Lynn Clark, as Representative of the Estate of Willard Radcliffe v. Arnett Eugene Easley

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-24-00357-CV ________________ LYNN CLARK, AS REPRESENTATIVE OF THE ESTATE OF WILLARD RADCLIFFE, Appellant V. ARNETT EUGENE EASLEY, Appellee ________________________________________________________________________ On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 23-03-04092 ________________________________________________________________________ OPINION Lynn Clark, as representative of the estate of Willard Radcliffe, filed a survival action against Arnett Eugene Easley, claiming Radcliffe died as a result of an auto-pedestrian accident caused by Easley’s negligence. Tex. Civ. Prac. & Rem. Code Ann. § 71.021. Clark’s petition alleges Radcliffe sustained economic damages, including medical expenses, and noneconomic damages, including conscious 1 physical pain and mental anguish suffered by Radcliffe prior to his death. 1 The petition also seeks recovery for funeral expenses allegedly incurred by the estate and exemplary damages based on Easley’s alleged gross negligence for driving while intoxicated. The case proceeded to a jury trial, and at the conclusion of the evidence the trial court granted Easley’s motions for directed verdict and subsequently signed a final take-nothing judgment. Because we agree with Clark that the record contains legally sufficient evidence to support a jury issue regarding the amount of money that would be fair and reasonable to compensate the estate for Radcliffe’s conscious physical pain prior to death, we conclude the trial court erred in granting a directed verdict for Easley, and we reverse and remand for a new trial. Directed Verdict A trial court may properly grant a directed verdict for the defendant when there is no evidence to support an essential element of the plaintiff’s claim, or when the evidence conclusively establishes a defense to the plaintiff’s claim. See Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). The motions at issue in this case were granted not because the evidence conclusively established a defense, but because the trial court concluded there was no evidence of damages, an essential element of the plaintiff’s claim. 1 During trial, Clark nonsuited the claim for medical expenses. 2  In five motions for directed verdict, Easley argued: (1) the evidence conclusively established Radcliffe was negligent for failing to yield the right-of-way to Easley’s vehicle since Radcliffe was crossing the street other than at a crosswalk; (2) there was no evidence of medical expenses; (3) there was no evidence Radcliffe’s funeral bills were reasonable and no evidence they were actually paid or incurred by his estate; (4) there was no evidence Radcliffe suffered conscious physical pain and mental anguish prior to his death; and (5) an award of exemplary damages would violate Easley’s constitutional rights, there was no evidence to support exemplary damages, and in the absence of compensatory damages, exemplary damages were not permissible as a matter of law. The first motion was denied and is not at issue on appeal. In response to the second motion, Clark nonsuited the estate’s claim for medical expenses, eliminating that issue. The trial court initially took the third motion under advisement. When the trial court subsequently indicated it was inclined to grant Easley’s fourth and fifth motions, Clark moved to reopen the evidence to introduce additional evidence regarding compensatory damages. The trial court denied this request, granted Easley’s third, fourth and fifth motions, discharged the jury, and subsequently signed a final take-nothing judgment. On appeal, Clark challenges the granting of motions three, four and five, arguing that there was legally sufficient evidence that the funeral bills were reasonable and necessary, that there was legally sufficient evidence of both the 3 existence and amount of damages for physical pain and mental anguish, that in the presence of compensatory damages an award of exemplary damages would have been permissible, would not violate Easley’s constitutional rights and was supported by the evidence, and that the trial court erred in refusing to allow Clark to reopen the evidence. We review directed verdicts de novo. See City of Baytown v. Schrock, 645 S.W.3d 174, 178 (Tex. 2022). When, as here, the directed verdict is premised on the absence of evidence of an essential element of a claim (rather than the establishment of an affirmative defense), we review