Roberto Alonzo and New Prime, Inc. v. Christine John and Christopher Lewis

Affirmed and Majority and Dissenting Opinions filed March 29, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00148-CV
ROBERTO ALONZO AND NEW PRIME, INC., Appellants
V.
CHRISTINE JOHN AND CHRISTOPHER LEWIS, Appellees
On Appeal from the 129th District Court
Harris County, Texas
Trial Court Cause No. 2014-44841
MAJORITY OPINION
Appellant Roberto Alonzo, while in the course and scope of employment for
appellant New Prime, Inc., was driving a tractor-trailer on Interstate 45 when he rear-
ended a sedan containing appellees Christine John and Christopher Lewis.
Appellants conceded liability, and a jury awarded appellees more than $12 million
in damages for physical pain and mental anguish. Appellants challenge the trial
court’s judgment in twelve issues, complaining about errors during voir dire and
closing argument, the admission of evidence, and the sufficiency of the evidence.1
We affirm.
I. SUFFICIENCY OF THE EVIDENCE
We address appellants’ complaints about the sufficiency of the evidence to
support the damages awards before their other issues. See, e.g., Bradleys’ Elec., Inc.
v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999). In their sixth through
eleventh issues, appellants contend that the evidence is legally and factually
insufficient to support the jury’s damages findings.2
A. Procedural Background
Appellants stipulated to liability. The first two jury questions asked what sum
of money would fairly and reasonably compensate each plaintiff for their injuries.
The question for John listed four potential elements of damages: past physical pain,
future physical pain, past mental anguish, and future mental anguish. The question
for Lewis asked only about past physical pain and past mental anguish. The jury
answered unanimously as follows:
Question 1 – Christine John Question 2 – Christopher Lewis
Past physical pain: $2,500,000 Past physical pain: $150,000
Future physical pain: $4,700,000 Past mental anguish: $300,000
Past mental anguish: $1,700,000
Future mental anguish: $3,100,000
The charge instructed the jury to consider only the elements of damages listed above,
to not award any sum of money on any element if the jury had otherwise awarded a
1
Appellants have not numbered their issues, but the “issues presented” section of their
brief includes three broad categories with bulleted questions. We identify their issues by number
as they appear sequentially in the bulleted questions.
2
Although appellants refer to the different standards of review for legal and factual
sufficiency, appellants do not analyze the legal and factual sufficiency points separately.
2
sum of money for the same loss under another element, and to not compensate the
plaintiffs twice for the same loss.
The trial court signed a final judgment consistent with the jury’s verdict.
Appellants’ motions for new trial and judgment notwithstanding the verdict were
overruled by operation of law.
B. Standards of Review for Sufficiency Challenges
For a legal sufficiency challenge, we review the record in the light most
favorable to the jury’s verdict, crediting favorable evidence if a reasonable fact-
finder could and disregarding contrary evidence unless a reasonable fact-finder
could not. See City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). We
indulge every reasonable inference in support of the verdict. Id. at 822. We may not
substitute our opinions on credibility for those of the fact-finder. See id. at 816–17,
822. The ultimate test for legal sufficiency is whether the evidence at trial would
enable reasonable and fair-minded people to reach the verdict under review. Id. at
827.
In a factual sufficiency review, we will set aside the verdict and remand for a
new trial if we conclude that the verdict is so against the great weight and
preponderance of the evidence as to be manifestly unjust. Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (citing In re King’s Estate, 244
S.W.2d 660, 661 (Tex. 1951)). We will weigh the evidence supporting the verdict
along with evidence contrary to the verdict. See id. at 761–62. However, the fact-
finder remains the sole judge of the credibility of witnesses and the weight to be
given their testimony. Id. at 761. We must defer to the fact-finder’s determinations
so long as those determinations are reasonable. See Sw. Bell Tel. Co. v. Garza, 164
S.W.3d 607, 625 (Tex. 2004). We may not merely substitute our judgment for that
of the fact-finder. Golden Eagle Archery, 116 S.W.3d at 761. The amount of
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evidence necessary to affirm the judgment is far less than the amount necessary to
reverse. Harris Cnty. v. Coats, 607 S.W.3d 359, 381 (Tex. App.—Houston [14th
Dist.] 2020, no pet.).
C. General Principles for Pain and Mental Anguish Damages
Under Texas law, “whether to award damages and how much is uniquely
within the factfinder’s discretion.” Golden Eagle Archery, 116 S.W.3d at 772. The
jury has broad discretion to award damages within the range of the evidence
presented at trial. Critical Path Res., Inc. v. Cuevas, 561 S.W.3d 523, 561 (Tex.
App.—Houston [14th Dist.] 2018, pet. granted, judgm’t vacated w.r.m.). Damages
associated with physical injuries are “not subject to precise mathematical
calculation” because physical pain and mental anguish are inherently subjective.
Richards v. Tebbe, No. 14-13-00413-CV, 2014 WL 2936425, at *5 (Tex. App.—
Houston [14th Dist.] June 26, 2014, no pet.) (mem. op.) (quoting Weidner v.
Sanchez, 14 S.W.3d 353, 372 (Tex. App.—Houston [14th Dist.] 2000, no pet.); see
also PNS Stores, Inc. v. Munguia, 484 S.W.3d 503, 518 (Tex. App.—Houston [14th
Dist.] 2016, no pet.) (“The process of awarding damages for amorphous,
discretionary injuries such as physical pain and mental anguish is inherently difficult
because the alleged injury is a subjective, unliquidated, nonpecuniary loss.”).
“Pain and suffering may be inferred or presumed as a consequence of severe
injuries.” Id. at 574. Although mental anguish cannot be inferred from any physical
injury, it may be inferred as a natural consequence of severe physical injury. See
Ontiveroas v. Lozano, No. 14-05-00294-CV, 2006 WL 1140374, at *2 (Tex. App.—
Houston [14th Dist.] Apr. 27, 2006, no pet.) (mem. op.); see also Parkway Co v.
Woodruff, 901 S.W.2d 434, 442, 445 (Tex. 1995) (noting that a threat to one’s
physical safety may justify an inference of mental anguish, and historically, if there
was physical injury resulting from physical impact, “recovery of mental anguish
4
damages was not hard to justify”). “Although the fact of a physical injury does not
alone support an award for mental anguish damages, we can consider the traumatic
nature of an injury as a factor in deciding whether the award is supported by the
evidence.” Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 595 (Tex.
App.—Houston [14th Dist.] 2015, pet. denied).
Mental anguish is only compensable if it causes a ‘substantial disruption in
daily routine or a high degree of mental pain and distress. Hancock v. Variyam, 400
S.W.3d 59, 68 (Tex. 2013). Thus, mental anguish damages cannot be awarded
without either (1) direct evidence of the nature, duration, or severity of the plaintiff’s
anguish, thus establishing a substantial disruption in the plaintiff’s daily routine; or
(2) other evidence of a high degree of mental pain and distress that is more than mere
worry, anxiety, vexation, embarrassment, or anger. Saenz v. Fidelity & Guar. Ins.
Underwriters, 925 S.W.2d 607, 614 (Tex.1996). The absence of direct evidence
justifies close scrutiny of other evidence of mental anguish damages. Favalora, 476
S.W.3d at 594 (citing Parkway, 901 S.W.2d at 444).
Damages for future physical pain are recoverable if a jury could reasonably
infer that the plaintiff will feel physical pain in the future. PNS Stores, 484 S.W.3d
at 517. Similarly, damages for future mental anguish are recoverable if there is a
reasonable probability that the plaintiff will suffer compensable mental anguish in
the future. Id.D. Evidence and Analysis of Christine John’s Past and Future Physical Pain
In appellants’ seventh and eighth issues, they contend that the evidence is
legally and factually insufficient to support the jury’s damages award to John for
past and future physical pain, respectively $2.5 million and $4.7 million. Appellants
concede that John suffered physical pain after the accident and still had pain at the
time of trial. But appellants contend that the jury’s awards are excessive, and
5
appellants ask this court to reverse and remand for a new trial or suggest a remittitur.
