### 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 Judg e: 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” r u le. After wading through these sometimes murky waters, we vacate the award fo r 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 Case: 17-41042 Document: 00515059445 Page: 1 Date Filed: 08/01/2019No. 17

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2 I

. Ambrosio Longoria and Sarbjit Singh Basatia are commerc ial truckdrivers. T hey 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 hal t

. Longoria walked away from the accident. But a few hours later, he began experienc ing 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 t his 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 t wo options to manage the pain : a steroid shot or back surgery. Fearing surgery, Longoria opted for the shot.
T he 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 dis c 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 Case: 17-41042 Document: 00515059445 Page: 2 Date Filed: 08/01/2019No. 17

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3 pain that regularly wakes him up at night. And every morning Longoria must stretch for an hour to manage the pain. He typi cally 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 agai nst 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:

• P ast physical pain : $150,000 ;

• F uture physical pain : $1 million;

• P ast menta l anguish : $120,000;

• F uture mental anguish : $140,000 ;

• P ast medical expenses : $94,243 ;

• P ast physical impairment : $200,000 ;

• F uture physical impairment : $1 .1 million;

• P ast disfigurement : $1,000 ; and

• P ast 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 consi deration. Case: 17-41042 Document: 00515059445 Page: 3 Date Filed: 08/01/2019No. 17

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4 But Defendants ad d 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 ha ve forfeited the se 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 di d not dispute the past mental anguish award on any basis in the trial court . As to future physical impairment, the new trial motion addresse d 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 see m to encompass as a “lesser included” a claim that any amount is excessive. But the inquiries are distinct, as the new trial motion recognize s in separating them. The sufficiency challenge asks only whether there is any evidence for a jury’s award; if th ere 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 discre tion. 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 F orfeiture 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). Case: 17-41042 Document: 00515059445 Page: 4 Date Filed: 08/01/2019No. 17

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5 to exercise it in the first instance. Bueno , 714 F.2d at 493

– 94. Because the
D efendant s d id 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. 196 8 ) (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, 79 6 (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 appl ies 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,
4 30

– 31 ; see also Fair v. Allen , 669 F.3d 601, 604 ( 5th Cir. 2012) (explaining that Gas p erini 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 di d 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 o r t he federal rule. While we conclude the maximum recovery rule does play a role in d etermining 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 Case: 17-41042 Document: 00515059445 Page: 5 Date Filed: 08/01/2019No. 17

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6 S ome background on the maximum recovery rule is helpful at this point. Judge Rubin , during his time on the district court, provided an early

ex planation 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 t hat 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 high est amount the jury could have awarded, or set an amount the court would have awarded. Glazer , 278 F. Supp. at 478

– 79 (citing 6A M OORE ’ S F ED

. P RAC

. , at
3743

– 44 (2d ed. 1966 ) ). Judge Rubin opt ed for the highest award the law allowed

— thus the “maximum recovery” label

— because that approach preserves as much of t he 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 look s to other published decisions from the relevant jurisdiction ( in a diversity case, the forum state) involving comparable facts

. Lebron v. U nited States , 279 F.3d 321, 32 6 ( 5th Cir. 2002). The rule allows some leeway, so it permits a verdict at 150% of the high est inflation

- adjusted recovery i n an analogous , published decision. Puga

permits. So a d e fendant 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. Case: 17-41042 Document: 00515059445 Page: 6 Date Filed: 08/01/2019No. 17

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7 v. RCX Solutions, Inc. , 922 F.3d 285, 29 8 n.12 (5th Cir. 2019) ; Thomas v. Tex. Dep ’t of Crim. Justice , 297 F.3d 361, 369 n.8 (5 th 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 (5 th Cir. 2003 ); Lebron , 279 F.3d at 328. Other time s 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 (5 th Cir. 1998) . This difference may matter to the Erie question. The state/federal issue is p resented 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) (expl aining 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 all ow a reasonable, fair

- minded jury to come to the verdict the actual jury reached. Waste M gmt. of Tex., Inc. v. Tex. Disposal Systems Landfill, Inc. , 434 S.W.3d 142, 15 9

– 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% multipl ier 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 c ourt 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. Case: 17-41042 Document: 00515059445 Page: 7 Date Filed: 08/01/2019No. 17

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8 preponderance of the evidence as to be manifestly unjus t

. ” 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.

— T exarkana 2005, no pet.)

