Rodriguez v. Senor Frog's de la Isla, Inc., et al

Filing

OPINION Juan R. Torruella, Appellate Judge; Kermit V. Lipez, Appellate Judge and Rogeriee Thompson, Appellate Judge Published. [09-2548]--[Edited 04/12/2011 by AH]. CLERK'S NOTE: Docket entry was edited to modify the docket text. [09-2548]

Case: 09-2548 Document: 00116195385 Page: 1

Date Filed: 04/12/2011

Entry ID: 5541423

United States Court of Appeals
For the First Circuit
No. 09-2548
PALOMA RODRÍGUEZ,
Plaintiff, Appellee,
v.
SEÑOR FROG'S DE LA ISLA, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.

Harry Anduze Montaño, with whom José Morales Boscio and Harry
Anduze Montaño Law Office were on brief, for appellant.
John Fitzpatrick Vannucci, with whom the Law Office of John
Fitzpatrick Vannucci was on brief, for appellee.

April 12, 2011

Case: 09-2548 Document: 00116195385 Page: 2

THOMPSON, Circuit Judge.
personal-injury case.

Date Filed: 04/12/2011

Entry ID: 5541423

This is a diversity-based

A jury returned a $450,000 verdict for

Paloma Rodríguez against Señor Frog's de la Isla, Inc. ("Señor
Frog," for short) in Puerto Rico's federal district court.

Señor

Frog now appeals, challenging nearly every aspect of the district
judge's performance.

Unable to find any reversible error in the

judge's actions, we affirm.
How It All Began1
San Juan, Puerto Rico, early in the pre-dawn morning of
December 5, 2004.

Cruising in her Mazda 323 on the Muñoz Rivera

Expressway, 21-year-old Rodríguez hit a pothole – a collision that
cost her two tires and killed the engine.

But the worst was yet to

come.
Turning her hazards on, Rodríguez somehow got her car to
the side of the road, completely out of the way of oncoming
traffic.

A police officer patrolling that stretch of highway

spotted her and pulled over. He left the cruiser's flashing lights
on.

A tow-truck driver also showed up, parked his truck in front

of Rodríguez's car, activated the truck's flashing lights, pointed
a spotlight on the work area, and put out cones to caution drivers
passing by.

As the truck driver lowered the truck's platform,

1

We narrate the facts in the light most favorable to the
jury's verdict. See, e.g., Bielunas v. F/V Misty Dawn, Inc., 621
F.3d 72, 74 (1st Cir. 2010).
-2-

Case: 09-2548 Document: 00116195385 Page: 3

Date Filed: 04/12/2011

Entry ID: 5541423

Rodríguez got back into the Mazda either to grab some personal
items or to do something to help out with the towing process.
That is when Carlos Estrada closed in, speeding in a
Mitsubishi Mirage registered to Señor Frog.
off.

His headlights were

He had a blood-alcohol level nearly double the legal limit in

Puerto Rico.

And he smashed that Mitsubishi right into the rear of

Rodríguez's Mazda.

Rodríguez was hurt, and apparently hurt badly.

"She was thrown inside the vehicle," the officer later said.
Covered in blood, she had no vital signs – "she appeared to be
dead."

But she survived and sued Señor Frog in district court

under diversity jurisdiction, see 28 U.S.C. § 1332, alleging
negligence and negligent entrustment.

She sued other defendants

too (including Estrada), but they were later dismissed for reasons
that are not important here, so we skip them.
The Twists And Turns Of Trial
We fast-forward to the trial, where hard-charging counsel
pulled out all the stops.

For starters, Rodríguez's lawyer moved

in limine to prevent Señor Frog from showing or arguing that
Estrada had owned the Mitsubishi or that Rodríguez had drunk a beer
or two hours before the crash.

The judge granted the motion.

Also, Rodríguez's counsel told the jurors during his
opening statement that the evidence would compel them to return a
$450,000 verdict in his client's favor.

Señor Frog's lawyer asked

for a mistrial but instead got a cautionary instruction telling

-3-

Case: 09-2548 Document: 00116195385 Page: 4

Date Filed: 04/12/2011

Entry ID: 5541423

jurors that they (not the lawyers) would decide the damage amount
due Rodríguez (if any).
The attorneys later sparred over whether the parties were
of

diverse

citizenship,

and

the

judge

ruled

that

they

were,

following an evidentiary hearing convened after Rodríguez had
rested her case.

They also battled over the jury instructions.

And the judge seemingly sided with Rodríguez when she apparently
refused to instruct the jurors on contributory or comparative
negligence.

We hedge with "seemingly" and "apparently" because

Señor Frog failed to give us a transcript of the judge's final
charge – a misstep that affects our analysis in several respects,
as we discuss later in more detail.
The fighting spilled over into closing arguments too.
Rodríguez's counsel said that his client sought damages for lost
wages, which he conceded were not much, given that she was a
college

student/waitress

when

injured.

