The widow of a man who was killed in an on-the-job incident and two amici have asked the First Court of Appeals in Houston to revisit its May ruling that wiped out a Fort Bend County jury’s $222 million award.
Earlier this month, Kansas resident Kelli Most filed a motion for en banc reconsideration with the court. She argued that dismissal of her lawsuit against Team Industrial Services — which came after the Sugar Land-based company had unsuccessfully attempted pretrial to get the appellate court to move the suit out of Texas courts — on grounds that Texas was an inconvenient forum is “literally unprecedented.”
“Until now, no Texas appellate court has ever ordered dismissal for forum non conveniens after an unsuccessful mandamus proceeding and after a trial on the merits,” she argued. “If left uncorrected, the impact of the panel’s grievous errors will extend far beyond this case, threatening unsustainable confusion on a host of issues throughout trial courts in ten counties — if not more broadly. It need not be so. The court should grant reconsideration en banc.”
Most’s husband, Jesse Henson, who was employed by coal-fired power plant Jeffrey Energy Center, died in June 2018 when a pressure relief valve failed and exposed him to a “steam release.”
The details of what happened to Henson are laid out in Most’s motion for en banc reconsideration.
When the valve malfunctioned, it released 800-degree superheated steam on three unoccupied floors of the power plant. Henson and another man were sent to investigate after a supervisor heard “unusual popping noises from the plant’s exterior.”
Henson and the other man took an elevator to the 14th floor.
“As the doors opened, the superheated steam enveloped every inch of their bodies. In a desperate effort to survive, the men descended eleven flights of stairs to the third-floor control room,” the motion reads. “Screaming, the men beat on the emergency exit door until their coworkers ran to let them in. But the irreversible damage was done. Their skin was sloughing off their bodies; their eyes were blackened; their hair and tattoos had been burned off. After suffering for 45 minutes without pain treatment, Henson was life-flighted to the hospital, where he deteriorated and died 12 hours later.”
“Henson could never be placed in a medically induced coma. For 13 continuous hours, he experienced ‘extreme pain and suffering.’ His wife and ‘soulmate,’ Kelli Most, looked on helplessly as he died. She suffered unspeakable and permanent emotional trauma. She has been a ghost of herself ever since.”
Team Industrial Services, the defendant in Most’s lawsuit, had recently serviced the pressure relief valves, and Most accused the company of negligence and gross negligence in her wrongful death and survival lawsuit.
Fort Bend County filed an amicus brief in the case on Tuesday, urging the court to grant reconsideration en banc to ensure “that the forum non conveniens doctrine is not applied in a manner abhorrent to its fundamental purpose, which is to protect litigants from harassing lawsuits in inconvenient jurisdictions, while recognizing the local interests in deciding localized disputes.”
“In this case, the ‘local interest’ includes the Fort Bend County community’s interest in adjudicating matters involving the local conduct of their fellow citizens, even when (and often especially when) that conduct impacts communities elsewhere,” the county told the court.
In this case, “a company headquartered in Texas is sued over its Texas-based conduct,” Fort Bend explained in its brief.
The county argued the trial judge was reasonable in concluding “there is some evidence the claims arose directly out of the local conduct of a defendant headquartered in Fort Bend County, and that the citizens of that county therefore have a considerable interest in adjudicating that dispute.”
In its May ruling, the First Court of Appeals panel — Chief Justice Terry Adams and Justices Julie Countiss and April L. Farris — determined the case should have been filed in Kansas but also found that improper jury arguments had “left the jury with no sound guidance for deciding the amount of compensation to award Most for mental anguish and loss of companionship.”
Referencing the Texas Supreme Court’s fractured 2023 ruling in Gregory v. Chohan — which held a new trial was required in a wrongful death trucking case because of improper jury argument that tethered damages to the cost of a fighter jet and a Mark Rothko painting — the panel wrote that Most’s trial counsel in this case “did exactly what the Gregory court deemed improper.”
As an example, the court highlighted statements Most’s counsel made to the jury:
“You may see a headline, painting sells for $350 million, right. That’s what somebody who owned it was willing to sell it for. It’s a bargain. It’s a deal. It’s a price, fair and reasonable. I don’t think there is a person that would say that a painting is more valuable than a human life.”
“And Most’s counsel returned to this theme in his closing argument, suggesting that ‘[t]he hard part of [the jury’s] job . . . [was] valuing the whole person, [and] valuing the entire loss,’” the panel wrote. “And counsel stated, ‘if you picked 300 million because you can make an exchange for a painting, then that’s okay.’”
Most was awarded $27 million for physical pain and $30 million for mental anguish on her wrongful death claim, as well as $75 million for past and future loss of companionship and $90 million for past and future mental anguish on her survival claim.
The panel found the damages award wasn’t supported by the evidence and dismissed the lawsuit for forum non conveniens.
In her motion for reconsideration en banc, Most argued that the panel’s opinion “overrides the bedrock principle that improper jury argument is curable, and in any event subject to remittitur.”
“Worse still, it orders that retrial to happen in Kansas, becoming the first decision in Texas appellate history to dismiss a case under forum non conveniens after a full trial has already occurred and after the Court had denied a mandamus petition on the very issue.”
Harvey Brown, a former Harris County district judge who is now of counsel at The Lanier Law Firm, filed an amicus brief Aug. 5.
He said his reason for weighing in on the case is two-fold: 1) the panel’s treatment of the plurality opinion in Gregory from the Texas Supreme Court’s last term, and 2) the implications of that on other cases — including a case that netted his client a $14 million verdict that’s currently on appeal in Waco — involving an excessiveness challenge to noneconomic damages awards.
“By definition, the plurality opinion in Gregory v. Chohan is not binding precedent,” he wrote. “Applying plurality dicta and opinions as binding precedent leads to confusion and inefficiency, impeding the parties as they identify the strengths and weaknesses of their respective claims and defenses, making cases more difficult to resolve by settlement, and making trial court’s excessiveness review more uncertain and correspondingly more difficult.”
Brown argued the First Court of Appeals needs to revisit its ruling in this case because the panel’s opinion could be misconstrued by lawyers and judges alike as holding that “the Gregory plurality opinion governs the standard for the quantum of proof necessary to support the amount of noneconomic damages in a personal injury case.”
“As a plurality opinion, it should be applied only for the narrow propositions which were agreed to by all six sitting justices, such as its holding that unsubstantiated anchoring is improper,” Brown wrote.
Because only three Texas Supreme Court justices adopted the excessiveness review standard articulated in Gregory, it should have no bearing on other cases, Brown argued.
“As Kevin Dubose with Alexander Dubose & Jefferson has observed in a CLE paper, the Gregory plurality opinion from a fractured court lacks ‘any precedential value in other cases,’” Brown wrote.
Team Industrial is represented by Russell Hollenbeck, Brian J. Cathey and Michael J. Adams-Hurta of Wright Close & Barger, Wallace B. Jefferson, Robert B. Dubose and William J. Boyce of Alexander Dubose & Jefferson and Eileen F. O’Neill and Paul Smith of Ware, Jackson, lee, O’Neill, Smith & Barrow.
Most is represented by Daryl L. Moore of Ahmad Zavitsanos & Mensing, S. Scott West of The West Law Firm, Kyle D. Hawkins of Lehotsky Keller Cohn and Jason A. Itkin, Andrew R. Gould, Brian M. Christensen and Cory D. Itkin of Arnold & Itkin.
Amicus Fort Bend County is represented by Bridgette Smith-Lawson and Kevin T. Hedges of the county attorney’s office.
Amicus Harvey Brown represented himself
The case number is 01-22-00313-CV.