The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


How Should Juries Decide Noneconomic Damages Awarded to Family Members in Wrongful Death Cases?


From Gregory v. Chohan, decided Friday by the Supreme Court of Texas, in an opinion by Justice Jimmy Blacklock, joined by Chief Justice Nathan Hecht and Justice Brett Busby, and mostly joined by Justice Jane Bland (three Justices didn't participate in the decision, so these four were a majority of the remaining six):

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….

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…. "[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." 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." …

"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." 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." 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….

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.

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. {Similar considerations have led jurisdictions like the State of New York to ban recovery for noneconomic losses in wrongful death cases altogether.} 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….

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.

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'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.

[Justice Blacklock, Chief Justice Hecht, and Justice Busby signed on to the following:] 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, 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….

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….

Justice Jane Bland largely agreed:

 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….

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.

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….

Justice John Phillip Devine, joined by Justice Jeff Boyd, took a different approach:

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.

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.

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….

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.

Defendants were represented by Thomas Wright, Wanda McKee Fowler, Lisa Wright and Brittany Greger (Wright Close & Barger, LLP), Tom Phillips (Baker Botts LLP) and Scott Brister and Cameron Davis (Hunton Andrews Kurth LLP).