Schindler Elevator Corp. v. Anderson
| Decision Date | 04 April 2002 |
| Docket Number | 149801286CV,14 |
| Parties | SCHINDLER ELEVATOR CORPORATION, Appellant v. SCOTT ANDERSON AND DIANA ANDERSON, INDIVIDUALLY AND AS NEXT FRIENDS OF SCOTT "SCOOTER" ANDERSON, AppelleesCourt of Appeals of Texas, Houston (14th Dist.) |
| Court | Texas Court of Appeals |
On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 96-27569
En Banc court consists of Chief Justice Brister, Justices Yates, Anderson, Hudson, Fowler, Edelman, Frost, Seymore, and Guzman, and Senior Justices Draughn, Sears, and Lee.*
D I S S E N T I N G O P I N I O N O N D E N I A L O F R E H E A R I N G E N B A N C
Given the importance of the issues discussed below, I believe this case should be decided by the Court en banc rather than a panel of three visiting judges. Because a majority of the Court votes to deny the motion for rehearing en banc, I respectfully dissent.
Punitive damages are warranted only when clear and convincing evidence shows malice or fraud.1 The trial court ruled there was no such evidence in this case, and the plaintiffs do not appeal that ruling. Nonetheless, in all probability the panel's judgment includes them.
What happened in this case is quite clear-- the jury included punitive damages in the guise of compensatory damages. Three facts make this plain:
1. The plaintiffs' counsel told them to do it. On Schindler's motion, trial was bifurcated.2 The jury's first verdict should have included only compensatory damages.3 Compensatory damages are intended to make a plaintiff whole; punitive damages are intended to deter others, an "altogether different purpose."4 But during his closing rebuttal (when Schindler's attorney could no longer respond), the Andersons' attorney urged the jury to award damages that would not just compensate his clients, but would "send a message" to the entire escalator industry:
I'm convinced with your verdict when you reach the truth that you'll send a message loud and indubitably clear to the escalator industry they can't carry this charade on any more; it's been uncovered and they're going to make those escalators reasonably safe.
* * * *
Ladies and gentlemen, you are the jury. You are the conscience of this community, and as such, we beg you to send a declaration to the escalator industry. When you walk through that door of that jury room you will have an opportunity on behalf of all parents, all children everywhere, to talk directly to the board of directors of all the escalator companies in the world because, believe me, they're watching this trial. It is very unlikely that you will have the opportunity to serve mankind as much as you will have in this case, to do so much good for children. If your verdict is large enough they'll listen to it and they'll make changes.
* * * *
I beg you to write justly, be proud, and when you go home, all of you, this week or whenever it is, and your family asks you, what did you do in Court, you can look them in the eye and say, here's what I did in Court. I made this community and this world a safer place to live in because I helped make it safer for the little people.
2. The jurors said they did it. Schindler attached to its motion for new trial two newspaper articles that referenced the following post-trial comments by jurors:
said juror Kevin Fletcher of Houston.5
Jurors said after the 10-2 verdict they did not realize there would be a punitive damages phase and awarded the $17 million on May 21 to send Schindler a message. The next day, they awarded only $100,000 in punitive damages.6
3. The verdict shows they did it. The jury returned a verdict of $16.97 million as compensatory damages, but only $100,000 as punitive damages. From beginning to end, the Andersons' case focused on showing negligence in an entire industry. Indeed, they had little choice--the safety side plates designed by their only liability expert to avoid accidents like this one had been rejected by not just Schindler but by all its competitors. Moreover, the appellees make no effort by cross-appeal to reinstate more than 60% of the "compensatory" damages awarded by the jury. Unless the jury confused compensatory and punitive damages, this verdict makes little sense.