But

she

also

sought

compensation for pain and suffering, which he put at "six figures."
Señor

Frog's

objection.

lawyer

objected,

and

the

judge

sustained

the

But she declined to tell the jury right then and there

to disregard the value comment.

"I will instruct the jury at the

end," she said, though we do not know if she did because, again,
the record on appeal contains no transcript of the final charge.
Rodríguez's attorney then mentioned a process that the jury could
use to fix damages:

her pain was worth "$9.00 a day," he said, and

-4-

Case: 09-2548 Document: 00116195385 Page: 5

Date Filed: 04/12/2011

Entry ID: 5541423

she should live "55 more years," so she should get over $178,000.
The judge sustained an objection to this statement, adding that the
"jury

will

be

able

Rodríguez is due.
that

his

client

to

evaluate

what

compensation,

if

any,"

Sparks flew too when Rodríguez's lawyer said
had

found

herself

under

"attack"

at

trial

(objection sustained) and that Estrada had been deported to Mexico
as part of a plea agreement in a criminal case arising from the
crash (objection overruled).
Finding Señor Frog liable, the jury awarded Rodríguez
$450,000.

The verdict does not distinguish between the types of

damages.

But the parties (who agree on little else) concur that

the bulk of this represented pain and suffering.
In any event, Señor Frog timely moved for a new trial or
remittitur.

The

new-trial

portion

of

its

motion

blasted

Rodríguez's lawyer for his comments during opening or closing
statements that suggested a specific damage number, accused the
defense of attacking his client, and noted that authorities had
shipped Estrada back to Mexico pursuant to a plea agreement.

The

remittitur section called the jury's award grossly excessive.
Ultimately, the judge denied the motion in an unexplained order.
Having set the stage, we turn to the legal issues on
appeal, noting further facts as needed.

-5-

Case: 09-2548 Document: 00116195385 Page: 6

Date Filed: 04/12/2011

Entry ID: 5541423

The Diverse-Citizenship Issue
The

diversity-jurisdiction

statute

empowers

federal

courts to hear and decide suits between citizens of different
states, provided the amount in controversy is more than $75,000.
See 28 U.S.C. § 1332(a).
jurisdiction purposes.

Puerto Rico is a state for diversity-

See id. § 1332(e).

And Señor Frog is a

citizen of Puerto Rico, see id. § 1332(c)(1), so Rodríguez's suit
is untenable if she was a Puerto Rico citizen when she filed her
December 1, 2005 complaint, see, e.g., Hall v. Curran, 599 F.3d 70,
72 (1st Cir. 2010) (per curiam).

Señor Frog argues that she was,

though it did not press this argument until after Rodríguez had
rested her case.

Cf. generally Valentin v. Hospital Bella Vista,

254 F.3d 358, 362 (1st Cir. 2001) (calling a pre-answer motion to
dismiss under Fed. R. Civ. P. 12(b)(1) the "proper vehicle for
challenging a court's subject-matter jurisdiction").

But after an

evidentiary hearing, the judge deemed Rodríguez a citizen of
California when she sued, and this conclusion survives clear-error
review. See, e.g., Padilla-Mangual v. Pavía Hosp., 516 F.3d 29, 32
(1st Cir. 2008) (noting that a district judge's determination in
this area is "a mixed question of law and fact," which we review
under the "clearly erroneous" rubric) (internal quotation marks
omitted); Cantellops v. Alvaro-Chapel, 234 F.3d 741, 742 (1st Cir.
2000) (similar).

-6-

Case: 09-2548 Document: 00116195385 Page: 7

Citizenship

for

diversity

Date Filed: 04/12/2011

purposes

is

Entry ID: 5541423

domicile,

and

domicile is the place where one is present and intends to stay.
See, e.g., Padilla-Mangual, 516 F.3d at 31 (explaining that "[a]
person's domicile is the place where he has his true, fixed home
and principal establishment, and to which, whenever he is absent,
he has the intention of returning") (quoting Rodríguez-Díaz v.
Sierra-Martínez, 853 F.2d 1027, 1029 (1st Cir. 1988) (internal
quotation marks omitted)); García Pérez v. Santaella, 364 F.3d 348,
350 (1st Cir. 2004) (similar); see also Hawes v. Club Ecuestre El
Comandante, 598 F.2d 698, 701 (1st Cir. 1979) (adding that we
require "no minimum period of residency").

As the party invoking

diversity jurisdiction, Rodríguez had to prove domicile by a
preponderance of the evidence, see, e.g., Padilla-Mangual, 516 F.3d
at 31; García Pérez, 364 F.3d at 350 – and she did just that,
presenting enough evidence to show that she was a domiciliary (and
thus a citizen) of California.
Rodríguez was the only witness at the hearing on the
diversity issue – Señor Frog called no one.

