DocketNumber： 95-1781
Filed Date： 6/3/1996
Status： Precedential
Modified Date： 9/21/2015
United States Court of Appeals
For the First Circuit
____________________
No. 95-1781
CAMBRIDGE PLATING CO., INC.,
Plaintiff-Appellee,
v.
NAPCO, INC.,
Defendant-Appellant.
____________________
No. 95-1782
CAMBRIDGE PLATING CO., INC.,
Plaintiff-Appellant,
v.
NAPCO, INC.,
Defendant-Appellee.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge] __________________________
____________________
Before
Selya, Boudin and Lynch
Circuit Judges. ______________
____________________
Thomas K. Christo, with whom David B. Chaffin and Hare & _________________ ________________ _______
Chaffin were on brief, for Cambridge Plating Co., Inc. _______
Lawrence S. Robbins, with whom Gary A. Winters, Mayer, Brown ___________________ _______________ ____________
& Platt, Richard L. Burpee and Burpee & DeMoura were on brief, _______ __________________ _________________
for Napco, Inc.
____________________
June 3, 1996
____________________
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LYNCH, Circuit Judge. These cross-appeals arise LYNCH, Circuit Judge. _____________
out of the sale of a defective wastewater treatment system
for use in an electroplating operation. For want of a $620
part, there was a damages verdict of over $7 million. The
purchaser of the system, Cambridge Plating Co., Inc., sued
the seller, Napco, Inc., for, among other things, failing to
reveal that it had knowingly omitted a critical part from the
system. The complaint alleged breach of contract,
intentional misrepresentation, negligent misrepresentation
and a violation of Mass. Gen. L. ch. 93A, 2, 11 ("Chapter
93A"). After a twelve-day trial, Cambridge Plating won on
all counts, with a jury finding liability on the common law
counts and the district court finding liability under Chapter
93A. Both the jury and the district court awarded Cambridge
Plating significant damages. Napco now raises various
challenges to the verdicts. We believe there was error in
the striking of post-judgment motions and that the claims
were timely filed under the Massachusetts discovery rule; we
find the evidence sufficient and affirm on liability (but
reverse the multiple damages under Chapter 93A), and vacate
and remand the award of damages.
I. Background
-3-
We recite the facts as the jury and district court
could have found them. See Sampson v. Eaton Corp., 809 F.2d ___ _______ ___________
156, 157 (1st Cir. 1987).
Cambridge Plating, as part of its metal plating and
metal finishing operations, uses large quantities of water
for bath solutions and rinsing. This water becomes
contaminated with chemicals and metals. Environmental
regulations require that Cambridge Plating decontaminate the
wastewater before discharging it into the sewers.
Napco manufactures and sells wastewater treatment
systems for commercial users. In January 1984, Cambridge
Plating entered into a contract to purchase, for
approximately $398,000, a wastewater treatment system that
would remove the contaminants from the water. As part of the
contract, Napco provided a "performance warranty" under which
Napco warranted that the system, if operated within certain
defined limits, would meet all Massachusetts and federal
pollution abatement requirements. The warranty, however,
excluded liability for all consequential damages or business
loss Cambridge Plating might incur in the event of a breach.
The system Napco sold to Cambridge Plating used a
precipitation process to remove the contaminants from the
water. The wastewater was fed through pipes, and injected
with a polymer solution. The polymers were to attach to the
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contaminants and then aggregate them to form larger
particles, known as "floc." The floc was to settle out of
the water and form sludge at the bottom of a clarifying tank.
The clean water layer on top would be discharged into the
sewer and Cambridge Plating would properly dispose of the
sludge left behind in the tank. "Flocculation," the joining
of the smaller particles into bigger ones, was absolutely
critical to the success of the wastewater treatment system.
Absent proper flocculation, contaminants would remain
suspended in the water and the water could not be discharged
into the sewer.
For proper flocculation to occur, the polymer
solution had to be thoroughly mixed into the wastewater
stream. The system needed some means of creating turbulence
in the stream sufficient to perform that mixing. One
mechanism designed to create the necessary turbulence is a
"static mixer." A static mixer is a section of pipe
containing a series of "baffles," small metal plates placed
at an angle inside the pipe which create resistance and,
consequently, turbulence. The polymer solution is injected
into the waste stream just before the water reaches the
static mixer. Once the water with the polymer solution hits
the baffles, mixing occurs.
There are alternatives to static mixers to create
the required turbulence for a precipitation wastewater
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treatment system. As Joseph Aliota, Napco's expert engineer,
testified, proper mixing can occur if the system is designed
with a series of significant bends in the piping around the
area where the polymer is injected into the stream. Napco
did not opt for that design. The engineering drawings (and
other items) for the Cambridge Plating system clearly
indicate that the system was to include a static mixer.
Napco did not install the static mixer. Nor did it
tell Cambridge Plating that the static mixer had not been
installed. It did, however, provide Cambridge Plating with a
"tech manual" containing blueprints and operating
instructions for the system. This manual, given to Cambridge
Plating upon completion of the system, purported to show what
had actually been built.1 It contained engineering drawings
indicating that the static mixer had been installed in the
system. Napco also provided a control panel that depicted
the static mixer as being part of the system.
Napco's employees were aware that the static mixer
had not been installed. Bob Triplett, Napco's plumbing
subcontractor, testified that he was instructed not to
install the static mixer at the direction of either Carl
____________________
1. Although the parties vigorously dispute whether the
drawings in the tech manual can be considered to be "as
built" drawings as that term is used among engineers, the
evidence shows clearly that these drawings were placed in the
manual to show Cambridge Plating what had actually been
built.
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Bredfield, a Napco employee, or Bob DeBisschop, Napco's
project manager on the Cambridge Plating job. John Eason,
Napco's Manager of Pollution Abatement and the person
principally responsible for the design of the system, also
testified that he knew the static mixer was not there,
although he claimed that the static mixer was installed at
first but later removed because it had a tendency to clog.
The system was installed in late 1984. For several
months after installation, the system generally met the
applicable pollution limits. A series of reports from a
testing laboratory that Cambridge Plating forwarded to the
Massachusetts Water Resources Authority ("MWRA") (the
relevant state regulatory body) showed that from roughly
March 1985 until September 1985, the system usually met the
applicable discharge limits.
As time went on, however, the system regularly
failed to meet the applicable pollution limits and Cambridge
Plating complained to Napco about the problems. Starting in
early 1986, Edward Marullo, a Cambridge Plating employee
responsible for running the system, called DeBisschop at
Napco to complain about the poor performance. DeBisschop
told Marullo to manipulate the polymer and pH levels. In
March 1986, Laurence Tosi, Cambridge Plating's President,
called DeBisschop "yelling and screaming" about the system's
failures. Tosi thought that Napco's equipment might be at
-7-
fault, but DeBisschop allayed his concerns, saying that
operator error was the likely cause of the problem. Based on
DeBisschop's assurances, Tosi took no further steps to have
the system inspected for defects. Again, in 1987, Marullo
called Eason at Napco, who, like his colleague DeBisschop,
told Marullo to manipulate the polymer flow and pH level. At
some point, Napco told Tosi that it would be willing to send
engineers to examine the system or to train further Cambridge
Plating's operators. But there was a price tag: Cambridge
Plating had to agree to pay $1000 per day for such service.
Tosi declined. At no time did Napco inform Cambridge Plating
that the static mixer was missing.
During this period, Cambridge Plating hired a
series of experts to determine what was wrong. In December
1986, it hired Patrick Hunt, a waste treatment operator for
Hewlett-Packard who was also an instructor of a licensing
course for wastewater treatment operators at the University
of Lowell. Hunt inspected the system, recognized
"insufficient floc formation" as a problem, and made numerous
suggestions, most of which related to operation. Hunt did
not discover that the static mixer was missing. In May 1987,
Robert Capaccio, also a wastewater treatment expert, visited
Cambridge Plating but failed to detect that the static mixer
was missing. A third group of experts from Memtek, which
designs and manufactures wastewater treatment systems,
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examined the system in September 1987 for the purpose of
proposing a course of action. They recommended a substantial
overhaul of the system at a cost that Cambridge Plating
considered prohibitive. During their review, they did not
notice that the static mixer was missing.
As Cambridge Plating was trying to identify and
solve the problems with the system, it was also becoming a
consistent violator of the MWRA's regulations. In December
1988 the MWRA fined Cambridge Plating $682,250 for
discharging excessive levels of contaminants. Cambridge
Plating challenged the fine, which was later reduced to
$128,500, but at a cost of approximately $54,000 in
attorneys' fees.
Cambridge Plating tried to manage the system's
deficiencies by rigging the system so that the wastewater
would be recirculated and retreated in the system. "Closed
looping," as this practice was called, gave more time for
flocculation to occur. It also slowed down production
considerably. When there was closed looping, the system had
to process both the retreated wastewater and the incoming
wastewater generated by production. From 1985 to February
1989, the closed looping was accomplished by attaching
flexible hoses to the system. In February 1989, Cambridge
Plating replaced the flexible hoses with hard piping to
create permanent closed looping. Cambridge Plating also shut
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down its zinc plating operation because, even with closed
looping, the system could not remove the contaminants from
that operation. Because of its slowdown in production
capacity, Cambridge Plating's business began to deteriorate.
Net sales declined from a high of approximately $6.2 million
in 1985 to approximately $4.8 million in 1989.
In February 1989 Cambridge Plating hired Peter
Moleux, another expert in wastewater treatment systems.
