Sarah Gregory and New Prime, Inc. v. Jaswinder Chohan

Supreme Court of Texas
══════════
No. 21-0017
══════════

Sarah Gregory and New Prime, Inc.,
Petitioners,

v.

Jaswinder Chohan, et al.,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════

JUSTICE DEVINE, concurring, joined by Justice Boyd.

The value of a life is inherently unquantifiable. Grief, loss,
loneliness, longing, pain, and suffering simply have no market value.
The injury—the anguish—caused by the untimely loss of a loved one
defies calculation, quantification, and measurement, but it is no less
real, no less enduring, and—under Texas law—no less compensable. As
the plurality opinion concedes, the evidence here validates the existence
of such an injury. So, the ultimate question is: who decides the value of
a man’s worth to his family?
We have long entrusted such abstract concepts to the community
through its duly empaneled jury representatives. And we have upheld
the jury’s determination with just as much respect when the outcome
was a zero damages award as when it was a much more significant one.
But even as we must acknowledge that damage awards may occasionally
exceed the bounds of our reasonable expectations, we ought to have faith
in the jury system. As part of that system, judges—at every step of the
way—have an opportunity to grade the jury’s papers and offer a remedy
for excessive awards.1 But an intrinsic quandary exists: What
constitutes “meaningful review” when there is no objectively correct
answer? How can anyone measure the unmeasurable?
Today’s plurality opinion explores the dilemma courts and juries
face when asked to award monetary compensation for injuries that have
no market value. Much of the guidance the plurality offers is helpful.
But the opinion ventures far afield from what is necessary to decide this
case and, more problematically, advocates a new evidentiary standard
that is not only foreign to our jurisprudence but also incapable of being
satisfied.2 Though I concur in the judgment remanding for a new trial,
I do not join the opinion.

1 Bentley v. Bunton, 94 S.W.3d 561, 606-07 (Tex. 2002) (holding that

“[t]he record leaves no doubt that Bentley suffered mental anguish” but that
“is no evidence that Bentley suffered mental anguish damages in the amount
of $7 million,” which is “far beyond any figure the evidence can support”).
2 The plurality opinion also employs language hinting that, rather than

requiring the appealing party to demonstrate the absence of a rational basis
for the jury’s damages award, the prevailing party would (or should) bear the
burden on appeal to justify the jury’s award. If the plurality were indeed
shifting the appellate burden to the prevailing party, that would be an
unprecedented change in the law. See, e.g., ante at 26 (“to survive a
legal-sufficiency challenge to an award of noneconomic damages, a wrongful
death plaintiff should bear the burden of demonstrating both (1) the existence
of compensable mental anguish or loss of companionship and (2) a rational

2
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.3 That being so,
claimants bear the burden of establishing both the existence and
amount of such damages, just as they do for economic damages.4 To
meet that burden, they must produce evidence sufficient to support the
amount awarded.5 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.6 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.7
Rather, the amount the fact-finder awards must, but must only,
reasonably and fairly compensate claimants for their injuries.8 That

connection, grounded in the evidence, between the injuries suffered and the
amount awarded.” (emphases added)); id. at 27-29, 31 (asserting that even
with “thorough,” “sad[],” and “lengthy” evidence of the nature, duration, and
severity of mental anguish, no evidence will support a jury’s noneconomic
damages award if the prevailing party fails to proffer a sufficient appellate
argument explaining the award’s size as opposed to holding the losing party to
the burden of explaining how such testimony is so legally inadequate as to
amount to no evidence of the amount awarded); id. at 28-29 (“Crucially,
plaintiffs’ counsel at no point in these proceedings has attempted to proffer a
rational argument justifying . . . the amount awarded.”).
3 Id. at 3.

