Justice for the People IV
http://www.txinjurylawblog.com/2008/02/articles/legal-topics/justice-for-the-people-iv/
Right to trial by jury
Constitutional right to a jury trial.
Defending a large jury verdict
Brief in Support of Judgment
Texas Law and Jurisprudence
The right to trial by jury is a fundamental right granted to all United States citizens by the Seventh Amendment of the United States Constitution[1] and to all Texas citizens by Article I, Section 15[2] and Article 5, Section 10 of the Texas Constitution.[3] The right to trial by jury was so sacred to our founding fathers that it almost prevented ratification of America’s Constitution.[4] Only after a promise to add a bill of rights, which included a right to trial by jury, was the Constitution ratified.[5]
The fundamental right to trial by jury is even more precious in Texas. In the Texas Declaration of Independence, Grievance Three complains that the Mexican Government “has failed and refused to secure, on a firm basis, the right of trial by jury that palladium of civil liberty, and the only safe guarantee for the life, liberty, and property of a citizen.”[6] To safeguard against this intrusion into a citizen’s individual rights, the Texas Constitution references the right to trial by jury in six sections, in contrast to the one reference in the United States Constitution.[7] The right to trial by jury is a sacred right in Texas jurisprudence.
Texas courts have applied this right by conducting strictly limited review of unliquidated damage awards.
Recently the Tyler Court of Appeals affirmed a damage verdict for future impairment and loss of earning capacity. It stated the following: “It is not within our power to second-guess the fact-finder unless only one inference can be drawn from the evidence. See State v. $11,014.00, 820 S.W.2d 783Plainview Motels, Inc v. Alston, 127 S.W.3d 21(Tex.App.—Tyler 2003, pet. denied)[8] In that case, the plaintiff produced evidence that the injury to his back impaired his ability to sleep and reduced his ability to run and bicycle with his kids. The Tyler Court of Appeals held this to be sufficient evidence to support the jury’s award for future physical impairment.[9], 785 (Tex.1991). If there is more than a scintilla of evidence to support the finding, the evidence is legally sufficient. See Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993)”.
A damage determination must not be disturbed except in the extreme circumstance of manifest injustice. Both the Trial Court and Court of Appeals can only review a claim for excessive damages using the factual sufficiency standard. Pope v. Moore, 711 S.W.2d 622 (Tex. 1986) See Flanigan v. Carswell, 159 Tex. 598, 324 S.W. 2d 835,840 (1959)
The trial court and Court of Appeals must not second guess a jury’s deliberation unless “…it is so contrary to the overwhelming weight of the evidence that the verdict is clearly wrong and unjust.” Maritime Overseas Corporation v. Richard Ellis, 971 SW.2d 402(Tex. 1998), (affirming a $12,600,000 verdict).
The mere size of a jury verdict alone is not justification for supplanting the opinion of a court over that of a jury. Columbia Med. Ctr. Of Las Colinas v. Bush, 122 S.W. 3d 835 (Tex. App—Fort Worth 2003, pet. denied) (Indicating that the jury may render a $10,000,000 award for future medical expenses based on plaintiff’s condition at the time of trial and not based on expert testimony).
The same strong language, supporting a jury damage award can be found in: Harris v. Balderas, 949 S.W.2d 42, (Tex. App.—San Antonio 1997, no writ)[10]; Loftin v. Texas Brine Corp., 720 S.W. 2d 804, 805 (Tex. 1986); Cain v. Bain, 709 S.W2d. 175, 176 (Tex.1986)[11]; Southwest Texas Coors v. Morales, 948 S.W. 948, 950 (Tex. App.—San Antonio 1997, no writ). [12]
Cases overturning jury damage awards are easily distinguishable
In Wharf Cat Inc v. Cole, 567 S.W.2d 228, (Tex App—Corpus Christi 1978, writ ref’d nre) the court overturned a jury award for future earning capacity when the plaintiff, retired for seven years, testified that he didn’t want to go to work. The court acknowledged the Gold Standard of judicial review pronounced by Justice Calvert in 38 Texas L. Rev. 361, limiting review to “No Evidence” and “Insufficient Evidence” points of error. The court specifically reaffirmed the limited review of a jury’s damage award. “In disposing of ‘remittiture’ points, an appellate court…considers only evidence that is favorable to the award.” P230 “Because personal injury damages are unliqidated…the jury has large discretion…” P233
A jury award for $1,700,000 for mental anguish, supported only by the testimony of the plaintiff, over the death of an estranged adult daughter was determined to be excessive in Hawkins v. Walker 2007 TXCA9 09-96-287. The court distinguished the absence of evidence in this case from an opinion sustaining a verdict of $10,000,000 for loss of companionship and mental anguish caused by the death of two brothers.[13]
Bentley v. Bunton, 94 S.W. 3d 561, 605-607, (Tex 2001) is a decision concerning $7,000,000 award for mental anguish related to libel of a public official from a radio personality. No associated physical harm was involved and little evidence of anguish. The call as to whether the plaintiff had a viable cause of action was close. The court worried about the dampening effect of 1st amendment rights if such an award was allowed to stand.