Moleux reviewed Napco's proposal and copies of the
engineering drawings. By chance, Moleux had been given a bad
photocopy of the drawings. The portion of the drawings that
depicted the static mixer did not appear on the photocopy.
He decided to look for the static mixer in the system. He
physically examined the system and inspected the area of the
system where the static mixer should have been. Because of
his expertise, he noticed that the piping looked different
than it should have if the static mixer had been installed.
He later confirmed that the static mixer had not been
installed. He told Cambridge Plating that the mixer was
missing.
Shortly thereafter, on March 17, 1989, Cambridge
Plating sent a letter to Napco enclosing a draft complaint
"concerning difficulties" Cambridge Plating had experienced
with Napco. The draft complaint mentioned the missing static
mixer and the letter requested an "amicable resolution."
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Napco ignored the letter, never agreeing to come to a meeting
to seek an amicable resolution nor agreeing to fix the
problem.
Despite Moleux's discovery, Cambridge Plating did
not order the static mixer until December 1989. It arrived
at the plant in January 1990 but was not installed until May
1990. Installation required the plant to be shut down for
one day. Once the static mixer was installed, the system's
performance improved dramatically, and Cambridge Plating was
able to discontinue, for the most part, closed looping. The
static mixer cost $620.
Cambridge Plating sued Napco on June 22, 1990
charging breach of contract (including willful repudiation of
warranty), intentional misrepresentation, negligent
misrepresentation and violation of Chapter 93A. Napco
subsequently moved for summary judgment. The district court
granted the motion, holding that Cambridge Plating's claims
were time-barred. This court reversed and remanded for
trial, see Cambridge Plating Co., Inc. v. Napco, Inc. ___ ______________________________ ____________
(Cambridge Plating I), 991 F.2d 21, 22 (1st Cir. 1993), ______________________
holding that a genuine issue of material fact existed as to
whether Cambridge Plating could benefit from the discovery
rule.
On remand, the case was tried to a jury in
September 1994. The district court submitted Fed. R. Civ. P.
-11-
49(b) special interrogatories to the jury on the statute of
limitations question, the three common law counts, and the
Chapter 93A count. The jury answered all of the
interrogatories in Cambridge Plating's favor, returned a
general verdict on each of the common law counts, and awarded
Cambridge Plating $12,183,120. The district court treated as
advisory the jury's answers to the Rule 49(b) interrogatories
on the Chapter 93A count, and, on February 7, 1995, the
district court issued findings of fact and conclusions of law
on the Chapter 93A count. See Cambridge Plating Co., Inc. v. ___ ___________________________
Napco, Inc. (Cambridge Plating II), 876 F. Supp. 326 (D. ____________________________________
Mass. 1995). In that opinion, the district court concluded
that the Chapter 93A count was timely, that Napco had
violated Chapter 93A, and that Cambridge Plating was entitled
to compensatory damages in the amount of $3,363,120.2 The
district court also concluded that the violation of Chapter
93A was "willful or knowing" and ordered a punitive award of
double damages.
Napco filed post-judgment motions for judgment as a
matter of law, a new trial, remittitur, and amended findings
on the Chapter 93A claim. After Cambridge Plating argued
that the post-judgment motions failed to set forth with
sufficient specificity the grounds for relief, the district
____________________
2. The district court also awarded attorneys' fees of
$345,000 pursuant to Mass. Gen. L. ch. 93A, 11.
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court struck all of the motions, except the motion for
remittitur. The district court then granted a remittitur in
the amount of $7,839,000 and gave Cambridge Plating the
option of accepting the remittitur, thereby accepting a
reduced damage award on the common law counts in the amount
of $4,344,120, or submitting to a new trial. See Cambridge ___ _________
Plating Co., Inc. v. Napco, Inc. (Cambridge Plating III), 890 _________________ ___________________________________
F. Supp. 55, 59 (D. Mass. 1995). Cambridge Plating accepted
the remittitur.
Napco now challenges the sufficiency of the
evidence, both as to liability and damages. Alternatively,
it seeks a new trial due to instructional error. It also
argues that the district court should have limited the
damages even more. We turn first to the question of our
scope of review.
II. Scope Of Review
The district court's decision to strike Napco's
post-judgment motions affects the scope of our review. Napco
challenges the sufficiency of the evidence to show willful or
intentional misconduct, seeking a judgment as a matter of law
or, in the alternative, a new trial on the "intentional"
counts: intentional misrepresentation, willful repudiation of
warranty and Chapter 93A. This court will not, however,
review sufficiency challenges absent a proper motion in the
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district court for judgment as a matter of law or a new
trial. See Johnson v. New York, New Haven & Hartford R.R. ___ _______ _____________________________________
Co., 344 U.S. 48, 54 (1952) (motion for j.n.o.v.); Pinkham v. ___ _______
Burgess, 933 F.2d 1066, 1070 (1st Cir. 1991) (motion for new _______
trial); cf. Hammond v. T.J. Litle & Co., Inc., Nos. 95-1690, ___ _______ ______________________
95-1913, slip op. at 10 (1st Cir. April 30, 1996) ("It is
beyond peradventure that in order to challenge the
sufficiency of the evidence on appeal, a party must first
have presented the claim to the district court, either by
moving for judgment as a matter of law before the case is
submitted to the jury and renewing that motion after the
verdict, Fed. R. Civ. P. 50(a), (b), or by moving for a new
trial pursuant to Fed. R. Civ. P. 59."). If the district
court acted properly in striking the motions, the motions are
nullities, and, under Johnson and Pinkham, Napco is barred _______ _______
from challenging the sufficiency of the evidence. We
believe, however, that the district court understandably but
improperly struck the post-judgment motions.
A. Procedural Background __ _____________________
The district court entered judgment on February 8,
1995. The next day, Napco moved for an extension of time for
filing its memoranda in support of its post-judgment motions,
stating:
Plaintiff has prevailed on four separate
and distinct legal claims. Therefore, in
order to obtain postjudgment relief,
Napco must challenge all four bases for
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the judgment. This will require Napco to
argue several substantial legal and
factual issues including, for example,
the recoverability of lost profits for
negligent misrepresentation, the
sufficiency of the evidence of
intentional misrepresentation and of
repudiation of warranty, the statute of
limitations (three-year and four-year),
as well as issues relating to Chapter 93A
and damages.
On February 14, the district court granted the motion, giving
Napco until March 1, 1995 to file the post-judgment
memoranda. On February 17, six days before the 10-day time
limit for filing post-judgment motions expired, Napco filed a
motion pursuant to Fed. R. Civ. P. 50(b) and 59. In summary
fashion, the motion outlined its subject matter and said the
grounds would be set forth in the March 1 memorandum to be
filed later in accord with the Court's extension.3 Also on
____________________
3. The text of the motion was:
Pursuant to Fed. R. Civ. P. 50(b) and 59,
the defendant, Napco, Inc., hereby:
(1) renews the motion for entry
of judgment as a matter of law
that it made at the close of
the plaintiff's evidence and
again at the close of all the
evidence;
(2) moves for a new trial on
the common law counts decided
by the jury; and
(3) moves for a remittitur or a
new trial on damages on the
common law counts decided by
the jury.
The grounds for this motion will be set
forth in Napco's Memorandum in Support of
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February 17, Napco filed a similar motion under Fed. R. Civ.
P. 52(b) and 59 seeking either to amend the district court's
findings of fact and conclusions of law or to have a new
trial on the Chapter 93A claim. This motion also said that
the grounds for the motion would be set forth in the March 1
memorandum.
On February 24, 1995, one day after the ten-day
period expired, Cambridge Plating moved to strike Napco's
post-judgment motions, arguing that they lacked sufficient
"particularity" under Fed. R. Civ. P. 7(b)(1) and that,
accordingly, no "motion" had been timely filed within the
ten-day period prescribed by Rules 50(b), 52(b) and 59. In
granting Cambridge Plating's motion, except on the remittitur
issue, the district court refused to take into consideration
Napco's extension motion or any of the other surrounding
circumstances.
B. Analysis __ ________
Rule 7(b)(1) requires that motions "state with
particularity the grounds therefor." Fed. R. Civ. P. 7(b)(1).
Napco's post-judgment motions are subject to the requirements
of Rule 7(b)(1). The particularity requirement, however, is
____________________
Motion for Judgment as a Matter of Law,
for a New Trial or for Remittitur, which
Napco will file on March 1, 1995 in
accordance with the Court's ruling on
Defendant's Motion for Additional Time to
File Memorandum.
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to be read flexibly in "recognition of the peculiar
circumstances of the case." Registration Control Sys., Inc. _______________________________
v. Compusystems, Inc., 922 F.2d 805, 808 (Fed. Cir. 1990). ___________________
This is because Rule 7 is designed "to afford notice of the
grounds and prayer of the motion to both the court and the
opposing party, providing that party with a meaningful
opportunity to respond and the court with enough information
to process the motion correctly." Id. at 807. When a motion ___
is challenged for lack of particularity the question is
"whether any party is prejudiced by a lack of particularity
or 'whether the court can comprehend the basis for the motion
and deal with it fairly.'" Id. at 807-08 (quoting 5 C. ___
Wright & A. Miller, Federal Practice & Procedure 1192, at _____________________________
42 (1990)).
While Napco's motion was at best sloppy practice,
we believe that it was sufficiently particular when read in
conjunction with the extension motion and prior filings.
