Dissenting Opinion Filed August 18, 2020




                                       In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                               No. 05-18-00665-CV

       UNITED RENTALS NORTH AMERICA, INC., Appellant
                            V.
  PAMELA EVANS, INDIVIDUALLY AND AS ADMINISTRATOR FOR
  THE ESTATE OF CLARK BRANDON DAVIS, AND DOMINIC JONES,
                         Appellees

                On Appeal from the 191st Judicial District Court
                             Dallas County, Texas
                     Trial Court Cause No. DC-15-04449

                           DISSENTING OPINION
                            Opinion by Justice Schenck
      I join in Justice Evans’s dissent from our denial of reconsideration en banc

insofar as he raises concerns over jury selection. I write separately because, if we

were to rehear this case, I would also see a need to develop the damages issue

appellant raises. I write only briefly to explain why.

      Appellant’s brief before this Court challenges the absence of evidence of the

existence of cognizable pain and suffering and the amount of the award. Given the

extremely brief time that elapsed between the time the beams fell on his vehicle and

Mr. Davis’s death, I suspect that all involved with this matter would concede that
the recovery of any damages in a survival action for pain and suffering is a close and

difficult question. E.g., Ruiz v. Guerra, 293 S.W.3d 706, 722 (Tex. App.—San

Antonio 2009, no pet.); Las Palmas Med. Ctr. v. Rodriguez, 279 S.W.3d 413, 417

(Tex. App.—El Paso 2009, no pet.). Whether that fact-bound inquiry would be

worthy of en banc reconsideration standing alone is another matter. Simple

disagreements of the result in any given case, and other like claims of routine panel

error, are not properly the subject of en banc reconsideration. E.g., Kosliek v.

Spencer, 774 F.3d 63, 97 (1st Cir. 2014) (Thompson, J., dissenting). What I do see

as much more concerning, and worthy of full court review, is appellant’s separate

question: the standard by which the quanta of such awards are first made by the fact

finder and then reviewed on appeal.

      As I read appellant’s brief to the panel, its challenge is limited to the amount

of the pain and suffering damages awarded. In that effort, appellant cites to Saenz

v. Fidelity & Guaranty Insurance Underwriters, 925 S.W.2d 607 (Tex. 1996). To

be sure, Saenz required affirmative evidence at trial not only of the existence of the

injury “but of its amount” and required “meaningful appellate review” of that

proof. Id. at 614. But Saenz involved a challenge to mental anguish damages, not

physical pain and suffering. These two damage claims have very different pedigrees

and, to my knowledge, no decision from our supreme court has yet applied Saenz’s

heightened appellate review command to pain and suffering awards.



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      Still, while I believe it is the place of the supreme court to establish the proper

review standard to govern pain and suffering awards, we are left to borrow the

“shocks the judicial conscience” standard from our friends in San Antonio. Casas

v. Paradez, 267 S.W.3d 170, 185 (Tex. App.—San Antonio 2008, pet. denied). For

all of its charm, that standard more resembles a mood ring than a discernable,

objective legal test. Instead, I had hoped, in other matters, to be permitted to review

pain and suffering awards for sufficiency or excessiveness by means of comparison

of an award to other reported cases involving like facts. Cate v. Posey, No. 05-17-

01216-CV, 2018 WL 6322170, at *5 (Tex. App.—Dallas Dec. 4, 2018, no pet.)

(mem. op.); see also HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 872 (Tex.

App.—Fort Worth 2005, no pet.) (proper to consider other approved awards in

similar cases to determine if award for pain and suffering is excessive); Sunbridge

Healthcare Corp. v. Penny, 160 S.W.3d 230, 250 (Tex. App.—Texarkana 2005, no

pet.) (same). As our panel notes in this case, my effort in this respect is in conflict

with earlier, controlling panel authority and is thus wrong absent en banc

reconsideration. U-Haul Int’l, Inc. v. Waldrip, 322 S.W.3d 821, 855–56 (Tex.

App.—Dallas 2010), aff’d in part, rev’d in part on other grounds, 380 S.W.3d 118

(Tex. 2012). While this will not be that case, the issue may be addressed by the




                                          –3–
supreme court in connection with this or another pain and suffering award.




                                                /David J. Schenck/
                                                DAVID J. SCHENCK
                                                JUSTICE



Whitehill, J., joins this dissenting opinion.

180665DF.P05




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