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Date: 02-07-2022

Case Style:

Joe Holcomb, et al. v. United States of America

Case Number: 5:18-cv-00555-XR

Judge: Xavier Rodriguez

Court: United States District Court for the Western District of Texas (Bexar County)

Plaintiff's Attorney:

Best San Antonio Personal Injury Lawyer Directory

Defendant's Attorney: United States District Attorney's Office

Description: San Antonio, Texas personal injury lawyers represented Plaintiffs who sued the United States of America on Federal Tort Claims Act wrongful death negligence theories claiming millions of dollars in damages and/or injuries as a result of Devin Patrick Kelley being able to buy a semi-automatic rifle that he used to shoot and wound or kill numerous people attending a church service in 2017.

Kelley was discharged from the Air Force in 2014 after being convicted of domestic violence and information about him should have been entered into the government database to prevent him from buying an AR=556 rifle.

Texas law controls the award of damages in this case. See Lebron v. United States, 279 F.3d 321, 326 n.4 (5th Cir. 2002). In personal injury and wrongful death cases, there are two broad categories of compensatory damages-economic and noneconomic damages. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 763 (Tex. 2003).

* * *

I. Economic Damages

In Texas, economic damages consist of “compensatory damages intended to compensate a claimant for actual economic or pecuniary loss; the term does not include exemplary damages or noneconomic damages.” Tex. Civ. Prac. & Rem. Code § 41.001(4). Such damages at issue here are past and future medical expenses, past and future loss of earning capacity, and pecuniary losses for wrongful death including loss of services and support. See generally ECF No. 578.

At the start of the damages trial, the Government provided the Court with stipulations as to the Plaintiffs' economic losses. ECF Nos. 530, 559, 576. These stipulations reflect conclusions from the Government's experts concerning such losses. ECF No. 579 at 4. They further reflect the agreed value of Plaintiffs' past medical expenses. ECF No. 576 at 1.

1. Pecuniary Loss

Pecuniary losses in the wrongful-death context are defined as the loss of the earning capacity of the decedent as well as the value of advice, counsel, services, care, maintenance, and support provided by the deceased. Badall v. Durgapersad, 454 S.W.3d 626, 637 (Tex. App.- Houston [1st Dist.] 2014, pet. denied); Texas Pattern Jury Charges-General Negligence, Intentional Personal Torts & Workers' Compensation (2020), PJC 29.3 to 29.6. Pecuniary loss may also include certain expenses incurred by the claimant, such as funeral expenses. See


Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 34-35 (Tex. 1963). Though valuing pecuniary loss is an economic assessment, “measuring a beneficiary's pecuniary loss is inherently speculative and imprecise and is therefore best left to the [fact finder's] common sense and sound discretion.” Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 480 (Tex. App.-Houston [14th Dist.] 1998, pet. denied). The fact finder may apply their own knowledge and expertise to estimate the value of the services provided by the decedent without proof of their value. Badall, 454 S.W.3d at 638 (citing Excel Corp. v. McDonald, 223 S.W.3d 506, 510 (Tex. App.- Amarillo 2006, pet. denied)). Spouses, parents, and children of the deceased may recover pecuniary loss for wrongful death. See Id. (loss of parent's services); Dougherty v. Gifford, 826 S.W.2d 668, 681 (Tex. App.-Texarkana 1992, no writ) (loss of spouse's services); Fibreboard Corp. v. Pool, 813 S.W.2d 658, 683 (Tex. App.-Texarkana 1991, writ denied) (loss of child's services). Importantly, pecuniary losses are treated “as distinct from intangible or emotional damages recoverable in a loss of consortium claim.” Ellis v. United States, 673 F.3d 367, 379 (5th Cir. 2012) (applying Texas law).

2. Loss of Inheritance

Additionally, a plaintiff may recover damages for loss of inheritance in a wrongful death action. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 254 (Tex. 2008). In Texas, loss of inheritance is defined as “the present value that the deceased, in reasonable probability, would have added to the estate and left at natural death to the statutory wrongful death beneficiaries but for the wrongful act causing the premature death.” Yowell v. Piper Aircraft Corp., 703 S.W.2d 630, 633 (Tex. 1986). Thus, the plaintiff must offer proof as to the “decedents' salaries, expected raises, expected promotions and salary increases, earning


capacities, enforced savings through pension plans, spending habits, age, health, and relationship with the wrongful death beneficiaries.” Id. at 634.

