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On Friday June 16, the Supreme Court of Texas issued a plurality opinion (with two separate opinions concurring in the judgment and three justices not participating) in Gregory v. Chohan, No. 21-0017, regarding the important issue of judicial review of noneconomic damages.  The Supreme Court reversed the jury’s award of around $15 million in past and future mental-anguish and loss-of-companionship damages to the decedent’s family members.  Here are the key takeaways.

Justice Blacklock’s plurality was joined by Justice Bland’s concurrence as to the following points:

    1. compensation, not punishment or deterrence, is the goal of noneconomic damages;
    2. the Supreme Court’s precedents “require legally sufficient ‘evidence of the nature, duration, and severity’ of mental anguish to support both the existence and the amount of compensable loss” (emphasis added);
    3. “Any system that countenances the arbitrary ‘picking numbers out of a hat’ approach to compensatory damages awards is not providing the rational process of law that we are obligated to provide, or at least to strive for”;
    4. jury arguments are improper that employ a tactic of “unsubstantiated anchoring,” whereby lawyers “suggest damages amounts by reference to objects or values with no rational connection to the facts of the case”—such as a multi-million dollar fighter jets and famous paintings or asking the jury to award an amount for every mile the defendant’s trucking company travels per year—because these things do not assist in rationally explaining why a certain amount of noneconomic damages compensates for loss; instead, these arguments are aimed at generating large damages awards that punish the defendant, and trial courts should prevent such arguments, sua sponte if necessary; and
    5. the standard of review of noneconomic damages in a wrongful-death case does not require comparison of the amount of noneconomic damages to the amount of economic damages (i.e., a consideration of the ratio), because such a comparison is not necessarily useful and may unfairly support larger awards for families of well-paid decedents compared to families of lesser-paid decedents; whether such a comparison is useful should be considered on a case-by-case basis.

In a section not joined by Justice Bland, the plurality proposed the following standard: “In sum, to survive a legal-sufficiency challenge to an award of noneconomic damages, a wrongful death plaintiff should bear the burden of demonstrating both (1) the existence of compensable mental anguish or loss of companionship and (2) a rational connection, grounded in the evidence, between the injuries suffered and the amount awarded.”

The plurality applied its proposed standard to the case, concluding that the evidence was sufficient to support the existence of the family members’ mental anguish and loss of companionship but was “no evidence, standing on its own, of the amount of damages incurred on account of that suffering.”  (emphasis added).  The plurality explained,

Crucially, plaintiffs’ counsel at no point in these proceedings has attempted to proffer a rational argument justifying either the amount sought or the amount awarded. At trial, the only arguments provided to justify an amount of damages were impermissible appeals to irrelevant considerations, such as fighter jets and [defendant’s] total miles driven.  On appeal, the plaintiffs’ suggested approach is that as long as the jury is properly instructed and no improper motive is evident, then the jury may essentially “pick a number and put it in the blank.”  But that is precisely the kind of arbitrariness our precedent attempts to avoid by insisting on “evidence to justify the amount awarded.” (citations omitted).

The plurality held that the unsupported damages awards, in conjunction with the trial court’s erroneous failure to submit a responsible third party, required a remand of the entire case to the trial court for a new trial, a result joined by the concurring justices.

In his concurrence joined by Justice Boyd, Justice Devine was critical of the plurality’s proposed standard because it is “impossible” to meet given the impossibility of monetizing pain and suffering, “effectively neutralizes the jury’s role by requiring them to rely on evidence a claimant simply cannot present,” and seems to suggest that the non-appealing plaintiff has the burden on appeal to demonstrate a rational basis for the damages awarded.  Justice Devine commented that the Texas Legislature is best equipped to determine what standard to apply.

In her concurrence, Justice Bland expressed that determination of the precise standard to apply should be left for another case because the noneconomic damages awarded in this case could be set aside solely on the basis of improper argument.

Accordingly, the precise standard to be applied in reviewing noneconomic damages still needs to be determined. For now, lawyers should avoid arguments that ask the jury to award an amount of noneconomic damages without a rational connection to the facts of the case. The point of noneconomic damages is to make whole based on the facts, not make rich based on passion and prejudice.

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Andrew L. Johnson

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