USCA1 Opinion
United States Court of Appeals
For the First Circuit
____________________
No. 95-1920
AIR SAFETY, INC.,
A/K/A AIR SAFETY ENGINEERING,
Plaintiff, Appellant,
v.
ROMAN CATHOLIC ARCHBISHOP OF BOSTON, A CORPORATION SOLE
AND CHRISTIAN BROTHERS INSTITUTE OF MASSACHUSETTS, INC.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
___________________
____________________
Before
Stahl, Circuit Judge,
_____________
Coffin, Senior Circuit Judge,
____________________
and Cummings,* Circuit Judge.
_____________
____________________
William M. Simmons with whom Nancy G. O'Donnell was on brief
__________________ __________________
for appellant.
Francis J. O'Connor with whom Wilson D. Rogers, Jr., was on
___________________ _____________________
brief for appellee Roman Catholic Archbishop of Boston.
Regina Williams Tate with whom William J. Egan was on brief
____________________ _______________
for appellee Christian Brothers Institute of Massachusetts, Inc.
____________________
August 21, 1996
____________________
____________________
*Of the Seventh Circuit, sitting by designation.
COFFIN, Senior Circuit Judge. Appellant Air Safety, Inc.
_____________________
filed this diversity suit seeking payments allegedly due for
asbestos removal at six Boston area parochial schools. The
defendants, the Roman Catholic Archbishop of Boston ("RCAB") and
the Christian Brothers Institute of Massachusetts, Inc. ("the
Institute"), filed counterclaims alleging damages arising from
Air Safety's work.1 The bottom line after a series of rulings by
the court and the jury was a net award in favor of each
defendant. Air Safety asserts two claims on appeal: (1) the
district court abused its discretion in refusing to hold a
partial new trial on negligence damages, which Air Safety
contends were excessive and unsupported by the record; and (2)
the district court erred in excluding crucial exhibits showing
Air Safety's overhead costs, requiring a partial new trial on its
___
damages against the RCAB and the Institute. We find no
reversible error in the court's evidentiary ruling, but vacate
and remand for a new trial on the negligence damages unless
defendants accept a proposed remittitur.
I. Factual Background
__________________
This case originated in Air Safety's successful bid to
remove asbestos at six schools owned by the defendants. The work
began in the summer of 1988. Conflicts arose over various
aspects of the project, including the quality of Air Safety's
performance and the defendants' obligations to pay for completed
____________________
1 RCAB is the owner of five of the schools. The Institute
owns the sixth, Catholic Memorial High School.
-2-
work. Air Safety filed suit to obtain payment, asserting claims
for breach of contract, for payments on an "account stated,"2
and, as alternative relief, for quantum meruit. The RCAB and the
Institute filed counterclaims for breach of contract and
negligence.3
During the course of pre-trial proceedings, the district
court allowed Air Safety's account stated claim in the amount of
$328,738 for the five schools owned by the RCAB, but stayed
enforcement of the judgment until all other claims were
resolved.4 Following a twelve-day trial, the jury found that
neither the RCAB nor the Institute had breached their contracts,
but that Air Safety had done so. It found, however, that no
breach of contract damages had been suffered by either defendant.
The jury also determined that Air Safety was responsible for
____________________
2 An "account stated" claim is one based on an
acknowledgement of an existing liability for a specified amount,
from which the law implies a promise to pay. Rizkalla v.
________
Abusamra, 187 N.E. 602, 603 (Mass. 1933).
________
3 Other causes of action not of significance here were
dismissed.
4 Two aspects of the account stated portion of the case need
clarification. First, the proceeding affected only the RCAB and
its five schools because the Institute had not yet been made a
party; Air Safety did not realize at the outset of the litigation
that the sixth school, Catholic Memorial High School, was owned
by a separate entity. It subsequently filed a First Amended and
Supplemental Complaint adding the Institute as a defendant.
Second, the account stated award was reduced after trial,
based on amounts paid by the RCAB, to $62,249.97.
-3-
negligence damages, but that it was entitled to quantum meruit
relief. The net result was awards in favor of both defendants.5
Air Safety filed a motion for new trial on the negligence
damages, claiming that the amounts awarded were not supported by
the evidence. After briefing and oral argument, the district
court denied the motion in a margin order. This appeal followed.
