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Healthcare Centers of Texas12/12/2002
s mother seemed to give up on life. Mrs. Rigby was alerted to the attack by her mother shouting, "Oh, oh" so loudly she could hear her from down the hall. The fact that Mrs. Underwood responded to the assault by crying out is evidence that she was aware of what was happening to her. The evidence is sufficient to find that Mrs. Underwood suffered conscious physical and emotional pain as a result of the attempted sexual assault.
Healthcare next contends that neither Mrs. Rigby nor Mrs. Underwood satisfied the rigorous standards required for recovery of mental anguish damages. When the elements of damages considered by the jury include the more amorphous, discretionary damages, such as mental anguish and pain and suffering, the determination of the amount of damages will generally be left to the discretion of the jury. See Texarkana Mem'l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 841 (Tex. 1997). The determination of the amount of money that will compensate the plaintiff for pain and mental anguish involves a consideration of elements for which no mathematical standard exists except what an impartial jury may deem adequate. Dico Tire , Inc. v. Cisneros, 953 S.W.2d 776, 792 (Tex. App.—Corpus Christi 1997, writ denied).
Unless the award is so large as to indicate that it was influenced by passion, prejudice, or other improper motive, the jury verdict will not be set aside. Id. Therefore, the question of damages, if not excessive, is properly left for the jury to determine. Owens-Corning Fiberglass Corp. v. Martin, 942 S.W.2d 712, 719 (Tex. App.—Dallas 1997, no writ). A jury's discretion in compensation for mental anguish is limited to that which causes a "substantial disruption in the plaintiff's daily routine, or a high degree of mental pain and distress." Saenz v. Fid. & Guar. Ins., 925 S.W.2d 607, 614 (Tex. 1996).
The standard of review for an excessive damages complaint is factual sufficiency of the evidence. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998). We employ the same test for determining excessive damages as for any factual sufficiency question. See Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986). We review the evidence, keeping in mind it is the jury's role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses' testimony. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
In this case, the trial judge reviewed the evidence in support of both actual and exemplary damages. As noted earlier, the judge found factually insufficient evidence to support the amount of the damages and ordered a remittitur. To sustain appellant's challenge to the trial judge's damage award, we would have to conclude the evidence supporting the finding is so weak as to indicate it is clearly wrong and unjust. See id. Healthcare argues that Mrs. Rigby's daily routine was not altered; therefore, she cannot recover mental anguish damages. Disruption in the plaintiff's daily routine is not the only element to be considered. The jury was also entitled to consider whether the event caused Mrs. Rigby a high degree of mental pain and distress. The evidence shows that when Mrs. Rigby observed the attempted sexual assault on her mother, she was scared, angry, crying, shaking, and afraid "he might do it again." Mrs. Rigby and her son testified that Mrs. Rigby passes LaPorte every day and for several weeks after the assault, every time she passed LaPorte, Mrs. Rigby relived the assault and cried. Mrs. Rigby testified this event was the most traumatic event of her life. She also testified she still has nightmares about the assault. With regard to Mrs. Underwood's mental pain and
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