Opinion
No. 21-0017
06-16-2023
Sarah GREGORY and New Prime, Inc., Petitioners, v. Jaswinder CHOHAN, et al., Respondents
Thomas C. Wright, Lisa M. Wright, Houston, Thomas R. Phillips, Austin, Fernando Pablo Arias, Dallas, Wanda McKee Fowler, Houston, Douglas Fletcher, Dallas, Brittany R. Greger, Houston, Steven A. Springer, Scott A. Brister, Austin, Evan A. Young, Austin, Travis County, Alex Bell, Cameron L. Davis, Austin, for Petitioners. Micky N. Das, Jeffrey S. Levinger, Robert Timothy Tate, for Respondents Deol, Jagtar Kaur, Deol, Darshan Singh, Chohan, Jaswinder. Michael H. Bassett, Sadie A. Horner, Dallas, for Respondents Perales, Alma J., Vasquez, William. Kent G. Rutter, Houston, Brett David Kutnick, Nina Cortell, Dallas, Stuart Bradley Brown Jr., Mark R. Trachtenberg, Houston, Ryan Pitts, for Amicus Curiae Allied Aviation Feuling Company of Houston, Inc. Charles R. ‘Skip’ Watson Jr., Austin, for Amicus Curiae National Liability and Fire Insurance Company. Anna M. Baker, Houston, Paul Green, Dallas, for Amici Curiae Insurance Council of Texas, American Property Casualty Insurance Association, National Association of Mutual Insurance Companies. Roger D. Townsend, Houston, Dana Livingston, Austin, for Amicus Curiae Canal Insurance Company. Randall Sorrels, for Amicus Curiae Cruz, Cecilia. George Scott Christian, for Amicus Curiae Texas Civil Justice League. David Hyman, David F. Engstrom, Nora F. Engstrom, Charles M. Silver, Austin, for Amicus Curiae Law Professors. John Bash III, Austin, Alexander Zendeh, for Amicus Curiae Sage Settlement Consulting LLC. Allyson Ho, Dallas, Brian Sanders, Elizabeth Kiernan, Dallas, for Amicus Curiae The Chamber of Commerce of the United States of America. John Blaise Gsanger, Houston, Quentin Brogdon, Dallas, for Amicus Curiae Texas Trial Lawyers Association.
Thomas C. Wright, Lisa M. Wright, Houston, Thomas R. Phillips, Austin, Fernando Pablo Arias, Dallas, Wanda McKee Fowler, Houston, Douglas Fletcher, Dallas, Brittany R. Greger, Houston, Steven A. Springer, Scott A. Brister, Austin, Evan A. Young, Austin, Travis County, Alex Bell, Cameron L. Davis, Austin, for Petitioners.
Micky N. Das, Jeffrey S. Levinger, Robert Timothy Tate, for Respondents Deol, Jagtar Kaur, Deol, Darshan Singh, Chohan, Jaswinder.
Michael H. Bassett, Sadie A. Horner, Dallas, for Respondents Perales, Alma J., Vasquez, William.
Kent G. Rutter, Houston, Brett David Kutnick, Nina Cortell, Dallas, Stuart Bradley Brown Jr., Mark R. Trachtenberg, Houston, Ryan Pitts, for Amicus Curiae Allied Aviation Feuling Company of Houston, Inc.
Charles R. ‘Skip’ Watson Jr., Austin, for Amicus Curiae National Liability and Fire Insurance Company.
Anna M. Baker, Houston, Paul Green, Dallas, for Amici Curiae Insurance Council of Texas, American Property Casualty Insurance Association, National Association of Mutual Insurance Companies.
Roger D. Townsend, Houston, Dana Livingston, Austin, for Amicus Curiae Canal Insurance Company.
Randall Sorrels, for Amicus Curiae Cruz, Cecilia.
George Scott Christian, for Amicus Curiae Texas Civil Justice League.
David Hyman, David F. Engstrom, Nora F. Engstrom, Charles M. Silver, Austin, for Amicus Curiae Law Professors.
John Bash III, Austin, Alexander Zendeh, for Amicus Curiae Sage Settlement Consulting LLC.
Allyson Ho, Dallas, Brian Sanders, Elizabeth Kiernan, Dallas, for Amicus Curiae The Chamber of Commerce of the United States of America.
John Blaise Gsanger, Houston, Quentin Brogdon, Dallas, for Amicus Curiae Texas Trial Lawyers Association.
Justice Blacklock announced the Court's judgment and delivered an opinion, in which Chief Justice Hecht and Justice Busby joined in full, and in which Justice Bland joined except as to Parts II.C.2 and II.D. This case arises from a fatal accident on an icy, unlit stretch of highway near Amarillo. An eighteen-wheeler driven by Sarah Gregory jackknifed across lanes of traffic, and the resulting pileup caused four deaths. Among those killed was Bhupinder Deol, a truck driver, but more importantly a husband, son, and father of three.
Deol's wife and family brought a wrongful death action against Gregory and her employer, New Prime, Inc. The jury awarded approximately $16.8 million to Deol's family. Noneconomic damages—awarded to six family members for past and future mental anguish and loss of companionship—accounted for just over $15 million of the total. On appeal, the defendants challenged the size of the noneconomic damages award. The en banc court of appeals affirmed, concluding that the award was not "flagrantly outrageous, extravagant, and so excessive that it shocks the judicial conscience." 615 S.W.3d 277, 314 (Tex. App.—Dallas 2020). The chief issue before this Court is the size of the noneconomic damages award.
Assigning a dollar value to non-financial, emotional injuries such as mental anguish or loss of companionship will never be a matter of mathematical precision. But when properly called upon, appellate courts have a duty to ensure that the damages awarded for a noneconomic injury are the result of a rational effort, grounded in the evidence, to compensate the plaintiff for the injury. As we held over twenty years ago in Bentley v. Bunton , courts do not fully discharge that duty merely by concluding that a verdict is not so "excessive or unreasonable" as to shock the judicial conscience. 94 S.W.3d 561, 606 (Tex. 2002). We said almost 140 years ago that "[w]hat shocks the conscience or manifests passion or prejudice in the jury are tests too elastic for practical use in the great majority of cases." Gulf, C. & S. F. Ry. Co. v. Dorsey , 66 Tex. 148, 18 S.W. 444, 445 (1886). Our precedent requires courts reviewing the size of noneconomic damages awards to do more than consult their consciences.
As we have said before when reviewing mental anguish damages, "[t]here must be evidence that the amount found is fair and reasonable compensation , just as there must be evidence to support any other jury finding." Saenz v. Fidelity & Guar. Ins. Underwriters , 925 S.W.2d 607, 614 (Tex. 1996) (emphasis added). Rather than limit review of noneconomic damages to elastic, impractical standards like the "shocks the conscience" test, our precedent instead requires evidence of both the "existence of compensable mental anguish" and "evidence to justify the amount awarded." Id.
Today's case requires us to apply these principles from our prior holdings regarding mental anguish damages for the first time to a wrongful death claim. "While the impossibility of any exact evaluation of mental anguish requires that juries be given a measure of discretion in finding damages, that discretion is limited." Bentley , 94 S.W.3d at 606 (quoting Saenz , 925 S.W.2d at 614 ). No matter the cause of action, the results of litigation should always be justifiable based on evidence and reason. "Juries cannot simply pick a number and put it in the blank." Id. To guard against arbitrary outcomes and to ensure that damages awards are genuinely compensatory, the plaintiff in a wrongful death case should be required to demonstrate a rational connection, grounded in the evidence, between the injuries suffered and the dollar amount awarded.
Mental anguish and loss of companionship damages are neither punitive nor exemplary. They are compensatory. That label is illusory if courts do not require a rational connection between the amount awarded and the evidence of injury. While precision is not required—and surely cannot be achieved when placing a dollar value on the emotional toll of losing a loved one—some rational basis for the size of the judgment is a minimal requirement on which the law must insist.
Here, the plaintiffs produced—and the court of appeals recounted—sufficient, even ample, evidence demonstrating the existence of compensable mental anguish and loss of companionship suffered by Deol's family. But nothing in the record or in the plaintiffs’ arguments demonstrates a rational connection between the injuries suffered and the amount awarded. The arguments made to the jury regarding the proper amount included references to the price of fighter jets, the value of artwork, and the number of miles driven by New Prime's trucks. Rather than rationally connect the evidence to an amount of damages, these arguments did just the opposite by encouraging the jury to base an ostensibly compensatory award on improper considerations that have no connection to the rational compensation of Deol's family.
We also agree with Gregory and New Prime that the trial court incorrectly excluded a responsible third party from the jury charge. Because a reasonable jury could have determined that another company's truck was at least partly responsible for Deol's death, the trial court should not have denied the defendants’ request to designate that company as a responsible third party.
The judgment of the court of appeals is reversed, and the case is remanded for a new trial.
I.
Around midnight on November 23, 2013, Sarah Gregory was driving a New Prime eighteen-wheeler eastbound on Interstate 40 toward Amarillo. The road was icy, traffic was light, and Gregory was traveling at 58 miles per hour. The highway had two lanes in each direction, divided by a median. In response to brake lights indicating a traffic jam a half a mile or so ahead, Gregory applied the brakes. The truck began to slide on the ice, and she lost control of it. The truck "jackknifed," which means that its trailer began to skid, pushed the cab out of alignment with the trailer, and eventually folded the cab back toward the trailer, rendering the truck immovable. When the truck came to rest, it was blocking the entire left lane and some of the right lane. Gregory did nothing to warn the drivers behind her of the obstruction. The highway was unlit, so approaching drivers had little notice of the hazard shrouded in the darkness ahead.
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 first two vehicles to arrive on the scene were both trucks—a Maryland Trucking Company truck driven by Bhupinder Deol and a Danfreight Systems truck. Deol came first. Both trucks managed to steer around the New Prime truck on the right, but the Danfreight truck clipped Deol's truck after both had passed by. Deol's truck eventually stopped on the right shoulder of the road not too far past the disabled New Prime truck, and the Danfreight truck stopped on the grass between the highway and the feeder road.
Next came a truck owned by ATG Transportation. Unlike the two trucks before it, the ATG truck did not make it around the New Prime truck. Instead, its driver veered right and lost control. The ATG truck turned onto its side on the right shoulder, blocking most of the remaining space between the New Prime truck and the right edge of the highway. Only a few feet of space separated Gregory's truck, jackknifed on the left, from the ATG truck, overturned on the right.
Following behind the ATG truck was a van driven by Guillermo Vasquez. Vasquez saw the ATG truck fall over on the right side of the road and steered left in response, but he could not avoid the wall of trucks almost entirely blocking the road. The Vasquez van hit the New Prime truck at less than ten miles per hour. A Prius followed the Vasquez van, crashing at high speed into the ATG truck on the right. At this point, neither Deol nor the Vasquez van's passengers had been seriously injured. The next truck, however, struck the back of the Vasquez van at 56 miles per hour. This truck belonged to P&O Transport. After that collision, the final two trucks—belonging to DOD Reynolds and CDO Express Diversified—collided with the P&O truck.