The standard for reviewing a trial court's order of remittitur changed fifteen years ago. In 1987, Justice Kilgarlin writing for a majority of the Texas Supreme Court held in Larson v. Cactus Utility Co. that courts of appeals should thenceforth apply a factual-sufficiency standard of review.7 An abuse-of-discretion review had been the previous standard, under "long-established precedent" and several unanimous Supreme Court opinions, as pointed out by Chief Justice John Hill (joined by Justice Raul Gonzalez) in dissent.8
This change put Texas out-of-step with most other states. At least thirty-nine of our sister states review a trial court's order of remittitur for abuse of discretion.9
Only a handful of states apply a different standard, usually due to a special statute or rule.10
Federal appellate courts likewise follow the abuse-of-discretion standard of review.11
Factual-sufficiency review is appropriate when appellate courts grant remittitur.12 As appellate judges, we know nothing about a trial except what appears in the written record. We cannot grant a new trial--remittitur's conjoined twin--for reasons that do not appear in the record.13
But trial courts can--they enjoy much broader discretion in granting a new trial.14 They are also uniquely positioned to determine whether the jury's award was based on passion or prejudice rather than reason.15
Trial judges may grant new trials:
1. because of their own erroneous rulings, or because a member of the jury was inattentive;16
2. because improper factors--such as bias, racism, or corruption--may have influenced the jury's award;17
3. for no stated reason,18 or even if a stated reason is wrong.19
Undoubtedly, the trial judge here could have granted a new trial because the jurors made a glaring mistake in answering the questions put to them. Because it would have been wasteful for all concerned to try this case twice, the trial judge properly gave the plaintiffs a choice between a new trial and a remittitur. As in every case reviewing remittitur on appeal, they indicated a preference for the latter.
When remittitur is based on weak evidence, it is reasonable to review it for factual sufficiency.20
But if a remittitur is based on bias, corruption, unfairness, or any other reason outside the trial record, testing the evidence within the trial record for factual sufficiency is nonsense--the taint lies elsewhere.21
Under the Larson rule, remittitur is not an option in such cases; if the problem lies outside the trial record, the remittitur will always be reversed on appeal. Trial judges facing this problem can only grant a new trial to undo the harm--even if the plaintiff would prefer remittitur.
The panel in this case upholds $3.5 million of the judgment--and adds more than $1 million to it--even though both probably include punitive damages. By faithfully applying a factual-sufficiency standard of review, the panel must turn a blind eye to what happened in this trial and after it:
1. Ignore what the plaintiffs' counsel said. The argument by the Andersons' attorney invited error, but Schindler's counsel did not object. Schindler makes a plausible argument that it was trapped--an objection would have played into the plaintiffs' theory of an industry-wide conspiracy of silence that Schindler was trying to protect. But this Court has already held that "send a message" arguments are not incurable,22 so an objection was required.
2. Ignore what the jurors said. A juror cannot testify or submit an affidavit about any matter occurring during deliberations.23 Thus, jurors may tell the newspapers about their mistakes, but not us.
3. Ignore the glaring disparity in the verdict. The panel concludes that because factually sufficient evidence supports each element of damages, it also supports the entire verdict. Under Larson, there is little more that can be done. We must compare compensatory and punitive damages awards when we review the second; it is hard to see why we shouldn't do the same when we review the first.24
we find that:
1. on the one hand, Scooter Anderson is a happy child, has had a remarkable recovery, is currently active in many sports, is doing well at one of Houston's premiere private schools, and appears to have a bright future;
2. on the other hand, he has undergone a harrowing injury, is still adjusting to the loss of a large part of his foot, occasionally has exaggerated fears for his safety and that of his family, and may have to undergo many more surgeries in the future.
Obviously, there was factually sufficient evidence that Scooter suffered pain, mental anguish, impairment, and disfigurement. But was there factually sufficient evidence that Scooter's future pain and mental anguish amounted to $1,000,000.00 rather than $304,878.28? Or that his future physical impairment amounted to $1,524,390.80 rather than some lower figure? That, of course, is difficult to say.
Two highly-respected academics have commented on this problem with Larson:
In cases involving intangible damages, it will be difficult for appellate courts to point to specific testimony that demonstrates excessiveness (or inadequacy, for that matter). Nevertheless, common sense suggests that courts should have some authority to review excessive or...
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