http://www.bailey-law.com/lawyer-attorney-1215828.html
[1] U.S. Const. Amend VII.
[2] Tex. Const. art. I, 15, (“The right of trial by jury shall remain inviolate.”)
[3] Tex. Const. art. V, 10.
[4] Joseph Story, Commentaries on the Constitution of the United States 114 (Ronald K. Rotunda & John E. Nowak eds., Carolina Academic Press 1987) (1833).
[5] Id. at 115.
[6] The Declaration of Independence (Repub. Tex. 1836), reprinted in H.P.N. Gammel, The Laws of Texas 1822-1897, at 1065 (Austin, Gammel Book Co. 1898).
[7] Tex. Const. art. I, 10, 15, 15a: art V, 10, 13, 17; art XVI 19 (repealed Nov. 6 2001)
[8] The Court overturned a small amount of the award related to physical impairment of plaintiff’s son. Unlike the case before this Court, there was no evidence of any kind reflecting loss of physical activities for the son.
[9] Id at 39
[10] “ In assessing personal injury damages, we note that courts should use great restraint in overturning a jury verdict on sufficiency of the evidence. Carr, 884 S.W.2d at 800. The jury necessarily has great discretion in fixing the amount of the damage award. Bundick v. Weller, 705 S.W.2d 777, 783 (Tex.App.---San Antonio 1986, no writ), citing Roberts v. Tatum, 575 S.W.2d 138 (Tex.Civ.App.---Corpus Christi 1978, writ ref'd n.r.e.).” p 44
[11] “When reviewing a jury verdict to determine the factual sufficiency of the evidence, the court of appeals must consider and weigh all the evidence, and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985); In Re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951).” p 176
[12]“Matters of pain and suffering, which are necessarily speculative and not subject to precise mathematical calculations, are particularly within the province of the jury to resolve and to determine appropriate amounts. Lee v. Huntsville Livestock Servs., Inc. 934 S.W.2d 158, 160 (Tex.App.---Houston [14th Dist.] 1996, no writ); Mercy Hosp. of Laredo v. Rios, 776 S.W.2d 626, 636 (Tex.App.---San Antonio 1989, writ denied). In determining future medical expenses, the jury is granted wide discretion, and may consider the nature of the injury, the medical care rendered in the past, and the condition of the injured party at the time of the trial. K Mart Corp. v. Rhyne, 932 S.W.2d 140, 144 (Tex.App.---Texarkana 1996, no writ); Beverly Enter. of Texas, Inc. v. Leath, 829 S.W.2d 382, 386 (Tex.App.---Waco 1992, no writ)” p 952
[13] General Chemical Corp. v. De La Lastra, 815 S.W. 750, 753-54 (Tex. App.—Corpus Christi 1991), aff’d in part, rev’d in part on other grounds, 852 S.W. 916(Tex. 1993)
Jury award for damages
1. Physical pain and mental anguish in the past. $1,000,000
2. Physical pain and mental anguish that, in reasonable probability, Matthew Roberts will sustain in the future. $2,250,000
3. Loss of earning capacity sustained in the past $60,000
4. Loss of earning capacity, that in reasonable probability, Matthew Roberts will sustain in the future. $600,000
5. Disfigurement sustained in the past. $10,000
6. Disfigurement that, in reasonable probability, Matthew Roberts will sustain in the future. $200,000
7. Physical impairment sustained in the past. $1,700,000
8. Physical impairment, that in reasonable probability, Matthew Roberts will sustain in the future. $15,000,000
9. Medical care in the past. $463,285.29
10. Medical care that, in reasonable probability, Matthew Roberts will incur in the future. $60,000
Summary of Damages
Background:
Matthew Roberts is a war hero. He served four years in the Air Force and did tours of duty in Afghanistan and Iraq. He served on cargo planes in combat situations, dropping humanitarian aid to the Afghans and troops in Iraq. At trial several commendations from the Air Force were present and one was read to the jury explaining how he put out a fire on a plane at great personal risk. This act of heroism saved the plane and several of his comrades. Matthew was a tough, active, twenty-five year old man. He worked on cars, hunted, fished, and rough-housed with his friends and brother. He was the go-to man in the family if something needed to be done. He either wanted to re-enlist in the Air Force or become a fireman. In other words, he intended to live a life requiring physical prowess, courage and service to his community.
