In today’s legal landscape, jury awards to personal injury plaintiffs are trending upwards. Studies show that “nuclear verdicts” are increasing in prevalence as jurors grow more critical of corporate defendants and are increasingly persuaded by provocative trial tactics from plaintiff attorneys. However, recent decisions from Louisiana and Texas show that some courts are bucking the trend by scrutinizing and, in some instances, curtailing these excessive awards. The analysis below examines three such cases—Gregory v. Chohan (Texas Supreme Court),[1] Warner v. Talos ERT LLC (Western District of Louisiana),[2] and Henry Pete v. Boland Marine and Manufacturing Company, LLC (Louisiana Supreme Court)[3]—and focuses on the courts’ rationales for reducing the award of damages in each case.
I. Texas Supreme Court: Gregory v. Chohan (2023)
At the outset, it is important to note that the Chohan case is an important development in the law on awards of noneconomic damages, but it does not have the same precedential effect of decisions from a majority of the Texas Supreme Court. This is because three justices did not participate in the decision, and as a result no more than four justices joined in any section of the lead opinion. Thus, the requisite five justices did not join to deliver a majority opinion of the court. Instead, Chohan represents a plurality opinion whose rationale will no doubt prove persuasive to lower courts throughout Texas, but the decision is not technically binding.
The main issue discussed in Chohan was whether the evidence presented at trial was legally sufficient to support the award of noneconomic damages, such as mental anguish or loss of companionship. Because there was no majority on this question, the kind of proof and the amount needed to support an award of noneconomic damages remain partially undetermined. But the judgment reached in Chohan—reversing an award of $15 million in noneconomic damages—is one lower courts will no doubt keep in mind when faced with similar awards.
The Chohan case arose from a fatal accident on an icy, unlit stretch of Interstate 40 near Amarillo, Texas. An 18-wheeler driven by Sarah Gregory for her employer New Prime, Inc. jackknifed across multiple lanes of traffic. Afterwards, six tractor-trailers and two passenger vehicles crashed into Gregory’s truck or each other, causing four fatalities and numerous injuries.
Gregory and New Prime settled with all the plaintiffs except the wife and family of Bhupinder Deol, one of the drivers killed in the accident. At trial, the jury awarded just over $15 million to Deol’s wife and family for mental anguish and loss of companionship.
The defendants appealed the size of the noneconomic damages award to the Dallas Court of Appeals. The court decided the case en banc and affirmed the jury’s award, holding that the award was not “flagrantly outrageous, extravagant, and so excessive that it shocks the judicial conscience.” The defendants then raised the same issue before the Texas Supreme Court.
Justice Blacklock announced the Texas Supreme Court’s plurality opinion, joined by Chief Justice Hecht and Justice Busby, and by Justice Bland in part. The key issue before the court was whether the plaintiffs had demonstrated a rational connection, grounded in the evidence, between the injuries suffered and the dollar amount awarded. This rational connection had to support not only the existence of a compensable injury, but also the amount awarded in compensation.
The court held that the plaintiffs had not provided such connection as to the amount of the damages awarded, namely, $15 million. The court explained that counsel for plaintiffs had not presented any evidence that would justify the amount awarded, and instead provided arguments to the jury that had nothing to do with how to calculate the proper amount of compensation.
For example, counsel referred to the value of a Boeing F-18 fighter jet ($71 million) and a Mark Rothko painting ($186 million). Another argument presented to the jury was to give the 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 court noted that these arguments had nothing to do with compensating the plaintiffs for their injuries, and instead spoke more to punitive concerns than compensatory ones. The kind of evidence that is relevant on this point is “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.” Direct evidence is not required, and precise, mathematical certainty is not possible. Nevertheless, some rational basis must underly the amount of damages, the court noted.
At trial, Deol’s wife testified extensively as to the effect of her husband’s death on herself, her three children, and Deol’s parents. The court determined that this testimony no doubt gave the jury ample evidence regarding the existence of compensable mental anguish, but it did not serve as evidence to justify the amount awarded.
The Dallas Court of Appeals erred by simply reviewing whether the amount awarded “shocked the conscience” or arose from bias or prejudice. “Passion, prejudice, or improper motive” remains an independent basis for reversal, as does the “shock the conscience” standard. But an appellate court must also determine whether there is a rational connection between the amount awarded and the injuries suffered. Because no such rational connection existed in this case, the Texas Supreme Court reversed the award of noneconomic damages.
While the Chohan court did not reach a majority opinion, a majority of the justices appeared to agree that the arguments presented by plaintiffs’ counsel at trial were improper and could support reversal of the damages award. This suggests that lower courts will be more willing to scrutinize arguments that have improper or ulterior motives besides helping the jury arrive at a proper figure for compensation. Defendants should be ready to move for a new trial and/or a remittitur in the event plaintiffs fail to provide some rational connection between the injuries and damages requested.
II. Western District of Louisiana: Warner v. Talos ERT LLC (2023)
On the topic of courts reversing excessive damages awards, the Western District of Louisiana recently did just that in the case of Warner v. Talos ERT LLC. The case involved a 2018 workplace accident on an oil and gas production platform operated by Talos ERT, LLC in the Gulf of Mexico. The plaintiffs were the family members of an offshore worker who suffered fatal injuries when the rope he was using to move heavy pipe failed and caused the pipe to fall.
