This is part two of our two-part series discussing proving up non-economic damages in Texas after Gregory. In part one, we covered what counsel should not do when trying to prove up non-economic damages. Now, we will cover what counsel should do when proving up non-economic damages.
Non-economic damages in Texas historically
First, it is important to reflect on precedent because the history of mental anguish damages is “convoluted and complex” and has long been met with skepticism under common law. Like others around the country, Texas courts have struggled to distinguish between events that do and do not justify non-economic damages.
As noneconomic damages become more readily available, the Texas Supreme Court has voiced concerns over the “potential for over-compensation” and “double recovery.” These concerns are evident in Texas precedent, which has framed the rules for justifying the award of non-economic damages like mental anguish.
For example, precedent has established that:
- Compensable mental anguish must be supported by evidence showing the party felt more than mere feelings of sadness or frustration;
- Determining mental anguish damages is not an arbitrary process, and counsel and jurors cannot simply pick a number to fill in the blank;
- The amount requested and ultimately awarded must be fair and reasonable in light of the evidence; and
- Mental anguish awards cannot be unreasonably excessive as to, in effect, serve as a bucket for punitive or exemplary damages.
The Gregory Standard
While the Court repeatedly recognizes the difficulty in assigning a dollar value to mental anguish, it also stresses that it is not an arbitrary process and requires sound judgment.
Building on prior precedent, the Court’s opinion requires plaintiffs to prove (1) The existence of non-economic damages and (2) rational connection between the evidence of the injury and the amount of recovery sought. On top of this standard is the requirement that the amount of non-economic damages awarded must be just and reasonable compensation for the plaintiff’s mental anguish.
Demonstrate the Existence of Non-Economic Damages
The existence prong of the Gregory standard speaks to the requirement that mental anguish damages are to compensate for more than mere emotions. To understand the existence prong of the Gregory standard, it’s important to recall the type of mental anguish necessary to be compensable. Examples of evidence suggesting compensable mental anguish include:
- A high degree of mental pain and distress “resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair, and/or public humiliation;” or
- A “substantial disruption in daily routine.”
Thus, common emotions like “mere worry, anxiety, vexation, embarrassment, or anger” will not rise to the level of compensable non-economic damages.
Make Rational Connections
The rational connection prong aims to compel plaintiffs’ attorneys to substantiate their requested non-economic damage amounts with evidence. In the wake of Gregory, it is unclear exactly what level of justification and/or evidence is needed to meet the rational basis requirement. However, the Court provides some illustrative examples, including evidence of:
- The likely financial consequences resulting from the plaintiff’s severe emotional distress;
- That a certain sum of money would enable the plaintiff to better deal with their grief and restore their mental health; and
- Evidence that a requested amount could provide access to the kinds of things that may help the plaintiff who is suffering mentally.
Show that the Amount is Just, Reasonable, and Not Punitive.
The Gregory standard adds to the pre-existing requirement that damage awards be just and reasonable. While precise quantification or evidence thereof is not required, attorneys should demonstrate that the amount of non-economic damages sought is just and reasonable compensation for the plaintiff’s injury, nothing more, nothing less. Moreover, attorneys should avoid arguments indicative of punitive intent when advocating for the non-economic damages sought to avoid compromising any non-economic damages ultimately awarded.
In sum, the Court requires that courts and jurors be told “why a given amount of damages . . . would be reasonable and just compensation.” This means providing articulable reasons and evidence supporting the amount of non-economic damages sought and that it is just and reasonable.
Attorneys on both sides of the bar must be mindful of this opinion and its requirements. Plaintiffs’ attorneys should be prepared to draw rational connections between their client’s non-economic injuries and the evidence in the record. At the same time, defense attorneys must remain alert and diligent in holding opposing counsel to this standard.