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Article of Interest

Beware of Presumed Damages: Prepare in case you lose the presumption
By:  John Burkhead

In some cases, proof of certain facts can allow a jury to presume certain elements of actual damages,¹  including mental anguish damages and physical pain.²  But beware of relying upon such a presumption. Presumed actual damages are subject to at least a couple of major caveats. First, it appears that a “plaintiff must always prove special damages” in order to recover any presumed actual damages.³  This means that you need to have a jury award some type of economic or pecuniary damages or any presumed damages that are awarded are meaningless. Second, any “awards of presumed actual damages are subject to appellate review for evidentiary support.”⁴  I take this to mean that you had better go ahead and put on all your evidence of the presumed element of damages as if the damages were not presumed.

Pretrial considerations in presumed-damage cases should, therefore, not really differ from cases where damages are not presumed. So you need to be sure to plead for all the damages you seek and disclose the amount and method of calculating any economic damages so that you can put on evidence of special damages. You should fully disclose all of the lay and expert witnesses that can testify to the nature, duration, and severity of any element of presumed damages, and, depending on the value of the case, you could invest in demonstratives such as a day-in-the-life video or medical illustrations. Spend time with your client and any important witnesses so that you understand the full extent of the injuries and are prepared to put on your evidence. If the testimony is crucial, it may be worth taking witness statements or doing a direct examination during a deposition. (This is especially true if you anticipate the other side will file a summary-judgment motion.)

Hancock v. Variyam illustrates the dangers of what can happen if one relies on presumed damages without planning for a scenario where the court takes away the presumption. Important supporting proof of mental anguish was absent, including proof that the claimant required “medical attention;” testimony from the claimant or other witnesses to corroborate any outward manifestation of mental anguish or elaborate on the impact of anxiety or depression on the claimant’s life; and finally, a showing that certain activities or situations, such as work, were avoided or impaired.

In conclusion, it is not safe to rely on a presumption of damages. When preparing to try a presumed-damages case, prepare just as if you had not already met your burden of proof.

<sub><sup>1. Actual or compensatory damages are intended to compensate a plaintiff for the injury she incurred. They include general damages (non-economic damages such as for loss of reputation or mental anguish) and special damages (economic or pecuniary damages such as for lost income). General damages are noneconomic in nature, such as for loss of reputation and mental anguish. See Hancock v. Variyam, 400 S.W.3d 59, 63 n.4, 65 n.9 (Tex. 2013).

2. See Hancock, 400 S.W.3d at 63–65 (in defamation per se case, jury can presume damages for mental anguish and loss of reputation), citing Bentley v. Bunton, 94 S.W.3d 561, 604 (Tex. 2002); Gen. Motors Corp. v. Burry, 203 S.W.3d 514, 552 (Tex. App. – Fort Worth 2006, pet. denied) (“Pain and suffering may be inferred or presumed as a consequence of severe injuries.”); Coastal States Gas Prod. Co. v. Locker, 436 S.W.2d 592, 600 (Tex. Civ. App. – Houston [14th Dist.] 1968, no writ) (“Mental anguish may be presumed in cases of severe injury”), citing Dallas Ry. & Terminal Co. v. Davis, 26 S.W.2d 340 (Tex. Civ. App. – Dallas 1949, no writ).

3. Hancock, 400 S.W.3d at 66–68.

4. Id. (citing Bentley, 94 S.W.3d at 605–06 (plurality)); Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996)).</sup></sub>

John Burkhead is a lawyer at the Law Offices of Frank L. Branson, P.C. A version of this article first appeared in the December 2013 issue of The Dicta and is printed here with the permission of the Dallas Association of Young Lawyers.