Opinion issued May 16, 2024

In The

Court of Appeals 

For The

First District of Texas 

————————————

NO. 01-22-00313-CV

———————————

TEAM INDUSTRIAL SERVICES, INC., Appellant

V.

KELLI MOST, INDIVIDUALLY AND AS PERSONAL 

REPRESENTATIVE OF THE ESTATE OF JESSE HENSON, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Case No. 18-DCV-256883

O P I N I O N

Appellant, Team Industrial Services, Inc. (“Team”), challenges the trial

court’s judgment, entered after a jury trial, in favor of appellee, Kelli Most,

individually and as personal representative of the estate of Jesse Henson, deceased, 
2

in her wrongful death and survival suit against Team.

1

In five issues, Team contends 

that the trial court erred in denying its motion to dismiss for forum non conveniens,

refusing to apply Kansas law to its claims, and entering a grossly excessive damages 

award that resulted from errors in selecting and instructing the jury and allowing 

improper argument.

We vacate and dismiss.

Background

In her third amended petition, Most, the widow of Henson, alleged that on or 

about June 4, 2018, Henson, who was employed at the Jeffrey Energy Center, a

coal-fired power plant in Kansas owned by Westar Energy (“Westar”), a Kansas 

utility company, “was exposed to a steam release” when a pressure relief valve

failed. Henson “suffered severe burns,” which “ultimately led to him suffering a 

horrific death.” Henson’s death occurred shortly after Team, an industrial services 

provider, had serviced the Jeffrey Energy Center’s pressure relief valves under a 

contract with Westar.

Most brought wrongful death and survival claims against Team, asserting that 

Team “was negligent, negligent per se, and grossly negligent” because it failed to 

adequately train, instruct, and supervise its employees; “have adequate safety 

policies and procedures”; properly maintain, inspect, and operate “the equipment”; 

1 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 71.001–.012, 71.021–.022.
3

“provide adequate equipment”; “properly perform the work in question”; “ensure 

that [its] worksite was reasonably safe”; adequately maintain and inspect “the 

premises at issue”; and “remedy” or “adequately warn of a dangerous and/or 

hazardous condition.” According to Most, Team also “creat[ed] a dangerous and/or 

hazardous condition” and Team was “vicariously liab[le] for the conduct of [its] 

employees.” Most additionally alleged that Team had “violat[ed] applicable 

government regulations, laws, rules, and industry standards” and committed “[o]ther 

acts deemed negligent, negligent per se, and grossly negligent.”

Further, “[a]s a direct and proximate result of Team’s [negligent] conduct,”

Most alleged, Henson had “sustained severe physical pain, disfigurement, fear, 

mental anguish, and emotional distress” and she had “lost her husband.”

Specifically, the damages that she and Henson “sustained in the past” and that she 

would “continue to sustain in the future” included Henson’s “[p]re death physical 

pain and physical pain and suffering,” their “mental pain,” and their “suffering, 

emotional distress, and mental anguish.” Most also alleged damages including the 

“[l]oss of earning capacity and inheritance,” “fringe benefits,” “services and 

support,” “nurture, guidance, care, and instruction,” “enjoyment of life,” “future 

pecuniary support,” “society and companionship,” and “[a]ll other damages 

recoverable under the law.”
4

Additionally, Most alleged that she was “entitled to punitive damages because 

[Team] willfully and wantonly disregarded” the “safety and rights” of Henson and 

Most by “act[ing] with flagrant and malicious disregard of [Henson’s] health and 

safety.” According to Most, Team was “subjectively aware of the extreme risk posed 

by the conditions which caused [Henson’s] death, but [it] did nothing to rectify 

them” despite “knowing that the conditions posed dangerous and grave safety 

concerns.” Most alleged that Team’s “acts and omissions involved an extreme 

degree of risk considering the probability and magnitude of potential harm to 

[Henson] and others” and Team “had actual, subjective awareness of the risk, and 

consciously disregarded” it.2

As to jurisdiction and venue, Most alleged that Team was a Texas citizen and 

its principal place of business was in Texas. According to Most, venue was proper 

in Fort Bend County, Texas under Texas Civil Practice and Remedies Code section 

15.002.

2

In addition to the claims against Team, Most previously, in her second amended 

petition, brought products liability claims against Emerson Process Management 

Valve Automation, Inc., Emerson Process Management, LLP, Emerson Process 

Management Regulator Technologies, Inc., and Emerson Electric Co. (collectively, 

the “Emerson entities”), and Siemens Corporation (“Siemens”). Most asserted that 

Emerson was a Texas citizen with its principal place of business in Texas, and 

Siemens was a foreign corporation with its corporate headquarters in Harris County, 

Texas. Most nonsuited her claims against the Emerson entities and Siemens before 

trial.
5

In its first amended answer, Team generally denied the allegations in Most’s 

petition. Team also raised various affirmative defenses, including that “[t]he 

accident at issue and injuries in question” occurred as a result of “independent, 

intervening, or superseding causes” and “were caused wholly or in part by the 

negligence or fault of others,” such as Westar, and Team was entitled to “an 

allocation of fault and determination of the proportionate share of fault.”

Team further pleaded for any recovery by Most to be “reduced or barred”

under applicable law, including Texas Civil Practice and Remedies Code chapter 71 

and Kansas Statutes chapter 60, article 19, in particular “the limitations on 

nonpecuniary losses set forth in [Kansas Statutes] section 60-1903.” Additionally, 

according to Team, any recovery of compensatory damages by Most was “limited

pursuant to any applicable statutory and common law restrictions, . . . including 

[Kansas Statutes] section 60-19a02.” And Team requested a jury trial.

Team then sought dismissal of Most’s claims against it based on forum non 

conveniens. In its motion to dismiss for forum non conveniens, Team pointed out 

that Most was a Kansas resident, Henson “resided, worked, and died in Kansas,” and 

the accident in which Henson was fatally injured occurred at the Jeffrey Energy 
6

Center in Kansas.3 Team asserted that Most’s claims could be tried in Kansas and 

Kansas law provided an adequate remedy for Most’s claims.

As to the private interest factors to be considered in a forum non conveniens

determination, Team observed that “most of the evidence and documents” relevant 

to Most’s claims as well as “most of the non-party witnesses” were located in 

Kansas. Although a Kansas court could compel the Kansas non-party witnesses to 

appear for depositions and at trial, a Texas court could not. Team also noted that the 

estate of Henson’s coworker, Damien Burchett, who had suffered fatal injuries in 

the same accident, had “already filed a wrongful death lawsuit in Kansas,” and Team

anticipated that certain insurance litigation involving the accident would be filed in 

Kansas.

As to the public interest factors relevant to the forum non conveniens 

determination, Team argued that Most’s claims against it “ha[d] no significant 

connection to Texas” because Henson had lived and worked in Kansas, and he died 

from an accident that occurred in Kansas. And Most was a Kansas resident. 

According to Team, it would be “fundamentally unfair to burden the people of Texas 

with the cost of providing courts to hear” Most’s claims, which had “no significant 

connection” to Texas.

3 Specifically, Team asserted that the injury-causing accident occurred when 

“discharge piping at the Jeffrey Energy Center became unbolted from the pressure 

relief valve, allowing a large steam release.”
7

In her response to Team’s motion to dismiss, Most maintained that it would

not be “inconvenient for [Team] to litigate th[e] case” in Texas, its “home state.” 

Most stated that eight “key witnesses already identified” by the Emerson entities4in 

their discovery responses “[we]re located in Fort Bend County” or Montgomery 

County, Texas and no party had identified any “Kansas witnesses [w]hose testimony 

w[ould] be needed.”

Further, according to Most, Team could not “credibly claim [it] w[ould] suffer 

substantial prejudice” from having to litigate in Texas. Because Team maintained 

corporate offices in Texas, Most argued that it was “likely that most of the 

documents [we]re located at the[] offices in Texas.” She also noted that Team had 

not provided any “evidence that any of the[] relevant documents [we]re located in 

Kansas.”

Additionally, Most asserted that it was likely that the “witnesses who w[ould] 

need to testify at trial” were located in Texas. And she noted that Team had not yet 

responded to her “discovery requests” that sought information about where Team’s 

witnesses resided. Most also pointed out that the Emerson entities had “transported 

the equipment” that had failed from the Jeffrey Energy Center in Kansas to Fort 

Bend County “to have it inspected and/or tested.” According to Most, “[t]he 

important witnesses in [her suit] w[ould] be” the Team employees who had been 

4 At the time Most filed her response, she had not yet nonsuited the Emerson entities.
8

“temporarily in Kansas” to “install[] the equipment” and the Team employees who

had “planned out the job,” and they were likely Texas residents.5

As to the public interest factors relevant to the forum non conveniens 

determination, Most asserted that the equipment and work plans likely occurred in 

Texas and Texas citizens had “an interest in judging the conduct of companies that 

reside[d] [in Texas], d[id] a substantial amount of business [in Texas], and whose 

conduct in Texas resulted in the death of others.”

At the hearing on the motion to dismiss for forum non conveniens, Team 

explained that while it had corporate offices in Sugar Land, Texas, its office in 

Broken Arrow, Oklahoma had handled the pressure relief valve maintenance for the 

Jeffrey Energy Center. And evidence presented at the hearing showed that only one 

Team employee, who allegedly “had some involvement” with the maintenance 

performed on the Jeffrey Energy Center’s pressure relief valves immediately 

preceding the accident, was within the trial court’s subpoena power. The two Team 

technicians who had been sent to Kansas to perform the pressure relief valve 

maintenance at the Jeffrey Energy Center, Gary Gautney and Brad Whinery, were 

“somewhere” in the Tulsa, Oklahoma area, and the majority of Team’s documents 

related to Most’s claims were located at Team’s Broken Arrow office. At the 

5 Most also asserted that her witnesses would include employees of the Emerson 

entities who had “inspected the equipment” after the accident and they were Texas 

residents.
9

hearing, Team provided an exhibit of the plaintiff’s initial disclosures in the Kansas 

suit brought by the estate of Burchett, which had identified as potential witnesses 

four Westar employees who were Kansas residents.

Following the hearing, the trial court denied Team’s motion to dismiss for 

forum non conveniens.

At trial,6 Gautney, a former employee of Team, testified that he was a “valve 

tech” inspector and was a lead supervisor at Team around the time of the accident. 