the legal sufficiency of the evidence using the same standard we use when reviewing a no-evidence summary judgment. Id. This means that a directed verdict may be upheld on appeal only “when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.” City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (citing Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points of Error, 38 Texas. L. Rev. 361, 362-63 (1960)). We view the evidence in the light most favorable to the party challenging the directed verdict, “crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless 4 reasonable jurors could not.” Id. at 807; see also City of Baytown, 645 S.W.3d at 178. “If there is any evidence of probative force to raise a fact issue on the question presented, the trial court errs in directing the verdict.” Gore v. Gore, 233 S.W.3d 911, 912 (Tex. App.—Beaumont 2007, pet. denied). “The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller, 168 S.W.3d at 827. Because there is no jury verdict to review in this case, we conclude the question in this context is whether the evidence would have enabled reasonable and fair-minded people to reach a verdict awarding Clark damages recoverable under her survival action against Easley. If so, the question was one for the jury, and the trial court erred in granting Easley’s motion for directed verdict. Survival Damages Texas Civil Practice and Remedies Code section 71.021 provides, “A personal injury action survives to and in favor of the heirs, legal representatives, and estate of the injured person. The action survives against the liable person and the person’s legal representatives.” Tex. Civ. Prac. & Rem. Code Ann. § 71.021. By this statute, a decedent’s action survives his death and may be prosecuted in his behalf. The survival action, as it is sometimes called, is wholly derivative of the decedent’s rights. The actionable wrong is that which the decedent suffered before his death. The damages recoverable are those which he himself sustained while he was alive and not any damages claimed independently by the survival action plaintiffs (except that funeral expenses may also be recovered if they were not awarded in a wrongful death action). 5 Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992). Provided there is sufficient evidence, the decedent’s heirs or the legal representative of the decedent’s estate can recover reasonable and necessary funeral and burial expenses along with the elements of damages that are recoverable in a personal injury action, including but not limited to medical expenses, physical pain and mental anguish. See Borth v. Charley’s Concrete Co., 139 S.W.3d 391, 395 (Tex. App.—Fort Worth 2004, pet. denied). At the time the motions for directed verdict were granted in this case, Clark sought to recover on behalf of the estate economic damages consisting of Radcliffe’s funeral and burial expenses, noneconomic damages consisting of conscious physical pain and mental anguish sustained by Radcliffe prior to his death, and exemplary damages. Because we ultimately conclude the evidence was sufficient to support an award of damages for conscious physical pain, we must reverse and remand for a new trial, and we do not address whether the evidence was sufficient to support awards of any other damages sought by Clark. See Tex. R. App. P. 47.1 (requiring a court of appeals to “hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal[]”); id. 44.1(b) (prohibiting a court of appeals from “order[ing] a separate trial solely on unliquidated damages if liability is contested[]”). 6  Conscious Physical Pain Only that pain which was consciously experienced by the decedent prior to death may be recovered as damages. See Cunningham v. Haroona, 382 S.W.3d 492, 507 (Tex. App.—Fort Worth 2012, pet. denied). It is the plaintiff’s burden to establish that the decedent consciously experienced pain, and when the evidence could give rise to multiple inferences none of which is more probable than the others, the jury is not free to speculate or guess. See United Rentals N. Am., Inc. v. Evans, 668 S.W.3d 627, 642-43 (Tex. 2023) (citing Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997)). Nevertheless, it may be reasonably inferred from the severity of an injury that a person of sufficient consciousness would experience physical pain as a result of that injury. See Johnson v. Johnson, No. 09-19-00329- CV, 2021 Tex. App. LEXIS 2645, at *19 (Tex. App.—Beaumont Apr. 8, 2021, no pet.) (mem. op.) (citing B.T. Healthcare, Inc. v. Honeycutt, 196 S.W.3d 296, 301 (Tex. App.