When the Texas Supreme Court agreed to review a wrongful death jury award of $35.9 million for pain and suffering, many observers expected any ruling to result in a cap on noneconomic damages.
But their June 2023 opinion in Gregory v. Chohan didn’t go that far. Now, some predict a long road ahead for lawyers seeking review of such damages, Haynes Boone partner Mark Trachtenberg said during a CLE event presented Tuesday by The Texas Lawbook.
“People thought that would all be resolved in Gregory,” Trachtenberg said. “I think it’s going to linger for a while and may take multiple rounds of cases until we settle on an approach, if we change the approach we have right now.”
Trachtenberg, State District Judge Tonya Parker, Andy Payne of Payne Mitchell Ramsey and Jeff Tillotson of Tillotson Johnson & Patton discussed high damage awards, juror attitudes and trial strategy.
Large, so-called “nuclear verdicts,” a term that carries various definitions depending on who is asked, have been on the rise since the COVID-19 pandemic, although the trial in Gregory took place before the pandemic.
A jury in 2017 awarded the high-dollar verdict to two families of people killed in a pileup that occurred on a stretch of dark, icy highway in the Texas Panhandle involving a New Prime Inc. truck and its driver, Sarah Gregory. The appeal sought to cut the $15.5 million in noneconomic damages that comprised most of the $16.8 million share of the verdict awarded to the family of Bhupinder Singh Deol, who died in the crash.
Lawyers for New Prime asked the Texas Supreme Court to implement some type of ratio-based cap on noneconomic damages that would compare economic and noneconomic damages. Law professors and trial lawyer interest groups argued in amicus briefs that the trucking company advocated for a standard that would value the grief of rich plaintiffs more than that of poor plaintiffs.
Courts currently evaluate the reasonableness of the 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.”
In the Gregory case, three justices recused themselves: Justices Debra Lehrmann, Evan Young and Rebeca Huddle. The remaining six justices, in a plurality opinion, declined to implement a ratio requirement but ordered a new trial, finding one of the lawyers representing a different plaintiff made an improper anchoring argument.
“I think everybody’s looking for the follow-up case to Gregory v. Chohan,” Trachtenberg said. “The question is, what would happen when you have a full court and the issue of how do we evaluate noneconomic damages on appeal?”
Trachtenberg suggests keeping an eye on a few cases: Alonzo v. John, case number 22-0521; American Honda Motor Co. v. Milburn, case number 21-1097; and Werner Enterprises v. Blake, case number 23-0493.
The defendant in the Alonzo case is seeking to reverse a $13 million award based on the plaintiff counsel’s use of anchoring techniques, like in the Gregory case.
Trachtenberg was part of the legal team who on appeal represented Allied Aviation Fueling Company of Houston in the Allied v. Cruz case that netted a $352 million verdict in Harris County for the family of an airport worker. The worker was paralyzed after being struck by an Allied driver while working on the tarmac of George Bush Intercontinental Airport. The lawyers compiled verdict data of serious injury cases between 2000 and 2021 and created a scattergram to show the award was an outlier.
The visual had a persuasive effect, Trachtenberg said. The trial court judge reduced the jury’s award by about a third to $235.3 million and the eventual settlement figure was even less, Trachtenberg said.
Payne, a plaintiffs lawyer, argued the term “nuclear verdict” should be retired because it implies an issue with the court system where there isn’t one.
“There’s also, many times, outlier conduct by defendants or outlier facts that support a jury getting angry,” Payne said, later adding it’s difficult to pinpoint the reasons for a perceived change in jury attitudes because each case carries unique facts.
He does, however, suspect the prevalence of advertisements boasting big jury awards are influencing jurors.
Judge Parker said she’s noticed four consistent themes in cases where juries awarded large verdicts.
- Catastrophic injuries or death that are laid out in a profound way in the trial. She referred to last year’s trial over the death of a young woman, Kiersten Smith, who jurors learned was in the midst of planning her wedding when a crane suddenly toppled over during a storm and smashed into her apartment, killing her. Jurors decided the real estate developer Greystar was responsible and awarded Smith’s family more than $860 million — the second-largest Texas jury verdict in 2023.
- Defendants’ conduct when they could have done something to prevent the outcome compounds the injuries. “What is consistent is that across these cases, you generally can look and you can say, a reasonable juror would listen to this and would say, ‘This is not how I want to be treated. This is not how I want my child treated,’” Judge Parker said.
- Defendants’ attitude of, ‘We did what was minimally required of us,’ or ‘We haven’t changed anything about what we do and we stand by what we did.’ “That posture is one that leaves you open for what we’re referring to as ‘nuclear verdicts,’” Judge Parker said.
- The more a plaintiff’s lawyer is able to show a company’s worth and resources, the more likely a jury is able to reach a large verdict “because the whole point of it is to exact a punishment for what they have found on a clear and convincing standard unanimously is improper,” Judge Parker said.
The pandemic era and politics seem to have changed jurors’ attitudes, the panelists said, while noting there’s no definitive reason and they can only offer educated guesses based on their experiences. Harris County’s long held reputation for being not a not-so-plaintiff-friendly jurisdiction has changed in the last couple of years, Trachtenberg said.
“There’s a pretty broad consensus that something different is in the air after COVID,” he said.
Lawyers can no longer ascertain the “typical corporate friendly” juror, Tillotson said, adding that a lot of conservative Republicans are more suspicious of large corporations than they were a few years ago.
People have become more polarized and entrenched in their positions, which blocks their abilities to have an exchange of ideas in the jury room, Judge Parker said, referring to a study of jurors cited in the November edition of ALM Magazine. The article’s authors suggested jurors had grown further apart, rather than becoming more or less anti-corporate.
The article said jurors who ate lunch together throughout the trial — not just during deliberations — were more inclined to bond, and therefore see each other as people rather than positions when it came time to deliberate. The authors found hung juries were more likely in virtual mock trials, which they suggested was due to minimized social interaction.
“Giving them the opportunity to spend time with each other during that period where they can’t talk about the case at all, they’ve got to bond on other things, it puts them in a posture where they will give meaningful consideration to each other’s perspectives during deliberations,” Judge Parker said.