Supreme Court of Texas 

══════════

No. 21-0017 

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Sarah Gregory and New Prime, Inc., 

Petitioners, 

v. 

Jaswinder Chohan, et al., 

Respondents

═══════════════════════════════════════

On Petition for Review from the 

Court of Appeals for the Fifth District of Texas 

═══════════════════════════════════════

JUSTICE DEVINE, concurring, joined by Justice Boyd. 

The value of a life is inherently unquantifiable. Grief, loss, 

loneliness, longing, pain, and suffering simply have no market value. 

The injury—the anguish—caused by the untimely loss of a loved one 

defies calculation, quantification, and measurement, but it is no less 

real, no less enduring, and—under Texas law—no less compensable. As 

the plurality opinion concedes, the evidence here validates the existence 

of such an injury. So, the ultimate question is: who decides the value of 

a man’s worth to his family? 

We have long entrusted such abstract concepts to the community 

through its duly empaneled jury representatives. And we have upheld 
2 

the jury’s determination with just as much respect when the outcome 

was a zero damages award as when it was a much more significant one. 

But even as we must acknowledge that damage awards may occasionally 

exceed the bounds of our reasonable expectations, we ought to have faith 

in the jury system. As part of that system, judges—at every step of the 

way—have an opportunity to grade the jury’s papers and offer a remedy 

for excessive awards.1 But an intrinsic quandary exists: What 

constitutes “meaningful review” when there is no objectively correct 

answer? How can anyone measure the unmeasurable? 

Today’s plurality opinion explores the dilemma courts and juries 

face when asked to award monetary compensation for injuries that have 

no market value. Much of the guidance the plurality offers is helpful. 

But the opinion ventures far afield from what is necessary to decide this 

case and, more problematically, advocates a new evidentiary standard 

that is not only foreign to our jurisprudence but also incapable of being 

satisfied.2 Though I concur in the judgment remanding for a new trial, 

I do not join the opinion. 

1 Bentley v. Bunton, 94 S.W.3d 561, 606-07 (Tex. 2002) (holding that 

“[t]he record leaves no doubt that Bentley suffered mental anguish” but that 

“is no evidence that Bentley suffered mental anguish damages in the amount 

of $7 million,” which is “far beyond any figure the evidence can support”). 

2 The plurality opinion also employs language hinting that, rather than 

requiring the appealing party to demonstrate the absence of a rational basis 

for the jury’s damages award, the prevailing party would (or should) bear the 

burden on appeal to justify the jury’s award. If the plurality were indeed 

shifting the appellate burden to the prevailing party, that would be an 

unprecedented change in the law. See, e.g., ante at 26 (“to survive a 

legal-sufficiency challenge to an award of noneconomic damages, a wrongful 

death plaintiff should bear the burden of demonstrating both (1) the existence 

of compensable mental anguish or loss of companionship and (2) a rational 
3 

As the plurality says, the rules governing damages for 

noneconomic injuries like mental anguish and pain and suffering apply 

in wrongful-death cases just as in personal-injury cases.3 That being so, 

claimants bear the burden of establishing both the existence and 

amount of such damages, just as they do for economic damages.4 To 

meet that burden, they must produce evidence sufficient to support the 

amount awarded.5 That means they cannot engage in “unsubstantiated 

anchoring” by asking fact-finders to rely on evidence that has nothing to 

do with the pain or anguish they’ve suffered.6 Nor can they ask or 

encourage the fact-finder to simply “pick a number” unrelated to the 

nature, duration, and severity of the noneconomic injury or anguish.7 

Rather, the amount the fact-finder awards must, but must only, 

reasonably and fairly compensate claimants for their injuries.8 That 

connection, grounded in the evidence, between the injuries suffered and the 

amount awarded.” (emphases added)); id. at 27-29, 31 (asserting that even 

with “thorough,” “sad[],” and “lengthy” evidence of the nature, duration, and 

severity of mental anguish, no evidence will support a jury’s noneconomic 

damages award if the prevailing party fails to proffer a sufficient appellate 

argument explaining the award’s size as opposed to holding the losing party to 

the burden of explaining how such testimony is so legally inadequate as to 

amount to no evidence of the amount awarded); id. at 28-29 (“Crucially, 

plaintiffs’ counsel at no point in these proceedings has attempted to proffer a 

rational argument justifying . . . the amount awarded.”). 

