In another decision that plumbs the murky depths of our jurisprudence of noneconomic damages, the Texas Supreme Court has taken sharp issue with a Dallas Court of Appeals decision that blocked a defendant from obtaining discovery of plaintiff’s medical and mental health care records that were related to plaintiff’s claim for mental anguish damages and to defendant’s defense of such claim.
In re Richardson Motorsports, Ltd. (No. 22-1167; May 10, 2024) arose from a terrible 2016 ATV rollover accident in which a minor Plaintiff witnessed her younger brother’s death. Plaintiff and her mother and father sued the manufacturer, the dealer who sold the ATV to the family (Richardson), and the garage that performed maintenance on the vehicle. At the time of the sale, Richardson allegedly removed the ATV’s door netting, which protects the occupants in the even of a roll-over. Richardson also allegedly failed to inform Plaintiff’s father of a product recall for defects in the ATV’s steering mechanism. The failure of this mechanism allegedly caused the accident. The vehicle rolled over, trapping Plaintiff’s brother and crushing him to death. In October 2021, then five years after the accident, Richardson served notice of intent to take depositions on written questions and subpoena records from Plaintiff’s clinical psychologist and pediatrician, whom Plaintiff had designated as testifying experts. Richardson sought “all psychological treatment records” from late 2019 to the present. Plaintiff asserted privilege under Texas Rules of Evidence 509(c) and 510(b). Richardson responded that because Plaintiff sought damages for past and future mental anguish and “bystander recovery,” her mental condition was relevant and discoverable under the so-called “patient-litigation exception.” Those records, Richardson argued further, were likewise relevant to its defenses of sole or intervening cause. The trial court ordered production of the records. Plaintiff sought mandamus relief, which the court of appeals granted. Richardson sought mandamus relief from SCOTX.
In an opinion by Justice Busby, SCOTX reversed. The issue was whether the exception to the Rule 509(c) and 510(b) privileges protecting a person’s medical and mental health care treatment records applied in this case. Those exceptions, which the Court characterized more accurately as the “patient-condition exceptions” because the patient doesn’t have to be a litigant, kick in “if any party relies on the patient’s physical, mental, or emotional condition as a part of the party’s claim or defense and the communication or record is relevant to that condition.” Observing that the Court has not required evidence of mental anguish “to take the form of expert testimony about a particular mental or emotional condition” and that an “allegation of mental anguish or emotional distress [alone] does not place the party’s mental condition in controversy,” the Court nevertheless noted that a plaintiff can place his or her mental condition in controversy, for example, by alleging PTSD.
Richardson argued that because Plaintiff sought to recover mental anguish damages as a “bystander,” the jury had to make a determination of whether Plaintiff suffered “shock” and that her records were relevant to that condition. The Court rejected this argument because “‘shock’ is not a distinct factual element of liability that a jury must find in bystander cases” (the relevant inquiry goes to duty and foreseeability). As the Court held in Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986), mental anguish damages may be recovered without an accompanying physicial manifestation in “‘cases of intentional torts, gross negligence, or a willful and wanton disregard for another’s rights’ or when ‘the nature of the tort alleged assures courts of the genuiness of mental anguish claims even without resort to proof of physical manifestation.’” Bystanders who witness a “close relative suffer a traumatic injury because of a defendant’s negligent action” can carry such an assurance where a “tortfeasor will owe a duty of care beyond that owed to the public in general.”
The question then becomes “whether it would be reasonably foreseeable to a negligent defendant that someone in the bystander plaintiff’s position would suffer mental anguish as a result of the defendant’s negligence.” “Shock” comes into play when the court “must distinguish between a plaintiff who suffered a direct emotional impact from contemporaneously observing an accident and a plaintiff who learned of it later” (though we can’t imagine that there is any objective way to value that distinction). In this case, Richardson’s request for Plaintiff’s mental health treatment records from 2019 to the present aren’t relevant to Plaintiff’s “shock” in any event because the key inquiry involves Plaintiff’s mental condition at the time of her brother’s death in 2016. Because Richardson couldn’t show how those records pertained to Plaintiff’s condition at that time, the Court concluded that the court of appeals did not err in granting mandamus relief to Plaintiff from the trial court’s order.
The Court then turned to whether Plaintiff “is relying on her mental or emotional condition to prove mental anguish damages.” Richardson argued that she was because she “designated her treating psychologist and pediatrician as testifying experts, which shows that her mental or emotional condition carries legal significance and relevance.” There is a fine line, however, between whether those records “are subject to discovery if a legal consequence flows from the patient’s mental or emotional condition, but not [discoverable] if that condition is an evidentiary or intermediate issue of fact or merely tangential to a claim” (lots of room for discretion in that determination). On this issue, the court of appeals decided that Plaintiff’s condition was “tangential” because “[Plaintiff] has made nothing more than a pedestrian request for mental anguish damages of the kind that would ordinarily flow from her injury in the vehicle rollover accident and her contemporaneous perception of her brother’s death.” We will have more to say about the court of appeals’ breezy assumption that any claim for soft damages could be “pedestrian,” at least from a defendant’s point of view. Be that as it may, SCOTX rejected the court of appeals’ conclusion, pointing (which the court of appeals inexplicably neglected to do) to the plain fact that Plaintiff designated her physicians as witnesses for the very purpose of addressing her injuries and the medical treatment they provided for them. Plaintiff thus relied on “the diagnosis, evaluation, or treatment of her condition as part of her claim, [and] she cannot invoke the privilege to shield their mental health care records relevant to that condition from discovery.” This is true even though Plaintiff later stated that she would not call them at trial. The trial court thus did not abuse its discretion in ordering production of the records “insofar as they are relevant to her claim for mental-anguish damages.”
