United States Court of Appeals

for the Fifth Circuit

No. 20-11230

Alfonso Parra; Maria Parra, 

Plaintiffs—Appellees,

versus

Interstate Express, Incorporated, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:18-CV-268

Before Davis, Willett, and Oldham, Circuit Judges.

Per Curiam:*

Defendant, Interstate Express, Incorporated (“Interstate”), moved 

for a new trial and remittitur after a jury rendered a verdict in favor of 

Plaintiffs in this personal injury action. Interstate appeals the judgment and 

denial of its motion, arguing that the district court abused its discretion and 

prejudiced Interstate’s right to a fair trial when it excluded the testimony of 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

February 11, 2022

Lyle W. Cayce

Clerk

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one of its experts after technical difficulties arose during the expert’s live 

video testimony. Interstate further asserts that the jury’s verdict was against 

the great weight and preponderance of the evidence, excessive, and 

manifestly unjust because the Plaintiffs’ only expert was not qualified to 

testify and his opinions were unreliable, and because Plaintiffs’ counsel made 

improper remarks during closing arguments that prejudiced the jury against 

it. As discussed below, Interstate’s arguments are without merit. Therefore, 

we AFFIRM the district court’s judgment.

I. BACKGROUND

In February 2016, Roy Lester Douglas, an Interstate employee, was 

driving a tractor owned by Interstate and hauling a trailer owned by All Ways 

Transport, Inc. (“All Ways”). While pulling out of a truck stop onto U.S. 

Highway 81, Douglas failed to yield the right of way and struck the pickup 

truck being driven by Plaintiff, Alfonso Parra (“Alfonso”). The collision 

caused the pickup truck to flip over, and Alfonso sustained severe injuries as 

a result.

Alfonso and his wife, Maria Parra (“Maria”), who was not in the 

vehicle at the time of the accident, filed suit against Interstate, All Ways, and 

Douglas1 in federal district court based on diversity jurisdiction. Interstate

stipulated to Douglas’s negligence in causing the accident. It also stipulated 

that the total amount of incurred and paid medical bills which Alfonso could 

recover was $27,475.51. However, Interstate disputed “whether any brain 

injury was sustained.” The case proceeded to a jury trial in August 2020, a 

few months after the beginning of the COVID-19 pandemic. 

1 Douglas is now deceased from causes unrelated to the accident.

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At the trial, Alfonso testified regarding the accident and his resulting 

injuries. His wife Maria and their two daughters also testified regarding the 

changes in Alfonso after the accident. Plaintiffs’ expert, Dr. Fulbright, a

clinical neuropsychologist, testified regarding his opinion that Alfonso 

suffered a brain injury as a result of the accident. He explained that another 

neuropsychologist, Dr. Jones, had examined Alfonso in January 2019, but 

that Dr. Jones had since died. The parties stipulated that Dr. Jones’s and Dr. 

Fulbright’s expert reports would be admitted into evidence. 

For its case, Interstate called Dr. Bob Gant, a clinical 

neuropsychologist, who appeared via videoconference. After initially having 

some difficulty with video equipment, Interstate’s counsel was able to 

complete the direct examination of Dr. Gant. When Plaintiffs’ counsel 

attempted to start her cross-examination of Dr. Gant, however, the video 

equipment failed, so the district court adjourned trial early for the day to let

the parties tend to the equipment. The next morning, Plaintiffs’ counsel 

began cross-examining Dr. Gant, but the video equipment again failed. The

district court requested that the next witness be called.

Interstate then called Dr. Daragh Heitzman, a neurologist. Dr. 

Heitzman testified that based on his examination of Alfonso and his review 

of the medical evidence, he did not believe that Alfonso had “a continuing 

brain injury.” He testified that his opinion regarding the neuropsychological 

testing of Alfonso “rested largely on a conversation [he] had with Dr. Gant.” 

Dr. Heitzman further testified that based on his conversation with Dr. Gant, 

and the objective evidence that he obtained with his medical testing, he did 

“not find any abnormality with reasonable medical probability.” 