3 Id. at 3. 

4 Id. at 3, 16. 

5 Id. at 3-4, 16, 26. 

6 Id. at 17-18. 

7 Id. at 3, 10, 24. 

8 Id. at 12-13. 
4 

amount cannot be based on mere passion, prejudice, or improper 

motive.9 And to uphold these requirements, both trial courts and 

appellate courts must engage in a meaningful review, just as they do for 

economic damages.10 

But while the plurality makes an earnest effort to supply 

guidance and guardrails, the opinion overreaches and yet still comes up 

short. In the quest to eliminate the uncertainty of elastic standards that 

have long balanced jury discretion with judicial oversight, the plurality 

offers an impossible one. The newly articulated standard the plurality 

champions requires claimants to establish a “rational connection 

between the amount awarded and the evidence of injury.”11 Applying 

that standard to Jaswinder Chohan’s “thorough, saddening, and . . . 

lengthy” testimony about the nature, duration, and severity of her 

family’s suffering and loss, the plurality finds “no evidence” to meet it.12 

But what the plurality conspicuously refuses to say is what evidence 

would ever suffice.13 The best the plurality can offer the bench, the bar, 

and these litigants is: we’ll know it if we see it. 

But we will never see it. As the plurality itself acknowledges, 

“money cannot genuinely compensate for emotional trauma” because 

9 Id. at 30 n.16. 

10 Id. at 13, 24. 

11 Id. at 3-4, 23, 26 (asserting that this novel mandate flows 

“ineluctably” from our precedent). 

12 Id. at 27-30. 

13 Id. at 22-26. 
5 

such “noneconomic harm transcends quantification entirely.”14 Pain 

and anguish are not “difficult to monetize” due to the “‘impossibility of 

any exact evaluation’”;15 they are easy to monetize but impossible to 

objectively quantify.16 By ignoring this basic truth, the plurality sets up 

a Sisyphean pursuit that would burden litigants and the legal system 

with costly do-over trials.17

The plurality agrees that juries should consider the “nature, 

duration, and severity” of the claimant’s pain and anguish,18 as do I. But 

14 Id. at 14. 

15 Id. at 3, 12 (emphases added) (quoting Bentley v. Bunton, 94 S.W.3d 

561, 606 (Tex. 2003)). 

16 See Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 

S.W.3d 142, 153 (Tex. 2014) (“[C]ompensatory damages offer a pecuniary 

remedy for [a] non-pecuniary harm that a plaintiff has suffered . . . . 

[N]on-pecuniary damages do not require certainty of actual monetized loss. 

Instead, they are measured by an amount that ‘a reasonable person could 

possibly estimate as fair compensation.’” (footnote omitted) (quoting 

RESTATEMENT (SECOND) OF TORTS § 905 cmt. i.)); see also Compensate, 

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY, at 463 (2002) (“to be 

equivalent to (as in value or effect)” “[to] make up for: counterbalance” “to make 

amends”); Compensate, THE AMERICAN HERITAGE DICTIONARY OF THE 

ENGLISH LANGUAGE, at 376 (5th ed. 2016) (“[t]o make . . . reparation to”); 

Compensate, BLACK’S LAW DICTIONARY, at 353 (11th ed. 2019) (“To make an 

amendatory payment to; recompense (for an injury)[.]”). 

17 When there is some evidence of some amount of damages, we cannot 

render and must continue remanding. See ERI Consulting Eng’rs, Inc. v. 

Swinnea, 318 S.W.3d 867, 882 (Tex. 2010); see also ante at 32. This is not a 

workable system. Cf. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 274 (Tex. 

2012) (“While no system is infallible, endless litigation, in which nothing was 

ever finally determined, would be worse than the occasional miscarriage of 

justice.”). 

