Opinion
No. 01-02-01101-CV.
July 21, 2005.
Appeal from the 334th District Court, Harris County, J. Dale Wainwright, J.
Daryl L. Moore, Storey, Moore McCally, P.C., Robert D. Green, Robert D. Green Associates, P.C., Houston, TX, for Appellant.
Kurt T. Nelson, McCormick, Hancock Newton, Murry B. Cohen, Akin Gump Strauss Hauer Feld, Houston, TX, for Appellee.
Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
OPINION
On August 30, 1997, A.B, a patient who was undergoing rehabilitation therapy for a brain injury at The Institute for Rehabilitation and Research (TIRR), appellee, stated that she had been sexually assaulted by another brain-injured TIRR patient. As A.B.'s next friend, appellant, N.N., her mother, sued TIRR, a health-care provider, pursuant to former article 4590i of the Medical Liability and Improvement Act. In response to a general negligence question and standard, predicated damage questions, the jury found TIRR negligent and awarded $300,000 for mental anguish that A.B. sustained in the past and $625,000 for mental anguish that, in reasonable probability, she would sustain in the future. In response to TIRR's motion for judgment notwithstanding the verdict, the trial court vacated the jury's award of future damages. The parties eventually settled the claim for past damages, and a trust was created for the benefit of A.B. as to those damages. N.N.'s sole issue on appeal challenges the trial court's entry of judgment notwithstanding the verdict on the issue of damages for future mental anguish.
See TEX.REV.CIV. STAT. ANN. art. 4590i, § 13.01(e), (r)(6) (Act of May 30, 1977, 65th Leg., R.S., ch. 817, §§ 1.01-12.01, 1977 Tex. Gen. Laws 2039-53, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204 § 10.09, 2003 Tex. Gen. Laws 847, 884) (current version at TEX. CIV. PRAC. REM. CODE ANN. § 74.351(b)(2), (r)(6) (Vernon 2005)); see also Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 543 n. 2 (Tex. 2004) (noting codification of former article 4590i).
We affirm the trial court's judgment notwithstanding the verdict on the issue of damages for future mental anguish. Because TIRR appealed only if we sustained N.N.'s issue, we do not address TIRR's appeal, which challenges the jury's finding TIRR negligent and awarding damages for A.B.'s past mental anguish.
Facts and Procedural History
When she was 18 years old, A.B. sustained a serious brain injury in a June 6, 1997 automobile accident that also resulted in her sister's death. A.B. was in a coma after the accident and was still in a coma when surgery was performed to remove the right frontal and right temporal lobes of her brain. On July 2, 1997, she was transferred to TIRR, where she emerged from her coma, and was undergoing rehabilitation therapy for her brain injury. She was transferred briefly to another facility, but returned to TIRR on August 22, 1997.
On August 21, 1997, the day before A.B. returned to TIRR, a male, brain-damaged patient in his early 30's, was admitted to the same third-floor unit as A.B. Because of the known propensity of brain-injured patients to wander and become disoriented, access to this floor was restricted. The patient, Mr. B., occupied the room across the corridor from A.B.'s room. Both rooms were the closest possible to the nurse's station for that area.
On the evening of August 30, 1997, A.B. was in her room and in bed. Her bed was a "modular box bed," which consisted of a mattress on the floor surrounded by a three-and-one-half foot wall, or railing. She was given a suppository medication to facilitate a bowel movement, and her diaper was left open with a protective pad placed beneath her pelvis, according to standard nursing practice that facilitated cleaning the patient. When A.B. was observed having a bowel movement at about 9 p.m., a nurse closed the door to A.B.'s room to permit her privacy, also according to standard nursing practice. Shortly after 9 p.m., and about when A.B. was due to be checked and cleaned, a nurse saw Mr. B. walking from the direction of A.B.'s room. Nurses went to A.B. immediately, and a nurse followed Mr. B to his room.
When the nurses entered A.B.'s room, they found her lying in her bed, as she held a telephone to her ear and appeared to be involved in a conversation. Her diaper was open, as before, but feces had become smeared on her perianal area and the pad beneath her. In addition, her bed was open at one end, and footprints of feces appeared on the interior walls at the foot of her bed. When asked if anyone had touched her, A.B. indicated that a sexual assault had taken place by gesturing with her hands as follows: she formed one hand into a circle with her forefinger and thumb, and, using her other hand, she put her forefinger through the circle. A.B. also told one of the nurses that a man had come into her room and "had sex" with her. A.B. did not appear upset, was not crying, and responded that she was "okay" when asked.
The medical staff at TIRR did not observe any evidence of trauma to A.B.'s genital area, but noticed redness around her vagina and observed that A.B.'s face was flushed. A.B. was transferred to Hermann Hospital for examination for suspected sexual assault, and police and A.B.'s parents were notified.
The nurse who followed Mr. B. to his room after the assault found him in his bathroom. He was clothed and attempting to clean feces from his feet. The nurse confirmed that no feces or secretions of any kind were apparent on Mr. B.'s genitals.
The physician who examined A.B. at Hermann Hospital at about 1:30 a.m. that night noted that A.B. had no recollection of any events of the previous few hours and exhibited no acute distress or pain. Two additional members of the examining team noted that A.B. could not recall the events of the evening, but a police officer indicated that she reported a sexual assault. The physician's pelvic exam of A.B. found no lacerations in her vaginal wall, no vaginal bleeding, and that all was "within normal limits." Rape-kit swabs taken from A.B.'s perianal area at the same time confirmed the presence of semen, but no DNA testing was performed.
At the time of the assault, A.B. was physically and neurologically impaired. Although she could move her limbs slightly, she had poor balance, with no strength in her limbs, and therefore needed assistance to stand, sit, and eat. Diagnostic testing of A.B. by TIRR near the date of the incident described her as "oriented times two," or as to "person and place." This meant that she knew who she was and where she was. She could neither consent to sexual activity nor physically resist sexual advances.
The physician who examined A.B. at Hermann Hospital after the assault described her as oriented times three, meaning that she also knew the date.
A.B. remained at TIRR for about 10 weeks after the assault, or until mid-November 1997, when she was transferred to a rehabilitation facility known as "the Ranch." While she was at TIRR and the Ranch, A.B.'s family and her boyfriend, R.P., observed A.B. have emotional reactions caused by the assault at TIRR. According to a stipulation entered into by the parties during trial, however, nothing in the records of the Ranch revealed any change in A.B.'s behavior or actions that could be attributed or related to the sexual assault.
