Charles McLendon v. Big Lots Stores, Incorporated, 749 F.3d 373

McLendon slipped in a Big Lots parking lot and sustained wrist fractures, shoulder injury, and a nose injury.
PNS stipulated negligence; damages at issue at trial were McLendon's claimed physical pain, mental anguish, disfigurement, impairment, and medical expenses.
Jury awarded $201,210.51 for past and future damages across multiple categories; district court denied a Rule 50(b) motion to alter the verdict on liability, and denied post-judgment motions.
PNS filed an untimely Rule 59 motion for a new trial, remittitur, or to alter judgment; notice of appeal followed the same day but did not list the Rule 59 ruling.
Appellate court affirmed, holding Rule 59 motion was untimely, Rule 50(b) was not preserved for other damages, and any alleged closing-argument errors did not warrant reversal under plain error.
The court discussed preservation requirements for sufficiency challenges and applied plain error review only to unpreserved arguments, concluding no error required reversal.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Rule 59 motion timeliness	PNS contends the district court abused its discretion in denying the Rule 59 motion.	McLendon argues the district court correctly denied an untimely motion.	Rule 59 motion untimely; no abuse of discretion.
Sufficiency review of damages beyond mental anguish	PNS argues the award for damages was not supported by the evidence.	McLendon contends the record supports the damages; no post-verdict Rule 50(b) was filed to challenge other categories.	No review of unpreserved sufficiency claims; post-verdict Rule 50(b) required.
Plain-error review of closing-argument conduct	PNS asserts improper remarks and handling of business card prejudiced the jury.	McLendon argues any error was not plain error or did not affect substantial rights.	No reversal for plain error; no shown substantial rights impact.
Overall sufficiency and preservation framework	PNS challenges the damages as excessive and improperly preserved.	McLendon relies on established preservation rules and lack of prejudice.	Affirmed; unpreserved sufficiency challenges not reviewable and no plain-error reversal.

Learmonth v. Sears, Roebuck & Co., 631 F.3d 724 (5th Cir. 2011) (abuse of discretion standard for Rule 59 motions; mistrial considerations)
Ortiz v. Jordan, 131 S. Ct. 884 (Supreme Court) (absence of Rule 50(b) review; preservation requirement)
Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006) (lack of Rule 50(b) review deprives appellate court of power to review sufficiency)
Downey v. Strain, 510 F.3d 534 (5th Cir. 2007) (Rule 50(b) preservation required to challenge sufficiency post-verdict)
Whitehead v. Food Max of Miss. Inc., 163 F.3d 265 (5th Cir. 1998) (plain-error review limits when no contemporaneous objection)
Escalante-Reyes v. United States, 689 F.3d 415 (5th Cir. 2012) (plain-error framework; substantial rights requirement)
Rashad v. United States, 687 F.3d 637 (5th Cir. 2012) (plain-error review when improper comments do not cast serious doubt)
Md. Cas. Co. v. Acceptance Indem. Ins. Co., 639 F.3d 701 (5th Cir. 2011) (plain-error standard for error impact on award)
United States v. Broussard, 669 F.3d 537 (5th Cir. 2012) (conflict of lines of authority; general adherence to earliest precedent)