4 Id. at 3, 16.

5 Id. at 3-4, 16, 26.

6 Id. at 17-18.

7 Id. at 3, 10, 24.

8 Id. at 12-13.

3
amount cannot be based on mere passion, prejudice, or improper
motive.9 And to uphold these requirements, both trial courts and
appellate courts must engage in a meaningful review, just as they do for
economic damages.10
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.”11 Applying
that standard to Jaswinder Chohan’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.12
But what the plurality conspicuously refuses to say is what evidence
would ever suffice.13 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

9 Id. at 30 n.16.

10 Id. at 13, 24.

11 Id. at 3-4, 23, 26 (asserting that this novel mandate flows
“ineluctably” from our precedent).
12 Id. at 27-30.

13 Id. at 22-26.

4
such “noneconomic harm transcends quantification entirely.”14 Pain
and anguish are not “difficult to monetize” due to the “‘impossibility of
any exact evaluation’”;15 they are easy to monetize but impossible to
objectively quantify.16 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.17
The plurality agrees that juries should consider the “nature,
duration, and severity” of the claimant’s pain and anguish,18 as do I. But

14 Id. at 14.

15 Id. at 3, 12 (emphases added) (quoting Bentley v. Bunton, 94 S.W.3d

561, 606 (Tex. 2003)).
16 See Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434

S.W.3d 142, 153 (Tex. 2014) (“[C]ompensatory damages offer a pecuniary
remedy for [a] non-pecuniary harm that a plaintiff has suffered . . . .
[N]on-pecuniary damages do not require certainty of actual monetized loss.
Instead, they are measured by an amount that ‘a reasonable person could
possibly estimate as fair compensation.’” (footnote omitted) (quoting
RESTATEMENT (SECOND) OF TORTS § 905 cmt. i.)); see also Compensate,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, at 463 (2002) (“to be
equivalent to (as in value or effect)” “[to] make up for: counterbalance” “to make
amends”); Compensate, THE AMERICAN HERITAGE DICTIONARY OF THE
ENGLISH LANGUAGE, at 376 (5th ed. 2016) (“[t]o make . . . reparation to”);
Compensate, BLACK’S LAW DICTIONARY, at 353 (11th ed. 2019) (“To make an
amendatory payment to; recompense (for an injury)[.]”).
17 When there is some evidence of some amount of damages, we cannot

render and must continue remanding. See ERI Consulting Eng’rs, Inc. v.
Swinnea, 318 S.W.3d 867, 882 (Tex. 2010); see also ante at 32. This is not a
workable system. Cf. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 274 (Tex.
2012) (“While no system is infallible, endless litigation, in which nothing was
ever finally determined, would be worse than the occasional miscarriage of
justice.”).
18 See ante at 10, 16 (quoting Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221,

231 (Tex. 2011), and Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.
1995)).

5
even those factors cannot establish that a particular claimant’s pain and
anguish is “worth” any particular amount of compensation. A claimant
who—based on nature, duration, and severity—sustains one hundred
hypothetical “units” of pain or anguish should recover ten times as much
as one who sustains only ten units, but that consideration points to no
particular amount unless we know what one unit of pain and anguish is
worth. The reality is that, although pain and anguish are compensable
as a matter of law, no one can ever know what one unit is “worth” in the
monetary sense, because pain and anguish is wholly nonpecuniary and
has no market value.
The plurality implies that a claimant’s financial costs of treating
or dealing with pain and anguish could conceivably provide some basis
for deciding an appropriate amount of compensation,19 but those costs
represent economic losses. And although the amount of economic losses
could theoretically provide some “substantiated” anchoring,20 it
certainly will not do so in all cases. Beyond that, the plurality simply
refuses to “speculate” about the permissible forms of evidence or
argument that could support a particular amount in a given case.21 At
the same time, they would require claimants and their counsel to find
that evidentiary needle in the haystack. But there is no needle there. By
definition, nonpecuniary losses inherently have no pecuniary measure.
For that reason, fairly and justly compensating tort victims for
noneconomic injuries boils down to a policy choice. This Court has long

19 Id. at 23.

20 See id. at 22-23.

21 Id. at 24.

6
recognized that Texas law should allow monetary compensation for
those who suffer emotional trauma due to the wrongful conduct of
another. And like the highest courts of our sister states,22 we have long