Damages:
Pain and anguish:
Objective medical findings as well as detailed testimony from
Matthew Roberts and those who know him best revealed the hell visited upon him as a result of this wreck. He can no longer get a good night’s sleep or live a day without pain. His physician responded to the question of future pain by testifying that Roberts will never be normal. The lady who saved his life, Janna Moore, at the accident scene provided the jury with graphic details of the horror Matthew went through. Hospital photos and family testimony provided intimate evidence of his pain.
Earning capacity:
Matthew was considering re-enlisting in the Air Force. His take-home would have been around $38,000 a year, with vacations, early retirement and insurance. He also considered, (and had passed the qualifying test), becoming a fireman with an initial take home pay of around $35,000 with benefits. Instead he has a job making between $25,000 and $28,000 with no benefits. His doctor has testified Roberts will never be able to do the type of work for which he was qualified and has a desire to do. His testimony about not being able to “drop a transmission” from his truck by himself again demonstrates his inability to do the type of occupational tasks for which he was suited.
Disfigurement:
Matthew exposed his arms to the jury so that they could see the scars that tracked down them. Photographs of this defacement of his appearance were introduced into evidence. He always wore a long sleeve shirt to hide his disfigurement because it bothered him. His left arm will not straighten and he has devised the technique of hooking his thumb in his belt to hide the deformity of his arm.
Physical impairment:
The tragedy of the injuries to this young man is the dramatic change in his life-style. He can no longer hunt doves or deer with his buddies because his left arm will never be able to handle a rifle or shotgun. He can’t throw a tent in the back of his pickup and take off with his friends to camp out. He will no longer be able to participate in water sports. He can’t do the mechanic work he once took pride in doing for himself, his family or friends. Matthew’s family relied upon him for support, especially for duties requiring his physical abilities. His capacity to take care of them as he had in the past is over. Ironically, if Matthew had been an inactive person who didn’t contribute so much to his family and community, he would have survived this accident with less dramatic effect.
Medical expenses:
The amount awarded the jury is well within the evidence and supported by medical records and testimony of his treating physician
Medical testimony supporting Jury award
Dr. Shawn Mansour
Dr. Mansour, a board certified orthopedic trauma surgeon, testified as the lead doctor on Roberts’ treating team of physicians. RR3-36
Roberts suffered “…an open segmental left ulna fracture, with a comminuted radial head fracture, with a disc location of the left elbow, left closed distal radius fracture of the wrist…an open fracture of his distal humerus as well and a closed midshaft femur fracture…basically…he had severe broken bones about his elbow on the left with a dislocation, as well as . . . severe fractures about the left wrist. An open fracture implies that the bone has come through the skin, and he had several of those…he did have a midshaft, (left), femur fracture as well.” RR3-37-38
Roberts went through a series of operations by his team of doctors, who valiantly addressed his life-threatening, crippling conditions. RR3-7-11
Roberts will likely need future surgeries for his injuries, including joint replacement, hardware removal and complications from arthritis caused or excited by the trauma. RR3-43-45
Dr. Mansour testified that Roberts’ dreams of serving in the Air Force again, or joining the Fire Department, can no longer be realized because of the permanent effects of his injuries. RR3-45-46
Dr. Mansour was able to give a partial forecast of future costs but did not know hospital and anesthesia costs. RR3-46 Of course the jury had ample evidence of past costs from which to make a determination.
