The worst fears of some amici did not come true when the Texas Supreme Court recently issued a plurality opinion in a closely watched case that could have seen radically new standards set for tethering noneconomic damages to the evidence in wrongful death and personal injury cases.
Among the 10 amicus briefs filed in the wrongful death case, some law professors and trial lawyer interest groups had argued that a trucking company was advocating for a standard that would value the grief of rich plaintiffs more than that of poor plaintiffs. In its 39-page opinion, the plurality wrestled with the fact that “assigning a dollar value” to emotional injuries “will never be a matter of mathematical precision” and in the end held that the arguments presented to the jury in this case will not cut it when it comes to tethering the amount to evidence in the record.
A new trial has been ordered.
Trial lawyer Tom Melsheimer, partner in Winston & Strawn’s Dallas office, told The Lawbook he received a bleak text from a friend when the court’s ruling — which spawned two concurrences and saw three justices recuse themselves — issued June 16.
“True story, when it came out, I got a text from a Fort Worth plaintiffs lawyer,” he said. “He said ‘The Texas Supreme Court has just ended personal injury cases.’ And I said ‘Wow, that’s something I need to read up on.’ But my first reaction was, that didn’t sound right. I do think there’s a lot of heat. I don’t think there’s much light.”
The lawsuit stems 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, Sarah Gregory, and her employer, New Prime, 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 case on appeal was whether the $15.5 million in noneconomic damages awarded to the family of Bhupinder Singh Deol should be cut. The family — his widow, their three children and his parents — was awarded about $1.3 million in economic damages.
The fatal crash happened after Gregory jackknifed the tractor-trailer she was driving and 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.
Six tractor-trailers and two passenger cars crashed into the New Prime truck. Three people died.
Justice Jimmy Blacklock authored the plurality opinion, joined by Chief Justice Nathan Hecht and Justice Brett Busby in full.
Justice Blacklock wrote that without requiring “a rational connection between the amount awarded and the evidence of injury,” labeling mental anguish and loss of companionship damages as compensatory “is illusory.”
While the Deol family presented “sufficient, even ample” evidence demonstrating compensable mental anguish exists in this case, there’s no evidence of a “rational connection between the injuries suffered and the amount awarded,” the plurality held.
Lawyers for the families of the other two individuals who were killed in the crash had, during closing arguments, told jurors to consider the cost of a Boeing F-18 fighter jet, $71 million, and the cost of a Mark Rothko painting, $186 million, when they were contemplating the amount of damages to award the families.
Another argument made to the jury that the plurality deemed improper was the attempt to tie the damages sought to the number of miles driven by New Prime’s fleet. The attorney for the other two families suggested jurors give New Prime their “two cents worth” by awarding the families two cents per each person killed in the crash for all 650 million miles New Prime trucks drove in the year of the accident.
That would total $39 million.
The jury awarded $38.8 million.
“The only discernible basis for the amount awarded in this case that appears from the evidence or the argument of counsel is the ‘two cents a mile’ suggestion, which matches the amount awarded within one-half of one percent,” Justice Blacklock wrote.
He explained that the court wasn’t suggesting that a plaintiff must put forth “direct evidence of a quantifiable amount of damages.”
“In other words, the requirement that some evidence support the amount of damages for emotional injury is not a requirement of precise quantification or a requirement that a particular type of evidence must always be proffered,” he wrote. “It is instead merely a requirement that the amount of damages must have a rational basis grounded in the evidence.”
But the plurality expressly rejected a suggestion put forth by New Prime and some amici to implement a ratio requirement between economic and noneconomic damages.
“To suggest that greater pecuniary loss necessarily justifies greater noneconomic damages is to suggest that the families of a well-paid decedent suffer more grief and pain than the families of those with less income,” Justice Blacklock wrote. “Our consciences should indeed be shocked by such a suggestion.”
Trial lawyer Quentin Brogdon, partner at Crain Brogdon in Dallas, said the plurality opinion is a “clear attempt to reign in perceived excesses in the award of noneconomic damages.”