Team was a “VR company,” which meant that it had certifications from the National 

Board of Boiler and Pressure Vessel Inspectors and was allowed to certify a repair 

if a valve passed a code inspection. Gautney himself did not have a specific 

certification to work on relief valves that were manufactured by a company named

Crosby, but he was certified to work on other valves and was qualified through his 

training to work on them.

Gautney further testified that in April 2018, he and Whinery spent about ten 

days at the Jeffrey Energy Center during a plant shutdown to perform a “code repair”

of the pressure relief valves for Westar. The scope of work for Gautney and Whinery 

was limited to the pressure relief valves and did not include the elbows and or bolts

that attached to the boiler.

6 By the time of trial, Most had nonsuited her claims against the Emerson entities and 

Siemens, leaving Team as the sole defendant in her suit.
10

According to Gautney, the valve, relevant to this case, that had failed at the 

Jeffrey Energy Center, was safety relief valve (“SRV”) 3-125, manufactured by 

Crosby. When Gautney inspected SRV 3-125, it looked as if it had been leaking 

before he got there. He realized that the valve could not be VR-certified. Westar 

loaned Gautney its Crosby valve reseating machine so that he could try to repair the 

valve. But the machine did not “clean up the seating surface” of the valve well 

enough, “so [Gautney] had to lap it.” When Gautney “removed the machine from 

the valve,” he noticed that the machining “didn’t get all the pits and everything out 

of the seating surface,” so there was a “loss in tolerance.” Gautney told a Westar 

contact, either Jake Dailey or Wayne McAfee, that SRV 3-125 was not “up to code”

and could not be a certified repair. Gautney and Whinery had “verbal agreements”

with Westar to change Team’s scope of work on SRV 3-125 to “noncode,” and 

Gautney reassembled SRV 3-125 at Westar’s instruction. According to Gautney, if 

a “customer change[d] the job” to a “noncertified repair,” then he did not “have to 

meet the code standards.” It was “[the customer’s] valves and [its] decision” on 

what Gautney did “with the valves.” Because the Jeffrey Energy Center was shut 

down when that decision was made, “[t]here was no immediate danger to life or 

property at the time, and [Gautney] did not believe that the valve [was] in an unsafe 

state.” When he left the Jeffrey Energy Center in April 2018, Gautney suspected 

that SRV 3-125 might “lift early.” That was “why [he] asked to be on-site,” and he 
11

understood that he was supposed to be back at the Jeffrey Energy Center when the 

plant started up. Gautney acknowledged that he did not have any documentation

showing that Westar had agreed to a noncertified repair of SRV 3-125 and that 

Westar was on notice that Gautney had reassembled SRV 3-125 but suspected that 

it might fail its essential function.

Gautney further testified that during the Jeffrey Energy Center’s plant 

shutdown, he told Dailey about all the pressure relief valves, including SRV 3-125, 

that had potential problems and needed to be monitored during the plant startup. 

Gautney also recalled a conversation that he had with Dailey in which he suggested 

that Westar “check in with [its] inspectors, to make sure that a valve repair not 

meeting standards would be okay for Westar to startup.” If Dailey or McAfee had 

contacted him before startup, Gautney “would have been able to explain to them that 

[he] would like to be there on-site, so that way, [he] could be on that deck babysitting 

[SRV 3-125].”

Jerod Cox, a manager at Team’s Broken Arrow office, testified by deposition 

that he spoke to Gautney while Gautney was on-site at the Jeffrey Energy Center in 

April 2018. Cox asked how the work “was going,” and Gautney told him about “the 

condition of the [SRV 3-125]” and stated that a “repair should not be done.” Cox 

responded that Gautney “needed to report to his Westar contact to make [Westar]

aware of the condition of the valve.” Gautney told Cox that “he was going to do 
12

that.” Cox understood that Team was to schedule Gautney and Whinery to return to 

the Jeffrey Energy Center “once [it] was up, or they were supposed to go back to 

be[] on-site during [the plant] startup.”

Keaton Riddle, an operations manager at Jeffrey Energy Center in June 2018, 

testified by deposition that he was not scheduled to work at the plant on Sunday, 

June 3, 2018, but he drove there to take a co-worker to lunch to celebrate the 

co-worker’s upcoming retirement. According to Riddle, he had picked up the 

co-worker and headed for the plant exit gate when he was “waved down” by a 

technician. During his conversation with the technician, Riddle heard what he 

thought might be a pressure “relief valve start[] relieving” and noticed that “there 

was steam emitting from a vent stack.”

Riddle called the supervisor’s office to alert the plant workers of the situation. 

Burchett answered the phone, and Riddle “notified him that steam was coming out 

of a vent,” which he “assumed to potentially be a safety relief valve letting off.” 

Riddle also heard “popping” sounds that “sounded like a steam engine.” Riddle 

asked Burchett what was going on, and Burchett responded that they did not know 

but “would go look.”

Soon after, Riddle received a text message telling him to return immediately 

to the Jeffrey Energy Center because there were “two badly burned supervisors in

the control room.” When he got inside, he discovered that Burchett and Henson had 
13

been burned. “Their skin was ashy, white-colored, sloughing off,” and “[t]hey were 

having a hard time breathing.” Emergency crews were tending to them and giving 

them oxygen. Riddle called Most to let her know what had happened. “[A]t some 

point,” Burchett and Henson were airlifted to the University of Kansas Hospital.

Thomas Ducheshneau testified by deposition that he was the control room 

operator on duty at the Jeffrey Energy Center on the day of the accident. Henson 

and Burchett came into the control room, “looked at the screens, and said [that] 

everything looked good.” Then they asked Ducheshneau “how things were going,” 

and he responded that “everything look[ed] pretty good.” Ducheshneau noted that 

there was “nothing” that he knew of that was “on the control board that would give 

[him] any type of indication or alarm that would let [him] know of a steam leak.”

According to Ducheshneau, Henson and Burchett then said “okay” and 

“walked out.” But about three to five minutes later, they were screaming and 

banging on the emergency exit door, badly burned. “[T]heir eyes were black.” 

Burchett’s hair was burned off. Henson’s tattoos were “gone,” he had fingers 

“missing,” and his skin “was hanging” and “falling everywhere.” “[T]hey were dead 

men walking.” Ducheshneau called for emergency assistance, and Henson and 

Burchett were airlifted to the hospital about forty-five minutes later.

McAfee testified by deposition that he oversaw all the contract labor at the 

Jeffrey Energy Center. He understood that Team’s valve experts were supposed to 
14

examine the safety relief valves, make sure that they were working properly, and if 

they were not, repair them until they could work properly, i.e., restore them to a 

condition that they could be VR stamped. McAfee also stated that he “fe[lt] like”

Team’s scope of work, which was described in the Team-Westar contract as to 

“inspect, repair, certify the safety relief valve,” should also have included checking 

the discharge flange. McAfee acknowledged, though, that the scope-of-work

provision in the Team-Westar contract did not say anything about Team checking 

the studs, the nuts that connected the drip pan elbow to the safety valve, or the 

discharge piping.

McAfee further testified that he did not recall any Team valve technician

telling him that SRV 3-125 was unsafe during the Jeffrey Energy Center plant

shutdown or that Team wanted to have a technician present when Westar started the 

plant up again. If he had been told, McAfee stated that he “would have remembered. 

It would have hit [him] in the face.” They would not have restarted “the unit”

without a repair, and “[i]t would have been fixed right.” According to McAfee, if 

he had been told, he “would have [gone] to [his] plant manager,” and they “would 

have stopped that unit,” “repaired it,” and had it VR stamped “in order . . . to bring 

it back up.”
15

Most7testified that she and Henson began dating in 2006 and almost 

immediately became “inseparable.” Henson was Most’s “soulmate,” her 

“protector,” and the “love of [her] life.” They were active people who enjoyed 

hiking, bicycling, and running together. They ran “a lot of [5k] races” together. 

They also enjoyed crafting, including making holiday decorations and building 

things out of wood. Henson built a “garden box” for Most, which she still had.

Most also stated that she and Henson wanted to grow their family. They tried 

early “in the marriage to have a child, and it just didn’t work.” In 2018, Most and 

Henson began looking into adopting “a four- or five-year-old little boy.” They 

dreamed about Henson “teach[ing] him football and wrestling and tell[ing] him all 

the stories.”

Most recounted that on the day that Henson was injured, she and her father 

went to the hospital burn unit. When the doctor described Henson’s condition to 

her, she “couldn’t believe what [she] was hearing.” The doctor told her that Henson 

“had been steam burned” over ninety-five percent of his body and the only skin “that 

was still good was the bottom of his feet because of the soles of his shoes.” The 

doctor also told Most that Henson appeared “gray and ashy” and was swollen. And 

the doctor told her that he “had just cut slits” into Henson’s “skin to relieve the 

pressure” from the swelling. The doctor then warned Most that Henson’s condition 

7 Most only appeared live at trial on the day she testified.
16

“was irreversible.” Henson’s “body was going to start shutting down,” and Most 

“was going to have to decide when to let him go.”

Most recalled that when she saw Henson, he was “covered with a sheet” up to 

his neck. His head was “three times the size it should have been,” and he was “gray, 

ashy, [and] white.” Most “let [Henson] know” that she was there. She did not touch 

him because she “didn’t want to hurt him.”

At first, Most told Henson to “fight.” But after she “started to realize” that he 

could not “fight anymore,” she told him, “Jesse, you got to go. I don’t want you to 

fight.” And she told Henson what the doctors and nurses had told her about his 

condition.

When Henson’s kidneys began to shut down, a nurse told Most that it was 

time for her to decide how she “wanted to do this.” After a chaplain came into the 

room, Most spent her final moments with Henson. She told him that his grandfather 

and mother were waiting for him and that she loved him and would always love him. 

Most did not “know if [Henson] heard” her, but she saw a “single tear f[a]ll down 

his cheek.” “Shortly after that, his breathing slowed[,] and he passed.”

Most explained that when Henson died, she “lost [her] best friend” and her 

“soulmate.” She was “so lonely without him.” She went “through the days like a 

robot,” doing only what she had to do. According to Most, no one “want[ed] to be 
17

around” her after Henson’s death because she was “just sad to be around” and “[t]hey 

[did not] know what to say.” She thought “they [felt] sorry for her.”

Most also noted that she still kept Henson’s clothes in the closet. And a friend 

had offered to make her a quilt from Henson’s shirts, but Most turned down the offer 

because she could not bear the idea of “cutting up his shirts.”

