United Rentals North America, Inc. v. Pamela Evans, Individually and as Administrator for the Estate of Clark Brandon Davis, and Dominic Jones ( 2020 )

Dissenting Opinion Filed August 18, 2020
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00665-CV
UNITED RENTALS NORTH AMERICA, INC., Appellant
V.
PAMELA EVANS, INDIVIDUALLY AND AS ADMINISTRATOR FOR
THE ESTATE OF CLARK BRANDON DAVIS, AND DOMINIC JONES,
Appellees
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-04449
DISSENTING OPINION
Opinion by Justice Schenck
I join in Justice Evans’s dissent from our denial of reconsideration en banc
insofar as he raises concerns over jury selection. I write separately because, if we
were to rehear this case, I would also see a need to develop the damages issue
appellant raises. I write only briefly to explain why.
Appellant’s brief before this Court challenges the absence of evidence of the
existence of cognizable pain and suffering and the amount of the award. Given the
extremely brief time that elapsed between the time the beams fell on his vehicle and
Mr. Davis’s death, I suspect that all involved with this matter would concede that
the recovery of any damages in a survival action for pain and suffering is a close and
difficult question. E.g., Ruiz v. Guerra, 293 S.W.3d 706, 722 (Tex. App.—San
Antonio 2009, no pet.); Las Palmas Med. Ctr. v. Rodriguez, 279 S.W.3d 413, 417
(Tex. App.—El Paso 2009, no pet.). Whether that fact-bound inquiry would be
worthy of en banc reconsideration standing alone is another matter. Simple
disagreements of the result in any given case, and other like claims of routine panel
error, are not properly the subject of en banc reconsideration. E.g., Kosliek v.
Spencer, 774 F.3d 63, 97 (1st Cir. 2014) (Thompson, J., dissenting). What I do see
as much more concerning, and worthy of full court review, is appellant’s separate
question: the standard by which the quanta of such awards are first made by the fact
finder and then reviewed on appeal.
As I read appellant’s brief to the panel, its challenge is limited to the amount
of the pain and suffering damages awarded. In that effort, appellant cites to Saenz
v. Fidelity & Guaranty Insurance Underwriters, 925 S.W.2d 607 (Tex. 1996). To
be sure, Saenz required affirmative evidence at trial not only of the existence of the
injury “but of its amount” and required “meaningful appellate review” of that
proof. Id. at 614. But Saenz involved a challenge to mental anguish damages, not
physical pain and suffering. These two damage claims have very different pedigrees
and, to my knowledge, no decision from our supreme court has yet applied Saenz’s
heightened appellate review command to pain and suffering awards.
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Still, while I believe it is the place of the supreme court to establish the proper
review standard to govern pain and suffering awards, we are left to borrow the
“shocks the judicial conscience” standard from our friends in San Antonio. Casas
v. Paradez, 267 S.W.3d 170, 185 (Tex. App.—San Antonio 2008, pet. denied). For
all of its charm, that standard more resembles a mood ring than a discernable,
objective legal test. Instead, I had hoped, in other matters, to be permitted to review
pain and suffering awards for sufficiency or excessiveness by means of comparison
of an award to other reported cases involving like facts. Cate v. Posey, No. 05-17-
01216-CV, 2018 WL 6322170, at *5 (Tex. App.—Dallas Dec. 4, 2018, no pet.)
(mem. op.); see also HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 872 (Tex.
App.—Fort Worth 2005, no pet.) (proper to consider other approved awards in
similar cases to determine if award for pain and suffering is excessive); Sunbridge
Healthcare Corp. v. Penny, 160 S.W.3d 230, 250 (Tex. App.—Texarkana 2005, no
pet.) (same). As our panel notes in this case, my effort in this respect is in conflict
with earlier, controlling panel authority and is thus wrong absent en banc
reconsideration. U-Haul Int’l, Inc. v. Waldrip, 322 S.W.3d 821, 855–56 (Tex.
App.—Dallas 2010), aff’d in part, rev’d in part on other grounds, 380 S.W.3d 118
(Tex. 2012). While this will not be that case, the issue may be addressed by the
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supreme court in connection with this or another pain and suffering award.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
Whitehill, J., joins this dissenting opinion.
180665DF.P05
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