticulously researched dissent, Justice Schenk took issue with the majority’s treatment of the evidence and the propriety of plaintiff’s counsel’s jury argument, which he characterized as “obviously improper” and urged “the jury to disregard the compensatory purpose of the award in order to ‘send a message’ with its number.” While Justice Schenk agreed with the majority that the widow’s testimony justified “the fact of the emotional injury and the entitlement to pursue some amount of damages,” he objected to the majority’s conclusion that “the evidence is factually sufficient to support the award of any amount that would not ‘shock the judicial conscience,’ whatever that may mean.” Put another way, the plaintiffs put on no evidence that might assist the jury in coming up with at least a plausibly objective number measuring the nature, extent, and duration of the plaintiffs’ future mental anguish. Citing other cases in which plaintiffs offered testimony by economists, psychologists, or other experts who could speak to those issues on a more objective basis, the dissent found that the numbers assigned by the jury were completely arbitrary. Moreover, if the type of subjective evidence the majority relied upon in this case became the standard for reviewing other mental anguish awards resulting from the wrongful deaths of family members, appellate courts would be forced to accept just about any amounts the jury assigned.
In attempting to frame a more objective standard of review, Justice Schenk reviewed dozens of mental damages awards in cases with more or less similar facts. He found that the damages awarded in this case significantly exceeded those in other cases (itself suggesting the need for remittitur or remand) and concluded that the “range of damages from $6,700 to $4,000,000 once again appears to demonstrate the lack of consistent or predictable standards of review in this area.” Reminding us that appellate courts are bound to conduct “meaningful review” of damages awards, he found that the majority’s review lacked objectivity altogether and did not rise to the level of “meaningful review.” He called on SCOTX to accept review and establish more explicit standards for awarding mental anguish damages arising from the death of a family member.
This case presents an opportunity for SCOTX to expand on its holding in Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607 (Tex. 1996) with respect to the quantum of evidence required to prove up mental anguish damages of sufficient “nature, extent, and severity” to warrant substantial compensation. Additionally, the Court could revisit an older decision rendered by the plaintiff-dominated court in the 1980s, which suggested that a close familial relationship alonewas some evidence of substantial mental anguish (Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986)). As the appellants’ note in their petition, the Court’s holding in Moore predated SCOTX’s decisions in Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995) and Saenz, which significantly raised the bar for proof of mental anguish damages. In any event, we hope that the Court grants the petition for review to address the Dallas court of appeals’ seriously problematic opinion.