Most further stated that since Henson’s death, she no longer hiked or rode her 

bike. She still made art because painting would “kind of quiet[] [her] mind for a 

while.” The jury was shown one of her paintings, which she described as coming 

from her “loneliness” and “despair.” It showed her sitting in moonlight “underneath 

a tree,” surrounded by Henson’s glasses, “boots, badge,” and the flag she received 

at his funeral.

Darryl Henderson, M.D., a plastic and reconstructive surgeon and Most’s 

medical expert, testified that seventy-five percent of his medical practice involved 

“reconstructive surgery, trying to put a patient who[] had a bad burn back together,”

and treating “long-term problems” caused by serious burns. Henderson reviewed 

Henson’s hospital records and viewed a videotaped recording from the Jeffrey 

Energy Center’s security camera of the accident that caused Henson’s injuries.

According to Henderson, the steam that escaped and injured Henson, which 

was “about 800 degrees Fahrenheit,” would have made “excruciating” and 

“devastating” burn injuries. After Henson’s initial contact with the steam, some of 
18

the burned skin would start “sloughing off,” his “whole body” would start swelling, 

and his blood pressure would “start going down.”

Henderson further explained that the superheated steam “basically dissolved 

the skin that it touched,” so “the skin was dripping off and sloughing off [Henson’s] 

body.” “[A] very hot steam burn destroys the blood vessel and obstructs the blood 

vessel and stops getting blood flowing.” Normal skin appears pink “because blood 

is flowing through there.” But Henson’s skin was “totally destroyed by the burn.” 

“There [was] no blood left that[] [was] going through the skin, and so it [was] white 

and waxy.”

Henderson understood that it took about thirty minutes for the ambulance to 

arrive at the Jeffrey Energy Center. The emergency medical technicians (“EMTs”) 

who arrived then called a medevac helicopter to transport Henson to the hospital, 

and it took another fifteen minutes for the helicopter to arrive. Henson’s medical 

records showed that during that forty-five-minute period, Henson, who was alert, 

did not receive any pain medication. According to Henderson, this meant that 

Henson was able to “perceive all the pain that the burn caused.” The last two things 

Henson said before he was intubated were “I’m hurting everywhere” and “tell my 

wife I love her,” which to Henderson meant that Henson was aware that he would 

die from his injuries.
19

From Henson’s medical records, Henderson also understood that Henson’s 

“[t]otal body surface area” was covered with second- and third-degree burns. Of all 

the types of injuries people could have, Henderson opined, a burn injury was “the 

most painful.” And Henson’s burns were so severe that they went “all the way down 

through the skin” and “destroy[ed] the nerve endings” as well as “the part of the 

nerve that [went] down to the fat or wherever the burn stop[ped].” That type of burn 

caused “a tremendous amount of pain because the . . . brain [would be] getting a lot 

of bizarre signals going to it that it c[ould not] understand.”

Henderson further noted that the steam had damaged Henson’s lungs, and the 

steam that entered his airway burned his “trachea and the bronchi[oles] going to his 

lungs as well,” which would have made it difficult for him to breathe. Also, because 

of the extensive damage to his skin and the veins close to the skin surface, Henson 

could not be given fluids or medication intravenously. To receive fluids and 

medication, he had to have a hole drilled into his tibia, which was a painful 

procedure. And even with that intervention, Henderson believed that the medical 

staff at the hospital was not able to give Henson enough medication through the 

intraosseous line to put him in a medically induced coma.

Henderson noted that eventually, Henson went into “burn shock,” which 

meant that his body “began to break down.” The damage to his skin caused him to 

develop acidosis, which “c[ould] be fatal.” Also, Henson’s “kidneys 
20

[we]re . . . damaged severely by the toxins” from his “dead skin.” His “kidneys’ job 

[wa]s to get rid of” all the toxins coming “from the dead tissue,” but because “so 

much” of Henson’s skin was dead and damaged, the toxins were “overwhelming”

his kidneys. The burn shock also caused the blood pressure in Henson’s brain to 

drop, which would have affected his perception of pain.

Henderson referred to Henson’s hospital records observing that Henson 

“intermittently rais[ed]” his hands and at “[o]ne point, spontaneously raised bilateral 

arms.” According to Henderson, those motions showed that Henson was in “pain 

and discomfort” and was “just not sedated very well at all.” Henderson opined that 

Henson experienced extreme pain and suffering during the thirteen hours between 

his injury and his death.

Dr. William Hickerson, Team’s medical expert, testified by deposition that he 

had forty years of experience as a physician. He was board certified in plastic 

surgery and was the former president of the American Burn Association.

Hickerson stated that in treating a patient whose condition was as serious as 

Henson, his goal would be to keep the patient sedated and “to keep [the patient] 

where they’re not remembering anything . . . . You want to try to make it as 

amnestic as possible.” The patient would receive medications that would lead to 

different degrees of sedation.
21

According to Hickerson, from the time that the EMTs were able to administer 

sedation fifty minutes after the accident, Henson appeared to have been kept sedated. 

The medical records showed that from the time Henson was first administered 

ketamine, a medication, he was unresponsive. The level of consciousness for a

patient in Henson’s condition depended on “many factors,” not just the medications

that the patient received. Hickerson explained that Henson was unconscious not 

only because of the “medications that he was getting,” but because “he was also 

acidotic.” A patient in the acidotic state that Henson was in “would be extremely 

unlikely to remember anything during that time.”

Hickerson also testified that a combination of ketamine and another 

medication, such as fentanyl, like Henson received, would have put a patient “in a 

state” where he would not “remember anything” about what was “going on,” or if 

he did, he “wouldn’t care.” Later, Henson’s treating physicians stopped giving him 

ketamine but gave him other medications that did “the same thing” that ketamine 

did, “in addition to the fentanyl that [Henson had been] given.”

According to Hickerson, ketamine was a “dissociative[],” so the patient would

“not feel[] anything” and could “do whatever.” Ketamine could cause burn patients 

who are otherwise sedated to move. Hickerson recounted that he used to use 

ketamine during a “burn wound excision” where he would “cut off the dead tissue. 
22

And during that time period, [the patients would] talk to [him], they’d move. But 

they didn’t remember anything.”

In reviewing Henson’s medical records, Hickerson noted that Henson “had 

corneal burns,” and to treat that condition, drops would be administered, and the 

medical staff at the hospital would “put on a moisture chamber” that they covered

with moistened “gauze on the outside.” Under such circumstances, Hickerson 

explained, a patient would not be “making tears.”

The jury found that both Team and Westar were negligent, apportioning Team 

ninety percent responsibility and Westar ten percent responsibility. As to 

compensatory damages for Most’s survival claim, the jury found that Henson’s 

estate was entitled to $27 million in damages for physical pain and $30 million in 

damages for mental anguish. As to compensatory damages for Most’s wrongful 

death claim, the jury found that Most was entitled to $35 million for past loss of 

companionship and society and $40 million for future loss of companionship and 

society. The jury also found that Most was entitled to $45 million for past mental 

anguish and $45 million for future mental anguish.

The trial court entered judgment on the verdict, awarding Most $222 million

in damages, and Team moved for a new trial.

In its motion for new trial, Team, among other things, asserted that the trial 

court should dismiss Most’s claims against it for forum non conveniens. According 
23

to Team, Most had tried her case “with no Texas evidence” despite her earlier 

argument that a Texas forum was necessary because, among other things, her case 

depended on Texas documents and witnesses. Further, Most, at trial, “did not link 

any action or inaction in Team’s Texas offices to [Henson]’s death.”

Team also asserted that the private interest factors considered in a forum non 

conveniens analysis favored Kansas, noting that Kansas, and not Texas, provided 

easier access to sources of proof and Kansas was where the accident had occurred. 

Further, Team asserted that Most was a Kansas citizen and Kansas “had a greater 

interest in protecting her.”

Additionally, according to Team, trying Most’s claims against it in Texas 

caused it to suffer substantial injustice. Team could not use compulsory process to 

secure the attendance of “the many important Kansas witnesses.” Team’s main

defense was that it had told Westar about the problems with the condition of SRV 

3-125 during the plant shutdown, but Westar denied that Team had done so. Despite 

witness credibility being a significant issue in the case, Gautney, who had agreed to 

travel from Oklahoma to testify, was the only fact witness to appear live at trial. All 

the other fact witnesses presented at trial, including those from Westar, had to appear 

by deposition.8

The trial court denied Team’s motion for new trial.

8 See TEX. R. CIV. P. 176.3.
24

Order of Issues

“Generally, when a party presents multiple grounds for reversal of a judgment 

on appeal, the appellate court should first address those points that would afford the 

party the greatest relief.” Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 

675, 677 (Tex. 1999); see also TEX. R. APP. P. 43.3. “But the general rule has 

exceptions.” Union Pac. R.R. v. Seber, 477 S.W.3d 424, 436 (Tex. App.—Houston 

[14th Dist.] 2015, no pet.) (citing Texas Rule of Appellate Procedure 43.3(b), which 

permits remand “in the interest of justice”). Here, Team’s challenge to the trial 

court’s denial of its motion to dismiss for forum non conveniens, if successful, would 

require the Court to vacate the trial court’s judgment and dismiss the case. See TEX.

CIV. PRAC. & REM. CODE ANN. § 71.051(b). Team, though, has also asked the Court

to review the propriety of the trial court’s choice-of-law ruling and the factual 

sufficiency of the evidence supporting the jury’s noncompensatory damages 

findings. The relief available for those issues, if sustained, would fall short of 

vacatur, but because they are integral to the factors that the Court must balance in a

forum non conveniens analysis, we consider them first. See, e.g., TEX. CIV. PRAC.

& REM. CODE ANN. § 71.051(b)(6) (court required to consider whether “stay or 

dismissal would not result in unreasonable duplication or proliferation of 

litigation”); Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 33–34
25

(Tex. 2010) (public interest factors to consider in forum non conveniens 

determination include avoiding conflicts of law issues).

Choice of Law

In a portion of its first issue, Team argues that the trial court erred in refusing 

to apply Kansas law to Most’s claims because Kansas law differs from Texas law 

and Kansas has the “most significant relationship” to Most’s claims.

Which state’s law governs a party’s claims is a question of law for the court 

to decide. Enter. Prods. Partners, L.P. v. Mitchell, 340 S.W.3d 476, 479–80 (Tex. 

