Awards of noneconomic damages, such as mental anguish and pain and suffering—recently amounting to hundreds of millions of dollars in a few cases—will face greater scrutiny after The Supreme Court of Texas has stated that they "must have a rational basis grounded in the evidence." On June 16, 2023, the Court announced its judgment in Sarah Gregory and New Prime, Inc. v. Jaswinder Chohan, a wrongful death case against a trucking company and its driver. Although the Court issued three opinions, none of which garnered a majority of the justices, all six sitting justices joined in a judgment reversing the trial court's award of approximately $15 million in noneconomic damages to the widow and three children of an individual who died in a trucking accident. In reversing the Fifth District Court of Appeals in Dallas, which had affirmed the trial court's judgment, the Court remanded the case for a new trial with limits on what plaintiffs' counsel may do to persuade the jury.
Because three justices were disqualified from participating and no more than four justices joined in any section of the lead opinion, the constitutionally required five justices did not join to deliver an opinion of the Court. Thus, the type and amount of proof required to justify a substantial award of noneconomic damages remains open for further clarification. But all the justices agreed that the justifications frequently offered to support large mental-anguish damages are improper and will constitute reversible error. And the three opinions provide important guidance for the bar on how to marshal proof to support or oppose such awards, and important guidance for the bench on how to decide if such awards should be affirmed, reversed, or remitted to a lower number. In the plurality's view, the amount of a jury's award of mental-anguish damages must be supported by "evidence of the nature, duration, and severity" of mental anguish.
Case Background and Procedural History
The lawsuit stems from a pile-up that took place on an icy stretch of Interstate 40 after Sarah Gregory jackknifed the eighteen-wheeler she was driving for New Prime. Soon thereafter, six tractor-trailers and two passenger vehicles crashed into Gregory's truck or each other, resulting in multiple fatalities.
Gregory and her employer, New Prime Inc., settled with all plaintiffs except the wife and family of Bhupinder Deol, one of the truck drivers who was killed in the collision. The jury awarded Deol's family $15.6 million in noneconomic damages. The court of appeals, sitting en banc, affirmed the award. Four of the thirteen justices dissented, however, asking the Texas Supreme Court to provide guidance on how to assess the excessiveness of noneconomic-damages awards and to clarify the quantum of evidence required to support such awards.
The Court's Plurality Opinion
In a plurality opinion, Justice Jimmy Blacklock (joined by Chief Justice Nathan Hecht, Justice Brett Busby, and—in part—Justice Jane Bland) explained that the plaintiff in a wrongful-death case should be required to demonstrate a rational connection, grounded in the evidence, between the non-financial, emotional injuries suffered and the dollar amount awarded. The plurality applied the Texas Supreme Court's approach regarding judicial review of the existence of mental anguish damages to review of the amount of such damages. Thus, a court must find legally sufficient evidence of the "nature, duration, and severity" of both the existence of mental anguish and of the amount of the factfinder's award. See Blacklock Op. at 16 (citing Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996); Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex. 2002)).
In providing guidance on how a plaintiff might meet this burden, the plurality rejected the use of what is referred to as "unsubstantiated anchors." This is a tactic in which plaintiffs' attorneys will suggest damages amounts by references to objects or values with no rational connection to the facts of the case—an approach that the plurality condemned as no better than "picking numbers out of a hat." Id. at 16. At trial in this case, arguments made to the jury regarding the proper amount of damages included references to the price of fighter jets and the value of artwork. At closing arguments, counsel for the settling plaintiffs also urged the jury to award for each decedent two cents a mile for every one of the 650 million miles that New Prime's trucks had driven during the year of the accident. The plurality found this irrelevant calculation, which would have yielded $39 million in damages, almost identical to the combined final jury verdict of $38.8 million.
The plurality also cautioned against the use of economic damages as a benchmark for noneconomic damages in wrongful death cases. Applying a ratio between economic and noneconomic damages, the plurality opined, would suggest that families of a well-paid decedent suffer more grief and pain than the families of those with less income. Id. at 21. Like the unsubstantiated anchors, unexamined use of this ratio—without case-specific reasons why such analysis is suitable—would provide no rational connection between the injuries suffered and the amount awarded, and its adoption by a jury would indeed "shock the conscience" of a reviewing court. Id. at 22.