22 See, e.g., Roof Serv. of Bridgeport, Inc. v. Trent, 854 S.E.2d 302, 323

(W. Va. 2020) (holding that testimony regarding the victim’s previous health
and lifestyle, the significant injuries suffered, and the nature of lifestyle
changes and impact on the victim’s wife “compel our conclusion that the verdict
awards are not monstrous, enormous, unreasonable, outrageous, and do not
demonstrate jury passion, partiality, prejudice, or corruption”); Castro v.
Melchor, 414 P.3d 53, 69 (Haw. 2018) (“A jury may draw upon its own life
experiences in attempting to put a monetary figure on the pleasure of living.
It is a uniquely human endeavor . . . requiring the trier of fact to draw upon
the virtually unlimited factors unique to us as human beings. Testimony of an
economist would not aid the jury in making such measurements because an
economist is no more expert at valuing the pleasure of life than the average
juror.” (quoting Montalvo v. Lapez, 884 P.2d 345, 366 (Haw. 1994))); Campbell
v. Kennedy, 275 So. 3d 507, 516 (Ala. 2018) (“The law is also clear that
compensatory damages for pain and suffering cannot be measured by any
yardstick, and the amount awarded must be ‘left to the sound discretion of the
jury, subject only to correction by the court for clear abuse or passionate
exercise of that discretion.’” (quoting Ala. Power Co. v. Mosley, 318 So. 2d 260,
266 (Ala. 1975))); Cohan v. Med. Imaging Consultants, P.C., 900 N.W.2d 732,
744 (Neb. 2017) (“Although no specific dollar amounts were attached to her
emotional injuries, the amount of damages for pain, suffering, and emotional
distress inherently eludes exact valuation.”); Meals ex rel. Meals v. Ford Motor
Co., 417 S.W.3d 414, 425 (Tenn. 2013) (“A jury has wide latitude in assessing
non-economic damages. We trust jurors to use their personal experiences and
sensibilities to value the intangible harms such as pain, suffering, and the
inability to engage in normal activities.”); Savage v. Three Rivers Med. Ctr.,
390 S.W.3d 104, 120-21 (Ky. 2012) (“‘If the verdict bears any relationship to
the evidence of loss suffered, it is the duty of the trial court and this Court not
to disturb the jury’s assessment of damages.’ . . . ‘On such an issue as this,
where the extent of pain being suffered is not capable of objective valuation,
there really is no satisfactory standard by which to measure an award of
damages.’” (quoting Childers Oil Co. v. Adkins, 256 S.W.3d 19, 28 (Ky. 2008),
and McClain v. Star Cab Co., 346 S.W.2d 539, 540 (Ky. 1961))); Johnson v.
Scaccetti, 927 A.2d 1269, 1283 (N.J. 2007) (“Our model jury instructions on
pain and suffering recognize the inherently subjective nature of the
damage-calculating process. Those instructions inform jurors that: ‘The law

7
does not provide you with any table, schedule or formula by which a person’s
pain and suffering disability, loss of enjoyment of life may be measured in
terms of money. The amount is left to your sound discretion.’”), abrogated on
other grounds by Cuevas v. Wentworth Grp., 144 A.3d 890, 904-05 (N.J. 2016);
Est. of Pearson ex rel. Latta v. Interstate Power & Light Co., 700 N.W.2d 333,
347 (Iowa 2005) (noting that “[d]amages for physical and mental pain and
suffering cannot be measured by any exact or mathematical standard and must
be left to the sound judgment of the jury” and affirming award as not
“excessively flagrant” based only on evidence that “these causes of death would
be terribly painful”); Beaver v. Mont. Dep’t of Nat. Res. & Conservation, 78 P.3d
857, 875 (Mont. 2003) (noting the lack of “a definite standard by which to
calculate compensation for mental pain and suffering”); Callahan v. Cardinal
Glennon Hosp., 863 S.W.2d 852, 872 (Mo. 1993) (stating that a jury has
“virtually unfettered” discretion to award damages as long as they are within
the “large range between the damage extremes of inadequacy and
excessiveness” (quoting Kenton v. Hyatt Hotels Corp., 693 S.W.2d 83, 98 (Mo.
1985))); Vajda v. Tusla, 572 A.2d 998, 1003 (Conn. 1990) (“Not only are
damages for pain and suffering peculiarly for the trier of fact, but ‘[p]roper
compensation [for pain and suffering] cannot be computed by a mathematical
formula . . . there is no iron-clad rule for the assessment of damages.’” (quoting
Manning v. Michael, 452 A.2d 1157, 1162 (Conn. 1982))); McElroy v. Benefield,
771 S.W.2d 274, 277 (Ark. 1989) (“There is no definite and satisfactory rule to
measure compensation for pain and suffering and the amount of damages must
depend on the circumstances of each particular case. Compensation for pain
and suffering must be left to the sound discretion of a trial jury and the
conclusion reached by it should not be disturbed unless the award is clearly
excessive.” (internal citation omitted)); Sheraden v. Black, 752 P.2d 791, 796
(N.M. 1988) (“There is no standard fixed by law for measuring the value of pain
and suffering; rather, the amount to be awarded is left to the fact finder’s
judgment.”); Holmes Cnty. Bank & Tr. Co. v. Staple Cotton Coop. Ass’n, 495 So.
2d 447, 451 (Miss. 1986) (“[T]here are also some damages, such as pain and
suffering, that are not susceptible of proof as to monetary value[.]”);
Stackiewicz v. Nissan Motor Corp., 686 P.2d 925, 932 (Nev. 1984) (“We have
long held that ‘[i]n actions for damages in which the law provides no legal rule
of measurement it is the special province of the jury to determine the amount
that ought to be allowed,’ so that a court ‘is not justified in reversing the case
or granting a new trial on the ground that the verdict is excessive, unless it is
so flagrantly improper as to indicate passion, prejudice or corruption in the
jury.’ . . . ‘[T]he elements of pain and suffering are wholly subjective. It can
hardly be denied that, because of their very nature, a determination of their
monetary compensation falls peculiarly within the province of the jury. . . . We