Accordingly, we address their issues as a factual-sufficiency challenge. See Critical
Path, 561 S.W.3d at 561 (“When a party argues on appeal that the damages awarded
by the jury are excessive we review the evidence for factual sufficiency.”).
John was twenty-four years old in September 2012. She was driving a Nissan
Sentra on Interstate 45 when appellants’ tractor-trailer rear-ended her and pushed
her into another vehicle. She hit her head during the accident and was taken to a
hospital where she complained of head and neck pain. An MRI showed bulging and
herniated discs in her spine. Her treating neurosurgeon testified that these conditions
caused pain and that a herniated disc “doesn’t go back in” and “doesn’t go back to
normal,” which may cause lingering pain over time.
Within two weeks of the accident, she also started to feel sharp pain on the
left side of her face that radiated from her ear to her lower jaw. She reported to one
of her treating neurologists that the pain was a “10 out of 10,” or the worst possible
pain. It is a sharp and severe pain that occurs in bursts throughout the day. It can be
triggered by touching her face, a cool temperature, cold air hitting her face, brushing
her teeth, or talking, among other things. Multiple doctors—neurologists and
neurosurgeons—diagnosed John with an uncommon condition known as “trigeminal
neuralgia,” meaning a damaged nerve in her face. The doctors opined that facial
trauma from the accident caused the nerve damage.
The doctors described trigeminal neuralgia as a “very painful” syndrome:
“probably the most excruciating pain you can imagine and—and that’s kind of
running down your entire face.” It is one of the most painful conditions known to
medicine, and it is “well known that it is a horrible pain.” The doctors were aware it
had been called “the suicide disease” because “so many people couldn’t handle the—
the pain.”
6
Doctors attempted to treat John’s pain with medications, but the pain
continued. Some medication had side effects, like making her vomit. She underwent
a “gamma knife” radio surgery that involves using radiation to destroy part of the
nerve. She noticed some improvement, but the pain merely “lagged,” i.e., instead of
occurring immediately after a triggering event, the pain would come ten or fifteen
minutes later. The doctors described other potential invasive surgeries that could
lead to total loss of feeling in John’s face or implanting an electrode that is attached
to a battery that sends electrical signals to the nerve.
John testified that her pain continued at trial: “I am in pain right now.” She
described it as a “10 out of 10.” She lives with pain all day, every day. Although not
constant, she has episodes throughout the day. She continued to have lower back
pain depending on what she does, but “it’s not anything like the face.” A doctor
testified that no treatments for trigeminal neuralgia are guaranteed to relieve the pain
and prevent it from recurring. Episodes of pain often worsen over time with fewer
and shorter pain-free periods before recurring. Eventually, pain-free intervals
disappear. It is more likely than not that symptoms of trigeminal neuralgia may affect
the patient for the rest of her life. John had a life expectancy of fifty-one more years.
Appellants, contending that the jury’s damages awards are excessive, point to
evidence that John did not request damages for medical expenses or lost wages,
refused certain treatment such as medications, and continues to work and “live her
life.” The jury, as the sole judge of the witnesses and their credibility, could have
considered this evidence in exercising its broad discretion to determine the amount
of compensation due to John for her past and future physical pain. The fact that John
stopped taking medications that were not effective to reduce her pain or had side
effects, or that future medical treatment was not guaranteed, does not negate the
7
jury’s finding of future physical pain. See Primoris Energy Servs. Corp. v. Myers,
569 S.W.3d 745, 761 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
Appellants point to other cases from Texas and outside Texas in which juries
awarded lower damages for allegedly “worse pain and suffering” or comparable
injuries.3 Many cases have distinguishing facts.4 Although we may review verdicts
in other cases to determine the reasonableness of compensation, each case must be
evaluated on its own facts, and often “comparison of injuries in different cases is
virtually impossible.” Critical Path, 561 S.W.3d at 570 (quotation omitted); see also
Primoris Energy, 569 S.W.3d at 760 (“[C]omparison with other cases or amounts of
verdicts is generally of little or no help.” (quotation omitted)); Emerson Elec. Co. v.
Johnson, 601 S.W.3d 813, 845 & n.19 (Tex. App.—Fort Worth 2018) (“Because the
appropriateness of an award in a case turns on the specific facts of that case,
referencing the amounts awarded in other cases is of limited help to a court
reviewing the sufficiency of the evidence to support an award.”), aff’d, 627 S.W.3d
197 (Tex. 2021). Moreover, comparison to other cases does not necessarily show
that the jury’s award is excessive. See Gen. Motors Corp. v. Burry, 203 S.W.3d 514,
551–53 (Tex. App.—Fort Worth 2006, pet. dism’d) (upholding jury’s verdict for
3
See, e.g., PNS Stores, Inc. v. Munguia, 484 S.W.3d 503, 517–18 (Tex. App.—Houston
[14th Dist.] 2016, no pet.); Gulf-Inland, LLC v. Jackson, No. 01-10-01025-CV, 2012 WL 1454476,
at *9–11 (Tex. App.—Houston [1st Dist.] Apr. 26, 2012, no pet.) (mem. op.); Rentech Steel, L.L.C.
v. Teel, 299 S.W.3d 155, 165–67 (Tex. App.—Eastland 2009, pet. dism’d).
4
For example, in Gulf Inland, the plaintiff suffered intense pain near the time of the
accident but then had “on and off” pain that was “mild and occasional” following surgery. See
2012 WL 1454476, at *9. The evidence supported an award of $1.5 million in past and future
physical pain and mental anguish. See id. In PNS Stores, the plaintiff suffered a concussion from
being struck by several thirty-two-ounce bottles of deck wash that fell five feet from a shelf. See
PNS Stores, 484 S.W.3d at 508–09. He suffered headaches, ringing in his ears, severe pain in an
eye upon exposure to light, and soreness and stiffness in his neck and shoulder. Id. at 518. The
evidence supported an award of $670,000 for past and future physical pain and mental anguish.
See id. at 517–18.
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$15 million in damages for past and future physical pain and mental anguish when
plaintiff suffered brain damage, had trouble walking, and was depressed).
Considering all of the evidence, we cannot conclude that the verdict is so
against the great weight and preponderance of the evidence as to be manifestly
unjust. The evidence is factually sufficient. We overrule appellants’ seventh and
eighth issues.
E. Evidence and Analysis of Christine John’s Past and Future Mental
Anguish
In appellant’s ninth and tenth issues, they contend there is no evidence, or
insufficient evidence, to support the jury’s damages award to John for past and future
mental anguish, respectively $1.7 million and $3.1 million. Appellants contend that
John presented no evidence about her mental anguish—only about her physical pain.
Appellants contend, and we agree, that because the jury was asked to award
damages separately for pain and mental anguish, evidence of John’s physical pain
alone cannot support the award for mental anguish. See Favalora, 476 S.W.3d at595–96 (noting that a jury “cannot automatically infer mental anguish once any
physical injury is sustained,” and that evidence related to the plaintiff’s physical pain
was “not relevant to the jury’s award of mental anguish” damages because the jury
provided separate awards for physical pain and mental anguish). But because John
testified about her awareness and the extent of her physical pain, we cannot ignore
that evidence when considering the nature of her injury and the mental anguish that
may derive from a threat of physical pain. See id. (noting jury may consider the
nature of an injury as a factor in deciding whether mental anguish damages are
supported by the evidence); Ontiveroas v. Lozano, No. 14-05-00294-CV, 2006 WL
1140374, at *2 (Tex. App.—Houston [14th Dist.] Apr. 27, 2006, no pet.) (mem. op.)