Five of Vasquez's family members were riding in the van with him. His wife Alma and his son-in-law Hector Perales were among the deceased.
Another decedent was Tracy Jones, a passenger in the Prius.
Some time before the P&O truck arrived, Deol left his truck to assist victims of the accident. Adam Moseley, a DPS officer who responded to the scene, testified that Deol's injuries suggested he had been killed when the Vasquez van—pushed forward by the force of the successive collisions with the P&O, DOD, and CDO trucks—rolled over and crushed him.
Deol's estate and family sued Gregory and New Prime, among others, seeking compensatory damages for (1) economic losses caused by Deol's death, (2) Deol's conscious pain and suffering, and (3) the mental anguish and loss of companionship suffered by his wife, three children, and parents. The estates and families of the other decedents intervened in the litigation, but the Jones parties later settled, leaving the families of Deol, Vasquez, and Perales to go to trial. The jury's verdict awarded almost $39 million to the plaintiffs, and Deol's family's share of the final judgment was $16,447,272.31. Deol's family's noneconomic damages accounted for $15,065,000 of the verdict.
The jury verdict awarded Deol's wife Jaswinder Chohan $7,437,500, including (1) $350,000 for loss of past companionship, (2) $2,625,000 for loss of future companionship, (3) $525,000 for past mental anguish, and (4) $3,937,500 for future mental anguish. It awarded each of his two sons $2,445,000, including (1) $160,000 for loss of past companionship, (2) $1,200,000 for loss of future companionship, (3) $160,000 for past mental anguish, and (4) $925,000 for future mental anguish. His daughter was awarded $1,457,500, including (1) $160,000 for loss of past companionship, (2) $1,200,000 for loss of future companionship, (3) $5,000 for past mental anguish, and (4) $92,500 for future mental anguish. Finally, each of Deol's parents were awarded $640,000. Both received $160,000 for each category of damages. Economic losses and Deol's conscious pain and suffering accounted for the rest of the verdict.
After the verdict, Gregory and New Prime settled with the Vasquez and Perales parties. Gregory and New Prime appealed, raising a host of issues. On appeal, the Deol parties were the only remaining plaintiffs. On its own motion, the court of appeals took the case en banc before a panel opinion was issued. A 10–4 majority affirmed the judgment on all issues. The defendants now raise three issues in this Court. They contend that (1) the court of appeals reviewed the amount of the noneconomic damages award under an overly deferential standard of review, (2) the amount of the award finds no support in the evidence, and (3) ATG should have been designated as a responsible third party. As explained below, we largely agree with Gregory and New Prime.
II.
A.
Noneconomic damages are the exception, not the norm, in tort law. The common law has long hesitated to recognize mental or emotional injuries absent an accompanying physical injury. E.g., Lynch v. Knight (1861) 11 Eng. Rep. 854, 863 ("Mental pain or anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone."). Consistent with the common law tradition, this Court first allowed recovery of mental anguish damages in personal injury cases only when there was an accompanying physical injury to the plaintiff. Hill v. Kimball , 76 Tex. 210, 13 S.W. 59, 59 (1890). We later expanded that rule to allow recovery when the mental anguish produces some physical manifestation. Gulf, C. & S. F. Ry. Co. v. Hayter , 93 Tex. 239, 54 S.W. 944, 945 (1900). The chief justifications for the common law's skepticism of mental anguish damages were "[t]he inherently subjective nature of mental anguish," "the concomitant potential for false claims," and the resistance of non-pecuniary, emotional injuries to rational monetization. Parkway Co. v. Woodruff , 901 S.W.2d 434, 442 (Tex. 1995).
See also Blake v. Midland Ry. Co. (1852) 118 Eng. Rep. 35, 42 ("[W]e are of opinion that the learned Judge at the trial ought more explicitly to have told the jury that, in assessing the damages, they could not take into their consideration the mental sufferings of the plaintiff for the loss of her husband ...."); Baker v. Bolton (1808) 170 Eng. Rep. 1033, 1033 ("In a civil Court, the death of a human being could not be complained of as an injury; and in this case the damages, as to the plaintiff's wife, must stop with the period of her existence.").
In keeping with the common law, this Court in wrongful death cases long adhered to the pecuniary loss rule, a "well settled" principle that damages for wrongful death "are measured by the pecuniary injury to the respective parties entitled," and not by reference to a surviving party's pain or mental anguish. March v. Walker , 48 Tex. 372, 375 (1877). Not until comparatively recently did our precedent depart from this rule. In 1983, our decision in Sanchez v. Schindler departed from the common law's traditional teaching about the difficulty of assigning a dollar value to non-physical injuries and charted a new course for wrongful death cases, reasoning that "present social realities" demanded that "the antiquated and inequitable pecuniary loss rule" be abandoned. 651 S.W.2d 249, 251 (Tex. 1983). We expressed optimism that injuries such as these "are not too speculative to be given a monetary value," although we offered little advice on how that might be done. Id. at 253.
Three years after opening the door to mental anguish damages in wrongful death cases in Sanchez , we also abandoned—as to wrongful death cases at least—the venerable prohibition on recovery of mental anguish damages without a physical manifestation. Moore v. Lillebo , 722 S.W.2d 683, 685–86 (Tex. 1986). Moore held for the first time that family members could recover for both mental anguish and loss of companionship without a showing of physical manifestation. Id. Since Sanchez and Moore , this Court has not had occasion to elaborate on how the wrongful death damages authorized by these decisions should be reviewed on appeal.
We have, however, decided other cases involving mental anguish damages that shed light on the inquiry. For personal injury cases in general, we have in the years since Sanchez and Moore held that "evidence of the nature, duration, and severity of [ ] mental anguish" is required to establish the existence of mental anguish damages. Parkway , 901 S.W.2d at 444 ; Serv. Corp. Int'l v. Guerra , 348 S.W.3d 221, 231 (Tex. 2011) ("Even when an occurrence is of the type for which mental anguish damages are recoverable, evidence of the nature, duration, and severity of the mental anguish is required.").
A year later, building on Parkway , we concluded in a personal injury case that "[n]ot only must there be evidence of the existence of compensable mental anguish, there must also be some evidence to justify the amount awarded." Saenz , 925 S.W.2d at 614 (emphasis added); Hancock v. Variyam , 400 S.W.3d 59, 68 (Tex. 2013) ("There must be both evidence of the existence of compensable mental anguish and evidence to justify the amount awarded."). Rejecting the notion that "[t]ranslating mental anguish into dollars is necessarily an arbitrary process," we held that a jury's discretion in crafting these verdicts is not unlimited. Saenz , 925 S.W.2d at 614. In short, "[j]uries cannot simply pick a number and put it in the blank." Id.
In the years since Parkway and Saenz , we have applied these limitations on recovery in a line of defamation cases involving mental anguish damages. Bentley , 94 S.W.3d at 606 ; Hancock , 400 S.W.3d at 68 ; Bennett v. Grant , 525 S.W.3d 642, 648 (Tex. 2017) ; Anderson v. Durant , 550 S.W.3d 605, 618–20 (Tex. 2018). In Bentley , we applied the requirement announced in Saenz for the first time, overturning a $7 million mental anguish verdict in favor of Bentley even though "[t]he record le[ft] no doubt that Bentley suffered mental anguish." 94 S.W.3d at 606. That record indicated that (1) Bentley could not sleep, (2) he experienced embarrassment in public life, (3) his family life was disrupted, (4) his children were distressed at school, (5) he felt depressed, and (6) he felt that his honor and integrity had been irrevocably impugned. Id. at 606–07. But "all of this [wa]s no evidence that Bentley suffered mental anguish damages in the amount of $7 million. " Id. at 607 (emphasis added). The court of appeals disregarded Bentley and later cases, which require evidence justifying the amount of mental anguish damages, by distinguishing between defamation and wrongful death. We are not convinced that this distinction makes a difference. Bentley , a defamation case, quotes Saenz , a personal injury case, at great length. Bentley , 94 S.W.3d at 606 (quoting Saenz , 925 S.W.2d at 614 ). Our precedent thus cannot support the notion that defamation cases are somehow unique. Nor do we see any valid basis on which to carve out special rules for appellate review of noneconomic damages in wrongful death cases, as opposed to non-death injury cases or defamation cases. Though the magnitude of mental anguish may often be heightened in wrongful death cases, the jury's task is the same: "They must find an amount that, in the standard language of the jury charge, ‘would fairly and reasonably compensate’ for the loss." Id. A wrongful death case is no different in this regard.
All acknowledge the inherent difficulty in assigning a dollar value to the anguish and loss suffered by the grieving family of an accident victim, but this is what we ask juries to do. The nature of this undertaking—compensating people with money for emotional injuries that are difficult to monetize—is not fundamentally different when the emotional injuries are caused by a death rather than by defamation as in Bentley or by a non-fatal personal injury as in Saenz . In any factual context, including wrongful death, the approach we stated in Saenz and repeated in Bentley applies to the legal-sufficiency review of damages awarded for noneconomic injury:
Not only must there be evidence of the existence of compensable mental anguish, there must also be some evidence to justify the amount awarded. We disagree with the court of appeals that "translating mental anguish into dollars is necessarily an arbitrary process for which the jury is given no guidelines." Fidelity & Guaranty Insurance Underwriters v. Saenz , 865 S.W.2d 103, 114 (Tex. App.—Corpus Christi 1993). While the impossibility of any exact evaluation of mental anguish requires that juries be given a measure of discretion in finding damages, that discretion is limited. Juries cannot simply pick a number and put it in the blank. They must find an amount that, in the standard language of the jury charge, "would fairly and reasonably compensate" for the loss. Compensation can only be for mental anguish that causes "substantial disruption in ... daily routine" or "a high degree of mental pain and distress." Parkway v. Woodruff , 901 S.W.2d 434, 444 (Tex. 1995). There must be evidence that the amount found is fair and reasonable compensation, just as there must be evidence to support any other jury finding. Reasonable compensation is no easier to determine than reasonable behavior—often it may be harder—but the law requires factfinders to determine both. And the law requires appellate courts to conduct a meaningful evidentiary review of those determinations.
Bentley , 94 S.W.3d at 606 (quoting Saenz , 925 S.W.2d at 614 ) (cleaned up).
B.
Holding that some evidence must justify the amount of noneconomic damages awarded does not fully answer the question, however. If we take seriously the notion that mental anguish and loss of companionship damages are meant to reasonably compensate surviving family members for their injuries—as our cases undoubtedly do —then we must grapple with the difficulties that inevitably arise when courts attempt to evaluate the size of these compensatory awards.
E.g., Moore , 722 S.W.2d at 688. Mental anguish is "the emotional pain, torment, and suffering that the named plaintiff would, in reasonable probability, experience from the death of the family member." Id. Loss of companionship is the loss of "positive benefits flowing from the love, comfort, companionship, and society the named plaintiff would, in reasonable probability, experience if the decedent lived." Id.