After Dr. Heitzman finished testifying, Defendants requested to

resume the cross-examination of Dr. Gant. As described in further detail 

below, after conferring with counsel, the district court denied the request and 

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instructed the jury not to consider any of Dr. Gant’s testimony. Over 

Plaintiffs’ objection, the district court did allow Dr. Gant’s preadmitted 

expert report to remain in evidence. 

The jury returned a verdict in favor of Plaintiffs, awarding Alfonso 

$77,400 in economic damages and $429,000 in noneconomic damages, and 

Maria $20,000 in economic damages and $175,000 in noneconomic 

damages. The district court rendered final judgment in favor of Plaintiffs for 

a total of $541,375.51 to Alfonso and $195,000 to Maria. Thereafter, 

Interstate filed a motion for new trial and remittitur. The district court denied 

the motion. Interstate filed a timely notice of appeal. 

II. DISCUSSION

On appeal, Interstate reasserts the arguments contained in its motion 

for new trial and remittitur. It argues that the district court abused its 

discretion and prejudiced Interstate’s right to a fair trial when it excluded the 

testimony of Dr. Gant after technical difficulties arose during his live video 

testimony. Interstate further asserts that the jury’s verdict was against the 

great weight and preponderance of the evidence, excessive, and manifestly 

unjust because the Plaintiffs’ only expert, Dr. Fulbright, was not qualified to 

testify and his opinions were unreliable. Finally, Interstate argues that 

Plaintiffs’ counsel made improper remarks during closing arguments that 

prejudiced the jury against it.

Under Rule 59(a), the district court may grant a new trial “after a jury 

trial, for any reason for which a new trial has heretofore been granted in an 

action at law in federal court.”2 Although the rule does not specify the 

circumstances when a new trial is warranted, this court has noted that they 

2 Fed. R. Civ. P. 59(a)(1)(A).

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include “if the district court finds the verdict is against the weight of the 

evidence, the damages awarded are excessive, the trial was unfair, or 

prejudicial error was committed in its course.”3 “We will reverse the trial 

court’s denial of a motion for new trial only when there is a clear showing of 

an abuse of discretion.”4

A.

Interstate argues that a new trial should have been granted because it 

was deprived of its right to a fair trial. Specifically, the district court 

committed prejudicial error when it excluded Dr. Gant’s expert testimony 

without cause. Interstate further argues that the district court’s ruling was 

not harmless because it impaired Interstate’s ability to present evidence on 

critical questions about causation and damages.

This court reviews the exclusion of expert testimony, and evidentiary 

rulings in general, for abuse of discretion.5 “A district court abuses its 

discretion when its ruling is based on an erroneous view of the law or a clearly 

erroneous assessment of the evidence.”6 Furthermore, even if the district 

court abused its discretion, the party seeking a new trial has the burden of 

showing that the error was harmful and prejudicial to its case.7

1.

On the second day of trial, Interstate’s expert, Dr. Gant, testified live 

by videoconference. After initially having difficulty hearing counsel’s 

3 Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir. 1985) (citations 

omitted).

4 Foradori v. Harris, 523 F.3d 477, 497 (5th Cir. 2008) (citations omitted).

5 Williams v. Manitowoc Cranes, L.L.C., 898 F.3d 607, 623, 626 (5th Cir. 2018).

6 Id. at 626 (internal quotation marks and citation omitted).

7 Id. at 627.

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questions, counsel was able to complete his direct examination by moving 

closer to the computer and kneeling down to ask the questions. When 

Plaintiffs’ counsel began to cross-examine Dr. Gant, however, the 

videoconference equipment again started to fail. At that point, the district 

court decided to adjourn the trial for the day and stated that the crossexamination of Dr. Gant would be completed the next morning. The court 

stated that it was “disappointed in [the] electronics and video testimony” 

and wanted to make sure that the trial continued “without a hitch” so that 

the jurors could get the “best view and the best witness” from the remote 

viewings. The trial court also stated: “This is not anybody’s fault, this is just 

the world that we live in and we have to try to adapt.” 

After the jurors left the courtroom, the district court expressed its 

frustration with the technical difficulties encountered during Dr. Gant’s 

testimony. The court instructed counsel to “spend tonight . . . before 

everyone goes home and before the courthouse is locked” tending to the 

equipment to ensure that there would be no “glitches” with the video 

testimony the next day. 

