In two recent decisions – Gregory v. Chohan and In re Richardson Motorsports – the Texas Supreme Court addressed the evidentiary requirements for noneconomic damage awards and the discovery of mental health records in cases involving claims of noneconomic damages. Both cases will have lasting effects on how parties litigate and defend noneconomic damage claims.
What happened in Gregory?
- In January 2023, the Texas Supreme Court issued its much-anticipated decision in Gregory v. Chohan, addressing the evidentiary requirements for noneconomic damages awards in wrongful death cases.
- The key takeaway from Gregory is that a rational connection between the evidence and the amount of noneconomic damages awarded is required. The Court made it clear that plaintiffs must demonstrate both the existence of compensable mental anguish or loss of companionship and a rational basis in the evidence for the specific amount awarded by the jury.
- The plurality opinion authored by Justice Blacklock condemned the use of “unsubstantiated anchoring” – suggesting damage amounts by referencing arbitrary values unconnected to the facts of the case. Arguments referring to the price of a fighter jet or a painting to justify mental anguish awards were deemed improper. So too was a plea to award an amount based on the miles driven by the defendant’s trucks. This “picking numbers out of a hat” approach will no longer fly.
What happened in Richardson?
- In May 2024, the Texas Supreme Court issued an opinion addressing the applicability of the patient-litigation exception to the physician-patient and mental-health-information privileges.
- Citing Gregory, the Court noted that a plaintiff seeking mental anguish damages must provide evidence of the nature, severity and duration of mental anguish. The Court further noted the longstanding rule that the privilege against disclosure of mental health records does not apply when a party relies on the plaintiff’s mental or emotional condition as a claim or defense, and a record or communication is relevant to that condition.
- In Richardson, the Court explained what steps a trial court should take when a party seeks discovery of a plaintiff’s mental health records despite the plaintiff’s assertion of physician-patient and mental-health-information privileges:
“[W]hen a party raises a patient-condition exception for discovery allegedly privileged records, disputed questioned for the trial court to consider include: (1) whether the patient consulted a physician or other professional and claims that the records of that consultation are privileged, thus indicating that ‘the diagnosis, evaluation, or treatment’ of a ‘physical, mental or emotional condition’ or ‘disorder’ may be at issue; (2) whether the pleadings indicate that a party ‘relies on’ such condition as ‘part of’ its claim or defense; and (3) whether an in camera review of the records confirms that they address such a condition and shows that the professional’s records are ‘relevant to’ the relied-upon condition.”
- The Court noted that trial courts must look to pleadings alone – rather than the potentially privileged medical records – to determine if a party relies on the plaintiff’s mental health treatment as party of its claim or defense. More importantly, trial courts must conduct an in camera review of the mental health treatment records to determine if they address the plaintiff’s medical condition and are relevant.
- Even when the trial court finds that all of these elements are met, the party seeking production is only entitled to disclosure of the records (or portion of records) that are relevant to the plaintiff’s claimed mental condition. If they parties cannot agree on appropriate redactions, the trial court must ensure that only the relevant portion of records are produced.
How will Gregory and Richardson Impact Our Litigation Practice?
- As plaintiffs’ counsel seek ways to introduce evidence of their clients’ mental anguish damages while avoiding “unsubstantiated anchoring,” they may be more likely to offer testimony from treating health care providers. This can lead to waiver of physician-patient and mental-health-information privileges as well as intrusive discovery regarding the plaintiff’s past mental health treatment.
- Defendants who seek a plaintiff’s mental health records must be certain that their pleadings clearly allege that the plaintiff’s mental health is relevant to their defenses. For example, defendants’ pleadings should include affirmative defenses such as intervening cause, new and independent cause, superseding cause and sole proximate cause.
- Plaintiffs are entitled to an in camera review of any mental health records sought and seek redaction of any mental health records (or portions of records) that are not relevant to the mental health condition made basis of their claims or the defendant’s defenses.
- Plaintiffs’ counsel will need to be vigilant in objecting to and seeking to quash any discovery seeking disclosure of mental health records to ensure that the opposing party’s pleadings justify the request and that the court conducts the necessary in camera review.
- All parties will need to engage in expensive motion practice and a potentially lengthy in camera review to obtain mental health records and/or ensure that only relevant, narrowly-tailored mental health records are produced within the applicable expert designation and discovery deadlines.
While the long-term fallout of Gregory and Richardson remains to be seen, it appears that it is becoming increasingly complicated to prove mental anguish/noneconomic damages or seek discovery of mental health records to bolster an affirmative defense. Counsel should explain these hurdles to their clients and consider the cost and time of such discovery when determining when to engage in settlement negotiations and attend mediation.