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

By and on August 21, 2023

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

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

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

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

Technique 1: Unsubstantiated Anchor

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

Technique 2: Unexamined Ratio

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

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

Filed under non-economic damages, Runaway Verdicts, Texas, Wrongful Death

California Changes Law: Pain and Suffering Survives the Deceased

By on October 5, 2021

A specter of the deceased’s pain and suffering will soon haunt California defendants.

California law has long been that damages for pain and suffering “die with the plaintiff,” on the rationale that such damages are personal to the individual. Recent legislation signed into law by Governor Newsom on October 5 and effective January 1 changes this, and places California’s treatment of pain and suffering damages more in line with a majority of the nation. This bill, originally introduced by Senator Laird in February 2021, has been amended slightly: pain and suffering damages will be granted a life beyond the deceased for those cases that were granted preference before January 1, 2022, or are filed between January 1, 2022 before January 1, 2026.

One could reasonably anticipate that before this sunset date, the plaintiffs’ bar will introduce further legislation to make the change permanent.

The new law will not only increase available damages in many cases, but will correspondingly make litigation more difficult to settle, and therefore costlier even where there are meritorious defenses.

The bill was required to go through the Assembly Appropriations Committee before making its way to the governor’s desk. This route is usually reserved for bills that will have a fiscal impact on California’s budget. An Assembly report highlighted that some State entities, such as the University of California, CalTrans and Cal Fire, have faced million dollar lawsuits for personal injury, so pain and suffering’s extended life will have a fiscal impact that needed to be considered before passing the bill out of the legislature.

Through the General Fund for tax payers, and more generally through increased defense costs, this may amount to California citizens paying more as these costs are passed on to consumers.

(This is a follow up to the article Pain and suffering may become awardable in California wrongful death cases, from May 20, 2021.)

Filed under California, non-economic damages

Pain and suffering may become awardable in California wrongful death cases.

By on May 20, 2021

California may be joining the majority of the country by making pain and suffering damages available in wrongful death cases. Under current law, pain and suffering is only available in personal injury cases. Senator Laird introduced Senate Bill 447 in February 2021, which would allow the survivor of a deceased plaintiff to recover damages for the pain and suffering of the deceased. The senator premised the need for this change on COVID delaying the courts and preventing trials, and to that end amended the original proposal so that it would apply only where the pain and suffering accrued before January 1, 2026.

Although Senator Laird had originally asserted the need for this change because COVID 19 was depriving some plaintiffs of their day in court, supporters of the bill have voiced more general concerns, such as the notion that the current law allows defendants to “get away with” paying less damages simply because the plaintiff dies before trial, and deprives the victim’s family of the additional compensation. Supporters of the bill include the Consumer Attorneys of California, the Consumer Federation of California, and various unions. Opponents include the California Defense Counsel, California Justice Association, California Medical Association, the California Chamber of Commerce, and associations of health facilities and assisted living facilities.

If this bill is passed, it will make wrongful death cases more expensive to settle. No matter whether the death had anything to do with the underlying suit.

The bill has been sent to the Assembly to weigh in on this change.

Filed under California, non-economic damages

California Increases Potential Liability Exposure in Multi-Defendant Cases

By on August 11, 2020

The risks of litigating in California just got larger.

California’s Proposition 51 makes defendants jointly liable for all economic damages, but severally liable for noneconomic damages only in proportion to fault. The California Supreme Court yesterday unanimously ruled that intentional tortfeasors cannot use Proposition 51 to reduce their share of noneconomic damages. Resolving a split among intermediate appellate courts, the court ruled that “section 1431.2, subdivision (a), does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent to which the negligence of other actors — including the plaintiffs, any codefendants, injured parties, and nonparties — contributed to the injuries in question.”

This decision will further incentivize plaintiffs to include and pursue intentional tort claims in multi-defendant cases, even when they are really only “add-ons” to a claim grounded in another theory (e.g., fraud claims in strict product liability failure to warn cases). The potential damages against any defendant facing such a claim now include all, not just some, of the noneconomic damages. Noneconomic damages for such matters as pain, suffering, and loss of consortium are often a multiple of the economic award. Compounding the problem: whether such intentional tort claims will be precluded from insurance coverage as a “loss intentionally caused by the insured.” 

In B.B. v. County of Los Angeles, police used excessive force and caused the death of a man they caught assaulting a woman on the street while in a drug-induced haze. The jury found decedent 40% responsible, several deputies negligent and collectively 40% responsible, and Deputy Aviles liable for battery and 20% responsible. The trial court entered a judgment holding Aviles liable for 100% of both economic and non-economic damages. The Court of Appeal reversed, but the Supreme Court reversed the Court of Appeal, effectively reinstating the judgment.