After her release from the Ranch in May 1998, A.B. lived primarily with her parents until April 2000. During that time, A.B. received outpatient treatment from a psychiatrist, Kathy Scott-Gurnell, M.D.A.B.'s last visit to Dr. Scott-Gurnell was on April 11, 2000. She saw no psychiatrists or psychologists after that date. In August 2001, A.B. moved into her own apartment.
During five of those months, however, A.B. lived with a new boyfriend after the break up with R.P.
The case was tried in March and April 2002, almost five years after the August 1997 assault. TIRR vigorously disputed liability at trial and also raised the possibility that the semen recovered was not that of Mr. B., by suggesting that A.B. had an ongoing sexual relationship with her boyfriend at the time. The parties disputed, through opposing expert testimony, whether A.B. experienced past or future mental anguish.
Sufficiency of Evidence to Support Damages for Future Mental Anguish
N.N.'s sole issue on appeal challenges the trial court's rendering judgment in favor of TIRR, notwithstanding the jury's award of $625,000 in damages for future mental anguish. As recited in the judgment, the trial court ruled that the record contains "no evidence" of future mental anguish. N.N. contends that, when the evidence is viewed under the proper standard, some evidence supports the jury's finding that A.B. would suffer mental anguish in the future and that $625,000 was a reasonable amount of damages to compensate her for that mental anguish.
A. Standard of Review
A trial court may disregard a jury's verdict and render judgment notwithstanding the verdict (JNOV) if no evidence supports the jury's findings or if a directed verdict would have been proper. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003); Brown v. Bank of Galveston, Nat'l Ass'n, 963 S.W.2d 511, 513 (Tex. 1998); Williams v. Briscoe, 137 S.W.3d 120, 124 (Tex.App.-Houston [1st Dist.] 2004, no pet.). To determine whether the trial court erred in rendering JNOV, we consider only the evidence, and reasonable inferences from that evidence, that tends to support the jury's answers. Tiller, 121 S.W.3d at 713; Williams, 137 S.W.3d at 124. In short, we view the evidence in the light most favorable to the verdict under the well-settled standards that govern "no evidence," i.e., legal-sufficiency review. See Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 1992); Williams, 137 S.W.3d at 124.
A "no evidence" challenge is proper when the rules of law or evidence preclude according weight to the only evidence offered to prove a vital fact. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (listing four instances in which courts properly sustain legal sufficiency challenges). If the controlling law permits the vital fact, and more than a scintilla of competent evidence supports the jury's findings, this Court will reverse the JNOV. See Miller, 102 S.W.3d at 709; Williams, 137 S.W.3d at 124. More than a scintilla arises when the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. See Williams, 137 S.W.3d at 124 (citing Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). Evidence that gives rise only to "mere surmise or suspicion" of the existence of a vital, material factual element is not more than a scintilla and, therefore, "no evidence" of the vital, material factual element to be inferred. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600, 601 (Tex. 2004). More than a scintilla of evidence also does not arise when the inference made by the jury derives solely from other inferences that the jury has made. See Schlumberger Well Surveying Corp. v. Nortex Oil Gas Corp., 435 S.W.2d 854, 858 (Tex. 1968); see also Robert W. Calvert, " No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L.REV. 361, 365 (1960) ("[A] 'no evidence' point must be sustained if a finding of a vital fact can be supported only by piling inference on inference."). Accordingly, "[e]vidence that is so slight as to make any inference a guess is in legal effect no evidence." Ridgway, 135 S.W.3d at 601.
The supreme court has reaffirmed this principle in cases in which it has sustained legal sufficiency challenges. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003) (citing Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997); Cont'l Coffee Prods., Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex. 1984)) (reaffirming well-settled proscription that "an inference stacked only on other inferences is not legally sufficient evidence").
B. "Mental Anguish" Damages in Personal-Injury Cases
In Rice Food Mkts., Inc. v. Williams, 47 S.W.3d 734, 738-39 (Tex.App.-Houston [1st Dist.] 2001, pet. denied), this Court applied the well-settled, legal-sufficiency standards of review, cited above, to a jury's award of damages for past mental anguish. Rice was a personal injury case in which an employee sued his employer, a nonsubscriber under the Worker's Compensation Act, for maintaining an unsafe workplace. See id. at 735-36. In holding that no evidence supported the award of mental anguish damages, we applied the standards stated in two decisions by the Supreme Court of Texas, Saenz v. Fidelity Guar. Ins. Underwriters, 925 S.W.2d 607 (Tex. 1996) and Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex. 1995). See Rice Food Mkts., Inc., 47 S.W.3d at 738-39. Saenz held that worries and concern about inability to pay future medical bills were legally insufficient to support an award of $250,000 for past and future mental anguish arising from claims of fraudulent inducement to settle. Id. at 614. Parkway Co. rejected anger, frustration, or vexation as "mere emotions" that left the jury to speculate about the existence of compensable mental anguish and, therefore, did not permit the jury to infer a compensable level of mental anguish from repeated flooding of a home, over several, consecutive years, that resulted in a cracked foundation, other structural damage, and a market value reduced by half. 901 S.W.2d at 444-45.
When, as here, a claimant does not present direct evidence of the nature, duration, or severity of her mental anguish, our task in addressing the legal sufficiency of the evidence to support an award of mental anguish damages is to analyze the record, under "traditional 'no evidence' standards," to determine whether it "reveals any evidence of a 'high degree of mental pain and distress' that is 'more than mere worry, anxiety, vexation, embarrassment, or anger.'" See Parkway Co., 901 S.W.2d at 444 (citing J.B. Custom Design Bldg. v. Clawson, 794 S.W.2d 38, 43 (Tex.App.-Houston [1st Dist.] 1990, no writ)); Rice, 47 S.W.3d at 738-39.
N.N. acknowledges our decision in Rice, but argues that the Parkway and Saenz standards do not apply in a personal injury case and that the supreme court would not apply those standards in this personal injury case. N.N. proposes to distinguish the Parkway-Saenz standards on the grounds that neither case involved personal injuries. Although Parkway and Saenz did not involve claims for personal injuries, attempting to distinguish them on that basis ignores the supreme court's having recently applied the Parkway-Saenz standards in Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex. 2002).
Bentley was an action for defamation in which a judge and a sheriff sued for injuries and mental strain, which were premised on invasion of their interests in their reputations and good names and arose from media allegations of corruption. See id. at 575-76; see also PROSSER KEETON ON THE LAW OF TORTS § 111 (5th ed. 1984) (defining tort of defamation). N.N. attempts to distinguish Bentley on the grounds that First Amendment concerns motivated the supreme court's holding. See id. at 604.