18 See ante at 10, 16 (quoting Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 

231 (Tex. 2011), and Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 

1995)). 
6 

even those factors cannot establish that a particular claimant’s pain and 

anguish is “worth” any particular amount of compensation. A claimant 

who—based on nature, duration, and severity—sustains one hundred 

hypothetical “units” of pain or anguish should recover ten times as much 

as one who sustains only ten units, but that consideration points to no 

particular amount unless we know what one unit of pain and anguish is 

worth. The reality is that, although pain and anguish are compensable 

as a matter of law, no one can ever know what one unit is “worth” in the 

monetary sense, because pain and anguish is wholly nonpecuniary and 

has no market value. 

The plurality implies that a claimant’s financial costs of treating 

or dealing with pain and anguish could conceivably provide some basis 

for deciding an appropriate amount of compensation,19 but those costs 

represent economic losses. And although the amount of economic losses 

could theoretically provide some “substantiated” anchoring,20 it 

certainly will not do so in all cases. Beyond that, the plurality simply 

refuses to “speculate” about the permissible forms of evidence or 

argument that could support a particular amount in a given case.21 At 

the same time, they would require claimants and their counsel to find 

that evidentiary needle in the haystack. But there is no needle there. By 

definition, nonpecuniary losses inherently have no pecuniary measure. 

For that reason, fairly and justly compensating tort victims for 

noneconomic injuries boils down to a policy choice. This Court has long 

19 Id. at 23. 

20 See id. at 22-23. 

21 Id. at 24. 
7 

recognized that Texas law should allow monetary compensation for 

those who suffer emotional trauma due to the wrongful conduct of 

another. And like the highest courts of our sister states,22 we have long 

22 See, e.g., Roof Serv. of Bridgeport, Inc. v. Trent, 854 S.E.2d 302, 323 

(W. Va. 2020) (holding that testimony regarding the victim’s previous health 

and lifestyle, the significant injuries suffered, and the nature of lifestyle 

changes and impact on the victim’s wife “compel our conclusion that the verdict 

awards are not monstrous, enormous, unreasonable, outrageous, and do not 

demonstrate jury passion, partiality, prejudice, or corruption”); Castro v. 

Melchor, 414 P.3d 53, 69 (Haw. 2018) (“A jury may draw upon its own life 

experiences in attempting to put a monetary figure on the pleasure of living. 

It is a uniquely human endeavor . . . requiring the trier of fact to draw upon 

the virtually unlimited factors unique to us as human beings. Testimony of an 

economist would not aid the jury in making such measurements because an 

economist is no more expert at valuing the pleasure of life than the average 

juror.” (quoting Montalvo v. Lapez, 884 P.2d 345, 366 (Haw. 1994))); Campbell 

v. Kennedy, 275 So. 3d 507, 516 (Ala. 2018) (“The law is also clear that 

compensatory damages for pain and suffering cannot be measured by any 

yardstick, and the amount awarded must be ‘left to the sound discretion of the 

jury, subject only to correction by the court for clear abuse or passionate 

exercise of that discretion.’” (quoting Ala. Power Co. v. Mosley, 318 So. 2d 260, 

266 (Ala. 1975))); Cohan v. Med. Imaging Consultants, P.C., 900 N.W.2d 732, 

744 (Neb. 2017) (“Although no specific dollar amounts were attached to her 

emotional injuries, the amount of damages for pain, suffering, and emotional 

distress inherently eludes exact valuation.”); Meals ex rel. Meals v. Ford Motor 

Co., 417 S.W.3d 414, 425 (Tenn. 2013) (“A jury has wide latitude in assessing 

non-economic damages. We trust jurors to use their personal experiences and 

sensibilities to value the intangible harms such as pain, suffering, and the 

inability to engage in normal activities.”); Savage v. Three Rivers Med. Ctr., 

390 S.W.3d 104, 120-21 (Ky. 2012) (“‘If the verdict bears any relationship to 

the evidence of loss suffered, it is the duty of the trial court and this Court not 

to disturb the jury’s assessment of damages.’ . . . ‘On such an issue as this, 

where the extent of pain being suffered is not capable of objective valuation, 

there really is no satisfactory standard by which to measure an award of 

damages.’” (quoting Childers Oil Co. v. Adkins, 256 S.W.3d 19, 28 (Ky. 2008), 

and McClain v. Star Cab Co., 346 S.W.2d 539, 540 (Ky. 1961))); Johnson v. 

