the plaintiff in this case ambrosio long boria suffered relatively minor injuries in a truck accident in southwest texas the jury awarded him one million dollars in future pain damages and one point one million dollars  physical impairment damages as well as about three hundred thousand dollars in past and future mentally we think that those judgments are excessive and not supported by the trial evidence and therefore those particular judges they're not the other ones that the jury awarded should be reversed my plan is to start with our maximum recovery will analysis and then move on to sort of the alternative under texas law if we need to let me ask about th threshold issue a maximum recovery as i read it it's a judge federal judge made rule federal common law sensually in light of gas karim eat why he in this eerie case isn't doesn't state law provide the proper standard of review and mechanisms for seeing if it was excessive so i've got three answers the first of course my opponent hasn't raised that issue so i think that to the extent we this court wants to or hold that the maximum recovery will no longer applies in diversity cases perhaps it might be better to wait for a case where the defense has been great i'd number two i would say that gasper a need of course doesn't specifically apply to the maximum recovery and this corpse later case let me just get the name for a dory doesn't say we now are right so in terms of a rule of orderly situation i think the maximum recovery is still  how you analyze excessiveness in the circuit even in europe cases and my evidence for that is that judge king did that he and  recovery in texas standard that says you can look to comparable case no and that's my thirty uncertainty is that i think you get to the same place texas says that you can do first you looked at the trial evidence and also you looked the other approved consistent actually with what justice ginsburg was trying to get at in desperation itself she says that the purpose of her judgment there is to make sure that you don't get more in federal than you do in the same jurisdiction state and that's exactly what we're trying to do here we were trying to avoid that forum shopping where plaintiffs may want to get into federal court to avoid the review in texas courts of appeals and i think this judgment record is pretty clear and i'm trying to be as candid as i can with respect to what my opponent says happened to mr long oriya i think what it says is with respect to future impairment he has back pain that causes him to wake up every two days or so and so he can't get a full night's sleep occasionally and he has some limits in how he can play with his grandchildren the kinds of activities he can do rollercoasters that kind of thing and he can't do his lawn work anymore his wife does the lawn work now and he used to enjoy doing that so that's what we've got in terms of the future physical impairment and if you look at plain view motels that's the case where the doctor is hit by a bunch of mirrors and he is injured fairly severely to begin with but then he recovers his future impairment is he can't get a good night's sleep every night he has sharp pain so he keeps waking up and he has a restricted ability to run  and play with the shoulder so to me those two cases are extremely similar and whether we're looking at it as a maximum recovery issue rule issue or under texas law and the judgment in that case was twenty five thousand dollars for future physical impairment and here we've got a million dollars and my friend on the other side has not come up with a case where someone awarded five hundred thousand dollars with these kind of facts or million dollars or indeed anything more than the two cases i presented and i know his argument is we forfeited that this argument but i think he could have also gone and presented you cases that help them with respect to the maximum recovery or with respect to texas insufficiency of the evidence and he doesn't have them and i think it's because they don't exist i just don't think there are cases like this in texas where such a large verdict is affirmed with this little injury with respect to pain again the record evidence is very modest with respect to mr long or his pain he has neck and back pain he had he takes ibuprofen and he has to stretch when he's working he's a truck driver so he stretches in the morning to wake up to warm up his body and then he stretches in the afternoon after he's been driving for four five and if you compare that to the brochure grocery case that's the one where a woman is hit by this sort of part in the grocery store she says she has constant pain she has a back surgery just like mr long or either and she continues to experience pain in the years after the back surgery but it's not that bad and what the the court of appeal says is well this isn't a ton of evidence but given the fact that it's a relatively modest award it's twenty five thousand dollars we think we can affirm and i think again here we don't have a relatively modest award we have a gigantic award given the amount of physical injury in mr long race i don't see you making a separate argument  e guidance to the jury given accounts home that your think of this in terms of so much per hour for pain is actually not an appropriate way to to advise the jury we did not object to the closing argument and we're not making argument that closing argument but what we are saying is that it isn't evidence that can support a one point one million dollars excuse me a one million dollar  analysis so i think it's a slightly different order but we're not making the objection to that argument kind of a you forgot it was trial counsel and it has two sections it first says a it first are using a different mental anguish in the future and physical impairment in the future there is no evidence at all that should just be wiped clean then in a section b challenging awards as excessive and it talks about physical pain in the future so you've preserve that and then physical impairment in the past but what i don't see in the challenge to excessive physical impairment in the future so sort of putting aside this issue of whether we can look at the federal rule is it is it raised at all that the in future impairment was excessive let me try to answer  if i could talk a little bit about this in our legal analysis that just south of that i do want to make one point about it and it it it's sort of remarkable to me that the numbers change and what they tell the trial they tell the jury that look you should award him thirty five dollars an hour for certain types of more intense training and seventeen for the other candidate and then in their appellate briefs they say well really what you should do is sixteen dollars an seemed isn't it more pro plaintiff than texas law because as i understand it the plaintiff just and i know you don't think it's out there in this case but just needs to show one verdict and it's ok that one comparable