App.—Houston [1st Dist.] 2011, pet. dism’d); see also Sonat Expl. Co. v. Cudd 

Pressure Control, Inc., 271 S.W.3d 228, 231 (Tex. 2008). Where, as here, the 

relevant contacts are not in dispute, we review the trial court’s choice of law 

determination de novo. Enter. Prods. Partners L.P., 340 S.W.3d at 480; see also

Sonat Expl. Co., 271 S.W.3d at 231. In wrongful death and survival actions 

involving injuries that occurred out of state, Texas courts must “apply the rules of 

substantive law that are appropriate under the facts of the case.” TEX. CIV. PRAC. &

REM. CODE ANN. § 71.031(c). If the applicable laws of the interested jurisdictions 

do not conflict, there is no need to decide which jurisdiction’s law applies. 

Vanderbilt Mortg. & Fin., Inc. v. Posey, 146 S.W.3d 302, 313 (Tex. App.—

Texarkana 2004, no pet.); Vandeventer v. All Am. Life & Cas. Co., 101 S.W.3d 703, 

711–12 (Tex. App.—Fort Worth 2003, no pet.); Young Refin. Corp. v. Pennzoil Co., 
26

46 S.W.3d 380, 385 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). Texas 

courts may presume that another state’s law is the same as Texas law absent proof 

or argument to the contrary. Coca–Cola Co. v. Harmar Bottling Co., 218 S.W.3d 

671, 685 (Tex. 2006); Cooper Indus., LLC v. Pepsi-Cola Metro. Bottling Co., 475 

S.W.3d 436, 441 n.5 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

A trial court is required to take judicial notice of the laws of other states if the 

party requesting application of a foreign law provides the court with “sufficient 

information” for it to comply with the party’s request. See TEX. R. EVID. 202;

Holden v. Capri Lighting, Inc., 960 S.W.2d 831, 833 (Tex. App.—Amarillo 1997, 

no pet.). The party requesting application of a foreign law has the initial burden of 

showing that the foreign law conflicts with Texas law. Cooper Indus., LLC, 475 

S.W.3d at 441 n.5; Scherer v. Tex. Coast Yachts, LLC, No. 01-20-00412-CV, 2022 

WL 2251816, at *8 (Tex. App.—Houston [1st Dist.] June 23, 2022, no pet.) (mem. 

op.). If the party requesting application of a foreign law does not provide sufficient 

information to reveal a conflict between Texas law and the law of another state, the 

trial court may exercise its discretion by choosing not to take judicial notice of the 

other state’s law. See Holden, 960 S.W.2d at 833; see also Pittsburgh Corning Corp. 

v. Walters, 1 S.W.3d 759, 769 (Tex. App.—Corpus Christi–Edinburg 1999, pet. 

denied) (inadequate proof of conflict between laws fails to overcome presumption 

that law of foreign jurisdiction is identical to that of Texas). If the party provides 
27

sufficient information to show a conflict in the applicable substantive law of each 

jurisdiction, then Texas courts will apply the guidelines of the Restatement (Second) 

of Conflict of Laws section 6 as well as any other specific sections of the 

Restatement (Second) of Conflict of Laws that apply to the substantive legal issues. 

Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 443 (Tex. 2007); Ins. Co. of 

State of Pa. v. Neese, 407 S.W.3d 850, 853–54 (Tex. App.—Dallas 2013, no pet.).

A. Actual Conflicts Between Texas Law and Kansas Law

According to Team, it established that Texas law and Kansas law conflict on 

certain liability and damages issues. Team first asserts that where, as here, a 

company is subject to vicarious liability, Texas law, unlike Kansas law, has not 

recognized theories of direct liability, such as negligence in training, hiring, or 

supervising. Compare Luvual v. Henke & Pillot, 366 S.W.2d 831, 837–38 (Tex. 

App.—Houston 1963, writ ref’d n.r.e.) (“When agency and course and scope of 

employment were admitted, previous conduct became immaterial.”), with Marquis 

v. State Farm Fire & Cas. Co., 961 P.2d 1213, 1224 (Kan. 1998) (noting Kansas law 

recognizes “that an admission that the employee was acting within the scope of his 

or her employment does not preclude an action for both respondeat superior and

negligent entrustment or negligent hiring, retention, or supervision”). Yet the Texas 

Supreme Court has not reached this issue, and our sister appellate court has indicated 

that the issue is unsettled. See JBS Carriers v. Washington, 564 S.W.3d 830, 842 
28

(Tex. 2018); see also Werner Enter., Inc. v. Blake, 672 S.W.3d 554, 587 (Tex. 

App.—Houston [14th Dist.] 2023, pet. filed) (trucking company’s stipulation to 

respondeat superior liability did not preclude plaintiff from asserting direct theories 

of negligence, including negligent training, negligent supervision, negligent hiring, 

and negligent retention, against trucking company); id. at 625 (Wilson, J., 

dissenting) (court should adopt rule “under which an employer’s admission that an 

employee was acting in the course and scope of his employment when the employee 

allegedly engaged in negligent conduct bars a party allegedly injured by the 

employee’s negligence from pursuing derivative theories of negligence against the 

employer, subject to an exemplary damage exception”). Because Texas does not 

have a clear rule prohibiting a plaintiff from pursuing other theories of derivative 

negligence when the defendant has stipulated to respondeat superior, the trial court 

acted within its discretion in choosing not to take judicial notice of Kansas law on 

that issue. See Holden, 960 S.W.2d at 833; see also TEX. R. EVID. 202.

Team next asserts that unlike Texas law, Kansas law does not recognize joint 

and several liability. Compare TEX. CIV. PRAC. & REM. CODE ANN. § 33.013(b)(1)

(defendant found responsible for greater than fifty percent of harm is jointly and 

severally liable with other persons that contributed in some way to harm), and Lakes 

of Rosehill Homeowners Ass’n v. Jones, 552 S.W.3d 414, 422 (Tex. App.—Houston 

[14th Dist.] 2018, no pet.) (trial court erred in concluding that common-law rule of 
29

joint and several liability for indivisible injury did not survive enactment of Texas 

Civil Practice and Remedies Code Chapter 33), with KAN. STAT. ANN. § 60-258a(d) 

(“When the comparative negligence of the parties is an issue and recovery is 

permitted against more than one party, each party is liable for that portion of the total 

dollar amount awarded as damages to a claimant in the proportion that the amount 

of that party’s causal negligence bears to the amount of the causal negligence 

attributed to all parties against whom recovery is permitted.”). Here, the jury was 

asked to find the percentage of negligence attributable to Team and Westar, and it 

found Team ninety percent negligent and Westar ten percent negligent for causing 

or contributing to cause Henson’s injuries and death. Yet, the trial court’s judgment 

holds Team responsible for 100 percent of the damages found by the jury. This 

award complies with Texas law but conflicts with Kansas law.

Finally, Team asserts that pertinent Kansas damages law conflicts with Texas 

damages law, explaining that while Texas law has no set limit on the amount of 

noneconomic damages that can be recovered in wrongful death and survival actions, 

Kansas has limited by statute the amount of noneconomic damages that can be 

recovered for those claims. See KAN. STAT. ANN. § 60-1903(b) (capping 

noneconomic wrongful death damages at $250,000); id. § 60-19a02 (capping 

noneconomic personal injury damages at $300,000).
30

In a wrongful death action, the statutory cap under Kansas law is in actual 

conflict with Texas law, which imposes no such limits on the recovery of 

noneconomic damages. Most suggests that there are questions about the validity of 

Kansas Statutes section 60-1903(b), but we disagree. The Kansas Supreme Court 

has expressly held that the section 60-1903(b) noneconomic damages cap is 

constitutional. See Tillman v. Goodpasture, 485 P.3d 656, 666 (Kan. 2021)

(reaffirming same holding in Adams v. Via Christi Regional Medical Center, 19 P.3d 

132, 139 (Kan. 2001) and Leiker v. Gafford, 778 P.2d 823, 850 (Kan. 1989), 

overruled in part on other grounds by Martindale v. Tenny, 829 P.2d 561, 628–29

(Kan. 1992)).

The Kansas Supreme Court has not specifically addressed the constitutionality 

of Kansas Statutes section 60-19a02 as applied to a survival action, but it has held 

that section 60-19a02’s cap “is facially unconstitutional because it violates section 5 

of the Kansas Constitution Bill of Rights.”

9 Hilburn v. Enerpipe Ltd., 442 P.3d 509, 

524 (Kan. 2019). At the outset of its analysis, the Hilburn court observed that 

Kansas Constitution section 5 “preserves the jury trial right as it historically existed 

9 Team suggests that only a plurality of the justices signed on to this holding, but it 

was joined by four justices of the seven-member Kansas Supreme Court. See 

Hilburn v. Enerpipe Ltd., 442 P.3d 509, 509, 524 (Kan. 2019) (noting chief justice 

did not participate in decision); id. at 525, 527 (Stegall, J., concurring) (“As set forth 

in the majority opinion, [Kansas Statutes section 60 19a02] violates section 5 of the

Kansas Constitution Bill of Rights.”); id. at 531, 543 (Luckert, J., joined by Biles, 

J., dissenting); see also KAN. CONST. art. 3, § 2.
31

at common law” when the state constitution “came into existence.” Id. at 514. Yet

in declaring that section 60-19a02 was facially unconstitutional, the court did not 

limit its holding to common-law actions. See id. at 524.

Team points out that the Kansas Supreme Court’s decision in Tillman 

reiterated that the constitutional jury-trial right recognized in Hilburn applied only 

to protect “traditional common-law causes of action,” and Team asserts that we 

should extend that reasoning to conclude that the application of Kansas Statutes

section 60-19a02 to Most’s survival claim does not violate Kansas’s constitutional 

right to a jury trial. But we are constrained by the plain language of Hilburn’s 

holding. See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 & n.3 (Tex. 1984)

(in applying law from another jurisdiction, Texas courts must assume that legal 

authority from jurisdiction correctly states rule). When a statute is held to be facially 

unconstitutional, the statute by its terms operates unconstitutionally in every 

application. See Appraisal Rev. Bd. of Galveston Cnty. v. Tex–Air Helicopters, Inc., 

970 S.W.2d 530, 534 (Tex. 1998); Barshop v. Medina Cnty. Underground Water 

Conserv. Dist., 925 S.W.2d 618, 623 (Tex. 1996); Houston Firefighters’ Relief & 

Ret. Fund v. City of Houston, 579 S.W.3d 792, 806 (Tex. App.—Houston [14th 

Dist.] 2019, pet. denied); accord State v. Valdiviezo-Martinez, 486 P.3d 1256, 1267 

(Kan. 2021); In re Appeal of Weisgerber, 169 P.3d 321, 327 (Kan. 2007). Our role 

in determining another state’s law does not extend to determining whether the 
32

applicable statute could theoretically withstand a state constitutional challenge. See 

Duncan, 665 S.W.2d at 420 & n.3. Thus, we do not perceive an actual conflict

between Texas law and Kansas law as to the amount of noneconomic damages 

available for a survival action.

