     Case: 17-41042   Document: 00515059445        Page: 1   Date Filed: 08/01/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                    No. 17-41042                     August 1, 2019
                                                                     Lyle W. Cayce
AMBROSIO LONGORIA,                                                        Clerk


             Plaintiff - Appellee

v.

HUNTER EXPRESS, LIMITED; SARBJIT SINGH BASATIA,

             Defendants - Appellants



                Appeal from the United States District Court
                     for the Southern District of Texas


Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Cases with the simplest of facts can raise difficult legal issues on appeal.
So it is with this appeal from a three-day personal injury trial that resulted in
a verdict of more than $2.8 million for the plaintiff. The appeal raises issues
of error preservation, whether state or federal law governs challenges to the
excessiveness of damages in diversity cases, and the role of the “maximum
recovery” rule. After wading through these sometimes murky waters, we
vacate the award for future mental anguish as there was no evidence to
support any such award and vacate as excessive the award for future pain and
suffering and remand that award for a remittitur determination.
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                                  No. 17-41042
                                        I.
      Ambrosio Longoria and Sarbjit Singh Basatia are commercial
truckdrivers. They got into an accident in Laredo. Basatia went straight in a
turn-only lane while Longoria was properly making a left. The trucks collided,
rendering both inoperable.       Longoria’s truck was pushed back into the
intersection. Basatia’s truck continued moving forward until it collided with
the shoulder of the road, bringing it finally to a halt.
      Longoria walked away from the accident. But a few hours later, he began
experiencing back pain that prompted him to visit the emergency room. The
hospital took a few x-rays and gave him some painkillers, then let him go.
Longoria ended up just taking ibuprofen that night.
      The next day, Longoria awoke in severe pain. He went to a physical
therapy center and began three months of rehabilitation. He did not work
during that time. At the end of this physical therapy, he was cleared to return
to work. But that was not the end of Longoria’s treatment. The therapy center
referred Longoria to a back specialist for continued care.
      As part of that care, the doctor ordered an MRI to assess how Longoria’s
back was doing.      The MRI showed Longoria had a bulging disc, a disc
pressuring a spinal nerve, and a herniated disc. The doctor gave Longoria two
options to manage the pain: a steroid shot or back surgery. Fearing surgery,
Longoria opted for the shot.
      The injection wore off after a few months and the pain returned. Faced
with the same options of back surgery or short-term relief via the shot, this
time Longoria chose surgery. During surgery, the doctor discovered that the
injury was not a simple herniated disc but a bone spur protruding from
Longoria’s spine that was pinching his nerves.
      Longoria underwent another three-month recovery period. Ultimately,
the operation alleviated some but not all of his pain. To this day, he has back
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                                   No. 17-41042
pain that regularly wakes him up at night. And every morning Longoria must
stretch for an hour to manage the pain. He typically must repeat that hour of
stretching later in the day because the discomfort returns. Around twice a
week, Longoria also takes ibuprofen for his back. He also is on a permanent
50-pound lifting restriction.
      Longoria filed this negligence action against Basatia and Basatia’s
employer, Hunter Express. The jury found Defendants fully liable for the
accident.       It awarded Longoria over $2.8 million in damages allocated as
follows:
            •   Past physical pain: $150,000;
            •   Future physical pain: $1 million;
            •   Past mental anguish: $120,000;
            •   Future mental anguish: $140,000;
            •   Past medical expenses: $94,243;
            •   Past physical impairment: $200,000;
            •   Future physical impairment: $1.1 million;
            •   Past disfigurement: $1,000; and
            •   Past lost wages: $15,000

      Defendants sought a new trial, arguing that there was no basis for two
of the damage awards (future mental anguish and future physical impairment)
and that two others (future physical pain and past physical impairment) were
excessive. The district court denied the motion.
                                         II.
      The four issues Defendants press on appeal do not replicate those they
urged as the basis for a new trial. Two are the same. They continue to argue
that there is no support for the future mental anguish award, and they renew
their challenge to the excessiveness of the future pain award. Asking the trial
court to order a new trial for those reasons preserved the issues for our
consideration.