3. Loss of Earning Capacity

In a personal injury case, a plaintiff may recover damages for past and future loss of earning capacity. Texas PJC - General Negligence, Intentional Personal Torts and Workers' Compensation (2020), PJC 28.3 & comment. “Lost earning capacity is an assessment of what the plaintiff's capacity to earn a livelihood actually was and the extent to which that capacity was impaired by the injury.” Big Bird Tree Svcs. v. Gallegos, 365 S.W.3d 173, 178 (Tex. App.- Dallas 2012, pet. denied). “Loss of past earning capacity is a plaintiff's diminished ability to work during the period between the injury and the date of trial.” Hospadales v. McCoy, 513 S.W.3d 724, 742 (Tex. App.-Houston [1st Dist.] 2017, no pet.). The key focus in analyzing a plaintiff's past loss of earning capacity is “(1) what the plaintiff's capacity to earn was, and (2) how that capacity was impaired by the injury.” Perez v. Arredondo, 452 S.W.3d 847, 862 (Tex. App.-San Antonio 2014, no pet.).

An award of damages for loss of future earning capacity can be based on a No. of factors: “(1) past earnings; (2) the plaintiff's stamina, efficiency, and ability to work with pain; (3) the weakness and degenerative changes that will naturally result from the plaintiff's injury; and (4) the plaintiff's work-life expectancy.” Virlar v. Puente, 613 S.W.3d 652, 682 (Tex. App.-San Antonio 2020, pet. filed); Perez, 452 S.W.3d at 862. Evidence of actual earnings at the time of trial is evidence of future earning capacity, “but it is not the only evidence in an inquiry that looks many years or decades into a person's future.” W&T Offshore, Inc. v. Fredieu, 610 S.W. 884, 889 (Tex. 2020). The fact that the plaintiff's post-injury wage is higher than her pre-injury wage does not preclude an award of damages for loss of future earning capacity. See


id. (plaintiff could recover damages for loss of future earning capacity in spite of a higher hourly wage post-injury because he worked fewer hours, his new job did not cover living expenses whereas his prior job did, and he would face difficulty finding new employment if he lost his job at the time of trial). If the plaintiff is a child who has never earned money, “the jury must determine the value of [plaintiff's] lost earning capacity altogether from their common knowledge and sense of justice.” McIver v. Gloria, 169 S.W.2d 710, 712 (Tex. 1943); see also Durham Transp. Co., Inc. v. Beettner, 201 S.W.3d 859, 865 (Tex. App.-Waco 2006, pet. denied).

4. Loss of Services

A parent may recover for loss of services of an injured child. Morrell v. Finke, 184 S.W.3d 257, 290-91 (Tex. App.-Fort Worth 2005, pet. denied). “Services” includes the performance of household and domestic duties. Whittlesey v. Miller, 572 S.W.2d 665, 666 n.2 (Tex. 1978). The parent must prove their child is incapable of performing household services. Gonzalez v. Hansen, 505 S.W.2d 613, 614-15 (Tex. App.-San Antonio 1974, no writ).

II. Noneconomic Damages

Noneconomic damages include “physical pain and suffering, mental or emotional pain or anguish, loss of consortium, disfigurement, physical impairment, loss of companionship and society, inconvenience, loss of enjoyment of life, injury to reputation, and all other nonpecuniary losses of any kind other than exemplary damages.” Tex. Civ. Prac. & Rem. Code § 41.001(12). Plaintiffs have asserted various claims for pain and suffering, mental anguish, disfigurement, impairment, and loss of companionship or consortium. The process of awarding noneconomic damages “is inherently difficult because the alleged injury is a subjective, unliquidated,


nonpecuniary loss.” Dawson v. Briggs, 107 S.W.3d 739, 750 (Tex. App.-Fort Worth 2003, no pet.); Dollison v. Hayes, 79 S.W.3d 246, 249 (Tex. App.-Texarkana 2002, no pet.).

The fact finder is granted significant discretion in determining noneconomic damages because, as discussed, there is no objective measure to determine the adequacy of such compensation. See Dawson, 107 S.W.3d at 751; Dollison, 79 S.W.3d at 249. However, its discretion is not unlimited. In FTCA cases, courts will often look to previous reported damage awards in the state to determine the claimant's recovery for noneconomic damages. See, e.g., Lebron, 279 F.3d at 325-29. Even so, “[b]ecause the facts of each case are different, prior damages awards are not always controlling . . . .” Id. at 326. Where unique facts are presented that are not reflected by controlling caselaw, a court may depart from prior damage awards. Id.

1. Mental Anguish

In both personal injury and wrongful death cases, a plaintiff may seek recovery for past and future mental anguish. Texas PJC - General Negligence, Intentional Personal Torts & Workers' Compensation (2020), PJC 28.3, 29.3-29.6 & comments. Recovery for mental anguish is permitted in personal injury cases in which the defendant's conduct caused serious bodily injury. City of Tyler v. Likes, 962 S.W.2d 489, 496 (Tex. 1997). Mental anguish is also recoverable for injuries of such a “shocking and disturbing nature that mental anguish is a highly foreseeable result, ” including suits for wrongful death and actions by bystanders for a close family member's serious injury. Id.