B. Kansas Law Applies

Because Team established actual conflicts between Texas law and Kansas law 

on the issues of joint and several liability and the amount of noneconomic damages

available for a wrongful death action, we next consider whether the trial court erred 

in applying Texas law, rather than Kansas law, to those issues. See Alarcon v. 

Velazquez, 552 S.W.3d 354, 360 (Tex. App.—Houston [14th Dist.] 2018, pet. 

denied) (“The Restatement methodology requires a separate conflict-of-laws 

analysis for each issue in a case.”); see also BDO Seidman, LLP v. Bracewell & 

Patterson, LLP, No. 05-02-00636-CV, 2003 WL 124829, at *2 (Tex. App.—Dallas 

Jan. 16, 2003, pet. denied) (mem. op., not designated for publication) (“[T]he 

substantive law applicable to the underlying tort action is not automatically 

applicable to a defendant’s contribution claim.”).

The Restatement (Second) of Conflict of Laws section 6 sets out general 

factors relevant to the choice of law:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,
33

(c) the relevant policies of other interested states and the relative 

interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000) (quoting RESTATEMENT 

(SECOND) OF CONFLICT OF LAWS § 6(2) (AM. L. INST. 1971)); see also Enter. Prods. 

Partners, 340 S.W.3d at 480.

In applying the general conflict of laws principles to tort cases like this one, 

Restatement (Second) of Conflict of Laws section 145 declares that “[t]he rights and 

liabilities of the parties with respect to an issue in tort are determined by the local 

law of the state which, with respect to that issue, has the most significant relationship 

to the occurrence and the parties under the principles stated in [section] 6.” 

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(1); see also Enter. Prods. 

Partners, 340 S.W.3d at 480.

Section 145 provides the following specific factors to consider:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicile, residence, nationality, place of incorporation and place 

of business of the parties, and
34

(d) the place where the relationship, if any, between the parties is 

centered.

Torrington Co., 46 S.W.3d at 848 (quoting RESTATEMENT (SECOND) OF CONFLICT 

OF LAWS § 145(2)); see also Enter. Prods. Partners, 340 S.W.3d at 480.

The Restatement (Second) of Conflict of Laws then further refines the 

choice-of-law analysis applicable to personal injury (section 146) and wrongful 

death (section 175) claims. For such claims,

the law of the state where the injury occurred determines the rights and 

liabilities of the parties, unless, with respect to the particular issue, 

some other state has a more significant relationship under the principles 

stated in [section] 6 to the occurrence and the parties, in which event 

the local law of the other state will be applied.

RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 146, 175. The Restatement 

(Second) of Conflict of Laws also weighs in on situations where the alleged 

negligent conduct and the injury occurred in different states, commenting that “[i]n 

such instances, the local law of the state of injury will usually be applied to determine 

most issues involving the tort.” See id. §§ 146 cmt. e, 175 cmt. f.

According to Restatement (Second) of Conflict of Laws sections 146 and 175, 

then, we must presume, as the starting point for our analysis, that Kansas law applies 

to determine proportionate responsibility. We will then consider the various factors 

identified in the Restatement to guide us in determining whether Texas has a greater 

interest in the determination of the particular issue than Kansas, the state where the 

injury occurred. See id. § 175 cmt. d. (also providing that courts should examine 
35

“the purpose sought to be achieved by their relevant local law rules and of the 

particular issue involved”). The number of contacts with a state is not determinative; 

rather, we evaluate the contacts in light of the state policies underlying the particular 

substantive issue. Torrington Co., 46 S.W.3d at 848; Enter. Prods. Partners, 340 

S.W.3d at 481.

Most asserts that the injury’s occurrence in Kansas was “fortuitous,” and as a 

result, the fact that the injury occurred in Kansas is “entitled to minimal weight.” 

Most makes this assertion because Restatement (Second) of Conflict of Laws section 

145(2) comment e explains that “the place of injury will not play an important role 

in the selection of the state of the applicable law” when, for example, “the place of 

injury can be said to be fortuitous.” See RESTATEMENT (SECOND) OF CONFLICT OF 

LAWS § 145(2) cmt. e. Most points out that Team is a global company with valve 

technicians in plants “all over the world” who “travel[] all over the country” to 

perform services for Team. She further notes that “Gautney and Whinery d[id] not 

live or regularly work in Kansas,” and they spent only a few days at the Jeffrey 

Energy Center. According to Most, Team’s negligent conduct “could easily have 

happened anywhere in the country.”

Whether Team’s conduct could have happened anywhere, though, does not 

mean that the injury’s occurrence in Kansas was fortuitous. “Fortuitous” means 

“[o]ccurring by chance; accidental.” BLACK’S LAW DICTIONARY (11th ed. 2019). 
36

The evidence shows that Westar, a Kansas utility company, contacted Team’s 

Broken Arrow office and requested that Team provide valve maintenance services

at the Jeffrey Energy Center, one of Westar’s electric power plants in Kansas. Team 

and Westar entered into a service contract governed by Kansas law, and Team sent 

two valve technicians from Oklahoma to Kansas to provide the services described 

in the Team-Westar contract. We also note that Henson and Most lived in Kansas, 

and Henson worked for Westar at the Jeffrey Energy Center in Kansas. Their 

injuries did not occur in Kansas by chance. See, e.g., Toyota Motor Co. v. Cook, 

581 S.W.3d 278, 285 (Tex. App.—Beaumont 2019, no pet.) (that accident occurred 

in Mexico was not fortuitous where van involved in accident was directly imported 

from Japan to Mexico, sold in Mexico to Mexican national, and used exclusively in 

Mexico). Under the circumstances, Henson’s work-related injuries could not have 

occurred anywhere but Kansas. See Crisman v. Cooper Indus., 748 S.W.2d 273, 

279 (Tex. App.—Dallas 1988, writ denied). Thus, we apply Kansas law to 

determine proportionate liability and damages unless Texas has a more significant 

relationship.

“[T]he most important contacts in determining which state’s law governs 

compensatory damages will usually be the ones with the most direct interest in the 

plaintiff’s monetary recovery and/or the most direct in protecting the defendant

against financial hardship.” Torrington Co., 46 S.W.3d at 849 (internal quotations 
37

omitted). “[A] plaintiff’s domiciliary state usually has a strong interest in seeing its 

compensatory damages law applied.” Id. at 850.

In the cases cited by Team, Cook and Crisman, the Texas appellate courts 

concluded that the location where the defective product was sold had the stronger 

interest in having its products liability laws applied. See Cook, 581 S.W.3d at 285

(noting Mexico’s restrictions on tort claims and recovery demonstrated policy 

interest in protecting Mexicans from excessive liability claims and Mexico’s

investigation of crash, which led to conclusion that van’s driver was criminally 

responsible, demonstrated policy interest in applying Mexican law); Crisman, 748 

S.W.2d at 280 (Florida had stronger policy interest in applying its laws to action 

because Florida had greater interest in regulating products sold in Florida and in 

controlling operation of vehicles on its highways). Similarly, Kansas has a strong

interest in holding out-of-state businesses that provide services in Kansas 

responsible when their negligent conduct causes injuries to a Kansas citizen in 

Kansas. Kansas also has an interest in ensuring that its utility companies are held 

responsible when their own negligence contributes to the injuries of a Kansas citizen.

Texas may have some interest in ensuring that the nationwide activities of its 

corporate citizens satisfy a certain standard of care. But the applicable standard of 

care may vary from jurisdiction to jurisdiction. For example, the Jeffrey Energy 
38

Center’s operations must comply with the Kansas Boiler Safety Act.

10 Here, Texas’s 

interest in overseeing the out-of-state conduct of its corporate citizens is not as 

compelling as Kansas’s interest in ensuring the safe operation of its utilities and in 

holding all parties who interfere with the safety of those operations responsible for 

any harm they cause.11

10 See KAN. STAT. ANN. §§ 44-913–44-933 (Kansas Boiler Safety Act). Although 

both Texas and Kansas apply standards set by the National Board of Boiler and 

Pressure Vessel Inspectors, they do not both adopt the same edition of the National 

Board Inspection Code. Compare KAN. ADMIN. REGS. § 49-45-20 (adopting by 

reference 2007 edition of National Board Inspection Code Parts 1, 2, and 3), with

TEX. ADMIN. CODE ANN. § 65.612 (requiring repairs and alterations to “conform to 

the current edition of the National Board Inspection Code”). “The [National Board 

Inspection Code] is published as a new edition in July of odd numbered years (2017, 

2019, 2021, 2023).” NATIONAL BOARD INSPECTION CODE (NBIC), 

https://www.nationalboard.org/index.aspx?pageID=4#:~:text=The%20NBIC%20i

s%20published%20as,2019%2C%202021%2C%202023) (last visited Apr. 24, 

2024). Team pointed out in the trial court that the National Board Inspection Code 

added a new Part 4 that deals with pressure relief devices, such as those at issue 

here, in 2017, making it part of the regulatory scheme for Texas but not for Kansas.

See Nat’l Bd. of Boiler & Pressure Vessel Inspectors, NAT’L BOARD INSPECTION 

CODE (2017 ed.). 

11 Most states that Team provided some training courses in Texas for its valve 

technicians and Gautney called a Team employee in Texas for guidance on the valve 

repair in Kansas. But the evidence did not identify either of these contacts as the 

negligent conduct that caused the injuries, so they do not factor into our analysis. 

And because Team did not train its employees exclusively in Texas, any failure to 

provide adequate training is not necessarily attributable to Texas. Texas’s interest

in such conduct is not enough to displace the interest of Kansas, where the injuries

occurred. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 146 cmt. e, 175 

cmt. f (AM. L. INST. 1971) (where alleged negligent conduct and injury occurred in 

different states “the local law of the state of injury will usually be applied to 

determine most issues involving the tort”).
39

Further, in placing limits on certain noneconomic damages, the Kansas 

legislature made a clear policy choice in balancing its citizens’ interest in receiving 

fair compensation for their injuries and the state’s interest in maintaining a favorable 

business climate. See Crisman, 748 S.W.2d at 279 (Florida legislature’s enactment 

of statute of repose showed state’s concern in area of products liability); see also 

Torrington Co., 46 S.W.3d at 850 (“[A] plaintiff’s domiciliary state usually has a 

strong interest in seeing its compensatory damages law applied.”). Applying Kansas 

law on these issues is not difficult, and it promotes the certainty, predictability, and 

uniformity of the results in such cases.