—Amarillo 2006, no pet.)). A level of consciousness sufficient to experience physical pain may be proven by circumstantial evidence, direct testimony from witnesses who observed the decedent consciously experiencing pain, or expert testimony. See Luna v. S. Pac. Transp. Co., 724 S.W.2d 383, 385 (Tex. 1987) (evidence was sufficient based on father’s testimony that his son, who was paralyzed and generally unresponsive, would open his eyes whenever the father visited the child); Levinge Corp. v. Ledezma, 752 S.W.2d 641, 645 (Tex. App.—Houston [1st 7 Dist.] 1988, no writ) (evidence was sufficient based on eyewitness’s testimony that decedent’s eyes were open, he was spitting up blood, gasping for air, trying to talk, and in a great deal of pain); HCRA of Tex., Inc. v. Johnston, 178 S.W.3d 861, 872 (Tex. App.—Fort Worth 2005, no pet.) (evidence was sufficient based on expert testimony describing decedent’s injuries and family members’ testimony that decedent complained of pain prior to his death). We have stated, “The process of awarding damages for amorphous, discretionary injuries, such as mental anguish and pain and suffering, is inherently difficult because the injury constitutes a subjective, unliquidated, non-pecuniary loss. Because there are no objective guidelines to assess the money equivalent of such injuries, the jury is given a great deal of discretion in awarding an amount of damages it determines appropriate.” Waltrip v. Bilbon Corp., 38 S.W.3d 873, 881 (Tex. App.—Beaumont 2001, pet. denied) (citations omitted). Nevertheless, the jury’s discretion is not unlimited, and the jury “cannot simply pick a number and put it in the blank.” Saenz v. Fid. & Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1996) (discussing sufficiency of the evidence in the context of mental anguish damages). Rather, the jury “must find an amount that, in the standard language of the jury charge, ‘would fairly and reasonably compensate’ for the loss.” Id. It necessarily follows that there must be evidence to enable the jury to make, and appellate courts to review, such a finding. See Gregory v. Chohan, 670 S.W.3d 546, 8 550 (Tex. 2023) (plurality op.) (discussing sufficiency of the evidence to support an award of mental anguish damages, and noting, “Our precedent requires courts reviewing the size of noneconomic damages awards to do more than consult their consciences.”). Courts reviewing awards for mental anguish, or combined awards for physical pain and mental anguish, have required evidence of the nature, severity and duration of the damages for which recovery is sought. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995) (“an award of mental anguish damages will survive a legal sufficiency challenge when the plaintiffs have introduced direct evidence of the nature, duration, and severity of their mental anguish[]”); Gregory, 670 S.W.3d at 560 (“[T]he same kind of evidence—of ‘nature, duration, and severity’—will naturally also be relevant to the amount awarded.”); Gonzalez v. Aguilar, No. 05- 25-01052-CV, 2026 Tex. App. LEXIS 5674, at *17 (Tex. App.—Dallas June 18, 2026, no pet. h.) (mem. op.) (evidence was insufficient to support award of damages for physical pain and mental anguish in the absence of evidence regarding the nature, duration and severity of the damages). Since the plurality opinion in Gregory, some courts have applied the “nature, duration and severity” requirement applicable in mental-anguish reviews when reviewing awards for physical pain or physical impairment. Garza v. Escamilla, 712 S.W.3d 718, 728 (Tex. App.—Houston [14th Dist.] 2025, no pet.) (evidence was sufficient to support award for physical pain and 9 physical impairment “[g]iven all of the testimony concerning the nature, duration, and severity of Escamilla’s injuries2025”); Emmanuel v. Garcia, No. 05-23-00805- CV, 2025 Tex. App. LEXIS 3004, at *13 (Tex. App.