Where the plaintiff herself has been seriously injured, mental anguish may be inferred by the fact finder. Popkowsi v. Gramza, 671 S.W.2d 915, 919 (Tex, App.-Houston [1st Dist.] 1984, no writ); see also City of Tyler, 962 S.W.2d at 495. However, the fact finder “cannot automatically


infer mental anguish once any physical injury is sustained.” Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 595 (Tex. App.-Houston [14th Dist.] 2015, pet. denied) (emphasis in original). The fact finder, instead, should “consider the traumatic nature of the injury as a factor” in determining its award. Id.

In cases where the plaintiff is seeking recovery for mental anguish as a bystander, a plaintiff is required to establish that:

(1) The plaintiff was located near the scene of the accident, as contrasted with one who was a distance away from it; (2) The plaintiff suffered shock as a result of a direct emotional impact upon the plaintiff from a sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) The plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.

United Svcs. Auto. Ass'n v. Keith, 970 S.W.2d 540, 542 (Tex. 1998).

Lastly, “[i]n wrongful death cases, mental anguish is the emotional pain, torment, and mental suffering that the plaintiff experienced as a result of the death of a family member.” Lane v. Martinez, 494 S.W.3d 339, 345 (Tex. App.-Eastland 2015, no pet.). Compensation for mental anguish can be awarded only for such anguish that causes “substantial disruption in daily routine” or a “high degree of mental pain and distress.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (quoting Trevenio v. Sw. Bell Tel. Co., 582 S.W.2d 582, 584 (Tex. Civ. App.-Corpus Christi 1979, no writ)). “Thus, proof of mental anguish can include painful emotions such as grief, severe disappointment, indignation, wounded pride, shame, despair, public humiliation, or a combination of any or all of those feelings.” Thomas v. Uzoka, 290 S.W.3d 437, 455 (Tex. App.-Houston [14th Dist.] 2009, pet. denied).

“Mental anguish can be established through testimony from the injured party explaining how she felt and how her life was disrupted.” Tagle v. Galvan, 155 S.W.3d 510, 519 (Tex. App.-San


Antonio 2004, no pet.). Evidence of mental anguish may also be introduced through the testimony of third parties or experts. Parkway Co., 901 S.W.2d at 444.

2. Pain and Suffering

In a survival action, “only pain consciously suffered and experienced is compensable.” Ruiz v. Guerra, 293 S.W.3d 706, 722 (Tex. App.-San Antonio 2009, no pet.). Conscious pain and suffering may be inferred from proof that the deceased had severe injuries or may be established by circumstantial evidence. Id. When the existence of pain and suffering is established, “there is no objective way to measure the adequacy of the amount awarded as compensation, which is generally left to the discretion of the fact-finder.” Dawson, 107 S.W.3d at 751. The amount of damages awarded for pain and suffering are “necessarily speculative and each case must be judged on its own facts.” Pentes Design Inc. v. Perez, 840 S.W.2d 75, 80-81 (Tex. App.-Corpus Christi 1992, writ denied).

3. Physical Impairment

“Physical impairment, sometimes called loss of enjoyment of life, encompasses the loss of the injured party's former lifestyle.” PNS Stores, Inc. v. Munguia, 484 S.W.3d 503, 513 (Tex. App.-Houston [14th Dist.] 2016, no pet.). While other types of losses may factor into a claim for physical impairment, where other elements of noneconomic damages such as pain, suffering, mental anguish, and disfigurement are submitted, “there is little left for which to compensate under the category of physical impairment other than loss of enjoyment of life.” Golden Eagle Archery, 116 S.W.3d at 772. “To receive physical impairment damages, the plaintiff must prove that (1) he incurred injuries that are distinct from, or extend beyond, injuries compensable through other damage elements, and (2) these distinct injuries have had a ‘substantial' effect.”


Id.; see also Enright v. Goodman Distrib., Inc., 330 S.W.3d 392, 402 (Tex. App.-Houston [14th Dist.] 2010, no pet.).

4. Disfigurement

“Disfigurement has been defined as that which impairs the appearance of a person, or that which renders unsightly, misshapen or imperfect, or deforms in some manner.” Figuerora v. Davis, 318 S.W.3d 53, 64 (Tex. App.-Houston [1st Dist.] 2010, no pet.) (quoting Doctor v. Pardue, 186 S.W.3d 4, 18 (Tex. App.-Houston [1st Dist.] 2005, pet. denied)). Disfigurement damages are available when a plaintiff suffers scarring, “even when the scar is located on a part of the body that is usually covered by clothing.” Tellez v. GEO Grp. Inc., No. 5:15-cv-465-RCL, 2017 WL 3276177, at *8 (W.D. Tex. Aug. 1, 2017) (applying Texas law). Damages are additionally available for future disfigurement, which relates to recovery for “future embarrassment caused by the disfigurement.” Hopkins Cnty. Hosp. Dist. v. Allen, 760 S.W.2d 341, 344 (Tex. App.-Texarkana 1988, no writ). Thus, a plaintiff does not have to prove additional scarring or deformation to recover for future damages related to their disfigurement. Id.

