Texas Supreme Court Overturns Non-Economic Damages Award Not Grounded in Evidence

The Texas Supreme Court recently handed down an opinion that may help rein in the rash of “nuclear verdicts” juries have been awarding in the last few years. Until now, Texas juries have generally been allowed to pick any number when determining the damage amount. In Gregory v. Chohan, the Supreme Court of Texas addressed the evidence needed to support non-economic damage awards in wrongful death claims.

Gregory was a wrongful death lawsuit arising from a tragic multi-vehicle pileup. The jury delivered a verdict of $38.8 million, with one family receiving an award of just over $15 million in non-economic damages. The defendants appealed the lower court’s ruling on several grounds, including the size of the non-economic damages award. The court of appeals, sitting en banc, affirmed the lower court’s ruling on all grounds. The Supreme Court of Texas then overturned the verdict, in large part because of a lack of actual evidence supporting the amount of non-economic damages awarded.

As noted by the court, the jury’s duty is to find an amount that “would fairly and reasonably compensate for the loss.” Importantly, the court held that it is insufficient for plaintiffs to show the existence of mental anguish or other consortium-type loss: plaintiffs must also present evidence justifying the amount of non-economic damages sought. Put simply, the amount of damages must have a rational basis for the amount that is grounded in evidence.

In Gregory, the court also expressly rejected two common techniques plaintiffs utilize to support requests for large amounts of non-economic damages: unsubstantiated anchors and unexamined ratios.

Technique 1: Unsubstantiated Anchor

Unsubstantiated anchoring is a tactic whereby attorneys suggest damage amounts by referencing objects or values with no rational connection to the facts of the case. In Gregory, the plaintiff’s counsel drew analogies to a $71 million Boeing F-18 fighter jet and a $186 million painting by Mark Rothko. Attorneys across the country use anchors like these to place monetary values on injuries and force jurors to consider damage amounts similar to the numbers offered, despite the lack of a rational connection between reasonable compensation and the suggested anchor. According to the court, unsubstantiated anchors are not evidence of the plaintiff’s loss and do not assist jurors in finding reasonable damage amounts.

Technique 2: Unexamined Ratio

The court also rejected the use of unexamined ratios, where a numerical ratio—that is not related to any evidence in the case—is used to calculate damages.  In Gregory, the plaintiff’s counsel argued that the plaintiffs tried to give their “two cents worth” to the defendants throughout the course of the lawsuit. Then, counsel urged the jury to give their “two cents worth” for every one of the 650 million miles a defendant’s truck drove during the year of the accident. The court explained the plaintiff’s “two cent” argument lacked any rational basis to support the sought compensation. In fact, the Texas Rules of Civil Procedure address techniques like the ones used by the plaintiff and require counselors to confine their arguments “strictly to the evidence and to the arguments of opposing counsel.” Tex. R. Civ. P. 269(e). Furthermore, courts are obligated to prevent improper jury arguments and are not “required to wait for objections to be made when the rules as to arguments are violated.” Tex. R. Civ. P. 269(g).

In overturning the award in Gregory, the Texas Supreme Court is reinforcing the principle that all damages, even non-economic damages, must be rationally tied to the evidence in the case. Where there is no direct evidence illustrating a non-economic damage, such as emotional injury, plaintiffs must establish a rational basis for the damages awarded, such as potential financial consequences of severe emotional trauma. The nature, duration, and severity of the alleged mental anguish also remain relevant considerations when justifying the damage amount. It remains to be seen how effectively trial courts will implement this decision, but it may help limit or prevent irrational nuclear verdicts.

The ABCs of RTPs: Texas Supreme Court Opinion Makes It Easier for Defendants to Designate Responsible Third Parties

A recent Texas Supreme Court opinion—Gregory v. Chohan, No. 21-0017, 2023 WL 4035886 *1 (Tex. June 16, 2023)—has made it easier for defendants to present evidence of liability for parties not in the lawsuit and for juries to actually assign those parties a percentage of fault on the verdict form. Gregory clarified that the evidentiary standard for designating a responsible third party (“RTP”) for apportionment at trial is a “no evidence” standard. A defendant must only present evidence raising a genuine issue of fact to add a non-party to the verdict form. This is the same standard applied to summary judgment, which has historically been a low bar for plaintiffs in Texas courts. The Gregory ruling should enable defendants to designate RTPs more easily.

