Multi-million-dollar jury awards, commonly known as nuclear or thermonuclear verdicts, are on the rise in the post-pandemic era. Consequently, practitioners are now more reliant than ever on appellate courts’ review of the legal sufficiency and the potential excessiveness of jury awards. Accordingly, this article seeks to offer practitioners a tool to assist in the pursuit of appellate relief by (1) summarizing pertinent standards and corresponding evidentiary requirements serving as the foundation for appellate courts’ analyses when reviewing a jury’s damage awards; and (2) providing an overview of Gregory v. Chohan, 670 S.W.3d 546 (Tex. 2023), the Texas Supreme Court’s most recent guidance on the proper method for quantifying non-economic damages.
Courts and juries have long wrestled with the challenge of assessing, measuring, and quantifying the economic and non-economic damages routinely asserted by personal injury plaintiffs. Economic damages are those that can be easily quantified and include past and future medical expenses and lost earning capacity. In contrast, non-economic damages are more abstract damages, contemplating awards for physical pain and suffering, physical impairment, disfigurement, and mental anguish. With respect to each of the foregoing, jurors hold the unique responsibility to “logically” and “fairly” quantify the damages sought. Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999). Try as they might, juries do not always succeed.
To protect the sanctity of this process, a defendant generally has the right to call for a review on appeal of the legal sufficiency of the evidence, see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005), or the excessiveness of the award, see Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986). Under a legal sufficiency review, the verdict cannot stand unless the evidence deduced at trial affords a reasonable and fair-minded juror to reach the verdict in question. Wilson, 168 S.W.3d at 827. For a review based on excessiveness, the inquiry centers on whether the trial evidence is so factually deficient or against the great weight and preponderance of the evidence that it results in manifest injustice. Moore, 711 S.W.2d at 624. The considerations for determining whether a claimant meets these evidentiary thresholds differ based on the category of damage at issue, though future damages of any kind all invoke a “reasonable probability” standard.[1]
I. Elements for Design Claims
Below is an overview of the elements that a plaintiff must establish for each category of damages commonly asserted in a personal injury dispute.
| Damages | Elements of Claimed Damage |
| Medical Expenses | An award of past medical expenses seeks to compensate the plaintiff for the medical expenses incurred as a result of the injuries sustained in connection with an accident. To obtain an award for past medical expenses, a claimant must show that the expenses (1) were actually paid or incurred and (2) were reasonable. In re K&L Auto Crushers, LLC, 627 S.W.3d 239, 249 (Tex. 2021). Medical charges or invoices alone do not prove reasonableness. See id. (“proof of the amount charges does not itself constitute evidence of reasonableness”). To combat excessively high medical bills that a claimant may not ultimately owe, defendants can and should issue carefully tailored subpoenas to a claimant’s medical providers, requesting information related to the provider’s billing practices and customary rate charges of other patients over a period of time. Id. (finding this information to be relevant and discoverable to show reasonableness of medical expenses). |
| Lost Earning Capacity | “Lost earning capacity” is an assessment of the plaintiff’s capacity to earn a livelihood prior to injury and the extent to which the injury impaired that capacity. Scott’s Marina at Lake Grapevine, Ltd. V. Brown, 365S.W.3d 146, 158-59 (Tex. App—Amarillo 2012, pet. denied). It is not measured by what a claimant actually earned before the injury, but rather by the person’s capacity to earn, even if the claimant did not work in that capacity in the past. Id.; Gen. Motors Corp. V. Burry, 203 S.W.3d 514, 553 (Tex. App.—Fort Worth 2006, pet. denied). A plaintiff must present evidence sufficient to permit a jury to reasonably measure earning capacity in monetary terms. Tagle v. Galvan, 155 S.W.3d 150, 519-20 (Tex. App. —San Antonio 2004, no pet.). Non-exclusive factors to consider include evidence of past earnings and plaintiff’s stamina, efficiency, ability to work with pain, and work-life expectancy. Big Bird Tree Servs. V. Gallegos, 365 S.W.3d 173, 178 (Tex. App.—Dallas 2012, pet. denied). There must be some evidence that the claimant had the capacity to work before the injury and that that capacity was impaired as a result of the injury to obtain future damages for lost earning capacity. Plainview Motels, Inc. V. Reynolds, 127 S.W.3d 21, 35 (Tex. App.—Tyler 2003, pet. denied). |
