Texas Bar Journal • January 2024
[OPINION]
Appellate Review of Non-Economic Damages
Gregory v. Chohan leaves a cloud of uncertainty.
Written by H. Victor Thomas and Randall O. Sorrels1
THE EVOLUTION OF THE STANDARD OF REVIEW FOR NON-ECONOMIC
DAMAGES
To properly evaluate the significance of the Supreme Court of
Texas’ recent decision in Gregory v. Chohan,2
one needs to consider the court’s decisions that preceded it.
First, in Parkway Co. v. Woodruff (1995),3 because some of the justices of the Supreme Court of Texas voiced concerns about the potential for over-compensation for mental anguish, the court established a new threshold for the recovery: An award of mental anguish damages will survive a legal sufficiency challenge when there is direct evidence of the nature, duration, and severity of mental anguish that substantially disrupts the plaintiff ’s daily routine.
Next, in Saenz v. Fidelity & Guaranty Insurance Underwriters (1996),4 the court reviewed whether the evidence was legally sufficient to support a mental anguish award of $250,000. For the first time, the court held that not only must there be evidence of the existence of mental anguish under the Parkway standard, but there must also be some evidence to justify the amount awarded and that such amount is reasonable compensation. The court concluded that “[t]here is no evidence in this case that Saenz suffered mental anguish or that $250,000 would be fair and reasonable compensation.”
In Bentley v. Bunton (2002),5 the court reviewed whether the evidence was legally sufficient to support a $7 million award for mental anguish in a defamation case. Although the evidence was sufficient to support an award under the Parkway standard, the court concluded that there was no evidence that Judge Bascom Bentley III, of the 369th District Court in Anderson County, suffered damages in the amount of $7 million, which was more than 40 times the amount awarded for damage to reputation.
In Bennett v. Grant (2017),6 the court held that the evidence was sufficient under Parkway to support the jury’s award of $5,000 for mental anguish. The court discussed evidence showing that Larry Wayne Grant suffered a high degree of mental pain and distress and concluded that this evidence was sufficient to support both the existence of anguish and the amount awarded.
In Saenz, Bentley, and Bennett, the way the court determined whether there is some evidence that the amount awarded is justified and is reasonable compensation was based on the evidence of the nature and the degree of the severity and duration of the anguish compared to the size of the award. Specifically, evidence of extremely severe and long-lasting anguish justifies a large award while evidence of less severe and short-lasting anguish justifies a small award. None of these decisions held that a plaintiff must offer evidence proving specific amounts of non-economic damages which by definition have no pecuniary measure. Specifically, evidence of extremely severe and long-lasting anguish justifies a large award while evidence of less severe and short-lasting anguish justifies a small award. None of these decisions held that a plaintiff must offer evidence proving specific amounts of non-economic damages which by definition have no pecuniary measure.
A CLOUD OF UNCERTAINTY DESCENDS—GREGORY V.
CHOHAN
Against this backdrop, in June 2023, came Gregory v. Chohan. An
18-wheeler driven by Sarah Gregory jackknifed across several lanes of
traffic and through a series of collisions caused Bhupinder
Deol’s death. Deol’s wife (Chohan) and family brought a
wrongful death action against Gregory and her employer, New Prime. The
jury awarded just over $15 million to Deol’s six family members
for mental anguish and loss of companionship. On appeal, the defendants
challenged the size of the award.
Only six of nine justices participated in the decision. Justice Jimmy Blacklock issued a plurality opinion, joined by Chief Justice Nathan L. Hecht and Justice Brett Busby, that reversed the judgment for three reasons: (1) the trial court wrongly excluded a responsible third party from the jury charge; (2) plaintiffs’ counsel made improper arguments to serve as anchors for the amount of the awards; and (3) the evidence was legally insufficient to support the amounts awarded under a proposed new test devised by the plurality.
The proposed new test goes beyond Saenz, which only requires that there be some evidence of nature, duration, and severity that justifies the amount of the award. This new test additionally requires plaintiff ’s counsel to:
(1) tell courts and jurors why a given amount or a range of amounts would be reasonable and just compensation,
(2) proffer a rational argument, grounded in the evidence, justifying the amounts sought and awarded, and
(3) demonstrate a rational connection, grounded in the evidence, between the injuries suffered and the amounts awarded.
Although the plurality opinion conceded that Chohan’s testimony gave the jury much to work with regarding the existence of damages, the opinion concluded that no evidence supported the amounts awarded because plaintiffs had not proffered a rational connection between the amounts awarded and the evidence of the non-economic damages.
Justice Jane Bland agreed that the jury’s verdict was infected by improper jury argument but left for another day the standard of review for the amount of non-economic damage awards.
Justice John Devine, joined by Justice Jeff Boyd, rejected the plurality’s proposed new test, arguing that it is impossible to meet and unprecedented. No other Texas court or court of another state or federal court has adopted a test of this kind.
THE UNSUBSTANTIATED ANCHORING ARGUMENTS
All the justices condemned the use of “unsubstantiated
anchoring,” which the plurality opinion defined as a tactic
whereby attorneys suggest damages amounts by reference to objects or
values with no rational connection to the facts of the case. Anchors
employed by counsel included a $71 million fighter jet and a $186
million painting by Mark Rothko. But what concerned the justices the
most was that counsel urged the jury to give defendants their
“two cents worth” for every one of the 650 million miles
that New Prime’s trucks drove during the year of the accident.
The “two cents a mile” calculation yields $39 million in
damages, and the final jury verdict was $38.8 million.
But reversal cannot be obtained based on improper jury argument unless the complainant objected to the argument at trial or proves that the argument was not curable by instruction.7 Incurable jury argument is rare because typically, instruction from the court can cure any probable harm.8 In Gregory, no objection was made to the jury arguments. None of the justices considered whether the improper jury arguments could have been cured through an instruction to the jury to disregard them. Another cloud of uncertainty—Does Gregory raise doubt regarding the court’s improper-jury-argument precedent?
