In a per curiam opinion,1 the Texas Supreme Court reversed a $12 million jury nuclear verdict, determining that counsel for the Plaintiff improperly suggested in his closing arguments that the defense was motivated by gender and racial bias. In the case of Roberto Alonzo and New Prime Inc. v. John, 647 S.W.3d 764, 770-71 (Tex. May 10, 2024).The court determined that an unprovoked and uninvited personal attack on the defense counsel was improper and inflammatory while completely unsupported by any evidentiary basis presented in the case.
Factual Background
Christine John and Christopher Lewis were injured when a tractor trailer driven by Roberto Alonzo rear-ended them. John and Lewis brought claims for their personal injuries against Alonzo and his employer, New Prime. They sought noneconomic and exemplary damages. At trial, Alonzo and Prime conceded liability, which only left the issue of damages.. The jury awarded $12 million to John and $450,000 to Lewis for physical pain and mental anguish but declined to award exemplary damages. Alonzo and Prime filed a motion for a new trial, based partly on the allegation that the counsel for the plaintiff unnecessarily inflamed the jury by making an improper and unfounded accusation that the defense counsel was motivated by racial and gender bias and discrimination. The Texas Supreme Court took up the case, reversed and remanded the case for a new trial.
Improper Arguments to the Jury by Counsel
Although under most circumstances, improper jury arguments made by counsel are curable, in some extreme instances, a new trial may be warranted. In re Rudolph Auto, LLC, 674 S.W.3d. 289, 296 (Tex. 2023). If a court finds that counsel's statements to the jury are "so inflammatory and prejudicial" that it may not be remedied, then the court may find that it was an incurable circumstance. Tex. Emp. Ins. Ass'n v. Haywood, 266 S.W.2d 856, 859 (Tex. 1954). Courts look at the circumstances and the content of the alleged inflammatory statement on a case-by-case basis.
Courts will examine whether the "argument, considered in its proper setting, was reasonably calculated to cause such prejudice to the opposing litigant that a withdrawal by counsel or an instruction by the court, or both, couldn't eliminate the probability that it resulted in an improper verdict." Living Ctrs. Of Texas, Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008). In making a decision on this issue, courts will look at the case as a whole, and not limit its examination only to the alleged inflammatory statement(s). Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839-840 (Tex. 1979).
In the case at hand, counsel for the Plaintiffs mentioned gender and racial bias in voir dire and also circled back to it during closing arguments. Plaintiff's counsel specifically stated in closing arguments, "We don't want their 4-5 million dollars. That's not fair. Because it's a woman, she should get less money? Because she's African American, she should get less money? No. We are going to fight because we believe in the jury system."
The defense objected to this statement arguing that it was a personal attack that unnecessarily inflamed the jury. Although the court warned the plaintiff during a bench conference to limit their argument to the facts and evidence admitted in the case, no other correction was taken. The defense filed a motion for a mistrial, but it was denied.
Upon review by the Texas Supreme Court, the justices determined that Plaintiff counsel's decision to reference racial and gender prejudice tainted the jury and resulted in an incurable jury argument. "An appeal to racial prejudice is a paradigmatic example of an incurable jury argument." Living Ctrs., 256 S.W.3d at 682.
Alonzo and Prime, like any defendant, were allowed to suggest a lower damage amount than requested by the plaintiff without being accused of discrimination and bias. Recurring statements that the defendants were seeking a "discount" on damages followed up by the implication that their motivation was based on gender and racial discrimination, was blatantly inflammatory and prejudicial. The court stated, "Counsel pointedly insinuated that Alonzo and New Prime sought a lower damages amount because the plaintiff was a black woman." There was no evidence that defense's assessment of damages was based on any kind of discrimination or bias.
The court concluded that the statements were incurable and irreparably inflamed the jurors. "Extreme and unsupported personal attacks on the opposition, damage the judicial system itself by striking at the impartiality, equality and fairness of justice rendered by the court,." Living Ctrs. At 681. Therefore, the court found in favor of the defense and subsequently reversed and remanded the case for new trial.
Reining in Verdicts
In a footnote at the end of the per curiam opinion, the Court noted that it did not reach Alonzo and New Prime's remaining issues which included complaints about unsubstantiated anchors. Nevertheless, the Court continued to build upon its opinion from the prior term in Gregory v. Chohan, 670 S.W. 3d 546, 558 (Tex. 2023). In Chohan, the Court expressly ruled that unsubstantiated anchors … have nothing to do with the emotional injuries suffered by the Plaintiff and cannot rationally connect the extent of the injuries to the amount awarded. The Texas Supreme Court is clearly aware of the "runaway jury" or "nuclear verdicts" that have recently come down in Texas and is taking cases to reign in verdicts that are contrary to Texas law.
__________________
1 Justice Lehrmann did not participate in the decision.