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                                     No. 17-41042
      But Defendants add two new challenges. They contend for the first time
that a new trial should have been ordered because: (1) there is no basis for
finding any past mental anguish, and (2) the award for future physical
impairment is excessive. Because the trial court had no opportunity to assess
whether problems with these awards might warrant a new trial, Defendants
have forfeited these issues. Bueno v. City of Donna, 714 F.2d 484, 493–94 (5th
Cir. 1983) (“It is well-established that there can be no appellate review of
allegedly excessive or inadequate damages if the trial court was not given the
opportunity to exercise its discretion in a motion for a new trial.”); see also
Vargas v. Lee, 317 F.3d 498, 499 n.1 (5th Cir. 2003). 1
       Defendants did not dispute the past mental anguish award on any basis
in the trial court. As to future physical impairment, the new trial motion
addressed it only under the “Sufficiency of Evidence” heading, which claimed
a “complete absence of proof.” A separate heading for “Excessive Damages
Award” does not mention future physical impairment. In one sense, a claim
that the award should be zero would seem to encompass as a “lesser included”
a claim that any amount is excessive. But the inquiries are distinct, as the
new trial motion recognizes in separating them. The sufficiency challenge asks
only whether there is any evidence for a jury’s award; if there is, the judge’s
job is at an end. An excessiveness challenge requires more extensive scrutiny,
including—as will be seen—consideration of verdicts in similar cases. And we
review the district court’s decision on remittitur only for an abuse of discretion.
Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 438–39 (1996). We cannot
assess whether such discretion was abused if the district court was not asked



      1 Forfeiture in this context can be overcome in exceptional circumstances. Bueno, 714
F.2d at 494. But that applies only to pure questions of law, which excessiveness review is
not, and miscarriages of justice, which the facts of this case do not present. Id.; Pounds
Photographic Labs, Inc. v. Noritsu Am. Corp., 818 F.2d 1219, 1226 (5th Cir. 1987).
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                                      No. 17-41042
to exercise it in the first instance. Bueno, 714 F.2d at 493–94. Because the
Defendants did not ask the district court to conduct that review as part of its
discretionary call on whether to grant a new trial, the claim that the future
physical impairment award was excessive was not preserved for appeal. Id.;
Baker v. Dillon, 389 F.2d 57, 58 (5th Cir. 1968) (stating that there “can be no
appellate review [on the ground of excessive damages] if the trial court was not
given an opportunity to exercise its discretion on a motion for new trial”); see
also C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 796 (Tex. App.—
Houston [1st Dist.] 2004, no pet.) (“A request for relief by remittitur must,
therefore, be preserved in the trial court by a motion that seeks remittitur,
whether filed independently or as part of a motion for new trial.”).
                                          III.
       Moving on to the grounds for a new trial that Defendants did present to
the district court, we first consider the challenge to the excessiveness of the
award for future pain.
       This is a diversity case. At first glance, that would indicate that the
question of what law applies to excessiveness review is straightforward. More
than two decades ago, the Supreme Court held that state law governs “review
[of] the size of jury verdicts” in diversity cases. Gasperini, 518 U.S. at 418,
430–31; see also Fair v. Allen, 669 F.3d 601, 604 (5th Cir. 2012) (explaining
that Gasperini required application of Louisiana’s standard for new trial
motions). Yet the parties focus on a federal judge-made doctrine—the
maximum recovery rule—for evaluating excessiveness. 2



       2 Longoria argues Defendants did not cite the maximum recovery rule in arguing
excessiveness to the district court. We need not resolve whether this constituted forfeiture
because we end up concluding the result is the same under either the state standard
Defendants did urge below or the federal rule. While we conclude the maximum recovery
rule does play a role in determining the amount of remittitur that should be set on remand,
as we explain that rule helps the plaintiff by preserving as much of the award as the law
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                                       No. 17-41042
       Some background on the maximum recovery rule is helpful at this point.
Judge Rubin, during his time on the district court, provided an early
explanation of the rule in deciding the amount of a remittitur after our court
had remanded a case with an excessive verdict. See Glazer v. Glazer, 278 F.
Supp. 476, 478–82 (E.D. La. 1968), cited in Gorsalitz v. Olin Mathieson Chem.
Corp., 429 F.2d 1033, 1047 (5th Cir. 1970) (adopting maximum recovery rule
at circuit level). He noted that courts had followed three approaches in setting
the amount of a remittitur that a plaintiff could accept in lieu of a new trial:
award the lowest amount the jury could have awarded, award the highest
amount the jury could have awarded, or set an amount the court would have
awarded. Glazer, 278 F. Supp. at 478–79 (citing 6A MOORE’S FED. PRAC., at
3743–44 (2d ed. 1966)). Judge Rubin opted for the highest award the law
allowed—thus the “maximum recovery” label—because that approach
preserves as much of the jury’s award as possible and, relatedly, is the only
remittitur approach he thought compatible with the Seventh Amendment. Id.
at 481–82. Although these rationales for the maximum recovery rule are
usually not apparent because it applies when a verdict is being reduced, the
rule is actually a pro-jury and pro-plaintiff one.
       Over time we have developed a method for determining the maximum
amount a jury could have awarded. The inquiry looks to other published
decisions from the relevant jurisdiction (in a diversity case, the forum state)
involving comparable facts. Lebron v. United States, 279 F.3d 321, 326 (5th
Cir. 2002). The rule allows some leeway, so it permits a verdict at 150% of the
highest inflation-adjusted recovery in an analogous, published decision. Puga




