Team Industrial Services, Inc. v. Kelli Most, Individually and as Personal Representative of the Estate of Jesse Henson
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Opinion
Opinion issued May 16, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00313-CV ——————————— TEAM INDUSTRIAL SERVICES, INC., Appellant V. KELLI MOST, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JESSE HENSON, Appellee
On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case No. 18-DCV-256883
OPINION
Appellant, Team Industrial Services, Inc. (“Team”), challenges the trial
court’s judgment, entered after a jury trial, in favor of appellee, Kelli Most,
individually and as personal representative of the estate of Jesse Henson, deceased, in her wrongful death and survival suit against Team.1 In five issues, Team contends
that the trial court erred in denying its motion to dismiss for forum non conveniens,
refusing to apply Kansas law to its claims, and entering a grossly excessive damages
award that resulted from errors in selecting and instructing the jury and allowing
improper argument.
We vacate and dismiss.
Background
In her third amended petition, Most, the widow of Henson, alleged that on or
about June 4, 2018, Henson, who was employed at the Jeffrey Energy Center, a
coal-fired power plant in Kansas owned by Westar Energy (“Westar”), a Kansas
utility company, “was exposed to a steam release” when a pressure relief valve
failed. Henson “suffered severe burns,” which “ultimately led to him suffering a
horrific death.” Henson’s death occurred shortly after Team, an industrial services
provider, had serviced the Jeffrey Energy Center’s pressure relief valves under a
contract with Westar.
Most brought wrongful death and survival claims against Team, asserting that
Team “was negligent, negligent per se, and grossly negligent” because it failed to
adequately train, instruct, and supervise its employees; “have adequate safety
policies and procedures”; properly maintain, inspect, and operate “the equipment”;
1 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 71.001–.012, 71.021–.022.
2 “provide adequate equipment”; “properly perform the work in question”; “ensure
that [its] worksite was reasonably safe”; adequately maintain and inspect “the
premises at issue”; and “remedy” or “adequately warn of a dangerous and/or
hazardous condition.” According to Most, Team also “creat[ed] a dangerous and/or
hazardous condition” and Team was “vicariously liab[le] for the conduct of [its]
employees.” Most additionally alleged that Team had “violat[ed] applicable
government regulations, laws, rules, and industry standards” and committed “[o]ther
acts deemed negligent, negligent per se, and grossly negligent.”
Further, “[a]s a direct and proximate result of Team’s [negligent] conduct,”
Most alleged, Henson had “sustained severe physical pain, disfigurement, fear,
mental anguish, and emotional distress” and she had “lost her husband.”
Specifically, the damages that she and Henson “sustained in the past” and that she
would “continue to sustain in the future” included Henson’s “[p]re death physical
pain and physical pain and suffering,” their “mental pain,” and their “suffering,
emotional distress, and mental anguish.” Most also alleged damages including the
“[l]oss of earning capacity and inheritance,” “fringe benefits,” “services and
support,” “nurture, guidance, care, and instruction,” “enjoyment of life,” “future
pecuniary support,” “society and companionship,” and “[a]ll other damages
recoverable under the law.”
3 Additionally, Most alleged that she was “entitled to punitive damages because
[Team] willfully and wantonly disregarded” the “safety and rights” of Henson and
Most by “act[ing] with flagrant and malicious disregard of [Henson’s] health and
safety.” According to Most, Team was “subjectively aware of the extreme risk posed
by the conditions which caused [Henson’s] death, but [it] did nothing to rectify
them” despite “knowing that the conditions posed dangerous and grave safety
concerns.” Most alleged that Team’s “acts and omissions involved an extreme
degree of risk considering the probability and magnitude of potential harm to
[Henson] and others” and Team “had actual, subjective awareness of the risk, and
consciously disregarded” it.2
As to jurisdiction and venue, Most alleged that Team was a Texas citizen and
its principal place of business was in Texas. According to Most, venue was proper
in Fort Bend County, Texas under Texas Civil Practice and Remedies Code section
15.002.
2 In addition to the claims against Team, Most previously, in her second amended petition, brought products liability claims against Emerson Process Management Valve Automation, Inc., Emerson Process Management, LLP, Emerson Process Management Regulator Technologies, Inc., and Emerson Electric Co. (collectively, the “Emerson entities”), and Siemens Corporation (“Siemens”). Most asserted that Emerson was a Texas citizen with its principal place of business in Texas, and Siemens was a foreign corporation with its corporate headquarters in Harris County, Texas. Most nonsuited her claims against the Emerson entities and Siemens before trial.
4 In its first amended answer, Team generally denied the allegations in Most’s
petition. Team also raised various affirmative defenses, including that “[t]he
accident at issue and injuries in question” occurred as a result of “independent,
intervening, or superseding causes” and “were caused wholly or in part by the
negligence or fault of others,” such as Westar, and Team was entitled to “an
allocation of fault and determination of the proportionate share of fault.”
Team further pleaded for any recovery by Most to be “reduced or barred”
under applicable law, including Texas Civil Practice and Remedies Code chapter 71
and Kansas Statutes chapter 60, article 19, in particular “the limitations on
nonpecuniary losses set forth in [Kansas Statutes] section 60-1903.” Additionally,
according to Team, any recovery of compensatory damages by Most was “limited
pursuant to any applicable statutory and common law restrictions, . . . including
[Kansas Statutes] section 60-19a02.” And Team requested a jury trial.
Team then sought dismissal of Most’s claims against it based on forum non
conveniens. In its motion to dismiss for forum non conveniens, Team pointed out
that Most was a Kansas resident, Henson “resided, worked, and died in Kansas,” and
the accident in which Henson was fatally injured occurred at the Jeffrey Energy
5 Center in Kansas.3 Team asserted that Most’s claims could be tried in Kansas and
Kansas law provided an adequate remedy for Most’s claims.
As to the private interest factors to be considered in a forum non conveniens
determination, Team observed that “most of the evidence and documents” relevant
to Most’s claims as well as “most of the non-party witnesses” were located in
Kansas. Although a Kansas court could compel the Kansas non-party witnesses to
appear for depositions and at trial, a Texas court could not. Team also noted that the
estate of Henson’s coworker, Damien Burchett, who had suffered fatal injuries in
the same accident, had “already filed a wrongful death lawsuit in Kansas,” and Team
anticipated that certain insurance litigation involving the accident would be filed in
Kansas.
As to the public interest factors relevant to the forum non conveniens
determination, Team argued that Most’s claims against it “ha[d] no significant
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion issued May 16, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00313-CV ——————————— TEAM INDUSTRIAL SERVICES, INC., Appellant V. KELLI MOST, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JESSE HENSON, Appellee
On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case No. 18-DCV-256883
OPINION
Appellant, Team Industrial Services, Inc. (“Team”), challenges the trial
court’s judgment, entered after a jury trial, in favor of appellee, Kelli Most,
individually and as personal representative of the estate of Jesse Henson, deceased, in her wrongful death and survival suit against Team.1 In five issues, Team contends
that the trial court erred in denying its motion to dismiss for forum non conveniens,
refusing to apply Kansas law to its claims, and entering a grossly excessive damages
award that resulted from errors in selecting and instructing the jury and allowing
improper argument.
We vacate and dismiss.
Background
In her third amended petition, Most, the widow of Henson, alleged that on or
about June 4, 2018, Henson, who was employed at the Jeffrey Energy Center, a
coal-fired power plant in Kansas owned by Westar Energy (“Westar”), a Kansas
utility company, “was exposed to a steam release” when a pressure relief valve
failed. Henson “suffered severe burns,” which “ultimately led to him suffering a
horrific death.” Henson’s death occurred shortly after Team, an industrial services
provider, had serviced the Jeffrey Energy Center’s pressure relief valves under a
contract with Westar.
Most brought wrongful death and survival claims against Team, asserting that
Team “was negligent, negligent per se, and grossly negligent” because it failed to
adequately train, instruct, and supervise its employees; “have adequate safety
policies and procedures”; properly maintain, inspect, and operate “the equipment”;
1 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 71.001–.012, 71.021–.022.
2 “provide adequate equipment”; “properly perform the work in question”; “ensure
that [its] worksite was reasonably safe”; adequately maintain and inspect “the
premises at issue”; and “remedy” or “adequately warn of a dangerous and/or
hazardous condition.” According to Most, Team also “creat[ed] a dangerous and/or
hazardous condition” and Team was “vicariously liab[le] for the conduct of [its]
employees.” Most additionally alleged that Team had “violat[ed] applicable
government regulations, laws, rules, and industry standards” and committed “[o]ther
acts deemed negligent, negligent per se, and grossly negligent.”
Further, “[a]s a direct and proximate result of Team’s [negligent] conduct,”
Most alleged, Henson had “sustained severe physical pain, disfigurement, fear,
mental anguish, and emotional distress” and she had “lost her husband.”
Specifically, the damages that she and Henson “sustained in the past” and that she
would “continue to sustain in the future” included Henson’s “[p]re death physical
pain and physical pain and suffering,” their “mental pain,” and their “suffering,
emotional distress, and mental anguish.” Most also alleged damages including the
“[l]oss of earning capacity and inheritance,” “fringe benefits,” “services and
support,” “nurture, guidance, care, and instruction,” “enjoyment of life,” “future
pecuniary support,” “society and companionship,” and “[a]ll other damages
recoverable under the law.”
3 Additionally, Most alleged that she was “entitled to punitive damages because
[Team] willfully and wantonly disregarded” the “safety and rights” of Henson and
Most by “act[ing] with flagrant and malicious disregard of [Henson’s] health and
safety.” According to Most, Team was “subjectively aware of the extreme risk posed
by the conditions which caused [Henson’s] death, but [it] did nothing to rectify
them” despite “knowing that the conditions posed dangerous and grave safety
concerns.” Most alleged that Team’s “acts and omissions involved an extreme
degree of risk considering the probability and magnitude of potential harm to
[Henson] and others” and Team “had actual, subjective awareness of the risk, and
consciously disregarded” it.2
As to jurisdiction and venue, Most alleged that Team was a Texas citizen and
its principal place of business was in Texas. According to Most, venue was proper
in Fort Bend County, Texas under Texas Civil Practice and Remedies Code section
15.002.
2 In addition to the claims against Team, Most previously, in her second amended petition, brought products liability claims against Emerson Process Management Valve Automation, Inc., Emerson Process Management, LLP, Emerson Process Management Regulator Technologies, Inc., and Emerson Electric Co. (collectively, the “Emerson entities”), and Siemens Corporation (“Siemens”). Most asserted that Emerson was a Texas citizen with its principal place of business in Texas, and Siemens was a foreign corporation with its corporate headquarters in Harris County, Texas. Most nonsuited her claims against the Emerson entities and Siemens before trial.
