If a trucking company gets its way at the Texas Supreme Court, the grief of rich plaintiffs will be worth more in wrongful death damages than the grief of poorer plaintiffs, numerous law professors and a trial attorney interest group argue.
Later this month, the state’s high court will hear oral arguments in a lawsuit stemming from a fatal pileup that happened on a stretch of dark, icy road in the Texas Panhandle in November 2013. The two families who sued the allegedly responsible driver and her employer were awarded nearly $39 million in damages by a jury — $35.9 million of which was noneconomic damages. Those types of damages are intended to compensate an injured person or their family for physical pain and suffering, mental and emotional anguish, loss of companionship and loss of life.
At issue in this appeal is whether the $15.5 million in noneconomic damages awarded to the family of Bhupinder Singh Deol should be cut. The family was awarded about $1.3 million in economic damages.
The fatal crash happened after Sarah Gregory jackknifed a tractor-trailer she was driving for New Prime Inc. Six tractor-trailers and two passenger cars crashed into the New Prime truck.
Gregory left the truck — the cab partially on the left shoulder, the trailer blocking all of the left lane of Interstate 40 and half of the right lane — without activating emergency flashers or setting out reflective triangles that could have alerted other drivers of the obstruction.
Dallas County Court-at-Law No. 5 Judge Mark Greenberg entered final judgment in January 2018 in favor of the plaintiffs.
The Fifth Court of Appeals in Dallas set the case for oral arguments en banc on its own motion and affirmed the award in a split ruling issued Nov. 30, 2020.
In September, the Texas Supreme Court agreed to hear the case.
New Prime is asking the court to implement some type of ratio-based cap on noneconomic damages that would compare economic and noneconomic damages. Currently, courts evaluate the reasonableness of noneconomic damage awards under a “factual sufficiency standard” that requires the award be reduced only if it is “manifestly unjust,” if it “shocks the conscience” or if it “clearly demonstrates bias.”
If the 10 amicus briefs, or friend-of-the-court briefs, that have been filed in the case is any indication, the appeal has been closely watched by insurers, legal and economic interest groups and law professors.
Many respected lawyers, including former Texas Supreme Court justices, have gotten involved in the case, either as counsel for the parties or amici.
Former Texas Supreme Court Chief Justice Thomas Phillips, now of Baker Botts, and former Justice Scott Brister, of Hunton Andrews Kurth, are representing New Prime and its driver, Gregory, in trying to overturn the award. Justice Evan Young, who now sits on the court, was part of the Baker Botts team representing New Prime and Gregory prior to his appointment.
Paul Green of Alexander Dubose & Jefferson, who left the bench in 2020, filed an amicus on behalf of a trio of insurers. And former U.S. attorney for the Western District of Texas, John Bash, who is now at Quinn Emanuel, represents an amicus party supporting the Deol family.
Three Texas Supreme Court Justices — Debra Lehrmann, Rebeca Huddle and Young — have recused themselves from hearing the case.
The Texas Trial Lawyers Association, represented by its president Quentin Brogdon and John Gsanger of The Ammons Law Firm, filed a brief Nov. 14 telling the court Texas isn’t alone in rejecting implementation of a ratio system to evaluate an award of noneconomic damages: Courts in Alabama, Illinois, New Mexico and Oregon have done the same.
And that’s for good reason, TTLA argued, quoting a judge in Illinois who wrote that adopting such a ratio approach would establish “a Blue Book value on grief and emotional trauma” which will mean “that higher income people have more valuable relationships with loved ones than lower earners.”
“New Prime’s inability to meet the established appellate standard is not a sound basis for throwing out decades of settled law simply to ameliorate New Prime’s disappointment in the jury’s frank assessment of the damages it caused,” TTLA told the court in its brief.
Two amicus briefs filed in the case stood out from the others. Those came from the parties involved in a personal injury lawsuit that netted a $352.7 million verdict for now-paralyzed worker Ulysses Cruz and his family in the case he brought against Allied Aviation Fueling Company. It’s currently on appeal before a Houston appellate court.
Allied, represented in the amicus brief by Haynes and Boone’s Nina Cortell, Mark Trachtenberg, Kent Rutter and Ryan Philip Pitts and by Jackson Walker’s Brett Kutnick and Stuart B. Brown Jr., told the court that comparing jury awards across cases is a “meaningful way for a trial court or court of appeals to determine whether a particular non-economic damages award ‘shocks the conscience’ or falls so outside the zone of reasonableness as to require remittitur or a new trial.”