permits. So a defendant cannot forfeit a rule that benefits the plaintiff. And the decision to
offer a remittitur option in lieu of a new trial is a discretionary act of the court.
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                                       No. 17-41042
v. RCX Solutions, Inc., 922 F.3d 285, 298 n.12 (5th Cir. 2019); Thomas v. Tex.
Dep’t of Crim. Justice, 297 F.3d 361, 369 n.8 (5th Cir. 2002). 3
       But we have been inconsistent about where in the analysis the rule has
a role. Sometimes we apply maximum recovery at the outset to determine
whether the damages are excessive. See, e.g., Moore v. M.V. Angela, 353 F.3d
376, 384 (5th Cir. 2003); Lebron, 279 F.3d at 328. Other times we use the rule
only to determine how much of a reduction is warranted after deciding the
award is excessive. 4 See, e.g., Giles v. Gen. Elec. Co., 245 F.3d 474, 489 (5th
Cir. 2001); Denton v. Morgan, 136 F.3d 1038, 1046 (5th Cir. 1998). This
difference may matter to the Erie question.
       The state/federal issue is presented because Texas does not use the
maximum recovery rule. It instead conducts a more holistic assessment at
both stages of the inquiry. Pope v. Moore, 711 S.W.2d 622, 624 (Tex. 1986)
(explaining that factual sufficiency of the evidence is the “sole remittitur
standard”). Texas review for excessiveness uses the same standard as any
factual sufficiency claim. Id. The question boils down to whether the evidence
introduced at trial would allow a reasonable, fair-minded jury to come to the
verdict the actual jury reached. Waste Mgmt. of Tex., Inc. v. Tex. Disposal
Systems Landfill, Inc., 434 S.W.3d 142, 159–60 (Tex. 2014).                      The strong
deference afforded the jury’s judgment is overcome when the jury’s damage
award is “so factually insufficient or so against the great weight and



       3  One of the inconsistencies in maximum recovery caselaw is whether a 150% or 133%
multiplier applies. Compare Giles v. Gen. Elec. Co., 245 F.3d 474, 489 (5th Cir. 2001) (150%
multiplier), with Lebron, 279 F.3d at 326 (133% multiplier). We resolved that inconsistency
by explaining that we had applied the 133% multiplier only in bench trials. See Thomas, 297
F.3d at 369 n.8. The 150% multiplier applies to jury trials. Id. (citing Salinas v. O’Neill, 286
F.3d 827, 831 n.6 (5th Cir. 2002)).
        4 Judge Rubin thought the rule addressed both problems: “The same standard that