Unfortunately, the next day, after Plaintiffs’ counsel started her crossexamination of Dr. Gant, the video conference equipment again began to fail. 

At that point, the district court expressed his disapproval of video testimony, 

stating that he would “never, ever agree to allow this type of testimony in 

trial again.” The parties attempted to get the video testimony back up and 

running, and Dr. Gant started to testify again, but then the connection was 

lost again. The district court instructed Interstate to call its next witness. 

Interstate’s next witness was Dr. Heitzman. When Dr. Heitzman 

completed his testimony, Interstate requested that the cross-examination of 

Dr. Gant be resumed. At that point, the district court called a conference with 

the lawyers out of the presence of the jury. After bringing the jury back in, 

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the district court stated to the jurors that although “every effort was made 

on behalf of defendant to present Dr. Gant’s testimony, . . . we had too many 

issues, and I have to make the finding that you are not to consider any of the 

testimony you heard from Dr. Gant, period, either on direct or crossexamination.” The district court noted, however, that Dr. Gant’s 

preadmitted expert report was in the record. The district court lamented that 

it was “stuck in an unfortunate situation where I do have to get the case 

moving and the technology just did not work.” In response, Plaintiffs’ 

counsel requested that the court additionally strike Dr. Gant’s expert report, 

which request the district court denied. Interstate also objected to not being 

able to complete Dr. Gant’s videoconference testimony. 

The district court’s reasons for striking the testimony were that the 

remote testimony “just [didn’t] work,” “time was of the essence,” and it 

needed “to get the members of the public in an out,” while trying to assure 

justice is done “in the middle of a pandemic.” The case was “one of the 

oldest on his docket, and [it was] not fair for either party to continue the case 

any longer.” The district court also asked whether Dr. Gant was in his office 

in Dallas and, if so, gave him the opportunity to go to Forth Worth to testify 

that afternoon, but Dr. Gant was in Colorado. The district court stated that 

it understood the parties’ objections, but that it believed it had no other 

choice. 

As stated above, “A district court abuses its discretion when its ruling 

is based on an erroneous view of the law or a clearly erroneous assessment of 

the evidence.”8 The district court’s decision to strike the testimony of 

Dr. Gant could not be based on an erroneous view of the law because there 

simply is no law, and no precedent from this court, addressing the situation 

8 Id. at 626 (internal quotation marks and citation omitted).

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with which the district court was faced. As both parties acknowledge, the 

district court did not exclude Dr. Gant’s testimony based on Federal Rule of 

Evidence 702, which sets out the factors for the admissibility of expert 

testimony, or on Federal Rule of Civil Procedure 37, which authorizes the 

district court to impose sanctions on a party under certain circumstances. 

Rather, the district court excluded Dr. Gant’stestimony because of recurring 

technical problems with the videoconference equipment and his concerns 

about getting the jurors “in and out” of the courthouse while “in the middle 

of a pandemic.” The district court also felt that continuing the trial under the 

circumstances would have been unfair for either party given that it was one 

of the court’s “oldest cases.” 

As Plaintiffs point out, Federal Rule of Evidence 403 allows the 

district court to exclude relevant evidence if its probative value is 

substantially outweighed by a danger of, inter alia, unfair prejudice, undue 

delay, wasting time, or needlessly presenting cumulative evidence. Federal 

Rule of Evidence 611(a) also provides that the district court “should exercise 

reasonable control over the mode and order of examining witnesses and 

presenting evidence” to “make those procedures effective for determining 

the truth” and “avoid wasting time.” Although the district court did not 

specifically mention these rules, the district court’s statements on the record 

reflect that it considered similar factors in deciding to exclude Dr. Gant’s

testimony.

Moreover, contrary to Interstate contentions, the record reflects that 

the district court gave Interstate reasonable allowances to present Dr. Gant’s 

testimony. The district court adjourned early on the second day of trial to 

allow the parties time to tend to the video equipment to ensure that it would 

be back up and running the next day. 