—Dallas Apr. 30, 2025, no pet.) (mem. op.) (evidence was sufficient to support award for physical pain where plaintiff introduced “ample testimony… regarding the severity and duration of her injuries”). The rationale behind the rule requiring evidence of the nature, severity and duration of mental anguish also applies in the context of its oft-conjoined element, physical pain.2 Without such evidence, juries would be ill-equipped to find an amount that would reasonably and fairly compensate the plaintiff for such physical pain, and, as a reviewing court, we would be relegated to consulting our consciousnesses rather than fulfilling our responsibility to conduct a careful and dispassionate review of the evidence in the record. We conclude, therefore, that in order to survive a no-evidence challenge a plaintiff must introduce evidence of the nature, severity and duration of the plaintiff’s physical pain so as to enable the jury 2 “To avoid concerns about improperly mixing valid and invalid elements of damages (see Harris County v. Smith, 96 S.W.3d 230, 234 (Tex. 2002)), when the sufficiency of the evidence to support either physical pain or mental anguish is in question, separate submission of those items may avoid the need for a new trial if a sufficiency challenge is upheld on appeal.” Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges-General Negligence PJC 30.3 cmt. (2024). 10 to determine an amount that would be fair and reasonable to compensate the plaintiff for such damages. Applicable Analytical Standard Synthesizing the legal principles set forth above regarding directed verdicts, legal sufficiency of the evidence, and the evidentiary requirements for conscious physical pain, the question for us in this de novo review of the directed verdict disposing of Clark’s survival action is whether the record contains more than a scintilla of evidence that, when viewed in a light favorable to Clark, would enable a reasonable and fair-minded jury to find: (1) that Radcliffe consciously experienced physical pain as a result of the accident; and (2) an amount of money that would have fairly and reasonably compensated Radcliffe for his conscious physical pain prior to death, based on evidence of the nature, duration and severity of any such conscious physical pain. If so, then the evidence was legally sufficient to support an award of damages for conscious physical pain, and the trial court erred in granting Easley’s fourth motion for directed verdict. Evidence Regarding Conscious Physical Pain On January 4, 2023, around 8:30 in the evening, 75-year-old Radcliffe left a play rehearsal in downtown Conroe and was crossing the street when he was struck by a vehicle being operated by Easley. Radcliffe was transported to the hospital, where he was pronounced dead at 9:51 p.m. 11 Cary Rebecca Morgan Meredith Cary Rebecca Morgan Meredith testified that she and Radcliffe knew each other through the community theater. Meredith and Radcliffe were at the rehearsal that night, and Meredith called 911 after the accident. A copy of the 911 call was admitted as evidence. Meredith stated that she did not observe the accident, and after she made the 911 call, she handed the phone to Easley. Meredith testified that she was talking to Radcliffe after the accident to reassure him that help was on the way, noting that “[h]e never responded or answered or moved.” Meredith stated she did not know whether Radcliffe was conscious, but “[i]f he was conscious, he was in pain.” She also testified she heard someone saying, “He’s awake.” A redacted version of the 911 call placed by Meredith that night was played for the jury. In the call, Meredith can be heard telling the 911 operator that Radcliffe is breathing but not moving, and, after she hands the phone to Easley, he can be heard saying Radcliffe is awake and breathing. Megan Powell Megan Powell testified that she is a captain paramedic with the Montgomery County Hospital District (MCHD). Powell detailed her professional background and stated that she responded to the emergency call regarding Radcliffe on January 4, 2023. Powell remembered this case because, although she has worked several cases through the years, “This is one that will probably stick with you. It’s a higher acuity 12 call. An auto versus pedestrian, it’s not something you run every day, like a chest pain or a fall.” Powell’s patient care report from that night was admitted into evidence, and her report included the following narrative regarding Radcliffe’s treatment. Arrival: Medic 11 arrived on scene to find patient lying in the road with ventilations being assisted with a BVM by fire department. Assessment: The patient had obvious trauma to his head and was agona[l]ly breathing. Fire fighters on scene reported to EMS that the patient was struck by a car. FD had AED placed on the patient. FD reported they could no longer feel a pulse so CPR was started. The patient had blood coming out of his mouth. An Igel was then placed. 