8
entrusted that question to juries, counting on our community
representatives to apply common sense, community values, and their
own life experiences in finding the appropriate amount to compensate
their fellow human beings who are suffering.23 Of course, the jury’s
decision must be based on evidence of the nature, duration, and severity
of the claimant’s suffering—and it cannot be based on noncompensatory
motivations. But the reality is it can never actually be based on evidence
establishing that the injury was “worth” a particular monetary amount.

may not invade the province of the fact-finder by arbitrarily substituting a
monetary judgment in a specific sum felt to be more suitable.’” (quoting
Forrester v. S. Pac. Co., 134 P. 753, 768 (Nev. 1913), and Brownfield v.
Woolworth Co., 248 P.2d 1078, 1079-81 (Nev. 1952))).
23 See, e.g., Anderson v. Durant, 550 S.W.3d 605, 618 (Tex. 2018)
(holding that because noneconomic damages “are not amenable to calculation
with ‘precise mathematical precision,’” the jury “has latitude in determining
the award” so long as the jury awards “‘an amount that a reasonable person
could possibly estimate as fair compensation’” (quoting Brady v. Klentzman,
515 S.W.3d 878, 887 (Tex. 2017), and Waste Mgmt. of Tex., Inc. v. Tex. Disposal
Sys. Landfill, Inc., 434 S.W.3d 142, 153 (Tex. 2014))); Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003) (“[W]hether to award damages
and how much is uniquely within the factfinder’s discretion.”); Lucas v. United
States, 757 S.W.2d 687, 720 n.21 (Tex. 1988) (Phillips, C.J., dissenting) (“As to
non-economic damages, on the other hand, there is no formula or even
definition which has proved useful in their assessment. The appropriate
amount is instead left to the discretion, experience and common sense of the
finder of fact.”); Gulf, C. & S.F. Ry. Co. v. Johnson, 44 S.W. 1067, 1067-68 (Tex.
1898) (stating that in cases where the jury is “authorized to take into
consideration such mental and physical pain and suffering, and the nature,
extent, and probable duration of the injury” when assessing damages, the law
“in a large measure commits to the common sense and sound discretion of the
jury the amount to be assessed”).

