IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-41042

AMBROSIO LONGORIA, 

 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. 

United States Court of Appeals

Fifth Circuit

FILED

August 1, 2019

Lyle W. Cayce

Clerk

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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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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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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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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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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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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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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 postGasperini: Use state law to determine whether damages are excessive but 

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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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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

 

5 It 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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numbness and burning sensations. Id. The plaintiff received today’s 

equivalent6 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 fourwheeler. 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 milliondollar 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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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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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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