In a typically thoughtful opinion from Justice Chin, the court ruled that the statute’s application to cases decided “under principles of comparative fault” included negligence (and strict product liability), but did not include intentional tortfeasors. The court rejected multiple arguments that this was unfair and inconsistent with other language in Proposition 51, including those made by defendants and in an amicus curiae brief supporting the defense to which yours truly contributed.

We previously reported on this case just after it was argued, see here.

Filed under Apportionment, California, non-economic damages, Prop 51

Genetic Transformation Injury As A Basis For Emotional Distress Damages

By on October 14, 2013

The traditional rule in tort law is that the threat of future harm, not yet realized, is not sufficient to state a claim. However, over the past twenty-five years, plaintiffs in toxic tort litigation have sought to assert new non-injury damage claims, such as medical monitoring and fear of cancer. Providing compensation for an event that has not yet occurred and, indeed, may never occur, is a long way from traditional tort, which only permits recovery when a victim has suffered a harm.

In November 2012, KBR, the largest U.S. military contractor, lost a federal court jury verdict in Portland, Oregon, in the case, Bixby et al v. KBR, Inc, et al,  and ordered to pay twelve U.S. soldiers $85,000,000 in non-economic and punitive damages for alleged toxic  hexavalent chromium dust exposure at a company work site in Iraq in 2003. The trial was a test case over injuries allegedly suffered by Oregon National Guardsmen who were tasked with protecting KBR workers at Qarmat Ali, a water treatment facility the company was hired to rehabilitate after the overthrow of Saddam Hussein in 2003.

The Veterans Administration has developed a medical surveillance program for veterans who may have been exposed to hexavalent chromium at the Qarmat Ali Treatment Facility in Iraq. The program is provided free of any charge.  While VA does not expect to find many serious Qarmat Ali-related illnesses, the VA believed it prudent to monitor the health of those who may have been exposed.

The jury awarded each plaintiff $850,000 in non-economic damages (later reduced to $500,000 under the Oregon statutory damages cap) and $6,250,000 in punitive damages. The only “injury” plaintiffs had in common was an untested, fleeting, and imperceptible “genetic transformation injury” on which their emotional distress damages for fear of cancer were based.

On its pending appeal before the Ninth Circuit, KBR argues that it was error for the trial court to permit such recovery on the ground that Oregon law does not permit recovery of emotional distress damages where, as here, there is no present physical harm associated with the purported future risk of harm or, indeed, there is no physical injury at all.

An Amici Curiae brief filed by the International Association of Defense Counsel (“IADC”) and American Chemistry Council (“ACC”) argues persuasively that a majority of U.S. courts do not permit a plaintiff to satisfy the physical injury requirement through allegations of sub-cellular harm where the plaintiff is asymptomatic with no observable physical symptoms. For this important assignment, IADC and ACC turned to veteran appellate lawyers, Mary-Christine Sungaila and Patrick Kelly of Snell & Wilmer LLP,  Thieir brief provides an excellent overview of the law on this issue.

Courts are properly concerned about flooding the judicial system with false emotional distress claims. To allay this concern, some courts have imposed “floors” for recovery (e.g., a requirement that emotional distress be “serious”) and “hurdles” to recovery (e.g., the presence of physical harm requirement for emotional distress claims).

 In the KBR litigation, the plaintiffs’ expert, Dr. Carson, was unable to say whether any individual plaintiff experienced a “genetic transformation injury” at Qarmat Ali, much less whether such an injury persisted in any particular individual. Moreover, he acknowledged that “genetic transformation injury” is asymptomatic with no observable physical symptoms and may be spontaneously repaired by the body.

As the Ninth Circuit held in Dumontier v. Schlumberger Technology Corp., 543 F.3d 567 (9th Cir. 2008), “not every alteration of the body is an injury” and sagely observed that “all life is change, but all change is not injurious.” Thus, even if radiation always changes DNA, that does not mean that there will always be corresponding compensable physical pain, injury or disease.

On the basis of their well-crafted arguments, Sungaila and Kelly argue that if the court were to accept plaintiffs’ claim, it would throw open the possibility of litigation by any person experiencing even the most benign sub-cellular damage. Sungaila and Kelly distinguish KBR from other cases where, for example, a plaintiff who demonstrated actual mutations that would trigger cancer upon arriving at the age of puberty or sexual maturity.

We look to the Ninth Circuit to reverse the trial court decision and to reject plaintiffs’ argument that sub-cellular or genetic transformation is sufficient, in and of itself, to permit recovery for emotional distress damages.
 

Filed under American Chemistry Council, Amicus Curiae, Association, bixby v. kbr, Counsel', defense", Dumontier v. Schlumberger Technology Corp, emotional distress, genetic transformation injury, KBR, Mary-Christine Sungaila, Negligent Infliction Of Emotional Distress, non-economic damages, Qarmat Ali, sub-cellular harm, war in Iraq Tagged with