Although the extension motion was not filed simultaneously
with the Rule 50(b), 59 and 52(b) motions, it was filed only
a week before, within the ten-day period, and was obviously
closely related to the Rule 50(b) motion. Compare Lac Du _______ _______
Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin, _______________________________________________ _________
957 F.2d 515, 517 (7th Cir.) (supporting memorandum filed
with insufficiently particular motion), cert. denied, 506 _____ ______
U.S. 829 (1992). The extension motion specified the bases of
-17-
the judgment that Napco "must challenge," including the
sufficiency of the evidence on the intentional
misrepresentation claim and the willful repudiation of
warranty claim, as well as issues relating to Chapter 93A and
damages. Napco thus represented to both the court and
Cambridge Plating the grounds for its post-judgment motions.
No claim is made that there was any intervening event that
would have made the representations in the extension motion
unreliable.
Cambridge Plating makes a passing argument in its
brief that it was unable to respond to, or the district court
to process, Napco's motions. If the Rule 50(b), 59 and 52(b)
motions are viewed in isolation, Cambridge Plating has a
point. But the motions cannot be viewed in isolation. In
addition to the closely filed extension motion, significant
briefing on the Chapter 93A issues had just been completed
and Napco had earlier made quite a detailed Rule 50(a)
motion, of which the Rule 50(b) motion was a "renewal." In
short, the record shows that Napco was taking steps
specifically to make evidentiary challenges to the verdict on
all of the major issues litigated at trial. The grounds
Napco would press in its post-judgment motions were
sufficiently known. The motions under Rules 50(b), 59 and
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52(b) were adequate, although barely, under the
circumstances.4
The district court premised its decision on the
belief that the law prevented it from looking beyond the four
corners of the motion to determine whether the motion had
stated its grounds with sufficient particularity. While
understandable, such a view of Rule 7(b)(1) is, in our view,
too narrow. "Overly technical" evaluations of particularity
are disfavored. Wright & Miller, supra, 1192, at 43. _____
Courts routinely take into consideration other closely filed
pleadings to determine whether sufficient notice of the
grounds for the motion are given and the opposing party has a
fair opportunity to respond. See Chippewa Indians, 957 F.2d ___ ________________
at 517 (motion failing to state grounds is sufficiently
particular where supporting memorandum adequately discusses
the grounds); Brown v. United States Postal Serv., 860 F.2d _____ ___________________________
884, 887 (9th Cir. 1988) (motion for reconsideration was
adequate under Rule 7 even though a particular ground was
____________________
4. As should be clear, the bar places its clients at risk
with this sort of practice and unnecessarily complicates the
litigation. Nevertheless, the circumstances involved in this
case are distinguishable from Riley v. Northwestern Bell _____ __________________
Telephone Company, 1 F.3d 725, 726-27 (8th Cir. 1993), and __________________
Martinez v. Trainor, 556 F.2d 818, 819-20 (7th Cir. 1977), ________ _______
the cases upon which Cambridge Plating principally relies.
In those cases the moving parties filed only bare-bones
motions within the specified time period. There were no
other closely related documents filed before the expiration
of the time period making it clear to the court and the
opposing party what the moving party would be arguing.
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omitted, where the parties had already briefed and argued the
issue and no prejudice would result); see also King v. ___ ____ ____
Mordowanec, 46 F.R.D. 474, 477 (D.R.I. 1969) (where grounds __________
for Rule 60(b) motion were stated at oral argument previous
day and were discussed after filing, during in-chambers
argument, motion did not run afoul of Rule 7(b)(1)
particularity requirement). Accordingly, we reach Napco's
various challenges to the sufficiency (and weight) of the
evidence.5
III. Liability
A. Statute Of Limitations __ ______________________
1. Sufficiency of the evidence. __ ___________________________
Napco first argues that none of the claims survive
the statute of limitations. Cambridge Plating filed suit on
June 22, 1990. A four-year statute of limitations governs
the Chapter 93A and breach of warranty claims. See Mass. ___
Gen. L. ch. 106, 2-725 (contract for sale of goods); Mass.
Gen. L. ch. 260, 5A (Chapter 93A). A three-year statute of
limitations governs the intentional and negligent
misrepresentation claims. See Mass. Gen. L. ch. 260, 2A. ___
____________________
5. Cambridge Plating has cross-appealed the district court's
decision not to strike the motion for remittitur. In light
of our decision that the district court erred in striking the
motions, we reject Cambridge Plating's argument that the
district court should also have struck Napco's request for a
remittitur.
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As established in Cambridge Plating I, 991 F.2d at 27, ____________________
Cambridge Plating must rely on the discovery rule to prove
its claims were timely filed. The discovery rule
"'prescribes as crucial the date when a plaintiff discovers,
or any earlier date when she should reasonably have
discovered, that she has been harmed or may have been harmed
by the defendant's conduct.'" Id. (quoting Bowen v. Eli ___ _____ ___
Lilly & Co., Inc., 557 N.E.2d 739, 740-41 (Mass. 1990)). The _________________
discovery rule here "turns on when the company should have
known that Napco might be responsible for the water treatment
system's failing performance." Cambridge Plating I, 991 F.2d ___________________
at 29. The question to be resolved at trial was whether
Cambridge Plating "knew or should have known of its claims
before June 22, 1987 [or June 22, 1986]." Id. Napco argues ___
that the evidence was insufficient for a jury to conclude
that Cambridge Plating should not have known of its claims
before the pertinent cut-off dates. We disagree.
The question of the timeliness of the breach of
warranty and Chapter 93A claims under the four-year statute
is, we believe, largely answered by the admirable description
of the evidence provided by the district court in light of
our previous opinion in Cambridge Plating I. The evidence at ___________________
trial showed that Cambridge Plating was aware that the system
was complex and that the performance warranty Napco provided
contained the implicit condition that the system be operated
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properly. At least at first, Cambridge Plating could
reasonably have believed that its own inexperience, rather
than Napco's defective equipment, was to blame.
Of course, at some point, when things were no
better, Cambridge Plating should have thought that something
other than operator error was causing the problem. And as
Napco points out, there was evidence that such a point came
for Cambridge Plating either in early 1986, when Marullo
complained to Debisschop about the system, or March 1986,
when Tosi "kept yelling and screaming" at Debisschop that the
problems were due to the equipment.
But the critical question is whether Cambridge
Plating reasonably relied on Napco's responses to those early
1986 inquiries that operator error, rather than equipment
defect, was the cause of the trouble. The fact that Tosi
complained vociferously that the equipment was at fault is
not dispositive if DeBisschop was reasonably able to convince
Tosi he was wrong. Napco had considerably superior
expertise in this area. The absence of the static mixer was
not something Cambridge Plating, with its level of expertise,
should have detected. We believe that under such
circumstances, when Napco gave Tosi its "assur[ances]" that
the problem had to be with the Cambridge Plating's operators,
Cambridge Plating reasonably took Napco at its word.
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The misrepresentation claims, governed by a three-
year statute, were also timely. Cambridge Plating did not
sit idle during the next twelve months. When Napco's
suggestions did not solve the problem, Cambridge Plating
hired Patrick Hunt, in late 1986, to evaluate the system. In
January 1987 Hunt gave Cambridge Plating his recommendations,
which suggested operational changes but not that the static
mixer was either missing or not working properly. If Hunt
were unqualified to examine the system, then Cambridge
Plating might have difficulty arguing that it was acting
reasonably. But Hunt was an expert in wastewater treatment
systems and competent to evaluate the system.
Was Hunt's failure to discover that the static
mixer was missing reasonable? See Cambridge Plating I, 991 ___ ____________________
F.2d at 29-30. We think the jury was entitled to think so.
First, the absence of the static mixer was not something that
could be easily detected from a physical observation of the
system. Indeed, other experts after Hunt who looked over the
system were also fooled. Second, Napco had supplied to
Cambridge Plating drawings representing that the static mixer
had been installed. According to Cambridge Plating, these
drawings were "as built" drawings. Napco disputes Cambridge
Plating's characterization of the drawings, pointing to
testimony that "as built" drawings, as the term is
technically used, were never prepared. Yet regardless of
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whether the drawings technically could be called "as built,"
Napco admitted supplying the drawings to Cambridge Plating in
the tech manual "[t]o show what was built."
Perhaps, given the problems with the system, the
accuracy of the drawings should have been called into
question at this time. The jury was entitled to think
otherwise. The system was extremely complex and the cause of
the malfunction could have been any number of problems,
including, as Napco points out, problems of design. The
factfinder could reasonably conclude on this record that the
probability the drawings were false was sufficiently low that
questioning the accuracy of the drawings would be low on
Cambridge Plating's (or Hunt's) diagnostic checklist. The
evidence was sufficient to support a finding that the claims
were timely. Nor was such a finding against the weight of
the evidence.
2. Special interrogatory. __ _____________________
Napco alternatively argues that a new trial should
be granted on the misrepresentation counts because the
special interrogatory submitted to the jury on this point was
defectively worded. Over Napco's objection, the court
submitted interrogatory 1(b), which asked: "Should plaintiff
Cambridge Plating reasonably have known before June 22, 1987 ____
of defendant Napco's failure to install the static mixer?"
(Emphasis in original.)
-24-
Review of this interrogatory is for abuse of
discretion. See Frank Briscoe Co., Inc. v. Clark County, 857 ___ _______________________ ____________
F.2d 606, 614 (9th Cir. 1988), cert. denied, 490 U.S. 1048 _____ ______
(1989). Abuse of discretion may be found if the
interrogatories are worded in such a way that they are likely
to mislead or confuse the jury or inaccurately state the
issues. Id. Although Napco's argument has some merit, the ___
district court did not abuse its discretion.