3 The patient began breathing over the iGel and when the patient was reassessed pulses were present. CPR was stopped. A trauma activation was called and the patient was loaded onto the stretcher with a scoop stretcher. When the patient could be better assessed in the light in the back of the ambulance it was found that the patient had what appeared to be an avulsion to the right side of his forehead. The patient’s left eye was deviated but pupils were equal and reactive. The patient had an abrasion to his left knee. Treatment: A c-collar was placed on the patient. An IGel was placed. IO access was obtained and the patient was given TXA. When the IO was flushed the patient reacted to pain. IV access was also obtained and the patient was given a fluid bolus. Transport: During transport the patient was continuously reassessed. During transport it appeared the patient began having some bruising to the lower left quadrant of his abdomen. The patient continued to breath[e] 3 The term “i-gel” appears with a variety of capitalizations in the medical records, and we quote them as is. 13  on his own while being bagged and the IGEL in place. The patient did not present with any other changes. Powell testified she arrived at the scene at 8:44 p.m. and found the Conroe Fire Department was already there as the first emergency responders providing medical assistance to Radcliffe. Powell made contact with Radcliffe as he was being assisted by the fire department and subsequently transported him to the hospital, arriving at 9:01 p.m. Powell testified that when she first made contact with Radcliffe that night, he was alive and breathing on his own. Initially, the fire department believed Radcliffe did not have a pulse, but “upon revaluation, he did have a pulse, so he was still alive.” In her report, Powell stated that Radcliffe had “obvious trauma to his [head] and was agona[l]ly breathing[,]” which she described as “look[ing] like a fish out of water. You’re kind of gasping for air.” She reported that Radcliffe had blood coming out of his mouth and that he was intubated but eventually breathing on his own despite the intubation. Powell explained that the avulsion injury to Radcliffe’s forehead was “kind of like a big flap of skin that was just hanging off.” Powell’s report indicated, “The patient’s left eye was deviated but pupils were equal and reactive[,]” which she testified to mean “the left eye was away from, like, the normal position. So it was kind of like looking off to the side. And the pupils equal and reactive is something that we check for to check for, like, neurological function. So if they are equal and reactive versus not, there might not be a severe -- like, a brain injury at that time.” Powell testified: 14  Q. In other words, it’s more likely true than not true that, at the time that you were shining a light into his eyes and experiencing and observing his pupils were reactive and equal, you formed an opinion as to his ability to experience pain, right? A. Correct. Q. All right. And that opinion is what? A. That opinion is what? Q. What is that opinion? A. That he has the ability to have some kind of neuro function to know what’s going on and experience pain. Powell explained that a Glasgow Coma Score (GCS) is used on every patient encounter to gauge “how responsive or unresponsive a patient is after a brain injury.” “There’s a range. It’s -- the lowest number you can get is a 3, which is equivalent to what this desk would be ranked right here. And the highest number you can get is a 15, which is someone who is alert and oriented. They know where they’re at. They know what year, month it is. They’re talking to you. They’re normal baseline.” The records from MCHD indicate Radcliffe’s score was 6 at 8:51 p.m., a 6 at 8:55 p.m. and a 6 at 8:57 p.m. Powell also reported that when paramedics are in an urgent situation and cannot use an IV, paramedics will administer an IO, in which the paramedic drills into the patient’s bone with a needle and drill, inserting a catheter into the bone to quickly deliver fluids and medication. According to Powell, when Radcliffe was 15 given an IO, “he was kind of moving around, withdrawing from [the IO]” which she agreed was similar to when someone winces. Powell explained she noted this reaction in her report because it is “very unusual…that he reacted to pain. I’ve done countless IOs, but I could probably count on one hand the amount of people that have reacted to pain.” According to Powell, she did not administer pain medication to Radcliffe because “There were more urgent things, lifesaving measures that needed to take place.” On cross-examination, Powell conceded she interacted with Radcliffe only for 25 minutes, between 8:46 p.m. and 9:11 p.m. Powell