Rodríguez testified

that she had moved from Puerto Rico to California in September
2005, roughly three months before she filed this suit.

She was

pregnant, and she and her boyfriend Adrian Peralta wanted to start
their lives together in the Golden State.

Since they had very

little money, the couple lived in a San Francisco Bay area home
owned by Peralta's grandmother.

And by the time she sued Señor

-7-

Case: 09-2548 Document: 00116195385 Page: 8

Date Filed: 04/12/2011

Entry ID: 5541423

Frog, she had fully relocated from Puerto Rico to California:

she

was physically present in California (with her clothes, books,
furniture, household items, etc.), had opened up a California bank
account (she had no money in any Puerto Rico banks), had gotten a
California driver's license and job, and had hired a California
lawyer to fight on her behalf.

And though she had not registered

to vote in California (actually, she was not registered to vote
anywhere) and did not attend church there, she had settled on
living in the Golden State permanently.

Cf. Bank One, Texas, N.A.

v. Montle, 964 F.2d 48, 50 (1st Cir. 1992) (holding that factors
that can help an inquiring court determine a party's intent include
where the party exercises civil and political rights, pays taxes,
has real and personal property, has a driver's or other license,
has bank accounts, has a job or owns a business, attends church,
and has club memberships – for simplicity we call these the "Bank
One factors").
Post-complaint events cast no doubt on the earnestness of
Rodríguez's intent either. See generally García Pérez, 364 F.3d at
351 (holding that, even though they "are not part of the primary
calculus," post-suit happenings "may bear on the sincerity of a
professed intention to remain"). Rodríguez told the judge that she
gave birth to a baby boy in California, turned to a California
pediatrician to treat him, and put him in a California daycare for
a spell.

She also enrolled in three California community college

-8-

Case: 09-2548 Document: 00116195385 Page: 9

Date Filed: 04/12/2011

Entry ID: 5541423

courses and got a cell phone with a California area code (she may
have acquired the cell phone pre-complaint, but we cannot tell for
certain).

True,

starting

in

2007,

Rodríguez

spent

several

semesters at the InterAmerican University in Puerto Rico (she could
get her bachelor's degree faster if she studied there, she said),
and she was still taking classes there at the time of trial.

But

she made clear that she returned to California whenever school was
not in session (during winter, spring, and summer breaks, for
example), and she provided copies of plane tickets to prove that
point. She also reaffirmed that she intended to live in California
for the rest of her life (she hoped to land a teaching job there
once she got her degree).
Having

the

exclusive

ability

to

assess

Rodríguez's

demeanor and tone, the district judge was best positioned to
separate true from false testimony.
516 F.3d at 33-34.
carefully

See, e.g., Padilla-Mangual,

The judge found Rodríguez credible, and after

canvassing

the

testimony,

she

meticulously

detailed

findings of fact, which she supported with specific references to
the evidence.

Because we cannot say that these findings were

clearly erroneous, her ruling that there was diverse citizenship
must stand.
Undaunted, Señor Frog insists that the district judge
botched her ruling in several respects.

For openers, Señor Frog

protests that Rodríguez did not have enough Bank One factors on her

-9-

Case: 09-2548 Document: 00116195385 Page: 10

Date Filed: 04/12/2011

Entry ID: 5541423

side, given that she had not registered to vote in California and
had no religious affiliation there.

Also, Rodríguez produced no

documentary evidence – no bank statements, driving records, college
transcripts, etc. – to support key claims, and, given the bestevidence rule, see Fed. R. Evid. 1002, the judge had no business
accepting her "self-serving" comments about her intent to stay in
California indefinitely.

Searching for a "gotcha!" moment, Señor

Frog notes too that Rodríguez said at trial that she "lived in
Mayaguez," Puerto Rico, "all my life" – testimony it says should
have caused the judge to dismiss the case for lack of diversity
jurisdiction straightaway, without bothering with an evidentiary
hearing.
We cannot buy into these arguments.

For one thing, a

party need not check off every Bank One factor to satisfy her
burden, see, e.g., Padilla-Mangual, 516 F.3d at 33, and, in any
event, Rodríguez checked off more than enough of them – the
California bank account, driver's license, job, and personalproperty location sync up nicely with key Bank One factors.
For another thing, the district judge did not blindly
accept Rodríguez's statement that she intended to make California
her home.

Rather, the judge sifted the testimony and grounded her

ruling in facts that confirmed Rodríguez's intent claim. And Señor
Frog's best-evidence theory changes nothing.

With exceptions not

relevant here, the best-evidence rule requires a party trying to

-10-

Case: 09-2548 Document: 00116195385 Page: 11

Date Filed: 04/12/2011

Entry ID: 5541423

prove the "content" of a written document to introduce the document
itself.