(noting that fear of imminent serious injury “even for a matter of seconds, provides
9
some evidence of mental anguish that is more than mere worry, anxiety, vexation or
anger”); see also Golden Eagle Archery, 116 S.W.3d at 773 (“[I]n reviewing a
challenge that an award [of damages] for a category is excessive because there is
factually insufficient evidence to support it, a court of appeals should consider all
the evidence that bears on that category of damages, even if the evidence also relates
to another category of damages.”).
Appellants point to evidence that John continues to work and is successful in
her career, has “the right attitude,” pushes through the pain, has not “given up,” is
“still living life,” and is not on antidepressants. But, there is other direct evidence of
John’s high degree of mental pain and distress and a substantial disruption of her
daily life.
John testified that her injury is sometimes debilitating and she “can’t take it.”
Sometimes she has to “ball up in a ball and just lay down and just wait” with the
lights turned off. If she has an episode while driving, she has to pull over to wait
until it subsides. She likes to sleep a lot because when she is asleep, she doesn’t feel
the pain. She goes to bed as early as possible to make the pain stop. She is sad a lot
because she cannot do all the things that she used to be able to do or that she wants
to do. She does not go out like she used to before the accident. She has a less active
intimate relationship with her husband, Lewis. He testified that they began to sleep
in separate beds after the accident so there is no inadvertent contact that will trigger
her pain. He testified similarly that, ever since the accident, they “really don’t do
anything”; they just stay at home, although they were active people before the
accident.
John testified that she is angry and upset because she doesn’t know what to
do or how to fix her injury, and she cannot avoid things that she must do that cause
pain, such as talking, eating, or brushing her teeth. She is terrified by the prospect of
10
future surgeries, the potential for becoming numb, having something drilled into her
head, and a battery pack in her chest for the rest of her life. Lewis testified that John’s
mood changes when she has an episode—she feels down. He testified, “She gets
really emotional at times, and I think it’s just a buildup of the pain and just emotional
anguish and things like that. And she can have an episode of crying just out of
anywhere.” John testified that she contemplated suicide because “it hurts so much.”
Testimony from John and Lewis shows that John has suffered a high degree
of mental pain and distress and a substantial disruption of her daily life. Cf. Serv.
Corp. Int’l. v. Guerra, 348 S.W.3d 221, 233 (Tex. 2011) (holding that evidence was
sufficient to support jury’s award of $2 million in past mental anguish damages
although there was no evidence of a substantial disruption of daily routine, and there
was evidence that the plaintiff volunteered at a nursing home, participated in
visitation with her church, worked in the church kitchen, and traveled occasionally).
Appellant’s reliance on Bentley v. Bunton, a defamation case in which the Texas
Supreme Court held a public figure could recover mental anguish damages, is not
persuasive. See 94 S.W.3d 561, 605 (Tex. 2002). The supreme court held there was
legally sufficient evidence of some amount of compensable mental anguish
damages, but the evidence did not support the $7 million award because it was
“excessive and unreasonable.” Id. at 606–07. The policy implications relied upon by
the court regarding defamation cases, and the nature of the case and particular
evidence involved, distinguish it from the evidence here involving a significant
physical injury. See id. at 605–07.
Evidence discussed above—including John’s testimony about her present
condition and the doctors’ testimony about the lack of effective treatment and
potential worsening of the condition over time—shows with reasonable probability
that she will suffer compensable mental anguish in the future. See PNS Stores, 484
11
S.W.3d at 517; see also Patel v. Hussain, 485 S.W.3d 153, 183 (Tex. App.—
Houston [14th Dist.] 2016, no pet.) (factually sufficient evidence of future mental
anguish damages because “the circumstances that produced at least some of the
previous mental anguish are likely to recur” (quotation omitted)).
The evidence is legally and factually sufficient to support the jury’s award of
past and future mental anguish damages to John. We overrule appellants’ ninth and
tenth issues.
F. Evidence and Analysis of Christopher Lewis’s Past Physical Pain
As part of their eleventh issue, appellants contend that the evidence is legally
and factually insufficient to support the jury’s award of $150,000 to Lewis for his
past physical pain. Appellants focus on Lewis’s testimony that he was “doing okay”
and “fine” by the time of trial and that pain management has “helped a lot.”
Other evidence, however, supports the jury’s finding of damages for past
physical pain. Lewis was a passenger in the vehicle when it was struck. His airbag
deployed, and he went to the hospital. His medical records indicated that he reported
pain on the top of his head, back, and neck. He described his pain as continuous
aching and rated it a five out of ten. Lewis’s treating neurosurgeon testified that
Lewis came to him with lower back pain and neck pain. Lewis claimed that his back
pain had started since the accident and was a “stabbing, tingling, dull, and constant”
pain. Lewis rated it as a seven out of ten. Over the years, Lewis took medications
and underwent physical therapy and chiropractic treatments before seeing the
neurosurgeon. Lewis was diagnosed with spinal stenosis in his neck and back and a
bulging disc in the lumbar spine and radiculopathy in the lumbar and cervical
region—meaning there was something pushing on a nerve root that runs down from
the spine to Lewis’s arms and legs. Lewis underwent epidural steroid injections.
Lewis testified that his back and neck were “really hurting” for the first couple of
12
years following the accident, but he does “injections now, and that has helped me a
lot.” The neurosurgeon testified that the types of injuries Lewis suffered are
“absolutely” painful.
Considering all of the evidence, it is legally and factually sufficient to support
the jury’s award of damages to Lewis for past physical pain.
G. Evidence and Analysis of Christopher Lewis’s Past Mental Anguish
Also part of their eleventh issue, appellants contend that the evidence is
legally and factually insufficient to support the jury’s award of $300,000 to Lewis
for his past mental anguish.
A damages award for mental anguish will survive a legal-sufficiency
challenge when the record bears “direct evidence of the nature, duration, and severity
of [the plaintiff’s] mental anguish, thus establishing a substantial disruption in the
plaintiff[’s] daily routine,” or when the record demonstrates “evidence of a high
degree of mental pain and distress that is more than mere worry, anxiety, vexation,
embarrassment, or anger.” Anderson v. Durant, 550 S.W.3d 605, 619 (Tex. 2018)
(quoting Parkway Co, 901 S.W.2d at 444). Mental anguish is a “relatively high
degree of mental pain and distress” that is “more than mere disappointment, anger,
resentment or embarrassment, although it may include all of these.” Parkway Co.,
901 S.W.2d at 444.
Appellants assert there is no evidence of the nature, duration, or severity of
Lewis’s mental anguish, and there is no evidence that Lewis suffered from a high
degree of mental pain and distress that is more than mere worry, anxiety, vexation,
embarrassment, or anger to support the award of past mental anguish damages.
We have determined that John’s mental anguish damages are supported by
sufficient evidence in that John suffered from debilitating pain described by experts
13
as “the suicide disease” because “so many people couldn’t handle the—the pain.”
The record reflects that John has no way to predict when her extreme pain will occur,
but that it can be triggered by the touching of her face, cool temperatures, brushing
her teeth, or talking. Lewis testified that he and John frequently cannot sleep in the
same bed or even the same room because Lewis is afraid that the temperature of the
room will cause John severe pain, or he might accidentally touch John during the
night causing her extreme pain. Lewis’s testimony about his life with John since the
accident reflects a substantial disruption in Lewis’s daily routine coupled with
mental pain and distress beyond mere worry, anxiety, vexation, embarrassment, or
anger.
