Concurring and Dissenting Opinion Filed November 30, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00167-CV
SARAH GREGORY AND NEW PRIME, INC., Appellants
V.
JASWINDER CHOHAN, INDIVIDUALLY AND AS NEXT FRIEND AND
NATURAL MOTHER OF G.K.D., H.S.D., AND A.D., MINORS, AND AS
REPRESENTATIVE OF THE ESTATE OF BHUPINDER SINGH DEOL,
ET AL, Appellees
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-15-02925-E
CONCURRING AND DISSENTING OPINION
Before the Court sitting En Banc.
Concurring and Dissenting Opinion by Justice Whitehill
I join the majority opinion save its Part VIII, from which I dissent.
Justice Schenck’s dissent highlights important jurisprudential issues
regarding the review standards for mental anguish damages in wrongful death cases.
His dissent is excellent as far as it goes and standing alone should compel supreme
court review of those issues in this case. I write separately because Justice Schenck’s
dissent does not go far enough.
I. Moore v. Lillebo
Justice Schenck’s dissent stops short because it assumes that Moore v. Lillebo,
722 S.W.2d 683 (Tex. 1986) mandates submitting a mental anguish damages
question for every qualifying family member in every wrongful death case
regardless of the evidence—or lack thereof—concerning the nature and extent of
that family member’s actual resulting mental anguish. Stated differently, he accepts
the idea that Lillebo holds that a proper family tie is itself legally some evidence of
both the fact of mental anguish injury and the resulting damage amount such that
mental anguish damages for the suing family member are presumed and the only
question is how much.
Indeed, loose language in Lillebo implies that result:
Proof of [the parents’] family relationship constitutes some evidence
they suffered mental anguish from the wrongful death of their son. The
evidence mandates submission of a damage issue on mental anguish.
Id. at 686. But Lillebo does not hold that a required family relationship alone is
legally sufficient evidence of the amount of resulting mental anguish damages.
Lillebo is not stare decisis precedent for that idea because that issue was not before
the supreme court in that case. Thus, any implication to that effect is obiter dicta.
More specifically, Lillebo was a no evidence review case concerning the fact
of mental anguish injury—not the quantum of related damages. The trial court there
declined to submit a mental anguish damage question because there was no evidence
that the claimants suffered any physical manifestations of their mental anguish. The
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supreme court reversed, holding that physical manifestation proof was no longer
required to recover mental anguish damages in wrongful death cases:
We hold, in a wrongful death cause of action, it is no longer necessary
to prove that mental anguish is physically manifested. A physical
manifestation of mental anguish is evidence of the extent or nature of
the mental anguish suffered, but it is no longer the only proof of mental
anguish.
Id. (emphasis added). Thus, the factual sufficiency of the evidence supporting an
amount of resulting mental anguish damages was not at issue in that case.
Furthermore, other parts of Lillebo illuminate that the presumed factum of
mental anguish injury is rebuttable and that evidence of more than just a qualifying
family relationship is required to prove a recoverable damage quantum amount. For
example, the preceding highlighted Lillebo quote recognizes that there are other
forms of mental anguish evidence beyond physical manifestation of that injury. To
that end, Lillebo recognizes that not all family relationships are loving and caring—
indeed some such relationships may be hateful or openly hostile. See id.
Additionally, Lillebo quotes extensively from the Eighth Circuit’s exposition
of Arkansas law to the effect that mental anguish recoveries are to be based on the
emotional impact suggested by the circumstances surrounding the claimant’s loss.
Id. (quoting Connell v. Steel Haulers, Inc., 455 F.2d 688, 691 (8th Cir. 1972)).
Thus, Lillebo acknowledges that losing a loved one may well inflict on
different family members varying degrees of mental anguish in a range from great
pain to none, depending on their interpersonal histories and the circumstances of the
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loss. That being so, it follows that the presumption of mental anguish injury from
the wrongful death of an immediate family member is rebuttable and that some
legally sufficient evidence beyond a mere family relationship is necessary to support
an awarded mental anguish damage amount. See Nat. Gas Pipeline Co. of Am. v.
Justiss, 397 S.W.3d 150, 161 (Tex. 2012) (conclusory evidence is legally no
evidence).
Finally, Lillebo also holds that mental anguish, on one hand, and loss of
society and companionship, on the other, are separate damage categories that
compensate separate types of injuries. 722 S.W.2d at 687–88. Accordingly, loss of
society and companionship damages evidence must be different from mental anguish
damages evidence so that evidence of the former is no evidence of the latter.
But Justice Schenck’s opinion is correct in that, like punitive damages, mental
anguish damages awards must be subject to articulable, objective review standards
lest they become impermissible arbitrary and due process deficient punishments.
II. Application
In this specific case, claimants’ sole jury argument for a mental anguish
damages amount based on six cents per mile driven has no mooring to any
individualized mental anguish suffering or related quantum facts in evidence for any
particular plaintiff. As such, it is a naked plea for an emotional, punitive response
with no evidentiary support.
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Additionally, the jury’s total damages findings show that claimants’ jury
argument harmed appellants. Claimants argued that the jury should award total
damages of six cents per mile driven in the accident year, which came out to $39
million. That calculation was unmoored to facts concerning the claimants’ actual
injuries and arbitrary on its face. Yet, the jury awarded damages totaling
$38,801,775, including almost $36 million in noneconomic damages.
Moreover, the jury awarded identical sums to several claimants—including
claimants from different families. For example, the jury awarded $160,000 for past
mental anguish to each of the Vazquezes’ three children, Hector Perales’s son Elijah,
two of Deol’s children, and Deol’s parents. It also awarded the three surviving
spouses the same $525,000 for past mental anguish damages. These findings suggest
that the jury did not make the required individualized determinations rooted in the
evidence.
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Furthermore, within the Deol family, the jury awarded different family
members the same amounts for several noneconomic damages categories. This
further indicates that the jury’s fact findings are not rooted in the evidence specific
to each claimant.1 First, there is legally no evidence supporting G.D.’s mental
anguish damages awards of $5,000 for past mental anguish and $92,500 for future
mental anguish. G.D. was seven months old when Deol died and about four and a
half years old at trial. Chohan’s sister took care of her when they learned of Deol’s
death. There is no evidence that four year old G.D. suffered any past mental anguish
at all through trial. Likewise, although G.D. may suffer future loss of
companionship injuries and damages for not having her father, on this record it is
pure speculation as to how much future mental anguish she will experience from his
death.
1
Wife Each Son G.D. Mother Father
Loss of past $350,000 $160,000 $160,000 $160,000 $160,000
companionship
Loss of future $2,625,000 $1,200,000 $1,200,000 $160,000 $160,000
companionship
Past mental $525,000 $160,000 $5,000 $160,000 $160,000
anguish
Future mental $3,937,500 $925,000 $92,500 $160,000 $160,000
anguish
Total $7,437,500 $2,445,000 $1,457,500 $640,000 $640,000
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Second, the evidence concerning the mental anguish impact of Deol’s death
on his father is similarly empty, consisting of evidence that the father is sad. That
conclusory evidence is legally no evidence. And even if it were legally some
evidence, it would not pass factual sufficiency muster under existing standards.
III. Conclusion
I write these things not to denigrate the loss most people feel from the
wrongful death of an immediate family member. Surely that pain can be real and
should be compensated when there is evidence measured against an articulable
objective standard supporting it. Accordingly, I urge the supreme court to consider
this case and provide guidance in this murky area of the law.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
Richter, J., joins this opinion
180167DF.P05
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