Key Points

  • The Ninth Court of Appeals held that a survival plaintiff seeking damages for a decedent's conscious physical pain must introduce evidence of the pain's nature, severity and duration to survive a no-evidence challenge.
  • The court held that a paramedic's testimony that the decedent withdrew from pain during an IO procedure, together with her opinion that he could experience pain, was more than a scintilla of evidence.
  • The court concluded that the Texas Supreme Court's plurality opinion in Gregory v. Chohan did not resolve the case because it did not directly address damages for conscious physical pain.
  • Because the trial court directed a verdict rather than submitting the issue to the jury, remittitur was unavailable, and the court remanded for a new trial on liability and damages under Texas Rule of Appellate Procedure 44.1(b).
  • The court did not reach the mental anguish, funeral expense, exemplary damages or reopening issues.

A Texas appeals court on Nov. 5 revived a lawsuit by the estate of a 75-year-old man struck and killed by a car in Conroe. The court held that a paramedic's testimony that he pulled away in pain during a procedure that involved drilling into his bone was enough evidence of conscious suffering to put the question to a jury.

The Ninth Court of Appeals in Beaumont reversed a directed verdict that a Montgomery County trial judge had granted to driver Arnett Eugene Easley at the close of the evidence. Justice Kent Chambers wrote the opinion for a panel that also included Justices Johnson and Wright. The court ordered a new trial on both liability and damages.

Along the way, the court adopted for physical-pain damages a rule that Texas courts had applied mainly to mental anguish. A plaintiff, Chambers wrote, "must introduce evidence of the nature, severity and duration of the plaintiff's physical pain so as to enable the jury to determine an amount that would be fair and reasonable to compensate the plaintiff for such damages." The panel then held that a record showing no more than about two minutes of reaction to pain met that standard.

According to the opinion, Willard Radcliffe left a play rehearsal in downtown Conroe around 8:30 p.m. on Jan. 4, 2023, and was crossing the street when a vehicle driven by Easley struck him. He was pronounced dead at the hospital at 9:51 p.m.

Lynn Clark, as representative of Radcliffe's estate, sued Easley under the Texas survival statute. That statute lets an estate pursue the claim the injured person held and recover the damages he sustained while alive. The petition sought damages for Radcliffe's conscious physical pain and mental anguish, for funeral expenses, and for exemplary damages based on Easley's alleged gross negligence in driving while intoxicated.

At the end of the evidence, Easley filed five motions for directed verdict. The trial court denied one, which argued Radcliffe was negligent for crossing outside a crosswalk, and Clark dropped her claim for medical expenses in response to another. When the judge indicated an inclination to grant the motions on pain and mental anguish and on exemplary damages, Clark moved to reopen the evidence. The judge denied that request and granted the remaining three motions, which covered funeral bills, pain and mental anguish, and exemplary damages. The judge then discharged the jury and signed a judgment that Clark take nothing.

The trial judge found the evidence "insufficient to submit the issues of noneconomic damages to the jury based upon the Supreme Court's opinion from 1996 in Saenz," a decision requiring evidence to justify the amount of a mental-anguish award. The judge also referred to Gregory v. Chohan, a 2023 Texas Supreme Court decision on reviewing the size of noneconomic damages awards that produced only a plurality opinion.

On appeal, Clark argued the trial court relied on Gregory and misapplied it. The panel wrote that Gregory "does not resolve the question before us in this case, not only because it is a plurality opinion, but also because it does not directly address damages for conscious physical pain." The court noted that the trial judge, though discussing Gregory, ultimately relied on Saenz and other authorities, and that Easley never cited Gregory on appeal as support for the directed verdict.

The panel agreed with the trial judge that Saenz requires evidence supporting both the existence and the amount of each element of damages. Chambers wrote that "The rationale behind the rule requiring evidence of the nature, severity and duration of mental anguish also applies in the context of its oft-conjoined element, physical pain."

The key evidence came from Megan Powell, a captain paramedic with the Montgomery County Hospital District. Powell testified that Radcliffe was never awake while she treated him and did not respond to a sternal rub, a painful stimulus she applied when she first arrived. His score on the Glasgow Coma Scale, which runs from 3 to 15, was 6.

But when Powell's crew gave Radcliffe an IO, in which a paramedic drills a needle into bone to deliver fluids and medication, "he was kind of moving around, withdrawing from [the IO]," she testified. She called the reaction "very unusual…that he reacted to pain. I've done countless IOs, but I could probably count on one hand the amount of people that have reacted to pain." She also testified that he had "the ability to have some kind of neuro function to know what's going on and experience pain."

Under cross-examination, Powell agreed that the only time she saw Radcliffe do anything a person in pain would do was during the brief procedure. Medical records placed the IO procedure at 8:53 p.m. and a conventional IV at 8:55 p.m. A theater acquaintance who called 911 testified that "[i]f he was conscious, he was in pain," and on the recording of that call Easley could be heard saying Radcliffe was awake and breathing.

The panel held that "the jury could have reasonably found that Radcliffe consciously experienced pain even if his responses to painful stimuli were inconsistent and lasted no more than 2 minutes during the IO." Easley had argued that Radcliffe's hospital pain score was always zero and that his posturing in the emergency room was merely a reflex. The court answered that "these additional facts may have assisted the factfinder in evaluating damages," but "they do not affect the legal sufficiency of the other evidence."

The opinion contrasted the case with a ruling in April by the court of appeals in San Antonio. That court reversed a $24 million jury award for pain and mental anguish as excessive because the decedent's suffering "lasted for less than an hour," while finding the evidence sufficient to support some award. The San Antonio court suggested a remittitur, and the appellee accepted it.

No such option existed for Radcliffe's estate, the Beaumont court wrote, "because the trial court directed a verdict and did not allow the issue to be submitted to the jury." In a footnote, the panel quoted a State Bar of Texas pattern jury charge comment saying that "separate submission of those items may avoid the need for a new trial if a sufficiency challenge is upheld on appeal."

Parth S. Gejji of Beck Redden LLP, joined by Terry & Thweatt, P.C., represented Clark on appeal. Michael W. Cooper of Nistico, Crouch & Kessler, P.C. represented Easley.

The court sustained Clark's first issue as to conscious physical pain only. It did not decide whether the evidence supported mental anguish, funeral expenses or exemplary damages, or whether the trial judge should have reopened the evidence. Because Texas appellate rules bar a separate trial solely on unliquidated damages when liability is contested, the case returns to the 284th District Court in Montgomery County for a new trial on liability and damages.