Josh and Aaron discuss how the Texas court defines “Mental Anguish” and why it is often difficult for cases to recover damages for mental anguish in their pleadings.
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0:00:00.1 Aaron: Hey, Josh.
0:00:01.8 Josh: Hey, Aaron.
0:00:02.9 Aaron: Ask me the definition of mental anguish right now.
0:00:04.1 Josh: What’s the definition of mental anguish right now?
0:00:07.5 Aaron: In Texas, it’s a high degree of emotional pain or stress beyond mere worry, vexation, embarrassment, anger, or frustration. Do you know why I asked you to ask me that?
0:00:19.8 Josh: Yes, I do.
0:00:21.5 Aaron: I was gonna forget it.
0:00:23.7 Josh: But you had it right there prepared, and ready to recall. [laughter] That was pretty good.
0:00:28.6 Aaron: I just, yeah.
0:00:30.5 Josh: I mean.
0:00:31.3 Aaron: It’s a lot.
0:00:33.3 Josh: Would you say that the stress that you endured in trying to retain that definition for that 32nd interval was sufficient to recover an award of mental anguish damages in a Texas court?
0:00:46.9 Aaron: No, absolutely not. Texas is harsh. It’s harsh. It’s so harsh, in fact, that we’ve had cases where we’ve specifically left mental anguish out of our pleadings, meaning that we’re not even asking the jury for it, because it’s so hard to keep on appeal with the Texas Supreme Court. And this is not a session, we’ll have a session complaining about the Texas Supreme Court, but this is not it. Today…
0:01:11.9 Josh: It’s a little piece of every section [laughter]
0:01:12.8 Aaron: That’s true. That’s true. And today though, we’re talking about sort of like why that exists. Why is there this sort of barrier to recovery when you’re stressed or anxious? Like, if I did that to someone else, it feels like I should pay. Tell me why there’s this sort of difficult definition to go through. And there’s more than just the definition.
0:01:37.3 Josh: Yeah. There’s the burden of proof that comes along with the definition. The questions about whether you even wanna open that can of worms because of what it means procedurally in the case, and being required to let people peek into your most private of files. But let’s, take a step back and talk more practically. I mean, you did a great job with the definition. I think you got it right. But let’s talk a little bit more practically about what are we talking about here. So when a person gets hurt, and sometimes even when they don’t get physically injured, but typically speaking in a personal injury case, you’re dealing with the person who’s been harmed. The law outlines the categories of harms and losses that you can ask a jury to award you money for if you can prove that you in fact, sustained that harm or loss and/or that you’re likely to continue sustaining that harm or loss for the long term.
0:02:34.5 Josh: And we’ve talked at length about kind of those economic harms and losses, the medical expenses, the lost earnings, all those things. The softer harms and losses are things like your physical impairment, not being able to do certain things, limited movement, limitations in your ability to do certain things. The other one being pain and suffering, which is actually experiencing subjectively the pain of the injury. And then the third one typically is mental anguish, which is the definition that you gave, but it’s effectively kind of the stress and maybe trauma, psychological trauma that comes along with an injury. And everyone’s a little bit different in how severely that impacts them, but it is something that at present, the law in Texas allows you to recover money for.
0:03:33.4 Aaron: Yeah. So, if we back up and say, in theory, if I can convince 12 people that I’ve been harmed by someone else and that it’s worth money, then those 12 people, if we’re really, really living in a true democracy, those 12 people should be able to make that award and give me the money. But in Texas and in all states, there’s some restrictions that are just plain practical. I mean, the fact is, if there’s a car crash, there are hundreds, maybe thousands of people who are delayed getting to work, they are probably losing some form of money, or maybe their employers are from the lack of productivity. There are people who witness crashes and it haunts them a little bit.
0:04:22.9 Josh: Yeah.
0:04:25.6 Aaron: There’s all sorts of stress that gets put on people. Just, life is stressful, let’s face it. And we can’t just be suing each other all the time over everything. And that would probably worsen the reputation that personal injury lawyers have. Like suing dry cleaners for the spot on our pants all the time and stuff like that. The law correct…
0:04:44.1 Josh: Which you could do in small claims court, probably.
0:04:46.5 Aaron: Technically. All right. All right. All right. But the law correctly draws some circles around the crash, and it’s like, you know what? We’re not gonna let you have mental anguish unless you’re physically proximate to the, like, sites of the injury.
0:05:01.3 Josh: You’re standing there when the thing, the really, really bad thing happened, or you were involved in it yourself.
0:05:07.4 Aaron: And you are physically harmed, meaning, I think the court used the term corporeal, something of the body. For example, if you weren’t the person hurt, but you saw it, and you vomited out of just the emotional shock of it all, that could potentially trigger the physical portion of the circles that they’re drawing. But you also have to have, now we’re getting the bystander claims, a level of consanguinity, meaning that the close familial relationship, either by blood or marriage with the person who is injured. And now you’ve got standing to bring a mental anguish claim, and you still gotta jump through those hoops that I said earlier, which is a high degree of emotional stress or pain beyond mere worry, vexation, embarrassment, frustration, or anger.
0:05:57.2 Josh: Yeah. So, just being scared or just having some anxiety, maybe even a little bit of sleeplessness, probably not going to be something that you can ask a jury to award you money for. I think some of the terminology that the Texas Supreme Court has used is, a substantial disruption in your daily routine.
0:06:22.2 Aaron: Yes.