First Amendment "limitations" were an acknowledged concern in Bentley. See id. at 605. But, Bentley also reflects the court's overarching, continuing concern, expressed initially in Parkway and Saenz, that legally sufficient proof of damages support mental anguish awards. See Bentley, 94 S.W.3d at 606-07 (citing and quoting from Saenz, 925 S.W.2d at 614). After applying the Saenz-Parkway standards and concluding that "this case is far clearer than Saenz," the Bentley court ruled that "no evidence permitted the jury to make the findings it did" in awarding compensation for mental anguish. Id. at 607. The court reached this conclusion despite the testimony of Bentley, who described the experience of being accused of corruption as "the worst of his life," and despite testimony from Bentley's friends that "he would never be the same." Id. at 606-07.
The court demonstrated its concern by emphasizing that appellate courts "ensure" that recovery for non-economic damages must solely compensate the plaintiff for actual injuries, and must not constitute "a disguised disapproval of the defendant." Bentley, 94 S.W.3d at 605. Courts of appeals accomplish this safeguard by analyzing the sufficiency of the evidence to support the award in accordance with the Saenz standards. See Bentley, 94 S.W.3d at 605-06; see also Saenz, 925 S.W.2d at 614 (expressly disapproving of rulings by El Paso Court of Appeals that implied heightened deference to jury's findings in addressing evidentiary sufficiency challenges to findings of and awards for mental anguish). The cautions against punishing a defendant under the guise of awarding damages for mental anguish that underscore Bentley, id. at 605-06, and the express disapproval of heightened deference in Saenz, id. at 614, apply equally in the context of a personal injury case.
Because Saenz relied on and clarified Parkway, see Saenz, 925 S.W.2d at 614, both Saenz and Parkway necessarily apply.
The Parkway standard focuses on "the type of evidence required to support an award of mental anguish damages in cases in which recovery is allowed." City of Tyler v. Likes, 962 S.W.2d 489, 499 (Tex. 1997) (emphasis added) (citing Parkway, 901 S.W.2d at 442). The case before us involves claims for personal injury, in which the law authorizes recovery of damages for mental anguish on proper proof. See, e.g., Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 763 (Tex. 2003) (listing mental anguish among compensable, non-economic damages recoverable in personal injury case); see also Bentley, 94 S.W.3d at 604 (recognizing that damages for mental anguish are recoverable as actual damages in defamation action, but holding that no evidence supported damages awarded to plaintiff-judge). We conclude that the standards defined in Parkway and applied later in Saenz and, most recently, in Bentley, control here.
Because we have concluded that the Parkway-Saenz standards apply, we also reject N.N.'s additional contention that the jury charge was "flawed" because the trial court's charge to the jury included the following definition of "mental anguish," which is derived from the Parkway case:
The term "mental anguish" implies a relatively high degree of mental pain and distress. It is more than mere disappointment, anger, resentment or embarrassment, although it may include all of these. It includes a mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or public humiliation.
See Parkway, 901 S.W.2d at 444 (quoting Trevino v. Southwestern Bell Tel. Co., 582 S.W.2d 582, 584 (Tex.Civ.App.-Corpus Christi 1979, no writ)). Although the supreme court has acknowledged that this definition is "somewhat unwieldy," the definition nevertheless requires that the jury distinguish between "lesser" reactions and degrees of emotions, for example, disappointment, embarrassment, and anger, for which there is no compensation, and more extreme degrees of emotions, for example, severe disappointment, wounded pride, and indignation, which may be compensable in a proper case, see id. at 444-45 (citing J.B. Custom Design Bldg., 794 S.W.2d at 43), provided that the evidence demonstrates that these emotions substantially disrupt the plaintiff's daily routine. See Saenz, 925 S.W.2d at 614 (citing Parkway, 901 S.W.2d at 444); Rice, 47 S.W.3d at 738.
N.N.'s objection to the charge, which the trial court overruled, was that the definition does not apply to this personal injury case and applies only to cases involving damage to property. Citing to St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. 2002), N.N. asks that we review the evidence under the definition that N.N. proposed to the trial court. In Wolff, the supreme court analyzed the sufficiency of the evidence to support a jury's finding of joint enterprise based on the jury charge that the challenging party proposed, but the court did so because the proffered charge should have been given. Id. at 530 (distinguishing Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000)). Here, because the Parkway-Saenz standards do apply, the charge is not erroneously "flawed," as in Wolff, but is correct. Because the jury charge here correctly defined mental anguish, N.N.'s objection to the charge cannot entitle her to challenge the JNOV under a definition that differs from that submitted to the jury here. See id. Moreover, we further distinguish Wolff because N.N.'s legal-sufficiency challenge here is not premised on charge error, which would result in a remand for new trial if sustained. See id. at 525. Instead, N.N. asserts a traditional, no-evidence challenge to the trial court's rendering JNOV, which, if sustained, would result in rendition to reinstate the jury's finding. See TEX.R. CIV. P. 301. For these reasons, the Wolff analysis does not apply.
Evidence of "adequate details" to assess mental anguish may derive from the claimant's own testimony, the testimony of third parties, or testimony by expert witnesses. Parkway, 901 S.W.2d at 444. Although the supreme court declined, or "stop[ped] short," of requiring this type of evidence whenever a plaintiff seeks mental anguish damages, the court emphasized that "the absence of this type of evidence, particularly when it can be readily supplied or procured by the plaintiff, justifies close scrutiny of other evidence offered" to support damages for mental anguish. Id.
In addition to evidence of compensable mental anguish, under the standards just stated, some evidence must justify the amount awarded. Saenz, 925 S.W.2d at 614. Consistent with the language of the standard jury charge used in this case, juries may not "simply pick a number and put it in the blank," but must determine an amount that "fairly and reasonably" compensates for mental anguish "that causes 'substantial disruption in . . . daily routine' or a 'high degree of mental pain and distress.'" See id. (citing Parkway, 901 S.W.2d at 444).
C. Evidence on Which N.N. Relies in Support of Damages Awarded for A.B.'s Future Mental Anguish
N.N. contends that the following evidence rises well above a scintilla and supports the jury's award of $625,000 in damages for future mental anguish: (1) on the night of the assault, A.B. was visibly upset, had a flushed face, and used finger gestures that indicated a sexual assault; (2) when questioned by a police officer shortly after the incident, A.B. began to weep and asked for her "mommy"; (3) in the immediate months following the assault, A.B. had sleeping problems, a fear of going to TIRR, a fear of seeing the man who assaulted her, and a goal to stay awake at night, and was "very much" upset about the assault; (4) A.B. was embarrassed about telling her former boyfriend about the incident because he would think she was dirty; and (5) A.B. felt uncomfortable at the hospital, uncomfortable with sexual relationships, and dirty.