Dr. Mansour testified that Roberts was a hard-working, compliant patient but when asked if he would “…suffer pain and some level of disability the rest of his life?” The doctor answered: “Absolutely. Absolutely. He will never be normal” RR3-46-47
It is important to note that none of this testimony was challenged by cross examination or by testimony of another doctor. No challenge was made as to Dr. Mansour’s qualifications. His testimony is consistent with the medical records and bills.
A summary of medical records and bills, which were introduced into evidence, are attached to this brief as exhibit A and B.
Testimony of Matthew Roberts and witnesses
Matthew Roberts
Prior to the accident, Matthew Roberts had unlimited physical abilities to enjoy activities with family and buddies including: camping; hunting; fishing; riding four wheelers; fixing their four wheelers and trucks; water skiing; fishing; tubing etc. RR3-12-13
He served four years active duty in the Air Force, receiving an honorable discharge and several commendations. RR3-13-14 He flew 150 combat missions in Afghanistan and Iraq. RR3-14-15; 16
Matthew had an offer from the Air Force to re-enlist. P15 He also was accepted in the Tyler Fire Department. RR3-16 The rate of pay for these two career opportunities was between thirty-five and thirty-eight thousand dollars a year with substantial benefits. RR3-16 The job he is qualified to do now pays twenty to twenty-five thousand dollars per year with no benefits and no future. RR3-29
The condition in which he found himself after the accident was horrendous. RR3-18 He suffered pain and uncontrollable panic. RR3-23-27 He is disabled from doing those things he used to do with friends and family.RR3-27-28
He knows he will never be able to get back on career track and will never be through with treatment or the physical effects of the accident. RR3-28
Patty Roberts (Matthew Roberts’ mother)
Mrs. Roberts went through several photos of her son.
She testified that the family activities centered on camping. RR3-50
Matthew’s little brother Michael looked up to him. Photos were shown of Michael and Matthew putting on Camo paint when Matthew returned from survival training. RR3-50-51
One photo shown was Matthew’s little brother helping him out of a swimming pool. This was significant on many levels. Matthew was a competitive swimmer. He and his little brother rough-housed constantly. Now his little brother has to help him out of the swimming pool because he can not do so on his own. Matthew’s younger brother looked up to him but now the roles are reversed. He can no longer be the competitive athlete and hero to his brother as he was in the past. RR3-51
Matthew was always big and muscular. Splitting logs was something Matthew did for the family, but also just for the fun and stress relief. Now he can’t do this chore. RR3-52
Before the accident Matthew was positive about his options to re-enlist in the military or become a fireman. RR3-52
Mrs. Roberts testified about the horrible appearance of her son, (intubated, external fixators, metal coming out of both arms, swollen face, cuts etc.), when she first arrived at the hospital in detail that only a mother could express. RR3-57-58
The family stayed with Matthew day and night. He was in such pain that his condition made him weak and vulnerable. It took her “strong son and turned him into this scared little boy.” RR3-65-69
After almost a month he was discharged from the rehab hospital in a wheelchair for a few hours at the mall. This young man, already lean and in shape, lost so much weight, Mrs. Roberts had to bring him shorts with an elastic waist for him to wear. He was finally released from the hospital the following Friday, after twenty-nine days, to his family home. RR3-69-70
All of Matthew’s aspirations for work, family and activities are now beyond his reach. Mrs. Roberts testified some year and one-half after the accident that “…the confident young man that we had before the accident is now kind of floundering with where to go.” RR3-71-72
Janna Moore, (Good Samaritan)
She discovered Matthew Roberts abandoned in the road and stopped to help him. RR4-14
She told her son on the cell phone to call an ambulance. Matthew was lying in a pool of blood with twisted arms and legs. He asked her to call his mother but couldn’t remember her number. He was alert and awake the entire time. RR4-14-16
Brandon McIntyre, (Matthew Robert’s friend)
Brandon McIntyre has known Matthew since the eighth grade. RR4-34
Brandon works both as a plumber and Constable. RR4-34
He spoke highly of Matthew’s past prowess and described how this accident has destroyed his capabilities and aspirations:
“Before the accident, there was no problem. If you got in a rough spot, Matt was a good person to have with you. He’s a big, strong guy; and could help you get your four-wheeler out of a hole if you need to.