Cambridge Plating I stated that the appropriate ____________________
test for the discovery rule was whether Cambridge Plating
"should have known that Napco might be responsible for the
water treatment system's failing performance." Cambridge _________
Plating I, 991 F.2d at 29. Napco points out that the opinion _________
drew no specific distinction among the claims and argues that
it was improper to direct the jury's focus onto the failure
to discover the static mixer specifically.6 Napco also
relies on the passage from the opinion stating that "the
statute of limitations will begin to run once the plaintiff
has enough information to target the defendant as a suspect,
though not necessarily to identify the defendant as a
culprit." Id. at 29-30. Under Napco's reading, all claims - ___
- warranty, negligence and fraud -- would have the same
trigger date under the discovery rule: when Cambridge
____________________
6. Napco requested an interrogatory that asked whether
plaintiff "knew or should have known of its claims against
Napco before June 22, 1987."
-25-
Plating should have thought Napco might be responsible for
the problems with the system.
Cambridge Plating I did not say that. The opinion ___________________
does not address the question specifically of what
information is needed to "target the defendant as a suspect"
for a breach of contract as compared to that information
needed to "target the defendant as a suspect" for fraud. The
information needed to target the defendant as a suspect is,
in fact, different for each claim. Although Cambridge
Plating may have had reason to know that Napco might be in
breach of its warranty when the system did not perform up to
snuff and Cambridge Plating had ruled out operator error,
that does not mean that Cambridge Plating had reason to know
that Napco had deceived it. Cf. Childers Oil Co., Inc. v. ________ ___ _______________________
Exxon Corp., 960 F.2d 1265, 1275 (4th Cir. 1992) (Luttig, J., ___________
dissenting) ("[A]lthough appellants knew or should have known
when construction of the station began that Exxon had
breached its contract, appellants did not have reason to know
of the possibility of deception until they learned in 1988
that Exxon had always intended to build a competing
station.").
Under Massachusetts law, a cause of action for
deceit accrues when the plaintiff knew or should have known
of the misrepresentation. See Friedman v. Jablonski, 358 ___ ________ _________
N.E.2d 994, 997 (Mass. 1976) (cause of action for
-26-
misrepresentation in the sale of real estate accrues when the
plaintiff knew or reasonably should have known of the
misrepresentation); see also Tagliente v. Himmer, 949 F.2d 1, ___ ____ _________ ______
5 (1st Cir. 1991) ("The burden is on the plaintiff to prove
that in the exercise of reasonable diligence she could not
have known of the misrepresentation within the statute of
limitations.").7 In this case, the misrepresentation was in
the failure to disclose that the static mixer had not been
installed. Thus, under Massachusetts law, the cause of
action for misrepresentation did not accrue until Cambridge
Plating should have known that the static mixer had not been
installed. The special interrogatory was not erroneous.8
B. Intentional Misrepresentation __ _____________________________
Cambridge Plating had the burden of proving that
Napco had engaged in an intentional misrepresentation.
Cambridge Plating alleged in its complaint that Napco
fraudulently induced it to purchase the wastewater system by
falsely promising that the system would contain a static
____________________
7. Indeed, in accordance with that case law, Napco requested
an instruction stating that the pertinent issue was whether
"Cambridge Plating knew or should have known of the facts
giving rise to its misrepresentation claims more than three
years before it filed suit on June 22, 1990."
8. Cambridge Plating I was concerned with the question of ____________________
whether the plaintiff had acted reasonably diligently in
discovering the claim, rather than whether some theoretically
reasonable investigation would have discovered the claim.
Such a focus of inquiry does not require that distinctions be
drawn among the nature of the claims the plaintiff has
asserted.
-27-
mixer. At trial, however, the district court did not believe
that Cambridge Plating had presented sufficient evidence to
show such fraudulent inducement, and did not submit that
theory to the jury. The district court, nevertheless,
believed that Cambridge Plating had presented sufficient
evidence to show fraudulent nondisclosure9 and, accordingly,
charged the jury on that theory. The jury subsequently
found, as framed in the special interrogatories, that Napco
had "intentionally conceal[ed]" its failure to install the
static mixer "while aware of the System's failure to meet the
applicable discharge limits" and was thus liable for
intentional misrepresentation.
Napco raises two challenges to this verdict.
First, it argues that the evidence was insufficient to show
fraudulent nondisclosure. Second, it argues that, regardless
of the evidence, the intentional misrepresentation verdict
was tainted by a defective jury instruction. It requests
that either judgment be entered in its favor or a new trial
granted.
1. Sufficiency of the evidence. __ ___________________________
Napco argues that there was insufficient evidence
to support the jury's finding of fraudulent nondisclosure.
____________________
9. The parties have used the terms "wrongful nondisclosure"
and "intentional nondisclosure." We use the term fraudulent
nondisclosure simply to distinguish the theory from negligent
nondisclosure.
-28-
To set aside a jury verdict and enter a contrary verdict for
Napco, we must examine the evidence in the light most
favorable to Cambridge Plating, drawing all possible
inferences in its favor. See Havinga v. Crowley Towing and ___ _______ ___________________
Transp. Co., 24 F.3d 1480, 1483 (1st Cir. 1994). To set ____________
aside a verdict and remand for a new trial based on the
evidence, Napco must show that the verdict was against the
great weight of the evidence, viewed in the light most
favorable to Cambridge Plating, or would work a clear
miscarriage of justice. See id. at 1482-83. Napco cannot ___ ___
meet either standard.
Napco's sufficiency challenge largely rests on a
single proposition: that there was insufficient evidence
from which a jury could conclude that Napco knew or believed
that the static mixer was responsible for the problems with
the system.10 In Napco's words, "every piece of proof _____
bearing on the issue confirmed that Napco never believed the _____
static mixer was necessary, and in fact, believed the mixer
might impair system performance." (Emphasis in original.) ______
But there was such evidence: Napco designed the system to
include the static mixer. It knew that the mixer was
originally included in the system to create the proper mixing
of the polymer solution, without which flocculation would be
____________________
10. Napco also argues that the materiality of the static
mixer was not a fact susceptible of actual knowledge. That
argument is without merit.
-29-
hindered. This evidence, when combined with the evidence
that Napco knew the mixer had not been installed (so that the
omission was not mere oversight) and that it knew the system
was not working, adequately supports the conclusion that
Napco intentionally failed to tell Cambridge Plating that the
static mixer was missing, knowing it was responsible for the
system's problems.
Napco protests that it simply made a "good faith
(and, at worst, negligent) professional judgment that a mixer
was not material to the system." After all, it argues, what
did it have to gain from omitting a $620 part from the system
or from hiding a problem that could be inexpensively cured.
Napco relies on testimony from Triplett, Napco's
subcontractor, Aliota, Napco's expert, and Eason, Napco's
manager of pollution abatement. But Triplett's testimony and
Aliota's testimony do not much help Napco. Although both
Triplett and Aliota testified that the use of "elbows," or
pipe bends, could create the necessary turbulence in lieu of
the static mixer, Napco did not show that such "elbows" were
specifically designed into the system. More to the point,
Aliota, who was not a fact witness, did not testify as to
what the people at Napco were thinking in leaving out the
static mixer, and Triplett, at best, had only a "vague
recollection" of "some discussion that when the pumps came
-30-
on they hit the two -- they hit a 90 and a T, and that was
enough turbulence to mix with the polymer."
And, unfortunately for Napco, the jury could have
found Eason's testimony in a number of respects not to be
credible. His account of the events surrounding the decision
to omit the static mixer conflicted somewhat with that of
other Napco witnesses. Triplett testified that the mixer was
never installed, while Eason said it was installed but taken
out. Eason's testimony that the static mixer was omitted
because it was "minor" was damaged by his admission on cross-
examination that he could not find even one other component
depicted on the drawings that was "minor." Napco does not
point to other evidence presented to the jury (for example,
contemporaneous memos showing that Napco had made a judgment
that the mixer was irrelevant) that corroborates Eason's
testimony. In short, the "professional judgment" theory was
largely a credibility question. In light of the shaky
aspects of Eason's testimony, the jury was entitled to
conclude that Eason was not believable and that Triplett's
"vague recollection" was not enough to rebut the
circumstantial evidence (particularly the drawings) that
Napco knew the absence of the static mixer was the problem.
Napco properly makes the point that it "strains
credulity" to suppose that Napco would expose itself to such
drastic liability over a $620 part that took one day to
-31-
install. Why Napco would do so is something of a puzzle and
could raise questions about the reliability of the jury's
finding that Napco intentionally concealed the absence of the
mixer. But Napco's behavior is not wholly inexplicable. It
might be explained in terms of the theory of "agency costs":
the aberrant conduct occurred when Napco's interests in
avoiding exposure to drastic liability diverged from those of
its employees. Cf. AMPAT/Midwest, Inc. v. Illinois Tool ___ ___________________ ______________
Works, Inc., 896 F.2d 1035, 1043 (7th Cir. 1990) (Posner, J.) ___________
(seemingly irrational behavior on the part of a corporation
may be explained by the "divergence of objectives" between
the corporation and its employees). For example, the
designer Eason and the project manager DeBisschop may each
have wished to avoid individual blame for the defects in the
system.