5. Loss of Consortium or Companionship

Recovery for loss of consortium is derivative of an injured person's claim. Motor Express, Inc. v. Rodriguez, 925 S.W.2d 638, 640 (Tex. 1996). Loss of consortium refers to the plaintiff's loss of “love, affection, protection, emotional support, companionship, care, and society” as a result of the injury their loved one suffered. Reagan v. Vaughn, 804 S.W.2d 463, 466 (Tex. 1990). Generally, spouses and children may seek such recovery. See Id. (injury to parent); Whittlesey v. Miller, 572 S.W.2d 665, 666 (Tex. 1978) (loss of spousal consortium).


Loss of spousal consortium “consists of the emotional or intangible elements of a marital relationship.” Reeder v. Allport, 218 S.W.3d 817, 819 (Tex. App.-Beaumont 2007, no pet.) (quoting Whittlesey, 572 S.W.2d at 666). Thus, “[a] spouse may recover for the loss of the injured spouse's affection, solace, comfort, companionship, society, assistance, and sexual relations necessary to a successful marriage.” Id. (citing Whittlesey, 572 S.W.2d at 666).

Children may recover loss of consortium for the loss of “the parent's love, affection, protection, emotional support, services, companionship, care, and society” resulting from the injury to their parent. Reagan, 804 S.W.2d at 467. “Factors that the jury may consider in determining the amount of damages include, but are not limited to, the severity of the injury to the parent and its actual effect upon the parent-child relationship, the child's age, the nature of the child's relationship with the parent, the child's emotional and physical characteristics, and whether other consortium giving relationships are available to the child.” Id.

In the wrongful-death context, loss of companionship and society “refers to the positive benefits flowing from the love, comfort, companionship, and society that the beneficiary would have experienced had the decedent lived.” Thomas, 290 S.W.3d at 455. Some factors a fact finder may consider in determining damages for loss of companionship include: “(1) the relationship between the [deceased and the plaintiff]; (2) the living arrangements of the parties; (3) any extended absence of the deceased from the beneficiary; (4) the harmony of family relations; and (5) the couple's common interests and activities.” Id. at 456.

The losses and pain these families have experienced is immeasurable. Our civil justice system only allows us to rectify these kinds of losses through money damages. Valuing human life, pain, and suffering is a task that our justice system has imposed on judges and juries, and the methodology used by both has been varied. In FTCA cases, the burden of determining liability


and awarding damages is placed exclusively on the trial judge without the benefit of a jury's input. To quantify damages, the Government proposed a damage model similar to that used by the Special Master for the September 11 victims' fund. This model, though, was never intended to be used in our tort system. Kenneth R. Feinberg, et al., Final Report of the Special Master for the September 11th Victim Compensation Fund of 2001 83-84 (2004). The Special Master's report on this fund expressly states so. Id. at 83-84. The September 11 victims' fund was a no-fault system used by Congress to compensate the families of victims who lost their lives in the unprecedented September 11 terrorist attacks where there otherwise may have been no recovery. By contrast, the Court has found liability in this case. Further, the Government's suggestion that a September 11 type system be used wholly ignores the mandate that Texas law on damages is applied here. The Government is partially at fault for the deaths and injuries of these Plaintiffs. Its effort to obfuscate its responsibility by attempting to import a no-fault damages model into a case in which the Court has already found liability is wholly unavailing.

Ultimately, there is no satisfying way to determine the worth of these families' pain. However, the Court has looked to other damage awards for wrongful death and personal injury for guidance, particularly other FTCA cases.[1] While this case is unprecedented in kind and scope, these awards have been instructive. Given the number of injured and deceased persons in this tragic shooting, the Court will discuss the amount of these damages awards by each family, per each claimant.

Outcome: 02/07/2022 584 FINDINGS OF FACT AND CONCLUSIONS OF LAW--The Court ORDERS Plaintiffs to submit proposed final judgments in each individual case within 10 days of this order. The judgments should reflect the damage awards made in this order. With respect to economic damages, the Court has determined the appropriate presentvalue discount rate to be equivalent to a thirty-year Daily Treasury Yield curve rate of 2.23%. Signed by Judge Xavier Rodriguez. (nm) (Entered: 02/07/2022)

Judgment in favor of Plaintiff for $230 million.

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