testified when she first arrived, she performed “some sort of initial painful stimuli[,]” such as “a sternal rub to see if he responds to that[,]” but he was nonresponsive. She explained that Radcliffe’s GCS scores of 6 were comprised of three components including a score of 1 (the lowest possible) on the “Eye Opening” component, plus 1 (the lowest possible) on the “Verbal” component, plus 4 on the final component because he withdrew from pain.4 Powell testified: Q. So for us to be totally clear, ma’am, at all times in your interaction with Mr. Radcliffe, he was always not awake, right? A. Correct. Q. At a certain time, when you said your partner inserted this device to help administer medicine to him, his body responded to that treatment? 4 The medical records indicate the final component is labeled, “Motor.” 16  A. Correct. Q. How long did that response last? A. I don’t remember. Q. It certainly didn’t continue through the whole ambulance ride, right? A. The -- so he reacted to the pushing of the medicine through the IO, and then I was able to get an IV to push the fluids through there. 5 So the pushing of the medication is kind of like a one-time thing versus if I would have done continuous fluids. That’s why I did not, so he would not continue to react to that. Q. And so the – A. It’s like a one-and-done thing. Q. I know. And that’s what I want to be clear on. You testified that you noticed him react to the insertion of the line that would allow him to get the medicine and then what -- when the medicine was put in. A. Correct. Q. And that lasted as long as that occurred, right? A. I don’t remember specifically. Q. And so you can’t tell us how long that lasted? A. Yes. Q. But you can tell us that, after that procedure was over with, his reaction to that ended, true? A. I would say so because the next assessment I have after the IO says he’s unresponsive. 5 The records from MCHD indicate the IO procedure was performed at 8:53 p.m., and the IV was placed at 8:55 p.m. 17 Q. Okay. So you just taught us – A. So the IO was placed at – Q. In between the two times? A. Yep. Q. All right. And so to be clear, when you say that Mr. Radcliffe was alive enough to have the capability to experience pain -- I think that’s what you said. He had the neurological ability, true? A. True. Q. But the only time you ever witnessed him actually doing anything that a person in pain would do was in the brief time it took you to put the line in and push the medicine, correct? A. Correct. Q. All of the other time, he was not awake and was unconscious, true? A. True. ... Q. Isn’t agonal breathing the reflexive breathing that occurs when the brain is not getting enough oxygen? A. It can be, yes. Q. So that’s a sign of life but not a sign of consciousness, true? A. That alone, true. Q. Okay. And everyone agrees. I mean, you witnessed this. Even though Mr. Radcliffe was being treated and tended to by the fire department before you got there, he was alive, yes? 18  A. Yes. Q. But you don't know if he was conscious or not because you weren’t here? A. Correct. Q. You got to him, he was alive, but he wasn’t awake? A. Correct. Q. You did the medical procedure. And for the medical procedure, you witnessed him react for the brief time it took you to do the procedure and finish. A. Correct. Q. And never saw him awake after that, right? A. Correct. Hospital Records Medical records from HCA Houston Healthcare Conroe from the night of the accident indicate the following: [Radcliffe] [p]resents to the ER by EMS as a trauma activation. Patient was walking when he was struck by a motor vehicle [] 911 was called immediately and on arrival patient was unresponsive. EMS reports that pulses were lost at 1 point while they were resuscitating and CPR was started for approximately 2 minutes. Pulses were regained. Supraglottic airway was used in transport. Patient was never awake or responsive with EMS. … Neurologic Text/Dict Notes Patient minimally responsive 19 Does not follow commands Withdraws from pain … MDM data: patient critically ill on arrival, concerned for outcome given patient’s presentation on arrival and likely head injury that would be difficult to come back from. Patient minimally responsive and need to secure airway. He was intubated in the ER. While trying to obtain CT the patient lost pulses and had another cardiac arrest. CPR was initiated in the CT scanner. Pulses were never regained. Patient was shocked x3 and multiple IV medications were given with no return of pulses. Ultrasound shows no cardiac activity and confirms