Texas has long allowed juries to consider the fault of parties not present at trial and assign them a percentage of fault on the verdict form. See TEX. CIV. PRAC. & REM. CODE §§ 33.003, 33.004. RTPs can include any person who is alleged to have caused or contributed in any way to the harm, including bankruptcy trusts, unknown parties, and even immune parties (such as employers). See TEX. CIV. PRAC. & REM. CODE § 33.011(6); see PEMEX Exploracion y Produccion v. Murphy Energy Corp., 923 F. Supp. 2d 961, 980 (S.D. Tex. 2013); see Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 868 n. 6 (Tex. 2009).

Procedurally, a defendant must file a motion for leave to designate a responsible third party. See TEX. CIV. PRAC. & REM. CODE § 33.004(a). After an adequate time for discovery, a plaintiff may move to strike the RTP on the ground that there is no evidence the RTP contributed to the harm. Id. at § 33.004(l). Then, the burden shifts back to the defendant to “produce sufficient evidence to raise a genuine issue of material fact regarding the designated person’s responsibility for the claimant’s injury or damage.” See id.

In Gregory, a New Prime eighteen-wheeler driven by Sarah Gregory jackknifed across multiple lanes of traffic on an icy highway near Amarillo, blocking a large portion of the road. A tragic multi-vehicle pileup ensued. In addition to the New Prime truck, the accident involved two passenger vehicles and six other eighteen-wheelers. The accident claimed four lives, including Bhupinder Deol, a truck driver involved in the accident who was killed while attempting to assist others involved in the wreck. Deol’s estate sued Gregory and New Prime, among others, seeking damages for his death. 

Before trial, Gregory and New Prime sought to designate several responsible third parties, including another semi-truck company involved in the accident—ATG Transportation. Gregory and New Prime argued that it was not until the ATG truck arrived on the scene, tipped over, and blocked the remaining unobstructed portion of the road that the accident became unavoidable for approaching vehicles. The defendants reasoned that if Gregory was responsible for Deol’s death because of her negligence in obstructing the road, then the ATG driver must likewise be partially responsible because their negligence contributed to the dangerous road obstruction.

The trial court, upon request of Deol’s estate, struck the defendant’s RTP designations and later reaffirmed its ruling after presentation of the evidence. On appeal, the defendants chose only to appeal the exclusion of ATG. The court of appeals affirmed the trial court’s decision to exclude ATG, reasoning that the facts that lead to Deol’s death were solely attributable to Gregory’s negligence.

The Gregory court underscored the “obvious” similarity between the RTP standard and the no-evidence summary judgment standard. 2023 WL 4035886 *14. Reviewing de novo, the court found that the evidence would have permitted a reasonable jury to assign partial reasonability to ATG for Deol’s death. The court pointed to plaintiff’s own expert who testified that the ATG driver steered aggressively beyond the normal steering input and failed to control their speed. Further, a fact witness testified that when the ATG truck crashed it “went straight up in the air like it was [a] catapult.”  “Prohibiting the jury from considering ATG’s partial responsibility for Deol’s death was harmful error because litigants have a ‘significant and substantive right to allow the fact finder to determine the proportionate responsibility of all responsible parties.’”  Id. at *16.  Due to the harmful error, the Texas Supreme Court ordered a new trial.

The Texas Supreme Court’s ruling in Gregory makes clear that all Texas courts should review RTP motions in the same manner as they review no evidence motions for summary judgment—has the defendant presented sufficient evidence to raise a genuine issue of material fact. This is relatively low bar in which defendants only need to come forward with some evidence. A trial court that does not apply this standard commits a harmful error requiring a new trial. Going forward, Texas courts should be more willing to allow defendants their right to have the jury hear argument and assign fault to RTPs. This ruling emphasizes that the jury is the sole adjudicator of proportioning fault and defendants have the right to present evidence of all contributing parties, regardless of how much or little an RTP may have contributed to a plaintiff’s injury.