"Compensation is the chief purpose of damages awards in tort cases." J&D Towing, LLC v. Am. Alt. Ins. Corp. , 478 S.W.3d 649, 655 (Tex. 2016) ; see also id. at 655 n.14 (quoting Fowler Harper et al., Harper, James and Gray on Torts § 25.1, at 574 (3d ed. 2007) ("The cardinal principle of damages in Anglo–American law is that of compensation for the injury caused to the plaintiff by the defendant's breach of duty.")). Compensatory damages awards are meant to compensate victims, not to punish or deter tortfeasors. This basic premise of our civil justice system is no less true in a wrongful death case than in any other context. No matter what the compensatory damages are compensating for, they are supposed to be "[r]easonable and proper compensation ... sufficient to place the plaintiff in the position in which he would have been absent the defendant's tortious act." Id. at 655.
Applying this simple-sounding rule to noneconomic injuries is far from simple. The unavoidable truth is that money cannot genuinely compensate for emotional trauma, whether or not tort law claims otherwise. Money's inability to truly compensate for mental anguish is most starkly demonstrated in a wrongful death case. How can money "place the plaintiff[s] in the position" they were in before Deol died? Obviously it cannot. The economic loss in this case may be readily ascertainable, but the noneconomic harm transcends quantification entirely. At Deol's death, Jaswinder Chohan lost far more than just a source of financial support. She lost her husband. Three children lost their father. Two parents were delivered the terrible news that they had outlived their son.
See Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc. , 434 S.W.3d 142, 152 (Tex. 2014) ("[M]oney does not equate to peace of mind.").
For one man's estimation of his own anguish upon the death of his wife, see C.S. Lewis, A Grief Observed (1961).
Any attempt to monetize the grief experienced by those whose loved ones die suddenly and prematurely will fail in its paltry attempt to compensate with money that which is priceless. The love we feel for those closest to us—and the pain we would feel at their passing—far exceeds any price that could ever be paid. Even as we establish legal standards in an attempt to promote rationality and non-arbitrariness in the damages awarded by courts, we are well aware of the insurmountable imperfection of any attempt to use money damages to compensate for the emotional injuries alleged in a wrongful death case. Imperfect justice is all that can be offered to grieving families who cannot truly be made whole, but it should be said that the entire enterprise of assigning dollar values to matters of the heart is exceedingly imperfect indeed. Nevertheless, existing Texas law authorizes such recoveries, and our justice system must proceed in this realm, as in all others, on the basis of evidence and reason.
Similar considerations have led jurisdictions like the State of New York to ban recovery for noneconomic losses in wrongful death cases altogether. See Liff v. Schildkrout , 49 N.Y.2d 622, 633–34, 427 N.Y.S.2d 746, 404 N.E.2d 1288 (1980) (noting that the New York wrongful death statute limits recovery to pecuniary injuries). Indeed, on the very day we heard oral arguments in this case, the Governor of New York vetoed a bill that would have authorized the recovery of noneconomic damages in wrongful death actions. Carolyn Gusoff, Gov. Kathy Hochul Vetoes Grieving Families Act, But Families of Victims of Fatal Tragedies Aren't Giving Up , CBS New York (Feb. 1, 2023), https://www.cbsnews.com/amp/newyork/news/grieving-families-act-vetoed-governor-hochul/.
We must insist that every aspect of our legal system—including the way we compensate grieving families for the wrongful death of a loved one—yields rational and non-arbitrary results based on evidence and reason, to the extent possible. 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.
As explained above, our precedents in Parkway, Saenz , Bentley , and later cases require legally sufficient "evidence of the nature, duration, and severity" of mental anguish to support both the existence and the amount of compensable loss. Parkway , 901 S.W.2d at 444 ; Saenz , 925 S.W.2d at 614 ; Bentley , 94 S.W.3d at 606. These decisions acknowledge the inherent indeterminacy of noneconomic awards and the discretion that must be afforded to juries asked to assign a dollar value to emotional injury. But they also make clear that the jury's discretion is by no means unlimited and that the amount awarded must be supported by evidence. The logic of these precedents applies with equal force to wrongful death cases.
The en banc majority did not look to these non-death cases for guidance because, in its view, "[d]eath is different." 615 S.W.3d at 304. While that statement is accurate in almost every conceivable application, it is not accurate when it comes to assessing damages for noneconomic injuries. No matter the source of the mental anguish or loss of companionship suffered, our precedent is clear that "there must be ... evidence to justify the amount awarded" in compensatory damages, just as there must be evidence to support any other relief afforded by our judicial system. Hancock , 400 S.W.3d at 68.
C.
Having established that (1) our precedent requires that the amount of damages awarded must be based on evidence and (2) emotional injuries are in their nature resistant to monetary quantification, we turn to the question of how a wrongful death plaintiff could establish the required connection between an emotional injury and an amount of damages.
1.
We begin with a few examples of how not to do so. During closing argument, counsel for Vasquez and Perales (other decedents) attempted to support the large request for noneconomic damages using a tactic that some amici refer to as "unsubstantiated anchoring." We understand unsubstantiated anchoring to be a tactic whereby attorneys suggest damages amounts by reference to objects or values with no rational connection to the facts of the case. Analogies employed by counsel in this case included a $71 million Boeing F-18 fighter jet and a $186 million painting by Mark Rothko. Of course, the cost of a fighter jet, the auction price of a coveted painting, or any other expensive comparator are all equally flawed analogies. After learning that a particular aircraft or painting sells for many millions of dollars, jurors are no closer to gaining a sense of how to compensate the family for their injuries. The self-evident purpose of these anchors, however, is to get jurors to think about the appropriate damages award on a magnitude similar to the numbers offered, despite the lack of any rational connection between reasonable compensation and the anchors suggested. Unsubstantiated anchors like those employed here have nothing to do with the emotional injuries suffered by the plaintiff and cannot rationally connect the extent of the injuries to the amount awarded.
Brief for Am. Prop. Cas. Ins. Ass'n, Ins. Council of Tex., and Nat'l Ass'n of Mut. Ins. Cos. as Amici Curiae in Support of Petitioners, at 26–27.
Decedents’ counsel offered these examples to the jury with the stated purpose of helping them "place a monetary value on human lives." That statement misunderstands the task a jury faces when asked to award damages for mental anguish or loss of companionship. Such awards are not meant to place a value on human life, which would be an even more nebulous and speculative task than monetizing mental anguish and loss of companionship. Unsubstantiated anchors introduced as a way to assist a jury in "valuing a human life" are not the type of information a jury can rightfully rely on when crafting a verdict. And on appellate review, such suggestions are of no assistance in rationally explaining why the amount of noneconomic damages awarded reasonably compensates the decedent's family.
Another unsubstantiated anchor offered in this case vividly exemplifies the potential for such numbers to improperly influence verdicts. After referencing expensive paintings and military aircraft, counsel for Vasquez and Perales urged the jury to give defendants their "two cents worth" for every one of the 650 million miles that New Prime's trucks drove during the year of the accident. The exact request was "[t]wo cents worth for each [decedent]; six cents a mile for the six hundred and fifty [million] miles ... they traveled in the year that they took these people's lives." Counsel argued that "for four years I've been trying to give this company and their lawyers my two cents worth[;] ... [f]or four years I've been trying and they won't listen to me." He then asked the jury to give New Prime their "two cents worth" instead. The unmistakable purpose of this argument is to suggest that New Prime can afford a large award and that it should be punished for denying Chohan and her family justice for Deol's death. But punitive damages are not at issue here; only compensatory damages are, and the "two cents a mile" argument has nothing to do with compensation.
This improper argument may have influenced the jury. Accounting for three decedents, the "two cents a mile" calculation yields $39 million in damages. The combined final jury verdict was $38.8 million, so it is not difficult to conclude that the improper argument influenced the result. This is especially the case when we are given no other explanation for the size of the award. 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.
Chohan urges that the Court should not consider these comments because they were made by counsel for Vasquez and Perales, not her own. We do not find that distinction convincing. The parties tried their wrongful death claims simultaneously to the same jury, which heard closing argument from both attorneys before deliberation. As a result, the improper argument might very well have affected the jury's deliberations as to all three decedents. If the jury's total award was influenced by the unsubstantiated "two cents a mile" suggestion, then improper considerations influenced the amount awarded to Deol's family just as much as they influenced the amount awarded to the Vasquez and Perales plaintiffs.
The Texas Rules of Civil Procedure speak clearly to this issue. "Counsel shall be required to confine the argument strictly to the evidence and to the arguments of opposing counsel." TEX. R. CIV. P. 269(e). It should go without saying that the cost of a painting, a military aircraft, or a percentage of a company's revenue are not "evidence" to which "counsel shall be required to confine the argument." Courts have an obligation to prevent improper jury argument and "will not be required to wait for objections to be made when the rules as to arguments are violated." TEX. R. CIV. P. 269(g). The trial court should have done so in response to the unsubstantiated anchors suggested by counsel.
Chohan's counsel asked the jury to use Deol's economic damages as a reference for both mental anguish and loss of companionship. Petitioners and some amici embrace the use of economic damages as a benchmark for noneconomic damages, and the courts of appeals take a mixed approach to the issue. The usefulness of such ratios will vary depending on the nature of the case. In wrongful death cases, however, we reject any requirement that the ratio between economic and noneconomic damages must be considered. The emotional trauma and loss experienced by the decedent's loved ones is different in kind from any lost income the family suffers because of the death. 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. Our consciences should indeed be shocked by such a suggestion. The severity of mental anguish and loss of companionship felt by surviving family members does not correlate with economic status. If—as the law demands—noneconomic damages are calculated to compensate a decedent's family members for their suffering, we cannot endorse a rule under which a wealthier family can recover more mental anguish damages than another family could simply because the wealthier decedent stood to earn more during his life.
Compare JNM Express, LLC v. Lozano , 627 S.W.3d 682, 701–02 (Tex. App.—Corpus Christi–Edinburg 2021, pet. pending) (entertaining an argument that "the ratio of non-economic damages to economic damages" was "approximately 17:1," but ultimately tossing it for inadequate briefing), FTS Int'l Servs., LLC v. Patterson , No. 12-19-00040-CV, 2020 WL 5047913, at *1 (Tex. App.—Tyler Aug. 26, 2020), pet. granted, cause remanded , No. 20-0795, 2023 WL 2358215 (Tex. Jan. 27, 2023), Lane v. Martinez , 494 S.W.3d 339, 351 (Tex. App.—Eastland 2015, no pet.) ("This large ratio of non-pecuniary damages to pecuniary damages ... lead[s] us to the conclusion that the jury's awards of non-pecuniary damages [are] not supported by factually sufficient evidence."), and Hous. Livestock Show and Rodeo, Inc. v. Hamrick , 125 S.W.3d 555, 581 n.24 (Tex. App.—Austin 2003, no pet.), with Alonzo v. John , 647 S.W.3d 764, 778–79 (Tex. App.—Houston [14th Dist.] 2022, pet. filed) (expressing skepticism about using the ratio of economic and noneconomic damages and upholding an award as supported by sufficient evidence despite a 24:1 disparity between the two), Emerson Elec. Co. v. Johnson , 601 S.W.3d 813, 844 n.18 (Tex. App.—Fort Worth 2018), aff'd on other grounds by 627 S.W.3d 197 (Tex. 2021) (concluding that the court need not consider the ratio of economic and noneconomic damages awards, but nevertheless concluding that the ratio was not excessive), and Simmons v. Bisland , No. 03-08-00141-CV, 2009 WL 961522, at *7 (Tex. App.—Austin April 9, 2009, pet. denied) ("The applicable standard of review requires us to uphold non-economic damage awards that are supported by the evidence, regardless of any ratio of non-economic damages to economic damages.").