4 In its first amended answer, Team generally denied the allegations in Most’s
petition. Team also raised various affirmative defenses, including that “[t]he
accident at issue and injuries in question” occurred as a result of “independent,
intervening, or superseding causes” and “were caused wholly or in part by the
negligence or fault of others,” such as Westar, and Team was entitled to “an
allocation of fault and determination of the proportionate share of fault.”
Team further pleaded for any recovery by Most to be “reduced or barred”
under applicable law, including Texas Civil Practice and Remedies Code chapter 71
and Kansas Statutes chapter 60, article 19, in particular “the limitations on
nonpecuniary losses set forth in [Kansas Statutes] section 60-1903.” Additionally,
according to Team, any recovery of compensatory damages by Most was “limited
pursuant to any applicable statutory and common law restrictions, . . . including
[Kansas Statutes] section 60-19a02.” And Team requested a jury trial.
Team then sought dismissal of Most’s claims against it based on forum non
conveniens. In its motion to dismiss for forum non conveniens, Team pointed out
that Most was a Kansas resident, Henson “resided, worked, and died in Kansas,” and
the accident in which Henson was fatally injured occurred at the Jeffrey Energy
5 Center in Kansas.3 Team asserted that Most’s claims could be tried in Kansas and
Kansas law provided an adequate remedy for Most’s claims.
As to the private interest factors to be considered in a forum non conveniens
determination, Team observed that “most of the evidence and documents” relevant
to Most’s claims as well as “most of the non-party witnesses” were located in
Kansas. Although a Kansas court could compel the Kansas non-party witnesses to
appear for depositions and at trial, a Texas court could not. Team also noted that the
estate of Henson’s coworker, Damien Burchett, who had suffered fatal injuries in
the same accident, had “already filed a wrongful death lawsuit in Kansas,” and Team
anticipated that certain insurance litigation involving the accident would be filed in
Kansas.
As to the public interest factors relevant to the forum non conveniens
determination, Team argued that Most’s claims against it “ha[d] no significant
connection to Texas” because Henson had lived and worked in Kansas, and he died
from an accident that occurred in Kansas. And Most was a Kansas resident.
According to Team, it would be “fundamentally unfair to burden the people of Texas
with the cost of providing courts to hear” Most’s claims, which had “no significant
connection” to Texas.
3 Specifically, Team asserted that the injury-causing accident occurred when “discharge piping at the Jeffrey Energy Center became unbolted from the pressure relief valve, allowing a large steam release.”
6 In her response to Team’s motion to dismiss, Most maintained that it would
not be “inconvenient for [Team] to litigate th[e] case” in Texas, its “home state.”
Most stated that eight “key witnesses already identified” by the Emerson entities4 in
their discovery responses “[we]re located in Fort Bend County” or Montgomery
County, Texas and no party had identified any “Kansas witnesses [w]hose testimony
w[ould] be needed.”
Further, according to Most, Team could not “credibly claim [it] w[ould] suffer
substantial prejudice” from having to litigate in Texas. Because Team maintained
corporate offices in Texas, Most argued that it was “likely that most of the
documents [we]re located at the[] offices in Texas.” She also noted that Team had
not provided any “evidence that any of the[] relevant documents [we]re located in
Kansas.”
Additionally, Most asserted that it was likely that the “witnesses who w[ould]
need to testify at trial” were located in Texas. And she noted that Team had not yet
responded to her “discovery requests” that sought information about where Team’s
witnesses resided. Most also pointed out that the Emerson entities had “transported
the equipment” that had failed from the Jeffrey Energy Center in Kansas to Fort
Bend County “to have it inspected and/or tested.” According to Most, “[t]he
important witnesses in [her suit] w[ould] be” the Team employees who had been
4 At the time Most filed her response, she had not yet nonsuited the Emerson entities.
7 “temporarily in Kansas” to “install[] the equipment” and the Team employees who
had “planned out the job,” and they were likely Texas residents.5
As to the public interest factors relevant to the forum non conveniens
determination, Most asserted that the equipment and work plans likely occurred in
Texas and Texas citizens had “an interest in judging the conduct of companies that
reside[d] [in Texas], d[id] a substantial amount of business [in Texas], and whose
conduct in Texas resulted in the death of others.”
At the hearing on the motion to dismiss for forum non conveniens, Team
explained that while it had corporate offices in Sugar Land, Texas, its office in
Broken Arrow, Oklahoma had handled the pressure relief valve maintenance for the
Jeffrey Energy Center. And evidence presented at the hearing showed that only one
Team employee, who allegedly “had some involvement” with the maintenance
performed on the Jeffrey Energy Center’s pressure relief valves immediately
preceding the accident, was within the trial court’s subpoena power. The two Team
technicians who had been sent to Kansas to perform the pressure relief valve
maintenance at the Jeffrey Energy Center, Gary Gautney and Brad Whinery, were
“somewhere” in the Tulsa, Oklahoma area, and the majority of Team’s documents
related to Most’s claims were located at Team’s Broken Arrow office. At the
5 Most also asserted that her witnesses would include employees of the Emerson entities who had “inspected the equipment” after the accident and they were Texas residents.
8 hearing, Team provided an exhibit of the plaintiff’s initial disclosures in the Kansas
suit brought by the estate of Burchett, which had identified as potential witnesses
four Westar employees who were Kansas residents.
Following the hearing, the trial court denied Team’s motion to dismiss for
forum non conveniens.
At trial,6 Gautney, a former employee of Team, testified that he was a “valve
tech” inspector and was a lead supervisor at Team around the time of the accident.
Team was a “VR company,” which meant that it had certifications from the National
Board of Boiler and Pressure Vessel Inspectors and was allowed to certify a repair
if a valve passed a code inspection. Gautney himself did not have a specific
certification to work on relief valves that were manufactured by a company named
Crosby, but he was certified to work on other valves and was qualified through his
training to work on them.
Gautney further testified that in April 2018, he and Whinery spent about ten
days at the Jeffrey Energy Center during a plant shutdown to perform a “code repair”
of the pressure relief valves for Westar. The scope of work for Gautney and Whinery
was limited to the pressure relief valves and did not include the elbows and or bolts
that attached to the boiler.
6 By the time of trial, Most had nonsuited her claims against the Emerson entities and Siemens, leaving Team as the sole defendant in her suit.
9 According to Gautney, the valve, relevant to this case, that had failed at the
Jeffrey Energy Center, was safety relief valve (“SRV”) 3-125, manufactured by
Crosby. When Gautney inspected SRV 3-125, it looked as if it had been leaking
before he got there. He realized that the valve could not be VR-certified. Westar
loaned Gautney its Crosby valve reseating machine so that he could try to repair the
valve. But the machine did not “clean up the seating surface” of the valve well
enough, “so [Gautney] had to lap it.” When Gautney “removed the machine from
the valve,” he noticed that the machining “didn’t get all the pits and everything out
of the seating surface,” so there was a “loss in tolerance.” Gautney told a Westar
contact, either Jake Dailey or Wayne McAfee, that SRV 3-125 was not “up to code”
and could not be a certified repair. Gautney and Whinery had “verbal agreements”
with Westar to change Team’s scope of work on SRV 3-125 to “noncode,” and
Gautney reassembled SRV 3-125 at Westar’s instruction. According to Gautney, if
a “customer change[d] the job” to a “noncertified repair,” then he did not “have to
meet the code standards.” It was “[the customer’s] valves and [its] decision” on
what Gautney did “with the valves.” Because the Jeffrey Energy Center was shut
down when that decision was made, “[t]here was no immediate danger to life or
property at the time, and [Gautney] did not believe that the valve [was] in an unsafe
state.” When he left the Jeffrey Energy Center in April 2018, Gautney suspected
that SRV 3-125 might “lift early.” That was “why [he] asked to be on-site,” and he
10 understood that he was supposed to be back at the Jeffrey Energy Center when the
plant started up. Gautney acknowledged that he did not have any documentation
showing that Westar had agreed to a noncertified repair of SRV 3-125 and that
Westar was on notice that Gautney had reassembled SRV 3-125 but suspected that
it might fail its essential function.
Gautney further testified that during the Jeffrey Energy Center’s plant
shutdown, he told Dailey about all the pressure relief valves, including SRV 3-125,
that had potential problems and needed to be monitored during the plant startup.
Gautney also recalled a conversation that he had with Dailey in which he suggested
that Westar “check in with [its] inspectors, to make sure that a valve repair not
meeting standards would be okay for Westar to startup.” If Dailey or McAfee had
contacted him before startup, Gautney “would have been able to explain to them that
[he] would like to be there on-site, so that way, [he] could be on that deck babysitting
[SRV 3-125].”
Jerod Cox, a manager at Team’s Broken Arrow office, testified by deposition
that he spoke to Gautney while Gautney was on-site at the Jeffrey Energy Center in
April 2018. Cox asked how the work “was going,” and Gautney told him about “the
condition of the [SRV 3-125]” and stated that a “repair should not be done.” Cox
responded that Gautney “needed to report to his Westar contact to make [Westar]
aware of the condition of the valve.” Gautney told Cox that “he was going to do
11 that.” Cox understood that Team was to schedule Gautney and Whinery to return to
the Jeffrey Energy Center “once [it] was up, or they were supposed to go back to
be[] on-site during [the plant] startup.”
Keaton Riddle, an operations manager at Jeffrey Energy Center in June 2018,
testified by deposition that he was not scheduled to work at the plant on Sunday,
June 3, 2018, but he drove there to take a co-worker to lunch to celebrate the
co-worker’s upcoming retirement. According to Riddle, he had picked up the
co-worker and headed for the plant exit gate when he was “waved down” by a
technician. During his conversation with the technician, Riddle heard what he
thought might be a pressure “relief valve start[] relieving” and noticed that “there
was steam emitting from a vent stack.”
Riddle called the supervisor’s office to alert the plant workers of the situation.
Burchett answered the phone, and Riddle “notified him that steam was coming out
of a vent,” which he “assumed to potentially be a safety relief valve letting off.”
Riddle also heard “popping” sounds that “sounded like a steam engine.” Riddle
asked Burchett what was going on, and Burchett responded that they did not know
but “would go look.”
Soon after, Riddle received a text message telling him to return immediately
to the Jeffrey Energy Center because there were “two badly burned supervisors in
the control room.” When he got inside, he discovered that Burchett and Henson had
12 been burned. “Their skin was ashy, white-colored, sloughing off,” and “[t]hey were
having a hard time breathing.” Emergency crews were tending to them and giving
them oxygen. Riddle called Most to let her know what had happened. “[A]t some
point,” Burchett and Henson were airlifted to the University of Kansas Hospital.
Thomas Ducheshneau testified by deposition that he was the control room
operator on duty at the Jeffrey Energy Center on the day of the accident. Henson
and Burchett came into the control room, “looked at the screens, and said [that]
everything looked good.” Then they asked Ducheshneau “how things were going,”
and he responded that “everything look[ed] pretty good.” Ducheshneau noted that
there was “nothing” that he knew of that was “on the control board that would give
[him] any type of indication or alarm that would let [him] know of a steam leak.”