guides a court in deciding that a verdict is so excessive as to require a new trial should guide
it in determining the amount of remittitur.” Glazer, 278 F. Supp. at 482.
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                                   No. 17-41042
preponderance of the evidence as to be manifestly unjust.” Pope, 711 S.W.2d
at 624 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).
Although the guiding principle is factual sufficiency, a court may look to
approved awards in other cases to help determine if the award under review is
excessive. SunBridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 250 (Tex.
App.—Texarkana 2005, no pet.). So whereas a comparison to other verdicts is
the lodestar for the federal maximum recovery rule, it is only part of the Texas
inquiry.
         Does the federal maximum recovery rule or the more general Texas
inquiry govern a diversity case? We have already noted that Gasperini is on
point.     Some of our precedent recognizes that.        Fair, 669 F.3d at 604;
Learmonth v. Sears, Roebuck & Co., 631 F.3d 724, 735 (5th Cir. 2011); Foradori
v. Harris, 523 F.3d 477, 497 (5th Cir. 2008). Yet our law is again inconsistent.
As recently as this year, we have applied the maximum recovery rule in a
diversity case to answer the initial question whether damages are excessive.
See Puga, 922 F.3d at 297; see also Vogler v. Blackmore, 352 F.3d 150, 156 (5th
Cir. 2003). But most of our cases do not grapple with the continued use of the
maximum recovery rule after Gasperini because the parties often do not raise
the Erie issue. See Puga, 922 F.3d at 297; Vogler, 352 F.3d at 156.
         There may be a solution to the Erie puzzle in what other circuits do. The
Second Circuit now applies the the maximum recovery rule only at the second
step—determining size of the remittitur—explaining that the rule operates
only to “minimize the extent of judicial inference with . . . the jury’s domain.”
Rangolan v. Cty. of Nassau, 370 F.3d 239, 244 (2d Cir. 2004) (quotation
omitted); see also Foradori, 523 F.3d at 505 n.21 (Dennis, J., writing for
himself) (describing the rule as operating simply to protect the “constitutional
allocation of fact-finding to the jury”). Other circuits have done the same post-
Gasperini: Use state law to determine whether damages are excessive but
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                                  No. 17-41042
retain a role for the maximum recovery rule in setting any remittitur. See
Wright v. Byron Fin., LLC, 877 F.3d 369, 374 (8th Cir. 2017); Jabat, Inc. v.
Smith, 201 F.3d 852, 857–58 (7th Cir. 2000); Koster v. Trans World Airlines,
Inc., 181 F.3d 24, 36 (1st Cir. 1999); see also CYCLOPEDIA OF FED. PROC. § 34:28
n.2 (3d ed.) (recognizing role for maximum recovery role at remittitur stage);
2A FED. PROC., LAWYER’S ED. § 3:885 (explaining that the maximum recovery
rule is used to determine the size of the remittitur). We agree that it does not
override state substantive law to use the maximum recovery rule as a
guidepost in setting a remittitur, which is itself a discretionary act. See 11
Charles Alan Wright et al., FED. PRAC. & PROC. § 2815 (3d ed.) (“The final
determination whether a new trial or remittitur is appropriate is committed to
the sound discretion of the trial court.”).
      For the threshold excessiveness determination where Gasperini seems
to apply, we need not definitively reconcile our caselaw and resolve the issue
because the outcome is the same under the Texas or federal standard. See
Learmonth, 631 F.3d at 738 n.4 (considering award under state law and the
maximum recovery rule because parties discussed both standards). Under
either Texas sufficiency review or the federal maximum recovery rule, the $1
million award for future physical pain is too high.
      Here is the evidence of future pain. Longoria must perform an hour of
stretching and warming up every morning. Then, most afternoons, the pain
returns, and he must repeat the stretching.           Around twice a week, the
stretching is insufficient pain management, and he must take ibuprofen. The
pain is severe enough that it wakes him up roughly four times per week.
Longoria describes the pain as a “burning” and “tingling” sensation. He also
sometimes experiences a feeling of numbness. Longoria’s doctor believes the
current pain will be permanent. And there is a risk that the two discs still


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                                       No. 17-41042
facing pressure from the bone spur will pinch a nerve and cause further pain,
so Longoria is on a permanent 50-pound lifting restriction.
       This pain is significant. But an award of $1 million is “contrary to the
overwhelming weight of the evidence,” given that Longoria can mostly manage
the pain by stretching and taking over-the-counter medicine. 5 Cresthaven
Nursing Residence v. Freeman, 134 S.W.3d 214, 228 (Tex. App.—Amarillo
2003, no pet.). Such a large award cannot be said in this situation to “fairly
and reasonably compensate” Longoria.                    Saenz v. Fid. & Guar. Ins.
Underwriters, 925 S.W.2d 607, 614 (Tex. 1996).                  Although these types of
awards are necessarily imprecise, the jury “cannot simply pick a number and
put it in the blank.” Id. This million-dollar award looks close to that. Pain
that can largely be managed through nonprescription methods does not
warrant such a sizeable recovery.
       Jury awards in comparable cases, a factor in the Texas analysis and the
benchmark under the federal rule, support the view that $1 million is
excessive. In one case, the plaintiff, like Longoria, tried numerous remedies
before eventually undergoing surgery. Pilgrim’s Pride Corp. v. Smoak, 134
S.W.3d 880, 904 (Tex. App.—Texarkana 2004, pet. denied).                        The surgery
helped with the pain but did not cure it. Due to pain, the plaintiff could no
longer work in his former profession. And like Longoria, he was put on a lifting
restriction. Id. at 904–05. That plaintiff received just $25,000 for future
physical pain and mental anguish combined. Id. at 887. In another case, the
plaintiff ruptured two discs, had muscle atrophy in one arm, and developed an
irregular spinal curvature.         Roberts v. Tatum, 575 S.W.2d 138, 141 (Tex.
App.—Corpus Christi 1978, write ref’d n.r.e.). Like Longoria, he described