Finally, Napco's current focus on plaintiff's proof
of scienter represents a shift from its defense at trial.11
____________________
11. At trial Napco's principal defense was that the system
worked fine, i.e. that there never was any breach of ____
warranty. Napco placed great reliance on discharge reports
sent to the MWRA from March 1985 to September 1985 (shortly
after the system was installed) indicating that the system
was meeting the discharge limits. The importance of these
reports was hotly contested. Cambridge Plating explained
away these reports by noting that the materials it plated
were often different, using different concentrations and
types of chemicals, and that the system could handle some
jobs but not others. Cambridge Plating also noted that its
closed looping masked the inadequacies of the system, but did
not solve them. The finding that the system did not perform
as warranted is not challenged on appeal.
-32-
Its defense to the misrepresentation count principally
focussed on whether the static mixer was in fact material to
the problem. Moreover, Napco's defense to the breach of
warranty claim, which rested in large part on the assertion
that it never had any idea that Cambridge Plating's system
was not meeting the effluent requirements, was in
considerable tension with any defense made on the
misrepresentation claims that, once it heard about the
problems, Napco made a judgment that the static mixer was
unimportant. Not surprisingly, then, there was little
specific testimony that Napco seriously considered Cambridge
Plating's complaints and then made a judgment that the static
mixer was the problem. Napco principally chose to take the
position at trial that it did not know there was a problem,
rather than that it thought there was a problem but the cause
was something else. Since there was competent evidence
showing that Eason and DeBisschop were contacted about the ____
problems with the system on numerous occasions, and that the
system worked after the static mixer was installed, Napco was _____
vulnerable on the intentional misrepresentation count.
Cambridge Plating needed to show intentional
misrepresentation only by a preponderance of the evidence.
See Compagnie De Reassurance D'Ile De France v. New England ___ _________________________________________ ___________
Reinsurance Corp., 57 F.3d 56, 72 (1st Cir.), cert. denied, __________________ _____ ______
116 S. Ct. 564 (1995). Under this standard, there was
-33-
sufficient evidence of fraudulent nondisclosure, and the
district court was entitled to submit the theory to the jury.
The verdict was also not against the weight of the evidence
and a new trial is not warranted.
2. Instructional error. __ ___________________
In its initial charge, the district court
instructed the jury that Napco's intentional
misrepresentation was in its "silence."12 It instructed
that "[t]he question to be decided here is whether . . .
[the] defendant willfully concealed from the plaintiff the
absence of the static mixer when it knew . . . that the
discharge limits were not being met and that the inclusion of
the static mixer would, at least to some extent, enable the
system to perform as it was intended." Following this
initial charge, plaintiff's counsel requested an instruction
specifying that materiality was to be measured against an
objective standard. In response,the court gave the following
supplemental instruction:
____________________
12. The charge was:
The fraud is in the silence, you see,
that characterizes the conduct of the
defendant; that is, their failure to tell
the plaintiff of the absence of this
static mixer while aware that the
discharge limits were not being met. You
see, that's when the duty arises. And
that's when the concealment, if
intentional, is what we call
"actionable," that is, a basis for a
lawsuit.
-34-
[I]n discussing the state of mind of the
defendant with regard to the importance
of the static mixer to the system . . .
the standard is objective. It's not what
the defendant did or did not subjectively
think about it. It's what would a
reasonable manufacturer or seller under
the same circumstances have thought about
it.
Napco argues that this instruction "conflated the torts of
intentional and negligent misrepresentation" and was
"manifestly erroneous."13 In Napco's view, it cannot be
held liable unless it actually knew the static mixer was
material.
The standard under which we review this argument
depends upon whether Napco properly preserved it. Cambridge
Plating protests that Napco has not preserved this argument
because it failed to lodge a proper objection before the jury
retired to consider its verdict. Under Fed. R. Civ. P. 51,
objections must "stat[e] distinctly the matter objected to
and the grounds of the objection." Fed. R. Civ. P. 51. An
objection based on one ground does not preserve appellate
review of a different ground. See Wells Real Estate, Inc. v. ___ _______________________
Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.), ______________________________
cert. denied, 488 U.S. 955 (1988). _____ ______
____________________
13. This point is important because lost profits are not
compensable for negligent misrepresentation under
Massachusetts law, see Section IV-D, and lost profits ___
represent the bulk of the damages in this case.
Additionally, Napco claims that this instruction tainted both
the willful breach of warranty verdict and the district
court's Chapter 93A decision.
-35-
Napco states that the instruction was given over
its "opposition." But Napco's objection to the charge only
identified three problems with the instruction, and not the
issue it now raises. Napco complained that (1) the complaint
did not fairly disclose the nondisclosure theory, (2) the
theory was not supported by the evidence, and (3) there was
no obligation on the part of the seller to disclose. Napco
did not object that the instruction was incorrect because it
failed to make clear that actual knowledge of materiality was
required for liability, nor did Napco object that the
instruction conflated negligent and intentional
misrepresentation. Thus, Napco failed to "state[]
distinctly" the argument it makes now, i.e., that the ____
instruction imposed an incorrect scienter requirement.
Napco urges that colloquies occurring days before
the charge satisfy Rule 51. Without considering whether such
colloquies may be used to determine compliance, the
colloquies Napco directs us to do not contain any specific
statement that Napco needed to have "actual knowledge" of the
static mixer's materiality to be liable. Napco's contention
that this lack of specificity should be excused because the
fraudulent nondisclosure theory was "novel" and came as a
"surprise" to counsel is contrary to what the record shows.14
____________________
14. Napco characterizes the nondisclosure theory as an
"eleventh-hour reformulation" which was "improvised literally
at the final hour -- at the end of the ninth day of trial and
-36-
In any event, Napco concedes that the district
court charged the jury correctly on the scienter element of _________
intentional misrepresentation during its initial charge. It
was only after plaintiff objected to the charge, suggesting
that the court make clear that materiality be viewed from an
objective point of view, that the court gave the supplemental
instruction. The supplemental instruction thus created a new ___
issue, independent of the supposed surprise over the
fraudulent nondisclosure theory. Despite this, Napco's only
objections to the supplemental charge related to the charging
of the fraudulent nondisclosure theory generally, not to the
new ambiguity the instruction created over the scienter
____________________
on the eve of closing arguments" to which counsel had no
"foreshadowing." But as early as the third day of trial the
court had asked counsel to research the question of
nondisclosure. The nondisclosure theory was foreshadowed on
the fifth day of trial where, in discussing the
misrepresentation count, the court stated that the
plaintiff's theory was that "upon learning of the absence of
the static mixer, it became defendant's duty to do two
things: first, to install it; and secondly, to tell the
plaintiff that it wasn't in." On the eighth day of trial,
which was a Friday, the district court asked counsel whether
"the lack of disclosure or the absence of the static mixer
[could] serve as a basis of a misrepresentation and fraud,"
and asked them to think about the issue over the weekend. On
the ninth day of trial, the court announced its view that a
fraudulent nondisclosure theory might be a basis for
liability. After having a chance overnight to consider the
objections it would lodge against the district court's
theory, Napco lodged basically the same objections it later
gave to the supplemental instruction. In light of this
record, we do not agree that Napco's failure to object should
be excused because the fraudulent nondisclosure theory was a
surprise.
-37-
requirement. On the question of scienter, Napco remained
silent.15
Absent a proper objection, review is for plain
error. On this record, the plain error hurdle is too high
for Napco to overcome. "Plain error [ ] is a rare species in
civil litigation." Gay v. P.K. Lindsay Co., Inc., 666 F.2d ___ ______________________
710, 712 n.1 (1st Cir. 1981), cert. denied, 456 U.S. 975 _____ ______
(1982); see also Clausen v. Sea-3, Inc., 21 F.3d 1181, 1196 ___ ____ _______ ___________
(1st Cir. 1994) ("[T]he plain error standard, high in any
event, . . . is near its zenith in the Rule 51 milieu."
(internal quotations omitted)). "[I]t applies only where the
error results in a clear miscarriage of justice or seriously
affects the fairness, integrity or public reputation of
judicial proceedings." Clausen, 21 F.3d at 1196 (internal _______
quotations omitted). Napco cannot show on this record that a
miscarriage of justice will result if the error is not
corrected. There was sufficient evidence adduced at trial to
conclude that Napco knew that the static mixer was the
problem with the system. Nor can Napco show that the error
seriously affects the integrity or impairs public confidence
____________________
15. Jerlyn Yacht Sales, Inc. v. Wayne R. Roman Yacht ___________________________ _______________________
Brokerage, 950 F.2d 60 (1st Cir. 1991), a case upon which _________
Napco places great reliance, is inapplicable. In Jerlyn ______
Yacht Sales there was at least some request that the court ____________ ____
include an instruction on the specific issue raised on
appeal. Id. at 64. There was no such request here. Despite ___
Napco's claims to the contrary, this is a garden variety
failure to object situation.
-38-
in the proceedings. Under the circumstances, the
supplemental instruction did not reach the "pinnacle of
fault" envisioned by the plain error standard. See id.16 ___ ___
C. Willful Breach Of Warranty __ __________________________
____________________
16. Because Napco cannot satisfy the discretionary elements
of the plain error standard, we need not decide whether the
instruction was "plainly" incorrect. Cf. United States v. ___ ______________
Olano, 507 U.S. 725, 734 (1993) ("Plain is synonymous with _____
clear or, equivalently, obvious"; the error must be "clear
under current law" (internal quotation marks omitted)).