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Concerns about getting the jurors back home in the middle of 

pandemic is not (unsurprisingly) one of the factors listed in any of the Federal 

Rules. The record reflects the district court’s efforts in reaching a 

compromise that was fair to all parties and the jurors. The district court knew 

it might be wasting more time if it allowed Dr. Gant to continue testifying

with the recurrent technical difficulties.At the same time, it tried to minimize 

the harm to Interstate’s case by allowing Dr. Gant’s preadmitted expert 

report to remain in evidence. As there is no rule or precedent on point, and 

the district court’s decision reflected that it considered the interests of the 

parties and the jurors in reaching its decision, and made efforts to achieve

fairness for both sides, we cannot say that it abused its discretion.

2.

Even if there was an abuse of discretion, Interstate fails to meet its 

burden of showing that the error was harmful and prejudicial to its case.9

Interstate argues that the district court’s ruling impaired “its ability to 

present evidence on critical questions about causation and damages,” but the 

record evidence reflects otherwise.

Although the district court struck the live video testimony of 

Dr. Gant, the district court ordered that Dr. Gant’s preadmitted expert 

report remain in evidence for the jury to consider. Moreover, Interstate’s 

other expert, Dr. Heitzman, testified on medical causation, and his expert 

report also was preadmitted. He testified that based on his examination of 

Alfonso and his review of the medical evidence, he did not believe that 

Alfonso had “a continuing brain injury.” He also stated that his opinion 

regarding the neuropsychological testing of Alfonso “rested largely on a 

conversation [he] had with Dr. Gant.” Dr. Heitzman further testified that 

9 Id. at 627.

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based on his conversation with Dr. Gant, and the objective evidence that he 

obtained with his medical testing, he did “not find any abnormality with 

reasonable medical probability.”

Thus, although Dr. Gant’s testimony was excluded, his opinions were 

contained not only in his preadmitted expert report (which remained in the 

record), but also in the live testimony of Dr. Heitzman. Dr. Heitzman also 

testified regarding medical causation and damages to Alfonso’s arm, back, 

and neck, as well as his brain. Interstate’s argument that the district court’s 

ruling impaired its ability to present evidence on critical questions involving 

causation and damages is without merit.

Based on the foregoing, Interstate fails to show that the district court’s 

exclusion of Dr. Gant’s live video testimony constituted harmful error.

Therefore, Interstate is not entitled to a new trial on this basis.

B.

Interstate next argues that it is entitled to a new trial because the jury’s 

verdict on damages was against the great weight of the evidence, excessive,

and manifestly unjust. Specifically, Interstate argues that there was 

insufficient evidence to support the jury’s damages awards because 

Plaintiffs’ only expert, Dr. Fulbright, failed to present reliable testimony and 

was not a qualified expert. Interstate also argues that counsel’s improper 

comments during closing argument were prejudicial to its case.

1.

As Plaintiffs assert, however, Interstate failed to preserve its challenge 

to the qualifications and testimony of Dr. Fulbright by not objecting

adequately below. 

“[F]or a litigant to preserve an argument for appeal, it must press and 

not merely intimate the argument during the proceedings before the district 

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court.”10 Interstate acknowledges that its objection to Dr. Fulbright’s 

testimony at trial was merely: “Objection, Your Honor. No foundation, 

experience, training or education.” Interstate’s objection followed an 

interaction between Plaintiffs’ counsel and Dr. Fulbright during his direct 

testimony, in which Dr. Fulbright asked counsel, “You want me to talk about

the physical injury – the brain injuries?” Plaintiffs’ counsel responded, 

“Let’s talk about – however way you want to take it. Do you want to talk 

about his physical injuries first?” Dr. Fulbright responded, “All right,” and 

then Interstate asserted its objection, which the district court immediately 

overruled. 

Dr. Fulbright then proceeded simply to read the physical injuries 

“listed in the medical records,” stating that he did not have to have a medical 

education to do so. The injuries included a seven-centimeter laceration to 

Alfonso’s head, a left shoulder injury, bruising, and high blood pressure as 

well as a high pulse rate. Dr. Fulbright’s testimony at that point did not 

consist of any opinions, but just a reading of what was contained in the 

medical records.