Testimony about A.B.'s mental state after the assault came primarily from the following five sources: the portion of her videotaped deposition that was played at trial at TIRR's request, and the testimony of N.N. (A.B.'s mother), her stepfather, her boyfriend, and the expert witness who testified on her behalf at trial. We address the testimony by the lay and expert witnesses separately.
1. N.N.'s Lay Witnesses
A.B. did not testify live at the jury trial, but TIRR succeeded in admitting into evidence a portion of her deposition testimony, which was videotaped in December 1999, approximately two and one-half years after the assault. In that portion, which was played before the jury and transcribed by the court reporter, A.B. said that she was asleep on her bed on the floor and was awakened by a male patient, who "just climbed on top and wam bam thank you, ma'am." She also stated that the man warned her that he would beat her up if she told anyone, that she had trouble going to sleep after the assault because she feared it would happen again, and that she received medication to help her sleep. A.B. also testified that "there was a time" when she was "kind of scared to go back" to TIRR because she did not want to see the man that raped her. When asked whether she was upset after "this fella came in and then left," A.B. responded, "Very much so because I can't believe that happened" when people were supposed to be watching her room.
The videotape itself was never offered or admitted as an exhibit in evidence, but the testimony was transcribed into the record by the court reporter. Accordingly, the videotape, as opposed to the transcribed testimony, was not "evidence." We therefore deny TIRR's motion to supplement the record with the videotape. Moreover, because the reporter's record already contains the transcription of A.B.'s testimony, there is no basis on which to "supplement" the record with the videotape. See TEX.APP. P. 34.6(d) (authorizing supplementing record for matters "omitted"). We distinguish Sanchez v. Bexar County Sheriff's Dep't, 134 S.W.3d 202 (Tex. 2004), on which TIRR relies. Sanchez was an appeal from an agency decision in which the supreme court held that the court of appeals should have granted a motion to supplement the record on appeal with the record of the agency proceedings, even though that record was never formally offered into evidence at the review hearing in district court. Id. at 203. It was undisputed, however, that all parties had relied on the record of the agency hearing. Id. Moreover, Sanchez's employer had attached a certified copy of the agency hearing to its motion for summary judgment. Id. TIRR contends that Sanchez controls because it is undisputed that all parties rely on and refer to the videotape of A.B., even though the tape itself was never offered into evidence. This reasoning ignores that, in this case, as opposed to the Sanchez case, A.B.'s videotape appears in the record as transcribed testimony and is, therefore, not "omitted." In Sanchez, by contrast, the agency record that all relied on was actually "omitted." See id.
The testimony from A.B.'s videotaped deposition does not address whether, at the time the deposition was taken in December 1999, A.B. continued to feel any of the emotions that she experienced in the first two years after the assault. Because A.B. did not testify live at the 2002 trial, the record does not contain any testimony by A.B. about emotions that she may or may not have experienced in the two-year period between her 1999 deposition and the 2002 trial.
N.N.'s testimony described A.B.'s emotional state during the 10 weeks that A.B. remained at TIRR after the assault, before A.B.'s transfer to the Ranch. During that time, A.B. intermittently told N.N. that she was "scared" of the hospital, and that it was her goal to stay awake all night, statements that A.B. had not made before the assault occurred. During a weekend visit to N.N.'s house about six weeks after the assault, A.B., for the first time, personally told N.N. about the assault, and tearfully said that she did not want to return to TIRR because she believed she had been raped there by a man who had come into her room. Before her transfer to the Ranch, while she remained at TIRR, A.B. continued to tell N.N. that she wanted to go home, and once falsely pointed out a man as her rapist. According to N.N., A.B.'s conduct showed that she was continuing to focus on the assault.
N.N.'s testimony also described A.B.'s emotional state during the six-month period when she stayed at the Ranch, from November 1997 to May 1998. N.N. reported that, when A.B. was at the Ranch, she cried all the time because she was hurt and angry about her sister's death and the assault at TIRR, and continued to be scared of men.
N.N.'s testimony further discussed the emotions A.B. experienced after A.B. was released from the Ranch in May 1998. In March 1999, N.N. took A.B. to Dr. Scott-Gurnell for psychiatric treatment related to the assault at TIRR. N.N. described A.B. as heartbroken and feeling like she was "dirty" after the assault. A.B. last visited Dr. Scott-Gurnell on April 11, 2000, after which she did not see any other psychiatrists or psychologists for treatment. After A.B.'s release from the Ranch, she lived with her parents, with the exception of a five-month period of time when she lived with a new boyfriend after her break up with R.P., the boyfriend with whom she was living at the time of the automobile accident. In August 2001, A.B. moved into her own apartment.
N.N. was not questioned about A.B.'s emotional state during the two-year period between April 2000, when her psychiatric treatment stopped, and March 2002, when the jury trial began, and the record does not show that A.B. was receiving any psychiatric or psychological treatment related to the assault during that interval.
A.B.'s stepfather described A.B.'s emotional state when A.B. told her family about the assault during the weekend visit in October 1997. A.B.'s stepfather said that A.B. "just exploded" and stated that she did not want to return to TIRR because she thought she had been raped there. That was the first time that A.B. mentioned the assault to her stepfather, who, until that time, believed, based on what he had been told, that A.B. had no recollection of the assault. Other than the single outburst during the October 1997 weekend visit, A.B.'s stepfather testified that he did not notice any change in her behavior or emotional state from before the assault, even when she visited TIRR for follow-up clinic visits. A.B.'s stepfather's testimony does not reflect that there was any change in A.B.'s emotional state from 1998 to 2002, the four-year period that preceded the trial.
R.P., who was A.B.'s boyfriend at the time of the assault, testified that they had a sexual relationship and had lived together for over two years before the car accident. Although they continued their relationship after the car accident, R.P. maintained that it was no longer sexual. R.P. acknowledged, however, that he had visited A.B. in her room on the night of the assault. Although he frequently saw A.B. at the hospital in the days after the assault, the first time that she mentioned the assault was during the weekend visit at her parents' house in October 1997, about six weeks after the incident. When A.B. told R.P. that she had been raped, she cried "pretty bad," apologized to him for not stopping the assault, and, at that point, broke down and could not even speak. According to R.P., A.B. continued to cry "quite often" about the assault, "whenever it came up" when he visited her at the Ranch.