Based on the foregoing, we hold that the trial court erred in applying Texas 

law, rather than Kansas law, to hold Team responsible for 100 percent of the 

damages found by the jury despite the jury’s findings that Team was ninety percent

liable and Westar was ten percent liable, and it also erred in declining to apply 

Kansas law’s noneconomic damages caps to the jury’s damages award on Most’s 

wrongful death claim.

We sustain in part the portion of Team’s first issue challenging the trial court’s 

application of Texas law.

Noneconomic Damages

In its second issue, Team argues that the trial court erred in awarding Most 

the amount of noneconomic damages found by the jury because it was excessive and 
40

resulted from Most’s arguments encouraging the jury to punish Team. In its third 

issue, Team argues that the trial court erred in empaneling and instructing the jury 

because those actions contributed to the excessiveness of the jury’s damages award.

An excessive damages complaint is a challenge to the factual sufficiency of 

the evidence supporting the damages award. See Anderson v. Durant, 550 S.W.3d 

605, 620 & n.66 (Tex. 2018); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 

406 (Tex. 1998); C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 796 (Tex. 

App.—Houston [1st Dist.] 2004, no pet.). When a party attacks the factual 

sufficiency of an adverse finding on an issue on which it did not have the burden of 

proof at trial, it must demonstrate that the adverse finding is so contrary to the 

overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. 

See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Four J’s Cmty. Living Ctr., Inc. 

v. Wagner, 630 S.W.3d 502, 516 (Tex. App.—Houston [1st Dist.] 2021, pet. denied). 

In conducting a factual-sufficiency review, we examine, consider, and weigh all 

evidence that supports or contradicts the jury’s determination. See Dow Chem. Co. 

v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Plas–Tex, Inc. v. U.S. Steel Corp., 772 

S.W.2d 442, 445 (Tex. 1989). As in a legal-sufficiency review, we recognize the 

jury as the sole judge of the credibility of the witnesses and the weight to be given 

to their testimony. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 

(Tex. 2003). If we conclude that the evidence is factually insufficient and that the 
41

award of damages is therefore excessive, then we must detail why we reach that 

result. C.M. Asfahl Agency, 135 S.W.3d at 797.

Appellate courts must review noneconomic damage awards to confirm that 

they are not the result of passion or prejudice. Gregory v. Chohan, 670 S.W.3d 546, 

576 (Tex. 2023) (Bland, J., concurring in part); see also id. at 563 (plurality op.)

(observing plaintiff’s “only arguments provided to justify an amount of damages 

were impermissible appeals to irrelevant considerations”). As a type of 

compensatory damages, noneconomic damages’ purpose is to make a plaintiff whole 

for any losses caused by the defendant’s interference with the plaintiff’s rights by 

placing the plaintiff in the position that she would have been in absent the 

defendant’s tortious conduct. In re K & L Auto Crushers, LLC, 627 S.W.3d 239, 

250 (Tex. 2021) (orig. proceeding); J & D Towing, LLC v. Am. Alt. Ins. Corp., 478 

S.W.3d 649, 655 (Tex. 2016); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 16 (Tex. 

1994); see also TEX. CIV. PRAC. & REM. CODE ANN. § 41.009(8) (“‘Compensatory 

damages’ means economic and noneconomic damages. The term does not include 

exemplary damages.”); id. § 41.009(12) (“‘Noneconomic damages’ means damages 

awarded for the purpose of compensating a claimant for physical pain and suffering, 

mental or emotional pain or anguish, loss of consortium, disfigurement, physical 

impairment, loss of companionship and society, inconvenience, loss of enjoyment 

of life, injury to reputation, and all other nonpecuniary losses of any kind other than 
42

exemplary damages.” (emphasis added)); see also Four J’s Cmty. Living Ctr., 630 

S.W.3d at 516. Where the compensatory damages sought are purely noneconomic, 

courts have a duty to ensure that the damages awarded “are the result of a rational 

effort, grounded in the evidence, to compensate the plaintiff for the injury.”

Gregory, 670 S.W.3d at 550 (plurality op.).

Before we can measure the factual sufficiency of the evidence supporting the 

jury’s noneconomic damages award, we must identify the standard against which 

the evidence is to be measured. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530 

(Tex. 2002). If there was no objection to the jury charge, then the charge actually 

submitted is the proper measure of the sufficiency of the evidence. Osterberg v. 

Peca, 12 S.W.3d 31, 55 (Tex. 2000). Here, Team objected to the trial court’s charge 

on the grounds that the jury should be instructed under Kansas law, not Texas law, 

and it tendered a proposed charge following Kansas law with instructions on 

noneconomic damages, including damages for mental anguish, suffering, and loss 

of companionship. We do not perceive any actual conflict between the proposed 

Kansas law jury instructions on these elements and Texas law, and neither party 

asserts that a factual sufficiency analysis of them would be different under Kansas 

law. Thus, we apply Texas law to the issue of whether the evidence is factually 

sufficient to support the jury’s noneconomic damages award. See Cooper Indus., 

475 S.W.3d at 441 n.5.
43

Mental anguish is compensable only if it causes a “substantial disruption in 

daily routine or a high degree of mental pain and distress.” Hancock v. Variyam, 

400 S.W.3d 59, 68 (Tex. 2013). This requires “direct evidence of the nature, 

duration, and severity of the[] [plaintiff’s] mental anguish, thus establishing a 

substantial disruption to the plaintiff’s daily routine.” SCI Tex. Funeral Servs., Inc. 

v. Nelson, 540 S.W.3d 539, 544 (Tex. 2018). Consistent with the trial court’s jury 

charge definition, “[l]oss of companionship and society means the loss of the 

positive benefits flowing from the love, comfort, companionship, and society” that 

the plaintiff, in reasonable probability, would have received from the decedent had 

he lived. See Moore v. Lillebo, 722 S.W.2d 683, 687–88 (Tex. 1986). There must 

be both evidence of the existence of compensable mental anguish or loss of 

companionship and evidence to justify the amount awarded. See Gregory, 670 

S.W.3d at 555 (plurality op.); Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex. 2002).

For her wrongful death claim, the jury awarded Most $45 million for past 

mental anguish, $45 million for future mental anguish, $35 million for past loss of 

companionship and society, and $40 million for future loss of companionship and 

society. In total, the amount of noneconomic damages awarded for Most’s wrongful 

death claim alone was $165 million, more than ten times the $15,065,000 

noneconomic damages award reversed by the Texas Supreme Court in Gregory. See

670 S.W.3d at 553 (plurality op.).
44

Most’s testimony at trial painted a tragic picture, from her initial shock about 

Henson’s condition and her insistence that Henson “fight,” to her gradual realization 

that he could not “fight anymore.” Most explained that she had to make the 

excruciating decision to terminate life support and stand by Henson in his final 

moments.

Most also described her loneliness after Henson, whom she described as her 

“soulmate,” died. She did only what she had to do, performing tasks like a “robot.” 

It seemed to her that no one “want[ed] to be around” her after Henson died because 

she was “just sad to be around” and “[t]hey [did not] know what to say.” She could 

not bear to part with Henson’s belongings or go on hikes or bike rides like she and 

Henson used to do together. Her only solace was in her art.

For her survival claim, the jury awarded Most $27 million for Henson’s pain 

and suffering and $30 million for his mental anguish. Evidence of damages in 

support of Most’s survival claim included testimony from Henson’s co-worker, who 

witnessed Henson’s condition immediately following the steam release until Henson 

was intubated by the EMTs. Henson’s body was covered with second- and 

third-degree burns, and the superheated steam had also damaged his trachea and 

lungs. Henson did not receive any pain medication until forty-five minutes after he 

was burned, and the parties’ experts disagreed about whether he was medicated 
45

enough to relieve his pain and suffering between the time he first received 

medication and his death several hours later.

Most did not seek any economic damages, which, if she had, may or may not 

have provided some basis for the jury to determine an appropriate amount of 

noneconomic damages. See Gregory, 670 S.W.3d at 559–60 (plurality op.); id. at 

569 (Devine, J., concurring). And she did not propose any amount of money that

she believed would compensate her for the mental anguish and loss of 

companionship she experienced. The jury heard only argument from Most’s counsel 

about what would be an appropriate damages award.

But Most’s counsel’s arguments for noneconomic damages were “based on 

standards that depart[ed] from the evidence.” Id. at 576 (Bland, J., concurring in 

part). As the Texas Supreme Court has observed, it is improper for a plaintiff to 

argue for damages based on “unsubstantiated anchoring,” that is, by “reference to 

objects or values with no rational connection to the facts of the case,” such as “the 

cost of a fighter jet” or “the auction price of a coveted painting.” Id. at 558 (plurality 

op.); see also Alonzo v. John, No. 22-0521, 2024 WL 2095957, at *3 n.1 (Tex. May 

10, 2024) (Gregory “clarified that claimants cannot rely on unsubstantiated 

anchoring to sustain a damages award.”); Gregory, 670 S.W.3d at 569 (Devine, J., 

concurring). Such comparisons have “nothing to do with the emotional injuries 

suffered by the plaintiff and cannot rationally connect the extent of the injuries to 
46

the amount awarded.” Id. at 558 (plurality op.). Also pertinent, damages awards for 

mental anguish or loss of companionship “are not meant to place a value on human 

life.” Id. (plurality op.).

Yet here, Most’s counsel, by suggesting that the jury compare the cost of an 

expensive painting to the value of a human life, did exactly what the Gregory court 

deemed improper. For instance, in his opening argument, counsel stated:

You may see a headline, painting sells for $350 million, right. That’s 

what somebody who owned it was willing to sell it for. It’s a bargain. 

It’s a deal. It’s a price, fair and reasonable. I don’t think there is a 

person that would say that a painting is more valuable than a human 

life.

And Most’s counsel returned to this theme in his closing argument, suggesting that

“[t]he hard part of [the jury’s] job . . . [was] valuing the whole person, [and] valuing 

the entire loss.” And counsel stated, “if you picked 300 million because you can 

make an exchange for a painting, then that’s okay.” 

