                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                              No. 98-41109
                            Summary Calendar

                  ROSA GARCIA AND BENIGNO GARCIA,

                         Plaintiffs-Appellants,

                                   v.

                         WAL-MART STORES, INC.,

                          Defendant-Appellee.


            Appeal from the United States District Court
                 for the Southern District of Texas
                            (L-96-CV-110)


                            August 11, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.

PER CURIAM:*

     Rosa Garcia appeals the denial of her motion for a new trial

on past and future pain damages and past and future medical

expenses.   We affirm.

                     I.    FACTS AND PROCEEDINGS

     On September 11, 1994, Rosa Garcia and her son, Benigno

Garcia, Jr., went shopping at the Wal-Mart store in Laredo, Texas.

While following her son through a narrow passage between a shelf

and a pallet stocked with merchandise, Rosa Garcia's feet became

entangled in the pallet-wrap material causing her to fall to her


     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
hands and knees.

     The next day, Garcia went to Dr. Roberto Cantu for pain

resulting from the fall.    Dr. Cantu prescribed medication for knee

inflamation and pain.      Two weeks later, Dr. Cantu prescribed

physical therapy for her knee.       Garcia began attending physical

therapy sessions approximately two months later in November 1994.

In February 1995, Garcia returned to Dr. Cantu, continuing to

complain of knee pain.

     Garcia also claims that the September 1994 fall at Wal-Mart

injured her back.      In December 1995, one year and three months

after her fall, Garcia visited a chiropractor, Dr. English, for the

first and last time.    According to Dr. English's medical records,

he examined her without an x-ray because she was in a hurry.          In

January 1996, a year and four months after Garcia's fall, Dr. Cantu

ordered Garcia to undergo an MRI for back pain.       At this time, Dr.

Cantu also referred Garcia to Dr. Dennis, an orthopedic spine

surgeon.   Garcia did not undergo the MRI until seven months later,

in August 1996.      Garcia finally saw Dr. Dennis in June 1997,

approximately three years after her fall at Wal-Mart.       The medical

records of her visit with Dr. Dennis showed several pre-existing

medical conditions,     including   scoliosis,   spinal   stenosis,   and

spondylolisthesis.

     Garcia submitted her medical bills for services rendered to

her from the time of her fall until the time of trial.        The total

for past medical expenses was $10,451.00.        Wal-Mart stipulated to

the past medical expenses.    Garcia also submitted future expected

medical expenses of $40,000 for back surgery and treatment to which
Wal-Mart did not stipulate.

     The lawsuit went to trial on July 13 and July 14, 1998.      The

jury found Wal-Mart and Rosa Garcia equally negligent.       The jury

awarded Garcia $5,000 for past medical care and $2,500 for future

medical care but declined to award past and future physical pain

and mental anguish damages.

     Garcia filed a motion for a new trial on the issues of past

and future pain and suffering and past medical expenses. The

district court denied Garcia's motions and entered final judgment

awarding Garcia $3,750.00 plus pre and post judgment interest.

Garcia filed a timely notice of appeal.

                           II.   DISCUSSION

     In her first point of error, Garcia appeals the denial of a

motion for a new trial, which was grounded on the failure of the

jury to award damages for past and future pain and suffering.       A

district court's ruling for a new trial is reviewed for abuse of

discretion. See Dawson v. Wal-Mart Stores, Inc., 978 F.2d 205, 208

(5th Cir. 1992).    This Court gives somewhat greater deference when

the district court has denied the new trial motion and left the

jury's determination undisturbed.      See id.   (citations omitted).

     Garcia argues that the jury's failure to award pain and

suffering damages was against the weight of the evidence.          The

sufficiency or insufficiency of the evidence is governed by a

federal standard.     See Jones v. Wal-Mart Stores, Inc., 870 F.2d

982, 986 (5th Cir. 1989).     We view the evidence in a light most

favorable to the jury's verdict, affirming the verdict unless the


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evidence points so strongly in favor of one party that a reasonable

person could not have found as the jury did.        See id. at 987.

After reviewing the record, we conclude that the district court did

not abuse its discretion.

     In diversity cases such as this, the type of evidence that

must be produced to support a verdict is governed by state law.

See Jones, 870 F.2d at 986.     Under Texas law, once liability is

established, a jury must award some amount for each element of

damages that is objectively proven.     See Sansom v. Pizza Hut of

East Texas, Inc., 617 S.W.2d 288, 294 (Tex. Civ. App.-Tyler 1981,

no writ).   To ensure an award for a particular element of damages,

a plaintiff must present clear and uncontroverted evidence on that

element.    See Sansom, 617 S.W.2d at 293.

     Our review of the record shows that Garcia's past and future

pain and suffering were not supported by clear and uncontroverted

evidence.    The district court did not abuse its discretion in

denying Garcia's motion for a new trial.

     In her second point of error, Garcia appeals the denial of a

motion for a new trial on the issue of past medical expenses.

Garcia argues that a new trial is warranted because the parties

stipulated to past medical expenses of $10,451.00, but the jury

failed to return the full amount stipulated.        “Because of the

stipulation, the issue of past medical expenses should never have

gone to the jury.”    Jones, 870 F.2d at 985.   Garcia, however, did

not to object to the jury instructions.         “An erroneous jury

instruction without objection will warrant reversal if plain error


                                  4
has been demonstrated.”      International Meat Traders, Inc. v. H & M

Food Systems, 70 F.3d 836, 840 (5th Cir. 1995).             Plain error in

this context means “the deficient charge is likely responsible for

an   incorrect    verdict   which   in   itself   creates   a   substantial

injustice.”      Roberts v. Wal-Mart Stores, Inc., 7 F.3d 1256, 1259

(5th Cir. 1993) (internal quotations omitted).

      While we agree that the issue of past medical expenses should

never have been submitted to the jury, the issue of whether we

should correct any plain error that existed is a much closer call.

Garcia failed to object to the issue being submitted to the jury,

failed to move for judgment as a matter of law and, in fact,

invited the jury to award more than the stipulated amount.               In

effect, Garcia through her attorneys made her bed and we now decide

by electing not to correct any plain error regarding the jury

submission that she should lie in it.

                            III.    CONCLUSION

      Based on the foregoing, the district court's decision to deny

Garcia's motions for new trial is AFFIRMED.




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