II. Negligence Damages
__________________
Air Safety contends that the jury's negligence awards far
exceed the record evidence of damage. It maintains that the RCAB
established only $21,672 in damages, while the jury awarded
$235,000. It further claims that the Institute's proven damages
totaled only $85,894, compared with a jury award of $138,000.
The district court rejected Air Safety's request through a motion
for new trial to revisit the issue of negligence damages, and Air
Safety now urges us to find that that ruling was erroneous.
Our review is narrow. A district court's denial of a motion
for new trial may be reversed only for an abuse of discretion.
Ahern v. Scholz, 85 F.3d 774, 780 (1st Cir. 1996). "`In a
_____ ______
challenge to a jury award, [the appellate court] is limited to
____________________
5 The judgment specified the following amounts, plus
interest:
(a) quantum meruit from the RCAB to Air Safety: $87,000;
(b) quantum meruit from the Institute to Air Safety: $63,100;
(c) account stated from the RCAB to Air Safety: $62,249.97;
(cont'd)
(cont'd from page 3)
(c) negligence damages to the RCAB from Air Safety: $235,500;
(d) negligence damages to the Institute from Air Safety:
$138,100.
-4-
examining whether evidence in the record supports the verdict.
If the jury award has a rational basis in evidence, we must
affirm it.'" Nydam v. Lennerton, 948 F.2d 808, 810-11 (1st Cir.
_____ _________
1991) (quoting O'Brien v. Papa Gino's of America, Inc., 780 F.2d
_______ ____________________________
1067, 1076 (1st Cir. 1986)). Under Massachusetts law,
uncertainty as to the amount of damages does not bar their
recovery, see Stuart v. Town of Brookline, 587 N.E.2d 1384, 1387
___ ______ _________________
(Mass. 1992), but a plaintiff "`must establish [its] claim upon a
solid foundation in fact, and cannot recover when any essential
element is left to conjecture, surmise or hypothesis,'" Snelling
________
& Snelling of Massachusetts, Inc. v. Wall, 189 N.E.2d 231, 232
__________________________________ ____
(Mass. 1963) (quoting John Hetherington & Sons, Ltd. v. William
_______________________________ _______
Firth Co., 95 N.E. 961, 964 (Mass. 1911)). See also Hendricks &
_________ ___ ____ ___________
Assocs., Inc. v. Daewoo Corp., 923 F.2d 209, 217 (1st Cir. 1991);
_____________ ____________
Puritan Medical Ctr., Inc. v. Cashman, 596 N.E.2d 1004, 1013
___________________________ _______
(Mass. 1992).
Despite the confines of our inquiry, our examination of the
trial transcript requires us to conclude that the negligence
awards cannot stand. The evidence in the record fails to
substantiate the amounts imposed; even a generous reading of the
testimony supports only a small portion of the damages beyond
those conceded by Air Safety on appeal. We discuss separately
the results of our study with respect to each defendant.
The RCAB. Air Safety contends that the record supports only
________
$21,672 in damages for the cost of a temporary boiler at St.
Theresa's school. The jury awarded $235,000. Our search
-5-
revealed three additional items that the jury could have
attributed to Air Safety's negligence: extra clean-up work by
custodians at St. Theresa's for which Rev. Helmick testified that
he "paid a lot;" damage to a clock and bell system; and $7,400
for painting at St. William's school. No amounts for either the
custodial time or the clock repair were presented to the jury,
although the district court reported in a June 20, 1990 Order on
the parties' summary judgment motions that those items were
alleged to cost $4,377 and $272.50, respectively.
We think it within reason for the jury to choose to
compensate the RCAB for these asserted harms, despite the lack of
testimony on specific dollar amounts.6 This is not the sort of
conjecture barred by Massachusetts law in calculating damages,
but simply a matter of imprecision with respect to the amount for
a specifically identified harm. The gap challenged by Air
Safety, however, is far greater than any reasonable figure
attributable to these additional harms. We think an appropriate
recovery for them would be the amounts previously identified by
the RCAB, totaling $12,049.50.