When Dr. Fulbright actually began to discuss his opinions regarding 

potential injuries to Alfonso’s brain, Interstate did not object, and it never 

objected at any point during the remainder of Dr. Fulbright’s direct 

examination. During its cross-examination of Dr. Fulbright regarding his 

education and qualifications, Interstate established that Dr. Fulbright was 

not a “medical doctor or an osteopathic doctor,” and that as a 

neuropsychologist, he was in the subspecialty of “clinical psychology.” 

10 Weckesser v. Chicago Bridge and Iron, L.G., 447 F. App’x 526, 530 (5th Cir. 2011) 

(per curiam) (unpublished) (internal quotation marks and citation omitted). Unpublished 

opinions issued on or after January 1, 1996, are not precedential but may be persuasive. 

Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006).

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Dr. Fulbright admitted he was not board certified. He also admitted that he 

had not reviewed Alfonso’s medical records prior to the accident. 

At no time during Dr. Fulbright’s testimony did Interstate lodge an 

objection, or move to strike Dr. Fulbright’s testimony, because he was not 

qualified to opine on whether Alfonso sustained any brain injury or because

his opinions were unreliable. The first time Interstate argued that 

Dr. Fulbright was not qualified and his opinions unreliable was in its motion 

for new trial. However, the district court did not address Interstate’s 

arguments on these issues. 

Although the district court has discretion to consider an issue 

presented for the first time in a post-trial brief, when the district court does 

not exercise such discretion, the issue is not considered properly raised.11 In 

this case, because Interstate raised its arguments regarding Dr. Fulbright for 

the first time in its motion for new trial, but the district court did not consider 

those arguments in denying the motion, we conclude that Interstate did not 

properly raise its arguments challenging Dr. Fulbright’s testimony below.

“We do not ordinarily consider issues that are forfeited because they 

are raised for the first time on appeal.”12 There are exceptions to this rule, 

such as if the issue involves a challenge to the court’s jurisdiction, or “it is a 

purely legal matter and failure to consider the issue will result in a miscarriage 

of justice.”13 Interstate’s challenge to Dr. Fulbright’s testimony does not fall 

within these exceptions. Therefore, the issue is forfeited, and we do not 

consider it.

11 Garriot v. NCsoft Corp., 661 F.3d 243, 248 (5th Cir. 2011).

12 Rollins v. Home Depot USA, Inc., 8 F.4th 393, 398 (5th Cir. 2021).

13 Id. (citations omitted).

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2.

Interstate argues that the damages the jury awarded in favor of 

Plaintiffs are against the great weight and preponderance of the evidence, 

excessive, and manifestly unjust. Interstate asserts that because Dr. 

Fulbright’s causation opinion is unreliable, “there simply is no competent 

evidence to support the jury’s damages findings.” 

“In an action based on state law but tried in federal court by reason of 

diversity of citizenship, a district court must apply a new trial or remittitur 

standard according to the state’s law controlling jury awards for 

excessiveness or inadequacy.”14 Under Texaslaw, “review for excessiveness 

uses the same standard as any factual sufficiency claim.”15 “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.”16

As set forth above, Interstate forfeited its challenge to the 

admissibility of Dr. Fulbright’s testimony by not properly preserving the 

issue for appeal. Because its challenge to the jury’s damages award is based 

on its forfeited argument regarding Dr. Fulbright’s testimony, Interstate’s 

challenge to the damages award fails.

Furthermore, based on the evidence adduced at trial, the damages 

awarded by the jury were not excessive. Alfonso testified when the tractor 

trailer collided with his pickup truck, it caused his pickup truck to spin and 

roll over. He remembered having to crawl out of a window of the vehicle. He 

14 Foradori v. Harris, 523 F.3d 477, 497 (5th Cir. 2008) (citation omitted).

15 Longoria v. Hunter Express, Ltd., 932 F.3d 360, 365 (5th Cir. 2019) (citation 

omitted).

16 Id. (citation omitted).

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sustained a very painful shoulder separation and head wound. The medical 

records indicated that the emergency room doctor diagnosed him with: 

“abdominal contusion, chest wall contusion, contusion of left shoulder, head 

injury acute without loss of consciousness, left shoulder strain and scalp 

laceration.”