Before the accident John and Lewis enjoyed playing sports and attending
active activities together such as basketball and swimming. After the accident John
was unable to participate in any activity or exertion without pain. Lewis further
testified that “this illness affects our intimacy” causing difficulty being “passionate
and affectionate[.]”
As to how the accident affected him directly, the record reflects that two
weeks after the accident Lewis completed a “Symptoms and Functional Outcomes
Assessment.” In that assessment, when asked whether his pain interfered with his
ability to see the people who were important to him as much as he liked, Lewis
circled “9” on a scale of one to ten with ten being described as “total interference.”
Lewis further stated that he needed help all the time to complete everyday tasks and
that he felt more depressed, tense, or anxious than before his pain began. Lewis
stated that he had severe emotional problems caused by his pain that interfered with
family, social, and/or work activities.
Appellants assert that John frequently “does things with his friends,” plays in
a band, and is doing well in his career. To be sure, Lewis began his testimony
14
explaining that he was “doing fine” and was not asking for future damages. Lewis’s
coping mechanisms since the accident do not detract from the fact that he lived daily
with his spouse’s extreme pain and mental distress. He testified that he “has to live
with [John’s] injuries and everything that she has to go through.” Lewis testified that
while he considered John to be a “modest, very humble lady,” in watching her endure
severe pain, he also “[felt] some of the pain.”
The record reflects sufficient evidence that the accident created a substantial
disruption of Lewis’s daily routine and a high degree of mental distress. See
Favalora, 476 S.W.3d at 597 (“The jury could have inferred from Favalora’s
attitudinal changes and the attendant hardships that Favalora had suffered a high
degree of mental pain and distress beyond mere worry, vexation, embarrassment, or
anger.”). Not only did Lewis experience mental anguish as a result of his own
injuries, but he also experienced mental anguish living with John and doing
everything he could to help her avoid severe physical and emotional pain.
Considering all of the evidence, it is legally and factually sufficient to support
the jury’s award of damages to Lewis for past mental anguish. We overrule
appellants’ eleventh issue.
H. Cumulative Awards
In their sixth issue, appellants contend the jury’s awards are “far greater than
any award ever sustained in Texas for comparable injuries and without supporting
evidence.” Appellants do not brief this issue separately from their sufficiency
challenges, but they contend in their briefing that John’s cumulative awards for
physical pain and mental anguish “are excessive, are a result of the jury’s passion
and prejudice spurred by counsel’s comments, and are entirely disproportionate to
the economic damages she allegedly sustained.” Appellants ask this court to consider
appellees’ responses to requests for disclosures in the Clerk’s Record, in which
15
appellees alleged John’s past and future medical expenses would amount to only
$493,938.73 on the high end.5 Appellants contend that the ratio of about 24:1
between noneconomic and economic damages shows that the jury’s award is
excessive.
Appellants cite no case from this court endorsing the ratio analysis, and as
another court of appeals has suggested, the ratio analysis is typically used for
evaluating constitutional limitations imposed on punitive damages and defamation
claims. See Emerson Elec. Co, 601 S.W.3d at 844 n.18. That court concluded it need
not consider the proportionality of economic and noneconomic awards when some
evidence supports the award. See id. at 844; see also PNS Stores, 484 S.W.3d at519–20 (rejecting claim that noneconomic damages were excessive because they
were fifty-eight times the amount of medical expenses).
In the only personal injury case relied upon by appellants that reversed a jury’s
verdict based in part on the ratio of economic and noneconomic damages, the
evidence of pain and mental anguish was far weaker than here; and improper
arguments also undermined the verdict. See FTS Int’l Servs., LLC v. Patterson, No.
12-19-00040-CV, 2020 WL 5047913, at *13–26 (Tex. App.—Tyler Aug. 26, 2020,
pet. filed) (mem. op.) (considering the car accident was a minor impact collision that
caused only cervical herniation, the plaintiff presented inconsistent, equivocal,
contested, and sparse evidence to support $24 million in noneconomic damages, and
counsel engaged in misconduct, made improper accusations of spoliation, and told
the jury to punish the defendant and send a message).
Even if the proportionality of economic and noneconomic damages suggests
the verdict could be excessive, the specific evidence presented in this case regarding
5
Appellants omit from this number John’s alleged lost future wages of $595,290 to $2.3
million.
16
John’s physical pain and mental anguish, discussed above, supports the jury’s
verdict. See PNS Stores, 484 S.W.3d at 519–20 (“Moreover, because there was
evidence to account for the jury’s large verdict, we cannot say that the verdict was
so flagrantly excessive that it cannot be accounted for on any other ground.”)
(quotation omitted)). Even if some of counsel’s comments to the jury were improper,
as discussed below, they were not such to impact the jury’s award. Finally, we note
that the jury awarded “different claimants different amounts for different categories
of non-economic damages,” which “demonstrates careful consideration of what
amounts to assess.” See Gregory, 615 S.W.3d at 277; cf. Critical Path, 561 S.W.3d
at 577 (suggesting remittitur for excessive noneconomic damages when the jury
“picked a final amount of $10,000,000 for each parent’s damages, divided that total
by the number of damage blanks in the jury charge, and then filled in the same
amount of damages in each blank.”).
We will not substitute our judgment for that of the jury’s when the evidence
supports an award for significant physical pain and mental anguish. We overrule
appellant’s sixth issue.
II. CONDUCT OF COUNSEL
In their first five issues, appellants complain of individualized and cumulative
error related to the conduct of appellees’ counsel during voir dire and closing
arguments.
A. Jury Selection
In their first issue, appellants contend that the trial court erroneously allowed
appellees to ask improper commitment questions about whether the venirepersons
could award $10 to $12 million in damages. In their second issue, appellants contend
17
that the trial court erroneously struck two potential jurors for cause because they
could not commit to award damages within that range.
1. Background
Early during voir dire, appellees’ counsel informed the venirepersons that
appellees were suing for $10 to $12 million in damages for mental anguish and pain
and suffering. While questioning venirepersons about their potential biases, counsel
sometimes asked the venirepersons if they had biases against awarding “millions of
dollars” based on intangible personal injuries. Sometimes, however, counsel referred
to the more specific range of $10 to $12 million. For example:
And so, here’s what I’m getting at. A concern—and I’m not going to
tell you about any evidence. I am asking you, hypothetically speaking,
can you consider a situation where you could award someone 10 to 12
million dollars in mental anguish and pain and suffering?
When a venireperson said they could not consider awarding millions of dollars
in pain and suffering and mental anguish, regardless of the law and regardless of
whether it was supported by the evidence, the trial court interrupted “to just clarify
a couple of things.” The court explained:
So, we’re talking about if you are—obviously, you haven’t heard
any evidence. So—and you’re not being asked to make that decision
here. And at the end of this case, the Court is going to give you a jury
charge where I’m going to ask you some questions; and some of those
questions might ask you to provide for a dollar amount for certain types
of damages.
But the primary concern is not having heard any evidence, have
you already decided that you’ve already set a limit? You categorically
will not award such-and-such amount because you don’t believe there
can ever be a case where such an amount can be proved to you and so
that you’re—you’re not the right person for this jury.
And so, I just want to kind of reframe it a little bit, because I
don’t want there to be any misunderstanding that you’re not being asked
18
to decide right here and now whether or not you can award any sum of
money, because you’re not. You’re just being asked whether or not
you’ve decided before you’ve heard any evidence what you can and
can’t do.
Appellants “object[ed] to this continuing line of questioning as a commitment to the
jury, even though it’s a range.”
Many of the venirepersons expressed a bias against awarding “millions of
dollars” for pain and suffering and mental anguish. When one venireperson
expressed this bias, appellees’ counsel asked if anyone felt similar. Juror No. 14
answered:
Venireperson: Right. I think corporations can be big targets sometimes;
and I think there’s a broad line between physically debilitating injuries,
loss of life, can’t work a job, and mental anguish. I just—I can’t see
how you could award that much money for mental anguish.