See Fed. R. Evid. 1002.

will is not in evidence and

Think of a will contest where the
a witness tries to discuss the

document's words from memory – that is the sort of situation that
the rule was designed to address.

See generally United States v.

Diaz-Lopez, 625 F.3d 1198, 1201-02 (9th Cir. 2010) (quoting leading
treatises on the subject).

But that is not our case.

Rodríguez

never tried to give the exact terms of her California bank account,
driver's license, or college transcripts.

She simply tried to

prove, through her own direct testimony, certain facts that she had
direct knowledge of – that she had opened a California bank
account,

acquired

a

California

license,

and

taken

several

California community-college courses pre-complaint. Consequently,
this case falls outside the compass of the best-evidence rule. See
R & R Assocs., Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st
Cir. 1984) (commenting that "[n]o evidentiary rule . . . prohibits
a witness from testifying to a fact simply because the fact can be
supported by written documentation"); see also Simas v. First
Citizens' Fed. Credit Union, 170 F.3d 37, 51 (1st Cir. 1999);
United States v. Grossman, 614 F.2d 295, 298 n.1 (1st Cir. 1980).
Last but not least, Rodríguez's trial testimony in no way
short-circuited
context.

her

diverse-citizenship

claim.

Consider

the

Thrilled beyond words that his daughter had survived the

collision, Rodríguez's father hosted a Christmas Day party at his

-11-

Case: 09-2548 Document: 00116195385 Page: 12

Date Filed: 04/12/2011

Entry ID: 5541423

Mayaguez home in 2004 – roughly three weeks after Estrada had rearended

Rodríguez

and

one

year

before

she

filed

this

action.

Rodríguez was deeply depressed, he said, and he thought a small
soirée with family and friends might lift her spirits.

At trial,

Rodríguez's counsel asked her whether any party-goers had come from
San Juan (we are not sure why this mattered).

"No," she replied,

"I lived in Mayaguez all my life, so most of my friends are from
Mayaguez." Señor Frog makes much of this language, suggesting that
it proved her California-domicile claim was a lie – so, the
argument goes, the judge should have kicked her case to the curb
without

further

ado.

We

think

not.

Again,

citizenship is determined as of the time of suit.
One, 964 F.2d at 49.

diversity

of

See, e.g., Bank

And, fairly read, Rodríguez's testimony went

to her pre-suit living situation, which means that her statement
could not and did not sabotage diversity jurisdiction.
That ends this phase of the case.

Standing by what we

said moments ago – that we cannot call the judge's diversecitizenship conclusion clearly wrong – we move, finally, to the
other issues before us.
The Evidentiary Issues
Señor

Frog

criticizes

the

judge's

in

limine

ruling

barring evidence that Estrada had owned the Mitsubishi and that
Rodríguez had downed a couple of beers hours before the crash.
are unpersuaded.

-12-

We

Case: 09-2548 Document: 00116195385 Page: 13

Date Filed: 04/12/2011

Entry ID: 5541423

We need not delve too deeply into the car-ownership issue
because, just before Rodríguez rested, Señor Frog stipulated that
it owned the Mitsubishi Mirage at the time of the collision.

And

the judge read the stipulation to the jury. Fact stipulations like
this speed up the trial process by eliminating "'the need for
proving

essentially

uncontested

facts,'"

which

helps

preserve

precious judicial resources. Caban Hernandez v. Philip Morris USA,
Inc., 486 F.3d 1, 5 (1st Cir. 2007) (quoting Gomez v. Rivera
Rodriguez, 344 F.3d 103, 120 (1st Cir. 2003)).

So, obviously,

stipulations of this sort are valued by litigants and judges alike,
and once freely-made they bind the parties, the trial court, and
the appellate court too.

See, e.g., H. Hackfeld & Co. v. United

States, 197 U.S. 442, 446 (1905); United States ex rel. Miller v.
Bill Harbert Int'l Constr., Inc., 608 F.3d 871, 889 (D.C. Cir.
2010); Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th
Cir. 1988); Fisher v. First Stamford Bank and Trust Co., 751 F.2d
519, 523 (2d Cir. 1984).

Consistent with these principles, Señor

Frog's stipulation undercuts the line of reasoning that it seeks to
pursue here – in other words, having freely stipulated to a key
fact,

Señor

Frog

must

now

live

with

the

consequences.

See

generally Miller, 608 F.3d at 889 (explaining that "one party" to
a stipulation "need offer no evidence to prove it and the other is
not allowed to disprove it") (internal quotation marks omitted).