no pulses. Trauma services also in the CT scanner and time of death called after CPR with no ROSC. Family updated by phone of patient’s status as well as clinical findings in the ER. ... My x-ray interpretation: ET tube in good position, rib fractures on the left ... ED course: Patient critically ill on arrival, minimally responsive with massive amounts of blood in the oropharynx. Decision to intubate. Patient intubated in the ER by me with no complication. Trauma surgery, Dr. Ellis at bedside as this is an activation. Chest x-ray concerning for rib fractures and air in the tissues, possibly secondary to trauma, possibly secondary to CPR performed by EMS. Patient’s blood pressure holding steady. 1 unit of PRBC transfused emergently for trauma. Fast negative in the ER. Patient emergently to CT scanner. While in the CT scanner the patient lost pulses. CPR was started. Patient’s initial rhythm appears to be V. fib. Patient was shocked X3 and amiodarone was given IV with no return of pulses. Multiple rounds of CPR with epinephrine, calcium and bicarb all given IV. Still no return of pulses. Ultrasound in the CT scanner shows no cardiac activity. After extensive downtime and with major traumatic injuries, decision was made to call the code by trauma surgery Dr. Ellis. Time of death was called at 9:51 PM. 20  The hospital records also show Radcliffe’s GCS was assessed every five minutes between 9:05 p.m. and 9:50 p.m. The first nine such scores were each 4, comprised of 1 (“None”) on “Eye Opening,” 1 (“None/Intubated”) on “Verbal,” and 2 (“Extensor Posturing”) on “Motor,” but the last score, one minute prior to Radcliffe’s death, was 3, the difference being the “Motor” component had reduced to 1 (“None/Chemically paralyzed”). Analysis In her first issue, Clark argues, “This case involves a legal issue that is important to the jurisprudence of the State: namely, the impact of Gregory v. Chohan, 670 S.W.3d 546 (Tex. 2023)—an opinion which resulted in a plurality with no majority—on the requirements for legally sufficient evidence to prove the amount of noneconomic damages.” Clark contends that the trial court’s reliance on, and misapplication of, Gregory resulted in the trial court’s granting a directed verdict for noneconomic damages when there was evidence of the existence and amount of those damages. Alternatively, Clark argues that the trial court erred by refusing to reopen the evidence as to noneconomic damages. We agree with Clark that the Gregory opinion does not resolve the question before us in this case, not only because it is a plurality opinion, but also because it does not directly address damages for conscious physical pain. The plaintiffs in Gregory sought wrongful death damages for mental anguish and loss of 21 companionship flowing from the death of their loved one, whereas here, Clark sought survival damages for Radcliffe’s conscious physical pain and mental anguish prior to death. Although the trial court discussed the Gregory opinion during the directed verdict proceedings, the trial court ultimately relied on Saenz and other authorities when announcing its rulings. On appeal, Clark argues Gregory is not controlling, and Easley never cites Gregory as support for the directed verdict. We conclude Gregory is inapposite to the result we reach in this case—that there is legally sufficient evidence of conscious physical pain. Next, Clark argues the trial court misapplied Saenz, wherein the Texas Supreme Court held, “Not only must there be evidence of the existence of compensable mental anguish, there must also be some evidence to justify the amount awarded.” 925 S.W.2d at 614. Once again, it must be noted that Saenz does not expressly address conscious physical pain, only mental anguish. During the directed verdict proceedings, the trial court quoted the following passage from Saenz: THE COURT: [“]There must be evidence that the amount found is fair and reasonable compensation, just as there must be evidence to support any other jury finding.[”] (emphasis added). After additional arguments from both sides, the trial court concluded: THE COURT: The Court finds that that evidence is insufficient to submit the issues of noneconomic damages to the jury based upon the Supreme Court’s opinion from 1996 in Saenz as repeatedly cited with approval most recently in Chohan, albeit a plurality opinion, but most recently cited in two additional Supreme Court cases decided after Chohan. 