*****
[Counsel]: Right. And could you think of a hypothetical situation not
in this case but hypothetically where you could consider awarding 10
to 12 million dollars?
Venireperson: Not that much.
[Counsel]: Regardless of the evidence?
Venireperson: Yeah.
*****
[Counsel]: Is anything changed? This is—as we discussed, this is
probably not the best case for you?
Venireperson: Just I have trouble with the dollar amount and the pain
and suffering.
[Counsel]: Right.
Venireperson: I know it can be that she has valid concerns, but the
dollar amount just bothers me.
19
[Counsel]: And even setting aside the dollar amount—I think you
shared that the noneconomic, the mental anguish and pain and
suffering, is something that you struggle with?
Venireperson: To a degree, yes.
[Counsel]: Right. Such that you would have a bias in the case?
Venireperson: Right. Maybe I would keep an open mind; but I would
always have that seed, you know, what’s the goal here.
Appellants’ counsel returned to Juror No. 14 during voir dire and asked several
follow-up questions:
[Counsel]: Can you listen to the evidence that is from the witness stand
or the evidence that’s admitted and consider the evidence and award
damages as proved?
Venireperson: If the facts prove it, then yes.
[Counsel]: Whether or not it’s a hundred dollars or $12 million, you
can do that?
Venireperson: Yes.
When several other jurors expressed their biases “in a case like this where one
side is suing another side for millions of dollars in mental anguish and pain and
suffering,” appellees’ counsel asked, “Anybody else?” Juror No. 48 spoke up:
Venireperson: I can’t imagine any case, pain and suffering inside, that
would go up to 10 and 12 million dollars, minus your fee of maybe 5
million. I think something 5 million would support somebody with
psychiatrist, medication, everything for the hospital. It’s just a little bit
too much, even if they couldn’t work for the rest of their life.
[Counsel]: Okay. All right. Would you have—is that a cap you have in
your mind?
Venireperson: Yes, because I’m retired; and I know what it cost to live
on your own moneys without any help. And I think that’s a little too
far.
[Counsel]: Sure. Would you have a bias in a case like this that you
could not consider more than the cap in your predetermined mind?
20
Venireperson: More than what?
[Counsel]: Than the 5 million, even if the evidence supports it,
regardless of the Court’s instructions?
Venireperson: She’s sitting out in the hallway, right?
[Counsel]: Yes.
Venireperson: I can’t go along with that.
[Counsel]: Okay. And may I dot my Is and cross my Ts? Would you
have a bias in a case like this where one side is suing another side for
millions of dollars in mental anguish—
Venireperson: Millions, no. If you have like 1 million or 2 million, 3
million; but when you’re getting up to 5 million for somebody who is
physically fine now with pain and injury and—that’s a little too much.
[Counsel]: Okay.
Venireperson: I know the cost of living with pain and injury.
[Counsel]: Okay. And I’m expressing to you that it has nothing to do
with the cost of living, whether she works or not. It’s just internally,
putting a value on—
Venireperson: Even internally.
Appellants’ counsel moved to strike for cause twelve venirepersons, and the
court struck all of them.6 Appellees’ counsel moved to strike for cause Jurors No. 14
and 48, among others, and the court struck them. Appellants’ counsel complained
that Jurors No. 14 and 48 and two others “didn’t even come close to reaching a level
which would be grounds for striking for cause,” and that by striking those
venirepersons, the court was “giving [appellees] four extra peremptory challenges.”
As a “way to preserve” error, appellants’ counsel asked for four additional
peremptory challenges. The court denied the request, explaining:
Based on the Court’s review of their demeanor, of the totality of the
circumstances over the record, having visually observed each of these
folks and the way they answered their questions and based on their
6
One of the venirepersons, Juror No. 22, was excused for a reason other than for cause.
21
responses, the Court believes that the ones that are relieved for strikes
for cause were—exhibited bias or prejudice.
When the court announced the names of the twelve jurors, plus an alternate,
the court asked if there were any objections before swearing in the jury. Appellants’
counsel answered, “No.”
2. Legal Principles
Voir dire protects the right to an impartial jury by exposing possible improper
juror biases that form the basis for statutory disqualification. Hyundai Motor Co. v.
Vasquez, 189 S.W.3d 743, 749 (Tex. 2006). “Thus, the primary purpose of voir dire
is to inquire about specific views that would prevent or substantially impair jurors
from performing their duty in accordance with their instructions and oath.” Id.Inquiry into potential jurors’ bias and prejudice is proper to determine not only
whether jurors are disqualified by statute, but also to seek information that allows
counsel to intelligently exercise their peremptory strikes. Id. at 750.
However, most types of “commitment” questions are improper. A
commitment question is one that commits a prospective juror to resolve, or refrain
from resolving, an issue a certain way after learning of a particular fact. K.J. v. USA
Water Polo Inc., 383 S.W.3d 593, 601 (Tex. App.—Houston [14th Dist.] 2012, pet.
denied). “Questions that are not intended to discover bias against the law or prejudice
for or against the defendant, but rather seek only to determine how jurors would
respond to the anticipated evidence and commit them to a specific verdict based on
that evidence are not proper.” Id. (citing Vasquez, 189 S.W.3d at 753).
Trial courts should allow “broad latitude” for counsel to discover any bias or
prejudice. Vasquez, 189 S.W.3d at 749. And trial courts have “broad discretion” in
conducting voir dire. Id. at 753. Generally, we review a trial court’s decision
regarding what questions may be asked and the court’s striking a juror for cause
22
under an abuse-of-discretion standard. See K.J., 383 S.W.3d at (trial court’s refusal
to allow certain question reviewed for abuse of discretion); Taber v. Roush, 316
S.W.3d 139, 163–64 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (trial court’s
refusal to strike a juror for cause reviewed for abuse of discretion). Even if a juror’s
bias or prejudice is not established as a matter of law, the trial court may make a
factual determination about whether the venireperson should be disqualified. See
Malone v. Foster, 977 S.W.2d 562, 564 (Tex. 1998) (citing Swap Shop v. Fortune,
365 S.W.2d 151, 154 (Tex. 1963) (noting that the trial court is in a better position
than an appellate court to evaluate a juror’s sincerity and capacity for fairness and
impartiality)).
3. No Error
Appellants cite no case in which the trial court erred by allowing certain
questions or striking a juror for cause. Appellants rely on K.J. v. USA Water Polo,
Inc., in which this court affirmed the trial court’s refusal to allow the question of
whether the venirepersons “would be willing to award damages to [the plaintiff] of
$2 million if the law and credible evidence justified such an award.” 383 S.W.3d at
601. This court relied on the considerable discretion afforded trial courts in
conducting voir dire to hold that the court did not abuse its discretion in disallowing
the question because it was “framed as a preview of the claims involved,” regardless
of “[w]hether appellants’ question exactly fits the definition of a commitment
question.” Id. at 602.
Here, appellees’ counsel’s questions to the jury regarding their willingness or
ability to award “millions of dollars” or “10 to 12 million dollars” in non-economic
damages did not preview any specific fact or evidence for the jury. The questions
were phrased repeatedly as hypothetical questions. As the trial court clarified to the
jury, the questions were not intended to have the venirepersons make decisions
23
before hearing evidence, but to determine whether any jurors had “set a limit” in
their minds so they couldn’t ever award such an amount: “You’re just being asked
whether or not you’ve decided before you’ve heard any evidence what you can and
can’t do.” Under these circumstances, appellees’ counsel’s questions do not “exactly
fit[] the definition of a commitment question,” and we cannot hold that the trial court
abused its considerable discretion in the area of voir dire. Cf. K.J., 383 S.W.3d at601–02.