Napco argues that Massachusetts law is clear that knowledge
of materiality is required. According to Napco, under
Massachusetts law, "[a]bsent a showing that the defendant
knew that his statement was false, and intended to induce ____ ________
reliance, the tort of intentional misrepresentation simply
does not lie." (Emphases in original.) Napco argues that
there must be an "intent to deceive" to be liable for fraud.
But Massachusetts fraud law does not require an "intent to
deceive." Snyder v. Sperry & Hutchinson Co., 333 N.E.2d 421, ______ _______________________
428 (Mass. 1975). Moreover, "knowledge of falsity" in the
sense that Napco urges -- that defendant actually know the
statement is false -- is also probably not required. This
court has said that "[n]othing is clearer than the fact that
under Massachusetts law, plaintiff need not prove that [the
defendant] knew his statement to be false." Nickerson v. _________
Matco Tools Corp., 813 F.2d 529, 530 (1st Cir. 1987) (citing __________________
Powell v. Rasmussen, 243 N.E.2d 167, 168 (Mass. 1969) ______ _________
(holding that knowledge or reckless disregard of falsity is
not required for an action of intentional misrepresentation;
it is enough if representation was false and susceptible of
actual knowledge)); see also VMark Software, Inc. v. EMC ___ ____ _____________________ ___
Corp., 642 N.E.2d 587, 593 n.9 (Mass. App. Ct. 1994) (same); _____
Zimmerman v. Kent, 575 N.E.2d 70, 74 (Mass. App. Ct. 1991) _________ ____
(same). The case upon which Napco principally relies, Danca _____
v. Taunton Savings Bank, 429 N.E.2d 1129, 1133 (Mass. 1982), _____________________
does list "knowledge of falsity" as an element. But this
does not help Napco. Either there is lack of clarity in the
Massachusetts case law, see In re Friedlander, 170 B.R. 472, ___ _________________
476-78 (Bankr. D. Mass. 1994) (noting the confusion), or
"knowledge of falsity" does not mean what Napco urges. See ___
Roadmaster Indus., Inc. v. Columbia Mfg. Co., Inc., 893 F. _______________________ ________________________
Supp. 1162, 1176 (D. Mass. 1995) ("knowledge of falsity"
under Danca does not require that defendant "actually knew _____
its statement was false").
-39-
Napco's warranty excludes liability for
consequential damages. By its terms, this damages limitation
provision bars Cambridge Plating from recovering
consequential damages and, under usual circumstances, would
be enforceable. See Mass. Gen. L. ch. 106, 2-719(3); ___
Deerskin Trading Post, Inc. v. Spencer Press, Inc., 495 _____________________________ ____________________
N.E.2d 303, 306 (Mass. 1986). Massachusetts law provides,
however, that the damages limitation provision is not
enforceable if Napco either willfully repudiated or was
willfully dilatory in performing its warranty obligations.
Cf. Canal Elec. Co. v. Westinghouse Elec. Corp., 548 N.E.2d ___ ________________ ________________________
182, 186 (Mass. 1990). The jury concluded that Napco
willfully repudiated or was dilatory in performing its
warranty obligations. Napco claims this finding was not
supported by the evidence and, in any event, was fatally
tainted by the district court's "state of mind" supplemental
instruction.
These arguments are worth only brief comment.
Napco concedes that evidence it knew the static mixer was to
blame "might well amount to 'willful repudiation.'" Since
Cambridge Plating adduced sufficient evidence of this fact,
the willful breach of warranty verdict stands.17 As for
____________________
17. Other evidence is also relevant to this count. For
example, once Cambridge Plating discovered that the static
mixer was missing, its attorney wrote to Napco's president,
Herbert Fishman, asking for "an amicable resolution" and a
"meeting" to "explore the prospects of such a resolution."
-40-
Napco's claim of instructional error, Napco's challenge
suffers the same fate as it did on the intentional
misrepresentation count: there was no objection and no plain
error.
D. Chapter 93A __ ___________
Upon making independent findings of fact following
the jury verdict, the district court held that Napco had
violated Chapter 93A and that punitive damages were
warranted. Napco challenges both aspects of the district
court's decision. Review of the district court's findings of
fact is for clear error, see Fed. R. Civ. P. 52(a); review of ___
its conclusions of law is de novo. Pullman-Standard v. __ ____ ________________
Swint, 456 U.S. 273, 287 (1982). _____
1. Chapter 93A liability. __ _____________________
____________________
Napco ignored the letter and a meeting was never held. Napco
disparages this evidence as a "red herring[]" saying that any
inference that Napco refused to meet "misreads" the testimony
Fishman gave about the letter and that, in any event, the
letter was turned over to lawyers and therefore sheds no
light on whether Napco willfully repudiated its warranty.
Fishman's testimony on this point, however, is hardly helpful
to Napco. Fishman testified that he personally ignored the
letter because it raised only a "minor" issue. By "minor" he
meant that there wasn't enough money involved to get his
attention. At the time, Fishman apparently had other
problems with a "dollar volume [that] was much greater than
what this was here" and "people were supposedly handling this
for [him]." Napco does not seriously dispute that, whatever
Fishman thought about the problem, his "people" did nothing.
Napco's awareness of the problem, its consideration of its
scope as "minor," and its failure to respond, support at
least to some degree an inference of willful repudiation.
-41-
Section 2 of Chapter 93A makes it unlawful to
engage in "unfair methods of competition and unfair or
deceptive acts or practices." Mass. Gen. L. ch. 93A, 2,
11 (section 11 makes section 2 applicable to businesses).
Perhaps by design, the dimensions of Chapter 93A liability
are difficult to discern with precision. Neither "unfair"
nor "deceptive" is specifically defined in the statute; nor
has the case law supplied precise definitions. There is a
rubric: "The objectionable conduct must attain a level of
rascality that would raise an eyebrow of someone inured to
the rough and tumble of the world of commerce." Levings v. _______
Forbes & Wallace, Inc., 396 N.E.2d 149, 153 (Mass. App. Ct. ______________________
1979); see also Quaker State Oil Refining Corp. v. Garrity ________ ________________________________ _______
Oil Co., Inc., 884 F.2d 1510, 1513 (1st Cir. 1989) (quoting _____________
Levings). But, as the Supreme Judicial Court has recently _______
observed, the rhetoric of "rascality" is "uninstructive."
Massachusetts Employers Ins. Exch. v. Propac-Mass, Inc., 648 __________________________________ _________________
N.E.2d 435, 438 (Mass. 1995).
Chapter 93A liability may exist if the defendant's
conduct falls "within at least the penumbra of some common-
law, statutory, or other established concept of unfairness"
or is "immoral, unethical, oppressive or unscrupulous." PMP ___
Assoc., Inc. v. Globe Newspaper Co., 321 N.E.2d 915, 917 _____________ ____________________
(Mass. 1975). Thus, proof of a common law tort, while not
necessary for liability, see Massachusetts Farm Bureau ___ ___________________________
-42-
Federation, Inc. v. Blue Cross of Massachusetts, Inc., 532 ________________ ___________________________________
N.E.2d 660, 664 (Mass. 1989) ("a violation of G.L. c. 93A,
11, need not be premised on a violation of an independent
common law or statutory duty"), may be sufficient. See ___
Anthony's Pier Four, Inc. v. HBC Assoc., 583 N.E.2d 806, 822 __________________________ __________
(Mass. 1991) (breach of implied contractual duty of good
faith and fair dealing gave rise to Chapter 93A liability);
VMark Software, Inc. v. EMC Corp., 642 N.E.2d 587, 594 (Mass. ____________________ _________
App. Ct. 1994) (intentional misrepresentation provided basis
for Chapter 93A liability).
Under this precedent, Napco's liability under
Chapter 93A follows almost as a matter of course. The
district court appropriately found that:
NAPCO, which knew throughout that the
static mixer was not installed, learned
that the system was not performing as
warranted and nevertheless 1) failed to
reveal knowledge within its possession
which would have stemmed the tide of
damages being caused by its own
misconduct and 2) misdirected plaintiff's
attention to operator error as the source
of the System's shortcomings.
Cambridge Plating II, 876 F. Supp. at 337. This finding, ____________________
which was not clearly erroneous, supports the conclusion that
Napco behaved both "deceptively" and "unfairly" under Chapter
93A.18
____________________
18. Because the Chapter 93A claim is predicated on conduct
amounting to an intentional misrepresentation and willful
breach of warranty, Napco's limitation of damages provision
does not bar consequential damages on this count. Cf. Canal ___ _____
-43-
Moreover, Napco's argument -- that Chapter 93A
liability is inappropriate because its decision to omit the
static mixer was simply a professional judgment -- misses the
mark. Even if at the time of installation Napco believed
that the probability was small that the static mixer would
make a difference to the system's performance, the
probability was large enough that it should not have been
ignored once Napco learned that Cambridge Plating was having
problems. Yet even after Cambridge Plating had complained
about the system's performance, Napco never seriously
reconsidered its professed judgment about the static mixer.
Napco also knew all along that it had provided Cambridge
Plating with inaccurate drawings. So Napco also knew that
Cambridge Plating would be handicapped in reaching its own
conclusion on the matter. Where Napco knew the system was
not performing as warranted, Napco was not free to ignore the
fact that Cambridge Plating might benefit from knowing that
the mixer had been omitted. Napco's silence became
sufficiently "unscrupulous" to fall within a "penumbra . . .
of [an] established concept of unfairness." PMP Assoc., 321 __________
N.E.2d at 917. We therefore affirm the district court's
judgment of liability for single damages under Chapter 93A.