22  Although we agree with the trial court’s understanding that Saenz requires both the existence and amount of each element of damages to be supported by sufficient evidence, we disagree with the trial court’s ultimate conclusion that no evidence was introduced in this case that would show the decedent experienced conscious pain and suffering. Viewing the evidence in a light favorable to Clark as we must, we conclude there is more than a scintilla of evidence of the nature, severity and duration of Radcliffe’s conscious physical pain such that the issue should have been submitted to the jury. The record contains more than a scintilla of evidence regarding the nature and severities of Radcliffe’s injuries. As a pedestrian, Radcliffe was struck by a vehicle and sustained injuries including rib fractures and an avulsion to his forehead. Meredith testified that if Radcliffe was conscious, he would be in pain. The record also contains more than a scintilla of evidence regarding the nature and duration of Radcliffe’s level of consciousness, along with the nature, severity and duration of his conscious physical pain. Shortly after the accident, Easley indicated Radcliffe was “awake.” By the time Powell arrived at 8:46 p.m., Radcliffe was never again “awake,” but based on her initial assessment, Powell opined that Radcliffe had “the ability to have some kind of neuro function to know what’s going on and experience pain.” She also testified that although Radcliffe was not sufficiently conscious to react to a “sternal rub,” he did withdraw from pain when 23 the IO procedure was performed, after which he never reacted to pain again. There is no indication that Radcliffe ever verbally expressed pain, only that he “withdrew” in pain from the IO procedure which involved drilling into his bone marrow. From the medical records and testimony, the jury could have reasonably found that Radcliffe consciously experienced pain even if his responses to painful stimuli were inconsistent and lasted no more than 2 minutes during the IO. In his brief, Easley argues that Radcliffe’s pain score was always “0” at the hospital, that the “extensor posturing” noted in the GCS scores at the hospital is merely a “reflex,” and that there is no evidence that extensor posturing is indicative of conscious pain. While these additional facts may have assisted the factfinder in evaluating damages, they do not affect the legal sufficiency of the other evidence, which when viewed in a light favorable to Clark, indicates that Radcliffe may have been consciously experiencing some degree of pain while undergoing emergency medical care, resulting in a GCS score which was two points higher than at the hospital. A rational jury could use all this evidence to assess the nature, severity and duration of Radcliffe’s conscious physical pain, if any, and find the amount of money, if any, that would be fair and reasonable to compensate for someone with that level of consciousness experiencing that kind of pain for that amount of time from that kind of procedure. Were it not for the directed verdict, this evidence would 24 have been among that which the trial court, and this Court, could consider when reviewing whether an award of damages for conscious physical pain was inadequate or excessive. See Tex. R. Civ. P. 324(b)(4) (regarding motions for new trial for “inadequacy or excessiveness of the damages found by the jury”). Our sister court recently reversed a jury’s award of twenty-four million dollars for physical pain and mental anguish as excessive because the decedent’s “conscious physical pain and mental anguish lasted for less than an hour.” See Jones v. Hatch, No. 04-24-00553-CV, 2026 Tex. App. LEXIS 3016, at *38-39 (Tex. App.—San Antonio Apr. 1, 2026, no pet.). The decedent in that case, Taylor, was involved in a car crash and was unresponsive when paramedics arrived. Id. at *33. After being removed from her vehicle, she did not respond verbally, but her eyes were partially open. Id. Her pupils were sluggish and reacted minimally to light and paramedics assessed her GCS score at a “five or six.” Id. at *33-34. Taylor reacted to pain by wincing and moaning but was otherwise unresponsive. Id. at *34. After arriving at the hospital, Taylor was intubated and comatose. Although the damages were ultimately found to be excessive on appeal, the appellate court also held that the record contained “legally sufficient evidence to support some amount of damages for Taylor’s physical pain and mental anguish.” Id. at *35. Recognizing a new trial would be necessary, the court suggested a remittitur which was subsequently accepted by the appel