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the judicial conscience’” or “‘so gross or inordinately large as to be contrary to right reason’”); see also Brunnemann v. Terra Int’l, Inc., 975 F.2d 175, 178 (5th Cir. 1992) (“Damage awards” that are “excessive . . . are subject to remittitur.”); Whiteman v. Pitrie, 220 F.2d 914, 919-20 (5th Cir. 1955) (reversing denial of new trial on damages even absent JMOL; applying traditional review of whether award was “monstrous” or “gross or inordinate”).5

The panel decision cannot be reconciled with Shockley or the applicable de- cisions of the Fifth Circuit. Indeed, it conflicts with the law of every other circuit, all of which allow (and indeed require) appellate panels to examine the evidentiary basis for a damages award under the traditional “grossly excessive”/“shocks the conscience” standard when reviewing denials of new trial motions—the very stan- dard that the decision categorically declined to apply here.6

The panel decision cited the Fifth Circuit’s decision in Duff v. Werner Enter- prises, Inc., 489 F.3d 727 (5th Cir. 2007), as applying a “much narrower standard” on review of “denials of new trial motions.” But Duff did not refuse to conduct the traditional review of “grossly excessive” awards afforded by other appellate courts. To the contrary, the Duff court undertook a “painstaking review of the record” and concluded that “$29,577.92 of Duff’s $300,000 award [wa]s not sustainable on th[e] record,” 489 F.3d at 731-32—a far different approach than the decision’s prohibition of traditional excessiveness review here. 5

6 See Whitfield v. Melendez-Rivera, 431 F.3d 1, 15-16 (1st Cir. 2005) (reversing denial of new trial under “grossly excessive” standard); Gumbs v. Pueblo Int’l, Inc., 823 F.2d 768, 773 (3d Cir. 1987) (same); Rodgers v. Fisher Body Div., Gen. Motors Corp., 739 F.2d 1102, 1105-06 (6th Cir. 1984) (same); Herrington v. So- noma County, 834 F.2d 1488, 1503 (9th Cir. 1987) (same); Wilson v. Taylor, 733 F.2d 1539, 1549 (11th Cir. 1984) (same); see also Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 683-84 (2d Cir. 1993) (reversing denial of new trial where award was “so excessive ‘as to shock the judicial conscience’”); Fitzgerald v. Mountain States Tel. & Tel. Co., 68 F.3d 1257, 1261-62, 1264-66 (10th Cir. 1995) (same); Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 305 (4th Cir. 1998)


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