The Texas Supreme Court has agreed to review a Dallas Court of Appeals decision affirming a multi-million dollar judgment in favor of the plaintiffs in a fatality accident on IH 35. Among other things, the case raises troubling issues regarding the trial court’s ruling on the defendant’s Batson challenges to the use of the plaintiffs’ peremptory strikes. It also features a substantial award of mental anguish damages based on scanty evidence.
United Rentals North America, Inc. v. Pamela Evans, Individually and as Administrator for the Estate of Clark Brandon Davis, and Dominic Jones (No. 05-18-00665-CV; No. 20-0737) arose from a horrific multi-car traffic accident that occurred when a flatbed truck hauling an oversized load crashed into bridge in a construction zone near Salado. The crash caused a bridge beam to collapse onto Clark Davis’s truck, resulting in his death. Davis’s mother and son filed a wrongful death and survival action against several defendants, including the owner and driver of the truck, construction contractors, and United Rentals, which owned the equipment that struck the bridge. Plaintiffs settled with all defendants except United Rentals. The case proceeded to trial. The jury found United Rentals negligent and assigned 30% of the total award of $9.3 million to United. The lion’s share of the damages, $5 million, went to Davis’s estate for his conscious pain and mental anguish prior to death. The trial court entered judgment on the verdict, and United Rentals appealed.
The court of appeals affirmed. United Rentals raised three issues: (1) the legal and factual sufficiency of the evidence supporting the jury’s findings on negligence and Davis’s mental anguish; (2) the trial court’s rulings on its Batson challenges; and (3) the trial court’s denial of its challenge to plaintiffs’ expert concerning the legal interpretation of applicable sections of the Texas Administrative Code.
In its Petition for Review, United Rentals puts the Batson issue first, so let’s talk about that one. Of the remaining jurors after strikes for cause and by agreement, seven were African-American, nine white, nine Hispanic, and one Asian-American. Plaintiffs used their five strikes on male panelists, four of whom were white. United Rentals uses its five strikes on African-American female panelists. Plaintiffs made a Batson challenge, asserting racial discrimination in the strikes. The trial court asked for United Rentals’ jury notes in order to ascertain pretext. United Rentals responded by making a parallel Batson challenge based on the plaintiffs’ strikes of white males. Counsel then asked the judge to examine plaintiffs’ jury notes as well. The trial court appears to have reacted badly, suggesting that defense counsel was “being retaliatory.” In the event, both sides provided their notes to the court (though she apparently never referred to them). After hearing each side’s evidence of pretext and rebuttal to race-neutral reasons given for striking specific panelists, the trial court granted two of the plaintiffs’ challenges and overruled all of United Rentals’ challenges.
The court of appeals examined the evidence relating to each one of the contested jurors and found that the trial court did not abuse its discretion. Proving up a Batson challenge is not easy, requiring the challenger first to make a prima facie case of racial or gender discrimination in the exercise of peremptory strikes. The burden then shifts to the party exercising the strikes, who must have some race or gender-neutral reason for the strike (which doesn’t even need to be persuasive or plausible). If that party has such a reason, the trial court must figure out whether the party challenging the strike “has proved purposeful discrimination, and the trial court may believe or not believe the explanation offered by the party who exercised the peremptory challenge” (citations omitted). To show purposeful discrimination, the challenger must rebut what amounts to the credibility of the striking party. And credibility is “purely a question of fact for the trial court,” which will only be reversed for an abuse of discretion.
The court of appeals accepted the trial court’s Batson analysis. Without the defendant requesting it, three non-panel justices, Justices Schenk, Whitehill, and Evans requested en banc review. The court denied the request, to which they dissented. Justices Schenk and Whitehill further asked SCOTX to review the award of mental anguish damages to Davis’s estate. United Rentals’ petition for review draws attention to plaintiffs’ counsel’s statement in open court that jury selection focus groups demonstrated that “the African-American female is the most favorable juror for this case,” followed by the use of strikes solely against white males (the eventual jury included no white males or females). The petition further pointed out that the deceased was biracial and that the trial court committed an egregious error (and impugned the integrity of defense counsel) by finding that racism motivated the use of two of the defendants’ collective nine strikes to strike African-American females. Not very pretty, any way that you look at it.
As troubling as the jury selection issue may be, the court of appeals’ approval of a substantial award of mental anguish damages for the deceased’s conscious mental pain and suffering during the few seconds between impact and death is very problematic. United Rentals asserts in its petition that under longstanding Texas law, when the evidence is equally consistent with alternative facts, the jury may not infer either one. But the court of appeals allowed such an inference case, based on nothing more than the inconclusive testimony of the medical examiner who performed the autopsy that “there’s no way to know” whether the deceased was conscious or unconscious in the seconds before he died. The court of appeals relied on the examiner’s testimony that the deceased might have had 10-15 seconds of oxygen left in his brain when the impact occurred, so coupled with the accident reconstructionist’s opinion that the deceased might have had time to “have an ‘oh, my gosh,’ moment,” the court found that it was enough to support the jury award. As terrible as the facts are in this tragic situation, this kind of speculation does not seem adequate to support an award of $5 million. We hope that SCOTX will provide some guidance here.
SCOTX has scheduled oral arguments on November 30.