Scaccetti, 927 A.2d 1269, 1283 (N.J. 2007) (“Our model jury instructions on 

pain and suffering recognize the inherently subjective nature of the 

damage-calculating process. Those instructions inform jurors that: ‘The law 
8 

does not provide you with any table, schedule or formula by which a person’s 

pain and suffering disability, loss of enjoyment of life may be measured in 

terms of money. The amount is left to your sound discretion.’”), abrogated on 

other grounds by Cuevas v. Wentworth Grp., 144 A.3d 890, 904-05 (N.J. 2016); 

Est. of Pearson ex rel. Latta v. Interstate Power & Light Co., 700 N.W.2d 333, 

347 (Iowa 2005) (noting that “[d]amages for physical and mental pain and 

suffering cannot be measured by any exact or mathematical standard and must 

be left to the sound judgment of the jury” and affirming award as not 

“excessively flagrant” based only on evidence that “these causes of death would 

be terribly painful”); Beaver v. Mont. Dep’t of Nat. Res. & Conservation, 78 P.3d 

857, 875 (Mont. 2003) (noting the lack of “a definite standard by which to 

calculate compensation for mental pain and suffering”); Callahan v. Cardinal 

Glennon Hosp., 863 S.W.2d 852, 872 (Mo. 1993) (stating that a jury has 

“virtually unfettered” discretion to award damages as long as they are within 

the “large range between the damage extremes of inadequacy and 

excessiveness” (quoting Kenton v. Hyatt Hotels Corp., 693 S.W.2d 83, 98 (Mo. 

1985))); Vajda v. Tusla, 572 A.2d 998, 1003 (Conn. 1990) (“Not only are 

damages for pain and suffering peculiarly for the trier of fact, but ‘[p]roper 

compensation [for pain and suffering] cannot be computed by a mathematical 

formula . . . there is no iron-clad rule for the assessment of damages.’” (quoting 

Manning v. Michael, 452 A.2d 1157, 1162 (Conn. 1982))); McElroy v. Benefield, 

771 S.W.2d 274, 277 (Ark. 1989) (“There is no definite and satisfactory rule to 

measure compensation for pain and suffering and the amount of damages must 

depend on the circumstances of each particular case. Compensation for pain 

and suffering must be left to the sound discretion of a trial jury and the 

conclusion reached by it should not be disturbed unless the award is clearly 

excessive.” (internal citation omitted)); Sheraden v. Black, 752 P.2d 791, 796 

(N.M. 1988) (“There is no standard fixed by law for measuring the value of pain 

and suffering; rather, the amount to be awarded is left to the fact finder’s 

judgment.”); Holmes Cnty. Bank & Tr. Co. v. Staple Cotton Coop. Ass’n, 495 So. 

2d 447, 451 (Miss. 1986) (“[T]here are also some damages, such as pain and 

suffering, that are not susceptible of proof as to monetary value[.]”); 

Stackiewicz v. Nissan Motor Corp., 686 P.2d 925, 932 (Nev. 1984) (“We have 

long held that ‘[i]n actions for damages in which the law provides no legal rule 

of measurement it is the special province of the jury to determine the amount 

that ought to be allowed,’ so that a court ‘is not justified in reversing the case 

or granting a new trial on the ground that the verdict is excessive, unless it is 

so flagrantly improper as to indicate passion, prejudice or corruption in the 

jury.’ . . . ‘[T]he elements of pain and suffering are wholly subjective. It can 

hardly be denied that, because of their very nature, a determination of their 

monetary compensation falls peculiarly within the province of the jury. . . . We 
9 

entrusted that question to juries, counting on our community 

representatives to apply common sense, community values, and their 

own life experiences in finding the appropriate amount to compensate 

their fellow human beings who are suffering.23 Of course, the jury’s 

decision must be based on evidence of the nature, duration, and severity 

of the claimant’s suffering—and it cannot be based on noncompensatory 

motivations. But the reality is it can never actually be based on evidence 

establishing that the injury was “worth” a particular monetary amount. 

may not invade the province of the fact-finder by arbitrarily substituting a 

monetary judgment in a specific sum felt to be more suitable.’” (quoting 

Forrester v. S. Pac. Co., 134 P. 753, 768 (Nev. 1913), and Brownfield v. 