The effect of these improper arguments to the jury was compounded by the 

exemplary damages evidence and themes that remained before the jury even after 

Most abandoned her claim for exemplary damages at the jury charge conference, 

after the close of evidence.

12 The Texas Supreme Court has cautioned that an award 

12

“‘Exemplary damages’ means any damages awarded as a penalty or by way of 

punishment but not for compensatory purposes. Exemplary damages are neither 

economic nor noneconomic damages.” TEX. CIV. PRAC. & REM. CODE ANN. 

§ 41.009(5).
47

of noneconomic damages must “fairly and reasonably compensate” for the loss and 

must not be disguised as disapproval or punishment of the defendant. Bentley v. 

Bunton, 94 S.W.3d 561, 605, 607 (Tex. 2002); see also Reliance Steel & Alum. Co. 

v. Sevcik, 267 S.W.3d 867, 870 (Tex. 2008) (party’s size and wealth generally “has 

no logical relevance to a case,” but “the prejudicial effect of such evidence often 

creates strong temptations to use it”).

The record here shows that the jury was presented with substantial evidence 

and argument relevant only to exemplary damages throughout trial. Most’s counsel

first raised the issue of exemplary damages during voir dire, asking the jury panel 

members what they thought about punitive damages and whether they could “award 

millions and millions of dollars in punitive damages” if the circumstances warranted 

it.

During his closing argument, Most’s counsel continued to raise themes that

had no relevance apart from a claim for exemplary damages. He emphasized Team’s 

size, telling the jury that Team was “the largest valve inspection company in the 

country,” was “publicly traded on the New York Stock Exchange,” had “offices in 

multiple countries,” and had “thousands of employees doing this work.” Most’s 

counsel also asserted that if Team had been acting with integrity, it would have 

“admit[ted] its wrong” and it would have “do[ne] something to fix the situation to 

make sure it would never happen again.” Additionally, he accused Team of 
48

“diminish[ing] the value of a life well lived” and “disrespect[ing] the process of th[e] 

trial.” Most’s counsel urged the jury to “let Team know” by its verdict that such 

“behavior [was] not acceptable.” He told the jury that they had to “put a price on it”

to give Team the message “that life [was] not cheap, the value of life [was] not on 

sale,” and that it was “not to be discounted,” “disrespected,” or “diminished.” And 

he cautioned the jury that Team would “not change, unless [they] ma[d]e [it] 

change,” and if the jury did not, “then Team just gets away with it.”

13

These improper arguments left the jury with no sound guidance for deciding 

the amount of compensation to award Most for mental anguish and loss of 

companionship. See Gregory, 670 S.W.3d at 551 (plurality op.). For this reason, 

we cannot say that the damages award is not the result of passion or prejudice. See 

id. at 576 (Bland, J., concurring in part); see also id. at 563 (plurality op.) (jury’s 

decision “cannot be based on noncompensatory motivations”); id. at 577 (Devine, 

13 Because Team did not ask the trial court to bifurcate the proceeding, exemplary 

damages issues were properly raised throughout the trial. See TEX. CIV. PRAC. &

REM. CODE ANN. § 41.009; see also Crowder v. Sanger, No. 03-21-00291-CV, 

2023 WL 4631501, at *6 (Tex. App.—Austin June 30, 2023, no pet.) (mem. op.) 

(noting “legislature considers liability issues so distinct from exemplary damages” 

that trial may be bifurcated to permit jury to make liability and exemplary damage 

findings in separate parts of trial). When Most abandoned her exemplary damages 

claim during the jury charge conference, Team requested that the trial court include 

an instruction in its charge to the jury “that the compensatory damages, if any, [it] 

award[ed] in answer to th[e] question [were] not allowed as a punishment and must 

not be imposed or increased to penalize Team.” The trial court, though, rejected 

Team’s requested instruction and did nothing to otherwise put the jury on notice 

that it should disregard the evidence relevant to the exemplary damages because it 

was no longer relevant to any issue in the case.
49

J., concurring) (plaintiff’s counsel’s directives to base mental anguish damages on 

passion and prejudice rendered verdict legally infirm). Thus, we conclude that the 

damages are not supported by the evidence, and we hold that the trial court erred in 

entering judgment on the jury’s damages findings.

We sustain Team’s second and third issues. 

Generally, a suggestion of remittitur is appropriate to enter in cases where 

there is insufficient evidence to support the full amount of a damages award. Id. at 

564–65 (plurality op.); see also TEX. R. APP. P. 46.3. But if we cannot readily 

determine an appropriate lesser amount of damages from the evidence, we may 

reverse and remand for new trial. See ERI Consulting Eng’rs, Inc. v. Swinnea, 318 

S.W.3d 867, 880 (Tex. 2010) (observing court of appeals could decide to remand for 

new trial on lost profit damages if evidence did not seem conducive to remittitur). 

Here, the evidence does not reveal any definite amount of noneconomic damages 

that would make Most whole; the arguments of her counsel, which impermissibly 

relied on punitive themes, were the only apparent source for the amount of

noneconomic damages found by the jury. For this reason, reversal and remand for 

new trial would be the proper disposition.

Because we have concluded that a new trial is required, a dismissal for forum 

non conveniens at this juncture “would not result in unreasonable duplication or 

proliferation of litigation.” TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b). We 
50

also note that by the time of trial, Most had nonsuited her claims against the Emerson 

entities and Siemens, leaving Team as the sole defendant and the only party that was 

a Texas resident. And in trying her case, Most did not focus on any Team conduct 

in Texas and did not call any Texas witnesses. In short, the case that Most tried bore 

little resemblance to the one addressed in the mandamus proceedings previously 

adjudged by this Court and the Texas Supreme Court.14 As Team renewed its request 

for forum non conveniens dismissal when it moved for new trial, we next review the 

issue as it was presented to the trial court at that time.

Forum Non Conveniens

In the remaining portion of its first issue, Team argues that the trial court erred 

in refusing to dismiss Most’s suit against it based on forum non conveniens because 

when “personal injury and wrongful death actions [are] more properly heard in 

14 Early in this case, the Emerson entities filed a petition for writ of mandamus seeking 

reversal of the trial court’s denial of their motion to dismiss for forum non 

conveniens, and Team filed a response joining in the petition. This Court denied 

relief, concluding that the Emerson entities had “failed to establish that the trial 

court abused its discretion.” In re Emerson Process Mgmt. Valve Auto., Inc., No. 

01-19-00152-CV, 2019 WL 1996517, at *1 (Tex. App.—Houston [1st Dist.] May 

7, 2019, orig. proceeding [mand. denied]) (mem. op.). The Texas Supreme Court 

denied Team’s subsequent petition for mandamus relief without opinion. These 

prior rulings do not affect our analysis of the forum non conveniens issue presented 

in this appeal. Because the parties and claims are not substantially the same as they 

were when the petitions for writ of mandamus were ruled on, and because Team 

renewed its request for forum non conveniens dismissal after trial, the law of the 

case doctrine does not apply here. See Hudson v. Wakefield, 711 S.W.2d 628, 630 

(Tex. 1986).

.
51

another forum[,] [they] must be dismissed,” the trial court had a “statutorily 

mandated duty to stay or dismiss” the case for forum non conveniens, and “Most 

used misdirection to avoid an adverse forum non conveniens ruling at the [suit’s] 

inception.” (Emphasis omitted.)

An appellate court will reverse a trial court’s forum non conveniens 

determination if the record shows a clear abuse of discretion. See Quixtar, 315 

S.W.3d at 31; Brenham Oil & Gas, Inc. v. TGS NOPEC Geophys. Co., 472 S.W.3d 

744, 766 (Tex. App.—Houston [1st Dist.] 2015, no pet.). A trial court abuses its 

discretion when it acts without reference to guiding rules or principles. Quixtar, 315 

S.W.3d at 31. When “all the factors do not conclusively favor the alternative 

forum[,] . . . we cannot say that the trial court abused its discretion in denying” a 

motion to dismiss for forum non conveniens. In re Mahindra, USA, 549 S.W.3d 

541, 550 (Tex. 2018) (orig. proceeding); In re Friede & Goldman, LLC, No. 

01-18-00409-CV, 2019 WL 2041071, at *3 (Tex. App.--Houston [1st Dist.] May 9, 

2019, orig. proceeding) (mem. op.).

“[F]orum non conveniens is essentially ‘a supervening venue 

provision . . . that goes to process rather than substantive rights—determining which 

among various competent courts will decide the case.’” In re Mahindra, 549 S.W.3d 

at 547 (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 453 (1994)). Dismissal 

for forum non conveniens is appropriate when sufficient contacts between the 
52

defendant and the forum state exist to confer personal jurisdiction, but the case itself 

has no significant connection to the forum state. In re Bridgestone Ams. Tire 

Operations, LLC, 459 S.W.3d 565, 568 (Tex. 2015) (orig. proceeding); In re XTO 

Energy, Inc., No. 01-17-00652-CV, 2018 WL 2246216, at *4 (Tex. App.—Houston 

[1st Dist.] May 17, 2018, orig. proceeding) (mem. op.).

Most’s suit involved claims for personal injury and wrongful death, so 

statutory forum non conveniens applies. See TEX. CIV. PRAC. & REM. CODE ANN. 

§ 71.051(i); In re Mahindra, 549 S.W.3d at 544. Texas Civil Practice and Remedies 

Code section 71.051 provides six factors for the trial court to consider in deciding 

whether to dismiss a suit on forum non conveniens grounds, namely, whether:

(1) an alternative forum exists in which the claim or action may be 

tried;

(2) the alternative forum provides an adequate remedy;

(3) maintenance of the claim or action in the courts of this state 

would work a substantial injustice to the moving party;

(4) the alternative forum, as a result of the submission of the parties 

or otherwise, can exercise jurisdiction over all the defendants 

properly joined to the plaintiff’s claims;

(5) the balance of the private interests of the parties and the public 

interest of the state predominate in favor of the claim or action 

being brought in an alternate forum, which shall include 

consideration of the extent to which an injury or death resulted 

from acts or omissions that occurred in this state; and 

(6) the stay or dismissal would not result in unreasonable duplication 

or proliferation of litigation.
53

TEX.CIV. PRAC.& REM.CODE ANN. § 71.051(b). In applying these statutory factors, 

a trial court has no discretion in determining what the law is or in applying the law 

to the particular facts. In re Mantle Oil & Gas, LLC, 426 S.W.3d 182, 187 (Tex. 