After the accident, Alfonso tried physical therapy for a separated 

shoulder, but his pain did not subside. Eventually, a specialist operated on his 

shoulder. Although the surgery increased his ability to move his shoulder,

Alfonso testified that he still cannot lift his arm all the way above his head. 

He also testified that in the days and weeks following the accident, he lacked 

concentration and struggled to retain information. Additionally, Alfonso 

feels pressure on the top of his head and on his right side; he sometimes feels 

like he has an electric shock; and he cannot tolerate noises. 

Alfonso’s two daughters17 testified regarding the changes in Alfonso 

after the accident. Laura testified that her father complained of pain in his 

shoulder and that he was unable to help around the house like he used to. She 

stated that her dad was very patient, but that after the accident, he became 

“irritated very easily.” Guadalupe testified that Alfonso used to be very 

social and outgoing, but now he prefers to stay home and be alone. She said 

her relationship with her father had become distant because of his temper and 

lack of patience. 

Dr. Fulbright opined that Alfonso suffered a brain injury as a result of 

the accident because both he and Dr. Jones observed, through their testing of 

Alfonso, that there was a “distinct change in [Alfonso’s] behavior” and 

“changes in his cognitive functioning.” Dr. Fulbright believed that the 

17 Laura Parra was 21 at the time of trial, and Guadalupe Parra was 26.

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nature of the wreck, with the car “spinning and rolling and land[ing] upside 

down, was sufficient mechanical force to cause the injury.”

Maria Parra, Alfonso’s wife, testified that since the accident Alfonso’s 

demeanor and character “changed a lot.” He used to be “level-headed, very 

well centered, easygoing, patient.” Maria testified that Alfonso appeared to 

have “entered in some type of depression,” and their relationship was not 

the same. She also described instances where Alfonso just did not understand 

what they were doing and/or did not remember why they were doing certain 

things. 

In light of the evidence adduced at trial, we cannot say that the 

damages awarded to Alfonso of $77,400 in economic damages and $429,000 

in noneconomic damages, and to Maria of $20,000 in economic damages and 

$175,000 in noneconomic damages were against the great weight or

preponderance of the evidence, excessive, or manifestly unjust. 

3.

Interstate lastly argues that the jury’s award was manifestly unjust 

because it was based on “passion or prejudice.” Specifically, Interstate 

asserts that Plaintiffs’ counsel improperly commented on the failure of 

Interstate’s corporate representative to testify at trial and on the age of the 

tortfeasor driver during closing argument. Interstate contends that these 

comments prejudiced the jury against it. 

As Plaintiffs point out, Interstate failed to object during closing 

argument to Plaintiffs’ counsel’s reference to the absence of Interstate’s 

corporate representative at trial. “Absent a timely objection, reversal is 

generally not warranted based on counsel’s improper statements alone. 

Rather, we consider the comments of counsel, the counsel’s trial tactics as a 

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whole, the evidence presented, and the ultimate verdict.”18 Furthermore, 

“[w]e have found it particularly important whether or not statements made 

in closing argument were based on evidence in the record.”19 We have noted 

that “it is a particularly indefensible tactic to use closing arguments to bring 

before the jury damaging facts not in evidence and never established.”20

The age of the tortfeasor driver was in the record, as it was contained 

in the Texas Peace Officer’s Crash report which was admitted into evidence 

by agreement of both sides. During cross-examination, Interstate’s expert, 

Dr. Heitzman, confirmed that the crash report indicated that the driver was 

75 years old at the time of the accident. Furthermore, the jury obviously knew 

that Interstate’s corporate representative was absent from trial and did not 

testify during the trial. Because Plaintiffs’ counsel’s comments during 

closing argument involved facts already known by the jury, Interstate’s 

argument that the comments prejudiced the jury against it is without merit.

III. CONCLUSION

Based on the foregoing, the district court’s judgment is 

AFFIRMED. 

18 Alaniz v. Zamora-Quezada, 591 F.3d 761, 778 (5th Cir. 2009) (citation omitted).

19 Id. (citation omitted).

20 Id. (internal quotation marks and citation omitted).

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