One of the most difficult tasks a trial lawyer has at trial is asking the jury to compensation for noneconomic damages. Trial lawyers try to cover this topic during voir dire (jury selection), but it is often met with confusion and more questions from the panel.
Noneconomic damages are damages that are beyond medical bills that cannot be easily calculated because there is not a tangible number attached to them. Typically, these damages are referred to as physical pain and mental anguish damages. It also covers damages like impairment, disfigurement, and loss of consortium or companionship.
When presenting these damages, trial lawyers can’t ask the jury to put themselves in their client’s shoes. That would likely draw an objection known as the Golden Rule violation. Since trial lawyers can’t ask the jury to picture themselves in their client’s situation and there is no magical math formula for noneconomic damages, they are left with drawing analogies or creating an easy imagery for a math problem to calculate damages—i.e., award the client a dollar for each day they had to sit and wait for this trial to happen and live with back pain. However, sometimes these awards have been viewed as excessive.
On June 16, 2023, the Texas Supreme Court in Gregory v. Chohan issued an opinion seeking to provide additional guidance on these noneconomic damages. You can read the full 39-page opinion here. The Court ultimately reversed and remanded the case for a new trial. Since only six justices participated, the court issued a plurality opinion.
Gregory v. Chohan is a case out of the 5th Court of Appeals, Dallas. On November 23, 2013, on an unlit portion of Interstate 40, Sarah Gregory, operating a tractor-trailer for New Prime, jackknifed when the truck hit a patch of ice. Sarah Gregory left her truck and failed to activate the emergency flashers or set out reflective triangles or flares. Bhupinder Singh Deol crashed into Sarah Gregory’s truck. Additional accidents occurred. Mr. Deol and three other people died. Mr. Deol’s family brought a wrongful death lawsuit against Sarah Gregory and New Prime. At trial, the jury awarded $15,065,000 for noneconomic damages to Deol’s estate and family members. The Defendants appealed.
The Texas Supreme Court previously issued guidance on mental anguish damages in Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996), “[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.” In Gregory, the Court held that “no matter the cause of action, the results of litigation should always be justifiable based on evidence and reason.” “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.” The court also revisited the holding in Bentley v. Bunton 94 S.W.3d 561, 606 (Tex. 2002). “Juries cannot simply pick a number and put it in the blank.” Id.
In the Gregory opinion, the Court reviewed the evidence and said that the Plaintiff lacked a rational connection between the injuries suffered and the amount awarded, even though there was evidence demonstrating the existence of compensable mental anguish and loss companionship suffered by Deol’s family. Focusing on the closing argument made my counsel for Chohan, “[t]he 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.” The Court referred to these types of arguments as “unsubstantiated anchoring”, arguments that reference objects or values with no rational connection to the underlying case.
The Court continued in the opinion to draw the distinction between compensation for damages and punishment for acts. There is a fine line between noneconomic compensatory damages and punitive damages. It is clear that the Court’s guidance is to make noneconomic awards not become awards of punishment or to teach a lesson, like punitive damage awards. The Court recognized that in the case of losing someone you love, the price is priceless, but the recoveries allowed under the law must be based on evidence and reason.
The Court further explained that there must be evidence of the existence of mental anguish as and as one example focus on the nature, duration, and severity to guide the amount awarded. “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.”
When arguing these damages, trial lawyers have to be careful where they anchor the numbers for the jury to consider and explain how they arrived at that number to preserve the record for appeal. This burden ultimately rests on both sides. The defense also has the option to make arguments about the numbers presented to a jury and may choose to present their own. For trial lawyers, and their clients, this is an important discussion to have in the beginning of the representation so that evidence can be preserved and expectations set.