verdict in even under fifty percent of that's ok high that the shocks the conscience and that there were no there were no facts that would support a future pai as it goes through its procedural as i read the maxim recovery cases there's two different ways it's used in our court it's inconsistent sometimes it used i think the way you're saying they're trying to use it here at the outset to say is it excessive do we have to take away that million bucks but then other cases and i think the older cases there's a judge rubin opinion on that gets into this he says you will use it at the second stage where once you determine something's excessive and can't stand then you use the maxim occur to say well what should the remit derby and so if that's the way it works why is it a problem that they didn't raise it below because it really just a court ruled a say ok you know we can order a new will see that the court is using it as a guideline to determine whether to delve deeper into the question of whether or not damages are excessive and then it is simply using the one third number that was it is t uses to review this case contradict the thrilling story of this assertion of pain there was no evidence introduced that he was lying about the changes in his life done when there was no evidence introduced that he actually did need to take two hours out of his day every day no private investigators who came in to say that this is my video tape of mr laurean thoughts running to use the marathon last year but i think they're saying given all of the truth of all his testimony it doesn't support a million from what mr longoria was making and then we look to the two hours a day that it is unction tested he has to take out of his day simply to make the pain management and then we assume he says he's having trouble with his sleep every other night sleep eight hours a day that's four hours and if the value of his time away from work is the same as the value of his time at work and under basic economics we can assume it is because of his time away was less valuable he'd be working we can look and see those hours a day are works at least thirty two dollars for the for the two hours he has to stretch another sixty four dollars for the hours that he's not able to sleep or want to do a case law in this circuit including from this year that has that kind of calculation distorts the analysis by the jury and is reversible error if properly preserved perhaps but if that's the case and it was never objected to not even original pill i still wonder how we can use that kind of analysis that you're supporting even here and we said that is distorted the news irrelevant to what the jury ought to be doing particular amount of time that it is uncontested he has to take out of his day to address trial counsel did not object to that argument trial counsel did not request cautionary instruction in the charge trial counsel did not complain about this but i understand the preservation issue but flipside is you need evidence to support this  salary broke it down into an hourly wage and this case is unusual in that there is an affirmatively identifiable block of time two hours the two hours and then he testify that he was unable to sleep every other night well the jury has discretion to look at the uncontested evidence and decide whether or not that amount of bother the same amount of value that he puts on his work hours and in this case they did that isn't that even but that's impairment right if you're going to divert your time that's not painting me maybe there's some overlap but it seems to me though i have to go to the doctor for an hour i mean that's impairing your life that's not anything unless you also feel you're trying to sort of merge the two i guess correct well the evidence supports both quite fre things what if there's a ten million dollar painting suffering verdict and both sides know well there's no way that in the state court of appeals court is going to uphold this let's settle it for you know a tenth of that or whatever i mean why should that be use when everyone sort of knew it was not going to be a sustained verdict that goes to the discretion of the trial judge to decide whether or not the verdict of her case is excessive the trial judge gets to look at that information  a comparable for the purpose of fixing the maximum that a reasonable jury it would be reasonable to reject that sort of analysis to do it to see whether or not there are comparable cases simply because they were chosen not to be submitted to  to this court has the discretion as to what's been said the judge considered nothing but these fourteen reports from the blue sheets that doesn't tell us what was appealed it doesn't tell us what these other suffered which is what happened in this case where trial counsel argued that the injuries were preexisting even if thank your a few quick points on the ball i think my opponent's argument fundamentally is that there is no review of a jury verdict what he says is that we didn't object to  longoria said about his life and therefore we lost our chance to get any kind of serious review of the mouths of these very birds and i think that's just incorrect as for texas or federal i think we get some kind of review of course the jury has some probe a little bit into that evidence and make sure that the evidence of looking again at your new trauma she was already asked about how it divided up the issues but opposing counsel picked up on the fact that in the excessive damages challenge the standard you invoked again the trial counsel invoked is are the a war is the word so excessive that it shocks the judicial conscience acquits it a couple times why aren't you stuck with that standard i think that standard is want there in court i mean this gets to why you preserve in the first place we weren't there we didn't hear at all we didn't see the plaintiff and if we're going to use a different standard than the district court that seems it seems that it's a poor gets first crack because it's all this whole mean i think the district court was given the opportunity to analyze that if maybe it wasn't done in the perfect way but she was asked when the verdict came in look this is too big and then she said no i think it's fine by denying the motion for of course on appeal the arguments of it come a little more elaborate but i think that happens all the time and i don't know that it's forfeiture just because all the right cases  thinking about that this morning and there is the is the kind of case is about the six where as a joke i think the court says you know judges are not dogs are pigs they can't be sent to go in the forest looking for troubles they have to be given guidance we knew there was a complaint you have to tell the judge what your problem is with the other side and i think that's the case here judges can't just give a verdict form and told well you go figure out what exactly what you suggestion to the jury leave them in the room and we think