9
In abiding by the Texas Constitution24 and the law antecedent to
it,25 our compensatory-damages regime has long allowed community
standards to inform how much money, if any, a wrongdoer must pay to
compensate Texans for their noneconomic injuries.26 Under that
standard, judges play an important role in determining whether a
particular award was “manifestly unjust,” “shock[s] the conscience,” or
“clearly demonstrate[s] bias.”27 Keeping in mind this careful balance

24 TEX. CONST. art. V, §§ 6(a) (“[The] Court of Appeals shall have
appellate jurisdiction . . . [and] the decision of said courts shall be conclusive
on all questions of fact brought before them on appeal or error.”), 10 (“In the
trial of all causes in the district courts, the plaintiff or defendant shall, upon
application made in open court, have the right of trial by jury[.]”); In re C.H.,
89 S.W.3d 17, 26 (Tex. 2002) (“[A]ppellate courts . . . must maintain the
respective constitutional roles of juries and appellate courts[.]”); see also U.S.
CONST. amend. VII (“In Suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise re-examined in any Court of the United
States, than according to the rules of the common law.”).
25 See, e.g., Fulton v. Craddock, Dallam 458, 458 (Tex. 1842) (“Upon an

inspection of the record and looking into the testimony, we find the proof,
although contradictory, to be somewhat stronger in support of Craddock’s right
to recover; under such circumstances the court will presume (especially after
several verdicts) that the jury, who are the proper triers of the facts, have found
correctly; we cannot therefore disturb the verdict. This is required by the
genius and spirit of our laws; if it were otherwise, courts might render juries
useless, and usurp the power of ascertaining facts which according to the
principles of the constitution belong to juries in a court of law.”).
26 See In re Rudolph, ___ S.W.3d ___, ___ (Tex. 2023). [21-0135, slip op.

at 24-26].
27 Golden Eagle Archery, 116 S.W.3d at 773; see Sanchez v. Schindler,

651 S.W.2d 249, 253 (Tex. 1983) (observing that “fear of excessive verdicts is
not a sufficient justification” for denying noneconomic damages because “[t]he
judicial system has adequate safeguards to prevent recovery of damages based
on sympathy or prejudice rather than fair and just compensation for the
plaintiff’s injuries”); see also TEX. CONST. art. V, § 6(a) (courts of appeals review

10
between judge and jury, the plurality’s opinion is fundamentally at odds
with the Court’s admonishment today that “disregarding a jury’s verdict
is an unusually serious act that imperils a constitutional value of
immense importance—the authority of a jury.”28 To that end, I would
not, as the plurality does, offer a solution that effectively neutralizes the
jury’s role by requiring them to rely on evidence a claimant simply
cannot present.29

for factual sufficiency); TEX. R. CIV. P. 315 (remittitur), 320 (“New trials may
be granted when the damages are manifestly too small or too large.”); TEX. R.
APP. P. 46.1–.5 (remittitur); TEX. R. EVID. 401 (relevance), 403 (excluding
relevant evidence for prejudice, confusion, or other reasons); In re Columbia
Med. Ctr., 290 S.W.3d 204, 210 (Tex. 2009) (observing that trial courts can
order remittitur and grant new trials and intermediate appellate courts can
review the record for factual sufficiency); COMM. ON PATTERN JURY CHARGES,
STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES: GENERAL NEGLIGENCE,
INTENTIONAL PERSONAL TORTS & WORKERS’ COMPENSATION PJC 1.3 (2020)
(including instructions to jurors to “not let bias, prejudice, or sympathy play
any part in [their] decision” and to “[b]ase [their] answers only on the evidence
admitted in court and on the law that is in these instructions and questions”).
28 Rudolph, ___ S.W.3d at ____. [21-0135, slip op. at 13-14].

29 “Preservation of the justice system enshrined in our constitutions,

with public participation through the jury system, is worth every effort the
legal system can muster.” Justice Nathan L. Hecht, Jury Trials Trending
Down in Texas Civil Cases, 69 TEX. B.J. 854, 856 (2006). While the system will
not always get it right, in my experience it’s better to adopt standards that will
enable courts to strive for justice for all instead of imposing standards that will
ensure injustice to many. See Univ. of Ariz. Health Scis. Ctr. v. Super. Ct., 667
P.2d 1294, 1298 (Ariz. 1983) (“[T]he hue and cry in many tort cases . . . is no
more than the fear that some cases will be decided badly. Undoubtedly, the
system will not decide each case correctly in this field, just as it does not in any
field, but here, as in other areas of tort law, we think it better to adopt a rule
which will enable courts to strive for justice in all cases rather than rely upon
one which will ensure injustice in many.”).