-13-

Case: 09-2548 Document: 00116195385 Page: 14

Date Filed: 04/12/2011

Entry ID: 5541423

Nor is Señor Frog's argument about the beer evidence
particularly promising.
this:

As we see things, its proffer reduced to

from Rodríguez's drinking a beer or two hours before the

collision, a jury could infer that (a) she drove impaired, which
(b) caused her to hit a pothole that blew out her tires (she would
not have hit it otherwise, apparently) and required her to pull
over, which (c) put her in line to be rear-ended by Estrada as she
sat in a parked car along the shoulder of the road, which,
ultimately, (d) put her partly at fault for her injuries.

Señor

Frog's proffered evidence did not show that Rodríguez had been
impaired, her lawyer argued, or that she had any role in Estrada's
slamming into her while she was parked by the side of the road,
totally out of the travel lane.

The evidence, he added, had one

purpose – to convince the jury that she was a "bad person" for
having a beer or two.
The judge agreed with Rodríguez's lawyer.

Rodríguez was

not driving when Estrada "smash[ed]" into her – she was simply
sitting there in the front seat of her parked car as the tow-truck
driver worked on getting her auto towed. Rodríguez's supposed beer
drinking had no causal role, the judge ruled, so "[a]bsent any
other evidence to establish the alleged facts," the proffered
evidence was excludable as more prejudicial than probative.
Fed. R. Evid. 403.

-14-

See

Case: 09-2548 Document: 00116195385 Page: 15

Date Filed: 04/12/2011

Entry ID: 5541423

Before taking up this issue we must iron out a wrinkle
concerning our standard of review. If an in limine ruling excludes
evidence unconditionally, the adversely-affected party need take no
additional steps to preserve the issue for appeal, which means
abuse-of-discretion review will control.

See, e.g., Crowe v.

Bolduc, 334 F.3d 124, 133 (1st Cir. 2003).

But if the ruling is

merely tentative and "clear[ly] invit[es]" the party "to offer the
evidence at trial" under the ruling's terms, that party must follow
up on the invitation or else plain-error review will hold sway.
See id. (adding that counsel must "clarify whether the in limine
ruling was final or not" if there is any doubt).

The judge's

ruling here – excluding the beer evidence unless circumstances at
trial changed so that Señor Frog had to offer it again – was final
enough, see id. at 134, which makes abuse of discretion the proper
test.
Rule 403 says that district judges may exclude relevant
evidence if its probative value is substantially outweighed by
other considerations, including unfair prejudice. Because they are
on the front lines, district judges are better positioned than we
to strike this balance, so they get a special degree of deference:
only in extreme circumstances will we reverse their on-the-spot
judgment calls. See, e.g., United States v. Tierney, 760 F.2d 382,
388 (1st Cir. 1985).

Having thoroughly considered this matter, we

-15-

Case: 09-2548 Document: 00116195385 Page: 16

Date Filed: 04/12/2011

see no reason to second-guess the judge's ruling here.

Entry ID: 5541423

We explain

briefly.
Sitting

as

a

diversity

court,

we

must

apply

the

substantive law of Puerto Rico. See, e.g., Borges ex rel. S.M.B.W.
v. Serrano-Isern, 605 F.3d 1, 6 (1st Cir. 2010) (citing, among
other cases, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).
Tort liability under Puerto Rico law requires both "'fault,'"
Marshall v. Perez Arzuaga, 828 F.2d 845, 847 (1st Cir. 1987)
(quoting Jimenez v. Pelegrina, 112 P.R.R. 881, 885 (1982)), and the
requisite causal connection between the wrongdoing and the damages
sustained, which is just another way of saying proximate cause, see
Vázquez-Filippetti v. Banco Popular de Puerto Rico, 504 F.3d 43, 49
(1st Cir. 2007).

The proximate-cause concept "limits a party's

liability for hazards flowing from its negligence to those hazards
that could be '"anticipated by a prudent person."'"

Marshall, 828

F.2d at 847 (quoting Pacheco v. Puerto Rico Water Res. Auth., 112
P.R. Offic. Trans. 369, 372 (1982) (quoting Hernandez v. The
Capital, 81 P.R. 998, 1005 (1960))). Foreseeability holds the key:
a person is liable if the consequences of her wrongdoing were
immediate

and

foreseeable,

not

if

they

were

more

remote

and

unlikely.

See, e.g., Irvine v. Murad Skin Research Labs., Inc.,

194 F.3d 313, 321-22 (1st Cir. 1999) (applying Puerto Rico law);
Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 971-72 (1st Cir.
1991) (applying Puerto Rico law).

-16-

Case: 09-2548 Document: 00116195385 Page: 17

Date Filed: 04/12/2011

Entry ID: 5541423

Clearly, then, speculation or conjecture will not cut it
when it comes to proximate cause.

See, e.g., Malave-Felix, 946

F.2d at 972 (citing Widow of Delgado v. Boston Insur. Co., 99
P.R.R. 693, 703 (1971), and Saez v. Municipality, 84 P.R.R. 515,
523 (1962)).