2. Punitive damages. __ ________________
____________________
Elec., 548 N.E.2d at 186. _____
-44-
We part company with the district court on the
question of punitive damages. Punitive damages are awarded
only for "willful or knowing" violations of section 2 of
Chapter 93A. Mass. Gen. L. ch. 93A, 11 (providing for up
to three, but not less than two, times actual damages for
willful or knowing violations of section 2). Here, the
district court imposed double damages based on essentially
the same finding upon which it imposed substantive liability
under Chapter 93A: that Napco failed to disclose what it
knew about the static mixer while knowing that it was
material to the problem. See Cambridge Plating II, 876 F. ___ _____________________
Supp. at 346. At first blush, this conclusion may seem
sound, given the "willful or knowing" language of the
statute. Napco's conduct, which also amounts to intentional
misrepresentation (and willful breach of warranty), clearly
involves a certain level of deliberateness.
But shades of culpability are supposed to matter
in applying the punitive damages provision of the statute.
See Kansallis Fin. Ltd. v. Fern, 659 N.E.2d 731, 738 (Mass. ___ ___________________ ____
1996) ("[T]he Legislature envisaged multiple damage awards
against those defendants with a higher degree of culpability
than that sufficient to ground simple liability."); Heller v. ______
Silverbranch Constr. Corp., 382 N.E.2d 1065, 1070 (Mass. ___________________________
1978) (only "callous and intentional violations" merit
multiple damages); VMark Software, 642 N.E.2d at 596 (court ______________
-45-
refused to multiply damages in intentional misrepresentation
case stating that section 11 multiple damages are an
"extraordinary remedy" not applicable to a case of "dogged
bumbling"); cf. International Fidelity Ins. Co. v. Wilson, ___ ________________________________ ______
443 N.E.2d 1308, 1317 (Mass. 1983) ("The Massachusetts
legislature consciously enacted a rule whereby defendant's
[Chapter 93A] liability is measured by the degree of his
culpability.").
Liability under Chapter 93A for conduct amounting
to intentional misrepresentation (or breach of warranty like
that here) does not automatically trigger punitive damages.
There must be something more. See VMark Software, 642 N.E.2d ___ ______________
at 595 (liability for intentional misrepresentation supported
Chapter 93A liability, but misrepresentations were not "made
so 'knowingly' as to warrant the punitive sanctions of double
damages under Chapter 93A"); International Totalizing Sys., _______________________________
Inc. v. Pepsico, Inc., 560 N.E.2d 749, 757 (Mass. App. Ct. ____ _____________
1990) (defendant liable for "knowing" misrepresentation and
failure to disclose also violated Chapter 93A, but was not
liable for multiple damages because of the absence of
"willful or intentional conduct within the purview of
[Chapter 93A]" (internal quotation omitted)).
The district court appropriately recognized these
principles. See Cambridge Plating II, 876 F. Supp. at 346. ___ _____________________
It believed, however, that its findings supported the
-46-
conclusion that Napco's conduct was sufficiently egregious to
warrant a punitive sanction. We do not think so. If Napco's
conduct was fraud and a willful repudiation of warranty, it
was only marginally so. Napco had reason to believe that
operator error was the cause of Cambridge Plating's problems.
The system, after all, had worked for a period of time after
its installation. Indeed, Cambridge Plating itself took
nearly a year and a half to install the static mixer once it
found it was missing. Napco did not stand to profit by its
actions, and there was no evidence that Napco acted
maliciously towards Cambridge Plating or remained silent so
that it could watch Cambridge Plating go into distress.
Rather, as the district court noted, this was a case where
Napco simply ignored the problem hoping that it would somehow
resolve itself. Id.; cf. VMark Software, 642 N.E.2d at 596 ___ ___ ______________
("The inept blend of hopeful dissembling and dogged bumbling
displayed by VMark does not, however, reflect the culpable
state of mind required for imposition of 11's extraordinary
damage penalty." (internal quotation omitted)). This evidence
does not rise to the level of callousness or meretriciousness
that would justify multiple damages.19 See Wasserman v. ___ _________
____________________
19. That Napco raises a legitimate argument that it should
not be liable for multiple damages does not undercut the
finding of liability for intentional misconduct. The
considerations discussed above mitigate Napco's culpability;
they do not excuse Napco. See VMark Software, 642 N.E.2d at ___ ______________
596 (intentional misrepresentation "is surely market
disruptive to the same extent whether the promisor is
-47-
Agnastopoulos, 497 N.E.2d 19, 24-25 (Mass. App. Ct.) (setting _____________
aside award of multiple damages because facts as found by the
trial court did not rise to the "purposeful level of
culpability" contemplated by the statute), rev. den., 499 ____ ____
N.E.2d 298 (Mass. 1986).
IV. Damages
The district court awarded Cambridge Plating
$3,363,120 in compensatory damages for the Chapter 93A
violation. The district court then remitted the $12,183,120
jury award on the common law counts to $4,344,120, reasoning
that no rational jury could award more than $4,161,000 in
lost profits.20 See Cambridge Plating III, 890 F. Supp. at ___ _____________________
____________________
genuinely hopeful of fulfilling his contract, or is
deliberately deceptive and entirely disdainful of [its]
commitments."); accord AMPAT/Midwest, Inc. v. Illinois Tool ______ ___________________ _____________
Works, Inc., 896 F.2d 1035, 1044 (7th Cir. 1990) (punitive ____________
damages not awarded, but failure to disclose defects was
deemed to be fraud, even though the court indulged the
assumption that (1) there was some reason to believe that it
was the plaintiff's installation, rather than the defect,
that was responsible for the problem, and (2) the defendant
honestly believed that the plaintiff was to blame; "[e]ven
deep conviction of the rightness of one's cause does not
justify fraud").
20. The $183,120 difference between the amount of lost
profits awarded and the total damages awarded on the jury
counts represents the MWRA fine, the attorneys' fees
Cambridge Plating incurred in connection with the fine, and
the cost of the static mixer. Also, the district court's
lost profits award for the 93A count was $981,000 less than
the lost profits awarded after the remittitur of the jury
award because the court believed that the $981,000 in lost
profits was an amount over which fact finders might
reasonably differ. Cambridge Plating III, 890 F. Supp. at _____________________
-48-
59. Napco argues that the award of lost profits still
"exceeds any rational appraisal or estimate of the damages
that could be based upon the evidence." See Eastern Mountain ___ ________________
Platform Tennis, Inc. v. Sherwin-Williams Co., Inc., 40 F.3d _____________________ __________________________
492, 502 (1st Cir. 1994), cert. denied, 115 S. Ct. 2247 _____ ______
(1995). Napco argues that the entire award of lost profits
should be set aside or be further remitted to reflect (1)
Cambridge Plating's failure to mitigate damages and (2)
Cambridge Plating's failure to account for selling, general
and administrative ("SG&A") expenses associated with the lost
profits. Napco separately argues that the award of lost
profits for the negligent misrepresentation count must be set
aside because such damages are not cognizable under
Massachusetts law.
A. Sufficiency Of The Evidence On Lost Profits __ ___________________________________________
Cambridge Plating had the burden of providing a
reasonably certain basis to believe that Napco's wrongful
conduct caused the loss of anticipated profits, cf. Augat, ___ ______
Inc. v. Aegis, Inc. (Augat I), 565 N.E.2d 415, 421 (Mass. ____ _______________________
1991) (plaintiff must prove losses would not have occurred
but for the wrongful conduct), and proving with sufficient
certainty the amount of those anticipated profits. "The
nature of the business or venture upon which the anticipated
profits are claimed must be such as to support an inference
____________________
59.
-49-
of definite profits grounded upon a reasonably sure basis of
facts." Augat, Inc. v. Aegis, Inc. (Augat II), 631 N.E.2d ___________ _______________________
995, 998 (Mass. 1994) (internal quotations omitted). Because
every calculation of lost profits has some element of
uncertainty, a plaintiff need not calculate lost profits with
"mathematical exactness." Id. But they cannot be "remote, ___
speculative [or] hypothetical." Id. Napco argues that ___
Cambridge Plating failed to establish the critical connection
between the defective wastewater treatment system and
Cambridge Plating's inability to do plating work. On this
point Napco is wrong.
Cambridge Plating provided evidence of causation
principally through three witnesses -- Mssrs. Tosi, Moleux
and Joseph Finn, Cambridge Plating's damages expert. Tosi
testified that, in the plating business, customers insist on
quick turn-around time. He also testified that because the
wastewater treatment system was not working properly
Cambridge Plating had to employ closed looping, which slowed
down the amount of wastewater fed through the system,
consequently slowing down the plating process. Moleux
confirmed that closed looping "required Cambridge Plating to
either partially or totally shut down." Additionally, Tosi
testified that the zinc plating operation closed because the
system was unable to remove sufficiently the contaminants.
-50-
Further, Debisschop directly linked the wastewater treatment
system to a plating operation's profitability.
Finally, Finn testified that until 1985, the first
full year the wastewater treatment system was operational,
Cambridge Plating had generally experienced an increase in
sales. He also testified that for the years following the
installation of the system, Cambridge Plating's revenues
decreased from approximately $6.2 million in 1985 to $4.8
million in 1989, and net income declined from approximately
$284,000 in 1985 to a net loss of approximately $131,000 in
1989. During this time period, the plating industry as a
whole averaged modest growth.