11
Of course, nothing would prevent the Legislature from
constructing a policy-based approach to noneconomic losses.30 But
because any approach must equate monetary amounts with injuries that
have no market value, and each case is unique, that approach would
suffer from the same challenges a jury faces when endeavoring, in good
faith, to provide a truly fair and reasonable compensatory amount.31
One thing is clear, however: 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.32 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

30 See TEX. CONST. art. III, § 66(b)–(c) (authorizing the Legislature by

statute to “determine the liability for all damages and losses, however
characterized, other than economic damages”).
31 See, e.g., Michael J. Saks, Lisa A. Hollinger, Roselle L. Wissler, David

Lee Evans & Allen J. Hart, Reducing Variability in Civil Jury Awards, 21 LAW
& HUM. BEHAV. 243, 245-46 (1997) (discussing the use of damage caps and
noting that they are “arbitrary” and “bear no relationship to the level of
compensable harm suffered by a plaintiff”); David. M. Studdert, Allen
Kachalia, Joshua A. Salomon, and Michelle M. Mello, Rationalizing
Noneconomic Damages: A Health-Utilities Approach, 74 LAW & CONTEMP.
PROBS. 57, 69 (Summer 2011) (critiquing the damage-schedule approach as
“inherit[ing] whatever heuristics and inaccuracies attended those original
valuations”).
32 See Strickland v. Medlen, 397 S.W.3d 184, 196 (Tex. 2013) (observing

that the Legislature is best equipped to weigh and initiate broad changes to
social and civil-justice policy); Patel v. Tex. Dep’t of Licensing & Reg., 469
S.W.3d 69, 95 (Tex. 2015) (Willett, J., concurring) (“Judicial duty requires
courts to act judicially by adjudicating, not politically by legislating.”).

12
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.33 While any
legislatively imposed constraints on compensatory noneconomic
damages would necessarily be arbitrary,34 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.35 That is a cure worse than the disease.
The plurality opinion would effect a sea change in the law without
providing any reasonably defined parameters.36 More questions are

33 Compare ante at 3-4 (“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.”), with Act of
June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, .11(b)(2), 2003 Tex. Gen. Laws
847, 873-75, 884 (enacting medical-malpractice caps on noneconomic damages
with current version at TEX. CIV. PRAC. & REM. CODE §§ 74.301–.303 and
stating the legislative purpose for enacting the statute was to “ensure that
awards are rationally related to actual damages”).
34 See Lucas v. United States, 757 S.W.2d 687, 689-90 (Tex. 1988).

35 See supra at 5 & note 17.

36 Contrary to the plurality’s assertion otherwise, the requirement of a

“rational connection between the amount awarded and the evidence of injury,”
ante at 4 (emphasis added), is a clear transition from the requirement that
there must be “some evidence to justify the amount [of mental anguish
damages] awarded,” Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607,
614 (Tex. 1996) (emphasis added). The plurality cannot point to authority from
this Court or any other that has ever required claimants to establish a “rational
connection” between noneconomic damages and the amount awarded.
“Rational connection” is a concept tied to legislative actions, such as in policy
statements for legislative enactments, see supra note 33, and cases evaluating
the constitutionality of legislative caps on noneconomic damages, see, e.g.,
Lucas, 757 S.W.2d at 694-95; Verba v. Ghaphery, 552 S.E.2d 406, 413-15 (W.
Va. 2001) (Starcher, J., dissenting); State ex rel. Ohio Acad. of Trial Laws. v.

13
raised than even the plurality can hazard to answer. While I don’t think
we should ever impose a change in the law that we cannot reasonably
explain, I certainly would not do so in a case destined for a new trial for
other reasons.
With much respect for my colleagues’ diligent work on a difficult
and confounding question, I cannot join an opinion that does so much
and so little at the same time. However, I agree that plaintiffs’ counsel’s
improper jury argument could have influenced the damages award, and
I join the judgment remanding for a new trial because the jury charge
erroneously excluded a responsible third party.

John P. Devine
Justice

OPINION FILED: June 16, 2023

Sheward, 715 N.E.2d 1062, 1092 (Ohio 1999); Butler v. Flint Goodrich Hosp.
of Dillard Univ., 607 So. 2d 517, 520 (La. 1992).

14