Because R.P.'s and A.B.'s relationship ceased after she left the Ranch, his testimony shows no contact between him and A.B. after 1999 and is silent concerning whether A.B. experienced any emotions related to the assault in the three-year period before the trial, from 1999 to 2002.
The testimony of the lay witnesses, A.B., N.N., A.B.'s stepfather, and R.P., viewed in the light most favorable to the jury's verdict, relates solely to A.B.'s claim that she suffered mental anguish in the past. Although the record contains evidence showing how A.B. was emotionally impacted in the three years immediately after the assault, none of the lay witnesses' testimony addresses A.B.'s mental state during the two-year period that preceded the trial. The record is silent, therefore, regarding whether, according to the lay witnesses, at the time of the 2002 trial, A.B. continued to experience any of the emotions that she experienced immediately after the assault. Likewise, there is no evidence that A.B. would, or was likely to, experience any of those emotions in the future.
2. N.N.'s Expert Testimony
N.N. also contends that her expert's testimony establishes more than a scintilla of evidence to support the jury's award of damages for future mental anguish. N.N.'s expert witness testified that A.B. was not like "normal" people because part of her brain had been removed following her car accident, and she had limited ability to form "explicit memories," which are memories that allow a person to recall or talk about an event after it happens. According to the expert, A.B.'s lack of "explicit memories" of the assault explained why the records from TIRR and the Ranch stated that A.B. did not have complaints, sadness, nightmares, and emotional outbursts while she was at TIRR and the Ranch.
Although A.B.'s explicit memory was impaired, her "implicit" memory remained intact. Implicit memory is also called emotional memory. The expert explained that even though a person may not have an explicit memory or an independent recollection of the event, the person can still be emotionally affected by the event through the implicit memory that is cued or triggered by certain events, such as a smell or a sound. He explained, for example, that when a person experiences an emotionally charged event such as a sexual assault, certain cues will cause the person to feel various emotions related to the assault, resulting in a "flash bulb" recall, and the person may not even know why he or she is experiencing the emotion. The expert maintained that A.B. has an implicit memory of the assault because, although she could not discuss the assault on the night that it happened, the nursing and treating staff documented that she cried, had a flushed face, and asked for her mother (N.N.).
The expert explained that, because A.B. lacked explicit memory of the assault and experiences "mental anguish" through her implicit memory, she is "incapable" of treatment through traditional counseling or talking therapy. The expert qualified, however, that the term "mental anguish" is "something that lawyers use"; psychologists do not use the term and speak in terms of "psychological injury." With respect to A.B.'s "psychological injury," the expert spoke in very limited terms when he described the emotions that A.B. had experienced in the past and that she might experience again in the future, through her implicit memory, if her implicit memory of what happened were triggered or cued by an event.
We note, at the outset, that nothing in the expert's testimony addresses the certainty of A.B.'s mental anguish or psychological injury in the future. According to the expert, in the past, A.B. felt "uncomfortable" when at TIRR and hospitals, "uncomfortable with some sexual relationships," made the statement that she "felt dirty," and, "on occasion," talks about the assault.
The expert's testimony that A.B. stated that she "felt uncomfortable" is insufficient to establish future mental anguish, even when the statement is viewed in the context of what occurred at TIRR and A.B.'s mental impairments. The sparse record here does not support an inference that A.B.'s discomfort rises to the level sufficient to establish future mental anguish, as defined by the jury charge and as required by the Saenz-Parkway precedents. The expert did not describe the extent of A.B.'s discomfort, the impact of the emotion in the past, or, importantly, how A.B. might be impacted by that emotion in the future. Similarly, the expert did not state that A.B.'s feeling "uncomfortable" affected her daily life in any way. Accordingly, evidence that A.B. felt or even would feel "uncomfortable," without additional evidence to explain the extent of the discomfort and the past or future emotional impact on A.B. by the emotion, does not constitute more than a scintilla of evidence to support the jury's awarding her damages for future mental anguish.
Similarly, the expert's testimony that A.B. stated that she "felt dirty" does not constitute more than a scintilla of evidence that A.B. would suffer future mental anguish if she experienced that emotion again in the future. Given its sparsity, the record before us does not support an inference that, if A.B. "felt dirty" again in the future, the emotion that she would experience would be sufficient to establish future mental anguish as defined by the jury charge and as required by the Saenz-Parkway precedents. The record does not demonstrate when, during the five years between the assault and trial, A.B. said that she felt dirty, what cued or triggered the feeling in the past, what might cue or trigger the feeling in the future, how the feeling affected her daily life in the past or might affect her daily life in the future, or, importantly, whether it would affect her in the future. Even when we place A.B.'s emotion of "feeling dirty" in the context of what occurred at TIRR and A.B.'s brain limitations, we cannot discern, from the record before us in this appeal, that A.B.'s having expressed that emotion in the past means that she will continue to experience that emotion in the future and to the degree required by the Saenz-Parkway standards. Accordingly, the expert's testimony in which he referred to A.B.'s statement that she "felt dirty" does not constitute more than a scintilla of evidence to establish future mental anguish.
Finally, although the expert also stated that A.B. talks about the assault "on occasion," he did not explain whether, why or to what extent her talking about the assault would cause mental anguish to A.B. in the future. Accordingly, the expert's referring to A.B.'s talking about the assault is not more than a scintilla of evidence to support the jury's awarding damages for future mental anguish.
The dissenting opinion concludes that, from the evidence in this case, "a reasonable jury could have concluded that, despite her brain injury, the rape shook A.B. to her core." No evidence in the record supports that statement, which mischaracterizes the evidence. The testimony by the expert limited the emotions that A.B. would experience, if an event triggered or cued her implicit memory, to the possibility that she would feel "dirty" and "uncomfortable." Likewise, nothing in the record supports the dissenting opinion's statement that "the psychologist established A.B.'s need for continued, specialized psychological care for her 'anguish.'" Although the expert-psychologist stated that traditional counseling or "talking" therapy would likely be ineffective, due to A.B.'s lack of explicit memory, the expert offered no opinion regarding whether A.B. should, or should not, receive continued care, no opinion regarding what type of care she should receive, if any, and no opinion regarding what length of care, if any, would be necessary. Furthermore, the record indicates that A.B. discontinued her psychiatric care about two years before the jury trial and does not show that she resumed care thereafter or that she would resume care after the trial.
