What happens when an appeal is taken on the largest personal injury verdict for actual damages in Texas history?  We may never find out.

In October of 2021, a jury in Harris County reached a verdict in the matter of Cruz v. Allied Aviation. Cruz was a United Airlines ramp service agent serving as a pedestrian wing walker on the tarmac of George Bush Intercontinental Airport. While working, Cruz was hit by an Allied Aviation refueling van on the tarmac and was paralyzed. During his time in the hospital, Cruz suffered a stroke because of his injuries and a preexisting condition and lost the ability to use the right side of his body. Cruz’s wife and his son filed suit on behalf of themselves, Cruz, and Cruz’s minor child against the driver of the Allied Aviation vehicle and Allied Aviation, itself.

At the end of trial, the jury awarded a total of $352,772,000.00 in actual damages to Cruz and his family. Of that amount, Cruz, himself, was awarded $287,390,000.00 for past and future physical pain, mental anguish, physical impairment, disfigurement, medical expenses, and lost earning capacity. Cruz’s wife was awarded $25,282,000.00 for past and future loss of household services and loss of consortium. Lastly, each of Cruz’s children were awarded $20,500,000.00 for past and future parental consortium.

The verdict was not only made up of a number of categories, but it was also divided among two defendants, the driver of the vehicle and Allied Aviation. The jury allotted 30% of the verdict to the driver and 70% to Allied Aviation. However, Texas is a joint and several liability state;  if one defendant is found liable for 50% or more of the verdict, it is liable for the whole verdict. Even though the driver was found 30% liable in his individual capacity Allied Aviation, his employer, was jointly and severally liable for the entire $352.8 million verdict.

After the jury issued its verdict, the judge on remittitur and asked the Plaintiffs to consent to a reduction in the judgment of $117.5 million. The Judge subsequently entered a judgment of $287.4 million against Allied Aviation, with post-judgment interest running from the date of the original judgment.

Allied Aviation appealed, with its primary argument being that the trial court judge improperly submitted a negligent training question to the jury even though Allied Aviation had already stipulated that it was vicarious liable for its employee’s actions.  Cruz agreed, asking asked the judge to remove the negligent training question.  The judge, however, refused stating: “[I]f there’s error, guess what? Both sides. It’s an appellate point for both of you. So maybe that’s best for a settlement.” The judge added, “I don’t mind creating error for both parties.”

Perhaps most interestingly, Allied Aviation’s appellate brief provides some insight into some of the techniques Cruz used at trial that created the setting for the jury’s nuclear verdict.  For instance, Cruz urged the jury to “punish” Allied Aviation, even though Cruz had abandoned his gross negligence claim, the one claim which would have allowed him to obtain punitive damages.  Further, Cruz used “anchoring” techniques, giving the jury a false perspective of “how things are in our community”. Referring to professional-athlete clients of Allied Aviation’s attorney, Cruz mentioned during jury selection process that DeShaun Watson entered into a 4-year, $160 million contract and that James Hardin entered into a 4-year contract for $171 million and yet another contract with Adidas for $200 million.

Ultimately, the appellate case did not make it to oral arguments, and in January 2023, the Court issued an order abating the appeal to allow the parties to finalize a settlement. Although settlement will prevent the development of further case law on how nuclear verdicts are treated in appeal, the facts of the case and the appellate arguments shed light on techniques plaintiffs attorneys use to obtain large verdicts and the sometimes poor decision made during the jury charge conference that can provide an opening for a jury to render nuclear verdicts.

The attorneys in our Austin and Dallas office are experience in litigating, arbitrating and monitoring claims with large exposure or the potential for catastrophic damage awards.  We welcome any questions you may have.  Please contact us at info@gstexlaw.com.

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