According to Ducheshneau, Henson and Burchett then said “okay” and
“walked out.” But about three to five minutes later, they were screaming and
banging on the emergency exit door, badly burned. “[T]heir eyes were black.”
Burchett’s hair was burned off. Henson’s tattoos were “gone,” he had fingers
“missing,” and his skin “was hanging” and “falling everywhere.” “[T]hey were dead
men walking.” Ducheshneau called for emergency assistance, and Henson and
Burchett were airlifted to the hospital about forty-five minutes later.
McAfee testified by deposition that he oversaw all the contract labor at the
Jeffrey Energy Center. He understood that Team’s valve experts were supposed to
13 examine the safety relief valves, make sure that they were working properly, and if
they were not, repair them until they could work properly, i.e., restore them to a
condition that they could be VR stamped. McAfee also stated that he “fe[lt] like”
Team’s scope of work, which was described in the Team-Westar contract as to
“inspect, repair, certify the safety relief valve,” should also have included checking
the discharge flange. McAfee acknowledged, though, that the scope-of-work
provision in the Team-Westar contract did not say anything about Team checking
the studs, the nuts that connected the drip pan elbow to the safety valve, or the
discharge piping.
McAfee further testified that he did not recall any Team valve technician
telling him that SRV 3-125 was unsafe during the Jeffrey Energy Center plant
shutdown or that Team wanted to have a technician present when Westar started the
plant up again. If he had been told, McAfee stated that he “would have remembered.
It would have hit [him] in the face.” They would not have restarted “the unit”
without a repair, and “[i]t would have been fixed right.” According to McAfee, if
he had been told, he “would have [gone] to [his] plant manager,” and they “would
have stopped that unit,” “repaired it,” and had it VR stamped “in order . . . to bring
it back up.”
14 Most7 testified that she and Henson began dating in 2006 and almost
immediately became “inseparable.” Henson was Most’s “soulmate,” her
“protector,” and the “love of [her] life.” They were active people who enjoyed
hiking, bicycling, and running together. They ran “a lot of [5k] races” together.
They also enjoyed crafting, including making holiday decorations and building
things out of wood. Henson built a “garden box” for Most, which she still had.
Most also stated that she and Henson wanted to grow their family. They tried
early “in the marriage to have a child, and it just didn’t work.” In 2018, Most and
Henson began looking into adopting “a four- or five-year-old little boy.” They
dreamed about Henson “teach[ing] him football and wrestling and tell[ing] him all
the stories.”
Most recounted that on the day that Henson was injured, she and her father
went to the hospital burn unit. When the doctor described Henson’s condition to
her, she “couldn’t believe what [she] was hearing.” The doctor told her that Henson
“had been steam burned” over ninety-five percent of his body and the only skin “that
was still good was the bottom of his feet because of the soles of his shoes.” The
doctor also told Most that Henson appeared “gray and ashy” and was swollen. And
the doctor told her that he “had just cut slits” into Henson’s “skin to relieve the
pressure” from the swelling. The doctor then warned Most that Henson’s condition
7 Most only appeared live at trial on the day she testified.
15 “was irreversible.” Henson’s “body was going to start shutting down,” and Most
“was going to have to decide when to let him go.”
Most recalled that when she saw Henson, he was “covered with a sheet” up to
his neck. His head was “three times the size it should have been,” and he was “gray,
ashy, [and] white.” Most “let [Henson] know” that she was there. She did not touch
him because she “didn’t want to hurt him.”
At first, Most told Henson to “fight.” But after she “started to realize” that he
could not “fight anymore,” she told him, “Jesse, you got to go. I don’t want you to
fight.” And she told Henson what the doctors and nurses had told her about his
condition.
When Henson’s kidneys began to shut down, a nurse told Most that it was
time for her to decide how she “wanted to do this.” After a chaplain came into the
room, Most spent her final moments with Henson. She told him that his grandfather
and mother were waiting for him and that she loved him and would always love him.
Most did not “know if [Henson] heard” her, but she saw a “single tear f[a]ll down
his cheek.” “Shortly after that, his breathing slowed[,] and he passed.”
Most explained that when Henson died, she “lost [her] best friend” and her
“soulmate.” She was “so lonely without him.” She went “through the days like a
robot,” doing only what she had to do. According to Most, no one “want[ed] to be
16 around” her after Henson’s death because she was “just sad to be around” and “[t]hey
[did not] know what to say.” She thought “they [felt] sorry for her.”
Most also noted that she still kept Henson’s clothes in the closet. And a friend
had offered to make her a quilt from Henson’s shirts, but Most turned down the offer
because she could not bear the idea of “cutting up his shirts.”
Most further stated that since Henson’s death, she no longer hiked or rode her
bike. She still made art because painting would “kind of quiet[] [her] mind for a
while.” The jury was shown one of her paintings, which she described as coming
from her “loneliness” and “despair.” It showed her sitting in moonlight “underneath
a tree,” surrounded by Henson’s glasses, “boots, badge,” and the flag she received
at his funeral.
Darryl Henderson, M.D., a plastic and reconstructive surgeon and Most’s
medical expert, testified that seventy-five percent of his medical practice involved
“reconstructive surgery, trying to put a patient who[] had a bad burn back together,”
and treating “long-term problems” caused by serious burns. Henderson reviewed
Henson’s hospital records and viewed a videotaped recording from the Jeffrey
Energy Center’s security camera of the accident that caused Henson’s injuries.
According to Henderson, the steam that escaped and injured Henson, which
was “about 800 degrees Fahrenheit,” would have made “excruciating” and
“devastating” burn injuries. After Henson’s initial contact with the steam, some of
17 the burned skin would start “sloughing off,” his “whole body” would start swelling,
and his blood pressure would “start going down.”
Henderson further explained that the superheated steam “basically dissolved
the skin that it touched,” so “the skin was dripping off and sloughing off [Henson’s]
body.” “[A] very hot steam burn destroys the blood vessel and obstructs the blood
vessel and stops getting blood flowing.” Normal skin appears pink “because blood
is flowing through there.” But Henson’s skin was “totally destroyed by the burn.”
“There [was] no blood left that[] [was] going through the skin, and so it [was] white
and waxy.”
Henderson understood that it took about thirty minutes for the ambulance to
arrive at the Jeffrey Energy Center. The emergency medical technicians (“EMTs”)
who arrived then called a medevac helicopter to transport Henson to the hospital,
and it took another fifteen minutes for the helicopter to arrive. Henson’s medical
records showed that during that forty-five-minute period, Henson, who was alert,
did not receive any pain medication. According to Henderson, this meant that
Henson was able to “perceive all the pain that the burn caused.” The last two things
Henson said before he was intubated were “I’m hurting everywhere” and “tell my
wife I love her,” which to Henderson meant that Henson was aware that he would
die from his injuries.
18 From Henson’s medical records, Henderson also understood that Henson’s
“[t]otal body surface area” was covered with second- and third-degree burns. Of all
the types of injuries people could have, Henderson opined, a burn injury was “the
most painful.” And Henson’s burns were so severe that they went “all the way down
through the skin” and “destroy[ed] the nerve endings” as well as “the part of the
nerve that [went] down to the fat or wherever the burn stop[ped].” That type of burn
caused “a tremendous amount of pain because the . . . brain [would be] getting a lot
of bizarre signals going to it that it c[ould not] understand.”
Henderson further noted that the steam had damaged Henson’s lungs, and the
steam that entered his airway burned his “trachea and the bronchi[oles] going to his
lungs as well,” which would have made it difficult for him to breathe. Also, because
of the extensive damage to his skin and the veins close to the skin surface, Henson
could not be given fluids or medication intravenously. To receive fluids and
medication, he had to have a hole drilled into his tibia, which was a painful
procedure. And even with that intervention, Henderson believed that the medical
staff at the hospital was not able to give Henson enough medication through the
intraosseous line to put him in a medically induced coma.
Henderson noted that eventually, Henson went into “burn shock,” which
meant that his body “began to break down.” The damage to his skin caused him to
develop acidosis, which “c[ould] be fatal.” Also, Henson’s “kidneys
19 [we]re . . . damaged severely by the toxins” from his “dead skin.” His “kidneys’ job
[wa]s to get rid of” all the toxins coming “from the dead tissue,” but because “so
much” of Henson’s skin was dead and damaged, the toxins were “overwhelming”
his kidneys. The burn shock also caused the blood pressure in Henson’s brain to
drop, which would have affected his perception of pain.
Henderson referred to Henson’s hospital records observing that Henson
“intermittently rais[ed]” his hands and at “[o]ne point, spontaneously raised bilateral
arms.” According to Henderson, those motions showed that Henson was in “pain
and discomfort” and was “just not sedated very well at all.” Henderson opined that
Henson experienced extreme pain and suffering during the thirteen hours between
his injury and his death.
Dr. William Hickerson, Team’s medical expert, testified by deposition that he
had forty years of experience as a physician. He was board certified in plastic
surgery and was the former president of the American Burn Association.
Hickerson stated that in treating a patient whose condition was as serious as
Henson, his goal would be to keep the patient sedated and “to keep [the patient]
where they’re not remembering anything . . . . You want to try to make it as
amnestic as possible.” The patient would receive medications that would lead to
different degrees of sedation.
20 According to Hickerson, from the time that the EMTs were able to administer
sedation fifty minutes after the accident, Henson appeared to have been kept sedated.
The medical records showed that from the time Henson was first administered
ketamine, a medication, he was unresponsive. The level of consciousness for a
patient in Henson’s condition depended on “many factors,” not just the medications
that the patient received. Hickerson explained that Henson was unconscious not
only because of the “medications that he was getting,” but because “he was also
acidotic.” A patient in the acidotic state that Henson was in “would be extremely
unlikely to remember anything during that time.”
Hickerson also testified that a combination of ketamine and another
medication, such as fentanyl, like Henson received, would have put a patient “in a
state” where he would not “remember anything” about what was “going on,” or if
he did, he “wouldn’t care.” Later, Henson’s treating physicians stopped giving him
ketamine but gave him other medications that did “the same thing” that ketamine
did, “in addition to the fentanyl that [Henson had been] given.”
According to Hickerson, ketamine was a “dissociative[],” so the patient would
“not feel[] anything” and could “do whatever.” Ketamine could cause burn patients
who are otherwise sedated to move. Hickerson recounted that he used to use
ketamine during a “burn wound excision” where he would “cut off the dead tissue.
21 And during that time period, [the patients would] talk to [him], they’d move. But
they didn’t remember anything.”
