The Texas Supreme Court has remanded for a new trial one of the most controversial cases to emerge from the Dallas Court of Appeals in the past few years. As you may recall, sitting en banc the court of appeals overrode a decision by a three-judge panel after the 2018 election and affirmed a nuclear verdict awarding $17 million in mental anguish damages.
The initial oral arguments in Sarah Gregory and New Prime, Inc. v. Jaswinder Chohan, et al. (No. 21-0017; delivered June 16, 2023) 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.
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.
SCOTX granted review, and in a plurality opinion by Justice Blacklock, joined by Chief Justice Hecht and Justice Busby, remanded for new trial. Justice Blacklock’s analysis commenced with a discussion of the Court’s holding in Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996), which stated that “[t]here must be evidence that the amount found is fair and reasonable compensation, just as there must be evidence to support any other jury finding. Rather than limit review of noneconomic damages to elastic, impractical standards like the ‘shocks the conscience’ test, our precedent instead requires evidence of both the ‘existence of compensable mental anguish’ and ‘evidence to justify the amount awarded.’” Applying the standards, however, is easier said than done, given “the impossibility of any exact evaluation of mental anguish” (quoting Saenz as quoted in Bentley v. Bunton, 94 S.W.3d 561, 614 (Tex. 2002)). According to Justice Blacklock, “the plaintiff in a wrongful death case should be required to demonstrate a rational connection, grounded in the evidence, between the injuries suffered and the dollar amount awarded.”
In this case, plaintiff presented “ample” evidence “demonstrating the existence of compensable mental anguish and loss of companionship,” but no “rational connection between the injuries suffered and the amount awarded.” Noting that the plaintiff’s jury argument as to the “proper amount included references to fighter jets, the value of artwork, and the number of miles driven by New Prime’s trucks,” this “unanchored” speculation “encourage[ed] the jury to base an ostensibly compensatory award on improper considerations that have no connection to the rational compensation of [plaintiff’s] family.” Rejecting the court of appeals’ refusal to apply Saenz, which involved an injury, or Bentley, which involved mental anguish damages in a defamation case, in a wrongful death case, the Court reasoned that the jury’s task in each context is “fundamentally” the same. The question then became how an appellate court should conduct a legal sufficiency review as to the amount of compensatory damages awarded for mental anguish.
First, the Court rejected the widespread practice of “unsubstantiated anchoring” in plaintiff’s jury arguments and held that juries cannot rely on such evidence as a “rational” connection to plaintiff’s injuries. This includes the plaintiff’s argument in this case, which urged the jury to award “two cents” for each decedent for each mile New Prime trucks traveled in the year prior to the accident. “The unmistakable purpose of this argument,” Justice Blacklock opined, “is to suggest that New Prime can afford a large award that it should be punished for denying Chohan and her family justice for [decedent’s] death. But punitive damages are not at issue here; only compensatory damages and the ‘two cents a mile’ argument has nothing to do with compensation.” Noting that this argument probably influenced the jury, which awarded $38.8 of the $39 million yielded by the formula, the Court admonished the trial court for ignoring its “obligation to prevent improper jury argument.” The Court then rejected the use of a ratio based on the amount of economic damages awarded in a wrongful death case, reasoning that such a rule would suggest that “the families of a well-paid decedent suffer more grief and pain than the families of those with less income.” The Court did not foreclose the use of a ratio in other cases, depending on the facts.
The Court then turned to the “nature, duration, and severity” test. Direct evidence of the amount of mental anguish damages may include evidence “of the likely financial consequences of severe emotional disruption in the plaintiff’s life” or “some amount of money [to] enable the plaintiff to better deal with grief or truly compensate for emotional trauma.” But the Court did not offer any hard-and-fast specifics. “We will not speculate here about all the permissible ways in which parties may demonstrate that a rational connection between the evidence and the amount awarded exists or is lacking,” Justice Blacklock concluded. There has to be a reason “how” and a “why” the amount is “reasonable and just,” but beyond that, the Court left what constitutes a “rational connection” to future cases. That did not happen in this case, in which the jury essentially “pick[ed] a number and put it in the blank.”