The RCAB points to one additional expense that the jury may
have attributed to Air Safety: the $57,971.80 difference between
the contract price for Mission High School and the combined
____________________
6 The record arguably is ambiguous as to whether Air Safety
did the necessary painting at St. William's. On cross-
examination, Air Safety's witness, John Murphy, acknowledged that
it was his company's responsibility to paint areas damaged by the
asbestos removal process, but was unsure whether the work had
been done. He testified: "I would have to look back. I thought
we painted the floor."
-6-
amount of Air Safety's account stated claim for Mission and the
amount paid to a new contractor to complete the work left
unfinished by Air Safety. In other words, the RCAB contends that
the record showed that it paid nearly $58,000 more for asbestos
removal at Mission High School than the Air Safety contract
price.
We have two problems with this contention. First, this
differential amount between the original contract price and the
amount actually expended to get the job done is classically
breach of contract damages. The jury, however, awarded no
damages for the breach.7
Second, and more significantly, there was no testimony or
argument at trial concerning the $58,000. In closing, the RCAB's
attorney pointed out (consistent with Rev. Ryan's testimony) that
it cost $105,000 to complete the contract work left unfinished by
Air Safety; he did not assert, however, that that amount
represented higher charges for work Air Safety had contracted to
perform for less. Although the original contract amount and Air
Safety's account stated claim both were contained in trial
exhibits, there was no basis for the jurors to have made the
calculation now offered by the RCAB to undergird its award
without the crucial $58,000 figure having been explained to them.
____________________
7 We recognize that the district court explicitly told the
jurors that they may award damages "only once for each harm," and
that the jury, for convenience, might have decided to classify
all damages under the negligence rubric.
-7-
We think it likely that the huge discrepancy between the
damages actually proven and the amount awarded stems from the
jury's effort to compensate the RCAB and the parents and students
attending the five affected schools for the trouble caused by Air
Safety's negligent work. Beyond the fact that the RCAB has no
claim to damages for discomfort suffered by others is the fact
that this case involves property damage, not personal injury.
See generally Guaranty-First Trust Co. v. Textron, 622 N.E.2d
___ _________ _________________________ _______
597, 599 (Mass. 1993) (under common law, if injury to property is
reasonably curable by repairs, the expense of repairs, if less
than diminished market value, is the measure of recovery);
Michael B. Bogdanow, Massachusetts Tort Damages 9.03 (1995).
___________________________
It goes without saying that a breach of contract or the negligent
performance of a contractual obligation will impose burdens on
the wronged party, but compensation is limited to making that
party whole.8
Moreover, even if harm in the nature of pain and suffering
were compensable in this context, such damages would be rank
speculation here. No testimony was presented of specific
intangible injuries to the RCAB or its officials as a result of
Air Safety's conduct. The general reference in counsel's closing
argument to "frustration," "aggravation," and "inconvenience" --
byproducts of any tort or breach of contract -- is far from the
____________________
8 Although loss-of-use damages are recoverable, the RCAB
made no showing of such losses.
-8-
"solid foundation in fact," Snelling & Snelling, 189 N.E.2d at
____________________
232, necessary to support an award of damages.9
We therefore conclude that, unless the RCAB agrees to a
remittitur of $201,278.50 -- reducing its negligence damages to
$33,721.50 -- Air Safety is entitled to a partial new trial. See
___
Anthony, 17 F.3d at 495 (appellate court has the option of
_______
selecting a reduced damages figure or remanding to district court
to determine damages).
The Institute. Air Safety acknowledges that the record
______________
supports an award of $85,894 in damages for a number of specific
____________________
9 It is worth noting that most of the cases cited by the
RCAB and the Institute highlighting the extremely deferential
standard for reviewing damage awards involve awards for
intangible injuries, a matter "`peculiarly within a jury's ken,'"
Velazquez v. Figueroa-Gomez, 996 F.2d 425, 428 (1st Cir. 1993)
_________ ______________
(quoting Wagenmann v. Adams, 829 F.2d 196, 215 (1st Cir. 1987)).
_________ _____
See, e.g., Anthony v. G.M.D. Airline Servs., Inc., 17 F.3d 490,
___ ____ _______ ___________________________
494 (1st Cir. 1994) (remand for remittitur; pain and suffering
damages excessive); De Leon Lopez v. Corporacion Insular de
_____________ ______________________
Seguros, 931 F.2d 116, 125 (1st Cir. 1991) (damages to
_______
grandfather stemming from switch of twins by hospital); Brown v.