Additionally, we agree with the dissent below that ratios between economic and noneconomic damages are particularly ill-suited for a wrongful death claim "because it is brought by the surviving family members, not the decedent whose primary economic loss is captured in a separate claim." 615 S.W.3d at 319 (Schenck, J., concurring in part and dissenting in part).
This is not to say that economic damages can never be considered when assessing noneconomic damages. There are certainly circumstances in which some types of economic damages might correlate with noneconomic damages. For example, the family of a decedent who suffers for an extended time in the hospital before passing away might suffer more mental anguish due to the strain of dealing with medical bills and insurance hassles while coping with the death of a loved one. In those circumstances, economic damages would also be higher because of the medical expenses associated with a long hospital stay. But the possibility that economic and noneconomic damages may correlate or inform one another in certain situations does not mean that they are necessarily connected in all cases or that the ratio between the two is always a useful tool. Like other unsubstantiated anchors, unexamined use of the ratio between economic and noneconomic damages—without case-specific reasons why such analysis is suitable—cannot provide the required rational connection between the injuries suffered and the amount awarded.
2.
If unsubstantiated anchors and unexamined ratios are not useful tools, then how can a party discharge its obligation to support an amount of noneconomic damages with evidence? To begin with, just as evidence of the existence of mental anguish damages generally must establish the "nature, duration, and severity" of the anguish suffered, Guerra , 348 S.W.3d at 231, the same kind of evidence—of "nature, duration, and severity"—will naturally also be relevant to the amount awarded.
In some cases, there may be direct evidence supporting quantification of an amount of damages, such as evidence of the likely financial consequences of severe emotional disruption in the plaintiff's life. Or there may be evidence that some amount of money would enable the plaintiff to better deal with grief or restore his emotional health. While money itself cannot alleviate grief or truly compensate for emotional trauma, it may be that money can provide access to all kinds of things that may help the person who has endured such an experience.
We do not offer these examples to suggest that in all cases there must be 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. It is instead merely a requirement that the amount of damages must have a rational basis grounded in the evidence. This requirement flows ineluctably from our prior holding that "[t]here must be evidence that the amount found is fair and reasonable compensation, just as there must be evidence to support any other jury finding." Bentley , 94 S.W.3d at 606 (quoting Saenz , 925 S.W.2d at 614 ). As with any evidentiary-sufficiency requirement, parties defending an award of damages cannot just assert that the amount justifies itself. Instead, when the record lacks evidence directly supporting the amount found, parties and reviewing courts must explore whether there is any other rational explanation of how the evidence supports the finding. See Crim Truck & Tractor Co. v. Navistar Int'l Transp. Corp. , 823 S.W.2d 591, 592 n.1 (Tex. 1992) (framing the sufficiency inquiry as including "whether the evidence offered has a tendency to prove the existence of a material fact"). As we held in Bentley and Saenz , the amount of a noneconomic damages award is subject to these conventional requirements of "meaningful evidentiary review," just like "any other jury finding." Bentley , 94 S.W.3d at 606 (quoting Saenz , 925 S.W.2d at 614 ).
The required rational basis for the award may come from evidence suggesting a quantifiable amount of damages, such as testimony about the potential financial consequences of severe emotional trauma. Or the rational basis may be revealed by lawyer argument rationally connecting the amount sought—or on appeal, the amount awarded—to the evidence. Accord Sheffield Dev. Co. v. City of Glenn Heights , 140 S.W.3d 660, 675 (Tex. 2004) (observing in the context of constitutional law that a "rational basis" for government action should be found "if one can be conceived," whether or not government officials had that basis in mind when they acted). We will not speculate here about all the permissible ways in which parties may demonstrate that a rational connection between the evidence and the amount awarded exists or is lacking. But merely asserting, without rational explanation, that any amount picked by the jury is reasonable compensation simply because a properly instructed jury picked the number is to argue that a jury may "simply pick a number and put it in the blank." Saenz , 925 S.W.2d at 614. That is exactly what we have said must not be done. Id. Such an arbitrary approach to damages is no more defensible in a wrongful death case than in any other case.
If awarding and reviewing noneconomic damages is to be a rational and non-arbitrary exercise, as we surely must insist that it be, then courts and jurors alike should be told why a given amount of damages, or a range of amounts, would be reasonable and just compensation. Mathematical precision is by no means required, but it is not enough for the plaintiff or his attorney merely to assert, without rational explanation, that a given amount or a given range is reasonable and just. We do not doubt that those who argue for such damages to juries and who seek to uphold them on appeal genuinely believe the amounts they seek and obtain are reasonable and just compensation for the injuries suffered. But one party's genuine belief is no rational basis for a judgment. There must be a reason given for why the belief is valid, a reason given for why the amount sought or obtained is reasonable and just. And it must be a rational reason grounded in the evidence.
Although neither party advocates for a comparative method under which the size of damages awards can be justified based on the damages previously awarded in factually similar cases, several amici suggest such an approach. We do not foreclose the possibility that comparison to other cases may play some role in a plaintiff's effort to establish that a given amount of noneconomic damages is reasonable and just compensation rationally grounded in the evidence. We have in the past invoked similar reasoning. See Anderson , 550 S.W.3d at 620 ("The jury's $400,000 award appears to be excessive compared to awards in cases involving similar or more egregious behavior...."). We will not endeavor here to define the permissible uses of verdict comparisons.
If the amount sought is genuinely thought to be reasonable and just compensation, then there should be an articulable reason why that is so. An attorney asking a jury to award that amount in damages should be expected to articulate the reason why the amount sought is reasonable and just, so the jury can rationally decide whether it agrees. And on appeal, if the reasons offered in justification of the amount awarded are rational and do not partake of prohibited motives, courts should defer to the jury's verdict. Again, we do not place any limits, in this opinion, on the reasons by which a plaintiff might justify the amount he seeks or the amount he has been awarded. We hold only that a rational reason, grounded in the evidence, must be given by the plaintiff, whose burden it is to prove the damages. Only then can juries and judges rationally assess whether the amount is reasonable and just compensation for the injuries suffered.
Some amici support a standard that asks what "a reasonable person could possibly estimate as fair compensation." Waste Mgmt. of Tex., Inc. , 434 S.W.3d at 153 (quoting Restatement ( Second ) of Torts § 905 cmt. i). The Fifth Circuit has characterized Texas law as employing a similar standard. Longoria v. Hunter Express, Ltd. , 932 F.3d 360, 365 (5th Cir. 2019). Because a juror acting reasonably could only award a specific amount of money if there was a rational connection between that amount and the evidence adduced at trial, we understand both our approach and the Restatement's as asking essentially the same question. The question is "what verdict is within the bounds of reasonable inference from the evidence." Miller v. Md. Cas. Co. , 40 F.2d 463, 465 (2d Cir. 1930) (Learned Hand, J.). It is the plaintiff's responsibility, as the party with the burden of proof, to articulate the "reasonable inference" connecting the size of the verdict and the evidence.
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.
D.
With these standards in mind, we examine the proceedings below. To determine whether the award was excessive, the en banc court of appeals employed essentially a two-step framework.
First, it gave a detailed account of Chohan's trial testimony indicating that she, her three children, and Deol's parents all had a close relationship with Deol during his life and were deeply grieved by his passing. 615 S.W.3d at 309–14. The unenviable task of explaining how she and each of her family members had been affected by Deol's death fell to Chohan alone. Her testimony is thorough, saddening, and as the en banc majority notes, accounts for nearly fifty pages of a lengthy reporter's record. Id. at 310. As to her own relationship with Deol, she testified that they shared a "very, very close" relationship, and he was her "best friend." The night of the accident was particularly traumatic for her, and she described the moment that she heard the news of his passing as "the saddest moment of her life." She began taking antidepressants, and the loss of Deol's support meant she had to relocate the family, which created additional disruption and discomfort in all of their lives, including hers. She finds herself particularly saddened by Deol's passing at milestones in their children's lives.
As to the children, both sons quite understandably reacted emotionally to their father's death. Both were very attached to him. Since the time of the accident, the older son, who used to be happy and outgoing, is now quiet and keeps to himself. The younger son is less active than before and has gained weight. As for the daughter, who was only seven months old at Deol's death, she sees pictures of her father around the house and asks when he is coming home.
Finally, Chohan testified that Deol was very close to his parents, who lived with them. They enjoyed spending time cooking and gardening together. Since his death, his mother cries several times a day. Though Deol's father is more reserved in his grief, Chohan testified that the family's entire home life has changed for the worse and that everyone is greatly saddened by Deol's passing.
After surveying this evidence, the court of appeals turned to the second step of its review. Noting that the jury was properly instructed on the definitions of mental anguish and loss of companionship and the types of evidence relevant to each, id. at 311–12, the court concluded that the verdict displayed no indication that the award was motivated by "passion, prejudice, sympathy, or other circumstances not in evidence," id. at 314. Nor was the award "flagrantly outrageous, extravagant, [or] so excessive that it shock[ed] the judicial conscience." Id. With those observations, it began and ended its analysis, affirming the verdict as sufficiently supported by the evidence. Id.
That approach is not so much wrong as it is incomplete. While we agree with both the majority and Justice Schenck's dissent that Chohan's testimony is sufficient evidence that Deol's family suffered compensable mental anguish and a loss of companionship, the testimony is no evidence, standing on its own, of the amount of damages incurred on account of that suffering. 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 New Prime's total miles driven. See supra at 557–59. 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." Saenz , 925 S.W.2d at 614. But that is precisely the kind of arbitrariness our precedent attempts to avoid by insisting on "evidence to justify the amount awarded." Id.
Gregory and New Prime concede as much. Pet. Br. on the Merits, at 38–39.
Chohan's testimony gave the jury much to work with when deliberating the first question related to damages: their existence. As we said in Moore , proof of a "family relationship constitutes some evidence" of mental anguish. 722 S.W.2d at 686. Chohan's testimony, in addition to proving the family relationships, provides an explanation for how each member of the family grieved Deol's loss. It gives examples of appreciable ways in which each of their lives was made worse by his passing. But it does not give any indication of what amount of damages would be enough "to indemnify the injured [plaintiffs] for the loss suffered." After hearing her testimony, no reasonable jury, however attentive, properly instructed, and well-intentioned, would be any closer to rationally assigning a monetary value to the losses she described. While Chohan's testimony satisfies Parkway's requirement that a plaintiff introduce legally sufficient "nature, duration, and severity" evidence, 901 S.W.2d at 444, it does not satisfy Saenz ’s requirement that "there must also be some evidence to justify the amount awarded." 925 S.W.2d at 614.
