Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

Then, in September of 2009, Columbia sought mandamus relief to compel the trial court to (further modify the final judgment) "to reduce the [affirmed] punitive damage award in compliance with the statutory cap."  By per curiam opinion, the Texas Supreme Court held that the trial court abused its discretion by refusing to reduce the punitive damage award.   Stating that punitive damage awards that are statutorily capped are required to be recalculated when the actual damages against which they are measured are reduced on appeal, the court frames the question as whether its judgment had the effect of reducing the punitive damages award.   The court also observes that it has jurisdiction to enforce its judgments by mandamus.  Then the court acknowledges that its "judgment did not expressly address the amount of punitive damages" but asserts that the reduction was required by statute.  The court then holds "to give full effect to our judgment vacating a portion of the economic damages, the trial court was requred to reduce the punitive damages award in compliance with the statutory cap.  By failing to do so, the trial court abused its discretion."  The opinion may be found here.

The court's opinion does not indicate whether Columbia sought a reduction of punitive damages in its original trip to the court in the event that the actual damages were reduced.  The opinion also does not indicate whether Columbia sought to modify the judgment when Columbia filed its motion for rehearing.  One question I have in the wake of this opinion is what other instances in which statutory law may require a reduction of damages can a party assert that the trial court must modify an affirmed final judgment.  Perhaps the same argument could be made for prejudgment interest or post-judgment interest.  One must wonder if trial courts will know when they've abused their discretion and when they have not abused their discretion.  One must wonder if a final judgment really is final after it has been rendered by the Texas Supreme Court.

In re Jacobs is a case in which the plaintiffs brought suit for negligence and gross negligence in connection with medical care provided to Shannon McCoy.  Plaintiffs initially sought discovery of net worth information from the defendant medical providers.  The trial court first ordered Plaintiffs to replead to provide more specific allegations of gross negligence, and subject to a sufficient pleading, the trial court ordered the defendant physicians to produce financial statements they provided to a lender within the past 2 years or alternatively  to provide an affidavit stating what the net worth would have been if such a financial statement had been provided to a lender.  The trial court later clarified that the plaintiffs also would be allowed to depose the two physicians about their net worth.  The physicians sought relief from the court of appeals by writ of mandamus.

The majority notes that the physicians requested application of standards different from what appears to be the prevailing standard in Texas, but the majority concludes that it is "bound by the supreme court's ruling in Lunsford [v. Morris]."  The majority goes on to conclude that the Plaintiffs' live pleadings sufficiently alleged specific facts to support their allegations of gross negligence.  However, the majority concludes that the trial court did not sufficiently narrow the scope of the discoverable information.  First, the court holds that "only the relators' current net worth is relevant."  Accordingly, the court held that there was an abuse of discretion insofar as allowing discovery of past net worth.  The majority also concludes that that the trial court abused its discretion in allowing deposition questions to exceed the narrow inquiries into current net worth (defined as total assets less current total liabilities) and the facts and methods used to calculate the current net worth.  Finally, the majority holds that the trial court abused its discretion by requiring the physicians to create and produce affidavits in the form of what a lender would have required since a party cannot be forced to create documents that do not otherwise exist solely to comply with a request for production. 

Just as important as the majority's opinion is the concurring opinion by Justice Sullivan.  Justice Sullivan gives a brief history of the development of the law relating to gross negligence and discovery of net worth over the last 25-30 years, and advocates for resolution of conflicting standards of the meaning of  "net worth" and of the law surrounding right to discovery of net worth information.   Interestingly--whether Justice Sullivan is aware of it or not--there have been a few attempts to pique the Texas Supreme Court's interest on this subject.  In fact, I am aware of two cases in which the petition for writ of mandamus was granted, but the parties later settled before an opinion issued, and there is a third petition for writ of mandamus on which Justice Raul Gonzales wrote a dissent from the court's decision to deny review of that petition for writ of mandamus.  Now some 12 years later, it may be that Justice Sullivan has a point; the issue may have simmered long enough in the courts of appeals and it may be time to reexamine it.