In reviewing Henson’s medical records, Hickerson noted that Henson “had
corneal burns,” and to treat that condition, drops would be administered, and the
medical staff at the hospital would “put on a moisture chamber” that they covered
with moistened “gauze on the outside.” Under such circumstances, Hickerson
explained, a patient would not be “making tears.”
The jury found that both Team and Westar were negligent, apportioning Team
ninety percent responsibility and Westar ten percent responsibility. As to
compensatory damages for Most’s wrongful death claim, the jury found that
Henson’s estate was entitled to $27 million in damages for physical pain and $30
million in damages for mental anguish. As to compensatory damages for Most’s
survival claim, the jury found that Most was entitled to $35 million for past loss of
companionship and society and $40 million for future loss of companionship and
society. The jury also found that Most was entitled to $45 million for past mental
anguish and $45 million for future mental anguish.
The trial court entered judgment on the verdict, awarding Most $222 million
in damages, and Team moved for a new trial.
In its motion for new trial, Team, among other things, asserted that the trial
court should dismiss Most’s claims against it for forum non conveniens. According
22 to Team, Most had tried her case “with no Texas evidence” despite her earlier
argument that a Texas forum was necessary because, among other things, her case
depended on Texas documents and witnesses. Further, Most, at trial, “did not link
any action or inaction in Team’s Texas offices to [Henson]’s death.”
Team also asserted that the private interest factors considered in a forum non
conveniens analysis favored Kansas, noting that Kansas, and not Texas, provided
easier access to sources of proof and Kansas was where the accident had occurred.
Further, Team asserted that Most was a Kansas citizen and Kansas “had a greater
interest in protecting her.”
Additionally, according to Team, trying Most’s claims against it in Texas
caused it to suffer substantial injustice. Team could not use compulsory process to
secure the attendance of “the many important Kansas witnesses.” Team’s main
defense was that it had told Westar about the problems with the condition of SRV
3-125 during the plant shutdown, but Westar denied that Team had done so. Despite
witness credibility being a significant issue in the case, Gautney, who had agreed to
travel from Oklahoma to testify, was the only fact witness to appear live at trial. All
the other fact witnesses presented at trial, including those from Westar, had to appear
by deposition.8
The trial court denied Team’s motion for new trial.
8 See TEX. R. CIV. P. 176.3.
23 Order of Issues
“Generally, when a party presents multiple grounds for reversal of a judgment
on appeal, the appellate court should first address those points that would afford the
party the greatest relief.” Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d
675, 677 (Tex. 1999); see also TEX. R. APP. P. 43.3. “But the general rule has
exceptions.” Union Pac. R.R. v. Seber, 477 S.W.3d 424, 436 (Tex. App.—Houston
[14th Dist.] 2015, no pet.) (citing Texas Rule of Appellate Procedure 43.3(b), which
permits remand “in the interest of justice”). Here, Team’s challenge to the trial
court’s denial of its motion to dismiss for forum non conveniens, if successful, would
require the Court to vacate the trial court’s judgment and dismiss the case. See TEX.
CIV. PRAC. & REM. CODE ANN. § 71.051(b). Team, though, has also asked the Court
to review the propriety of the trial court’s choice-of-law ruling and the factual
sufficiency of the evidence supporting the jury’s noncompensatory damages
findings. The relief available for those issues, if sustained, would fall short of
vacatur, but because they are integral to the factors that the Court must balance in a
forum non conveniens analysis, we consider them first. See, e.g., TEX. CIV. PRAC.
& REM. CODE ANN. § 71.051(b)(6) (court required to consider whether “stay or
dismissal would not result in unreasonable duplication or proliferation of
litigation”); Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 33–34
24 (Tex. 2010) (public interest factors to consider in forum non conveniens
determination include avoiding conflicts of law issues).
Choice of Law
In a portion of its first issue, Team argues that the trial court erred in refusing
to apply Kansas law to Most’s claims because Kansas law differs from Texas law
and Kansas has the “most significant relationship” to Most’s claims.
Which state’s law governs a party’s claims is a question of law for the court
to decide. Enter. Prods. Partners, L.P. v. Mitchell, 340 S.W.3d 476, 479–80 (Tex.
App.—Houston [1st Dist.] 2011, pet. dism’d); see also Sonat Expl. Co. v. Cudd
Pressure Control, Inc., 271 S.W.3d 228, 231 (Tex. 2008). Where, as here, the
relevant contacts are not in dispute, we review the trial court’s choice of law
determination de novo. Enter. Prods. Partners L.P., 340 S.W.3d at 480; see also
Sonat Expl. Co., 271 S.W.3d at 231. In wrongful death and survival actions
involving injuries that occurred out of state, Texas courts must “apply the rules of
substantive law that are appropriate under the facts of the case.” TEX. CIV. PRAC. &
REM. CODE ANN. § 71.031(c). If the applicable laws of the interested jurisdictions
do not conflict, there is no need to decide which jurisdiction’s law applies.
Vanderbilt Mortg. & Fin., Inc. v. Posey, 146 S.W.3d 302, 313 (Tex. App.—
Texarkana 2004, no pet.); Vandeventer v. All Am. Life & Cas. Co., 101 S.W.3d 703,
711–12 (Tex. App.—Fort Worth 2003, no pet.); Young Refin. Corp. v. Pennzoil Co.,
25 46 S.W.3d 380, 385 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). Texas
courts may presume that another state’s law is the same as Texas law absent proof
or argument to the contrary. Coca–Cola Co. v. Harmar Bottling Co., 218 S.W.3d
671, 685 (Tex. 2006); Cooper Indus., LLC v. Pepsi-Cola Metro. Bottling Co., 475
S.W.3d 436, 441 n.5 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
A trial court is required to take judicial notice of the laws of other states if the
party requesting application of a foreign law provides the court with “sufficient
information” for it to comply with the party’s request. See TEX. R. EVID. 202;
Holden v. Capri Lighting, Inc., 960 S.W.2d 831, 833 (Tex. App.—Amarillo 1997,
no pet.). The party requesting application of a foreign law has the initial burden of
showing that the foreign law conflicts with Texas law. Cooper Indus., LLC, 475
S.W.3d at 441 n.5; Scherer v. Tex. Coast Yachts, LLC, No. 01-20-00412-CV, 2022
WL 2251816, at *8 (Tex. App.—Houston [1st Dist.] June 23, 2022, no pet.) (mem.
op.). If the party requesting application of a foreign law does not provide sufficient
information to reveal a conflict between Texas law and the law of another state, the
trial court may exercise its discretion by choosing not to take judicial notice of the
other state’s law. See Holden, 960 S.W.2d at 833; see also Pittsburgh Corning Corp.
v. Walters, 1 S.W.3d 759, 769 (Tex. App.—Corpus Christi–Edinburg 1999, pet.
denied) (inadequate proof of conflict between laws fails to overcome presumption
that law of foreign jurisdiction is identical to that of Texas). If the party provides
26 sufficient information to show a conflict in the applicable substantive law of each
jurisdiction, then Texas courts will apply the guidelines of the Restatement (Second)
of Conflict of Laws section 6 as well as any other specific sections of the
Restatement (Second) of Conflict of Laws that apply to the substantive legal issues.
Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 443 (Tex. 2007); Ins. Co. of
State of Pa. v. Neese, 407 S.W.3d 850, 853–54 (Tex. App.—Dallas 2013, no pet.).
A. Actual Conflicts Between Texas Law and Kansas Law
According to Team, it established that Texas law and Kansas law conflict on
certain liability and damages issues. Team first asserts that where, as here, a
company is subject to vicarious liability, Texas law, unlike Kansas law, has not
recognized theories of direct liability, such as negligence in training, hiring, or
supervising. Compare Luvual v. Henke & Pillot, 366 S.W.2d 831, 837–38 (Tex.
App.—Houston 1963, writ ref’d n.r.e.) (“When agency and course and scope of
employment were admitted, previous conduct became immaterial.”), with Marquis
v. State Farm Fire & Cas. Co., 961 P.2d 1213, 1224 (Kan. 1998) (noting Kansas law
recognizes “that an admission that the employee was acting within the scope of his
or her employment does not preclude an action for both respondeat superior and
negligent entrustment or negligent hiring, retention, or supervision”). Yet the Texas
Supreme Court has not reached this issue, and our sister appellate court has indicated
that the issue is unsettled. See JBS Carriers v. Washington, 564 S.W.3d 830, 842
27 (Tex. 2018); see also Werner Enter., Inc. v. Blake, 672 S.W.3d 554, 587 (Tex.
App.—Houston [14th Dist.] 2023, pet. filed) (trucking company’s stipulation to
respondeat superior liability did not preclude plaintiff from asserting direct theories
of negligence, including negligent training, negligent supervision, negligent hiring,
and negligent retention, against trucking company); id. at 625 (Wilson, J.,
dissenting) (court should adopt rule “under which an employer’s admission that an
employee was acting in the course and scope of his employment when the employee
allegedly engaged in negligent conduct bars a party allegedly injured by the
employee’s negligence from pursuing derivative theories of negligence against the
employer, subject to an exemplary damage exception”). Because Texas does not
have a clear rule prohibiting a plaintiff from pursuing other theories of derivative
negligence when the defendant has stipulated to respondeat superior, the trial court
acted within its discretion in choosing not to take judicial notice of Kansas law on
that issue. See Holden, 960 S.W.2d at 833; see also TEX. R. EVID. 202.
Team next asserts that unlike Texas law, Kansas law does not recognize joint
and several liability. Compare TEX. CIV. PRAC. & REM. CODE ANN. § 33.013(b)(1)
(defendant found responsible for greater than fifty percent of harm is jointly and
severally liable with other persons that contributed in some way to harm), and Lakes
of Rosehill Homeowners Ass’n v. Jones, 552 S.W.3d 414, 422 (Tex. App.—Houston
[14th Dist.] 2018, no pet.) (trial court erred in concluding that common-law rule of
28 joint and several liability for indivisible injury did not survive enactment of Texas
Civil Practice and Remedies Code Chapter 33), with KAN. STAT. ANN. § 60-258a(d)
(“When the comparative negligence of the parties is an issue and recovery is
permitted against more than one party, each party is liable for that portion of the total
dollar amount awarded as damages to a claimant in the proportion that the amount
of that party’s causal negligence bears to the amount of the causal negligence
attributed to all parties against whom recovery is permitted.”). Here, the jury was
asked to find the percentage of negligence attributable to Team and Westar, and it
found Team ninety percent negligent and Westar ten percent negligent for causing
or contributing to cause Henson’s injuries and death. Yet, the trial court’s judgment
holds Team responsible for 100 percent of the damages found by the jury. This
award complies with Texas law but conflicts with Kansas law.
Finally, Team asserts that pertinent Kansas damages law conflicts with Texas
damages law, explaining that while Texas law has no set limit on the amount of
noneconomic damages that can be recovered in wrongful death and survival actions,
Kansas has limited by statute the amount of noneconomic damages that can be
recovered for those claims. See KAN. STAT. ANN. § 60-1903(b) (capping
noneconomic wrongful death damages at $250,000); id. § 60-19a02 (capping
noneconomic personal injury damages at $300,000).
