Texas High Court weighs standards for noneconomic damages

Ten amicus curiae briefs have been filed to offer the court points of view on the significance of the issue.

The Texas Supreme Court will hear argument on whether a new standard is needed to assess noneconomic damages. Graphic: Adolfo Pesquera

A host of stakeholders on either side of the issue of jury awards for noneconomic damages are focused on a Texas Supreme Court case set to be heard Tuesday.

Gregory v. Chohan, a lawsuit coming from the Fifth District Court of Appeals in Dallas, has personal injury trial attorneys concerned the court might step into an issue it has left to the lower courts of appeal for generations.

Ten amicus curiae briefs have been filed to offer the court points of view on the significance of the issue.

The Texas Trial Lawyers Association, in its amicus, implores the court to abide by its 1995 decision, Anderson v. Durant, which held that noneconomic damages offer a financial remedy for non-financial harm and are not amenable to calculation “with precise mathematical precision.”

Citing another Supreme Court decision, Windrum v. Kareh (2019), the trial lawyers association said, “The standard of review—factual sufficiency of the evidence—’has been the sole domain of the intermediate appellate courts in Texas since 1891.’”

“Creating a new balance among the juries and the various courts reviewing the jury’s findings would dishonor our commitment to this key right to have a jury decide fact findings which are then only reviewed for factual sufficiency and only by the first reviewing appellate court,” the association said.

Among those arguing for a new standard is Skip Watson of Greenberg Traurig, whose brief on behalf of National Liability and Fire Insurance Co. notes that National is reexamining its underwriting requirements for Texas commercial truckers and urges that noneconomic damages be restrained and made predictive.

National’s interest, Watson said, was the adverse jury verdict against a client for $730 million, where $480 million of that was noneconomic. In the wrongful death case, the jury was qualified as willing to render a verdict of “a billion dollars” to “send a message” to truckers, he stated.

National complains of the arbitrary nature of noneconomic damage awards, arguing the “teach the industry a lesson” trial lawyer arguments lead to “lawless, biased” verdicts that punish individual defendants, rather than compensate plaintiffs for actual damages sustained.

‘Gregory v. Chohan’

Sarah Gregory, a truck driver, and New Prime, her employer, appealed a $39 million verdict that was handed down after a three-week trial in a case where several people died when a series of collisions on black ice took place involving seven commercial and two passenger vehicles.

The Fifth District, sitting en banc, affirmed the judgment of the majority opinion. Four justices, however, dissented and asked the Supreme Court for guidance on how to assess excessiveness of noneconomic awards, and whether mental anguish in wrongful death cases must still meet the “nature, duration, and severity” requirement of Parkway v. Woodruff (Texas 1995).

In Parkway, the Supreme Court established standards for the existence of compensable mental anguish, requiring direct evidence of the nature, duration and severity of the mental anguish sufficient to show “a substantial disruption in the plaintiffs’ daily routine.”

Thomas Phillips of Baker Botts and Scott Brister of Hunton Andrews Kurth, arguing for the defendant petitioners, cited the dissenters’ lament: “The high court has given the intermediate appellate courts little guidance to govern … factual sufficiency of noneconomic damages,” or how to “conduct a ‘meaningful review’ of them.”

The petitioners, insurance companies and similarly aligned amici acknowledge that tort reformists’ successes with constitutional and statutory restrictions on punitive damages channeled the pursuit of big verdicts to noneconomic awards.

The plaintiff families are represented by Dallas attorneys Jeffrey Levinger and Tim Tate, with Micky Das of the Houston firm Tyler & Das. In their brief, they argue the issues raised would require the high court to overrule decades of settled precedent, “a drastic step that is not only unnecessary but is inappropriate under the specific facts of this particular wrongful death case.”

The wrongful death case at issue concerns three families who suffered three deaths and serious injuries to others after Gregory lost control of her 18-wheeler at night, jackknifed the truck across the interstate, and abandoned it without either activating the flashers or setting out warning devices.

Editor’s Note: The ALM Complex Claims & Litigation Forum being held in Las Vegas, Nevada on Feb. 27-March 1, will examine many of the issues surrounding commercial claims and social inflation. 

Related:

The domino effect of runaway jury verdicts in plaintiff-friendly venues

The (somewhat) hidden costs of social inflation