App.—Houston [1st Dist.] 2012, orig. proceeding); see In re Transcont’l Gas 

Pipeline Co., 542 S.W.3d 703, 715 (Tex. App.—Houston [14th Dist.] 2017, orig. 

proceeding); see also In re ENSCO Offshore Int’l Co., 311 S.W.3d 921, 927 (Tex. 

2010) (orig. proceeding) (trial court may not assign different weights to statutory

factors; if all factors weigh in favor of claim being heard in forum outside Texas, 

trial court must grant motion and decline to exercise jurisdiction).

The trial court also must consider whether the plaintiff is a Texas resident 

because the factors applied in a forum non conveniens determination are balanced 

differently when, as in this case, a nonresident plaintiff has chosen Texas as the 

forum. See Quixtar, 315 S.W.3d at 31–32. If the plaintiff is not a Texas resident, 

the presumption that she “filed in Texas as a matter of convenience applies with less 

force and deserves substantially less deference than it would if [the plaintiff] were a 

Texas resident.” Id. at 33; see also In re XTO Energy, 2018 WL 2246216, at *4; 

Grynberg v. Grynberg, 535 S.W.3d 229, 234 (Tex. App.—Dallas 2017, no pet.).

The forum non conveniens statute does not place the burden of proof on either 

party. In re Mahindra, 549 S.W.3d at 550; In re XTO Energy, 2018 WL 2246216, 

at *4. “To the extent [that] evidence is necessary to support the positions of the 
54

parties,” courts must weigh the factors based “on the weight of the evidence” and 

are “entitled to take into account the presence or absence of evidence as to some 

issue or position of a party.” In re Gen. Elec. Co., 271 S.W.3d at 687; see also Piper 

Aircraft Co. v. Reyno, 454 U.S. 235, 258–59 (1981) (movant for forum non 

conveniens dismissal must offer enough information to permit trial court “to balance 

the parties’ interests”). The trial court must determine the proper forum based on

the greater weight of the evidence. In re Mahindra, 549 S.W.3d at 550. If the 

statutory factors weigh in favor of the claim or action being more properly heard in 

a forum outside of Texas, Texas Civil Practice and Remedies Code section 71.051 

“requires dismissal of the claim or action.” In re Gen. Elec. Co., 271 S.W.3d at 686;

see In re Weatherford Int’l, LLC, No. 22-1014, --- S.W.3d ---, 2024 WL 1819829, 

at *2 (Tex. Apr. 26, 2024); see also TEX.CIV. PRAC.&REM.CODE ANN. § 71.051(b).

Most has not disputed that three of the six factors set forth in Texas Civil 

Practice and Remedies Code section 71.051 favored dismissal of her suit: Kansas 

was an alternate forum where her claims could be tried (factor one); Kansas provided 

an adequate remedy (factor two); and Kansas could exercise jurisdiction over all the 

properly joined defendants (factor four). See TEX. CIV. PRAC. & REM. CODE ANN. 

§ 71.051(b). Thus, we must consider only whether the trial court acted within its 

discretion in balancing the evidence in support of the third, fifth, and sixth factors.
55

The third factor requires a trial court to consider whether “maintenance of the 

claim or action in the courts of this state would work a substantial injustice to the 

moving party.” See id. § 71.051(b)(3). In doing so, trial courts should consider “the 

location of relevant documents and evidence and whether a majority of witnesses 

may be reached by compulsory process in Texas.’” In re Weatherford, 2024 WL 

1819829, at *3 (quoting In re Mantle Oil & Gas, 426 S.W.3d at 192).

Here, holding the trial in Texas meant that Team could not subpoena fact 

witnesses in Kansas, such as Henson’s adult children, who could have spoken to 

Henson’s relationships with them, and Westar employees, who could have testified 

about communications between the Jeffrey Energy Center and Team’s Broken 

Arrow office. Team was also unable to subpoena Kansas state regulators about the 

general maintenance of coal-generated power plants in Kansas and the results of any 

investigation into the accident. And Team was left to rely almost exclusively on 

deposition testimony to defend itself, which placed it at an unnecessary 

disadvantage. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511 (1947) (“Certainly 

to fix the place of trial at a point where litigants cannot compel personal attendance 

and may be forced to try their case on deposition, is to create a condition not 

satisfactory to court, jury or most litigants.”); In re Oceanografía, S.A. de C.V., 494 

S.W.3d 728, 730 (Tex. 2016) (orig. proceeding) (defendants entitled to forum non 

conveniens dismissal where many witnesses could not be compelled to testify in 
56

Texas court and even though witnesses were willing and available to testify by 

deposition, defendants asserted that they would still be substantially prejudiced in 

presenting case to jury); In re Pirelli Tire, LLC, 247 S.W.3d 670, 678 (Tex. 2007)

(orig. proceeding) (granting forum non conveniens dismissal because key evidence 

and witnesses who could testify about damages, including witnesses most likely to 

be familiar with condition and maintenance of truck and tire, were located in 

Mexico); see also In re ENSCO, 311 S.W.3d at 925 (explaining it would be 

substantially unjust to party moving for dismissal for forum non conveniens if “great 

majority” of witnesses would not be amenable to compulsory process in Texas.). 

For these reasons, we conclude that the third forum non conveniens factor favors 

dismissal of Most’s suit for forum non conveniens. 

For the fifth factor, the trial court was required to decide whether “the balance 

of the private interests of the parties and the public interest of the state predominate 

in favor of the claim or action being brought in an alternate forum,” including 

“consideration of the extent to which an injury or death resulted from acts or 

omissions that occurred in this state.” See TEX. CIV. PRAC. & REM. CODE ANN.

§ 71.051(b)(5). The private interest factors to consider include: (1) the relative ease 

of access to sources of proof; (2) the availability of compulsory process for 

attendance of unwilling witnesses, and the cost of obtaining attendance of willing 

witnesses; (3) the possibility of view of premises, if view would be appropriate to 
57

the action; (4) enforceability of a judgment once obtained; and (5) all other practical 

problems that make trial of a case easy, expeditious, and inexpensive. Quixtar, 315 

S.W.3d at 33.

Again, the immediate acts or omissions that caused Henson’s death occurred 

in Kansas. By the time of trial, Most had nonsuited her claims against the Emerson 

entities and Siemens, leaving Team as the sole defendant. In trying her case, Most 

did not focus on any conduct by Team in Texas and did not call any Texas witnesses 

to testify. Most argued that Team was negligent because it failed to adequately train 

its employees at its training facility in Alvin, Texas. But the evidence showed that 

Team provided some training for its employees in locations outside Texas and some

training was available online, so any failure to provide adequate training was not 

necessarily attributable to actions or omissions by Team in Texas. In short, the 

record contains no evidence about any specific acts or omissions in Texas that caused 

the accident. Further, as noted in our discussion of the private-interest

considerations under the third factor, evidence relating to Westar’s conduct, 

including its communications with Team’s Broken Arrow office and its response to 

the steam release at the Jeffrey Energy Center, is located in Kansas, beyond the 

subpoena power of Texas courts.

Requiring parties to litigate a case in Texas when evidence and fact witnesses 

are beyond the reach of compulsory process is a waste of private and public 
58

resources. In re Gen. Elec. Co., 271 S.W.3d at 689. We also recognize that Kansas 

has a strong public interest in protecting the health and safety of its residents, 

particularly when its own public utilities are involved. See In re Pirelli Tire, 247

S.W.3d at 679. Kansas’s public interest in the suit is further reinforced by our 

holding that Kansas law applies, at a minimum, to proportionate responsibility issues

and to the amount of damages that Most can recover for her wrongful death claim. 

See In re Weatherford, 2024 WL 1819829, at *5. Given that the only connection 

Most’s suit has to Texas is the fact that Team has its corporate offices in Texas, 

Texas does not have a strong public interest in Most’s suit. See In re XTO Energy, 

2018 WL 2246216, at *9. Thus, it would be unfair to burden the residents of Fort 

Bend County with a retrial. For these reasons, the fifth forum non conveniens factor 

also supports dismissal of Most’s suit for forum non conveniens. See In re ENSCO,

311 S.W.3d at 926–27 (holding fifth factor supported forum non conveniens 

dismissal and rejecting plaintiff’s reliance on purported management decisions and 

actions allegedly made in defendant’s Texas offices because plaintiff failed to 

identify any specific corporate policy linked to her husband’s death); In re CVR 

Energy, Inc., No. 01-15-00715-CV, 2016 WL 1389013, at *5 (Tex. App.—Houston 

[1st Dist.] 2016, orig. proceeding) (mem. op.) (even considering that defendant’s 

corporate office was in Texas, Kansas had stronger interest in adjudicating dispute 

arising out of refinery fire in Kansas).
59

As to the sixth factor, Most argues that because her claims have already been 

tried, Team cannot establish that “dismissal would not result in unreasonable 

duplication or proliferation of litigation.” See TEX. CIV. PRAC. & REM. CODE ANN.

§ 71.051(b)(6). But we have already held that the trial court erred in applying Texas 

law to certain of Most’s claims and that the evidence does not support the damages 

award Most received. These holdings would require the Court to reverse the trial 

court’s judgment and remand Most’s suit for an entirely new trial. See Gregory, 670 

S.W.3d at 564 (plurality op.); Swinnea, 318 S.W.3d at 882. Because a new trial is 

required, “dismissal [of Most’s suit] would not result in unreasonable duplication or 

proliferation of litigation,” and the sixth forum non conveniens factor supports 

dismissal. See TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b)(6).

In sum, all factors relevant to the statutory forum non conveniens analysis 

favor Kansas as the proper forum for Most’s suit. Thus, we conclude that the trial 

court was required to “stay or dismiss the claim or action.” See TEX. CIV. PRAC. &

REM. CODE ANN. § 71.051(b); see In re Gen. Elec. Co., 271 S.W.3d at 686. Because 

it did not, we hold that the trial court erred in refusing to dismiss Most’s suit based 

on forum non conveniens.

We sustain the remaining portion of Team’s first issue.15

15 Due to our disposition, we need not address any remaining issues raised by Team in 

its briefing. See TEX. R. APP. P. 47.1.
60

Conclusion

We vacate the judgment of the trial court and dismiss the case for forum non 

conveniens.

Julie Countiss

Justice

Panel consists of Chief Justice Adams and Justices Countiss and Farris.