In Taber v. Roush, also relied upon by appellants, the plaintiff’s counsel asked,
“Who feels . . . that under no circumstances, no matter what the evidence is, could
you ever award a million dollars or more for mental anguish in a case?” 316 S.W.3d
at 164. A venireperson raised his hand in response to the question. Id. But, the
plaintiff’s counsel asked no follow-up questions, and the venireperson had already
indicated that he could award mental anguish damages, follow the instructions of the
court, and consider the evidence in determining whether to award mental anguish
damages. Id. at 164–65. This court noted, “Bias is not established as a matter of law
merely because venire members raise their hands in response to a general question
addressed to the entire panel.” Id. at 165. This court held that the trial court did not
abuse its discretion by denying a challenge for cause. Id. Here, on the other hand,
the record shows detailed questioning of Jurors No. 14 and 48 to discover potential
bias.
An apt precedent is this court’s holding in Cavnar v. Quality Control Parking,
Inc., 678 S.W.2d 548, 555–56 (Tex. App.—Houston [14th Dist.] 1984), rev’d in part
on other grounds, 696 S.W.2d 549 (Tex. 1985). This court held that the trial court
did not abuse its discretion by striking a venireperson for cause when he “indicated
that he could not consider $1,000,000 as damages for loss of companionship and
mental anguish.” Id. at 555–56. This court reasoned that the venireperson “expressed
24
a bias against awarding nonpecuniary damages supported by the evidence.” Id. at
555.
Here, Juror No. 14, before being rehabilitated by appellants’ counsel, said he
could not award $10 to $12 million in mental anguish and pain and suffering
“regardless of the evidence,” and he couldn’t think of any hypothetical situation in
which to award that much money. He agreed that he had “a bias in the case.”
Similarly, Juror No. 48 said she couldn’t “imagine any case” in which to award more
than $5 million in pain and suffering. She agreed that $5 million was a “cap” in her
mind.
Even if the record does not show that these venirepersons were disqualified
as a matter of law, we must defer to the trial court’s factual determinations based on
personal assessment of the venirepersons’ sincerity and capacity for fairness and
impartiality. See Malone, 977 S.W.2d at 564; see also Greenwood Motor Lines, Inc.
v. Bush, No. 05-14-01148-CV, 2017 WL 1550035, at *3 (Tex. App.—Dallas Apr.
28, 2017, pet. denied) (mem. op.) (holding that trial court did not abuse its discretion
striking jurors for cause who said they would place their own “cap” on damages
“regardless of the evidence”). As the trial court orally announced, the court based its
determination on visually observing the venirepersons and their demeanors.
In sum, the trial court did not abuse its discretion in allowing appellees’
counsel to ask the venirepersons about their ability or willingness to award $10 to
$12 million in damages and in striking two venirepersons who expressed bias against
awarding damages regardless of the evidence.
4. No Harm Regarding Strikes
Even if we assume the trial court erred by striking Jurors No. 14 and 48, to
show harm from the erroneous striking of venirepersons for cause, appellants must
25
show that an objectionable juror was impaneled. Cavnar, 678 S.W.2d at 556; see
also Greenwood Motor Lines, 2017 WL 1550035, at *3 (“Even if challenges for
cause are improperly sustained, no reversible error is presented unless appellant can
show he or she was denied a trial by a fair and impartial jury.”). Because the trial
court did not seat on the jury any of the venirepersons to which appellants objected,
and appellants had no objection to the jurors actually impaneled, appellants have not
shown that any error from striking Jurors No. 14 and 48 caused harm warranting a
new trial. See Greenwood Motor Lines, 2017 WL 1550035, at *3; Cavnar, 678
S.W.2d at 556. We overrule appellants’ first and second issues.
B. Arguments of Counsel
In their third through fifth issues, appellants contend they are entitled to a new
trial because the trial court permitted improper and incurable arguments from
appellees’ counsel. After reviewing legal principles related to arguments of counsel,
we address each issue in turn.
1. Legal Principles
Error regarding improper jury argument ordinarily must be preserved by a
timely objection that is overruled. Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d
678, 680 (Tex. 2008). A party waives error by not following up a sustained objection
with a request for an instruction to disregard. Barras v. Monsanto Co., 831 S.W.2d
859, 865 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (citing Standard Fire
Ins. Co. v. Reese, 584 S.W.2d 835, 840–41 (Tex. 1979)). Typically, retraction of the
argument or an instruction from the court can cure any probable harm. Penalver, 256
S.W.3d at 680.
However, in “rare instances,” the probable harm or prejudice cannot be cured,
and a complaint may be made even though no objection was timely made. Id. “To
26
prevail on a claim that improper argument was incurable, the complaining party
generally must show that the argument by its nature, degree, and extent constituted
such error that an instruction from the court or retraction of the argument could not
remove its effects.” Id. at 680–81. The party must show that, based on the record as
a whole, “the offensive argument was so extreme that a juror of ordinary intelligence
could have been persuaded by that argument to agree to a verdict contrary to that to
which he would have agreed but for such argument.” Phillips v. Bramlett, 288
S.W.3d 876, 883 (Tex. 2009) (quotation omitted). We consider the argument in light
of the whole case. Haryanto v. Saeed, 860 S.W.2d 913, 919 (Tex. App.—Houston
[14th Dist.] 1993, writ denied) (citing Reese, 584 S.W.2d at 839).
An argument that strikes at the appearance of and the actual impartiality,
equality, and fairness of justice rendered by courts is incurably harmful. Penalver,
256 S.W.3d at 681. Examples of incurable arguments include (1) appeals to racial
prejudice; (2) unsupported, extreme, and personal attacks on opposing parties and
witnesses; and (3) unsupported accusations of the opposing party manipulating a
witness. See id.
2. Race and Gender
In their third issue, appellants contend that appellees’ counsel made “improper
and prejudicial jury arguments [that] clearly accuse Appellants and their counsel of
race and gender prejudice.”
During voir dire, one of the venirepersons referred to her prior experience in
a lawsuit when she trained a man for a job who “ended up making three times more”
than her. Appellees’ counsel responded, “Well, it’s funny you bring that up because
on my fear list—on my fear list that I write before I talk to every jury panel, I have
on here there are studies where woman are awarded for the same injuries less money
than men.” Later, counsel asked a venireperson, “I mean, because it goes back to
27
what we talked about, you know, like a woman—there’s studies that show a
woman—her damages are usually less than a man for the same injuries, and
sometimes it’s like if someone is—does it matter if my client is African-American?”
Appellees’ counsel circled back to this topic during closing arguments: “We
don’t want their 4 or 5 million dollars. That’s not fair. Because it’s a woman, she
should get less money? Because she’s African American, she should get less money?
No. We’re going to fight because we believe in the jury system.” After a little more
argument about how appellants’ “cherrypicked certain depo clips and want to fool
you,” appellants objected and claimed that appellees’ counsel was “misrepresenting
that I am misrepresenting the evidence.” The trial court overruled the objection but
told appellees’ counsel, “[M]y bigger issue is that you interjected the fact that she
was African-American and she’s a woman; and I didn’t hear anything on the other
side referring to that as a basis for denying them recovery.” The court asked counsel
to limit his argument to the admitted evidence. Then, appellants moved for a mistrial
“based upon the racial bias” identified by the trial court. The court overruled the
motion. Appellants did not request a retraction of counsel’s statement or an
instruction to disregard.