0:06:22.9 Josh: I mean, something that is having a measurable impact on the way that you go about your life. We were just talking about some cases that have actually addressed this, where you can read the facts and understand when courts have said, yes, this meets the challenge, and when no, this does not meet the challenge. And…
0:06:41.8 Aaron: Yeah. Help us out there. I wanna know more, like you’ve got some cases that you’ve read recently.
0:06:46.6 Josh: Yeah. Yeah. I mean, I did all that research when I went on the crusade, to prove that uninsured underinsured motorist coverage insurance companies actually had to treat their insureds, everyone listening to this podcast fairly. So, I.
0:07:02.8 Aaron: I remember that.
0:07:02.8 Josh: Did a bunch of research and the one that was kind of notable was an insurance company was treating this guy poorly and, really poorly. And he ended up, when they handled his claim improperly, wouldn’t pay him on his claim, he ended up losing his car, losing his job, losing his apartment. Those are things that if you’re hurt in a car crash and you have these sort of catastrophic consequences that literally change the way that you go about your life, you would expect a court, would accept that as substantial enough of a disruption in your daily routine to just, justify getting compensated for going through that.
0:07:52.4 Aaron: Now, what if you lost a loved one and you couldn’t get yourself up off the floor because of the high degree of emotional distress and pain. And it substantially disrupted your daily life, but the loved one was an animal in Texas. What happens?
0:08:14.9 Josh: Yeah. That’s a really germane question right now because we just had this catastrophic fire, at a Georgetown Veterinary Hospital, and a whole lot of people lost their dogs. And actually, we get asked this question frequently when, people are walking their dogs and another person has their dog off leash and it attacks and really harms their animal or kills their animal, or their animal gets hit by a drunk driver, like bad things happen. People have their dogs in their car when they’re driving, they get hit, or their cats or whatever their animals are, whatever their pets are. And the law basically says, no, you don’t get to recover mental anguish for the death or injury to a non-human because non-human pets, I guess no one really has a human pet, probably [laughter] but animals are just considered property in Texas.
0:09:14.6 Aaron: Right.
0:09:16.1 Josh: They’re treated no differently than if you had a bike pin in your glove compartment that got broken when you had a crash, you get to prove what the replacement value is or the value to repair it is, and that’s what you get.
0:09:29.0 Aaron: And we go back to those hurdles that the law is putting in place. And so one of them is that you be physically injured or that it’d be a person who’s physically injured. Property, like if you hit someone’s fence, it’s true that there might be someone who valued their fence so highly, maybe they had some emotional connection to it, that they suffered a high degree of emotional stress or pain, and it did substantially disrupt their daily life. But the law says, look, we can’t just be, we don’t have any way to check that. Everyone could say that their fence was, had this personal value to them. All of a sudden everyone’s getting four or five, 10 times the value of their fence every time someone hits their fence. So, we gotta draw some kind of line around it. And the line they drew is that, can’t be property, it’s gotta be a person.
0:10:22.5 Aaron: Problem with that is in the modern world, I think we’ve come to this consensus, and you know this because if you get on a plane these days, everyone’s got an animal that that are coming on. People don’t even blink. They’re like, of course you’re bringing your dog with you on your trip. You love your dog. I love your dog. I’m glad your dog’s here. Like, we’re all happy. We celebrate animals. We at FVF law, I don’t have to tell you, I might have to tell our listeners. We are deep into the Austin Humane Society doing volunteer work and donating to their causes. We’ve created a dog calendar. That’s one of the most popular things we’ve done, where every year we’re celebrating the animals, either of our staff or of the Austin Humane Society or this year of the different community organizations that we partner with.
0:11:15.2 Aaron: And animals have been central to our lives. I think they’ve just integrated into the modern life, and yet the law hasn’t quite caught up to that. And we’re still kind of in castle times where it’s like, well, your livestock is worth a thousand dollars a head max or something like that. And so right now we’re kind of examining that and we’re working with, one of the lawyers who worked on the Georgetown fire case, to see if we can craft a new law, and see if we can find a legislator to sponsor that law and get it through this next session. So right now, FVF is kind of reaching out to other lawyers in the community on Capital Area Trial Lawyers Association, the Texas Trial Lawyers Association, working with the lawyers from that case. And hopefully we can come up with a new framework, something that doesn’t disrupt the Texas Supreme Court’s concerns about, well, what about that guy who wants 10 times the value of his fence? We do have to take that into consideration. But in my opinion, and I’m sure it’s your opinion, that I think we can do that. We can trust jurors to do that.
0:12:29.4 Josh: Yeah. We have to. I mean, that’s the way that our civil justice system works. That’s the way that we allow jurors to be empowered, to be the conscience of the community, to help us understand what’s acceptable behavior, what’s not acceptable behavior, what we value, what we don’t value. And it’s really, we’ve talked about this at length before. One of the most beautiful parts of the American government is the power that a jury holds to effectuate change.
0:13:03.1 Aaron: Yeah. Yeah. So, hopefully, stay tuned. We’ll have some updates on this in future podcasts as we get closer to, I think it’s the March 14th deadline to submit new bills here in Texas. Who knows? We might have a change in the law and we can come with a part two of this podcast that’s maybe, optimistic.
0:13:22.8 Josh: Yeah. Well, thanks for your insight. Thanks for the work that you’re doing on that and good talking to you as always.
0:13:26.2 Aaron: Likewise.