29 In a wrongful death action, the statutory cap under Kansas law is in actual
conflict with Texas law, which imposes no such limits on the recovery of
noneconomic damages. Most suggests that there are questions about the validity of
Kansas Statutes section 60-1903(b), but we disagree. The Kansas Supreme Court
has expressly held that the section 60-1903(b) noneconomic damages cap is
constitutional. See Tillman v. Goodpasture, 485 P.3d 656, 666 (Kan. 2021)
(reaffirming same holding in Adams v. Via Christi Regional Medical Center, 19 P.3d
132, 139 (Kan. 2001) and Leiker v. Gafford, 778 P.2d 823, 850 (Kan. 1989),
overruled in part on other grounds by Martindale v. Tenny, 829 P.2d 561, 628–29
(Kan. 1992)).
The Kansas Supreme Court has not specifically addressed the constitutionality
of Kansas Statutes section 60-19a02 as applied to a survival action, but it has held
that section 60-19a02’s cap “is facially unconstitutional because it violates section 5
of the Kansas Constitution Bill of Rights.”9 Hilburn v. Enerpipe Ltd., 442 P.3d 509,
524 (Kan. 2019). At the outset of its analysis, the Hilburn court observed that
Kansas Constitution section 5 “preserves the jury trial right as it historically existed
9 Team suggests that only a plurality of the justices signed on to this holding, but it was joined by four justices of the seven-member Kansas Supreme Court. See Hilburn v. Enerpipe Ltd., 442 P.3d 509, 509, 524 (Kan. 2019) (noting chief justice did not participate in decision); id. at 525, 527 (Stegall, J., concurring) (“As set forth in the majority opinion, [Kansas Statutes section 60 19a02] violates section 5 of the Kansas Constitution Bill of Rights.”); id. at 531, 543 (Luckert, J., joined by Biles, J., dissenting); see also KAN. CONST. art. 3, § 2.
30 at common law” when the state constitution “came into existence.” Id. at 514. Yet
in declaring that section 60-19a02 was facially unconstitutional, the court did not
limit its holding to common-law actions. See id. at 524.
Team points out that the Kansas Supreme Court’s decision in Tillman
reiterated that the constitutional jury-trial right recognized in Hilburn applied only
to protect “traditional common-law causes of action,” and Team asserts that we
should extend that reasoning to conclude that the application of Kansas Statutes
section 60-19a02 to Most’s survival claim does not violate Kansas’s constitutional
right to a jury trial. But we are constrained by the plain language of Hilburn’s
holding. See Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 & n.3 (Tex. 1984)
(in applying law from another jurisdiction, Texas courts must assume that legal
authority from jurisdiction correctly states rule). When a statute is held to be facially
unconstitutional, the statute by its terms operates unconstitutionally in every
application. See Appraisal Rev. Bd. of Galveston Cnty. v. Tex–Air Helicopters, Inc.,
970 S.W.2d 530, 534 (Tex. 1998); Barshop v. Medina Cnty. Underground Water
Conserv. Dist., 925 S.W.2d 618, 623 (Tex. 1996); Houston Firefighters’ Relief &
Ret. Fund v. City of Houston, 579 S.W.3d 792, 806 (Tex. App.—Houston [14th
Dist.] 2019, pet. denied); accord State v. Valdiviezo-Martinez, 486 P.3d 1256, 1267
(Kan. 2021); In re Appeal of Weisgerber, 169 P.3d 321, 327 (Kan. 2007). Our role
in determining another state’s law does not extend to determining whether the
31 applicable statute could theoretically withstand a state constitutional challenge. See
Duncan, 665 S.W.2d at 420 & n.3. Thus, we do not perceive an actual conflict
between Texas law and Kansas law as to the amount of noneconomic damages
available for a survival action.
B. Kansas Law Applies
Because Team established actual conflicts between Texas law and Kansas law
on the issues of joint and several liability and the amount of noneconomic damages
available for a wrongful death action, we next consider whether the trial court erred
in applying Texas law, rather than Kansas law, to those issues. See Alarcon v.
Velazquez, 552 S.W.3d 354, 360 (Tex. App.—Houston [14th Dist.] 2018, pet.
denied) (“The Restatement methodology requires a separate conflict-of-laws
analysis for each issue in a case.”); see also BDO Seidman, LLP v. Bracewell &
Patterson, LLP, No. 05-02-00636-CV, 2003 WL 124829, at *2 (Tex. App.—Dallas
Jan. 16, 2003, pet. denied) (mem. op., not designated for publication) (“[T]he
substantive law applicable to the underlying tort action is not automatically
applicable to a defendant’s contribution claim.”).
The Restatement (Second) of Conflict of Laws section 6 sets out general
factors relevant to the choice of law:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
32 (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000) (quoting RESTATEMENT
(SECOND) OF CONFLICT OF LAWS § 6(2) (AM. L. INST. 1971)); see also Enter. Prods.
Partners, 340 S.W.3d at 480.
In applying the general conflict of laws principles to tort cases like this one,
Restatement (Second) of Conflict of Laws section 145 declares that “[t]he rights and
liabilities of the parties with respect to an issue in tort are determined by the local
law of the state which, with respect to that issue, has the most significant relationship
to the occurrence and the parties under the principles stated in [section] 6.”
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145(1); see also Enter. Prods.
Section 145 provides the following specific factors to consider:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicile, residence, nationality, place of incorporation and place of business of the parties, and
33 (d) the place where the relationship, if any, between the parties is centered.
Torrington Co., 46 S.W.3d at 848 (quoting RESTATEMENT (SECOND) OF CONFLICT
OF LAWS § 145(2)); see also Enter. Prods. Partners, 340 S.W.3d at 480.
The Restatement (Second) of Conflict of Laws then further refines the
choice-of-law analysis applicable to personal injury (section 146) and wrongful
death (section 175) claims. For such claims,
the law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in [section] 6 to the occurrence and the parties, in which event the local law of the other state will be applied.
RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 146, 175. The Restatement
(Second) of Conflict of Laws also weighs in on situations where the alleged
negligent conduct and the injury occurred in different states, commenting that “[i]n
such instances, the local law of the state of injury will usually be applied to determine
most issues involving the tort.” See id. §§ 146 cmt. e, 175 cmt. f.
According to Restatement (Second) of Conflict of Laws sections 146 and 175,
then, we must presume, as the starting point for our analysis, that Kansas law applies
to determine proportionate responsibility. We will then consider the various factors
identified in the Restatement to guide us in determining whether Texas has a greater
interest in the determination of the particular issue than Kansas, the state where the
injury occurred. See id. § 175 cmt. d. (also providing that courts should examine 34 “the purpose sought to be achieved by their relevant local law rules and of the
particular issue involved”). The number of contacts with a state is not determinative;
rather, we evaluate the contacts in light of the state policies underlying the particular
substantive issue. Torrington Co., 46 S.W.3d at 848; Enter. Prods. Partners, 340
S.W.3d at 481.
Most asserts that the injury’s occurrence in Kansas was “fortuitous,” and as a
result, the fact that the injury occurred in Kansas is “entitled to minimal weight.”
Most makes this assertion because Restatement (Second) of Conflict of Laws section
145(2) comment e explains that “the place of injury will not play an important role
in the selection of the state of the applicable law” when, for example, “the place of
injury can be said to be fortuitous.” See RESTATEMENT (SECOND) OF CONFLICT OF
LAWS § 145(2) cmt. e. Most points out that Team is a global company with valve
technicians in plants “all over the world” who “travel[] all over the country” to
perform services for Team. She further notes that “Gautney and Whinery d[id] not
live or regularly work in Kansas,” and they spent only a few days at the Jeffrey
Energy Center. According to Most, Team’s negligent conduct “could easily have
happened anywhere in the country.”
Whether Team’s conduct could have happened anywhere, though, does not
mean that the injury’s occurrence in Kansas was fortuitous. “Fortuitous” means
“[o]ccurring by chance; accidental.” BLACK’S LAW DICTIONARY (11th ed. 2019).
35 The evidence shows that Westar, a Kansas utility company, contacted Team’s
Broken Arrow office and requested that Team provide valve maintenance services
at the Jeffrey Energy Center, one of Westar’s electric power plants in Kansas. Team
and Westar entered into a service contract governed by Kansas law, and Team sent
two valve technicians from Oklahoma to Kansas to provide the services described
in the Team-Westar contract. We also note that Henson and Most lived in Kansas,
and Henson worked for Westar at the Jeffrey Energy Center in Kansas. Their
injuries did not occur in Kansas by chance. See, e.g., Toyota Motor Co. v. Cook,
581 S.W.3d 278, 285 (Tex. App.—Beaumont 2019, no pet.) (that accident occurred
in Mexico was not fortuitous where van involved in accident was directly imported
from Japan to Mexico, sold in Mexico to Mexican national, and used exclusively in
Mexico). Under the circumstances, Henson’s work-related injuries could not have
occurred anywhere but Kansas. See Crisman v. Cooper Indus., 748 S.W.2d 273,
279 (Tex. App.—Dallas 1988, writ denied). Thus, we apply Kansas law to
determine proportionate liability and damages unless Texas has a more significant
relationship.
“[T]he most important contacts in determining which state’s law governs
compensatory damages will usually be the ones with the most direct interest in the
plaintiff’s monetary recovery and/or the most direct in protecting the defendant
against financial hardship.” Torrington Co., 46 S.W.3d at 849 (internal quotations
36 omitted). “[A] plaintiff’s domiciliary state usually has a strong interest in seeing its
compensatory damages law applied.” Id. at 850.
In the cases cited by Team, Cook and Crisman, the Texas appellate courts
concluded that the location where the defective product was sold had the stronger
interest in having its products liability laws applied. See Cook, 581 S.W.3d at 285
(noting Mexico’s restrictions on tort claims and recovery demonstrated policy
interest in protecting Mexicans from excessive liability claims and Mexico’s
investigation of crash, which led to conclusion that van’s driver was criminally
responsible, demonstrated policy interest in applying Mexican law); Crisman, 748
S.W.2d at 280 (Florida had stronger policy interest in applying its laws to action
because Florida had greater interest in regulating products sold in Florida and in
controlling operation of vehicles on its highways). Similarly, Kansas has a strong
interest in holding out-of-state businesses that provide services in Kansas
responsible when their negligent conduct causes injuries to a Kansas citizen in
Kansas. Kansas also has an interest in ensuring that its utility companies are held
responsible when their own negligence contributes to the injuries of a Kansas citizen.