| Physical Pain | An award for physical pain seeks to compensate a claimant for the conscious physical pain resulting from the negligent action or inaction at issue. See Texas Pattern Jury Charge 30.3. Damages awarded based on physical pain are speculative in nature. Hunter v. Texas Farm Bureau Mut. Ins. Co., 639 S.W.3d 251, 260 (Tex. App. —Houston [1st Dist.] 2021). For this reason, much discretion is afforded to a jury for the valuation of physical pain. Id. In fact, even when an injury is proven, a jury can still decline to award damages for physical pain. Id. Of note, while an appellate court can review other verdicts in comparable cases to gauge the reasonableness of a physical pain award, this method is not often fruitful, as courts posit that “comparison of injuries in different cases is virtually impossible.” Primoris Energy Servs. Corp. v. Myers, 569 S.W.3d 745, 761 (Tex. App.—Houston [1st Dist.] 2018, no pet.). |
| Physical Impairment | In contrast to an award for physical pain, an award for physical impairment, also referred to as loss of enjoyment of life, focuses not on the injury or the symptoms elicited, but rather, the resulting loss of a former lifestyle. PNS Stores, Inc. v. Munguia, 484 S.W.3d 503 (Tex. App.—Houston [14th Dist.] 2016). To safeguard against double recovery with pain, mental anguish, disfigurement, and diminished earning capacity, a physical impairment award must hinge on a showing that the impairment is “substantial and extremely disabling.” See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003). For example, courts have found the following limitations sufficient to demonstrate the loss of a former lifestyle, an inability to: sleep, physically play with one’s children, participate in pre-incident hobbies, and perform yard work or other household maintenance activities. Patlyek v. Brittain, 149 S.W.3d 781, 787 (Tex. App.—Austin 2004, pet. denied). |
| Disfigurement | An award for disfigurement considers the impairment or injury to the “beauty, symmetry, or appearance of a person,” or an injury which results in an unsightly, imperfect, or deformed appearance. Goldman v. Torres, 341 S.W.2d 154, 160 (Tex.1960); Four J’s Cmty. Living Ctr., Inc. v. Wagner, 630 S.W.3d 502, 517 (Tex. App. — Houston [1st Dist.] 2021). While an award for disfigurement may contemplate the embarrassment associated with the impairment, a claimant need not show embarrassment to recover under a disfigurement theory. Four J’s Cmty. Living Ctr., Inc. v. Wagner, 630 S.W.3d 502, 517 (Tex. App.—Houston [1st Dist.] 2021, pet. denied). Customary forms of compensable disfigurement include burns, amputations, or scars; however, “the mere presence of a surgical scar does not automatically constitute compensable disfigurement.” Wei v. Lufkin Royale Nail Spa 75901, LLC, No. 12-23-00309-CV, 2024 WL 2798847, at *7 (Tex. App.—Tyler May 31, 2024, no pet. h.) (unreported); see, e.g., Belford v. Walsh, No. 14-09-00825-CV, 2011 WL 3447482, at *8 (Tex. App.— Houston [14th Dist.] Aug. 9, 2011, no pet.) (unreported). |
| Mental Anguish | Mental anguish is available in a court of law only when it is “more than mere worry, anxiety, vexation, embarrassment, or anger.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). Specifically, a claimant must put forth “legally sufficient ‘evidence of the nature, duration, and severity’ of mental anguish to support both the existence and the amount of compensable loss.” Gregory v. Chohan, 670 S.W.3d 546, 557 (Tex. 2023) (citing Parkway, 901 S.W.2d at 444; Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996); Bentley v. Bunton, 94 S.W.3d 561, 605 (Tex. 2002). |
II. Gregory v. Chohan, 670 S.W.3d 546 (Tex. 2023)
Courts routinely express recognition for the arduous task that is assessing non-economic damages. Thus, it is no surprise that jury awards for non-economic damages often carry the great weight of nuclear verdicts, solidifying a defendant’s decision to appeal. Responding to this call, the Texas Supreme Court recently weighed in on the discussion and further confirmed a pivotal safeguard when considering the excessiveness of an award for non-economic damages.
