Multi-million-dollar jury awards, commonly known as nuclear or thermonuclear verdicts, are on the rise in the post-pandemic era. Consequently, practitioners are now more reliant than ever on appellate courts’ review of the legal sufficiency and the potential excessiveness of jury awards. Accordingly, this article seeks to offer practitioners a tool to assist in the pursuit of appellate relief by (1) summarizing pertinent standards and corresponding evidentiary requirements serving as the foundation for appellate courts’ analyses when reviewing a jury’s damage awards; and (2) providing an overview of Gregory v. Chohan, 670 S.W.3d 546 (Tex. 2023), the Texas Supreme Court’s most recent guidance on the proper method for quantifying non-economic damages.
Courts and juries have long wrestled with the challenge of assessing, measuring, and quantifying the economic and non-economic damages routinely asserted by personal injury plaintiffs. Economic damages are those that can be easily quantified and include past and future medical expenses and lost earning capacity. In contrast, non-economic damages are more abstract damages, contemplating awards for physical pain and suffering, physical impairment, disfigurement, and mental anguish. With respect to each of the foregoing, jurors hold the unique responsibility to “logically” and “fairly” quantify the damages sought. Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999). Try as they might, juries do not always succeed.
To protect the sanctity of this process, a defendant generally has the right to call for a review on appeal of the legal sufficiency of the evidence, see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005), or the excessiveness of the award, see Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986). Under a legal sufficiency review, the verdict cannot stand unless the evidence deduced at trial affords a reasonable and fair-minded juror to reach the verdict in question. Wilson, 168 S.W.3d at 827. For a review based on excessiveness, the inquiry centers on whether the trial evidence is so factually deficient or against the great weight and preponderance of the evidence that it results in manifest injustice. Moore, 711 S.W.2d at 624. The considerations for determining whether a claimant meets these evidentiary thresholds differ based on the category of damage at issue, though future damages of any kind all invoke a “reasonable probability” standard.[1]
I. Elements for Design Claims
Below is an overview of the elements that a plaintiff must establish for each category of damages commonly asserted in a personal injury dispute.
| Damages | Elements of Claimed Damage |
| Medical Expenses | An award of past medical expenses seeks to compensate the plaintiff for the medical expenses incurred as a result of the injuries sustained in connection with an accident. To obtain an award for past medical expenses, a claimant must show that the expenses (1) were actually paid or incurred and (2) were reasonable. In re K&L Auto Crushers, LLC, 627 S.W.3d 239, 249 (Tex. 2021). Medical charges or invoices alone do not prove reasonableness. See id. (“proof of the amount charges does not itself constitute evidence of reasonableness”). To combat excessively high medical bills that a claimant may not ultimately owe, defendants can and should issue carefully tailored subpoenas to a claimant’s medical providers, requesting information related to the provider’s billing practices and customary rate charges of other patients over a period of time. Id. (finding this information to be relevant and discoverable to show reasonableness of medical expenses). |
| Lost Earning Capacity | “Lost earning capacity” is an assessment of the plaintiff’s capacity to earn a livelihood prior to injury and the extent to which the injury impaired that capacity. Scott’s Marina at Lake Grapevine, Ltd. V. Brown, 365S.W.3d 146, 158-59 (Tex. App—Amarillo 2012, pet. denied). It is not measured by what a claimant actually earned before the injury, but rather by the person’s capacity to earn, even if the claimant did not work in that capacity in the past. Id.; Gen. Motors Corp. V. Burry, 203 S.W.3d 514, 553 (Tex. App.—Fort Worth 2006, pet. denied). A plaintiff must present evidence sufficient to permit a jury to reasonably measure earning capacity in monetary terms. Tagle v. Galvan, 155 S.W.3d 150, 519-20 (Tex. App. —San Antonio 2004, no pet.). Non-exclusive factors to consider include evidence of past earnings and plaintiff’s stamina, efficiency, ability to work with pain, and work-life expectancy. Big Bird Tree Servs. V. Gallegos, 365 S.W.3d 173, 178 (Tex. App.—Dallas 2012, pet. denied). There must be some evidence that the claimant had the capacity to work before the injury and that that capacity was impaired as a result of the injury to obtain future damages for lost earning capacity. Plainview Motels, Inc. V. Reynolds, 127 S.W.3d 21, 35 (Tex. App.—Tyler 2003, pet. denied). |
| Physical Pain | An award for physical pain seeks to compensate a claimant for the conscious physical pain resulting from the negligent action or inaction at issue. See Texas Pattern Jury Charge 30.3. Damages awarded based on physical pain are |