Texas may have some interest in ensuring that the nationwide activities of its
corporate citizens satisfy a certain standard of care. But the applicable standard of
care may vary from jurisdiction to jurisdiction. For example, the Jeffrey Energy
37 Center’s operations must comply with the Kansas Boiler Safety Act.10 Here, Texas’s
interest in overseeing the out-of-state conduct of its corporate citizens is not as
compelling as Kansas’s interest in ensuring the safe operation of its utilities and in
holding all parties who interfere with the safety of those operations responsible for
any harm they cause.11
10 See KAN. STAT. ANN. §§ 44-913–44-933 (Kansas Boiler Safety Act). Although both Texas and Kansas apply standards set by the National Board of Boiler and Pressure Vessel Inspectors, they do not both adopt the same edition of the National Board Inspection Code. Compare KAN. ADMIN. REGS. § 49-45-20 (adopting by reference 2007 edition of National Board Inspection Code Parts 1, 2, and 3), with TEX. ADMIN. CODE ANN. § 65.612 (requiring repairs and alterations to “conform to the current edition of the National Board Inspection Code”). “The [National Board Inspection Code] is published as a new edition in July of odd numbered years (2017, 2019, 2021, 2023).” NATIONAL BOARD INSPECTION CODE (NBIC), https://www.nationalboard.org/index.aspx?pageID=4#:~:text=The%20NBIC%20i s%20published%20as,2019%2C%202021%2C%202023) (last visited Apr. 24, 2024). Team pointed out in the trial court that the National Board Inspection Code added a new Part 4 that deals with pressure relief devices, such as those at issue here, in 2017, making it part of the regulatory scheme for Texas but not for Kansas. See Nat’l Bd. of Boiler & Pressure Vessel Inspectors, NAT’L BOARD INSPECTION CODE (2017 ed.). 11 Most states that Team provided some training courses in Texas for its valve technicians and Gautney called a Team employee in Texas for guidance on the valve repair in Kansas. But the evidence did not identify either of these contacts as the negligent conduct that caused the injuries, so they do not factor into our analysis. And because Team did not train its employees exclusively in Texas, any failure to provide adequate training is not necessarily attributable to Texas. Texas’s interest in such conduct is not enough to displace the interest of Kansas, where the injuries occurred. See RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 146 cmt. e, 175 cmt. f (AM. L. INST. 1971) (where alleged negligent conduct and injury occurred in different states “the local law of the state of injury will usually be applied to determine most issues involving the tort”).
38 Further, in placing limits on certain noneconomic damages, the Kansas
legislature made a clear policy choice in balancing its citizens’ interest in receiving
fair compensation for their injuries and the state’s interest in maintaining a favorable
business climate. See Crisman, 748 S.W.2d at 279 (Florida legislature’s enactment
of statute of repose showed state’s concern in area of products liability); see also
Torrington Co., 46 S.W.3d at 850 (“[A] plaintiff’s domiciliary state usually has a
strong interest in seeing its compensatory damages law applied.”). Applying Kansas
law on these issues is not difficult, and it promotes the certainty, predictability, and
uniformity of the results in such cases.
Based on the foregoing, we hold that the trial court erred in applying Texas
law, rather than Kansas law, to hold Team responsible for 100 percent of the
damages found by the jury despite the jury’s findings that Team was ninety percent
liable and Westar was ten percent liable, and it also erred in declining to apply
Kansas law’s noneconomic damages caps to the jury’s damages award on Most’s
wrongful death claim.
We sustain in part the portion of Team’s first issue challenging the trial court’s
application of Texas law.
Noneconomic Damages
In its second issue, Team argues that the trial court erred in awarding Most
the amount of noneconomic damages found by the jury because it was excessive and
39 resulted from Most’s arguments encouraging the jury to punish Team. In its third
issue, Team argues that the trial court erred in empaneling and instructing the jury
because those actions contributed to the excessiveness of the jury’s damages award.
An excessive damages complaint is a challenge to the factual sufficiency of
the evidence supporting the damages award. See Anderson v. Durant, 550 S.W.3d
605, 620 & n.66 (Tex. 2018); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402,
406 (Tex. 1998); C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 796 (Tex.
App.—Houston [1st Dist.] 2004, no pet.). When a party attacks the factual
sufficiency of an adverse finding on an issue on which it did not have the burden of
proof at trial, it must demonstrate that the adverse finding is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.
See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Four J’s Cmty. Living Ctr., Inc.
v. Wagner, 630 S.W.3d 502, 516 (Tex. App.—Houston [1st Dist.] 2021, pet. denied).
In conducting a factual-sufficiency review, we examine, consider, and weigh all
evidence that supports or contradicts the jury’s determination. See Dow Chem. Co.
v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Plas–Tex, Inc. v. U.S. Steel Corp., 772
S.W.2d 442, 445 (Tex. 1989). As in a legal-sufficiency review, we recognize the
jury as the sole judge of the credibility of the witnesses and the weight to be given
to their testimony. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761
(Tex. 2003). If we conclude that the evidence is factually insufficient and that the
40 award of damages is therefore excessive, then we must detail why we reach that
result. C.M. Asfahl Agency, 135 S.W.3d at 797.
Appellate courts must review noneconomic damage awards to confirm that
they are not the result of passion or prejudice. Gregory v. Chohan, 670 S.W.3d 546,
576 (Tex. 2023) (Bland, J., concurring in part); see also id. at 563 (plurality op.)
(observing plaintiff’s “only arguments provided to justify an amount of damages
were impermissible appeals to irrelevant considerations”). As a type of
compensatory damages, noneconomic damages’ purpose is to make a plaintiff whole
for any losses caused by the defendant’s interference with the plaintiff’s rights by
placing the plaintiff in the position that she would have been in absent the
defendant’s tortious conduct. In re K & L Auto Crushers, LLC, 627 S.W.3d 239,
250 (Tex. 2021) (orig. proceeding); J & D Towing, LLC v. Am. Alt. Ins. Corp., 478
S.W.3d 649, 655 (Tex. 2016); Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 16 (Tex.
1994); see also TEX. CIV. PRAC. & REM. CODE ANN. § 41.009(8) (“‘Compensatory
damages’ means economic and noneconomic damages. The term does not include
exemplary damages.”); id. § 41.009(12) (“‘Noneconomic damages’ means damages
awarded for the purpose of compensating a claimant for 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
41 exemplary damages.” (emphasis added)); see also Four J’s Cmty. Living Ctr., 630
S.W.3d at 516. Where the compensatory damages sought are purely noneconomic,
courts have a duty to ensure that the damages awarded “are the result of a rational
effort, grounded in the evidence, to compensate the plaintiff for the injury.”
Gregory, 670 S.W.3d at 550 (plurality op.).
Before we can measure the factual sufficiency of the evidence supporting the
jury’s noneconomic damages award, we must identify the standard against which
the evidence is to be measured. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 530
(Tex. 2002). If there was no objection to the jury charge, then the charge actually
submitted is the proper measure of the sufficiency of the evidence. Osterberg v.
Peca, 12 S.W.3d 31, 55 (Tex. 2000). Here, Team objected to the trial court’s charge
on the grounds that the jury should be instructed under Kansas law, not Texas law,
and it tendered a proposed charge following Kansas law with instructions on
noneconomic damages, including damages for mental anguish, suffering, and loss
of companionship. We do not perceive any actual conflict between the proposed
Kansas law jury instructions on these elements and Texas law, and neither party
asserts that a factual sufficiency analysis of them would be different under Kansas
law. Thus, we apply Texas law to the issue of whether the evidence is factually
sufficient to support the jury’s noneconomic damages award. See Cooper Indus.,
475 S.W.3d at 441 n.5.
42 Mental anguish is compensable only if it causes a “substantial disruption in
daily routine or a high degree of mental pain and distress.” Hancock v. Variyam,
400 S.W.3d 59, 68 (Tex. 2013). This requires “direct evidence of the nature,
duration, and severity of the[] [plaintiff’s] mental anguish, thus establishing a
substantial disruption to the plaintiff’s daily routine.” SCI Tex. Funeral Servs., Inc.
v. Nelson, 540 S.W.3d 539, 544 (Tex. 2018). Consistent with the trial court’s jury
charge definition, “[l]oss of companionship and society means the loss of the
positive benefits flowing from the love, comfort, companionship, and society” that
the plaintiff, in reasonable probability, would have received from the decedent had
he lived. See Moore v. Lillebo, 722 S.W.2d 683, 687–88 (Tex. 1986). There must
be both evidence of the existence of compensable mental anguish or loss of
companionship and evidence to justify the amount awarded. See Gregory, 670
S.W.3d at 555 (plurality op.); Bentley v. Bunton, 94 S.W.3d 561, 606 (Tex. 2002).
For her survival claim, the jury awarded Most $45 million for past mental
anguish, $45 million for future mental anguish, $35 million for past loss of
companionship and society, and $40 million for future loss of companionship and
society. In total, the amount of noneconomic damages awarded for Most’s survival
claim alone was $165 million, more than ten times the $15,065,000 noneconomic
damages award reversed by the Texas Supreme Court in Gregory. See 670 S.W.3d
at 553 (plurality op.).
43 Most’s testimony at trial painted a tragic picture, from her initial shock about
Henson’s condition and her insistence that Henson “fight,” to her gradual realization
that he could not “fight anymore.” Most explained that she had to make the
excruciating decision to terminate life support and stand by Henson in his final
moments.
Most also described her loneliness after Henson, whom she described as her
“soulmate,” died. She did only what she had to do, performing tasks like a “robot.”
It seemed to her that no one “want[ed] to be around” her after Henson died because
she was “just sad to be around” and “[t]hey [did not] know what to say.” She could
not bear to part with Henson’s belongings or go on hikes or bike rides like she and
Henson used to do together. Her only solace was in her art.
For her wrongful death claim, the jury awarded Most $27 million for Henson’s
pain and suffering and $30 million for his mental anguish. Evidence of damages in
support of Most’s wrongful death claim included testimony from Henson’s
co-worker, who witnessed Henson’s condition immediately following the steam
release until Henson was intubated by the EMTs. Henson’s body was covered with
second- and third-degree burns, and the superheated steam had also damaged his
trachea and lungs. Henson did not receive any pain medication until forty-five
minutes after he was burned, and the parties’ experts disagreed about whether he
44 was medicated enough to relieve his pain and suffering between the time he first
received medication and his death several hours later.
Most did not seek any economic damages, which, if she had, may or may not
have provided some basis for the jury to determine an appropriate amount of
noneconomic damages. See Gregory, 670 S.W.3d at 559–60 (plurality op.); id. at
569 (Devine, J., concurring). And she did not propose any amount of money that
she believed would compensate her for the mental anguish and loss of
companionship she experienced. The jury heard only argument from Most’s counsel
about what would be an appropriate damages award.