       5It bears noting that the inconvenience of managing the pain, and other ways in which
the lingering injuries inhibit Longoria’s enjoyment of life activities, are accounted for in the
separate award for future physical impairment.
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                                       No. 17-41042
numbness and burning sensations.                  Id.   The plaintiff received today’s
equivalent 6 of approximately $100,000 for both future physical pain and
mental anguish. Id. The highest recovery for future pain we found in a case
bearing even a semblance of similarity to Longoria’s is $500,000. Primoris
Energy Servs. Corp. v. Myers, 569 S.W.3d 745, 754 (Tex. App.—Houston [1st
Dist.] 2018, no pet.). That plaintiff was hit by a truck while on his four-
wheeler. Like Longoria, he underwent major back surgery and was left with
two herniated discs that could result in further injury if a lifting restriction is
not followed. Id. at 761. As in this case, the plaintiff’s doctor did not prescribe
any painkillers, but pain persists. Id. If anything, the pain in Primoris Energy
seems marginally greater than what the evidence shows in this case. For
example, the lifting restriction for that plaintiff was 20–30 pounds. Id. The
half-a-million-dollar award upheld in that case thus seems to be the outer
range of awards for this type of future pain. Even when the Primoris Energy
verdict is multiplied as the maximum recovery rule allows, Longoria’s million-
dollar award is still excessive. Under either the federal or state standard, the
full award cannot stand.
       The next question is remittitur, the step at which we agree with other
circuits that the maximum recovery rule still has a role. We have discretion to
set that amount or remand for the district court to do so. Koster, 181 F.3d at
36. Following the path we took more than 50 years ago in the remand that led
Judge Rubin to adopt the maximum recovery rule, we will allow the district
court to finalize the amount. Glazer v. Glazer, 374 F.2d 390, 414 (5th Cir.
1967); see also Puga, 922 F.3d at 298 (remanding for the district court to


       6 We adjusted the award to account for inflation. For the calculation, we used the date
April 2016, when Longoria’s accident occurred. See Wharf Cat, Inc. v. Cole, 567 S.W.2d 228,
233 (Tex. App.—Corpus Christi, 1978, writ ref’d n.r.e.); Puga, 922 F.3d at 298 n.12. We used
the CPI Inflation Calculator from the Bureau of Labor Statistics, available at
https://data.bls.gov/cgi-bin/cpicalc.pl. See Puga, 922 F.3d at 298 n.12.
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                                 No. 17-41042
finalize the remittitur amount). Having presided over the trial, it has greater
familiarity with the evidence of future pain from which to evaluate which cases
are comparable. We thus remand for that determination.
                                       IV.
      Legal complexities do not plague the final question we address about the
future mental anguish award. This time Defendants urge that we follow the
state standard, which asks whether the jury’s verdict is “so contrary to the
overwhelming weight of the evidence that the verdict is clearly wrong and
unjust.” Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).
The Supreme Court of Texas has “admonished courts to closely scrutinize”
mental anguish awards. Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 54 (Tex.
1997).   To recover for mental anguish, a plaintiff generally must provide
evidence that the anguish created a “substantial disruption” in the plaintiff’s
“daily routine” or caused a “high degree of mental pain and distress.” Saenz,
925 S.W.2d at 614. The anguish must be “more than mere worry, anxiety,
vexation, embarrassment, or anger.” Id. (quoting Parkway Co. v Woodruff, 901
S.W.2d 434, 444 (Tex. 1995)).
      The evidence of future anguish is sparse. Longoria points to his fear that
he may be unable to keep working as a truck driver. He testified that this
occupation is his “childhood dream” and that without it, he could not support
his family. But Longoria is cleared to work, and no doctor indicated his ability
to work may change in the future. His understandable concern for the future
is not the high degree of distress or frequent disruption Texas law requires.
Even when a plaintiff was no longer working as a result of injuries, her worries
that her family could lose its house did not “rise to the level of compensable
mental anguish.” Saenz, 925 S.W.2d at 614. It follows that Longoria’s more
speculative fear is not compensable.


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                                  No. 17-41042
      Longoria also testified that he “sometimes [feels] just useless” due to his
inability to help with many jobs around the house or ride roller coasters with
his grandchildren. This too fails to rise to the level of a substantial disruption
in his routine that would support an award for mental anguish. See Katy
Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 598 (Tex. App.—Houston
[14th Dist.] 2015, pet. denied) (denying a future mental anguish award to a
plaintiff whose doctor testified that he appeared depressed and faced a “bleak
future unless he received psychiatric treatment”).
      The record does not support any award for future mental anguish.
                                       ***
      We AFFIRM the district court as to the damage awards for past mental
anguish and future physical impairment, VACATE the full award for future
mental anguish, and VACATE and REMAND the future physical pain award
for the district court to determine a remittitur.




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