The district court did not abuse its discretion by admitting the evidence of construction sites. Echeverry sought to use the evidence of construction sites that had barricades to show that there should have been barricades in place to prevent her injury. The fact that the bird-removal site did not have barricades when similar construction sites did is some evidence of a breach of the applicable standard of care, especially when the Casino’s expert made the comparison to construction sites. The Casino was allowed to present evidence that tended to justify why there were no barricades, and the jury weighed the evidence.
A new trial was not required based on erroneous admission of evidence.
III. Excessive damages for future pain and suffering
We review the denial of a motion for a new trial or remittitur in the alternative for abuse of discretion. Puga v. RCX Sols., Inc., 922 F.3d 285, 296 & n.9 (5th Cir. 2019). We have generally used the maximum-recovery rule, which “permits a verdict at 150% of the highest inflation-adjusted recovery in an analogous, published decision”; we have recently identified this court’s inconsistencies concerning the stage of the inquiry at which we apply it and to what extent it applies in diversity-jurisdiction cases. Longoria v. Hunter Express, Ltd., 932 F.3d 360, 365 (5th Cir. 2019). We have sometimes applied the maximum-recovery rule “at the outset to determine whether the damages are excessive,” and other times “only to determine how much of a reduction is warranted after deciding the award is excessive.” Id. In Longoria, we suggested that the correct process in a diversity-jurisdiction case may be to use state law to determine whether the damages are excessive and the maximum-recovery rule in setting remittitur. Id. at 366. In that case, though, we did not definitively resolve the question because the outcome was the same under the state or federal standard. Id. The same is true here.
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