Compensatory Damages , Black's Law Dictionary (11th ed. 2019).
Nor does it suffice to simply conclude, as the en banc majority did, that the result neither shocks the conscience nor arises from bias or prejudice. We said almost 140 years ago that:
What shocks the conscience or manifests passion or prejudice in the jury are tests too elastic for practical use in the great majority of cases. They readily dispose of rare extremes. But the cases which need a rule are those which press the bounds of reason without transgressing; they disturb, but do not shock, the conscience; voice a severe, but not necessarily an enraged or prejudiced, jury.
Dorsey , 18 S.W. at 445. The "shocks the conscience" standard is inherently subjective because the consciences of appellate judges will surely differ in their assessment of damages awards. As we said in Bentley , a court of appeals’ factual-sufficiency review of the amount of damages for excessiveness—which is where the "shocks the conscience" standard has been employed—does not "displace[ ] [the court of appeals’] obligation, and ours, to determine whether there is any evidence at all of the amount of damages determined by the jury." 94 S.W.3d at 606. Applying only the vague and subjective "shocks the conscience" standard is therefore not enough. Whether or not it is reversible error to "shock the conscience" of an appellate judge, it is error to allow a verdict to stand when no rational basis for the verdict's amount is proffered, as is the case here.
Whatever the limited value of the "shocks the conscience" inquiry, if a reviewing court concludes that a jury's verdict was motivated by improper passion, prejudice, or a desire to punish a defendant, this remains a separate basis for reversal, even if there is otherwise evidence in the record that meets the legal standards articulated here. Texas courts often say that they "will set aside the verdict only where the record clearly indicates that the award was based on passion, prejudice, or improper motive, or is so excessive so as to shock the conscience." E.g., Sanchez v. Balderrama , 546 S.W.3d 230, 237 (Tex. App.—El Paso 2017, no pet.). Though our decisions in Parkway, Saenz , and Bentley augment that standard of review, they do not eliminate it. "Passion, prejudice, or improper motive" remains an independent basis for reversal.
The court of appeals detailed Chohan's testimony and then stated that its conscience was not shocked. But it made no attempt to reason from the testimony to an explanation for why $15 million reasonably compensates Deol's family for the many injuries Chohan described. Nor did the plaintiffs’ counsel assist in that regard. Indeed, the only argument offered at any point in this case that could explain the size of this award is the impermissible "two cents a mile" exhortation by counsel for Vasquez and Perales. No other explanation for the award's size has been proffered. Because no rational connection has been proffered between the amount awarded and the evidence of the "nature, duration, and severity" of the noneconomic damages suffered by Deol's family—and no such connection is apparent from the record—we must conclude that no evidence supports the amount awarded. The award of noneconomic damages must therefore be reversed.
When sufficient evidence exists to support the existence of damages but not the amount awarded, we reverse and remand. See ERI Consulting Eng'rs, Inc. v. Swinnea , 318 S.W.3d 867, 882 (Tex. 2010). Typically, in such a case, we would remand to the court of appeals to consider a remittitur. Id. But because in this case we also remand for a new trial due to the responsible-third-party issue, we will remand the entire case to the trial court for a new trial.
See also Swinnea , 318 S.W.3d at 882 ("We also hold that while legally sufficient evidence does not exist to prove the lost profits awarded by the trial court, legally sufficient evidence does exist to prove some reasonably certain amount of lost profits. We therefore also reverse the portion of the court of appeals’ judgment that ERI take nothing on its claims for lost profit damages and punitive damages and remand the case to the court of appeals to consider a remittitur, as well as any other remaining issues, before remanding the case to the trial court.").
III.
Finally, we consider the responsible-third-party issue. Before trial, Gregory and New Prime sought to designate several responsible third parties, including ATG, Danfreight, CDO, and each of their drivers. At the request of Deol's family, the trial court struck the designations before trial and later reaffirmed its ruling after presentation of the evidence.
In their briefing before this Court on the responsible-third-party issue, both petitioners and respondents engage with the full extent of the evidence presented at trial. Thus, they ask this Court to review the trial court's second, post-trial ruling on the issue, rather than the initial pre-trial ruling. We decide the issue as presented, by applying the statutorily dictated responsible-third-party standard to the trial evidence.
In this Court, the defendants complain only about the exclusion of ATG as a responsible third party. Their theory as to ATG's responsibility is as follows. Though the New Prime truck was blocking all of the left lane and most of the right lane of traffic, the two trucks that encountered the crash site before ATG were able to successfully navigate around the hazard to the right. It was not until the ATG truck arrived on the scene, tipped over, and blocked all remaining clearance on the right that the accident became unavoidable for the approaching vehicles. When the Vasquez van arrived soon after, it had no way to avoid the obstacles in front of it. The defendants contend that ATG's driver bore much of the responsibility for the fact that the accident was unavoidable for approaching vehicles, including the Vasquez van and the ensuing vehicles that caused the Vasquez van to crush Deol. They reason that if Gregory was responsible for Deol's death because her negligence created an obstructed road ultimately causing a later collision that killed Deol, then ATG's driver must likewise be at least partly responsible because the later, deadly collision was not unavoidable until the ATG driver's negligence resulted in a total obstruction of the road.
Chohan contends that Gregory and New Prime waived this objection because, at the charge conference, they objected to ATG's exclusion from the jury questions pertaining to the Vasquez and Perales parties but made no objection about the questions directed at Deol. We disagree. Gregory and New Prime designated ATG as a responsible third party, opposed the plaintiffs’ motion to strike the designation on the record, moved for reconsideration multiple times after the first attempt was unsuccessful, and obtained a ruling on the record. There are six pages of the reporter's record dedicated to back-and-forth argument on this point. The Texas Rules of Appellate Procedure require that the record reflect a timely objection stating the grounds for the ruling sought and a ruling on the request. Tex. R. App. P. 33.1(a). Gregory and New Prime's preservation efforts satisfy those procedural requirements.
For her part, Chohan contends that ATG was properly excluded as a responsible third party because the defendants produced no evidence as to (1) duty, (2) negligence, or (3) causation. As to negligence, Chohan contends that, at most, the defendants point to evidence that the ATG driver "steered aggressively to the right" and spun out, which, given the circumstances created by Gregory's prior jackknife of the New Prime truck, was eminently understandable. Chohan thus contends that the defendants did not introduce sufficient evidence of negligence on the part of ATG. As to causation, Chohan argues that ATG played no part in making the crashes that led to Deol's death more likely because the New Prime truck was the but-for cause of the Vasquez van's crash. Had the New Prime truck not been jackknifed in the left lane, Chohan contends, the Vasquez van could have safely avoided the overturned ATG truck by travelling in the left lane.
We do not consider this objection in depth because the record contains a police report demonstrating that the driver of the truck was also the owner of ATG Transportation. That is some evidence implicating the entity. Chohan's negligence and causation objections are more substantial, and we give them lengthier consideration.
The court of appeals affirmed the trial court's decision to exclude ATG, reasoning that the Vasquez van's involvement in the crash was solely attributable to Gregory's negligence. 615 S.W.3d at 299.
"A defendant may seek to designate a person as a responsible third party." TEX. CIV. PRAC. & REM. CODE § 33.004(a). "After adequate time for discovery, a party may move to strike ... on the ground that there is no evidence that the designated person is responsible for any portion of the claimant's alleged injury or damage." Id. § 33.004(l). Then, the burden shifts to the designating party to "produce[ ] sufficient evidence to raise a genuine issue of fact regarding the designated person's responsibility for the claimant's injury or damage." Id.
"Consistent with the statute's language, [the] courts of appeals have described the standard of review as mirroring a no-evidence summary judgment" under Texas Rule of Civil Procedure 166a(i). In re Eagleridge Operating, LLC , 642 S.W.3d 518, 525–26 (Tex. 2022) (collecting cases). We agree. The similarity between the statutory responsible-third-party standard and the no-evidence summary judgment standard is obvious. See City of Keller v. Wilson , 168 S.W.3d 802, 825 (Tex. 2005) ("The standards for taking any case from the jury should be the same, no matter what motion is used."). Regardless of the procedural context, to ask "[w]hether the proof establishes as a matter of law that there is no genuine issue of fact" is to ask a question of law, which means that review of the denial of a responsible-third-party designation is de novo. Ham v. Equity Residential Prop. Mgmt. Servs. Corp. , 315 S.W.3d 627, 631 (Tex. App.—Dallas 2010, pet. denied).
Compare Tex. Civ. Prac. & Rem. Code § 33.004(l) ("After adequate time for discovery, a party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant's alleged injury or damage. The court shall grant the motion to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person's responsibility for the claimant's injury or damage.") (emphasis added), with Tex. R. Civ. P. 166a(i) ("After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. ") (emphasis added).
We cannot agree with the courts below that "there is no evidence that [ATG] is responsible for any portion of [Deol's family's] injury." TEX. CIV. PRAC. & REM. CODE § 33.004(l). Instead, the evidence of the ATG driver's role in bringing about the dangerous conditions that caused the deadly collision would have permitted a reasonable jury to assign partial responsibility to ATG for Deol's death.
To begin with, there was evidence that the ATG driver's negligence—and not solely the negligence of Gregory—resulted in a total obstruction of the road. An expert witness for the plaintiffs testified that the ATG driver "steered aggressively to the right" with "well beyond the normal steering input that you would use," which "led to the [ATG] tractor trailer spinning out and then ultimately rolling over onto its left side." That same witness agreed that it would be "fair to say that any motor vehicle reacting to [the condition of the roadway] that lost traction, just like Ms. Gregory had done, was also failing to properly control their speed." A surviving passenger from the Vasquez van testified that, right before the ATG truck crashed, it "went straight up in the air like it was [a] catapult. And you could actually see the bottom of the trailer and the axles underneath as it went up." Other passengers from the van provided a similar version of events. Additionally, the ATG truck was the only truck to overturn during the entire course of events. Two other trucks had previously encountered the jackknifed New Prime truck, and unlike the ATG truck, both were able to steer clear of it on the right.
From this testimony, a reasonable jury could have concluded that the ATG driver negligently operated his vehicle, either by driving it too fast in inclement conditions such that he could not avoid the crash to the right, as other trucks did, or by overcorrecting his vehicle in an attempt to steer to the right.
Chohan's argument in both the trial court and the court of appeals focused less on the ATG driver's negligence and more on causation. The court of appeals affirmed solely on that basis, reasoning that Gregory's truck, not the ATG truck, was solely responsible for causing the Vasquez van to crash because:
The evidence showed that, but for Gregory's vehicle blocking the road with no hazard warning signal, Vasquez would have had ample space and time to stop his vehicle and get off the road, notwithstanding the location of the ATG Transportation truck. Because it was due to Gregory's actions that the Vasquez van was placed in the position it was before being pushed over Deol, the evidence is insufficient to establish that any act or omission by ATG Transportation was a substantial factor in causing Deol's death.