“In theory, the idea that there must be a ‘rational reason ground in evidence’ for pain and mental anguish sounds wonderful,” he said. “The problem will be in the application. It is literally going to take years of appellate court opinions to sort out the contours of what is admissible and what is nonadmissible going forward.”
Brogdon is also the past president of the Texas Trial Lawyers Association, but spoke to The Lawbook only in his capacity as an attorney.
“In summary, they have attempted to elucidate a standard, but the standard is very much unworkable,” he said. “It is ‘we will know it when we see it.’ It is giving appellate courts carte blanche to overturn — on a whim — any award for the so-called soft damages, pain and mental anguish damages, based on a determination that there is no rational reason grounded in the evidence for that.
“What in the world does that mean?” he asked.
For trial lawyer Randy Sorrels, of Sorrels Law in Houston, the ruling won’t change how he prepares for trial, he said. The former president of the state bar told The Lawbook that the only part of the plurality opinion that’s binding on the trial courts is the holding that an improper jury argument was made here.
“It’s not binding, but it’s instructive on how at least three of the justices think,” Sorrels said. “So, I think plaintiffs lawyers would be prudent in supplying different metrics in evaluation of noneconomic damages.”
“There’s a lot to take in, but not much to take away,” he said.
A limited reading of the ruling advocates for “what the best trial lawyers have been doing for 100 years,” Melsheimer said, which is to rationally ground, or anchor, noneconomic damages in the evidence.
On the other hand, the ruling seemingly diminishes the power of juries, said trial lawyer Paul H. Cannon, shareholder at Simmons and Fletcher in Houston.
“It’s funny when you go and read the opinion because all through it, over and over, they give lip service to the idea that you have to leave it up to a jury, and then basically they substitute their opinion for the jury’s,” he said. “Instead of clarity, we just got ‘this case isn’t going to fly and here’s how not to do it.’”
Justice John Devine joined the plurality in part and authored a concurring opinion in which Justice Jeff Boyd joined, writing that the plurality had replaced an “elastic” standard with “an impossible one.”
Justice Devine said the plurality, in an effort to provide “guidance and guardrails” had overreached “and yet still comes up short,” and later wrote that he couldn’t join an opinion “that does so much and so little at the same time.”
The plurality, he wrote, “effectively neutralizes the jury’s role by requiring them to rely on evidence a claimant simply cannot present.” Justice Devine wrote that the plurality failed to offer guidance on what evidence would suffice to anchor noneconomic damages.
“The best the plurality can offer the bench, the bar, and these litigants is: we’ll know it if we see it,” he wrote. “But we will never see it. As the plurality itself acknowledges, ‘money cannot genuinely compensate for emotional trauma’ because such ‘noneconomic harm transcends quantification entirely.’ Pain and anguish are not ‘difficult to monetize’ due to the ‘impossibility of any exact evaluation’; they are easy to monetize but impossible to objectively quantify. By ignoring this basic truth, the plurality sets up a Sisyphean pursuit that would burden litigants and the legal system with costly do-over trials.”
Justice Jane Bland’s concurrence highlighted the “common ground” between three opinions: that the mental anguish damages awarded here could have been based on an improper jury argument, mandating a new trial.
But she wrote that she would have taken a different approach than the plurality and Justice Devine.
“To resolve the challenge to the mental anguish damages in this case, we neither need to adopt the plurality’s standard for determining whether the evidence demonstrates a rational connection to the amount awarded for every case, nor reject such a standard as Justice Devine advocates,” she wrote. “We instead should leave further development of the law to a case in which the jury is properly informed about what to consider and, importantly, not told to apply measurements wholly outside the mental anguish evidence presented.”
Justices Debra Lehrmann, Rebeca Huddle and Evan Young did not participate in the decision.
The Deol family is represented by Jeffrey Levinger, Tim Tate and Mick N. Das.
New Prime and Gregory are represented by Thomas Wright of Wright Close & Barger and Scott Brister of Hunton Andrews Kurth.
The case number is 21-0017.