The Court then turned to the responsible third-party issue. The trial court denied defendants’ motion to designate another trucking company as a responsible third party. This truck appeared on the scene, tipped over, and blocked all clearance to the right of New Prime’s truck, contributing to the accident which killed the decedent. The court of appeals agreed, holding that the crash that caused decedent’s death was solely attributable to the negligence of Gregory and New Prime. The appropriate standard for considering a motion to designate is the same as a no-evidence motion for summary judgment (citations omitted), which requires a de novo review and some evidence raising a genuine issue of material fact. The Court concluded that New Prime produced sufficient evidence that the other truck driver’s negligence “turned an already dangerous situation into a deadlier one by closing off the ability of drivers approaching the scene to avoid a crash.” The Court thus ordered a new trial on that basis.
Justice Devine, joined by Justice Boyd, filed a concurring opinion. He concurred in the judgment remanding for new trial on the responsible third-party and jury argument issues, but otherwise disagreed with the plurality’s requirement that plaintiffs “find [an] evidentiary needle in the haystack” when no such needle exists. He would let the jury decide, informed by “community standards” and based on evidence of “the nature, duration, and severity of the claimant’s suffering,” but not on “noncompensatory motivations.” However, Justice Devine wrote, “the reality is it can neveractually be based on evidence establishing that the injury was ‘worth’ a particular monetary amount.” The plurality opinion thus “offer[s] a solution that effectively neutralizes the jury’s role by requiring them to rely on evidence a claimant simply cannot present.”
Justice Bland likewise filed a concurring opinion, in which joined in the plurality opinion except as to the parts of the opinion discussing the necessary evidence to establish a rational basis for the award and its analysis of whether plaintiffs met the evidentiary standard in this case. She would limit the holding only to the improper jury argument, which “depart[ed] from the evidence” and “render[ed] the verdict legally infirm under long-standing common law.”
Justices Lehrmann, Huddle, and Young did not participate, meaning that of the six justices who did, only three accepted the rational basis analysis. How this decision will be applied in future wrongful death claims remains to be seen, but it is important to note that the opinion does appear to be limited to wrongful death claims. What we do know is that an arbitrary ratio between economic and mental anguish damages is off the table, as is simply asking jurors to fill in the blank by framing the issue in terms of extraneous and prejudicial “unsubstantiated anchoring.”
The decision also leaves undisturbed the problematic precedent established by the Court in Moore v. Lillebo, 722 S.W.2d 683 (Tex. 1986). There the Court allowed for the first time recovery mental anguish in a wrongful death case without requiring some sort of physical manifestation. Additionally, the court recognized both mental anguish and loss of companionship and society and as separate injuries for which damages can be recovered. The dissent, authored by Justice Franklin Spears and joined by Justice Raul Gonzalez, concluded: “With improper definitions, such as the majority’s, mental anguish and loss of society and companionship issues ask jurors the same question: how much emotional distress has the plaintiff suffered? Asked the same question twice, jurors will give the same answer—twice.” In TCJL’s amicus in Chohan, we urged the Court to revisit Moore because it untethered mental anguish damages from any objectivity whatsoever and authorized double recovery for the same damages. We will very likely continue to make this plea.
In the final analysis, we think, this decision once again demonstrates that no amount of reasoning can convert an inherently subjective and unknowable element of damages into an objectively determinable amount of money. Candidly speaking, the same rationale for capping non-economic damages in health care liability claims applies to all claims. Maybe it’s time to revisit that issue in the Legislature, as difficult and divisive as it is. The alternative is to continue what amounts to a crapshoot that relies almost entirely on jury arguments and whether the jury’s answer “shocks the judicial conscience.” Though the plurality opinion explicitly rejects that particular description of the situation, it’s hard to see precisely what type of more or less objective evidence could possibly be adduced that is not either an economic harm, in which case it goes to economic damages, or a highly dubious guess.