_____
Freedman Baking Co., 810 F.2d 6, 11 (1st Cir. 1987) (review of
___________________
damages for civil rights violation). In such cases,
[w]e accord broad discretion to the trial court's
decision to affirm the jury's award of damages because
of [the] court's greater familiarity with local
community standards and with the witnesses' demeanor at
the trial.
Nydam v. Lennerton, 948 F.2d 808, 810 (1st Cir. 1991) (citations
_____ _________
omitted) (suit involving, inter alia, police misconduct and false
_____ ____
arrest). Although we do not lightly reverse an award for
economic loss, the inquiry in such a case is much more closely
focused on whether there is adequate evidentiary support for the
amount awarded. See Havinga v. Crowley Towing and Transp. Co.,
___ _______ ______________________________
24 F.3d 1480, 1489 (1st Cir. 1994); Redgrave v. Boston Symphony
________ _______________
Orchestra, Inc., 855 F.2d 888, 896 (1st Cir. 1988).
_______________
-9-
problems at Catholic Memorial High School,10 but contends that no
other figures were provided to explain the additional $52,106
awarded by the jury. Our review turned up three additional items
for which the jury properly could have awarded compensation:
replacing gymnasium light frames, repairing a broken piano leg,
and replacing paneling in two rooms. The piano leg and light
frames were the subject of testimony by Rev. Sheehan, and the
need for repaneling was noted in Exhibit 58, to which the jury's
attention was directed.11
One more aspect of the Institute's harm warrants attention.
Air Safety concedes responsibility for the $12,770 cost of
repairing the gymnasium floor at Catholic Memorial. Kevin
Murphy, whose company did the floor repair, testified that the
process of sanding removes wood, and the gymnasium floor
therefore was, to some degree, in worse condition after the
repair than before the damage was done. When asked whether the
deficiency would limit the use of the floor in future years, he
responded that it would, "considerably down the road."
We believe this testimony permitted the jury to award
damages for the premature loss of use of the floor.
____________________
10 These are: $12,570 for gym floor repairs; $966 for
damaged books; $432 for damaged computer cables; $296 for damaged
phone wires; $1,630 for re-hanging curtains; $42,000 for wasted
salaries, and $28,000 for 14 weeks' lost bingo profits.
11 Although the paneling was not the subject of specific
testimony, and, unlike other items, no invoice for it was
included in the record, see Exhibit 65, we think it reasonable
___
for the jury to conclude, on the basis of Exhibit 58, that this
was damage for which Air Safety was responsible.
-10-
Unfortunately, no value was placed on either this harm or the
three items of damage listed above. Without question, however,
the approximately $50,000 questioned by appellant is far in
excess of the appropriate amount. The evidence was that a new
floor would have cost $50,000 to $60,000; from that knowledge, we
are confident that compensation for reducing the old floor's
lifespan "considerably down the road" could not reasonably amount
to more than several thousand dollars. The other items, all of
which appear to be relatively minor, might generously add up to
$5,000.
Because our task is to view the evidence in the light most
favorable to the defendants, see Velazquez, 996 F.2d at 428, we
___ _________
conclude that the record supports a maximum award of $95,000 for
all damages to the Institute. Thus, unless the Institute
consents to a remittitur of $43,000, Air Safety is entitled to a
partial new trial.
III. Exclusion of Summaries12
______________________
Air Safety sought to introduce into evidence a number of
summary exhibits in support of its claim for damages or quantum
meruit relief. Such exhibits may be admissible under Fed. R.
Evid. 1006, which provides:
The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in
court may be presented in the form of a chart, summary,
____________________
12 Defendants' assertion that this issue was not preserved
for appeal is untenable. See McLaurin v. Fischer, 768 F.2d 98,
___ ________ _______
101 (1st Cir. 1985) ("[T]he law is well settled that an appeal
from a final judgment draws into question all prior non-final
rulings and orders.").
-11-
or calculation. The originals, or duplicates, shall be
made available for examination or copying, or both, by
other parties at reasonable time and place. The court
may order that they be produced in court.
