Longoria v. Hunter Express, Ltd, 080119 FED5, 17-41042

Docket Nº:17-41042
Party Name:AMBROSIO LONGORIA, Plaintiff - Appellee v. HUNTER EXPRESS, LIMITED; SARBJIT SINGH BASATIA, Defendants - Appellants
Judge Panel:Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.
Case Date:August 01, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

AMBROSIO LONGORIA, Plaintiff - Appellee



No. 17-41042

United States Court of Appeals, Fifth Circuit

August 1, 2019

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

Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.


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.


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 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.


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.

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...

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