Proof of Non-Economic Damages – or Not?

By DaviD Schenck, MeMber at DykeMa

The Texas Supreme Court is currently considering two appeals coming out of the Dallas Court of Appeals, where I previously served as a judge. While the particulars of these cases are obviously important to the parties involved, they collectively carry much broader potential significance to all litigants in tort cases in Texas. What really matters here are the foundational but lingering questions of whether the court system can be used to put a number on emotional harm, pain and suffering, or other nonmonetary harms and how that system can process such claims in keeping with the due process right to a judgment “based upon an ‘application of law, rather than a decisionmaker’s caprice.”

The amount issue invariably runs to the extremes with respect to two questions. Firstly, “how,” urges the advocate for recovery, “can you put a number on the harm” other than by resort to juror discretion? At what point, urges the party being compelled to pay that amount, does “discretion” become synonymous with “caprice.” Secondly, where, in this debate is the proper role for judges? Once again, the argument will invariably run to extremes—between invocations of the sacred right to a jury trial and vacuous declarations of “shocked” or “unshocked” consciousness and equally vacuous declarations of the need for “meaningful” judicial scrutiny. Without some meaningful answers to these questions about how monetary awards are arrived at and reviewed, the question of whether such damages can be pursued in keeping with due process principles may lurk behind the next corner.

The two cases before the court are well-positioned to frame these questions. One is a common-law tort claim for recovery of pain and suffering belonging directly to the injured party (though made recoverable under the survivorship statute)— and thus any rules governing the damages are purely within the purview of the judicial branch. The other is a statutory wrongful death claim brought by family members seeking recovery of their own emotional distress. The juxtaposition of these two cases parallels the debate that played out in the Texas Supreme Court four decades ago in Sanchez v. Schindler about the proper construction of the wrongful death statute and true role of the judiciary.

In Schindler, the court confronted the wrong death statute, which created a cause of action for "actual damages on account of the injuries causing the death.” The statute (and like statutes on which it was based) had been held to embrace common-law rules regarding the justiciability of pure emotional distress claims and treated only quantifiable “pecuniary” as “actual damages;” emotional distress or other non-monetary losses were excluded, reflecting historic judicial management concerns. The Schindler majority found that rule out of step with “modern” thinking and held that non-monetary harms to be “actual damages.” While Schindler involved a parent’s claim for monetary damages stemming from the loss of a child, the rule was quickly expanded to any death within the reach of the act. Justice Pope and others dissented, challenging the supposed “modern” view as tracing back to a single concurrence within the court itself from only three years earlier. But, his more serious challenge went to the lack of any answer to the question that had blunted attempts to pursue such damages through the statute or at common law for centuries: what is the standard for determining the existence of the injury in the first place and how, in keeping with the rule of law, is a jury to quantify it?

In the years that followed, the Supreme Court has changed in its composition and its approach to these issues has evolved, if only to a point. The Court has repeatedly stressed the need to establish both the fact of the harm and to quantify it. For emotional distress claims, the answer to the historical refusal to recognize such damages as compensable was to limit recovery to types of cases where the risk of fraud in the assertion is reduced. Cases of simple negligence required proof of other compensable injuries in close physical proximity to an episode of negligence causing serious injuries to a loved one. Thus, the common law still does not recognize the emotional distress claim Schindler imported as a direct damage claim in the wrongful death statute. And, for all claims within the potential reach of emotional distress damages, recovery is limited to those involving a “high degree of mental distress,” more than mere “worry, vexation, and the like” that causes a substantial disruption in the daily routine. Direct evidence of “the nature, extent and severity” of the injury is typically considered sufficient, if not necessary, to overcome that entitlement hurdle.

But, putting aside the piecemeal approach to the vast array of emotional distress claims, these damages, like other non-economic damages, then run into the further and perhaps more serious challenge of quantification. The Supreme Court has tasked the trial and lower appellate courts with conducting “meaningful review” of the amounts juries award in these settings but has not provided a meaningful objective target.

To be direct, the existing structure is just as devoid of objective, legal standards and just as inadequate to avoid arbitrary deprivations as the Alabama punitive damage system in the 1990s. Leaving elected judges in the various venues across the state with the task of simply declaring an award to be adequate or excessive as a matter of discretion unanchored to any discernable test the parties are able to advance, opens the claims to venue-determinative results and adds to the existing pressures on the judiciary. Pain and suffering, emotional distress and the like ought not to be subject to different standards and outcomes in different jurisdictions, particularly where the judge’s own electoral and fund-raising fate may be seen to be affected by his or her subjective sense of conscience.

Meanwhile, simply adding verbiage and sophistry to the existing standard will not aid the situation. Those promoting the discretion of the jury and the majesty of the constitutional right to a jury trial forget that the same constitution assures due process at trial and on appeal – as well as the maxim “pigs get fat, hogs get slaughtered.” Leaving mental anguish uncompensated for lack of evidence of precise quantification in a given case, despite its obvious existence, is little better.

Reducing a non-economic injury into a money judgment will always present inherent problems. But, some form of comparison to like cases and/or a generally accepted presumption of economic loss would lend some coherence to the problem and cabin the risks of arbitrary deprivation and take considerable pressure off of the system. For all noneconomic damages courts have routinely deployed judicial notice to compare awards in like case. Anchoring the process in at least this way would lend a measure of articulable rationality to the analysis and, more importantly, the result.