And this is where Señor Frog falters:

the proffered

evidence (which we painstakingly portrayed five paragraphs ago)
depends on a chain of inferences far too strained and uncertain to
have

much

probative

counterbalance

its

worth,
high

and

certainly

potential

for

not

unfair

enough

to

prejudice.

Consequently, we cannot conclude that the judge's decision was so
off the mark as to be an abuse of discretion.

See generally

Lussier v. Runyon, 50 F.3d 1103, 1111 (1st Cir. 1995) (noting that,
"[i]n general, the abuse of discretion framework is not appellantfriendly"); Dopp v. Pritzker, 38 F.3d 1239, 1253 (1st Cir. 1994)
(stressing that most "appellants who consider themselves aggrieved
by discretionary decisions of the district court . . . are destined
to leave this court empty-handed").
The Instruction Issue
Señor Frog criticizes the judge for refusing to give a
contributory- or comparative-negligence instruction.

We review

that issue de novo if properly preserved, see, e.g., Gray v.
Genlyte Group, Inc., 289 F.3d 128, 133 (1st Cir. 2002), reversing
only

if

the

rejected

instruction

was

substantively

correct,

essential to an important issue in the case, and not substantially

-17-

Case: 09-2548 Document: 00116195385 Page: 18

Date Filed: 04/12/2011

Entry ID: 5541423

covered in the charge given, see, e.g., Seahorse Marine Supplies,
Inc. v. P.R. Sun Oil Co., 295 F.3d 68, 76 (1st Cir. 2002).

At the

pre-charge conference Señor Frog's lawyer objected with reasons
when the judge said that she would not give either instruction,
which means that counsel did enough to preserve the point for
appellate review.

See, e.g., Fed. R. Civ. P. 51(c) & (d); Booker

v. Mass. Dep't of Pub. Health, 612 F.3d 34, 40-42 (1st Cir. 2010).
But regardless, Señor Frog's arguments have no traction.
Puerto Rico is a comparative-negligence jurisdiction, see
P.R. Laws Ann. tit. 31, § 5141 (2008) – hence, a contributorynegligence charge had no place here.

On top of that, we cannot

tell whether the judge carried through her intention not to offer
either instruction – and that is because Señor Frog failed to give
us a transcript of the instructions as read to the jury.
transcript it has provided ends with this:
INSTRUCTION [sic] WERE GIVEN."

The

"AT WHICH TIME THE JURY

Parties pursuing appellate review

must supply us with enough raw material so that we can do our job.
See, e.g., Campos-Orrego v. Rivera, 175 F.3d 89, 93 (1st Cir.
1999); Moore v. Murphy, 47 F.3d 8, 10-12 (1st Cir. 1995).

Because

Señor Frog did not meet that most basic requirement, it cannot
prevail on this issue.

See, e.g., Campos-Orrego, 175 F.3d at 94;

Moore, 47 F.3d at 10-12.
We

hasten

to

add

that

even

if

it

had

given

us

a

transcript that left no doubt about what the judge actually said in

-18-

Case: 09-2548 Document: 00116195385 Page: 19

Date Filed: 04/12/2011

Entry ID: 5541423

her final charge, Señor Frog would still lose. Señor Frog's thesis
is simple: had the judge not wrongly granted Rodríguez's in limine
motion on the beer issue, the record evidence would have obliged
her to deliver the requested instruction. Having already concluded
that the judge did not gaffe the in limine ruling, we easily reject
this thesis – after all, a trial judge cannot give an instruction
if there is no evidence in the record to support it, see, e.g.,
Kelliher v. Gen. Transp. Serv. Inc., 29 F.3d 750, 754 (1st Cir.
1994); Sexton v. Gulf Oil Corp., 809 F.2d 167, 169 (1st Cir 1987),
and that is the case here.
The New-Trial Issue
Señor Frog tells us that the judge also stumbled in
denying its new-trial motion.2

District judges, of course, do not

have carte blanche to ignore "the considered verdict of a properly
instructed jury" simply because they might have reached a different
result in a bench trial, Quinones-Pacheco v. Am. Airlines, Inc.,
979 F.2d 1, 3 (1st Cir. 1992) (emphasis added) – the underscored
phrase is critical for reasons that we get to shortly.

Rather,

judges may grant a new trial "'only if the verdict is against the
law, against the weight of the credible evidence, or tantamount to
a miscarriage of justice.'"

Crowe v. Marchand, 506 F.3d 13, 19

2

As we said, the judge denied the motion without a written
explanation. But we can take on Señor Frog's issues anyway. See
Bielunas, 621 F.3d at 77-78 (explaining when the court can take
that tack).
-19-

Case: 09-2548 Document: 00116195385 Page: 20

Date Filed: 04/12/2011

Entry ID: 5541423

(1st Cir. 2007) (discussing Fed. R. Civ. P. 59(a) and quoting
Casillas-Díaz v. Palau, 463 F.3d 77, 81 (1st Cir. 2006)).
review

the

denial

of

a

new-trial

motion

deferential abuse-of-discretion standard.

under

the

And we
highly-

See, e.g., id.