Cambridge Plating provided a simple before-and-
after financial picture of an established company. It also
provided testimony from people expert in plating and in
wastewater treatment that the difference in profits was due
to a slowdown in production and failure to meet effluent
limitations, both of which could be traced back to the
malfunctioning wastewater treatment system. Napco chose not
to present an expert of its own to break the connection
between the financial decline and the malfunctioning system.
Instead, Napco was content to try to poke holes in Cambridge
Plating's damages testimony. "This [was] a risky strategy,
and it failed." AMPAT/Midwest, 896 F.2d at 1046 (internal _____________
-51-
citation omitted). There was sufficient evidence of
causation to support an award of lost profits.
B. Mitigation __ __________
"The general principle is well settled that a party
cannot recover for harms that its own reasonable precautions
would have avoided." Knapp Shoes, Inc. v. Sylvania Shoe Mfg. _________________ __________________
Corp., 72 F.3d 190, 204-05 (1st Cir. 1995), petition for _____ ________ ___
cert. filed, 64 U.S.L.W. 3709 (U.S. April 11, 1996) (No. 95- _____ _____
1650). Cambridge Plating did not install the static mixer
until 15 months after it knew in February 1989 that the mixer
was missing. Installation took one day. This was an
inexcusable failure to mitigate damages.
The district court recognized that Cambridge
Plating had failed to mitigate its damages. See Cambridge ___ _________
Plating II, 876 F. Supp. at 345 ("Once Moleux informed ___________
Cambridge Plating that the System was missing a vital part .
. . . [t]he obvious next step was to buy and install a mixer
immediately."). Nevertheless, in its Chapter 93A decision,
the district court awarded damages for both 1990 and 1991 and
then discounted them. It also did not adjust the jury award
in its remittitur to take account of this failure to
mitigate. We agree with Napco that both the Chapter 93A and
the remittitur rulings were in error.
Cambridge Plating argues that it should be absolved
for its failure to mitigate after February 1989 because there
-52-
would have, in any event, been recovery time. The recovery
time, it says, was needed in order to offset the damage
resulting from its new reputation as a polluter, and to get
word out to customers that it could fill their needs while
complying with the environmental regulations. This is a
plausible theory. But Cambridge Plating did not provide the
type or quantity of proof that Massachusetts law requires to
support damages for this "reputational" injury sufficient to
overcome its failure to mitigate.
Cambridge Plating points to no evidence from
customers that it would not have been able to recover
business because of its reputation as a polluter. The one
customer who testified, Alfred Jacques of General Electric,
did not support Cambridge Plating's reputational injury
theory. The evidence Cambridge Plating relies upon -- a
statement from DeBisschop agreeing that companies "tend" to
lose business when they are found to be polluters, Tosi's
testimony that Cambridge Plating became "known as a
polluter," and an advertisement from Cambridge Plating
touting its system -- provides scant support for the
proposition that there was any reputational harm. This
evidence of reputational injury is also in tension with
Finn's testimony that if Cambridge Plating had a working
wastewater treatment system, it could have replaced its
business "almost immediately." Even Cambridge Plating states
-53-
in its brief that "demand for plating and metal finishing
services such as those provided by Cambridge Plating was
strong throughout the late 1980s and to the time of
trial."21
On this record, Cambridge Plating's theory of
reputational injury is, to say the least, "speculative."
Augat II, 631 N.E.2d at 998. Cambridge Plating can find no ________
comfort in the case law that allows for some uncertainty in
proving damages in tort cases. See, e.g., Computer Sys. ___ ____ ______________
Eng., Inc. v. Qantel Corp., 740 F.2d 59, 67 (1st Cir. 1984). __________ ____________
Those cases reason that some uncertainty is allowed because
it has been created by the defendant's wrongful conduct. Id. ___
Here, however, the uncertainty for the period following
February 1989 was largely caused by Cambridge Plating's own
wrongful conduct in failing to mitigate.
Still, Napco has conceded that the period through
November 1989, or nine months after Cambridge Plating should
have installed the static mixer, is a reasonable recovery
period. In the absence of evidence showing Cambridge Plating
mitigated its damages, the outer limit for such damages on
the record before the trial court was November 1989. Cf. ___
____________________
21. Although Cambridge notes that its sales continued to
decline after May 1990, the booming economic times had come
to an end by then. Indeed, the declining sales following the
installation of the static mixer might even suggest that the
missing static mixer had nothing to do with Cambridge
Plating's financial problems.
-54-
Augat II, 631 N.E.2d at 1000 (reducing period of lost profits ________
to six months).
We also believe that both the Chapter 93A damages
and the remittitur should equally take account of Cambridge
Plating's failure to mitigate. We therefore vacate the
district court's award of Chapter 93A damages and remand to
eliminate all damages occurring after November 1989; we also
vacate the order of remittitur and remand with directions
that the district court grant a further remittitur to
eliminate damages occurring after November 1989. See 28 ___
U.S.C. 2106 (appellate court may vacate any judgment and
remand to require such further proceedings as may be just);
Anthony v. G.M.D. Airline Servs., Inc., 17 F.3d 490, 495 (1st _______ ___________________________
Cir. 1994) (remanding with directions to district court to
grant a remittitur).22 Of course, plaintiff has the option
to seek a new trial on damages in lieu of the remittitur.
C. SG&A Expenses __ _____________
Cambridge Plating had to prove lost profits in
terms of net profits, not gross profits. Jet Spray Cooler, __________________
Inc. v. Crampton, 385 N.E.2d 1349, 1359 n.15 (Mass. 1979). ____ ________
Generally, this requires that gross profits be adjusted for
SG&A expenses. In this case, however, Cambridge Plating
____________________
22. Because we believe both the district court damages award
and the jury award must be adjusted in the same manner, we
need not address Napco's argument that the district court
erred in allowing damages on the jury award that exceeded the
damages under Chapter 93A.
-55-
argued that SG&A expenses would not have increased as its
sales increased and thus the anticipated gross profits should
not be reduced by SG&A expenses. The district court accepted
Cambridge Plating's argument, as do we.
Cambridge Plating relies on the testimony of Finn
that "lost gross profit for Cambridge Plating is the exact
same number as the lost net profit for the years in
question." Although, as Napco points out, the consolidated
financial statements from 1980 to 1985 show a general
increase in both sales and SG&A expenses, Finn testified that
SG&A expenses increased only 10%-11% as sales increased 30%
for the period 1982 to 1984. Moreover, in 1984, SG&A
expenses decreased slightly as sales increased. From this
evidence, Finn believed that there was "no dependent
relationship between S G and A and sales" and that SG&A
expenses would not have necessarily increased as gross
profits increased. Although these inferences from the
evidence are weak, they are sufficiently plausible to survive
Napco's challenge on appeal.
D. Negligent Misrepresentation __ ___________________________
Lost profits of $4,161,000 were awarded on the
negligent misrepresentation count. This was error.
Massachusetts law does not allow "benefit of the bargain"
damages for negligent misrepresentation. Danca v. Taunton _____ _______
Sav. Bank, 429 N.E.2d 1129, 1134 (Mass. 1982). Lost profits, _________
-56-
which are a species of benefit of the bargain damages, are
therefore prohibited. See also Redstone v. Goldman, Sachs & ___ ____ ________ _________________
Co., 583 F. Supp. 74, 76-77 (D. Mass. 1984) (lost profits not ___
available for negligent misrepresentation). The award of
lost profits on the negligent misrepresentation count is
reversed.
V. Conclusion
For the foregoing reasons, we affirm on liability
(save for 93A multiple damages), but vacate and remand the
Chapter 93A single and multiple damages award and the
remittitur for further proceedings consistent with this
opinion. Parties to bear their own costs. It is so ordered. ________________
-57-
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Knapp Shoes, Inc. v. Sylvania Shoe Manufacturing Corp. , 72 F.3d 190 ( 1995 )
Anthony v. G.M.D. Airline Services, Inc. , 17 F.3d 490 ( 1994 )
Jerlyn Yacht Sales, Inc., and Oklahoma Offset, Inc. v. ... , 950 F.2d 60 ( 1991 )
Lawrence Nickerson v. Matco Tools Corporation, a Division ... , 813 F.2d 529 ( 1987 )
Teresa Tagliente, Trustee of the Tagliente Family Trust v. ... , 949 F.2d 1 ( 1991 )
Ampat/midwest, Inc., Cross-Appellee v. Illinois Tool Works ... , 896 F.2d 1035 ( 1990 )
Quaker State Oil Refining Corporation v. Garrity Oil ... , 884 F.2d 1510 ( 1989 )
Berend J.D. Havinga v. Crowley Towing and Transportation ... , 24 F.3d 1480 ( 1994 )
Cambridge Plating Co., Inc. v. Napco, Inc. , 991 F.2d 21 ( 1993 )
Kay Pinkham v. John A. Burgess, Kay I. Pinkham v. John A. ... , 933 F.2d 1066 ( 1991 )
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Registration Control Systems, Inc. v. Compusystems, Inc. , 922 F.2d 805 ( 1990 )
Dixie Lee Riley v. Northwestern Bell Telephone Company, ... , 1 F.3d 725 ( 1993 )
rosa-guardiola-martinez-on-behalf-of-herself-and-her-minor-child-melissa , 556 F.2d 818 ( 1977 )
Cambridge Plating Co., Inc. v. Napco, Inc. , 876 F. Supp. 326 ( 1995 )