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Yield rational results: Texas’s attempt to rein in nuclear verdicts

3/4/24

truck; icy roads; winter weather; trucking

By: Gabriel Canto and Tim Soefje

Last year, the Texas Supreme Court in Gregory v. Chohan1 dropped a hammer on “unsubstantiated anchoring,” the plaintiff tactic of putting big numbers, often seemingly pulled out of a hat, in the mind of the jury to manufacture large verdicts.2 This was a rare win in an increasingly defense-hostile legal environment, but defense counsel must get creative to utilize its benefits. 

Gregory is an appeal of a trucking wrongful death case following a horrible, tragic pile up on an icy road in rural Texas. Four lives were lost in the pile up. At trial, the widow of one decedent was awarded $16.8 million, including just over $15 million in non-economic damages. The trucking company appealed that verdict alleging the non-economic damage award was unsupported by the evidence. The Texas Supreme Court agreed.  

Gregory is loaded with defense friendly buzz words: “Mental anguish and loss of companionship damages are neither punitive nor exemplary;”3 “Juries cannot simply pick a number and put it in the blank;”4 and “We must insist that every aspect of our legal system—including the way we compensate grieving families for the wrongful death of a loved one—yields rational and non-arbitrary results based on evidence and reason, to the extent possible.”5   

Gregory affirms the seemingly forgotten notion that the task of a jury in a wrongful death case is not to put a value on human life. The task is to put a value on mental anguish and loss of companionship to compensate the Plaintiff.6 This task is by no means straightforward or subject to easily verifiable calculation, but it is subject to rational limits. “Juries cannot simply pick a number and put it in the blank.”7 

Gregory will limit the everything goes attitude in closing argument for plaintiff’s counsel. Gregory demonstrates a clear disfavor for argument such as “give them their 2 cents worth for every mile they drove last year,” a tactic used there. The trucking company in Gregory collectively drove 650 million miles the year of the accident. Two cents per mile is $13 million, a number not far off from the awarded non-economic damages of $15 million. The Court did not believe this was not a coincidence. 

Defense attorneys must be diligent to squeeze every benefit out of Gregory. Assert it in responsive pleadings, discovery requests, and to counter objections to deposition questions. It’s unclear whether the Court supports the preemptive use of Gregory in, for example, Motions in Limine, but it can’t hurt to try. At minimum, it’s an opportunity to remind the trial court and plaintiff’s counsel about Gregory and establish new post-Gregory norms. We can expect more appellate guidance on the limits of Gregory in the months and years to come, and hopefully other states follow suit. 

Defense counsel should not be reluctant or too proud to object to and disrupt closing argument post-Gregory. Counsel should tailor cross examination and discovery requests to highlight the unverifiable nature of a plaintiff’s grief. In a litigation environment where we constantly hear terms such as nuclear verdicts and social inflation, know that, at least in Texas, there are checks and balances against it. We must use them effectively. 

For more information about how Gregory might affect litigation involving your business, contact Tim Soefje at tim.soefje@fmglaw.com or Gabriel Canto at gabriel.canto@fmglaw.com. 

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  1. 670 S.W.3d 546 (Tex. 2023). ↩︎
  2. In this case the Plaintiff’s attorney made references to a $71 million Boeing F-18 fighter jet and a $186 million painting for seemingly no reason other than to suggest to the jury that the plaintiff’s pain is valued at equal to or more than these high-ticket items. See Gregory at 557-58. ↩︎
  3. Id. at 551.  ↩︎
  4. Id.  ↩︎
  5. Id.at 557.  ↩︎
  6. Id. at 558. ↩︎
  7. Id. at 551. ↩︎

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