Señor Frog attacks the judge's new-trial order on three
primary fronts.

First, it argues that Rodríguez's counsel's

mention of either a lump sum or formula for computing pain-andsuffering damages during opening and closing statements constituted
reversible
circuit.3

error.

We

have

outlawed

both

See Bielunas, 621 F.3d at 78-79.

3

practices

in

this

But that gets Señor

On this issue – which is a matter of procedure and thus
governed by federal law, see Davis v. Browning-Ferris Indus., Inc.,
898 F.2d 836, 837 (1st Cir. 1990) – our outright ban is clearly out
of step with the prevailing federal practice. The Second, Fourth,
Fifth, Sixth, Seventh, Eighth, and Tenth Circuits leave it to
district judges to decide whether and how lawyers may discuss painand-suffering damages with juries. See, e.g., Lightfoot v. Union
Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997) (noting that
district judges have the discretion either to "prohibit counsel
from mentioning specific figures" or to allow it with certain
safeguards, "including cautionary jury instructions"); Murphy v.
Nat'l R.R. Passenger Corp., 547 F.2d 816, 818 (4th Cir. 1977)
(stating that if the trial court, "in its discretion, concludes
that the summation would not have an unduly prejudicial effect, it
may permit counsel to suggest a monetary figure for the award or to
illustrate damages for a unit of time multiplied by the expected
duration of suffering"); Baron Tube Co. v. Transp. Ins. Co., 365
F.2d 858, 861, 864-65 (5th Cir. 1966) (en banc) (holding that
counsel can argue "for damages for pain and suffering on a socalled 'unit of time' formula," provided there are safeguards in
place, e.g., cautionary instructions, though "whether to allow such
an argument and the protective features to be employed are matters
vested, in the end, in the sound discretion of the trial court");
Pa. R.R. Co. v. McKinley, 288 F.2d 262, 266 (6th Cir. 1961)
(refusing to reverse where counsel "suggested a per diem figure for
pain suffered at various periods of time," concluding that district
judges possess substantial discretion to control "the style and
-20-

Case: 09-2548 Document: 00116195385 Page: 21

Frog only so far.

Date Filed: 04/12/2011

Entry ID: 5541423

To succeed, Señor Frog must also show that the

error was harmful – i.e., that the error affected its "substantial
rights," which in turn depends on whether the error "substantially
swayed" the jury's verdict.
133

F.3d

92,

102

(1st

See Nieves-Villanueva v. Soto-Rivera,

Cir.

1997)

(internal

quotation

marks

omitted); see also Seahorse Marine Supplies, Inc., 295 F.3d at 82.
Certainly the fact that the jury gave Rodríguez exactly what her
lawyer asked for suggests prejudice.
we need to know.

But that does not tell us all

The key here lies in the jury instructions.

Did

the judge tell the jury to disregard the lawyer's suggested numbers
as she had promised?

If yes, were her words strong enough to draw

all the sting from counsel's comments?

See Bielunas, 621 F.3d at

79 (noting that such an instruction might be a sufficient salve in

content of counsel's argument"); Waldron v. Hardwick, 406 F.2d 86,
89 (7th Cir. 1969) (concluding "that an inflexible rule treating
per diem argument as reversible error is not advisable," adding
that "the question should be left largely to the discretion of the
trial judge as are other matters dealing with the style and content
of argument"); Vanskike v. ACF Indus., Inc., 665 F.2d 188, 211 (8th
Cir. 1981) (stressing that "limitation of counsel's argument to the
jury on computation of damages is within the discretion of the
district judge," adding that "[a]lthough we continue to condemn
[jury] instructions requiring per diem mathematical calculations,
we do not disapprove of per diem closing arguments [provided] such
arguments are carefully controlled by the district court");
McDonald v. United Airlines, Inc., 365 F.2d 593, 595 (10th Cir.
1966) (indicating that whether to permit "a per diem damages
argument . . . by counsel to the jury" is a "matter[] within the
discretion of the trial judge"). As far as we can tell, only the
Third Circuit stands with us. See, e.g., Waldorf v. Shuta, 896
F.2d 723, 744 (3d Cir. 1990) (holding that lawyers may not "request
a specific dollar amount for pain and suffering in [their] closing
remarks").
-21-

Case: 09-2548 Document: 00116195385 Page: 22

Date Filed: 04/12/2011

Entry ID: 5541423

certain situations); Río Mar Assoc., LP, SE v. UHS of P.R., Inc.,
522 F.3d 159, 163 (1st Cir. 2008) (noting the presumption that
jurors follow the district judge's clear instructions). Also, what
did the judge tell the jury about pain-and-suffering damages under
Puerto Rico law?