. So whereas a comparison to other verdicts is the lodestar for the federal maximum recovery r u le, 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, 4 97 (5th Cir. 2008) . Yet our law is again inconsistent

. A s recently as this year , we have applied the maximum recovery rule in a diversity case to answer the initial question whether damages ar e excessive

. See Puga , 922 F.3d at 297 ; see al so Vogler v. Blackmore , 352 F.3d 150, 156 (5th Cir. 2003)

. But most of our cases do not g rapple 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.
T here may be a solution to the Erie puzzle in what other circuits do. Th e 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. o f 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 jur y”). Other circuits have done the same post

Gasperini : U se state law to determine whether damages are excessive but Case: 17-41042 Document: 00515059445 Page: 8 Date Filed: 08/01/2019No. 17

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9 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 (7 th Cir. 2000); Koster v. Trans World Airlines,
Inc. , 181 F.3d 24, 36 (1 st Cir. 1999) ; see also C YCLOPEDIA OF F ED

. P RO C . § 34:28 n.2 (3d ed.) (recognizing role for maximum recovery role at remittitur stage); 2A F ED

. P ROC ., L AWYER ’ S E D . § 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 remitt itur , which is itself a discretion ary act

. S ee 11 Charles Alan Wright et al

. , F ED

. P RAC

. & P ROC

. § 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 Gasp e rini 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 feder al maximum recovery rule, t he $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 repea t 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” sens ation. He also sometimes experiences a feeling of numbness. Longoria’s doctor believes t h e current pain will be permanent. And there is a risk that the two discs still Case: 17-41042 Document: 00515059445 Page: 9 Date Filed: 08/01/2019No. 17

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10 facing pressure from the bone spur will pinch a nerve and caus e further pain , so Longoria is on a permanent 50

- pound lifting restriction. This pain is significant

. B ut an award of $1 million is “contrary to the overwhelming weight of the evidence,” given that Longoria can mostly manag e the pain by stretching and takin g 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. P ain 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 o ne case, the plaintiff, like Longoria, tried numerous remedies before eventually under g oing 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 t o 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. I n anoth er case, the plaintiff ruptured two discs, ha d muscle atrophy in one arm, and developed an irregular spinal curvature. Roberts v. Tatum , 575 S.W.2d 138, 14 1 (Tex. App.

— Corpus Christi 1978 , write ref’d n.r.e. ). L ike Longoria, he describe d

5 It bears noting that the inconvenience of managing the pain, and other ways in which the l ingering injuries inhibit Longoria’s enjoyment of life activities, are accounted for in the separate award for future physical impairment. Case: 17-41042 Document: 00515059445 Page: 10 Date Filed: 08/01/2019No. 17

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11 numbness and bur ning 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 Serv s. Corp

. v. Myers , 569 S.W.3d 745 , 754 (Tex. App.

— Houston [1st Dist.] 2018 , no pet.). Th at 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 th is case, the plaintiff’s doctor did not prescribe any painkillers, but pain persists

. Id. If anything, t he pain in Primoris Energy seems marginally greater than what the evidence shows in this case . For example, th e 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 re covery rule still has a role . We have discretion to set that amount or remand for the district court to do so. Koster , 18 1 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 rul e , we will allow the district
court to finalize the amount. Glazer v. Glazer , 374 F.2d 390, 41 4 (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 (T e x. 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. Case: 17-41042 Document: 00515059445 Page: 11 Date Filed: 08/01/2019No. 17

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12 finalize the remittitur amount). Having presided over the trial, it has g reater familiarity with the evidence of future pain from which to evaluate which cases are comparable. We thus remand for that determination.
I V

. 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 40 2, 407 (Tex. 1998)

. The Supreme Court of Texas has “admonished courts to close ly scrutinize” mental anguish awards

. Universe Life I ns. Co. v. Giles , 950 S.W.2d 48, 54 ( Tex. 1997). To recover for mental anguish, a plaintiff generally must provide evidenc e that the anguish created a “substantial disruption” in the plaintiff’s “daily routine” or cause d 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 ange r.” 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 abil ity 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 d id 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. Case: 17-41042 Document: 00515059445 Page: 12 Date Filed: 08/01/2019No. 17

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13 Longoria also testified that he “ sometimes [feels] just useless” due to his
in ability 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, 59 8 (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 receiv ed 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 remitti tur

. Case: 17-41042 Document: 00515059445 Page: 13 Date Filed: 08/01/2019