After trial, the jury awarded $20 million in general damages to the decedent’s minor son, and Talos filed multiple post-trial motions, including a motion seeking a remittitur on the issue of general damages. Under Louisiana law, a court may intrude into the province of a jury “only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances.”
The court held that the evidence did not substantiate an award of $20 million. Under the Seventh Amendment, the court had to offer the plaintiff the alternative of a lower award or a new trial. In trying to determine the proper amount of damages, the court applied the Fifth Circuit’s “maximum recovery rule,” under which verdicts are permitted so long as they are 150% of the highest inflation-adjusted recovery in an analogous, published decision.
The court identified a case from 2013 in which a child living with the non-decedent custodial parent won $2,500,000 in wrongful death damages. Applying the maximum recovery rule, the court adjusted this award for inflation and then multiplied it by 150%. Thus, the figure came out to $4,955,350.67. Because Talos was allocated 88% fault, the final award was $4,360,708.59.
The Warner decision reveals that the Western District of Louisiana is not reluctant to enforce Louisiana law prohibiting awards “beyond that which a reasonable trier of fact could assess.” This is a promising trend as plaintiffs’ attorneys seek higher and higher jury awards.
III. Louisiana Supreme Court: Henry Pete v. Boland Marine and Manufacturing Company, LLC, et al. (2023)
Like in Chohan and Warner, the Louisiana Supreme Court recently reduced an alarming general damages award in Henry Pete v. Boland Marine and Manufacturing Company, LLC, et al.
The plaintiff, Henry Pete, worked as a longshoreman in the Port of New Orleans from 1964 to 1968 before eventually becoming a practicing chiropractor. After being diagnosed with mesothelioma in 2019, he filed suit against his former shoreside employers in the Civil District Court in New Orleans. The jury rendered a verdict in favor of the plaintiff against one of the defendants, Ports America Gulfport, Inc., awarding the plaintiff $9.8 million in general damages.
The Louisiana Fourth Circuit Court of Appeal upheld the verdict, rejecting Ports America’s assignment of error as to the excessiveness of the general damage award. In its decision, the Fourth Circuit noted that Ports America failed to make a showing that the $9.8 million general damages award “shocked the conscience” when considering the pain and suffering caused by the plaintiff’s condition. Therefore, the court noted, the evidence did not support a finding that the jury abused its discretion.
The Louisiana Supreme Court granted certiorari to weigh in on the quantum issue. Like the Chohan and Warner courts, the Boland Marine court found the general damages award excessive. But the Boland Marine court’s analysis was distinguishable and is thus noteworthy. Writing for the majority, Justice McCallum noted that Louisiana Civil Code article 2324.1 vests the jury with “much discretion” in determining the amount of general damages, an inquiry which is speculative in nature and contingent on the facts and circumstances of each particular case.
Justice McCallum then questioned the effectiveness of Louisiana’s “clear abuse of discretion” standard of appellate review for general damages, dubbing it “redundant and unnecessary” for courts to scrutinize the fact finder’s seemingly boundless discretion. In other words, appellate judges speculating on top of the jury’s speculation only compounded the issue.
The Boland Marine court then announced its solution: appellate courts must consider awards of general damages in similar, prior cases to add objectivity to the “abuse of discretion” analysis. If an abuse of discretion is found, the court must use the prior awards as guideposts and amend the general damages award to the highest point that is reasonably within the trial court’s discretion. The court cautioned that its revised standard of review did not displace the prior analysis; courts must still consider the facts and circumstances unique to each particular case. The additional consideration of precedent cases serves to add much-needed objectivity and neutrality to the review process.
The Boland Marine court applied its new analysis to the facts before it. It first reviewed the record evidence and testimony about the plaintiff’s condition, then surveyed nine Louisiana state court mesothelioma cases dating back to 2015, in which awards of general damages ranged from $1.5 million to $3.8 million. The court noted that the plaintiff’s significant mental and physical trauma warranted a substantial general damages award, but it could not reconcile the trial court’s $9.8 million award with those from prior cases—noting that “the record evidence of Mr. Pete’s injuries is not so dissimilar to these other cases to warrant an award so greatly exceeding the range of these cases.” Thus, the court found that the trial court abused its discretion and reduced the $9.8 million general damages award to $5.0 million, which it found to be the highest reasonable award within the jury’s discretion.
It is said that two’s a coincidence, three’s a trend. Chohan, Warner, and Boland Marine exemplify a discernable pattern in which recent Louisiana and Texas courts have scrutinized and reduced excessive damages awarded to personal injury plaintiffs. These cases mark a positive development in today’s climate, in which “nuclear verdicts” are becoming increasingly prevalent.
[1] 670 S.W.3d 546 (Tex. 2023).
[2] No. 18-CV-01435, 2023 WL 6340422 (W.D. La. Sept. 28, 2023).
[3] 2023-00170 (La. 4/18/23); 359 So. 3d 498.