The Texas Supreme Court questioned during oral arguments Tuesday whether there was a workable way to tether or cap noneconomic damages in wrongful death cases.
The hourlong arguments comes in a case, Gregory v. Chohan, that will be decided by only six justices — after the recusals of Justices Debra Lehrmann, Evan Young and Rebeca Huddle. The court asked whether some proposals, like comparing awards across cases, were too cumbersome for trial courts and juries and if there should be more burden on plaintiff lawyers to tether the damages requested to the facts of the case.
In response to a suggestion from Thomas Wright of Wright Close & Barger that the court could “compare noneconomic to economic damages” in order to determine their reasonableness, Justice Jimmy Blacklock said that to do so would be “replacing one arbitrary measure with another.”
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.”
“I mean, if you take seriously the notion that what we’re doing here is compensating people for the mental anguish that they suffer because of the death of a loved one, there’s no conceivable connection between the pecuniary loss suffered — the economic value of that person and their future earnings — and the mental anguish suffered by the loved ones,” Justice Blacklock said.
Wright said he believes there is some connection between those numbers.
“People grieve in many different ways and there’s no perfect way to say, ‘This is the amount of money you get for grieving,’” Wright said. “But as this court has already said… we need detailed analysis, reasoned analysis and substantial review.”
Justice Blacklock raised a morality point in response.
“It seems like we’re already on tenuous moral footing assigning dollar amounts to people’s grief,” Justice Blacklock said. “And if we base those amounts to some extent on the earning power of the deceased, the footing becomes even more tenuous.”
Gregory v. Chohan, stems from a tactor trailer incident that killed three people, including Bhupinder Deol. Sarah Gregory jackknifed a rig she was driving for New Prime Inc. on a stretch of icy highway in the Texas Panhandle in November 2013. Six tractor-trailers and two passenger cars crashed into the New Prime truck. The two families who sued Gregory and New Prime were awarded nearly $39 million in damages by a jury — $35.9 million of which was noneconomic damages.
At issue in this appeal is the proper standard of review for noneconomic damages and whether the $15.5 million in noneconomic damages awarded to six members of the Deol family should be cut. The family was awarded about $1.3 million in economic damages.
Justice Jeff Boyd asked if the court were to “articulate some new, more clear, more helpful standard” directing the appellate courts on how to review noneconomic damages awards — possibly by looking at an average of similar awards in other cases, adjusted for inflation — whether the trial courts should then be instructing juries on that standard before they determine the award.
Wright, who represents Gregory and New Prime, said that raises other issues, like how to tell a jury — which is only supposed to consider evidence in the record of a particular case — about facts and awards in other cases. Putting evidence into the record of other results in other cases, he said, could also “extend the time of jury trials beyond what anyone could bear.”
But leaving the jury in the dark about the standard that would be used to review the award doesn’t solve the problem of “having an evidentiary basis for the number,” Justice Blacklock replied.
“If you don’t do that, there’s no anchoring point, no number to connect whatever facts there are about ‘nature, duration and severity [of the mental anguish] to a number,” he said.
The case has received significant amicus attention from insurers, legal and economic interest groups and law professors. In all, 10 friend-of-the-court briefs were filed with the court, including one from the Texas Trial Lawyers Association pointing out that 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.
Jeffrey Levinger, who argued on behalf of the Deol family, told the court that New Prime and Gregory are offering “solutions in search of a problem,” and are really asking the court to “overhaul the standard for reviewing noneconomic damages awards that have been used” in Texas since at least 1891.
Justice Blacklock asked Levinger to explain the rational connection between the damages awarded in this case and the evidence that was presented to the jury.
“The question is ultimately is it fair and reasonable compensation,” he said. “And I would suggest that $15 million in noneconomic damages, that covers six people… isn’t some wild number. It’s $15 million that covers two types of damages, it covers past and it covers future mental anguish, and the disruption to this family’s life is dramatic.”
Justice Jane Bland asked Levinger whether he thought there was an “outer boundary” to the amount of mental anguish damages a jury can award. He said there is, but that it’s “far beyond” what was awarded in this case.
“I wish I could be more precise… but in looking at fair and reasonable compensation to six people… to my way of thinking it’s insulting to say $15 million is excessive.”
The Deol family is also represented by Tim Tate and Mick N. Das.
New Prime and Gregory are also represented by Scott Brister of Hunton Andrews Kurth
The case number is 21-0017.