At issue in this case is the requirement in Rule 1006 that the
materials underlying a proposed summary exhibit be "made
available" to opposing parties. After a two-hour, mid-trial voir
dire hearing in which each of Air Safety's proposed exhibits was
considered individually, the court excluded most of them because
the documents from which the summaries were drawn had not been
seen by the defendants and were unavailable at the time of
trial.13
Air Safety asserts that the court erred in concluding that
the documents were inadmissible under Rule 1006.14 It claims
____________________
13 The supporting records at issue were those showing the
company's overhead costs, and were located in its home office in
Illinois.
14 A portion of Air Safety's argument seems based on an
assumption that the district court improperly excluded the
summaries because they were not supported by evidence
independently established in the record. Although the court at
one point indicated that it felt bound by the "already-in-
evidence" requirement because of language to that effect in a
First Circuit decision, United States v. Nivica, 887 F.2d 1110,
_____________ ______
1125-26 (1989), the court recognized that such an approach
conflicted with the language of Rule 1006 giving the court
discretion to order production in court of the documents
__________
underlying a summary. In any event, its decision ultimately was
based on a determination that the underlying documents had not
been "made available" to the defendants, and it therefore did not
need to rule on whether a summary based on records that were
____
available nonetheless must be excluded because they were
unsupported in the record.
We note, for the sake of clarity, that Air Safety is correct
that the evidence underlying Rule 1006 summaries need not be
admitted into evidence. See, e.g., United States v. Bakker, 925
___ ____ _____________ ______
F.2d 728, 736-37 (4th Cir. 1991); 5 Jack B. Weinstein & Margaret
A. Berger, Weinstein's Evidence, 1006[02], 1006-9 (1995);
____________________
Michael H. Graham, Federal Practice and Procedure 7031, at 959
______________________________
-12-
that it gave defendants copies of the challenged exhibits in
November 1992, and that they never asked during the year and a
half before trial to see the underlying material. Moreover,
defense counsel had signed two pretrial memoranda without noting
any problems with Air Safety's proposed exhibits. Air Safety
points out that the documents at issue easily could have been
brought to Boston for defendants' review had there been any
indication before the start of trial that defendants wanted to
see them. Thus, Air Safety contends that the records were "made
available" within the meaning of Rule 1006, and, to the extent
that they were inaccessible at trial, the defendants were to
blame. In Air Safety's view, defendants' trial objections
constituted an ambush and should have been dismissed as untimely.
We cannot agree. Although it appears that Air Safety left
the overhead records in Illinois in the reasonable belief that no
one was interested in them, the record indicates that the company
fell short of meeting its responsibility under Rule 1006. Air
____________________
(1992). Indeed, such an interpretation of the rule would negate
its explicit grant of discretion to the trial judge to order the
__________
underlying documents produced in court.
Although in Nivica and a subsequent case relying on it,
______
United States v. Sawyer, 85 F.3d 713, 740 (1st Cir. 1996), we
_____________ ______
stated that Rule 1006 summaries must be based upon "evidence
independently established in the record," the language in both
cases was dictum because the relevant evidence there had been
admitted. The requirement of prior admission actually applies to
a different sort of summary: one used as a jury aid to summarize
complex or voluminous information already in the record. See,
___
e.g., Bakker, 925 F.2d at 736-37; Weinstein's Evidence, at
____ ______ ____________________
1006[07], 1006-21. In such cases, the summary is not itself
evidence, Bakker, 925 F.2d at 736; Weinstein's Evidence, at
______ ____________________
1006[07], 1006-21-23, and the court's concern is to ensure that
the jury is not misled or confused by selective emphasis,
Weinstein's Evidence, at 1006[07], 1006-21-22.
____________________
-13-
Safety apparently submitted only a skeletal version of its
summary exhibits in November 1992, perhaps without designating
them as summaries,15 and first provided a comprehensive version
in June 1994. In the interim, all parties had signed pretrial
memoranda that Air Safety took as a sign that defendants saw no
problems with its exhibits. Defendants, however, intended no
such acquiesence and, once the nature of the damages exhibits was
clear to them, sought to examine the underlying documents.
