dissenting from the denial of rehearing en banc:
This is a Federal Tort Claims Act1 case arising from the negligence of medical personnel at a naval hospital in Jacksonville, Florida which caused severe brain damage to a child who was delivered there. After an 11-day bench trial in the Southern District of Florida, the district judge entered judgment against the United States in the amount of $40,485,788.98, $20,000,000.00 of which constituted non-economic damages awarded to the parents. The parents’ part of the award was vacated by the panel and remanded to the district court on the sole ground of it being excessive and shocking to the judicial conscience. See Bravo v. United States, 532 F.3d 1154, 1161 (11th Cir.2008). The majority opinion reasoned that the award did not “bear a reasonable relation to the philosophy and general trend of prior decisions in such cases.” Id. at 1162 (quoting Johnson v. United States, 780 F.2d 902, 907 (11th Cir.1986)). In determining the philosophy and general trend, the majority opinion compared the damages award to other awards in similar cases. But, in conducting this comparative analysis, the majority opinion confined its comparison solely to Florida published appellate opinions.
I would have affirmed the verdict. Our job was to find “the philosophy and general trend” i.e., to determine whether the verdict “[was] so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the trier of fact may properly operate.” Johnson, 780 F.2d at 908. Other Florida jury verdicts demonstrate that the award by the district judge who heard this case after an 11-day bench trial is within the maximum limit of a reasonable range. Those other verdicts would include Florida published appellate decisions that the majority simply disregards. See, e.g., General Motors Corp. v. McGee, 837 So.2d 1010, 1039 (Fla. 4th DCA 2002) (upholding a $60,000,000.00 verdict against General Motors to the parents of a boy who died in a burning car, which included $30,000,000.00 to the parents for their non-economic damages). But my disagreement with the opinion published by the majority extends beyond that determination. In holding that our comparative analysis was confined exclusively to published Florida appellate decisions, I believe that the majority unnecessarily disregarded established precedent, including Florida law, as I explained in a partial dissent. See Bravo, 532 F.3d at 1173-79 (Wilson, J., concurring in part and dissenting in part).2 Florida courts have not limited their review of personal injury awards in the way that the majority does *1301on this appeal. More importantly, the majority opinion represents the first time, as far as I can find, that any federal or state court has held that in reviewing a personal injury award for excessiveness, the reviewing court is confined to comparing and considering awards reflected only in published appellate decisions in a limited locale.3 I believe that by confining its review of compensable awards, the majority was able to disregard similar awards reflected in other published opinions in similar cases in other locales, as well as awards not reflected in published opinions.4 I disagree with that methodology, as well as the departure from clear Florida law. I cannot find that Florida has ever adopted such a rule that would permit a reviewing court to disregard awards reflected in unpublished decisions, out-of-state cases, instate trial decisions, jury verdicts, etc. Additionally, the Government in its briefs did not cite a single Florida case to support its contention that the non-eeonomic damage award should be reversed for ex-cessiveness. Instead, they cited only two cases: one from the Fifth Circuit and one from the Tenth Circuit. See Pet’r’s Reply Br. 19-24 (citing Lebron v. United States, 279 F.3d 321, 333 (5th Cir.2002) and Miller v. United States, 901 F.2d 894, 896-97 (10th Cir.1990)). Therefore, I would grant en banc rehearing to determine whether we, as a reviewing court, are so limited in our analysis in review of personal injury awards for exeessiveness.
On August 27, 2009, the First Circuit, inter alia, affirmed a district court’s award (after a bench trial) of non-economie damages in an FTCA case in the amount of $101,750,000.00. Limone v. United States, 579 F.3d 79, 106-07 (1st Cir.2009). The First Circuit rejected the very same argument adopted by the majority in Bravo. In Limone, the Government argued that “the district court should have limited its comparability survey of the personal injury verdict to cases arising in Massachusetts .... ” Id. at 104. The First Circuit dismissed this argument as “parochial” and “incorrect as a matter of law.” Id. (emphasis added). The First Circuit explained its reasoning:
Although we have said that helpful guidance may be found in damage awards from similar cases arising out of the same context that are tried in the same locale, that does not mean that a court is prohibited from looking for guidance elsewhere. The key is comparability: whether the counterpart cases involve analogous facts, similar measures of *1302damages, and are otherwise fairly congruent.