There are two problems with this reasoning. First, while it is true that Gregory's truck blocked the Vasquez van from travelling safely along the highway in the left lane (and in most of the right lane), it is just as true that the ATG truck blocked the Vasquez van from avoiding the accident on the right—as two earlier large trucks had done. Before the ATG truck arrived on the scene, two other trucks had safely passed the New Prime truck on the right, avoiding any serious accident. But after the ATG truck fell and blocked the right side of the road, any possibility that later drivers who approached the accident could safely navigate around the accident was eliminated. When the Vasquez van arrived shortly thereafter, its driver had no choice but to crash into either the New Prime truck on the left or the ATG truck on the right. Indeed, it was only because the ATG truck flipped over in front of the Vasquez van that its driver was compelled to move into the left lane to begin with. We cannot know whether the Vasquez van and the later vehicles would have crashed into the New Prime truck had the fallen ATG truck not blocked the rest of the road, but there can be little doubt on this record that the total obstruction of the road increased the likelihood of later collisions, including the one that killed Deol.
Second, even if it were true that the New Prime truck was the sole cause of the Vasquez van's crash, the Vasquez van's crash did not kill Deol. The evidence indicated that later collisions by subsequent vehicles pushed the van onto Deol. Thus, it is not enough to say, as the court of appeals did, that "it was due to Gregory's actions that the Vasquez van was placed in the position it was before being pushed over Deol." Id. at 299. It was not the van's presence that killed Deol; it was instead the van's being "pushed over Deol" by later collisions. Regardless of what caused the Vasquez van's presence at the scene, a reasonable juror could have concluded that the later, deadly collisions were made more likely by the total obstruction of the road and that the total obstruction was caused, in part, by the ATG driver's negligence.
The court of appeals was correct to conclude that "but for Gregory's vehicle blocking the road," "Vasquez would have had ample space and time to ... get off the road." Id. But the mere fact that one person's behavior is a but-for cause of an injury does not mean that another's behavior is not also a substantial factor in causing the same injury. Gregory's negligent operation of her truck was the first cause in a series of events that led to a tragedy. Although the accident would not have occurred but for Gregory's actions, a reasonable jury could have concluded that the ATG driver's actions turned an already dangerous situation into a deadlier one by closing off the ability of drivers approaching the scene to avoid a crash.
For these reasons, there was "sufficient evidence to raise a genuine issue of fact regarding [ATG's] responsibility" for Deol's death. TEX. CIV. PRAC. & REM. CODE § 33.004(l). 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." In re Coppola , 535 S.W.3d 506, 509 (Tex. 2017). A new trial is therefore required. See id. ("Allowing a case to proceed to trial despite erroneous denial of a responsible-third-party designation would skew the proceedings and potentially affect the outcome of the litigation") (cleaned up).
IV.
The judgment of the court of appeals is reversed, and the case is remanded to the trial court for a new trial on all remaining issues between the remaining parties.
Justice Devine filed an opinion concurring in the judgment, in which Justice Boyd joined.
Justice Bland filed an opinion concurring in part and concurring in the judgment.
Justice Lehrmann, Justice Huddle, and Justice Young did not participate in the decision.
Justice Devine, concurring, joined by Justice Boyd.
The value of a life is inherently unquantifiable. Grief, loss, loneliness, longing, pain, and suffering simply have no market value. The injury—the anguish —caused by the untimely loss of a loved one defies calculation, quantification, and measurement, but it is no less real, no less enduring, and—under Texas law—no less compensable. As the plurality opinion concedes, the evidence here validates the existence of such an injury. So, the ultimate question is: who decides the value of a man's worth to his family? We have long entrusted such abstract concepts to the community through its duly empaneled jury representatives. And we have upheld the jury's determination with just as much respect when the outcome was a zero damages award as when it was a much more significant one. But even as we must acknowledge that damage awards may occasionally exceed the bounds of our reasonable expectations, we ought to have faith in the jury system. As part of that system, judges—at every step of the way—have an opportunity to grade the jury's papers and offer a remedy for excessive awards. But an intrinsic quandary exists: What constitutes "meaningful review" when there is no objectively correct answer? How can anyone measure the unmeasurable?
Bentley v. Bunton , 94 S.W.3d 561, 606-07 (Tex. 2002) (holding that "[t]he record leaves no doubt that Bentley suffered mental anguish" but that "is no evidence that Bentley suffered mental anguish damages in the amount of $7 million," which is "far beyond any figure the evidence can support").
Today's plurality opinion explores the dilemma courts and juries face when asked to award monetary compensation for injuries that have no market value. Much of the guidance the plurality offers is helpful. But the opinion ventures far afield from what is necessary to decide this case and, more problematically, advocates a new evidentiary standard that is not only foreign to our jurisprudence but also incapable of being satisfied. Though I concur in the judgment remanding for a new trial, I do not join the opinion.
The plurality opinion also employs language hinting that, rather than requiring the appealing party to demonstrate the absence of a rational basis for the jury's damages award, the prevailing party would (or should) bear the burden on appeal to justify the jury's award. If the plurality were indeed shifting the appellate burden to the prevailing party, that would be an unprecedented change in the law. See, e.g., ante at 562 ("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." (emphases added)); id. at 562–63, 564 (asserting that even with "thorough," "sad[ ]," and "lengthy" evidence of the nature, duration, and severity of mental anguish, no evidence will support a jury's noneconomic damages award if the prevailing party fails to proffer a sufficient appellate argument explaining the award's size as opposed to holding the losing party to the burden of explaining how such testimony is so legally inadequate as to amount to no evidence of the amount awarded); id. at 563 ("Crucially, plaintiffs’ counsel at no point in these proceedings has attempted to proffer a rational argument justifying ... the amount awarded.").
As the plurality says, the rules governing damages for noneconomic injuries like mental anguish and pain and suffering apply in wrongful-death cases just as in personal-injury cases. That being so, claimants bear the burden of establishing both the existence and amount of such damages, just as they do for economic damages. To meet that burden, they must produce evidence sufficient to support the amount awarded. That means they cannot engage in "unsubstantiated anchoring" by asking fact-finders to rely on evidence that has nothing to do with the pain or anguish they've suffered. Nor can they ask or encourage the fact-finder to simply "pick a number" unrelated to the nature, duration, and severity of the noneconomic injury or anguish. Rather, the amount the fact-finder awards must, but must only, reasonably and fairly compensate claimants for their injuries. That amount cannot be based on mere passion, prejudice, or improper motive. And to uphold these requirements, both trial courts and appellate courts must engage in a meaningful review, just as they do for economic damages.
Id. at 550–51.
Id. at 550–51, 557.
Id. at 550–51, 557, 561–62.
Id. at 557–58.
Id. at 550–51, 554–55, 561.
Id. at 555.
Id. at 564 n.16.
Id. at 555–56, 561.
But while the plurality makes an earnest effort to supply guidance and guardrails, the opinion overreaches and yet still comes up short. In the quest to eliminate the uncertainty of elastic standards that have long balanced jury discretion with judicial oversight, the plurality offers an impossible one. The newly articulated standard the plurality champions requires claimants to establish a "rational connection between the amount awarded and the evidence of injury." Applying that standard here to the surviving spouse's "thorough, saddening, and ... lengthy" testimony about the nature, duration, and severity of her family's suffering and loss, the plurality finds "no evidence" to meet it. But what the plurality conspicuously refuses to say is what evidence would ever suffice. The best the plurality can offer the bench, the bar, and these litigants is: we'll know it if we see it.
Id. at 550–51, 560–61, 561–62 (asserting that this novel mandate flows "ineluctably" from our precedent).
Id. at 562–64.
Id. at 560–62.
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.
Id. at 556.
Id. at 550–51, 555 (emphases added) (quoting Bentley v. Bunton , 94 S.W.3d 561, 606 (Tex. 2003) ).
See Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc. , 434 S.W.3d 142, 153 (Tex. 2014) ("[C]ompensatory damages offer a pecuniary remedy for [a] non-pecuniary harm that a plaintiff has suffered.... [N]on-pecuniary damages do not require certainty of actual monetized loss. Instead, they are measured by an amount that ‘a reasonable person could possibly estimate as fair compensation.’ " (footnote omitted) (quoting Restatement ( Second ) Of Torts § 905 cmt. i.)); see also Compensate , Webster's Third New International Dictionary, at 463 (2002) ("to be equivalent to (as in value or effect)" "[to] make up for: counterbalance" "to make amends"); Compensate , The American Heritage Dictionary of the English Language, at 376 (5th ed. 2016) ("[t]o make ... reparation to"); Compensate , Black's Law Dictionary , at 353 (11th ed. 2019) ("To make an amendatory payment to; recompense (for an injury)[.]").
When there is some evidence of some amount of damages, we cannot render and must continue remanding. See ERI Consulting Eng'rs, Inc. v. Swinnea , 318 S.W.3d 867, 882 (Tex. 2010) ; see also ante at 564–65. This is not a workable system. Cf. PNS Stores, Inc. v. Rivera , 379 S.W.3d 267, 274 (Tex. 2012) ("While no system is infallible, endless litigation, in which nothing was ever finally determined, would be worse than the occasional miscarriage of justice.").
The plurality agrees that juries should consider the "nature, duration, and severity" of the claimant's pain and anguish, as do I. But even those factors cannot establish that a particular claimant's pain and anguish is "worth" any particular amount of compensation. A claimant who—based on nature, duration, and severity—sustains one hundred hypothetical "units" of pain or anguish should recover ten times as much as one who sustains only ten units, but that consideration points to no particular amount unless we know what one unit of pain and anguish is worth. The reality is that, although pain and anguish are compensable as a matter of law, no one can ever know what one unit is "worth" in the monetary sense, because pain and anguish is wholly nonpecuniary and has no market value.
See ante at 554, 557 (quoting Serv. Corp. Int'l v. Guerra , 348 S.W.3d 221, 231 (Tex. 2011), and Parkway Co. v. Woodruff , 901 S.W.2d 434, 444 (Tex. 1995) ).
The plurality implies that a claimant's financial costs of treating or dealing with pain and anguish could conceivably provide some basis for deciding an appropriate amount of compensation, but those costs represent economic losses. And although the amount of economic losses could theoretically provide some "substantiated" anchoring, it certainly will not do so in all cases. Beyond that, the plurality simply refuses to "speculate" about the permissible forms of evidence or argument that could support a particular amount in a given case. At the same time, they would require claimants and their counsel to find that evidentiary needle in the haystack. But there is no needle there. By definition, nonpecuniary losses inherently have no pecuniary measure.
Id. at 560–61.
See id. at 560–61.
Id. at 561.
For that reason, fairly and justly compensating tort victims for noneconomic injuries boils down to a policy choice. This Court has long recognized that Texas law should allow monetary compensation for those who suffer emotional trauma due to the wrongful conduct of another. And like the highest courts of our sister states, we have long entrusted that question to juries, counting on our community representatives to apply common sense, community values, and their own life experiences in finding the appropriate amount to compensate their fellow human beings who are suffering. Of course, the jury's decision must be based on evidence of the nature, duration, and severity of the claimant's suffering—and it cannot be based on noncompensatory motivations. But the reality is it can never actually be based on evidence establishing that the injury was "worth" a particular monetary amount.