In its brief, Allied prepared for the court a chart that shows numerous Texas jury verdicts returned in catastrophic injury cases since 2000.
“Comparisons like these provide a court guidance as to a possible range of reasonableness for a particular damages award and help identify clear outliers that fall outside this zone of reasonableness,” Allied said. “They allow the judge to see how and where a verdict ‘fits’ in the broader landscape of Texas awards. Having had the benefit of these charts, the trial court in Cruz granted a remittitur of $117.5 million (a sizeable amount, though insufficient to bring the original $352.7 award within a permissible range under any applicable standard, as Allied Aviation will argue on appeal).”
Cruz’s lawyer at trial and on appeal, Randy Sorrels, also filed an amicus brief in this lawsuit arguing the comparison or ratio model championed by the petitioners and some amici in this case are unworkable.
“Petitioners are effectively asking this court to cap non-economic damages to not exceed past awards in similar cases and to not exceed some multiple of economic damages. If adopted, this proposal would constitute a major change that would usurp the right of injured persons to have their damages determined by a jury.”
Overworked trial judges don’t have the resources necessary for that to be a viable way to assess damage awards, Sorrels argued.
Also weighing in as an amicus in the case is a settlement planning company, Sage Settlement Consulting. Sage, represented by Bash and Alexander A. Zendeh of Quinn Emanuel Urquhart & Sullivan, told the court the rules currently in place governing noneconomic damages, which have been in place almost as long as Texas has been a state, “are vital to ensuring that people who have suffered major losses are fairly compensated.”
Sage called the requests of New Prime and the insurance companies who sided with the company in amicus briefs “transparently outcome-driven.”
“Having failed to persuade the Legislature to enact their preferred policies, petitioners and their amici urge this court to impose by judicial fiat what they could not achieve through legislation,” Sage argued. “This court should see that ploy for what it is: an attempt to circumvent the Legislature’s constitutional role and a brazen plea for this court to engage in freewheeling judicial policymaking, untethered to precedent or neutral decisional principles.”
A group of law professors from Stanford, Georgetown, the University of Texas at Austin, Washington University and the University of Minnesota warned the Texas Supreme Court about adopting arguments from those who want to see nonecomonic damages reigned in.
For starters, the professors argued that requiring trial courts to compare verdicts in different cases is “impossible” based on constraints on available data and resources. The idea of implementing ratios is “similarly misguided.”
“Tethering punitive damages to compensatory damages is at least defensible because punitive damages exist to punish, and punishments vary based on the harm the defendant inflicts,” the professors told the court.
The professors said using ratios would “also work substantial mischief” by placing a higher value on pain suffered by wealthy individuals than pain suffered by low-income plaintiffs. The argument from insurers that such measures are needed to reign in “skyrocketing” damages awards, the professors said, is belied by the evidence which shows noneconomic damages awards in Texas are actually declining.
Citing the state’s “injury cost index,” which is calculated by the Insurance Research Council, the index in Texas dropped 49 percent between 1990 and 2015.
“Thus, Texas’s system is becoming progressively stingier,” the professors said. “In fact, Texas’s injury cost index has fallen so sharply that Texas now boasts one of the three lowest cost indexes (i.e., one of the least ‘rich’ award systems) in the United States.”
And data from the U.S. Bureau of Justice Statistics tells the same story of falling damages in Texas. The insurance industry amici in this case “sit atop a pile of proprietary data that could assist this court” in discerning the truthfulness of the claims of skyrocketing awards, the professors said, but haven’t offered it up.
“That silence speaks volumes — and their unsupported say-so is a thin reed on which to rest a revolution in Texas tort law,” they wrote.
The American property Casualty Insurance Association, the Insurance Council of Texas, the National Association of Mutual Insurance Companies filed a joint brief in the case, arguing while the award here purports to compensate the Deol family for mental anguish and loss of companionship, “it does no such thing under the evidence presented.”
“These compensation awards and legal and administrative costs necessarily impact premiums and other costs incurred by Texas homeowners, businesses, and other citizens,” the insurers said. “If Texas courts continue to permit sky-high mental anguish and other noneconomic damage awards to stand, despite a lack of substantiating evidence, simply because they do not ‘shock the conscience,’ Texas consumers and businesses will ultimately bear the costs.”
The Deol family is represented by Jeffrey Levinger, Tim Tate and Micky N. Das. The case number is 21-0017.