Chapter 12 — Damages Defenses

Economic Damages

1. Medical Expenses. Limited by CPRC § 41.0105 to amounts “actually paid or incurred.” Challenge inflated “chargemaster” rates. Use billing experts to show accepted amounts.

2. Future Medical Care. Attack life care planners’ assumptions. Require treating physician corroboration. Expose speculative treatments.

3. Lost Earnings and Capacity. Demand tax and employment history. Retain economists to apply realistic work-life expectancy and discount rates. Use social media and surveillance to show capacity.

Non-Economic Damages

4. Pain and Suffering / Mental Anguish. Emphasize lack of medical corroboration. Highlight inconsistencies with daily activities.

5. Physical Impairment. Must be proven distinctly from pain and suffering. See Golden Eagle Archery v. Jackson, 116 S.W.3d 757 (Tex. 2003).

6. Loss of Consortium. Probe for evidence of substantial impact. Cross on pre-existing marital or family issues.

Exemplary Damages — Not Recoverable

7. Statutory Exclusivity. Section 2.03 limits dram shop liability to “damages suffered.” No punitive remedy is provided.

Case Law:

  • Steak & Ale of Texas, Inc. v. Borneman, 62 S.W.3d 898 (Tex. App.—Fort Worth 2001): Held punitive damages are not recoverable.
  • Wilson v. K.W.G., Inc., 11-03-00084-CV, 2004 WL 1925599, at *2 (Tex. App.—Eastland Aug. 31, 2004, no pet.) (memo. op.): Struck $250,000 punitive award; CPRC § 41.005 bars punitive damages for harm caused by another’s criminal act.
  • Southland Corp. v. Lewis, 940 S.W.2d 83 (Tex. 1997): Reinforced exclusivity of Dram Shop Act in providing remedy.
  • Reeder v. Daniel, 61 S.W.3d 359 (Tex. 2001): Refused to create new common-law claim for serving minors.

8. Policy. Punitive deterrence occurs via TABC license suspension or revocation, not civil exemplary awards.

Practice Note: Plaintiffs often plead gross negligence boilerplate. File Rule 91a or summary judgment to strike early. Use the absence of punitive exposure to reduce plaintiff’s settlement leverage.