Woolworth Co., 248 P.2d 1078, 1079-81 (Nev. 1952))). 

23 See, e.g., Anderson v. Durant, 550 S.W.3d 605, 618 (Tex. 2018) 

(holding that because noneconomic damages “are not amenable to calculation 

with ‘precise mathematical precision,’” the jury “has latitude in determining 

the award” so long as the jury awards “‘an amount that a reasonable person 

could possibly estimate as fair compensation’” (quoting Brady v. Klentzman, 

515 S.W.3d 878, 887 (Tex. 2017), and Waste Mgmt. of Tex., Inc. v. Tex. Disposal 

Sys. Landfill, Inc., 434 S.W.3d 142, 153 (Tex. 2014))); Golden Eagle Archery, 

Inc. v. Jackson, 116 S.W.3d 757, 772 (Tex. 2003) (“[W]hether to award damages 

and how much is uniquely within the factfinder’s discretion.”); Lucas v. United 

States, 757 S.W.2d 687, 720 n.21 (Tex. 1988) (Phillips, C.J., dissenting) (“As to 

non-economic damages, on the other hand, there is no formula or even 

definition which has proved useful in their assessment. The appropriate 

amount is instead left to the discretion, experience and common sense of the 

finder of fact.”); Gulf, C. & S.F. Ry. Co. v. Johnson, 44 S.W. 1067, 1067-68 (Tex. 

1898) (stating that in cases where the jury is “authorized to take into 

consideration such mental and physical pain and suffering, and the nature, 

extent, and probable duration of the injury” when assessing damages, the law 

“in a large measure commits to the common sense and sound discretion of the 

jury the amount to be assessed”). 
10 

In abiding by the Texas Constitution24 and the law antecedent to 

it,25 our compensatory-damages regime has long allowed community 

standards to inform how much money, if any, a wrongdoer must pay to 

compensate Texans for their noneconomic injuries.26 Under that 

standard, judges play an important role in determining whether a 

particular award was “manifestly unjust,” “shock[s] the conscience,” or 

“clearly demonstrate[s] bias.”27 Keeping in mind this careful balance 

24 TEX. CONST. art. V, §§ 6(a) (“[The] Court of Appeals shall have 

appellate jurisdiction . . . [and] the decision of said courts shall be conclusive 

on all questions of fact brought before them on appeal or error.”), 10 (“In the 

trial of all causes in the district courts, the plaintiff or defendant shall, upon 

application made in open court, have the right of trial by jury[.]”); In re C.H., 

89 S.W.3d 17, 26 (Tex. 2002) (“[A]ppellate courts . . . must maintain the 

respective constitutional roles of juries and appellate courts[.]”); see also U.S.

CONST. amend. VII (“In Suits at common law, where the value in controversy 

shall exceed twenty dollars, the right of trial by jury shall be preserved, and no 

fact tried by a jury, shall be otherwise re-examined in any Court of the United 

States, than according to the rules of the common law.”). 

25 See, e.g., Fulton v. Craddock, Dallam 458, 458 (Tex. 1842) (“Upon an 

inspection of the record and looking into the testimony, we find the proof, 

although contradictory, to be somewhat stronger in support of Craddock’s right 

to recover; under such circumstances the court will presume (especially after 

several verdicts) that the jury, who are the proper triers of the facts, have found 

correctly; we cannot therefore disturb the verdict. This is required by the 

genius and spirit of our laws; if it were otherwise, courts might render juries 

useless, and usurp the power of ascertaining facts which according to the 

principles of the constitution belong to juries in a court of law.”). 

26 See In re Rudolph, ___ S.W.3d ___, ___ (Tex. 2023). [21-0135, slip op. 

at 24-26]. 