Now, I actually purchased a four-wheeler that’s a side-by-side, just for the simple fact that Matt can still go with us and ride four wheelers because he can’t do it like he used to could. And even now, when he does go, he pays for it dearly the next day. His body is extremely sore; and he can’t do it for long periods of time.”
******
“ . . .We bow hunted a lot. We shot bows constantly. We went into bow tournaments. Mr. Roberts, Matthew’s dad, also went to the bow tournaments with us. That was something he could do with his family and his friends; and he’ll no longer be able to do because of the accident.
I’ve been shooting bows for forever, since probably eight or nine years. Mat got into it way after I did. And it made me so mad when the first tournament he went to, he shot almost a high a score as I did. He was just naturally good at it. And now he’ll never be able to shoot a bow again.”
******
“…we dove hunted every season. He can’t operate a shotgun like he used to be able to. He can’t swing one because with his left arm he can’t hold the weight of a shotgun or a rifle to be able to do that anymore.
*******
“I’m not mechanically inclined either. I always called Matt. He was the person I depended on to do my mechanic work. He just can’t do it like he used to could. He can’t do anything with his left hand. I mean, he has a problem. Imagine putting a nut or a bolt. He can’t do that because his hands don’t work properly.
Just probably a few months ago we changed the brakes on my four-wheeler, and it made him aggravated because he knows I know nothing about mechanic work. And he was having to tell me how to do it because he couldn’t do it himself.”
******
“…Matt was, you know, a big guy when he came out of the military. He’s always been real confident. Now, he’s not. He has physical disabilities that you can see. I mean, you know that does something to your self-esteem. And that’s where he is at right now.”
******
“He has scars on his neck. His left hand, when he’s not wearing a long-sleeve shirt, you can tell by looking at him that there’s something wrong with it. And he doesn’t use it a whole lot in public because he doesn’t want people to see that it doesn’t work properly.”
******
“The best way to describe Matt the first time I saw him was broken…Arms, legs, neck. He was broken.”
******
“Now, we have to take a camper trailer with us so he can have a bed to sleep in. We used to—we would—for example, going to the deer lease, we would just go and sleep in the truck or a tent.
Matt can’t sleep in the truck anymore because if he does, he’ll never get out. A tent, he can’t sleep on the ground just for the simple fact that it’s just going to kill him the next day. His body doesn’t function like a normal person’s should.”
******
“Matt went through a depression after the accident. It’s hard to see your friend depressed. And it affected him a lot. Because everything in his life that he did, he can’t do anymore, you know. Or he can still do some of it, but not properly.
You know, Matt had plans of what he wanted to do for a career. Those plans are gone. He has to plan everything around his disabilities now. That’s just not good.” RR4-35-39
Jo Samford, (Matthew Robert’s Grandmother)
Prior to the wreck Matthew was an “excellent grandson” who took care of his family. “…Matthew was always our go-to person. If we needed something done—and my husband was not in excellent health—and we always called Matthew. We lived on the lake. It might have been a truck that needed working on. It might have been the boat house that needed working on or the boat. Always something. And Matthew was always available for us. RR4-43
She was also taking physical therapy as an outpatient at the same facility as Matthew. She would go to his therapy to encourage him. “He really drove himself. He worked.”
******
“He was in a tremendous amount of pain, just tremendous. You could tell by the way he walked, by the way he moved, he was in continual pain.” RR4-44-45
Later, when Matthew was released, he went to his mom and dad’s. Mrs. Samford testified about the adjustments and difficulty he continued to have.
“…a recliner was the only thing he could sleep in.”
******
“…Somebody had to help him take a shower for the longest. He had trouble sitting on the commode, getting up.”
******
“…it was hard for his ego.”
******
“…he was very depressed.”
******
“…I’m the only one, being in my seventies, slow enough to match his pace when we walked.” RR4-44-46