The dissenting opinion also states that it "should be beyond dispute by people of good will in a civilized society as an 'acknowledged result of human experience,'" that a sexual assault will obviously and necessarily result in future mental anguish. The dissenting opinion's suggestion would demand that we disregard our appointed task in reviewing a sufficiency challenge under the well-settled standards established by our supreme court, both generally and as regards findings of mental anguish under the Saenz and Parkway precedents. As justices serving a civilized society, we are bound by the law and the evidence in any record before us, to which our personal, subjective feelings concerning a particular offense must yield.
We hold that the emotions described in the record before us, which A.B. may experience through her implicit memory in the future if cued or triggered by certain events, do not meet the standards imposed by the Saenz, Parkway, Bentley, and Rice decisions as prerequisites to any award of damages for future mental anguish. Accordingly, the emotions attributed to A.B. here do not constitute more than a scintilla of evidence and therefore do not support the jury's awarding damages for future mental anguish. No evidence supports an inference that A.B. will suffer "a high degree of mental pain and distress" in the future that is "more than mere worry, anxiety, vexation, embarrassment, or anger," or that there is a "substantial" disruption of A.B.'s daily routine. See Saenz, 925 S.W.2d at 614; Rice, 47 S.W.3d at 738.
We also conclude that no evidence justifies the amount awarded for damages for future mental anguish. See Saenz, 925 S.W.2d at 614. The jury may not assign an arbitrary amount that lacks evidentiary support. See id.
D.N.N.'s Suggestion That We Infer Future Mental Anguish
Lastly, we reject N.N.'s contention, which the dissenting opinion adopts, that the very nature of sexual assault supports an inference of future mental anguish. We have no doubt that criminal sexual assault is a crime of violence that can cause emotional pain related to the assault. Nonetheless, our role in assessing the legal sufficiency of the evidence to support an award of damages for future mental anguish requires that we scrutinize the record for evidence of how the victim was mentally impacted by the assault, how long those effects lasted, and how intense were the emotions related to the assault. See Parkway, 901 S.W.2d at 444. Moreover, no legal precedent permits us to infer future mental anguish from the "very nature of sexual assault." The record of this case demonstrates that A.B. had no memory of the assault at the time of trial, and that the only emotions that she would continue to experience after the trial were described as feeling "uncomfortable" and "dirty."
N.N.'s proposed inference thus contravenes the supreme court's mandate that we distinguish "between shades and degrees of emotions," Parkway, 901 S.W.2d at 444, by scrutinizing findings of mental anguish and damage awards for mental anguish under well-established sufficiency standards to ensure against (1) impermissibly awarding damages based on evidence that the substantive law categorizes as "lesser" reactions that are not legally sufficient to support an award, see Parkway, 901 S.W.2d at 444, (2) impermissibly heightening our deference to the jury, in contravention of the settled standards that control legal sufficiency review, see Saenz, 925 S.W.2d at 614, and (3) impermissibly punishing the defendant, see Bentley, 94 S.W.3d at 605-06.
N.N. and the dissenting opinion repeatedly equate the jury's verdict with a finding that a sexual assault occurred, specifically, a rape. Although the jury did not make that specific finding, we may properly infer, without violating the parameters of permissible appellate review, e.g., Tiller, 121 S.W.3d at 713, that, by finding that TIRR proximately caused the "occurrence," the jury implicitly found that a sexual assault occurred. We would violate those parameters, however, if we were to follow the reasoning of N.N. and the dissenting opinion by further inferring, from that implied finding, that A.B. necessarily experienced future mental anguish. But, even if we made that impermissible inference, the dissenting opinion does not explain how we could then determine that A.B.'s implied mental anguish meets the standards imposed by the Bentley, Saenz, and Parkway decisions, and our decision in Rice. See Parkway, 901 S.W.2d at 442 (noting, in addressing history of emerging law governing recovery of damages for mental anguish, that courts once permitted juries to infer mental suffering from fact of physical injury alone, but no longer permit that inference).
Question one of the jury charge inquired whether "the negligence, if any, of TIRR proximately cause[d] the occurrence in question." The definitions accompanying question one defined negligence as "failure to use ordinary care, that is, failing to do that which a hospital of ordinary prudence would have done under the same or similar circumstances or doing what a hospital of ordinary prudence would not have done under the same or similar circumstances." The jury charge did not define "occurrence." By responding "yes" to question one, the jury determined that TIRR's negligence proximately caused "the occurrence." As noted above, TIRR did not concede negligence in this case and disputed that a sexual assault had occurred. Because the charge did not define "occurrence," the jury's finding TIRR negligent does not necessarily mean that the jury found that Mr. B. had sexually assaulted A.B., as compared to other inappropriate conduct with her, although the jury may have made that finding.
See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003) (citing Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001); Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997); Cont'l Coffee Prods., Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Litton Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex. 1984)) (reaffirming well-settled proscription that "an inference stacked only on other inferences is not legally sufficient evidence").
For these reasons, we conclude that the trial court did not err, but properly rendered judgment, notwithstanding the jury's verdict, in favor of TIRR and overrule N.N.'s sole issue.
Conclusion
We affirm the judgment of the trial court, and we deny TIRR's motion to supplement the record with the videotape of A.B.'s videotaped testimony, which the court reporter transcribed and which is part of the reporter's record in this appeal.
Justice JENNINGS, dissenting.
Because the majority errs (1) in concluding that the very nature of an aggravated sexual assault does not, by itself, support an inference of future mental anguish and (2) in holding that no evidence in this case supports an inference of future mental anguish damages, I respectfully dissent.
Our Penal Code currently provides, in pertinent part, that a person commits the first degree felony offense of aggravated sexual assault if the person intentionally or knowingly causes the penetration of the sexual organ of another, without that person's consent, and if the victim is a disabled individual. TEX. PEN. CODE ANN. § 22.021(a) (Vernon Supp. 2004-2005). A "disabled individual" is a person older than 14 years of age who, by reason of a physical or mental defect or injury, is substantially unable to protect herself from harm. Id. § 22.04(c)(3) (Vernon 2003).
The Texas Supreme Court has noted that the "history of mental anguish damages in Anglo-American jurisprudence is convoluted and complex." Parkway Co. v. Woodruff, 901 S.W.2d 434, 442 (Tex. 1995). Mental anguish claims, because of their "inherently subjective nature" and "the concomitant potential for false claims," have long been distrusted by the common law, and the general rule developed that mental anguish damages were not recoverable. Id.