In concluding that Air Safety had failed to lay a proper
foundation for the summaries, the district court did not dispute
that the company willingly would have provided the underlying
documents -- if requested -- at any time during the lengthy
pretrial period. The court ruled, however, that such passive
availability did not meet Air Safety's obligation. Near the
conclusion of the voir dire hearing, it summarized its ruling:
I don't think that it is enough to say that the
documents have been available or could have been
available or were available when they were not
identified as the source for these summaries. What is
important in the discovery context is one thing, but
once the discovery comes down to trial and somebody
prepares a summary, it seems to me that the person
providing the summary must say now these documents,
this summary is a summary of the following documents
and here they are.
____________________
15 Defendants claim that the exhibits provided in 1992,
described by Air Safety's counsel as "prototypes," contained
little information. Indeed, the Institute's counsel described
them during the voir dire hearing as "blanks" that bore headings,
but no numbers and few subheadings. Those preliminary documents
apparently are not in the appellate record. The Institute's
counsel additionally asserts that the challenged exhibits were
identified as "summaries" for the first time at the final
pretrial conference on June 30; the next day, she sent a letter
requesting the underlying documents.
-14-
We think this is a correct and sensible construction of Rule
1006's "made available" requirement. As the court recognized,
Rule 1006 operates independently of the discovery rules, see
___
Weinstein's Evidence 1006[04], at 1006-16, and the failure to
_____________________
request or obtain the documents during discovery does not negate
a party's "absolute right to subsequent production of material
under Rule 1006, should that material become incorporated in a
chart, summary, or calculation." Id.; see also Square Liner 360
___ ___ ____ ________________
Degrees, Inc. v. Chisum, 691 F.2d 362, 376 (8th Cir. 1982).
______________ ______
Common sense dictates that this guaranteed access, designed to
give the opponent the ability to check the summary's accuracy and
prepare for cross-examination, see, e.g., Chisum, 691 F.2d at
___ ____ ______
376-77; United States v. Smyth, 556 F.2d 1179, 1183 (5th Cir.
_____________ _____
1977); Weinstein's Evidence 1006[04], at 1006-15, must include
____________________
unequivocal notice of the other party's intent to invoke Rule
1006. It seemingly was the lack of such notice that gave rise to
the misunderstanding and confusion here.
Thus, to satisfy the "made available" requirement, a party
seeking to use a summary under Rule 1006 must identify its
exhibit as such, provide a list or description of the documents
supporting the exhibit, and state when and where they may be
reviewed.16 Here, Air Safety merely assumed that the defendants
were uninterested in reviewing the overhead records that it
believed were the obvious -- though not explicitly identified --
____________________
16 This assumes, of course, that the "when" and "where" are
reasonably convenient for the opposing party.
-15-
source for its proposed damage summaries. In these
circumstances, the district court committed no reversible error
in concluding that Air Safety had not satisfied the "made
available" foundation requirement for admitting the exhibits.
Moreover, we doubt that the exclusion of this material
significantly prejudiced Air Safety. The district court allowed
Air Safety to use the exhibits as chalks, and they were relied on
heavily during the testimony of its damages expert. The expert,
Dennis Staats, testified to the specific amounts contained in the
summaries while the jury was able to peruse the chalks. Although
the district court repeatedly reminded the jury that the
testimony -- not the summaries -- was the evidence, we think the
jury was more likely to have understood this as a caution about
the technicalities of litigation than as a suggestion that the
calculations in the chalks were untrustworthy. The numbers,
after all, also were contained in the testimony. To be sure,
exclusion of the summaries from the jury room required greater
reliance on memory. Air Safety, however, makes no specific
argument -- even a speculative one -- showing how the quantum
meruit figures might have been more accurate had the jurors had
access to the excluded exhibits during deliberations.
We therefore affirm the court's judgment with respect to the
quantum meruit award.
IV. Conclusion
__________
The district court's judgment on negligence damages against
Air Safety is vacated, and the case is remanded for a new trial
-16-
on that issue unless defendants agree to remittiturs of
$201,278.50 for the RCAB and $43,000 for the Institute. Having
found no error in the court's exclusion of Air Safety's proposed
damages summary exhibits, we affirm the quantum meruit award for
Air Safety as determined by the jury.
Affirmed in part, vacated and remanded in part. Each party
________________________________________________ __________
to bear its own costs.
______________________
-17-