The Court next determined that the patient-condition exception to the privilege applies because Richardson alleged in its answer that Plaintiff’s mental condition is part of their defense. Richardson raised the defenses of intervening, superseding, sole, and/or new and independent causes, arguing that Plaintiff’s mental anguish was caused wholly or partly by her parents’ divorce, her estrangement from her mother, and alleged sexual abuse by her stepfather. The Court agreed, rejecting Plaintiff’s argument that “a patient’s mental condition is only of ‘legal consequence’ under [R.K. v. Ramirez, 887 S.W.2d 836 (Tex. 1994)] when the condition is outcome determinative of liability—that is, caused by injury—or when it exceeds the common emotional reaction to a tragic event.” To determine “legal consequence,” a court must begin by examining the pleadings “and then, if necessary, consider the allegedly privileged records.” Relevant to this inquiry are (1) whether the patient consulted a physician or other professional and claim that the records are privileged, (2) whether the pleadings indicate that a party “relies on” such a condition as “part of” its claim or defense, and (3) whether an in camera review of the records confirm that they address such a condition. Here the Court actually viewed sealed records forwarded by the trial court and “confirmed that some of them do involve the diagnosis, evaluation, or treatment of a post-accident mental or emotional condition that may have contributed to [Plaintiff’s] mental anguish. Since Richardson cannot be held liable for mental anguish that did not result from the accident, those records are relevant to Richardson’s defense and have the necessary “legal significance.”
Finally, the Court addressed whether Richardson’s discovery request was overbroad. Here the Court basically punted the ball back to the trial court to examine in camera the requested records and determine “which portion of the records are relevant to a mental or emotional condition that is part of [Plaintiff’s] claim of mental anguish stemming from the accident or Richardson’s defense of anguish stemming from third-party causes . . .” If the parties can’t agree on appropriate redactions of irrelevant material between now and then, the trial court must narrowly tailor the production to include on those relevant to those claims and defenses.
While this case presented itself as an analysis of the exceptions the privileges for health and mental health care treatment records found in Texas Rules of Evidence 509(e)(4) and 510(d)(5), it has larger implications for how claims for mental anguish damage should be evaluated (or, perhaps more accurately, how they are pretty nearly impossible to evaluate objectively). One “problem” is that the Court in Parkway Co. v. Woodruff 901 S.W.2d 434 (Tex. 1995) did not require expert testimony to establish a specific mental or emotional condition. Consequently, the subjective impressions of non-experts can support enormous awards of mental anguish damages. In another case, Coates v. Whittington, 758 S.W.2d 749 (Tex. 1988), the Court held that an “allegation of mental anguish or emotional distress [alone] does not place a party’s mental condition in controversy.” Candidly speaking, this doesn’t make any sense to us. What is mental anguish or emotional distress but a “mental condition”? In other words, these two decisions don’t establish any objective threshold for mental anguish claims at all (such as diagnosis or treatment for the alleged condition) and, what’s more, just about anybody can opine about it to a jury. No wonder, as the court of appeals said, claims for mental anguish have become “pedestrian”—it would be malpractice not to claim them when so little is needed to get to the jury.
An even bigger part of the problem, as we see it, and upon which we have commented on prior occasions, is the “Justice for Sale” era decision in Moore v. Lillebo. Here is what we said about that case in our amicus brief in Gregory v. Chohan:
We urge the Court to consider elaborating on its prior decisions, particularly those in Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607 (Tex. 1996) and Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995). Specifically, we suggest that that a medical diagnosis of a physical or psychological reaction be required as a basis for an award. In other words, mere ordinary grief and sorrow would not be enough. As Justice Spears wrote in his dissent in Moore v. Lillebo, 722 S.W. 2d 683 (Tex. 1986), one of the Court’s decisions in the 1980s that radically revised traditional tort principles, there ought to be direct evidence of a physical manifestation of an “intense emotional injury, resulting in depression or other physical reactions.” He also suggested that evidence of an injury to a familial relationship, to quote our brief, “should involve more detailed and corroborative accounts of the familial relationship as it actually existed at the time of the loss.” In other words, simply being related to a person does not mean that a relationship exists to which a significant emotional injury can be inflicted. In short, we encourage the Court to provide additional safeguards that require direct evidence of the severity of the emotional harm at issue.
