Today the Texas Supreme Court decided Gregory and New Prime, Inc. v. Chohan, et al., a wrongful death case where the main issue was whether a noneconomic damages (mental anguish and loss of companionship) award of just over $15 million was supported by sufficient evidence. The case has been watched by both sides of the bar for some time and attracted numerous amicus briefs in support of both sides.

Unfortunately, the legal industry will have to wait a bit longer for definitive confirmation of the Supreme Court’s position on the proper evidence needed to support noneconomic damages awards for mental anguish and loss of companionship. Three Justices¹ did not participate in the decision, so only six Justices sat in the case. This resulted in a plurality opinion authored by Justice Blacklock, which was joined in part by Chief Justice Hecht, Justice Busby, and Justice Bland, and in other parts only by Chief Justice Hecht and Justice Busby. Justice Devine authored an opinion concurring in the judgment only, which was joined by Justice Boyd. Justice Bland, in turn, authored a concurring opinion that also concurred in the judgment.

The Court ultimately and unanimously reversed and remanded for a new trial. A summary of the plurality and concurring opinions is below.

Background

A decedent’s wife and family brought a wrongful death action against Gregory and her employer, New Prime, Inc. Several other claimants settled after trial. The jury awarded approximately $16.8 million to the decedent’s family. Noneconomic damages—awarded to six family members for past and future mental anguish and loss of companionship—accounted for just over $15 million of the total.

The defendants appealed to the Dallas Court of Appeals, challenging the size of the noneconomic damages award. The Dallas Court of Appeals decided the case en banc and affirmed along party lines, concluding that the award was not “flagrantly outrageous, extravagant, and so excessive that it shocks the judicial conscience.” Two senior members of the Dallas Court of Appeals wrote dissents and urged the Texas Supreme Court to take up the case.

Supreme Court’s Plurality Opinion – Justice Blacklock, joined by Justice Busby and Chief Justice Hecht, and Justice Bland in part

At the outset, Justice Blacklock noted that “[a]ssigning a dollar value to non-financial, emotional injuries such as mental anguish or loss of companionship will never be a matter of mathematical precision.” The plurality goes on to summarize the Court’s precedents on the subject and describe appellate courts’ duty as “ensur[ing] that the damages awarded for a noneconomic injury are the result of a rational effort, grounded in the evidence, to compensate the plaintiff for the injury.” To do so requires reviewing courts “to do more than consult their consciences.”

Mental anguish damages require “evidence that the amount found is fair and reasonable compensation, just as there must be evidence to support any other jury finding.” The plurality felt that the “shocks the conscience” test is not enough, and rather “evidence of both the ‘existence of compensable mental anguish’ and ‘evidence to justify the amount awarded’” are required.

While the record included evidence of the existence of compensable mental anguish and loss of companionship, there was “nothing in the record or in the plaintiffs’ arguments [that] demonstrates a rational connection between the injuries suffered and the amount awarded,” as the arguments to the jury discussed fighter jet prices, artwork, and miles driven by the company’s trucks. In the plurality’s eyes, these arguments “encourag[ed] the jury to base an ostensibly compensatory award on improper considerations that have no connection to the rational compensation of [Decedent’s] family.”

The plurality emphasized that courts “must insist that every aspect of our legal system—including the way we compensate grieving families for the wrongful death of a loved one—yields rational and non-arbitrary results based on evidence and reason, to the extent possible.” In doing so, the plurality critiqued systems that approve of arbitrary “picking numbers out of a hat” approaches to compensatory damages awards. The Court’s precedents acknowledge that “the jury’s discretion is by no means unlimited and that the amount awarded must be supported by evidence.”

The plurality next discussed “how a wrongful death plaintiff could establish the required connection between an emotional injury and an amount of damages.” The first step was in “how not to do so.” The plurality condemned the strategy and use of “unsubstantiated anchoring,” described as “a tactic whereby attorneys suggest damages amounts by reference to objects or values with no rational connection to the facts of the case.” Such arguments bring jurors “no closer to gaining a sense of how to compensate the family for their injuries” and violate Texas Rule of Civil Procedure 269(e), requiring counsel “to confine the argument strictly to the evidence and to the arguments of opposing counsel.” Discussion of fighter jet prices, the auction price of a painting, and the miles that the defendant’s trucks drove during the year of the accident, were not evidence.

Acknowledging the potential for unsubstantiated anchoring to improperly influence the jury, the plurality noted that asking the jury to give the defendant their “two cents worth”—two cents for each decedent, six cents a mile for the 650 million miles the defendant’s trucks traveled in a year—was an attempt to punish the defendant, rather than compensate the plaintiffs. The Court noted: “Accounting for three decedents, the ‘two cents a mile’ calculation yields $39 million in damages. The combined final jury verdict was $38.8 million, so it is not difficult to conclude that the improper argument influenced the result.”

The plurality similarly opposed the use of unexamined ratios, “reject[ing any requirement that the ratio between economic and noneconomic damages must be considered” in wrongful death cases without case-specific reasons of why such a ratio should be permitted.

Justice Bland did not join the next part of the plurality’s opinion, which examined how a party can “discharge its obligation to support an amount of noneconomic damages with evidence.” The plurality believes that evidence of “nature, duration, and severity” of mental anguish will naturally also be relevant to the amount awarded.

However, the plurality was sure to note it was not “suggest[ing] that in all cases there must be direct evidence of a quantifiable amount of damages. In other words, the requirement that some evidence support the amount of damages for emotional injury is not a requirement of precise quantification or a requirement that a particular type of evidence must always be proffered. It is instead merely a requirement that the amount of damages must have a rational basis grounded in the evidence.”