See, e.g., Roof Serv. of Bridgeport, Inc. v. Trent , 244 W.Va. 482, 854 S.E.2d 302, 323 (2020) (holding that testimony regarding the victim's previous health and lifestyle, the significant injuries suffered, and the nature of lifestyle changes and impact on the victim's wife "compel our conclusion that the verdict awards are not monstrous, enormous, unreasonable, outrageous, and do not demonstrate jury passion, partiality, prejudice, or corruption"); Castro v. Melchor , 142 Hawai'i 1, 414 P.3d 53, 69 (2018) ("A jury may draw upon its own life experiences in attempting to put a monetary figure on the pleasure of living. It is a uniquely human endeavor ... requiring the trier of fact to draw upon the virtually unlimited factors unique to us as human beings. Testimony of an economist would not aid the jury in making such measurements because an economist is no more expert at valuing the pleasure of life than the average juror." (quoting Montalvo v. Lapez , 77 Hawai'i 282, 884 P.2d 345, 366 (1994) )); Campbell v. Kennedy , 275 So. 3d 507, 516 (Ala. 2018) ("The law is also clear that compensatory damages for pain and suffering cannot be measured by any yardstick, and the amount awarded must be ‘left to the sound discretion of the jury, subject only to correction by the court for clear abuse or passionate exercise of that discretion.’ " (quoting Ala. Power Co. v. Mosley , 294 Ala. 394, 318 So. 2d 260, 266 (1975) )); Cohan v. Med. Imaging Consultants, P.C. , 297 Neb. 111, 900 N.W.2d 732, 744 (2017) ("Although no specific dollar amounts were attached to her emotional injuries, the amount of damages for pain, suffering, and emotional distress inherently eludes exact valuation."); Meals ex rel. Meals v. Ford Motor Co. , 417 S.W.3d 414, 425 (Tenn. 2013) ("A jury has wide latitude in assessing non-economic damages. We trust jurors to use their personal experiences and sensibilities to value the intangible harms such as pain, suffering, and the inability to engage in normal activities."); Savage v. Three Rivers Med. Ctr. , 390 S.W.3d 104, 120-21 (Ky. 2012) (" ‘If the verdict bears any relationship to the evidence of loss suffered, it is the duty of the trial court and this Court not to disturb the jury's assessment of damages.’ ... ‘On such an issue as this, where the extent of pain being suffered is not capable of objective valuation, there really is no satisfactory standard by which to measure an award of damages.’ " (quoting Childers Oil Co. v. Adkins , 256 S.W.3d 19, 28 (Ky. 2008), and McClain v. Star Cab Co. , 346 S.W.2d 539, 540 (Ky. 1961) )); Johnson v. Scaccetti , 192 N.J. 256, 927 A.2d 1269, 1283 (2007) ("Our model jury instructions on pain and suffering recognize the inherently subjective nature of the damage-calculating process. Those instructions inform jurors that: ‘The law does not provide you with any table, schedule or formula by which a person's pain and suffering disability, loss of enjoyment of life may be measured in terms of money. The amount is left to your sound discretion.’ "), abrogated on other grounds by Cuevas v. Wentworth Grp. , 226 N.J. 480, 144 A.3d 890, 904-05 (2016) ; Est. of Pearson ex rel. Latta v. Interstate Power & Light Co. , 700 N.W.2d 333, 347 (Iowa 2005) (noting that "[d]amages for physical and mental pain and suffering cannot be measured by any exact or mathematical standard and must be left to the sound judgment of the jury" and affirming award as not "excessively flagrant" based only on evidence that "these causes of death would be terribly painful"); Beaver v. Mont. Dep't of Nat. Res. & Conservation , 318 Mont. 35, 78 P.3d 857, 875 (2003) (noting the lack of "a definite standard by which to calculate compensation for mental pain and suffering"); Callahan v. Cardinal Glennon Hosp. , 863 S.W.2d 852, 872 (Mo. 1993) (stating that a jury has "virtually unfettered" discretion to award damages as long as they are within the "large range between the damage extremes of inadequacy and excessiveness" (quoting Kenton v. Hyatt Hotels Corp. , 693 S.W.2d 83, 98 (Mo. 1985) )); Vajda v. Tusla , 214 Conn. 523, 572 A.2d 998, 1003 (1990) ("Not only are damages for pain and suffering peculiarly for the trier of fact, but ‘[p]roper compensation [for pain and suffering] cannot be computed by a mathematical formula ... there is no iron-clad rule for the assessment of damages.’ " (quoting Manning v. Michael , 188 Conn. 607, 452 A.2d 1157, 1162 (1982) )); McElroy v. Benefield , 299 Ark. 112, 771 S.W.2d 274, 277 (1989) ("There is no definite and satisfactory rule to measure compensation for pain and suffering and the amount of damages must depend on the circumstances of each particular case. Compensation for pain and suffering must be left to the sound discretion of a trial jury and the conclusion reached by it should not be disturbed unless the award is clearly excessive." (internal citation omitted)); Sheraden v. Black , 107 N.M. 76, 752 P.2d 791, 796 (1988) ("There is no standard fixed by law for measuring the value of pain and suffering; rather, the amount to be awarded is left to the fact finder's judgment."); Holmes Cnty. Bank & Tr. Co. v. Staple Cotton Coop. Ass'n , 495 So. 2d 447, 451 (Miss. 1986) ("[T]here are also some damages, such as pain and suffering, that are not susceptible of proof as to monetary value[.]"); Stackiewicz v. Nissan Motor Corp. , 100 Nev. 443, 686 P.2d 925, 932 (1984) ("We have long held that ‘[i]n actions for damages in which the law provides no legal rule of measurement it is the special province of the jury to determine the amount that ought to be allowed,’ so that a court ‘is not justified in reversing the case or granting a new trial on the ground that the verdict is excessive, unless it is so flagrantly improper as to indicate passion, prejudice or corruption in the jury.’ ... ‘[T]he elements of pain and suffering are wholly subjective. It can hardly be denied that, because of their very nature, a determination of their monetary compensation falls peculiarly within the province of the jury.... We may not invade the province of the fact-finder by arbitrarily substituting a monetary judgment in a specific sum felt to be more suitable.’ " (quoting Forrester v. S. Pac. Co. , 36 Nev. 247, 134 P. 753, 768 (1913), and Brownfield v. Woolworth Co. , 69 Nev. 294, 248 P.2d 1078, 1079-81 (1952) )).
See, e.g., Anderson v. Durant , 550 S.W.3d 605, 618 (Tex. 2018) (holding that because noneconomic damages "are not amenable to calculation with ‘precise mathematical precision,’ " the jury "has latitude in determining the award" so long as the jury awards " ‘an amount that a reasonable person could possibly estimate as fair compensation’ " (quoting Brady v. Klentzman , 515 S.W.3d 878, 887 (Tex. 2017), and Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc. , 434 S.W.3d 142, 153 (Tex. 2014) )); Golden Eagle Archery, Inc. v. Jackson , 116 S.W.3d 757, 772 (Tex. 2003) ("[W]hether to award damages and how much is uniquely within the factfinder's discretion."); Lucas v. United States , 757 S.W.2d 687, 720 n.21 (Tex. 1988) (Phillips, C.J., dissenting) ("As to non-economic damages, on the other hand, there is no formula or even definition which has proved useful in their assessment. The appropriate amount is instead left to the discretion, experience and common sense of the finder of fact."); Gulf, C. & S.F. Ry. Co. v. Johnson , 91 Tex. 569, 44 S.W. 1067, 1067-68 (1898) (stating that in cases where the jury is "authorized to take into consideration such mental and physical pain and suffering, and the nature, extent, and probable duration of the injury" when assessing damages, the law "in a large measure commits to the common sense and sound discretion of the jury the amount to be assessed").
In abiding by the Texas Constitution and the law antecedent to it, our compensatory-damages regime has long allowed community standards to inform how much money, if any, a wrongdoer must pay to compensate Texans for their noneconomic injuries. Under that standard, judges play an important role in determining whether a particular award was "manifestly unjust," "shock[s] the conscience," or "clearly demonstrate[s] bias." Keeping in mind this careful balance between judge and jury, the plurality's opinion is fundamentally at odds with the Court's admonishment today that "disregarding a jury's verdict is an unusually serious act that imperils a constitutional value of immense importance—the authority of a jury." To that end, I would not, as the plurality does, offer a solution that effectively neutralizes the jury's role by requiring them to rely on evidence a claimant simply cannot present.
Tex. Const. art. V, §§ 6 (a) ("[The] Court of Appeals shall have appellate jurisdiction ... [and] the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error."), 10 ("In the trial of all causes in the district courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury[.]"); In re C.H. , 89 S.W.3d 17, 26 (Tex. 2002) ("[A]ppellate courts ... must maintain the respective constitutional roles of juries and appellate courts[.]"); see also U.S. Const. amend. VII ("In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.").
See, e.g., Fulton v. Craddock , Dallam 458, 458 (Tex. 1842) ("Upon an inspection of the record and looking into the testimony, we find the proof, although contradictory, to be somewhat stronger in support of Craddock's right to recover; under such circumstances the court will presume (especially after several verdicts) that the jury, who are the proper triers of the facts, have found correctly; we cannot therefore disturb the verdict. This is required by the genius and spirit of our laws; if it were otherwise, courts might render juries useless, and usurp the power of ascertaining facts which according to the principles of the constitution belong to juries in a court of law.").
See In re Rudolph , ––– S.W.3d ––––, ––––, 2023 WL 4035804 (Tex. 2023). [21-0135, slip op. at 22-24].
Golden Eagle Archery , 116 S.W.3d at 773 ; see Sanchez v. Schindler , 651 S.W.2d 249, 253 (Tex. 1983) (observing that "fear of excessive verdicts is not a sufficient justification" for denying noneconomic damages because "[t]he judicial system has adequate safeguards to prevent recovery of damages based on sympathy or prejudice rather than fair and just compensation for the plaintiff's injuries"); see also Tex. Const. art. V, § 6 (a) (courts of appeals review for factual sufficiency); Tex. R. Civ. P. 315 (remittitur), 320 ("New trials may be granted when the damages are manifestly too small or too large."); Tex. R. App. P. 46.1 –.5 (remittitur) ; Tex. R. Evid. 401 (relevance), 403 (excluding relevant evidence for prejudice, confusion, or other reasons); In re Columbia Med. Ctr. , 290 S.W.3d 204, 210 (Tex. 2009) (observing that trial courts can order remittitur and grant new trials and intermediate appellate courts can review the record for factual sufficiency); Comm. on Pattern Jury Charges , State Bar of Tex. , Texas Pattern Jury Charges: General Negligence , Intentional Personal Torts & Workers’ Compensation PJC 1.3 (2020) (including instructions to jurors to "not let bias, prejudice, or sympathy play any part in [their] decision" and to "[b]ase [their] answers only on the evidence admitted in court and on the law that is in these instructions and questions").
Rudolph , ––– S.W.3d at ––––. [21-0135, slip op. at 13].