While it is entirely reasonable to assume that a bystander in Plaintiff’s position here suffered emotional distress, that does not mean a “bystander liability” cause of action should be cognizable to begin with. Even so, Moore left an enormous gap between that assumption and the type of evidence necessary to put a value on that kind of injury. At least the pre-Moore world retained some anchor in the objective realm of “physical manifestation.” Without such an anchor, factfinders are reduced to basing potentially huge damages on what is essentially an emotional response to subjective evidence. As we mentioned above, we find it particularly troubling that the court of appeals characterized Plaintiff’s mental anguish claim as “routine” or “pedestrian” to support denying discovery of Plaintiff’s records. This is the real problem with the Moore decision and why we think the Court ought to re-evaluate it. Moore made it possible for mental anguish claims to become “routine” because it made their determination entirely subjective and without basis in corresponding physical impairment. We further think that Moore was flat wrong in ruling that just because there is a family relationship involved that mental anguish damages can be assumed and that the only question becomes how much the defendant must pay. Not all families like each other, and there is simply no one-size-fits-approach. In short, Justice Spears was right, there is no such thing as a “routine” claim for mental anguish, and every claim ought to be accompanied by a qualified provider’s testimony and relevant medical records.
To the extent that objective standards are even possible in this area, they should point the factfinder to specific evidence of how the claimant’s alleged mental anguish has substantially impaired his or her ability to function physically in the claimant’s daily routine. Has the claimant been diagnosed with a specific condition directly linked to the claim? In what specific ways has the diagnosed condition impaired the claimant’s daily life (e.g. has the claimant missed work or school or been rendered unable to perform customary tasks)? Has the treatment of claimant’s condition produced improvement? How much and in what specific ways? What is a reasonable expectation for the effectiveness of such treatment over time? What objective data exists as to how quickly most people return to normal function under similar circumstances? This kind of information can be objectively verified by testimony of the claimant’s treating physician and by experts in the relevant field or specialty.
Once the evidentiary threshold is crossed, the question becomes one of valuation. One way to deal with the value question is simply to cap noneconomic damages awards in general (not just in health care liability claims). This cap could be applied either as a total dollar amount, as we do for health care liability claims, or as a proportion of the actual damages awarded in the case. This solution brings certainty and predictability to an intrinsically uncertain and unpredictable potential liability. It also recognizes that the amount of a cap is just as arbitrary as the amount of the damages awards themselves. Caps stabilize the system and allow parties to better assess their risk. They have produced very significant improvements in access to health care in this state, largely by reducing insurance premiums and making it affordable to practice in Texas, and there is no question that they would equally benefit the business climate at large. Remember, too, that expanding the cap requires a 3/5 vote of each House [see Art. 3, § 66(e), Texas Constitution)], not the two-thirds vote required for a constitutional amendment. This potential solution, in our view, should be on the table in view of the increasing instability of the civil justice system.
Are there any solutions short of rounding up 90 votes in the House and 19 in the Senate for an expanded cap? We don’t know, but it seems to us that, at least for discussion purposes, the following items should be on the list:
- The notorious SCOTX opinions of the 1980s, which created the problem in the first place, must be revisited and, if necessary, modified or overruled (especially Moore v. Lillebo).
- At minimum, mental anguish damages must be predicated on a physicial manifestation, as Justice Spears insisted. We also think that there should be no situations in which mental anguish can be presumed to exist, such as alleged harm to a family relationship of whatever degree. To recover a claimant should have to prove the nature and extent of the relationship and how the loss of the relationship has produced a substantial disruption to the claimant’s daily life. Relevant to this inquiry may be, for example, whether the claimant has sought counseling or other mental health treatment to deal with that loss.
- An allegation of mental anguish should automatically place the party’s mental condition in controversy for purposes of discovery.
- Derivative elements of noneconomic damages should be significantly narrowed or eliminated altogether. For example, elements such as loss of consortium, loss of enjoyment of life, loss of quality of life, and disfigurement are simply too subjective to be credible. It would make more sense, in our view, to subsume all elements of noneconomic damages, including mental anguish, into one claim for pain and suffering. Each of these add-ons describes one or another type of “pain” or “suffering,” and trying to distinguish them cannot but confuse everybody and result in “double-dipping.”
- Clear and convincing evidence should be required to prove a pain and suffering claim.
- More effective sanctions for improper jury argument and unsubstantiated anchoring (i.e. reptile theory tactics) should be established and enforced, up to and including death penalty sanctions.
- We should consider a proportionality standard. This could be structured as an arbitrary “rule of thumb” or by requring the trier of fact to specifically state its reasons for the award and what reasonable proportion the award bears to the claimant’s actual damages.
- Intermediate appellate courts should strictly scrutinize noneconomic damage awards, just as they do awards of exemplary damages. At minimum, the court should detail and weigh the specific evidence to assure that the claimant has met its burden of proof and that the amount of damages awarded is reasonably proportional to the actual damages awarded.
Obviously, what is to be done about noneconomic damages is a developing conversation. House and Senate interim charges targeting the affordability of insurance may be a place to start having that conversation.
