In a case that could have a similar impact on awards for noneconomic damages as the 1994 Texas Supreme Court decision in Transportation Ins. Co. v. Moriel had for punitive damages awards, TCJL has filed an amicus curiae brief urging the Court to provide additional guidance to intermediate appellate courts when reviewing judgments including significant awards of subjective noneconomic damages.
On November 29, the Court will hear oral arguments in two cases involving noneconomic damages, United Rentals N. Am., Inc. v. Evans (No. 20-0737) and Gregory v. Chohan (No. 21-0017), both of which come out of the Dallas Court of Appeals. We have previously reported in detail on these cases and the issues they involve, so we will not revisit the facts and issues here. TCJL’s brief focuses on the Gregory case, in which the primary issue is the standard of review for noneconomic damages in tort cases. United Rentals raises the additional issues of, among other things, sufficiency of the evidence to support noneconomic damages and Batson challenges in jury selection.
In our brief, we review the history of the 1987 final report of the House/Senate Jount Committee on Liability Insurance and Tort Law Procedure, which recommended a $250,000 cap on noneconomic damages in tort cases. We point out that the committee found that noneconomic damages were “by definition, subjective and nonverifiable” and “inherently impossible to predict on a case-by-case basis.” Nothing has changed since then, as the cases now before the Court amply demonstrate. Short of a cap, however, what can SCOTX do to enhance meaningful appellate review on such awards?
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.
Our brief further urges the Court to address the widespread tactic of “jury anchoring.” This tactic appears in many guises, but the purpose is to suggest to the jury an arbitrary algorithm or formula that would produce a substantial noneconomic damages award sufficient to “send a message” to the defendant. In Gregory, the plaintiff’s counsel argued to the jury that mental anguish damages could be based on assigning a certain monetary value per mile annually driven by the defendant employer’s trucks to, as we said, send the trucking company a “message.” As we say in the brief, “‘[S]ending a message’ sounds like a phrase associated with punitive damages, not noneconomic damages.” Clearly, we argue, “at least some guardrails could be placed around the permissible arguments the jury can hear without contaminating it with inflammatory suggestions with no basis on the plaintiff’s actual harm.”
In our view, these cases are among the most important to get to the Court in many years. Whatever the Court says will have an enormous effect on personal injury litigation going forward, just as Moriel sparked reform of arbitrary punitive damages awards. Recognizing the significance of the case, the U.S. Chamber of Commerce and several insurance associations have weighed in as well. Oral argument has been scheduled on January 31. We expect that the Court will hand something down by late spring. Stay tuned to this channel for breaking news.