Instead, the plurality suggested that some cases may offer "direct evidence supporting quantification of an amount of damages, such as evidence of the likely financial consequences of severe emotional disruption in the plaintiff's life," or "evidence that some amount of money would enable the plaintiff to better deal with grief or restore his emotional health." Id. at 23. "While money itself cannot alleviate grief or truly compensate for emotional trauma, it may be that money can provide access to all kinds of things that may help the person who has endured such an experience." Id. No "particular type of evidence must always be proffered," but "the amount of damages must have a rational basis grounded in the evidence." Id. Plaintiffs must give something more than a mere assertion, with no reason, that they genuinely believe the amount they seek and obtain is reasonable and just compensation for the injuries suffered, and "parties defending an award of damages cannot just assert that the amount justifies itself." Id. at 25.
In applying its standard to the damages awarded, the plurality determined that there had been no rational connection proffered between the amount awarded and the evidence of the "nature, duration, and severity" of the noneconomic damages sustained by Deol's family. Therefore, the plurality concluded, the award of noneconomic damages must be reversed. The Court also remanded the entire case for a new trial because the trial court had incorrectly excluded a responsible third party from the jury charge.
Justice Devine's Opinion
Justice John Devine, joined by Justice Jeff Boyd, concurred in the judgment and likewise opined that plaintiffs' counsel tainted the jury verdict with improper argument. Though he commended much of the guidance offered by the plurality and agreed that mental anguish damages must be based on the evidence, Justice Devine stated that the opinion improperly advocates a vague and unworkable evidentiary standard. This standard, he said, functions as a "we'll know it if we see it" benchmark and is one that would be impossible to satisfy. Devine Op. at 4. Justice Devine noted that the Legislature would be better equipped to develop an approach that balances the constitutional command of just compensation and the plurality's concerns about the potential for arbitrariness. Devine Op. at 12.
He also criticized the plurality's inability to articulate any way plaintiffs can satisfy the standard it proffered, noting that "While I don't think we should ever impose a change in the law we cannot reasonably explain, I certainly would not do so in a case destined for a new trial for other reasons." Devine Op. at 14.
Justice Devine did agree that the mental-anguish damages award must be reversed because the improper jury argument could have influenced the award. Id.
Justice Bland's Opinion
Justice Bland reversed on the jury taint issue and declined to go further in her concurrence, but did recognize the difficulty in articulating a workable legal standard for evaluating noneconomic damages. To resolve the challenge to the mental anguish damages in this case, Justice Bland stated, "we neither need to adopt the plurality's standard for determining whether the evidence demonstrates a rational connection to the amount awarded for every case, nor reject such a standard as Justice Devine advocates." Bland Op. at 2. Instead, she took the position that the Texas Supreme Court should leave resolution of this debate on the appropriate standard for review for another day, as other cases will present challenges "closer to the boundaries of judicial review." Bland Op. at 4.
Conclusion
While the Court failed to issue a majority opinion, the Court was clear in what counsel may not do, unmistakably holding that punitive justifications for compensatory damages have no place in front of the jury. Improper argument—such as the settling plaintiffs' counsel's "two cents a mile" argument—has "nothing to do with compensation" and, in this case, rendered infirm the jury's verdict for all remaining issues between remaining parties.
The plurality provides a degree of guidance and indicates where the Court may go with a full bench. When evaluating noneconomic damages in wrongful-death cases, courts of appeals can look at the same criteria used to evaluate the amount of noneconomic damages awarded in other cases, as well as factors used to assess the existence of noneconomic damages ("nature, duration, and severity"). The plurality has invited plaintiffs' counsel to develop theories attempting to rationally connect an allegation of noneconomic damages to the evidence.
Plaintiffs' counsel will face increasing pressure to ground their requests for noneconomic damages in definite figures. Defendants' counsel will challenge, by cross-examination or expert testimony, the claimed rational connection between these figures and the nature, duration, and severity of plaintiffs' mental anguish. In any event, as plaintiffs' theories for a rational connection percolate through the lower courts, this issue will likely be before the Court again.
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