Supreme Court of Texas

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No. 21-0017

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Sarah Gregory and New Prime, Inc.,

Petitioners,

v.

Jaswinder Chohan, et al., 

Respondents

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On Petition for Review from the

Court of Appeals for the Fifth District of Texas

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JUSTICE BLAND, concurring in part.

The parties agree that a jury’s imposition of mental anguish 

damages must be reasonable and consistent with due process, requiring 

judicial review.1 The difficulty lies in articulating a workable legal 

standard for evaluating such damages, particularly when the damages 

are not linked to an underlying physical injury. The plurality and 

1 See Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 

1996) (“[T]he law requires appellate courts to conduct a meaningful evidentiary 

review of [damages] determinations.”). Parkway Co. v. Woodruff, 901 S.W.2d 

434, 443–44 (Tex. 1995) (outlining the historical development of constraints on 

such damages).
2

Justice Devine agree that the mental anguish damages in this case must 

be reversed but differ in their approach to that judicial standard.2

The common ground in their opinions, however, provides a 

framework for deciding this case. Both the plurality and Justice Devine

agree that mental anguish damages must be based on the evidence.3

Both agree that juries must not measure mental anguish damages using 

improper yardsticks.4 Both agree that the jury in this case was told in 

error that it should use measures that have no legitimate role in 

deciding compensation for mental anguish: artwork, fighter jets, and the 

number of miles a defendant’s company has driven.5 To resolve the 

challenge to the mental anguish damages in this case, we neither need 

to adopt the plurality’s standard for determining whether the evidence 

demonstrates a rational connection to the amount awarded for every 

case, nor reject such a standard as Justice Devine advocates. We instead 

should leave further development of the law to a case in which the jury

is properly informed about what to consider and, importantly, not told 

to apply measurements wholly outside the mental anguish evidence 

presented.6

2 Ante at 4–5 (plurality op.); ante at 14 (Devine, J., concurring).

3 Ante at 12 (plurality op.); ante at 3, 9 (Devine, J., concurring).

4 Ante at 17–19 (plurality op.); ante at 3–4, 9 (Devine, J., concurring).

5 Ante at 17–19 (plurality op.); ante at 14 (Devine, J., concurring).

Although Justice Devine does not join the plurality opinion, he agrees with the 

plurality’s resolution of the responsible third party issue. Id.

6 The court of appeals held that “[n]one of the awards at issue here meet 

[the passion, prejudice, or improper motive] criteria.” 615 S.W.3d 277, 314 

(Tex. App.—Dallas 2020). It did not grapple with the effect of counsel’s pleas 
3

Counsel’s unchecked directives to the jury to employ mental 

anguish measurements based on standards that depart from the 

evidence render the verdict legally infirm under long-standing common 

law.7 It is settled law that appellate courts must review mental anguish

damages to confirm that they are not the result of passion or prejudice.8

This part of the common law standard does not require a subjective 

for measurements outside the evidence; rather, it contrasted the improper 

arguments with other, correct statements of law and the jury charge. Id. at 

308. Those statements and instructions, however, gave no guidance as to the 

correct measurement, leaving the verdict open to a no-evidence challenge that 

the amount awarded in damages was based on passion or prejudice. See Saenz, 

925 S.W.2d at 614; Parkway, 901 S.W.2d at 444.

7 As early as 1855, this Court has remanded for a new trial where the 

verdict “is so excessive as to warrant the belief that the jury have been [misled] 

either by passion, prejudice or ignorance” or “by some undue influence, 

perverting the judgment.” Thomas v. Womack, 13 Tex. 580, 584 (1855).

8 Thomas, 13 Tex. at 584 (indicating the court may set aside an 

excessive verdict when “there is reason to believe that the jury were actuated 

by passion, or by some undue influence, perverting the judgment”); Ft. Worth 

& D.C. Ry. Co. v. Robertson, 16 S.W. 1093, 1094–95 (Tex. [Comm’n Op.] 1891) 

(declining to set aside jury verdict when there was no indication the jury had

“been misled, or their verdict has been influenced by corruption, passion, or 

prejudice”); City of Ft. Worth v. Johnson, 19 S.W. 361, 362 (Tex. Comm’n App.

1892, judgm’t affirmed) (suggesting a jury verdict is infirm if “the amount of 

the verdict is so disproportionate to the character of the injury and its effect as 

to indicate the existence of passion, prejudice, or improper motive on the part 

of the jury”). These early cases came long before Texas permitted recovery for 

mental anguish apart from physical injury. As the law expanded to allow 

recovery of damages in more situations, the grounds for reversal also 

expanded. See Saenz, 925 S.W.2d 607 at 614; Parkway, 901 S.W.2d at 443–44. 

As this law developed, Texas courts did not abandon this review. See Pope v. 

Moore, 711 S.W.2d 622, 624 (Tex. 1986) (indicating remittitur is appropriate

where the jury’s finding is manifestly unjust, even without a showing that the 

jury was inflamed by passion, prejudice, or improper motive).
4

determination that a given verdict “shocks the conscience.”9 It focuses 

on inputs: whether the jury was exhorted to consider improper 

measurements for mental anguish, placing the amount awarded outside 

a reasonable range based on the evidence. The jury in this case was told 

to base mental anguish damages on passion (that the trucking company 

should be punished with a two-cent fine as mental anguish damages for 

each mile its fleet had driven) and prejudice (that the high cost of fighter 

jets and artwork should inform mental anguish damages).10 As the 

plurality observes, these arguments destroyed any rational connection 

the verdict has to the mental anguish evidence presented.11

Other cases will present challenges closer to the boundaries of 

judicial review. For now, it is enough to say that the mental anguish 

verdict in this case is legally infirm under either the plurality’s or 

Justice Devine’s articulation of the appropriate standard for review. I 

join all but Parts II.C.2 and II.D of the plurality opinion, leaving for 

another day the resolution of the debate as to the precise standard of 

judicial review. I concur on the common ground for reversal in this case: 

the jury’s mental anguish verdict was infected by repeated requests to 

9 See ante at 30 (plurality op.).

10 The jury’s mental anguish verdict is markedly close to the two-cent

fine. Counsel’s exhortation to the jury to give New Prime “your two cents 

worth” for each mile driven by company truckers over the course of a year 

encouraged jurors to punish New Prime according to the size of its business 

rather than to compensate for grief. The jury awarded $38,801,775, an amount 

within one-half of one percent of the total suggested by counsel’s “two cents” 

argument. Nothing in the record links this number to the evidence presented.

11 Ante at 17–19 (plurality op.).
5

use improper measures to assess mental anguish damages, warranting 

a new trial.

Jane N. Bland

Justice

OPINION FILED: June 16, 2023