Viewed in context of the discussion during voir dire about juries awarding
smaller damage awards to women, we agree with appellees that their argument was
not a suggestion that appellants were racist or sexist, but a request of the jurors to
not let implicit racial or gender bias impact their deliberations. It was not an “appeal
to racial prejudice in language clear and strong,” but rather an appeal to impartiality.
See Tex. Empl. Ins. Ass’n v. Haywood, 153 Tex. 242, 245 (1954) (incurable argument
that witnesses shouldn’t have been believed because of their race); see also TXI
Transp. Co. v. Hughes, 306 S.W.3d 230, 245 (Tex. 2010) (harmful error when
counsel repeatedly called attention to a driver’s status as an illegal immigrant; “Such
28
appeals to racial and ethnic prejudices, whether explicit and brazen or veiled and
subtle, cannot be tolerated because they undermine the very basis of our judicial
process.”). To the extent there was confusion about counsel’s meaning of the brief
and isolated statement during closing argument, it could have been cured with a
retraction or instruction to disregard. We overrule appellants’ third issue.
3. “Irrelevant Facts and Personal Attacks”
In their fourth issue, appellants contend that appellees’ counsel’s closing
arguments injected irrelevant facts and personal attacks on appellants. In particular,
appellants complain about counsel’s arguments that appellants (1) wanted a
“discount” on damages; and (2) would not pay the verdict awarded by the jury
because the trial was “just the beginning of a long legal battle.”
During closing arguments, appellees’ counsel used the word “discount” to
apparently suggest that appellants did not want to adequately compensate John for
her damages:
[Appellees’ Counsel]: But I represent to you in 2019, the pain and
suffering and mental anguish of what she’s experienced and is about to
experience is worth 10 to 12 million dollars; and I ask you to consider
it. When I sit down, they’re going to get up there and talk about how,
number one, she doesn’t have it; and, number two, if you do award
money, award like 4 or 5 million dollars. You might as well award zero,
because that’s the cost of doing business for them. Partial justice is no
justice. They just want a discount.
*****
Because it’s lawyer talk. And I understand that. I respect that. I respect
what they have to do. Because they want a discount, and I don’t think
you have to discount a human being’s life. And I ask you to award full
damages.
Counsel also suggested that appellants would not pay the jury’s verdict:
29
[Appellees’ Counsel]: And so, we ask you, as the Harris County jurors,
to judge her today and in the future and award full compensation. His
Honor—His Honor will take care of the rest.
All we’re trying to do is move the money from here (indicating) to here
(indicating). Do you think—do you think they’re going to pay your
verdict like that (indicating)? This is just the beginning of a long legal
battle. Just the beginning.
[Appellants’ Counsel]: Your Honor, I object. This is improper in
closing argument.
The Court: We can move on, Counselor.
Appellants contend that these statements strike at the appearance of and the actual
impartiality, equality, and fairness of justice rendered by courts. See Penalver, 256
S.W.3d at 681.
Counsel’s statements regarding the “discount” on damages were mere
hyperbole and based on the facts and issues raised by the evidence—that is,
appellants believed the amount of their damages was $10 to $12 million while
appellees believed the amount of damages was less. Wal-Mart Stores Tex., LLC v.
Bishop, 553 S.W.3d 648, 677–78 (Tex. App.—Dallas 2018, pet. granted, aff’d as
modified) (no incurable argument in case involving falling box in store when counsel
used the term “Walmart treatment,” referred to the opposing party’s witness as a “hit
man,” and characterized the plaintiff as a “victim”). “Hyperbole has long been one
of the figurative techniques of oral advocacy. Such arguments are a part of our legal
heritage and language.” Reese, 584 S.W.2d at 836, 838 (Tex. 1979) (mere hyperbole
that the plaintiff “drove by a thousand doctors between the Astrodome and Spring
Branch”). The argument was not improper; but even if improper, it was not incurably
so. See Bishop, 553 S.W.3d at 677–78; see also Reese, 584 S.W.3d at 836, 840–41
(no incurable argument when counsel argued that the plaintiff sought out doctors
who would “build those medical bills up real high” because it would “look good in
front of a jury,” and “Does not a sham or a plot evolve out of all of this?”).
30
Assuming for the sake of argument that counsel’s suggestion that appellants
would not pay the jury’s verdict without a “long battle” was improper, it was not the
type of argument that has been held incurable. Compare Circle Y of Yoakum v.
Blevins, 826 S.W.2d 753, 759 (Tex. App.—Texarkana 1992, writ denied) (incurable
argument claiming that defense counsel manufactured evidence), and In re Munsch,
614 S.W.3d 397, 402 (Tex. App.—Houston [14th Dist.] 2020, orig. proceeding)
(“The use of epithets such as ‘liar,’ ‘fraud,’ ‘faker,’ ‘cheat,’ and ‘imposter’ are
recognized as incurable.”), with Metro Transit Auth. v. McChristian, 449 S.W.3d
846, 855–56 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (no incurable
argument by referring to opposing counsel’s argument with question, “What kind of
snake oil is he selling you?”). Counsel’s argument was not an unsubstantiated attack
on the integrity or veracity of a party or counsel, but rather, it was derived from the
ordinary course of proceedings in many cases when, as here, a defendant appeals
and supersedes the judgment. See Tex. R. App. 24.1. Retraction of the argument or
an instruction to disregard could have cured any probable harm. We overrule
appellant’s fourth issue.
4. Attorney’s Fees
In their fifth issue, appellants contend that appellees’ counsel improperly
“referenced attorneys’ fees as part of the damages, or as something the jurors could
(and should) consider in determining the amount of any damage awards.”
During voir dire, a venireperson asked appellees’ counsel, “But are—y’all
have a contingency on the amount awarded that the lawyers get?” Counsel answered,
“Yes. . . . And I rise and fall with—if I lose, I get zero.” Appellants moved for a
mistrial, contending that counsel tainted the jury, and the potential jurors would want
to award more money knowing that part of the recovery would go to the lawyers.
The trial court denied the motion.
31
Later during voir dire, another venireperson asked about attorney’s fees: “If
you win, how much money are you going to make?” Before counsel could answer,
the court gave a lengthy instruction to the venire, in relevant part:
So, the only thing you’re—I’m not going to ask you any questions about
attorney’s fees. . . . You’re not going to be asked to consider anything
about attorney’s fees in this case. I’m going to ask you—like I said
before, I don’t—I’m going to ask you some questions; and I’m going
to ask you to answer those fact questions, usually about who—what
happened, who caused it, and what the damages are. And you’re going
to have to come to a reasonable amount based on the evidence about
what the appropriate answers are in concert with all the other jurors.
You should only be guided by the evidence admitted in this court. If
you’re considering other things other than the evidence in court, then
we should know that because it wouldn’t be fair to the people in trial, I
mean, here today—either party. And so, that’s the purpose of asking
these questions.
Later during the same day, appellants again moved for a mistrial, which the trial
court denied. The court told appellants they were entitled to examine the venire on
the issue of attorney’s fees to discover any bias or prejudice. Appellants did not do
so.
During closing argument, appellees’ counsel said, “But in our legal system
you equate pain and suffering and mental anguish with dollars, with money. And I
know people get cynical. How much are the lawyers going to make? You know, this
is just a free for all. I get that. I have heard it all.” About ten minutes later, appellants
moved for a mistrial. The court denied the motion, explaining, “The Court provides
instructions that they’re not to consider attorney fees. I don’t think that he asked
them to consider attorney’s fees. I think you said not to consider it, although I know
the context was a little bit different.”