But Most’s counsel’s arguments for noneconomic damages were “based on
standards that depart[ed] from the evidence.” Id. at 576 (Bland, J., concurring in
part). As the Texas Supreme Court has observed, it is improper for a plaintiff to
argue for damages based on “unsubstantiated anchoring,” that is, by “reference to
objects or values with no rational connection to the facts of the case,” such as “the
cost of a fighter jet” or “the auction price of a coveted painting.” Id. at 558 (plurality
op.); see also Alonzo v. John, No. 22-0521, 2024 WL 2095957, at *3 n.1 (Tex. May
10, 2024) (Gregory “clarified that claimants cannot rely on unsubstantiated
anchoring to sustain a damages award.”); Gregory, 670 S.W.3d at 569 (Devine, J.,
concurring). Such comparisons have “nothing to do with the emotional injuries
suffered by the plaintiff and cannot rationally connect the extent of the injuries to
45 the amount awarded.” Id. at 558 (plurality op.). Also pertinent, damages awards for
mental anguish or loss of companionship “are not meant to place a value on human
life.” Id. (plurality op.).
Yet here, Most’s counsel, by suggesting that the jury compare the cost of an
expensive painting to the value of a human life, did exactly what the Gregory court
deemed improper. For instance, in his opening argument, counsel stated:
You may see a headline, painting sells for $350 million, right. That’s what somebody who owned it was willing to sell it for. It’s a bargain. It’s a deal. It’s a price, fair and reasonable. I don’t think there is a person that would say that a painting is more valuable than a human life.
And Most’s counsel returned to this theme in his closing argument, suggesting that
“[t]he hard part of [the jury’s] job . . . [was] valuing the whole person, [and] valuing
the entire loss.” And counsel stated, “if you picked 300 million because you can
make an exchange for a painting, then that’s okay.”
The effect of these improper arguments to the jury was compounded by the
exemplary damages evidence and themes that remained before the jury even after
Most abandoned her claim for exemplary damages at the jury charge conference,
after the close of evidence.12 The Texas Supreme Court has cautioned that an award
12 “‘Exemplary damages’ means any damages awarded as a penalty or by way of punishment but not for compensatory purposes. Exemplary damages are neither economic nor noneconomic damages.” TEX. CIV. PRAC. & REM. CODE ANN. § 41.009(5).
46 of noneconomic damages must “fairly and reasonably compensate” for the loss and
must not be disguised as disapproval or punishment of the defendant. Bentley v.
Bunton, 94 S.W.3d 561, 605, 607 (Tex. 2002); see also Reliance Steel & Alum. Co.
v. Sevcik, 267 S.W.3d 867, 870 (Tex. 2008) (party’s size and wealth generally “has
no logical relevance to a case,” but “the prejudicial effect of such evidence often
creates strong temptations to use it”).
The record here shows that the jury was presented with substantial evidence
and argument relevant only to exemplary damages throughout trial. Most’s counsel
first raised the issue of exemplary damages during voir dire, asking the jury panel
members what they thought about punitive damages and whether they could “award
millions and millions of dollars in punitive damages” if the circumstances warranted
it.
During his closing argument, Most’s counsel continued to raise themes that
had no relevance apart from a claim for exemplary damages. He emphasized Team’s
size, telling the jury that Team was “the largest valve inspection company in the
country,” was “publicly traded on the New York Stock Exchange,” had “offices in
multiple countries,” and had “thousands of employees doing this work.” Most’s
counsel also asserted that if Team had been acting with integrity, it would have
“admit[ted] its wrong” and it would have “do[ne] something to fix the situation to
make sure it would never happen again.” Additionally, he accused Team of
47 “diminish[ing] the value of a life well lived” and “disrespect[ing] the process of th[e]
trial.” Most’s counsel urged the jury to “let Team know” by its verdict that such
“behavior [was] not acceptable.” He told the jury that they had to “put a price on it”
to give Team the message “that life [was] not cheap, the value of life [was] not on
sale,” and that it was “not to be discounted,” “disrespected,” or “diminished.” And
he cautioned the jury that Team would “not change, unless [they] ma[d]e [it]
change,” and if the jury did not, “then Team just gets away with it.”13
These improper arguments left the jury with no sound guidance for deciding
the amount of compensation to award Most for mental anguish and loss of
companionship. See Gregory, 670 S.W.3d at 551 (plurality op.). For this reason,
we cannot say that the damages award is not the result of passion or prejudice. See
id. at 576 (Bland, J., concurring in part); see also id. at 563 (plurality op.) (jury’s
decision “cannot be based on noncompensatory motivations”); id. at 577 (Devine,
13 Because Team did not ask the trial court to bifurcate the proceeding, exemplary damages issues were properly raised throughout the trial. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.009; see also Crowder v. Sanger, No. 03-21-00291-CV, 2023 WL 4631501, at *6 (Tex. App.—Austin June 30, 2023, no pet.) (mem. op.) (noting “legislature considers liability issues so distinct from exemplary damages” that trial may be bifurcated to permit jury to make liability and exemplary damage findings in separate parts of trial). When Most abandoned her exemplary damages claim during the jury charge conference, Team requested that the trial court include an instruction in its charge to the jury “that the compensatory damages, if any, [it] award[ed] in answer to th[e] question [were] not allowed as a punishment and must not be imposed or increased to penalize Team.” The trial court, though, rejected Team’s requested instruction and did nothing to otherwise put the jury on notice that it should disregard the evidence relevant to the exemplary damages because it was no longer relevant to any issue in the case.
48 J., concurring) (plaintiff’s counsel’s directives to base mental anguish damages on
passion and prejudice rendered verdict legally infirm). Thus, we conclude that the
damages are not supported by the evidence, and we hold that the trial court erred in
entering judgment on the jury’s damages findings.
We sustain Team’s second and third issues.
Generally, a suggestion of remittitur is appropriate to enter in cases where
there is insufficient evidence to support the full amount of a damages award. Id. at
564–65 (plurality op.); see also TEX. R. APP. P. 46.3. But if we cannot readily
determine an appropriate lesser amount of damages from the evidence, we may
reverse and remand for new trial. See ERI Consulting Eng’rs, Inc. v. Swinnea, 318
S.W.3d 867, 880 (Tex. 2010) (observing court of appeals could decide to remand for
new trial on lost profit damages if evidence did not seem conducive to remittitur).
Here, the evidence does not reveal any definite amount of noneconomic damages
that would make Most whole; the arguments of her counsel, which impermissibly
relied on punitive themes, were the only apparent source for the amount of
noneconomic damages found by the jury. For this reason, reversal and remand for
new trial would be the proper disposition.
Because we have concluded that a new trial is required, a dismissal for forum
non conveniens at this juncture “would not result in unreasonable duplication or
proliferation of litigation.” TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b). We
49 also note that by the time of trial, Most had nonsuited her claims against the Emerson
entities and Siemens, leaving Team as the sole defendant and the only party that was
a Texas resident. And in trying her case, Most did not focus on any Team conduct
in Texas and did not call any Texas witnesses. In short, the case that Most tried bore
little resemblance to the one addressed in the mandamus proceedings previously
adjudged by this Court and the Texas Supreme Court.14 As Team renewed its request
for forum non conveniens dismissal when it moved for new trial, we next review the
issue as it was presented to the trial court at that time.
Forum Non Conveniens
In the remaining portion of its first issue, Team argues that the trial court erred
in refusing to dismiss Most’s suit against it based on forum non conveniens because
when “personal injury and wrongful death actions [are] more properly heard in
14 Early in this case, the Emerson entities filed a petition for writ of mandamus seeking reversal of the trial court’s denial of their motion to dismiss for forum non conveniens, and Team filed a response joining in the petition. This Court denied relief, concluding that the Emerson entities had “failed to establish that the trial court abused its discretion.” In re Emerson Process Mgmt. Valve Auto., Inc., No. 01-19-00152-CV, 2019 WL 1996517, at *1 (Tex. App.—Houston [1st Dist.] May 7, 2019, orig. proceeding [mand. denied]) (mem. op.). The Texas Supreme Court denied Team’s subsequent petition for mandamus relief without opinion. These prior rulings do not affect our analysis of the forum non conveniens issue presented in this appeal. Because the parties and claims are not substantially the same as they were when the petitions for writ of mandamus were ruled on, and because Team renewed its request for forum non conveniens dismissal after trial, the law of the case doctrine does not apply here. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). .
50 another forum[,] [they] must be dismissed,” the trial court had a “statutorily
mandated duty to stay or dismiss” the case for forum non conveniens, and “Most
used misdirection to avoid an adverse forum non conveniens ruling at the [suit’s]
inception.” (Emphasis omitted.)
An appellate court will reverse a trial court’s forum non conveniens
determination if the record shows a clear abuse of discretion. See Quixtar, 315
S.W.3d at 31; Brenham Oil & Gas, Inc. v. TGS NOPEC Geophys. Co., 472 S.W.3d
744, 766 (Tex. App.—Houston [1st Dist.] 2015, no pet.). A trial court abuses its
discretion when it acts without reference to guiding rules or principles. Quixtar, 315
S.W.3d at 31. When “all the factors do not conclusively favor the alternative
forum[,] . . . we cannot say that the trial court abused its discretion in denying” a
motion to dismiss for forum non conveniens. In re Mahindra, USA, 549 S.W.3d
541, 550 (Tex. 2018) (orig. proceeding); In re Friede & Goldman, LLC, No.
01-18-00409-CV, 2019 WL 2041071, at *3 (Tex. App.--Houston [1st Dist.] May 9,
2019, orig. proceeding) (mem. op.).
“[F]orum non conveniens is essentially ‘a supervening venue
provision . . . that goes to process rather than substantive rights—determining which
among various competent courts will decide the case.’” In re Mahindra, 549 S.W.3d
at 547 (quoting Am. Dredging Co. v. Miller, 510 U.S. 443, 453 (1994)). Dismissal
for forum non conveniens is appropriate when sufficient contacts between the
51 defendant and the forum state exist to confer personal jurisdiction, but the case itself
has no significant connection to the forum state. In re Bridgestone Ams. Tire
Operations, LLC, 459 S.W.3d 565, 568 (Tex. 2015) (orig. proceeding); In re XTO
Energy, Inc., No. 01-17-00652-CV, 2018 WL 2246216, at *4 (Tex. App.—Houston
[1st Dist.] May 17, 2018, orig. proceeding) (mem. op.).
Most’s suit involved claims for personal injury and wrongful death, so
statutory forum non conveniens applies. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 71.051(i); In re Mahindra, 549 S.W.3d at 544. Texas Civil Practice and Remedies
Code section 71.051 provides six factors for the trial court to consider in deciding
whether to dismiss a suit on forum non conveniens grounds, namely, whether:
(1) an alternative forum exists in which the claim or action may be tried;
(2) the alternative forum provides an adequate remedy;
(3) maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;
(4) the alternative forum, as a result of the submission of the parties or otherwise, can exercise jurisdiction over all the defendants properly joined to the plaintiff’s claims;
(5) the balance of the private interests of the parties and the public interest of the state predominate in favor of the claim or action being brought in an alternate forum, which shall include consideration of the extent to which an injury or death resulted from acts or omissions that occurred in this state; and
(6) the stay or dismissal would not result in unreasonable duplication or proliferation of litigation. 52 TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b). In applying these statutory factors,
a trial court has no discretion in determining what the law is or in applying the law
to the particular facts. In re Mantle Oil & Gas, LLC, 426 S.W.3d 182, 187 (Tex.