THE PLURALITY’S PROPOSED NEW TEST IS NOT BINDING ON
THE LOWER COURTS
Under the Texas Constitution, the Supreme Court “shall consist of
the Chief Justice and eight Justices,” for which “the
concurrence of five shall be necessary to a decision of a
case[.]”9 When “the principles of law have not
been agreed upon by a majority of the sitting court, the plurality
opinion is not authority for determination of other cases, either in
this Court or lower courts.”10 “No court, no
advocate, and no litigant can justly claim the plurality opinion as
precedent for any other case.”11
The Gregory plurality opinion pertaining to the proposed new test got only three clear votes. It therefore has no precedential value. Some may argue that the parts of the plurality opinion joined by Justice Bland have precedential value because they were agreed to by a majority of the participating justices. That argument is refuted by the Texas Constitution, which requires a concurrence of five justices. As discussed next, it is far from certain that five justices will adopt the proposed new test given its many flaws.
THE PROPOSED NEW TEST DREW HEAVY CRITICISM FROM JUSTICES
DEVINE AND BOYD
Justice Devine begins his concurrence by observing that the plurality
opinion advocates “a new evidentiary standard that is not only
foreign to our jurisprudence but also incapable of being
satisfied.”12 He concludes that “[t]he plurality
opinion would effect a sea change in the law without providing any
reasonably defined parameters.”13
His reasons for reaching these conclusions are sound. First, the proposed new test reverses the burden on appeal—rather than requiring the appealing party to demonstrate the absence of a rational basis for the jury’s damage awards, it requires the prevailing party to justify the jury’s award. This violates the rule that it is appellant’s, not appellee’s burden to show error.14
Next, the proposed new test ignores the basic truth that non-economic harm transcends quantification and that pain and anguish are impossible to objectively quantify. The jury’s decision must be based on evidence of the nature, duration, and severity of the claimant’s suffering, “[b]ut the reality is it can never actually be based on evidence establishing that the injury was ‘worth’ a particular monetary amount.”15
Further, the “plurality’s opinion is fundamentally at odds with the Court’s admonishment today that ‘disregarding a jury’s verdict is an unusually serious act that imperils a constitutional value of immense importance—the authority of a jury.’”16 It “effectively neutralizes the jury’s role by requiring them to rely on evidence a claimant simply cannot present.”17
In addition to the flaws identified by Justice Devine, there are two more.
First, the plurality held that when sufficient evidence exists to support the existence of damages but not the amount awarded, the court remands to the court of appeals to consider a remittitur. But if there is no evidence to support the amount of an award, how can the court of appeals rationally decide how much it should remit? It can’t.
Second, to survive a legal insufficiency review, the plurality requires plaintiff ’s counsel to tell courts and jurors why a given amount would be reasonable compensation. But “‘arguments are not evidence’ in a legal-sufficiency analysis.”18
CONCLUSION
Justice Devine is right—the plurality’s new test is unworkable
and is impossible to meet. Therefore, it is far from certain that five
justices of the court will adopt it. Instead, courts should continue
deciding whether there is some evidence that the amount of non-economic
damages awarded is justified and is reasonable compensation based on
the evidence of the nature and the degree of the severity and
duration of the damage compared to the size of the award. Even the
plurality agrees that evidence of the “nature, duration, and
severity” of the anguish suffered “is relevant to the amount
awarded.” Beyond that, the amount should be left to the
jury’s discretion subject to factual insufficiency review by the
courts of appeals.
REPLY TO THE RESPONSE
Ryan Pitts and Mark Trachtenberg have authored a response to this
article, to which we briefly reply.
The response—written by two excellent lawyers—does not provide any guidance on how to meet the plurality’s new test that requires plaintiff ’s counsel to proffer a rational argument, grounded in the evidence, justifying the amounts sought and awarded.
In lieu of the plurality’s new test, the response suggests its own test consisting of four factors, two of which are highly controversial and problematic: Namely, the ratio of economic to noneconomic losses in appropriate cases, and the awards for noneconomic damages in comparable cases.
Using the ratio of economic to noneconomic damages has many problems. For example, it allows high-wage earners to recover more noneconomic damages than low-wage earners—a result that is both unjust and irrational.
As to the comparative approach, seven of the Texas Courts of Appeals have concluded that it is of little or no help because comparing injuries in different cases is virtually impossible and the same loss will result in different damages to different individuals.19 Additionally, the Restatement (Third) of Torts: Remedies § 17, authored by reporters Douglas Laycock (a renowned expert in remedies) and Richard Hasen, does not endorse comparative review because the data necessary to perform meaningful comparisons is not available. Justice Keith rightly observes that the practice of comparing awards is unsatisfactory because no two cases are alike and it requires the appellate court to go outside the record and consider evidence that the jury could not.20 The many insolvable problems with the comparative approach, which make it unlikely that a Supreme Court majority will adopt it, are detailed in amicus briefs filed in Gregory.21
H. VICTOR
THOMAS is an attorney with Sorrels Law in
Houston. He is certified in civil appellate law by the Texas Board of
Legal Specialization and served as a research attorney and then as a
staff attorney for the 14th Court of Appeals for over seven years.
Thomas has over 30 years of experience in assisting trial counsel with
legal issues during all stages of litigation and with appeals in state
and federal courts.
RANDALL O.
SORRELS is a former State Bar of Texas
president and is certified in personal injury trial law and civil
trial law by the Texas Board of Legal Specialization. In 2022, Sorrels
was named TEX-ABOTA’s Trial Lawyer of the Year. He is a partner
in Sorrels Law in Houston.