Appellants cite no analogous case to support their argument on appeal, and
we have found none. A review of the whole record, including voir dire and closing
32
arguments, does not support appellants’ argument that appellees’ counsel’s
responses to venirepersons’ questions or his rhetorical question during closing
arguments—“How much are the lawyer’s going to make?”—amounted to an
invitation to the jury to consider attorney’s fees as part of damages. The trial court
understood the argument as one to not consider fees, i.e., counsel asked the jury to
not be “cynical” and consider fees when determining how much to compensate
appellees for their injuries. The topic had been raised during voir dire because
venirepersons asked, unprompted, about fees. The trial court instructed the venire
that they would not consider fees, allowed appellees’ counsel to conduct voir dire
on the topic, and expressed the intention during closing argument to inform the jury
again that they should not consider fees when assessing damages.
Under these circumstances, we cannot conclude that the “casual and incidental
reference” to attorney’s fees during closing argument rises to the rare level of
incurable argument that probably caused an improper judgment. See Isern v. Watson,
942 S.W.2d 186, 199 (Tex. App.—Beaumont 1997, writ denied) (no incurable error
when the plaintiff’s counsel referenced insurance during closing argument); see also
Univ. of Tex. at Austin v. Hinton, 822 S.W.2d 197, 200–01 (Tex. App.—Austin
1991, no writ) (no incurable error during voir dire when the plaintiff’s counsel said,
in response to questions and concerns from venirepersons, that the plaintiff had
insurance at the time of the accident but would be required to repay the insurance
company for amounts recovered from the defendant); St. Louis. Sw. Ry. Co. v.
Gregory, 387 S.W.2d 27, 33 (Tex. 1965) (no incurable error during voir dire when
the defendant’s counsel said, “There is no insurance here,” as a spontaneous reaction
to the venireperson’s answer, even if the statement was interpreted by venirepersons
that the defendant did not have liability insurance). We overrule appellants’ fifth
issue.
33
C. Cumulative Error
As part of their issues regarding appellees’ counsel’s allegedly improper
arguments, appellants contend that the statements cumulatively, if not singularly,
warrant a new trial.
In cases involving improper arguments, we consider the cumulative effect of
all the statements to determine if they are so prejudicial that they are incurable. See
S. Pac. Co. v. Hubbard, 156 Tex. 525, 532 (Tex. 1956). The only potentially
erroneous arguments—implying that appellants would challenge the jury’s verdict
and referring to attorney’s fees—were mild, brief, and isolated. Appellants’
authorities involved more frequent and prejudicial comments. Cf., e.g., Nat’l Union
Fire. Ins. Co. of Pittsburgh, Penn. v. Kwiatkowski, 915 S.W.2d 662, 665 (Tex.
App.—Houston [14th Dist.] 1996, no writ) (harmful error from many comments
about irrelevant and unsubstantiated bad behavior, such as intimidating witnesses,
occurring during one-day trial). Although the jury awarded damages consistent with
appellees’ request, the jury also rejected appellees’ request to find New Prime
grossly negligent and award punitive damages. Considering the whole record, the
state of the evidence, the strengths and weaknesses of the case, and the verdict, we
conclude that the jury “carefully considered its verdict and the evidence.” See Reese,
584 S.W.2d at 841.
Appellees’ counsel’s statements, considered cumulatively, do not warrant a
new trial.
III. NEGLIGENT ENTRUSTMENT
In their twelfth issue, appellants contend that the evidence is legally
insufficient to support the jury’s finding of negligent entrustment and that the trial
court erred by admitting evidence of Alonzo’s driving record.
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A. Sufficiency Challenge
Appellants contend that the evidence is legally insufficient to support the
jury’s affirmative answer to a question about New Prime’s liability for negligent
entrustment. New Prime, however, stipulated to its vicarious liability for Alonzo’s
negligence.7 The jury did not find New Prime grossly negligent and did not award
punitive damages. Thus, the trial court’s judgment is fully supported by the
stipulated vicarious liability theory, independent of the negligent-entrustment
finding. Under these circumstances, we do not address the sufficiency of the
evidence to support the negligent-entrustment finding. See Townley v. Lanier, No.
14-19-00447-CV, 2021 WL 2325082, at *4 (Tex. App.—Houston [14th Dist.] June
8, 2021, pet. filed) (mem. op.) (“If we conclude that the judgment may be upheld on
either one of the independent theories of recovery, we need not address any alleged
error pertaining to the other claim.”) (citing Boatland of Hous., Inc. v. Bailey, 609
S.W.2d 743, 750 (Tex. 1980); see also White v. Zhou Pei, 452 S.W.3d 527, 541 (Tex.
App.—Houston [14th Dist.] 2014, no pet.).
B. Evidentiary Matters
Appellants contend that the trial court erred by admitting evidence of (1)
Alonzo’s traffic collisions and citations that occurred more than six years before the
accident in this case and (2) irrelevant accidents and citations related to, among other
things, administrative violations, parking tickets, minor parking lot and loading dock
collisions, collisions related to wildlife, and collisions caused by others. Appellants
7
The negligent-entrustment question was submitted to support appellees’ claim of gross
negligence to justify an award of punitive damages. See Mobil Oil Corp. v. Ellender, 968 S.W.2d
917, 921 (Tex. 1998) (“A corporation may be liable in punitive damages for gross negligence only
if the corporation itself commits gross negligence.”).
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contend, without substantive analysis, that the evidence “clearly impacted the
damages awarded in this case and caused the rendition of an improper judgment.”
The erroneous admission of evidence requires reversal only if the error
probably, though not necessarily, resulted in an improper judgment. Nissan Motor
Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). We will consider the entire
record, but the complaining party must demonstrate that “the judgment turns on the
particular evidence admitted.” Id. The erroneous admission of evidence is harmless
if it is merely cumulative. Id.; see also Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608,
617 (Tex. 2000) (“This court ordinarily will not reverse a judgment for erroneous
ruling on admissibility of evidence when the evidence in question is cumulative and
not controlling on a material issue dispositive to the case.”). “But beyond that,
whether erroneous admission is harmful is more a matter of judgment than precise
measurement.” Armstrong, 145 S.W.3d at 144.
Assuming without deciding that the evidence was inadmissible, we begin the
harm analysis by reviewing the jury’s verdict. See Reliance Steel & Aluminum Co.
v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008). Although the jury could have used this
evidence to find that New Prime negligently entrusted the vehicle to Alonzo, the jury
did not subsequently find that New Prime was grossly negligent. New Prime
admitted to liability, as discussed above, so the jury’s finding about negligent
entrustment was immaterial to the trial court’s judgment because the jury’s answer
could not alter the effect of the verdict. Cf. City of Brownsville v. Alvarado, 897
S.W.2d 750, 752 (Tex. 1995) (improper submission of issue is generally harmless if
jury’s answer cannot alter the effect of the verdict).
Although one of appellees’ lawyers referred to this evidence when urging the
jury to find New Prime negligent, another of appellee’s lawyers who addressed
John’s pain and suffering and mental anguish did not discuss Alonzo’s driving
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history. That is, no connection was made between Alonzo’s driving history and
appellees’ damages.
Finally, the complained-of evidence was not particularly prejudicial: some old
speeding tickets, more recent non-vehicular collisions, logging discrepancies, and
the like. In light of the significant evidence of appellees’ pain and suffering and
mental anguish, discussed above, we cannot conclude that the judgment turns on the
evidence of Alonzo’s driving history. Cf. Reliance Steel & Aluminum Co. v. Sevcik,
267 S.W.3d 867, 873 (2008) (evidence that the defendant had $1.9 billion in sales
carried “a very real potential for prejudice” in a case where the defendant admitted
liability and the “biggest issue” concerned damages (quotation omitted)).
Admission of this evidence did not probably result in the rendition of an
improper judgment. We overrule appellants’ twelfth issue.
IV. CONCLUSION
Having overruled each of appellants’ issues we affirm the trial court’s
judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Wise, Bourliot, and Zimmerer (Wise, J., dissenting).
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