App.—Houston [1st Dist.] 2012, orig. proceeding); see In re Transcont’l Gas
Pipeline Co., 542 S.W.3d 703, 715 (Tex. App.—Houston [14th Dist.] 2017, orig.
proceeding); see also In re ENSCO Offshore Int’l Co., 311 S.W.3d 921, 927 (Tex.
2010) (orig. proceeding) (trial court may not assign different weights to statutory
factors; if all factors weigh in favor of claim being heard in forum outside Texas,
trial court must grant motion and decline to exercise jurisdiction).
The trial court also must consider whether the plaintiff is a Texas resident
because the factors applied in a forum non conveniens determination are balanced
differently when, as in this case, a nonresident plaintiff has chosen Texas as the
forum. See Quixtar, 315 S.W.3d at 31–32. If the plaintiff is not a Texas resident,
the presumption that she “filed in Texas as a matter of convenience applies with less
force and deserves substantially less deference than it would if [the plaintiff] were a
Texas resident.” Id. at 33; see also In re XTO Energy, 2018 WL 2246216, at *4;
Grynberg v. Grynberg, 535 S.W.3d 229, 234 (Tex. App.—Dallas 2017, no pet.).
The forum non conveniens statute does not place the burden of proof on either
party. In re Mahindra, 549 S.W.3d at 550; In re XTO Energy, 2018 WL 2246216,
at *4. “To the extent [that] evidence is necessary to support the positions of the
53 parties,” courts must weigh the factors based “on the weight of the evidence” and
are “entitled to take into account the presence or absence of evidence as to some
issue or position of a party.” In re Gen. Elec. Co., 271 S.W.3d at 687; see also Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 258–59 (1981) (movant for forum non
conveniens dismissal must offer enough information to permit trial court “to balance
the parties’ interests”). The trial court must determine the proper forum based on
the greater weight of the evidence. In re Mahindra, 549 S.W.3d at 550. If the
statutory factors weigh in favor of the claim or action being more properly heard in
a forum outside of Texas, Texas Civil Practice and Remedies Code section 71.051
“requires dismissal of the claim or action.” In re Gen. Elec. Co., 271 S.W.3d at 686;
see In re Weatherford Int’l, LLC, No. 22-1014, --- S.W.3d ---, 2024 WL 1819829,
at *2 (Tex. Apr. 26, 2024); see also TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b).
Most has not disputed that three of the six factors set forth in Texas Civil
Practice and Remedies Code section 71.051 favored dismissal of her suit: Kansas
was an alternate forum where her claims could be tried (factor one); Kansas provided
an adequate remedy (factor two); and Kansas could exercise jurisdiction over all the
properly joined defendants (factor four). See TEX. CIV. PRAC. & REM. CODE ANN.
§ 71.051(b). Thus, we must consider only whether the trial court acted within its
discretion in balancing the evidence in support of the third, fifth, and sixth factors.
54 The third factor requires a trial court to consider whether “maintenance of the
claim or action in the courts of this state would work a substantial injustice to the
moving party.” See id. § 71.051(b)(3). In doing so, trial courts should consider “the
location of relevant documents and evidence and whether a majority of witnesses
may be reached by compulsory process in Texas.’” In re Weatherford, 2024 WL
1819829, at *3 (quoting In re Mantle Oil & Gas, 426 S.W.3d at 192).
Here, holding the trial in Texas meant that Team could not subpoena fact
witnesses in Kansas, such as Henson’s adult children, who could have spoken to
Henson’s relationships with them, and Westar employees, who could have testified
about communications between the Jeffrey Energy Center and Team’s Broken
Arrow office. Team was also unable to subpoena Kansas state regulators about the
general maintenance of coal-generated power plants in Kansas and the results of any
investigation into the accident. And Team was left to rely almost exclusively on
deposition testimony to defend itself, which placed it at an unnecessary
disadvantage. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511 (1947) (“Certainly
to fix the place of trial at a point where litigants cannot compel personal attendance
and may be forced to try their case on deposition, is to create a condition not
satisfactory to court, jury or most litigants.”); In re Oceanografía, S.A. de C.V., 494
S.W.3d 728, 730 (Tex. 2016) (orig. proceeding) (defendants entitled to forum non
conveniens dismissal where many witnesses could not be compelled to testify in
55 Texas court and even though witnesses were willing and available to testify by
deposition, defendants asserted that they would still be substantially prejudiced in
presenting case to jury); In re Pirelli Tire, LLC, 247 S.W.3d 670, 678 (Tex. 2007)
(orig. proceeding) (granting forum non conveniens dismissal because key evidence
and witnesses who could testify about damages, including witnesses most likely to
be familiar with condition and maintenance of truck and tire, were located in
Mexico); see also In re ENSCO, 311 S.W.3d at 925 (explaining it would be
substantially unjust to party moving for dismissal for forum non conveniens if “great
majority” of witnesses would not be amenable to compulsory process in Texas.).
For these reasons, we conclude that the third forum non conveniens factor favors
dismissal of Most’s suit for forum non conveniens.
For the fifth factor, the trial court was required to decide whether “the balance
of the private interests of the parties and the public interest of the state predominate
in favor of the claim or action being brought in an alternate forum,” including
“consideration of the extent to which an injury or death resulted from acts or
omissions that occurred in this state.” See TEX. CIV. PRAC. & REM. CODE ANN.
§ 71.051(b)(5). The private interest factors to consider include: (1) the relative ease
of access to sources of proof; (2) the availability of compulsory process for
attendance of unwilling witnesses, and the cost of obtaining attendance of willing
witnesses; (3) the possibility of view of premises, if view would be appropriate to
56 the action; (4) enforceability of a judgment once obtained; and (5) all other practical
problems that make trial of a case easy, expeditious, and inexpensive. Quixtar, 315
S.W.3d at 33.
Again, the immediate acts or omissions that caused Henson’s death occurred
in Kansas. By the time of trial, Most had nonsuited her claims against the Emerson
entities and Siemens, leaving Team as the sole defendant. In trying her case, Most
did not focus on any conduct by Team in Texas and did not call any Texas witnesses
to testify. Most argued that Team was negligent because it failed to adequately train
its employees at its training facility in Alvin, Texas. But the evidence showed that
Team provided some training for its employees in locations outside Texas and some
training was available online, so any failure to provide adequate training was not
necessarily attributable to actions or omissions by Team in Texas. In short, the
record contains no evidence about any specific acts or omissions in Texas that caused
the accident. Further, as noted in our discussion of the private-interest
considerations under the third factor, evidence relating to Westar’s conduct,
including its communications with Team’s Broken Arrow office and its response to
the steam release at the Jeffrey Energy Center, is located in Kansas, beyond the
subpoena power of Texas courts.
Requiring parties to litigate a case in Texas when evidence and fact witnesses
are beyond the reach of compulsory process is a waste of private and public
57 resources. In re Gen. Elec. Co., 271 S.W.3d at 689. We also recognize that Kansas
has a strong public interest in protecting the health and safety of its residents,
particularly when its own public utilities are involved. See In re Pirelli Tire, 247
S.W.3d at 679. Kansas’s public interest in the suit is further reinforced by our
holding that Kansas law applies, at a minimum, to proportionate responsibility issues
and to the amount of damages that Most can recover for her wrongful death claim.
See In re Weatherford, 2024 WL 1819829, at *5. Given that the only connection
Most’s suit has to Texas is the fact that Team has its corporate offices in Texas,
Texas does not have a strong public interest in Most’s suit. See In re XTO Energy,
2018 WL 2246216, at *9. Thus, it would be unfair to burden the residents of Fort
Bend County with a retrial. For these reasons, the fifth forum non conveniens factor
also supports dismissal of Most’s suit for forum non conveniens. See In re ENSCO,
311 S.W.3d at 926–27 (holding fifth factor supported forum non conveniens
dismissal and rejecting plaintiff’s reliance on purported management decisions and
actions allegedly made in defendant’s Texas offices because plaintiff failed to
identify any specific corporate policy linked to her husband’s death); In re CVR
Energy, Inc., No. 01-15-00715-CV, 2016 WL 1389013, at *5 (Tex. App.—Houston
[1st Dist.] 2016, orig. proceeding) (mem. op.) (even considering that defendant’s
corporate office was in Texas, Kansas had stronger interest in adjudicating dispute
arising out of refinery fire in Kansas).
58 As to the sixth factor, Most argues that because her claims have already been
tried, Team cannot establish that “dismissal would not result in unreasonable
duplication or proliferation of litigation.” See TEX. CIV. PRAC. & REM. CODE ANN.
§ 71.051(b)(6). But we have already held that the trial court erred in applying Texas
law to certain of Most’s claims and that the evidence does not support the damages
award Most received. These holdings would require the Court to reverse the trial
court’s judgment and remand Most’s suit for an entirely new trial. See Gregory, 670
S.W.3d at 564 (plurality op.); Swinnea, 318 S.W.3d at 882. Because a new trial is
required, “dismissal [of Most’s suit] would not result in unreasonable duplication or
proliferation of litigation,” and the sixth forum non conveniens factor supports
dismissal. See TEX. CIV. PRAC. & REM. CODE ANN. § 71.051(b)(6).
In sum, all factors relevant to the statutory forum non conveniens analysis
favor Kansas as the proper forum for Most’s suit. Thus, we conclude that the trial
court was required to “stay or dismiss the claim or action.” See TEX. CIV. PRAC. &
REM. CODE ANN. § 71.051(b); see In re Gen. Elec. Co., 271 S.W.3d at 686. Because
it did not, we hold that the trial court erred in refusing to dismiss Most’s suit based
on forum non conveniens.
We sustain the remaining portion of Team’s first issue.15
15 Due to our disposition, we need not address any remaining issues raised by Team in its briefing. See TEX. R. APP. P. 47.1.
59 Conclusion
We vacate the judgment of the trial court and dismiss the case for forum non
conveniens.
Julie Countiss Justice
Panel consists of Chief Justice Adams and Justices Countiss and Farris.
Related
Cite This Page — Counsel Stack
Team Industrial Services, Inc. v. Kelli Most, Individually and as Personal Representative of the Estate of Jesse Henson, Counsel Stack Legal Research, https://law.counselstack.com/opinion/team-industrial-services-inc-v-kelli-most-individually-and-as-personal-texapp-2024.