The Houston 1st Court of Appeals has issued a rather scary opinion attempting to raise the bar for future mental anguish damages to near unreachable heights.N.N. vs. Institute for Rehabilitation and Research ("TIRR") involved a physically disabled and brain-injured female plaintiff, who was raped by another brain-injured patient while she lay, "quite literally helpless, in her own feces after bowel movement." The majority, consisting of Justice Sam Nuchia and Justice Elsa Alcala held that the following evidence constitute "no evidence" of mental anguish:
(1) on the night of the assault, A.B. was visibly upset, had a flushed face, and used finger gestures that indicated a sexual assault;(2) when questioned by a police officer shortly after the incident, A.B. began to weep and asked for her ?mommy?;(3) in the immediate months following the assault, A.B. had sleeping problems, a fear of going to TIRR, a fear of seeing the man who assaulted her, and a goal to stay awake at night, and was �?very much�? upset about the assault;(4) A.B. was embarrassed about telling her former boyfriend about the incident because he would think she was dirty; and(5) A.B. felt uncomfortable at the hospital, uncomfortable with sexual relationships, and dirty.
The Court disagreed with the jury that actually sat in the court room and heard all of the evidence and testimony presented live and decided to penalize the plaintiff for not being sufficiently articulate due to her brain injury. Here is the majority opinion. If you practice in Texas, you better take a look at the language to see the strict direction some Courts are going in their efforts to continue chipping away at mental anguish damages.The dissent, authored by Justice Terry Jennings pointed out how ridiculous it is that a plaintiff who suffered the type of trauma inflicted on the plaintiff in this case would even need to bringindependentdant evidence that suchoccurrenceance would cause mental anguish. Here's the money quote:
Here, there is ample direct evidence in the record that A.B., while disabled, was the victim of an aggravated sexual assault?raped by a brain-injured patient as A.B. lay, quite literally helpless, in her own feces after a bowel movement. It is difficult to imagine a more shocking or particularly disturbing event than what A.B., while helpless, had to endure at the hands of her assailant. Under these circumstances, mental anguish damages are not at all ?hard to justify,? and A.B.?s mental suffering, including future mental anguish, should be presumed to flow from such a horrific act.A sexual-assault victim should not have to provide expert testimony or jump through formulaic, rhetorical hoops to prove the obvious?that she will carry the burden of having been raped with her for the rest of her life, especially here, given A.B.?s previous brain injury and the grotesque circumstances. This simple fact should be beyond dispute by people of good will in a civilized society as ?an acknowledged result of human experience.?
Here is the dissenting opinion.