The plurality opined that such evidence may include testimony as to potential financial consequences of severe emotional trauma, evidence that a certain sum would allow the claimant “to better deal with grief or restore his emotional health,” or “lawyer argument rationally connecting the amount sought—or on appeal, the amount awarded—to the evidence.” There may other examples. But the plurality opines that a party cannot simply say that a number was reasonable because a jury picked it.

The plurality acknowledged possibility that “comparison to other cases may play some role in a plaintiff’s effort to establish that a given amount of noneconomic damages is reasonable and just compensation rationally grounded in the evidence.” But the plurality did not explain or define “the permissible use of verdict comparisons.”

The plurality’s view is concisely summarized: “An attorney asking a jury to award that amount in damages should be expected to articulate the reason why the amount sought is reasonable and just, so the jury can rationally decide whether it agrees. And on appeal, if the reasons offered in justification of the amount awarded are rational and do not partake of prohibited motives, courts should defer to the jury’s verdict.” The plurality noted that its opinion would not go further to limit how a plaintiff “might justify the amount he seeks or the amount he has been awarded” so long as the plaintiff can show “a rational reason, grounded in the evidence.” To survive a legal-sufficiency challenge to an award of noneconomic damages, a wrongful death plaintiff should, according to the plurality, “bear the burden of demonstrating both (1) the existence of compensable mental anguish or loss of companionship and (2) a rational connection, grounded in the evidence, between the injuries suffered and the amount awarded.”

With that framework in mind, the plurality, again without Justice Bland, described the court of appeals’ approach as “incomplete.” While the testimony presented demonstrated a familial relationship and therefore the existence of damages, it was no evidence on its own of the actual amount of damages incurred on account of the mental anguish suffered. Because there was no rational connection between the amount awarded and the evidence of the nature, duration, and severity of the noneconomic damages, the plurality had to conclude that there was no evidence to support the award.

Responsible Third Party

The plurality agreed that the trial court improperly excluded a responsible third party from the jury charge, requiring reversal. The alleged responsible third party owned a truck that “arrived on the scene, tipped over, and blocked all remaining clearance on the right [such] that the accident became unavoidable for the approaching vehicles.” The evidence of the truck driver’s “role in bringing about the dangerous conditions that caused the deadly collision would have permitted a reasonable jury to assign partial responsibility to” the alleged responsible third party. Nothing that “the mere fact that one person’s behavior is a but-for cause of an injury does not mean that another’s behavior is not also a substantial factor in causing the same injury,” the plurality determined a new trial was necessary. Justice Devine and Boyd concurred in that judgment.

Justice Devine, concurring in the judgment, joined by Justice Boyd

Justice Devine agreed a new trial was warranted due to the exclusion of a responsible third party. While Justice Devine agreed that improper jury argument may have influenced the jury, he feels that the plurality advanced a new evidentiary standard that cannot be satisfied.  Justice Devine agreed that claimants “cannot engage in ‘unsubstantiated anchoring’ by asking fact-finders to rely on evidence that has nothing to do with the pain or anguish they’ve suffered,” or ask a jury to “pick a number” unrelated to the nature, duration, and severity of the injury or anguish. But Justice Devine characterized the plurality’s opinion as “we’ll know it if we see it”—and Justice Devine predicted “we will never see it.”

Justice Devine believed this is a question entrusted “to juries, counting on our community representatives to apply common sense, community values, and their own life experiences in finding the appropriate amount to compensate their fellow human beings who are suffering.” Justice Devine agreed that the jury’s determination must be based on evidence and not “noncompensatory motivations,” but Justice Devine believed that there will not be “evidence establishing that the injury was ‘worth’ a particular monetary amount.”

Justice Devine opined that this decision should be left to the Legislature rather than the courts. Unlike the plurality, the legislature can balance the tension between policy concerns—specifically those about potential arbitrariness—and the Constitutional command for just compensation. This may explain why Justice Devine and Justice Boyd did not join the plurality opinion, even when it comes to unsubstantiated anchoring, and may forecast where their votes may fall in future similar cases.

Justice Bland, concurring in part and concurring in the judgment

In Justice Bland’s view, further development of the law should be left to a case where the jury is properly informed about what to consider, and not told to apply measurements outside of the mental anguish evidence presented. Justice Bland agreed that improper argument by counsel affected the jury’s verdict but believes that was enough for reversal.

Takeaways

The biggest takeaway from this case is that it is a signal of where we can expect the Court to go in future cases where there are not three recusals like in this case. While the six sitting Justices appeared to separately agree that a new trial was warranted and that unsubstantiated anchoring was inappropriate, there is not a five-vote majority on any discrete issue in any of the authored opinions. While Justices Devine and Boyd appeared to agree with the Justices in the plurality that unsubstantiated anchoring was not permissible, Justices Devine and Boyd did not go as far as actually joining the plurality opinion on that point (or any other for that matter).

We can expect that litigants will continue to pursue petitions for review in the upcoming terms to seek the clarity on noneconomic damages that many thought the Court would provide in this case. How the other three recused Justices might vote remains to be seen and it will take another case with similar issues to ultimately discover which direction the full Court might follow. However, reading all three opinions this case together suggests that, in future cases, both unsubstantiated anchoring and jury arguments not linked to actual evidence will not be permitted. While the “shocks the conscience” standard appears to survive for the time being, the plurality’s opinion that a rational connection to the evidence is needed between the injuries suffered and the amount awarded by the jury suggests that the additional requisite votes to make this proposition a precedential ruling of the Court may not be far off.

Endnotes