27 Golden Eagle Archery, 116 S.W.3d at 773; see Sanchez v. Schindler, 

651 S.W.2d 249, 253 (Tex. 1983) (observing that “fear of excessive verdicts is 

not a sufficient justification” for denying noneconomic damages because “[t]he 

judicial system has adequate safeguards to prevent recovery of damages based 

on sympathy or prejudice rather than fair and just compensation for the 

plaintiff’s injuries”); see also TEX. CONST. art. V, § 6(a) (courts of appeals review 
11 

between judge and jury, the plurality’s opinion is fundamentally at odds 

with the Court’s admonishment today that “disregarding a jury’s verdict 

is an unusually serious act that imperils a constitutional value of 

immense importance—the authority of a jury.”28 To that end, I would 

not, as the plurality does, offer a solution that effectively neutralizes the 

jury’s role by requiring them to rely on evidence a claimant simply 

cannot present.29 

for factual sufficiency); TEX. R. CIV. P. 315 (remittitur), 320 (“New trials may 

be granted when the damages are manifestly too small or too large.”); TEX. R.

APP. P. 46.1–.5 (remittitur); TEX. R. EVID. 401 (relevance), 403 (excluding 

relevant evidence for prejudice, confusion, or other reasons); In re Columbia 

Med. Ctr., 290 S.W.3d 204, 210 (Tex. 2009) (observing that trial courts can 

order remittitur and grant new trials and intermediate appellate courts can 

review the record for factual sufficiency); COMM. ON PATTERN JURY CHARGES,

STATE BAR OF TEX., TEXAS PATTERN JURY CHARGES: GENERAL NEGLIGENCE,

INTENTIONAL PERSONAL TORTS & WORKERS’ COMPENSATION PJC 1.3 (2020) 

(including instructions to jurors to “not let bias, prejudice, or sympathy play 

any part in [their] decision” and to “[b]ase [their] answers only on the evidence 

admitted in court and on the law that is in these instructions and questions”). 

28 Rudolph, ___ S.W.3d at ____. [21-0135, slip op. at 13-14]. 

29 “Preservation of the justice system enshrined in our constitutions, 

with public participation through the jury system, is worth every effort the 

legal system can muster.” Justice Nathan L. Hecht, Jury Trials Trending 

Down in Texas Civil Cases, 69 TEX. B.J. 854, 856 (2006). While the system will 

not always get it right, in my experience it’s better to adopt standards that will 

enable courts to strive for justice for all instead of imposing standards that will 

ensure injustice to many. See Univ. of Ariz. Health Scis. Ctr. v. Super. Ct., 667 

P.2d 1294, 1298 (Ariz. 1983) (“[T]he hue and cry in many tort cases . . . is no 

more than the fear that some cases will be decided badly. Undoubtedly, the 

system will not decide each case correctly in this field, just as it does not in any 

field, but here, as in other areas of tort law, we think it better to adopt a rule 

which will enable courts to strive for justice in all cases rather than rely upon 

one which will ensure injustice in many.”). 
12 

Of course, nothing would prevent the Legislature from 

constructing a policy-based approach to noneconomic losses.30 But 

because any approach must equate monetary amounts with injuries that 

have no market value, and each case is unique, that approach would 

suffer from the same challenges a jury faces when endeavoring, in good 

faith, to provide a truly fair and reasonable compensatory amount.31 

One thing is clear, however: as the electorate’s chief policymaker, 

the Legislature is much better equipped to balance any tension between 

the Constitutional command of just compensation and the plurality’s 

concerns about the potential for arbitrariness.32 The plurality’s inability 

to articulate any way tort victims could satisfy the standard it proffers 

proves just how ill-suited courts are to the legislative function. But if 

there be a compelling need for a change, as the plurality suggests, policy 

choices like those implicated here are well within the Legislature’s 

30 See TEX. CONST. art. III, § 66(b)–(c) (authorizing the Legislature by 

statute to “determine the liability for all damages and losses, however 

characterized, other than economic damages”). 