Exceptions to this general rule have emerged, including the allowance of mental anguish damages when mental suffering is "produced by a particularly upsetting or disturbing event." Id. The oldest examples of "disturbing events" cases "are those involving assault, slander, and other intentional torts." Id. Unwilling to confine mental anguish damages to intentional torts, Texas courts have also allowed for the recovery of mental anguish damages for such disturbing events as failing to deliver a telegraph relating to death or last illness, sending a passenger to the wrong destination, and mishandling a corpse. Id. at 443. The supreme court has explained:
Without intent or malice on the defendant's part, serious bodily injury to the plaintiff, or a special relationship between the two parties, we permit recovery for mental anguish in only a few types of cases involving injuries of such a shocking and disturbing nature that mental anguish is a highly foreseeable result. These include wrongful death, . . . and actions by bystanders for a close family member's serious injury. . . .
City of Tyler v. Likes, 962 S.W.2d 489, 496 (Tex. 1997) (citations omitted) (emphasis added). The court in Likes emphasized that "the law of mental anguish damages is rooted in societal judgments . . . about the gravity of certain wrongs and their likely effects." Id.
The supreme court in Parkway held that "an award of mental anguish damages will survive a legal sufficiency challenge when the plaintiffs have introduced direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiffs' daily routine." 901 S.W.2d at 444. The court noted that, generally, such evidence, "whether in the form of the claimants' own testimony, that of third parties, or that of experts, is more likely to provide the fact finder with adequate details to assess mental anguish claims." Id. However, the court specifically "stop[ped] short of requiring" this type of direct evidence "in all cases in which mental anguish damages are sought." Id.
The supreme court in Parkway further held that, "[w]hen claimants fail to present direct evidence of the nature, duration, or severity of their anguish," Texas courts are to "apply traditional no evidence standards to determine whether the record reveals any evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger to support any award of damages." Id. (citations omitted) (emphasis added). The court requires that a plaintiff's mental anguish evidence satisfies the Parkway standard "because the law has not yet discovered a satisfactory empirical test for what is by definition a subjective injury." Likes, 962 S.W.2d at 495.
The issue before this Court is whether the trial court erred in granting the judgment notwithstanding the verdict, i.e., the jury's award compensating A.B. for her future mental anguish. A trial court may grant such a judgment only if there is no evidence to support the jury's finding. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). To determine whether there is no evidence to support the jury's finding and, thus, to uphold the judgment notwithstanding the verdict, "we must view the evidence in a light that tends to support the finding of disputed fact and disregard all evidence and inferences to the contrary." Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003). If more than a scintilla of evidence supports the jury's finding, "the jury's verdict and not the trial court's judgment must be upheld." Id. More than a scintilla of evidence exists if the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (citations omitted). Conversely, evidence that creates only "a mere surmise or suspicion of its existence" is no more than a scintilla and, thus, no evidence. Id.
Applying the pertinent traditional no-evidence standard, viewing the evidence in a light supporting the jury's award and disregarding all evidence and inferences to the contrary, we must determine whether more than a scintilla of evidence exists that A.B. will suffer a high degree of mental pain and distress that is "more than mere worry, anxiety, vexation, embarrassment, or anger." In doing so, we must be mindful that "[b]oth direct and circumstantial evidence may be used to establish any material fact." Id. A fact is established by circumstantial evidence "when the fact may be fairly and reasonably inferred from other facts proved in the case." Russell v. Russell, 865 S.W.2d 929, 933 (Tex. 1993) (citations omitted). As explained in an opinion adopted by the Texas Supreme Court:
An objective adherence to this well-established standard, i.e., focusing on the evidence and inferences supporting a jury's finding and actually disregarding all evidence and inferences to the contrary, does not constitute a mis-characterization of the evidence. As recently noted by the Texas Supreme Court, in determining whether "the evidence offered to prove a vital fact is no more than a mere scintilla,"
[Texas] courts follow the . . . rule of viewing the evidence in its most favorable light in support of the finding of the vital fact, considering only the evidence and the inferences which support the finding and rejecting the evidence and the inferences which are contrary to the finding.
City of Keller v. Wilson, 168 S.W.3d 802, 808-10 (Tex.) (quoting Robert W. Calvert, "No Evidence" "Insufficient Evidence" Points of Error, 38 TEX. L.REV. 361, 362-63 (1960)). A reviewing court must follow this rule because "[t]he final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." Wilson, at 827. It is the jurors who are the sole judges of the credibility of witnesses; the jury may choose to believe one witness and disbelieve another, and a reviewing court may not impose its own opinion to the contrary. Id. at 818. Moreover, it is the province of the jury to resolve conflicts in the evidence, and a reviewing court must assume that jurors resolved all conflicts in accordance with their verdict. Id. at 819. Finally, even if evidence is undisputed, it is the province of the jury "to draw from it whatever inferences they wish," and a reviewing court "must assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal sufficiency review." Id. at 821. The bottom line in a legal sufficiency review is that if the evidence at trial "would enable reasonable and fair-minded people to differ in their conclusions, then jurors must be allowed to do so." Id.
Circumstantial evidence, while not directly establishing the fact sought to be proven, establishes other facts from which the existence of the disputed fact may, with more or less probability be inferred. In other words, the fact to be proved is established as an inference from proven circumstances. The whole doctrine of the proof of facts by circumstantial evidence rests upon the acknowledged results of human experience.
Texas N.O.R. Co. v. Warden, 125 Tex. 193, 78 S.W.2d 164, 167 (1935).
Contrary to the majority's conclusion, the very nature and circumstances of an aggravated sexual assault support an inference of the victim's future mental anguish. As noted by the supreme court in Parkway, because mental anguish is a highly foreseeable result of certain shocking and disturbing events, once the "threshold requirement" of a "particularly disturbing event" is met, mental anguish damages are "not hard to justify." 901 S.W.2d at 442. Moreover, when particularly disturbing events are "proved by reference to objective phenomena or conditions," the law generally allows a claimant's "mental suffering to be presumed to flow from such events." Id. (emphasis added). Nothing stated in Parkway or any of its progeny conflicts with this reasonable presumption that is based on logic and human experience.
Here, there is ample direct evidence in the record that A.B., while disabled, was the victim of an aggravated sexual assault — raped by a brain-injured patient as A.B. lay, quite literally helpless, in her own feces after a bowel movement. It is difficult to imagine a more shocking or particularly disturbing event than what A.B., while helpless, had to endure at the hands of her assailant. Under these circumstances, mental anguish damages are not at all "hard to justify," and A.B.'s mental suffering, including future mental anguish, should be presumed to flow from such a horrific act.