"Preservation of the justice system enshrined in our constitutions, with public participation through the jury system, is worth every effort the legal system can muster." Justice Nathan L. Hecht, Jury Trials Trending Down in Texas Civil Cases , 69 Tex. B.J. 854, 856 (2006). While the system will not always get it right, in my experience it's better to adopt standards that will enable courts to strive for justice for all instead of imposing standards that will ensure injustice to many. See Univ. of Ariz. Health Scis. Ctr. v. Super. Ct. , 136 Ariz. 579, 667 P.2d 1294, 1298 (1983) ("[T]he hue and cry in many tort cases ... is no more than the fear that some cases will be decided badly. Undoubtedly, the system will not decide each case correctly in this field, just as it does not in any field, but here, as in other areas of tort law, we think it better to adopt a rule which will enable courts to strive for justice in all cases rather than rely upon one which will ensure injustice in many.").
Of course, nothing would prevent the Legislature from constructing a policy-based approach to noneconomic losses. But because any approach must equate monetary amounts with injuries that have no market value, and each case is unique, that approach would suffer from the same challenges a jury faces when endeavoring, in good faith, to provide a truly fair and reasonable compensatory amount.
See Tex. Const. art. III, § 66 (b)–(c) (authorizing the Legislature by statute to "determine the liability for all damages and losses, however characterized, other than economic damages").
See, e.g. , Michael J. Saks, Lisa A. Hollinger, Roselle L. Wissler, David Lee Evans & Allen J. Hart, Reducing Variability in Civil Jury Awards , 21 Law & Hum. Behav. 243, 245-46 (1997) (discussing the use of damage caps and noting that they are "arbitrary" and "bear no relationship to the level of compensable harm suffered by a plaintiff"); David. M. Studdert, Allen Kachalia, Joshua A. Salomon, and Michelle M. Mello, Rationalizing Noneconomic Damages: A Health-Utilities Approach , 74 Law & Contemp. Probs. 57, 69 (Summer 2011) (critiquing the damage-schedule approach as "inherit[ing] whatever heuristics and inaccuracies attended those original valuations").
One thing is clear, however: as the electorate's chief policymaker, the Legislature is much better equipped to balance any tension between the Constitutional command of just compensation and the plurality's concerns about the potential for arbitrariness. The plurality's inability to articulate any way tort victims could satisfy the standard it proffers proves just how ill-suited courts are to the legislative function. But if there be a compelling need for a change, as the plurality suggests, policy choices like those implicated here are well within the Legislature's wheelhouse. In fact, the "rationally connected" standard the plurality advocates proves the point because it was cribbed from the statute imposing caps on medical-malpractice damages. While any legislatively imposed constraints on compensatory noneconomic damages would necessarily be arbitrary, a legislative approach would at least offer Texans a path to participate in the decision-making process. The plurality's approach would shape policy through hamster-wheel litigation. That is a cure worse than the disease.
See Strickland v. Medlen , 397 S.W.3d 184, 196 (Tex. 2013) (observing that the Legislature is best equipped to weigh and initiate broad changes to social and civil-justice policy); Patel v. Tex. Dep't of Licensing & Reg. , 469 S.W.3d 69, 95 (Tex. 2015) (Willett, J., concurring) ("Judicial duty requires courts to act judicially by adjudicating, not politically by legislating.").
Compare ante at 551 ("The plaintiff in a wrongful death case should be required to demonstrate a rational connection, grounded in the evidence, between the injuries suffered and the dollar amount awarded."), with Act of June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, .11(b)(2), 2003 Tex. Gen. Laws 847, 873-75, 884 (enacting medical-malpractice caps on non-economic damages with current version at Tex. Civ. Prac. & Rem. Code §§ 74.301 –.303 and stating the legislative purpose for enacting the statute was to "ensure that awards are rationally related to actual damages").
See Lucas v. United States , 757 S.W.2d 687, 689-90 (Tex. 1988).
See supra note 17 and accompanying text.
The plurality opinion would effect a sea change in the law without providing any reasonably defined parameters. More questions are raised than even the plurality can hazard to answer. While I don't think we should ever impose a change in the law that we cannot reasonably explain, I certainly would not do so in a case destined for a new trial for other reasons.
Contrary to the plurality's assertion otherwise, the requirement of a "rational connection between the amount awarded and the evidence of injury," ante at 551 (emphasis added), is a clear transition from the requirement that there must be "some evidence to justify the amount [of mental anguish damages] awarded," Saenz v. Fid. & Guar. Ins. Underwriters , 925 S.W.2d 607, 614 (Tex. 1996) (emphasis added). The plurality cannot point to authority from this Court or any other that has ever required claimants to establish a "rational connection" between noneconomic damages and the amount awarded. "Rational connection" is a concept tied to legislative actions, such as in policy statements for legislative enactments, see supra note 31, and cases evaluating the constitutionality of legislative caps on noneconomic damages, see, e.g., Lucas , 757 S.W.2d at 694-95 ; Verba v. Ghaphery , 210 W.Va. 30, 552 S.E.2d 406, 413-15 (2001) (Starcher, J., dissenting); State ex rel. Ohio Acad. of Trial Laws. v. Sheward , 86 Ohio St.3d 451, 715 N.E.2d 1062, 1092 (1999) ; Butler v. Flint Goodrich Hosp. of Dillard Univ. , 607 So. 2d 517, 520 (La. 1992).
With much respect for my colleagues’ diligent work on a difficult and confounding question, I cannot join an opinion that does so much and so little at the same time. However, I agree that defense counsel's improper jury argument could have influenced the damages award, and I join the judgment remanding for a new trial because the jury charge erroneously excluded a responsible third party.
Justice Bland, concurring in part.
The parties agree that a jury's imposition of mental anguish damages must be reasonable and consistent with due process, requiring judicial review. The difficulty lies in articulating a workable legal standard for evaluating such damages, particularly when the damages are not linked to an underlying physical injury. The plurality and Justice Devine agree that the mental anguish damages in this case must be reversed but differ in their approach to that judicial standard.
See Saenz v. Fid. & Guar. Ins. Underwriters , 925 S.W.2d 607, 614 (Tex. 1996) ("[T]he law requires appellate courts to conduct a meaningful evidentiary review of [damages] determinations."). Parkway Co. v. Woodruff , 901 S.W.2d 434, 443–44 (Tex. 1995) (outlining the historical development of constraints on such damages).
Ante at 551–52 (plurality op.); ante at 575 (Devine, J., concurring).
The common ground in their opinions, however, provides a framework for deciding this case. Both the plurality and Justice Devine agree that mental anguish damages must be based on the evidence. Both agree that juries must not measure mental anguish damages using improper yardsticks. Both agree that the jury in this case was told in error that it should use measures that have no legitimate role in deciding compensation for mental anguish: artwork, fighter jets, and the number of miles a defendant's company has driven. 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. 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.
Ante at 555 (plurality op.); ante at 569–70, 572–73 (Devine, J., concurring).
Ante at 557–59 (plurality op.); ante at 569–70, 572–73 (Devine, J., concurring).
Ante at 557–59 (plurality op.); ante at 575 (Devine, J., concurring). Although Justice Devine does not join the plurality opinion, he agrees with the plurality's resolution of the responsible third party issue. Id.
The court of appeals held that "[n]one of the awards at issue here meet [the passion, prejudice, or improper motive] criteria." 615 S.W.3d 277, 314 (Tex. App.—Dallas 2020). It did not grapple with the effect of counsel's pleas for measurements outside the evidence; rather, it contrasted the improper arguments with other, correct statements of law and the jury charge. Id. at 308. Those statements and instructions, however, gave no guidance as to the correct measurement, leaving the verdict open to a no-evidence challenge that the amount awarded in damages was based on passion or prejudice. See Saenz , 925 S.W.2d at 614 ; Parkway , 901 S.W.2d at 444.
Counsel's unchecked directives to the jury to employ mental anguish measurements based on standards that depart from the evidence render the verdict legally infirm under long-standing common law. It is settled law that appellate courts must review mental anguish damages to confirm that they are not the result of passion or prejudice. This part of the common law standard does not require a subjective determination that a given verdict "shocks the conscience." It focuses on inputs: whether the jury was exhorted to consider improper measurements for mental anguish, placing the amount awarded outside a reasonable range based on the evidence. The jury in this case was told to base mental anguish damages on passion (that the trucking company should be punished with a two-cent fine as mental anguish damages for each mile its fleet had driven) and prejudice (that the high cost of fighter jets and artwork should inform mental anguish damages). As the plurality observes, these arguments destroyed any rational connection the verdict has to the mental anguish evidence presented.
As early as 1855, this Court has remanded for a new trial where the verdict "is so excessive as to warrant the belief that the jury have been [misled] either by passion, prejudice or ignorance" or "by some undue influence, perverting the judgment." Thomas v. Womack , 13 Tex. 580, 584 (1855).
Thomas , 13 Tex. at 584 (indicating the court may set aside an excessive verdict when "there is reason to believe that the jury were actuated by passion, or by some undue influence, perverting the judgment"); Ft. Worth & D.C. Ry. Co. v. Robertson , 16 S.W. 1093, 1094–95 (Tex. [Comm'n Op.] 1891) (declining to set aside jury verdict when there was no indication the jury had "been misled, or their verdict has been influenced by corruption, passion, or prejudice"); City of Ft. Worth v. Johnson , 19 S.W. 361, 362 (Tex. Comm'n App. 1892, judgm't affirmed) (suggesting a jury verdict is infirm if "the amount of the verdict is so disproportionate to the character of the injury and its effect as to indicate the existence of passion, prejudice, or improper motive on the part of the jury"). These early cases came long before Texas permitted recovery for mental anguish apart from physical injury. As the law expanded to allow recovery of damages in more situations, the grounds for reversal also expanded. See Saenz , 925 S.W.2d 607 at 614 ; Parkway , 901 S.W.2d at 443–44. As this law developed, Texas courts did not abandon this review. See Pope v. Moore , 711 S.W.2d 622, 624 (Tex. 1986) (indicating remittitur is appropriate where the jury's finding is manifestly unjust, even without a showing that the jury was inflamed by passion, prejudice, or improper motive).
See ante at 563–64 (plurality op.).
The jury's mental anguish verdict is markedly close to the two-cent fine. Counsel's exhortation to the jury to give New Prime "your two cents worth" for each mile driven by company truckers over the course of a year encouraged jurors to punish New Prime according to the size of its business rather than to compensate for grief. The jury awarded $38,801,775, an amount within one-half of one percent of the total suggested by counsel's "two cents" argument. Nothing in the record links this number to the evidence presented.
Ante at 557–59 (plurality op.).
Other cases will present challenges closer to the boundaries of judicial review. For now, it is enough to say that the mental anguish verdict in this case is legally infirm under either the plurality's or Justice Devine's articulation of the appropriate standard for review. I join all but Parts II.C.2 and II.D of the plurality opinion, leaving for another day the resolution of the debate as to the precise standard of judicial review. I concur on the common ground for reversal in this case: the jury's mental anguish verdict was infected by repeated requests to use improper measures to assess mental anguish damages, warranting a new trial.