Id. (internal quotation marks and citations omitted). The First Circuit went on to consider jury awards from other jurisdictions, ultimately affirming the award of over $100 million. See id. at 106-07 (relying on cases from the Fifth and Seventh Circuits as well as Missouri federal district court). I believe that the First Circuit has the better review.
The majority in Bravo created its rule out of whole cloth, limiting review to reported Florida appellate court decisions, based in large part on a passage from our own precedent in Johnson v. United States: “[although excessiveness may be tested by comparing the verdict to those damage awards determined not to be excessive in similar cases, we have been unable to find any reported case in Florida with an award this high.” 780 F.2d at 908 (emphasis added) (internal citations omitted). Setting aside the fact that the Johnson Court did not create any rule but merely noted that it had not located a “reported case in Florida” on point, the Bravo majority nevertheless extrapolated a rule from that language in Johnson. On the other hand, in Limone, the First Circuit declined to interpret the following language as a limitation of its review to Massachusetts cases: comparisons to “similar cases arising out of the same context that are tried in the same locale ...” Limone, 579 F.3d at 104 (citation omitted) (emphases added). Despite its own precedent limiting comparison to cases from the “same locale,” the First Circuit nevertheless concluded that “that does not mean that a court is prohibited from looking for guidance elsewhere,” i.e., outside Massachusetts. Id. In the instant case, the Bravo majority interpreted broader and more ambiguous language in Johnson (when compared to that in Limone) to mean that we may only look to reported Florida appellate court decisions in this Federal Tort Claims Act case. Borrowing from the First Circuit, that rule is “incorrect as a matter of law.” Id.
The majority opinion in Bravo represents a shift in logic in the way we review personal injury awards for excessiveness. The only avenue available to us to reconsider this precedent, and correct an appeal which I believe to be wrongly decided, is the vehicle provided for en banc review by Federal Rule of Appellate Procedure 35.
. 28 U.S.C. §§ 1346, 2671 et seq.
. See also Bravo v. United States, 532 F.3d 1154, 1159 (2009) (Wilson, J., dissenting) (denying panel rehearing).
. By "limited locale,” I do not mean that the majority confined its review to appellate decisions from the Third District Court of Appeal, but confined its review to the limited locale of Florida. I argue, however, that there should not be a limited locale to which the court must confine its review in determining excessiveness, and the court should be permitted to look outside of Florida and elsewhere for guidance.
. For example, the Bravos cited in their briefs three unappealed cases with higher non-economic damage awards. See Resp’t's Br. 54-55 (citing Navarro v. Austin, Fla. Cir. Ct.2006, (No. 02-6154, Oct. 3, 2006) (awarding $9 million for Mr. Navarro's past pain and suffering, $37.5 million for Mr. Navarro's future pain and suffering, and $52.5 million for Mrs. Navarro's loss of her husband’s services, comfort, society, and attentions in the past and future); Korzeniowski v. Eagteman, Fla. Cir. Ct.2004, (No. 00-4828 AO, Feb. 26, 2004) (awarding $17 million for the child’s past and future pain and suffering, $7 million for the mother’s loss of filial consortium, and $7 million for the father’s loss of filial consortium); Hinton v. 2331 Adams St. Corp., Fla. Cir. Ct.2003, (No. 01-012933(12), Jan. 30, 2003) (awarding $35 million for the child’s past and future pain and suffering, $5 million for the mother's loss of filial consortium, and $5 million for the father’s loss of filial consortium)).