A sexual-assault victim should not have to provide expert testimony or jump through formulaic, rhetorical hoops to prove the obvious — that she will carry the burden of having been raped with her for the rest of her life, especially here, given A.B.'s previous brain injury and the grotesque circumstances. This simple fact should be beyond dispute by people of good will in a civilized society as "an acknowledged result of human experience." Here, the circumstances presented preclude any need for concern about the "inherently subjective nature" of the mental anguish flowing from the aggravated sexual assault or any concomitant potential for a false claim of mental anguish. Because there is nothing "subjective" about the mental anguish injury caused by an aggravated sexual assault, the application of Parkway's "artificial evidentiary barriers" is unnecessary in such cases. Under any "empirical test," a rape victim's mental suffering should be presumed to flow from the sexual assault. Indeed, the first degree felony offense of aggravated sexual assault presents such an affront to human dignity that the State of Texas punishes the perpetrators of this offense with the same penalty as it punishes murderers.
An individual adjudged guilty of a first degree felony shall be punished by imprisonment for life or for any term of not more than 99 years or less than five years and may further be punished by a fine not to exceed $10,000. Id. § 12.32 (Vernon 2003).
Moreover, regardless of the presumption that a victim of an aggravated sexual assault will suffer mental anguish, there is evidence in the record that demonstrates that A.B. will suffer future mental pain and distress amounting to "more than mere worry, anxiety, vexation, embarrassment, or anger." The record reflects that, although A.B. suffers from a brain injury, she was able to tell her boyfriend about the rape when she was at her home on a weekend pass. Her boyfriend testified that, during the discussion, A.B. broke down "crying pretty bad[ly]" and "apologized about it because she couldn't do anything to stop him or do anything about the situation." A.B. got to a point that she "couldn't even speak. She was just crying and it was a sad situation." A.B.'s mother testified that A.B. told her that, after the rape, it was "her goal to stay awake at night" and that she did not want to return to the hospital because she was "scared." A.B. also told her mother that she felt that her boyfriend "didn't love her anymore. She felt he thought she was dirty." A.B. was so "heart-broken" that she had to be taken to a psychiatrist because, after the rape, "she felt like she was dirty." From this evidence, a reasonable jury could have concluded that, despite her brain injury, the rape shook A.B. to her core and would affect her for the rest of her life, as would be expected of any victim of an aggravated sexual assault.
As acknowledged by the majority, A.B.'s expert witness, a clinical psychologist, testified that A.B., due to her previous brain injury, has "flash bulb recall" that causes her to talk about the assault and experience "anguish." He explained that the anguish will be "[e]xtremely difficult" to treat, much more so than if she were not mentally impaired because she is unable to put the incident into "perspective" and to "deal with" it through "talking therapy." This expert testimony supports an implied finding by the jury that A.B. will need continued, specialized psychological care for her "anguish." Yet, the majority concludes that the emotions described by the psychologist "do not meet the standards imposed" by Parkway and its progeny. Respectfully, I could not disagree more.
A.B.'s evidence, taken together, establishes what the common law presumes and the criminal law punishes, i.e., that the victim of an aggravated sexual assault will carry the trauma and emotional scars of the event with her for the rest of her life. Here, the evidence does not create only a "mere surmise or suspicion" of A.B.'s future mental anguish. Unlike the jurors in Parkway, the jurors in this case were not "left to speculate about the existence of compensable mental anguish" and had before them evidence that, at the very least, "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Considering all the evidence and the reasonable inferences that support the jury's finding, and disregarding all the evidence and inferences to the contrary, there is more than a mere scintilla of evidence in the record that A.B. will continue to suffer much more than "mere worry, anxiety, vexation, embarrassment, or anger" as a result of the rape, especially in light of the grotesque circumstances and the extreme difficulty in treating her condition.
Furthermore, the evidence demonstrating A.B.'s high degree of mental pain and distress also supports the jury's award of $625,000 for A.B.'s future mental anguish. As emphasized by the Texas Supreme Court, "[r]easonable compensation is no easier to determine than reasonable behavior," but the law requires that the amount of compensation for mental anguish be "fair and reasonable" if the evidence supports such an award. Saenz v. Fidelity Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996). Here, there is ample evidence of A.B.'s mental trauma and, given her brain injury, her need for continued, specialized, psychological treatment. When considered with the jury's award of $300,000 for A.B.'s past mental anguish, it is clear that the jury did not arbitrarily "pick a number and put it in a blank" in violation of the pertinent principles articulated in Saenz. See id. It is readily apparent that the jurors in this case restrained themselves and responsibly awarded an amount of "fair and reasonable compensation" for A.B.'s future mental anguish based on the evidence. See id.
The majority's conclusions and holdings to the contrary are in error. Because the trial court erred in holding that there was no evidence to support the jury's award that compensated A.B. for her future mental anguish, I would reverse the trial court's judgment notwithstanding the verdict on the issue of future damages and would address the issues in the contingent cross-appeal.
It must be noted, with sadness, that appellant's attorney, Helen Lois Alexander Cassidy, died of cancer on June 11, 2005, and this is the last case of her long and distinguished legal career.
During that career, Helen served the public for 11 years as the chief staff attorney on our sister court, the Fourteenth Court of Appeals, where she was a mentor to numerous law clerks and formed life-long friendships. After her service on the court, Helen entered private practice and became a prominent appellate specialist. She served as the chair of the State Bar of Texas Appellate Section and as the chair of both the Appellate Section and Criminal Law Section of the Harris County Bar Association. Helen was known throughout the State of Texas as a lawyer's lawyer, often consulting other prominent lawyers and law professors on important legal issues. As a leader in the bar, she worked to preserve the rule of law, bringing great credit to the legal profession.
Although she had a reputation for not suffering fools gladly, her friends in the bar and on the bench will attest that she was a true lover of humanity and that she worked hard to make this a better world. Perhaps Helen's greatest achievement will be, as readily apparent from his eulogy at her memorial service, that she passed this love onto her son, David Cassidy, and her granddaughters, Hailey and Hannah Cassidy. Her love of humanity is best expressed in the Langston Hughes poem that was recited at her memorial service:
I Dream a World I dream a world where man No other man will scorn, Where love will bless the earth And peace its paths adorn. I dream a world where all Will know sweet freedom's way, Where greed no longer saps the soul Nor avarice blights our day. A world I dream where black or white, Whatever race you be, Will share the bounties of the earth And every man is free, Where wretchedness will hang its head And joy, like a pearl, Attends the needs of all mankind — Of such I dream, my world!