And viewing the record through that legal lens,

was the pain-and-suffering evidence so overwhelming that counsel's
remarks mattered not in the grand scheme of things?

We can answer

none of these questions, however, because Señor Frog has not
presented us with a transcript of the judge's final charge, which
means Señor Frog loses this aspect of its new-trial bid.

See,

e.g., Campos-Orrego, 175 F.3d at 94; Moore, 47 F.3d at 10-12.
Next, Señor Frog says that Rodríguez's counsel's closingargument comment that his client had come under "attack" in court
requires a new trial.

Not so.

Assuming purely for argument's sake

that counsel's statement crossed a line (which we in no way
intimate), Señor Frog has not shown any prejudice.

See, e.g.,

Gonzalez-Marin v. Equitable Life Assurance Soc'y, 845 F.2d 1140,
1147

(1st

Cir.

"considerable

1988)

discretion"

(noting
when

it

that

district

comes

to

judges

policing

have

lawyers'

closing-argument comments, stressing that "[w]e will reverse only
upon a showing of prejudice").

Counsel's "attack" comment was a

small and unrepeated part of a fairly lengthy summation.

And the

judge sustained Señor Frog's objection right away.

The judge

probably

counsels'

also

instructed

the

jury

-22-

in

the

end

that

Case: 09-2548 Document: 00116195385 Page: 23

Date Filed: 04/12/2011

Entry ID: 5541423

statements in closing argument are not evidence, an instruction
that can often lessen any potential harm. See, e.g., Bielunas, 621
F.3d at 79.

But we cannot double-check our hunch against the

transcript because Señor Frog did not give us what we need to carry
out our review function.

Given all of the circumstances, Señor

Frog's complaint goes nowhere.

See, e.g., Campos-Orrego, 175 F.3d

at 94; Moore, 47 F.3d at 10-11.
Finally, Señor Frog cries foul over Rodríguez's counsel's
remark in closing that Estrada had been deported back to Mexico
under the terms of a plea agreement – a statement that supposedly
turned the jury against Estrada.

Even if we assume for the sake of

discussion that Rodríguez's lawyer exceeded the bounds of fair
argument, we cannot see how this fleeting comment could have
unfairly prejudiced Señor Frog, see Gonzalez-Marin, 845 F.2d at
1147 – and, critically, Señor Frog spends no time explaining how it
could

have,

litigants

see

have

Casillas-Díaz,
"an

unflagging

463

F.3d

obligation

at
to

83

(holding

spell

out

that
their

contentions 'squarely and distinctly, or else forever hold [their]
peace,'" adding that a cursory mention of a possible argument will
not suffice) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990)).

Ultimately, then, this new-trial argument, like the

others, cannot succeed.

-23-

Case: 09-2548 Document: 00116195385 Page: 24

Date Filed: 04/12/2011

Entry ID: 5541423

The Remittitur Issue
Saying that most if not all of the $450,000 damage award
represented compensation for pain and suffering, Señor Frog calls
the figure conscience-shocking and asks us to reverse the judge's
decision not to grant a remittitur.

That is a very tall order.

"Only rarely and in extraordinary circumstances" will we nix a
jury's non-economic damages award. Bielunas, 621 F.3d at 80. That
is especially true where, as here, the judge, "who saw and heard
the evidence play out," has endorsed the award.

Id.

"Stepping

lightly," we only look to see if the judge abused her discretion in
not trimming the award – mindful, of course, that the defendant
must prove that the "award is 'grossly excessive, inordinate,
shocking to the conscience of the court, or so high that it would
be a denial of justice to permit it to stand.'"

Id. (quoting

Casillas-Díaz, 463 F.3d at 83).
Another obstacle looms large, however – one we have
mentioned already, namely, the absence of a full record.

Our

review of the remittitur question is "inescapably 'fact-bound,'"
id. (quoting Casillas-Díaz, 463 F.3d at 83), and we must analyze
the facts "under the legal criteria" established by the jury
charge, id. at 80-81; see also Casillas-Díaz, 463 F.3d at 83; Smith
v. Kmart Corp., 177 F.3d 19, 30 (1st Cir. 1999).

But because Señor

Frog failed to furnish a transcript of the final charge, we cannot
reach a reasoned decision on the remittitur issue.

-24-

Consequently,

Case: 09-2548 Document: 00116195385 Page: 25

Date Filed: 04/12/2011

Señor Frog's remittitur challenge collapses.

Entry ID: 5541423

See, e.g., Campos-

Orrego, 175 F.3d at 94; Moore, 47 F.3d at 10-12.
What This All Means
For the reasons recited above, we affirm the judgment
below in all respects.

Costs to Rodríguez.

So Ordered.

-25-