31 See, e.g., Michael J. Saks, Lisa A. Hollinger, Roselle L. Wissler, David 

Lee Evans & Allen J. Hart, Reducing Variability in Civil Jury Awards, 21 LAW 

& HUM. BEHAV. 243, 245-46 (1997) (discussing the use of damage caps and 

noting that they are “arbitrary” and “bear no relationship to the level of 

compensable harm suffered by a plaintiff”); David. M. Studdert, Allen 

Kachalia, Joshua A. Salomon, and Michelle M. Mello, Rationalizing 

Noneconomic Damages: A Health-Utilities Approach, 74 LAW & CONTEMP.

PROBS. 57, 69 (Summer 2011) (critiquing the damage-schedule approach as 

“inherit[ing] whatever heuristics and inaccuracies attended those original 

valuations”). 

32 See Strickland v. Medlen, 397 S.W.3d 184, 196 (Tex. 2013) (observing 

that the Legislature is best equipped to weigh and initiate broad changes to 

social and civil-justice policy); Patel v. Tex. Dep’t of Licensing & Reg., 469 

S.W.3d 69, 95 (Tex. 2015) (Willett, J., concurring) (“Judicial duty requires 

courts to act judicially by adjudicating, not politically by legislating.”). 
13 

wheelhouse. In fact, the “rationally connected” standard the plurality 

advocates proves the point because it was cribbed from the statute 

imposing caps on medical-malpractice damages.33 While any 

legislatively imposed constraints on compensatory noneconomic 

damages would necessarily be arbitrary,34 a legislative approach would 

at least offer Texans a path to participate in the decision-making 

process. The plurality’s approach would shape policy through 

hamster-wheel litigation.35 That is a cure worse than the disease. 

The plurality opinion would effect a sea change in the law without 

providing any reasonably defined parameters.36 More questions are 

33 Compare ante at 3-4 (“The plaintiff in a wrongful death case should 

be required to demonstrate a rational connection, grounded in the evidence, 

between the injuries suffered and the dollar amount awarded.”), with Act of 

June 2, 2003, 78th Leg., R.S., ch. 204, §§ 10.01, .11(b)(2), 2003 Tex. Gen. Laws 

847, 873-75, 884 (enacting medical-malpractice caps on noneconomic damages 

with current version at TEX. CIV. PRAC. & REM. CODE §§ 74.301–.303 and 

stating the legislative purpose for enacting the statute was to “ensure that 

awards are rationally related to actual damages”). 

34 See Lucas v. United States, 757 S.W.2d 687, 689-90 (Tex. 1988). 

35 See supra at 5 & note 17. 

36 Contrary to the plurality’s assertion otherwise, the requirement of a 

“rational connection between the amount awarded and the evidence of injury,” 

ante at 4 (emphasis added), is a clear transition from the requirement that 

there must be “some evidence to justify the amount [of mental anguish 

damages] awarded,” Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 

614 (Tex. 1996) (emphasis added). The plurality cannot point to authority from 

this Court or any other that has ever required claimants to establish a “rational 

connection” between noneconomic damages and the amount awarded. 

“Rational connection” is a concept tied to legislative actions, such as in policy 

statements for legislative enactments, see supra note 33, and cases evaluating 

the constitutionality of legislative caps on noneconomic damages, see, e.g., 

Lucas, 757 S.W.2d at 694-95; Verba v. Ghaphery, 552 S.E.2d 406, 413-15 (W. 

Va. 2001) (Starcher, J., dissenting); State ex rel. Ohio Acad. of Trial Laws. v. 
14 

raised than even the plurality can hazard to answer. While I don’t think 

we should ever impose a change in the law that we cannot reasonably 

explain, I certainly would not do so in a case destined for a new trial for 

other reasons. 

With much respect for my colleagues’ diligent work on a difficult 

and confounding question, I cannot join an opinion that does so much 

and so little at the same time. However, I agree that plaintiffs’ counsel’s 

improper jury argument could have influenced the damages award, and 

I join the judgment remanding for a new trial because the jury charge 

erroneously excluded a responsible third party. 

 

 John P. Devine 

 Justice 

OPINION FILED: June 16, 2023 

Sheward, 715 N.E.2d 1062, 1092 (Ohio 1999); Butler v. Flint Goodrich Hosp. 

of Dillard Univ., 607 So. 2d 517, 520 (La. 1992).