PJC Malpractice 2024

PJC 80.5

P ERSONAL I NJURY D AMAGES

for periodic payments is considered timely even if not made until after verdict. Tex. Civ. Prac. & Rem. Code §74.502; Virlar , 664 S.W.3d at 62–63. The trial court has great discretion in determining how any periodic payments should be structured. How ever, the decision of the court must be based on evidence and cannot contradict the verdict of the jury. Virlar , 664 S.W.3d at 64. The burden is on the defendant requesting periodic payments to provide evidence sufficient for the court to make findings to satisfy the statute. The evidence considered by the court must include the evidence admitted at trial, but the court also has discre tion to receive evidence submitted on a post-verdict basis to allow the court to make these determinations. Virlar , 664 S.W.3d at 64–65; Columbia Valley , 654 S.W.3d at 143–44; Regent Care , 610 S.W.3d at 837. Cautious counsel may want to present any non-jury evidence they want the court to consider in that regard before the close of evidence or seek a ruling from the trial court that evidence in that regard will be sub mitted on a post-verdict basis if made necessary by the findings of the jury with respect to future damages. Although the life expectancy of the claimant is a factor the court must consider in allocating how future damages are to be paid, it is not necessary for the court to submit a question to the jury as to the probable life expectancy of the claimant. However, the trial court is not precluded from submitting an advisory question to the jury to assist the court in making that determination in the judgment or post-judgment stages. Columbia Valley , 654 S.W.3d at 142. With no current case guidance on how such an advisory issue might be worded, the Committee makes no recommendation at this time in that regard. Separate answer for each element. Separate submission of elements may be called for in the following instances. Insufficient evidence. Broad-form submission of multiple elements of damages may lead to harmful error if there is a proper objection raising insufficiency of the evi dence to support one or more of the elements submitted. Harris County , 96 S.W.3d 230. If there is any question about the sufficiency of the evidence to support one or more of the elements, the Committee recommends that the elements of damages be separately submitted to the jury as above. Exemplary damages. If exemplary damages are sought, economic damages must be determined separately from the amount of other damages. See Tex. Civ. Prac. & Rem. Code §41.008(a). “Economic damages” means “compensatory damages intended to compensate a claimant for actual economic or pecuniary loss.” Tex. Civ. Prac. & Rem. Code §41.001(4). Economic damages as used in the formula to cap exemplary damages in Tex. Civ. Prac. & Rem. Code §41.008(b) include “existing in fact, real monetary losses like lost wages, the cost to obtain services that another previ ously provided for free or at a lower cost, or that the defendant’s misconduct com-

324