In Gregory v. Chohan, 670 S.W.3d 546 (Tex. 2023), a Dallas County jury awarded a decedent’s spouse, three children, and parents a total of $16,447,272.31 in damages following a tragic car accident. Gregory, 670 S.W.3d at 553. Notably, $15,065,000 was attributed to the non-economic damages of mental anguish and loss of companionship. Id. Defendants appealed this award, challenging, among other things, the size of the non-economic damages award. Id.
Borrowing the framework from a review of an award for mental anguish, the Texas Supreme Court held that a jury’s award for non-economic damages must be supported by “a rational connection, grounded in the evidence, between the injuries suffered and the dollar amount awarded.” Id. at 551. The Court explained that this approach protects against “arbitrary outcomes” and encourages damages awards that genuinely compensate plaintiffs as opposed to punishing defendants. Id. Applying this doctrine, the Court reversed the jury’s award and remanded for re-trial, reasoning that while the plaintiffs sufficiently demonstrated the existence of non-economic damages, they wholly failed to establish the requisite rational connection between the injury and the amount awarded. Id.
While the Court did not expound upon how one discharges the evidentiary burden with respect to an amount awarded for non-economic damages, it did provide clear examples as to what is not sufficient. Id at 557-59. Specifically, at the trial court level, plaintiffs’ counsel employed several methods commonly used to “assist” a jury in valuing a claim for non-economic damages, namely referencing “the price of fighter jets, the value of artwork, and the number of miles driven by [defendant’s] trucks” so as to “place a monetary value on human life” and bolster the estimates offered — i.e., “unsubstantiated anchoring.” Id at 557-58. The Court made clear that such “improper” considerations bear no rational basis for compensating plaintiffs. Id. Likewise, plaintiffs’ counsel attempted to rely on quantifiable economic damages as a frame of reference for determining the appropriate amount to award for non-economic damages. Id. at 559. The Court too rejected this rationale, explaining that the “unexamined use of the ratio between economic and noneconomic damages—without case-specific reasons for why such analysis is suitable—cannot provide the required rational connection between the injuries suffered and the amount awarded.” Id.
III. Conclusion
In the aftermath of Gregory, practitioners are more equipped to mitigate the risks associated with non-economic damages by demanding proof of the requisite rational connection between the injury suffered and the non-economic damages awarded. Critically, as Gregory demonstrated, it is easier to identify what falls short of this standard than to elaborate on the ways in which a plaintiff may carry this burden on appeal — a fact that speaks to the potential for this antidote in the context of nuclear verdicts. In fact, in May of 2024, the Fourteenth Court of Appeals reversed a $222 million verdict for mental anguish and loss of companionship based on Gregory. See generally Team Indus. Services, Inc. v. Most, No. 01-22-00313-CV, 2024 WL 2194508 (Tex. App.—Houston [1st Dist.] May 16, 2024, no pet.). With Gregory and its promising progeny, perhaps “logically” and “fairly” measuring the immeasurable is within reach.
[1] The reasonable probability standard requires a plaintiff seeking future damages to “(1) present evidence that, in reasonable probability, he will suffer damages in the future and (2) prove the probable reasonable amount of the future damages. See MCI Telecommunications Corp. v. Tex. Utilities Co., 995 S.W.2d 647, 654 (Tex. 1999); Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 595 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).