Centrella et al v. RitzCraft Corporation of Pennsylvania et al

Filing 171

OPINION AND ORDER: The Court DENIES Ritz-Craft's 169 SUPPLEMENTAL MOTION for Judgment as a Matter of Law, SUPPLEMENTAL MOTION for New Trial and orders that judgment be entered in favor of Plaintiffs in accordance with the jury verdict and t he Court's 172 Opinion and Order on Plaintiffs' 141 Motion for Costs and Attorney Fees, which is filed simultaneously with this Order. Ritz-Craft's previously filed 140 and 147 MOTIONS for Judgment as a Matter of Law, MOTIONS for New Trial are DISMISSED AS MOOT. Signed by Judge John M. Conroy on 2/12/2018. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Carmine Centrella and
Mary Brennan-Centrella,
Plaintiffs,
v.

Civil Action No. 2:14-cv-111-jmc

Ritz-Craft Corporation of Pennsylvania, Inc.,
and Mountain View Modular Homes, Inc.,
Defendants.

OPINION AND ORDER
(Docs. 140, 147, 169)
This case arose from alleged misrepresentations and broken promises regarding
a modular home purchased by Plaintiffs Carmine Centrella and Mary BrennanCentrella in 2013. Defendant Ritz-Craft Corporation of Pennsylvania, Inc.,
manufactured the home; and Defendant Mountain View Modular Homes, Inc.,
completed and installed it, and sold it to Plaintiffs. After a five-day trial, a jury found
in favor of Plaintiffs on their consumer protection claim but in favor of Ritz-Craft on
Plaintiffs’ breach of warranty claims.
Pending before the Court is Ritz-Craft’s Supplemental Motion for Post-Trial
Relief, wherein Ritz-Craft seeks judgment as a matter of law or, in the alternative, a
new trial, pursuant to Rules 50(b) and 59(a) of the Federal Rules of Civil Procedure.

(Doc. 169.)1 Plaintiffs have filed an Opposition (Doc. 162),2 and Ritz-Craft has replied
(Doc. 163). For the reasons stated below, Ritz-Craft’s Supplemental Motion for PostTrial Relief (Doc. 169) is DENIED.
Factual and Procedural Background
At the time of their purchase of the modular home that is the subject of this
case, Plaintiffs were residents of Connecticut and owned property in Isle La Motte,
Vermont. They long planned to build a home on their Vermont property where they
could retire and live with their family. With this in mind, Mary Brennan-Centrella
researched home building and modular homes for years, focusing on energy-efficient
homes. She eventually decided to contract with Mountain View for the purchase of a
modular home.
Around August 2012, Mountain View recommended Ritz-Craft to Plaintiffs.
Mary knew Mountain View and Ritz-Craft were separate entities but assumed they
had a working relationship and collaborated with each other in the installation of Ritz-

Ritz-Craft has filed two briefs titled “Supplemental Motion for Post-Trial Relief,” one on
October 14, 2017 (Doc. 147) and another on December 21, 2017 (Doc. 169). The Court cites to only the
more recently filed brief herein but assumes the two briefs are identical except for the revisions made to
the more recent version pursuant to the Court’s December 19, 2017 Text Order requiring Ritz-Craft to
file “a revised post-trial motion that mirrors [the earlier post-trial motion] but cites to the official trial
transcript instead of to ‘Notes of Testimony’” (Doc. 164). Also noteworthy, on September 5, 2017, RitzCraft filed an earlier version of its post-trial motion, titled “Motion for Post-Trial Relief.” (Doc. 140.)
The Court does not consider or reference that motion, given that it includes no citation to the record
evidence and was later revised to include such citation.
1

Citations appear in footnotes in Plaintiffs’ Opposition (see, e.g., Doc. 162 at 2), inconsistent
with the practice of this Court and in violation of Bluebook Rule B1.1, which states: “In non-academic
legal documents, such as briefs and opinions, citations generally appear within the text of the document
immediately following the propositions they support.” The Bluebook: A Uniform System of Citation
B1.1, at 3 (Columbia Law Review Ass’n et al., eds., 20th ed. 2015) (emphasis added). In future filings,
Plaintiffs are advised to follow this Rule and include citations within the text of their briefs.
2

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Craft’s homes. Mountain View’s website affirmed this assumption, stating that it was
allied with Ritz-Craft, describing Ritz-Craft’s one- and ten-year warranties, and
providing a link to a video of the president of Ritz-Craft making statements and
warranties to consumers, including a warranty that Ritz-Craft homes provide
maximum energy efficiency. The website also indicated that Ritz-Craft’s modular
homes were built to comply with all applicable local and state codes. Ritz-Craft’s own
website similarly described its warranties and contained other information that
Plaintiffs reviewed before purchasing the home, including a statement that all RitzCraft homes are “inherently green” and energy efficient.
Around November 2012, Plaintiffs visited the Ritz-Craft factory in
Pennsylvania. A Mountain View representative met Plaintiffs at the front door of the
factory. Upon entering the building, Plaintiffs observed a display in the lobby
personally welcoming them. The couple toured the facility and was guided through
the manufacturing process, step-by-step, for approximately four hours. During the
tour, Plaintiffs met various Ritz-Craft employees and discussed the modular homes’
energy efficiency. A Ritz-Craft employee emphasized the homes’ energy efficiency and
told Plaintiffs that a Ritz-Craft home––whether a base model or the top model—would
meet Vermont’s energy code. In deciding whether to purchase a Ritz-Craft modular
home, Plaintiffs considered the representations made to them during this tour, as well
as the representations made in Ritz-Craft’s advertisements and corporate videos.
On January 18, 2013, Plaintiffs entered into a Sales Agreement with Mountain
View for the purchase and installation of a Ritz-Craft modular home. The parties

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agreed on a purchase price of $226,875, which was later increased to approximately
$246,000. In addition, Plaintiffs paid Ritz-Craft $94,262.47 for the home.
After the Sales Agreement was signed, the modules for the home were delivered
to the home site in Vermont, and in April 2013, they were set on a foundation.
Thereafter, various problems arose. First, Mountain View discovered a missing tub
shower enclosure, requiring Mountain View to purchase a tub and provide tile work.
Later, an energy-efficiency report warned against Plaintiffs using the shower due to
health and safety concerns.
On July 18, 2013, Plaintiffs began occupying the house, and more problems
arose. For example, when Plaintiffs turned on the heat downstairs, it turned on
upstairs instead. Additionally, water poured onto the upstairs hardwood floor and
leaked through to the first floor ceiling. Plaintiffs contacted a plumbing company to
evaluate the situation, and the company found code violations in the plumbing and
heating systems, along with elevated carbon monoxide levels. Plaintiffs hired another
plumbing company to inspect the plumbing and heating systems in the house, and
that company also found code violations. In January 2014, a mechanical company
discovered frozen pipes in the upper story of the house. And later, a home inspector
hired by Mountain View found problems in the insulation work within the home’s
walls. Plaintiffs notified Mountain View and Ritz-Craft about the home’s defects and
required repairs, including but not limited to inadequate installation of walls,
defective plumbing design, energy code violations, and heating system problems
resulting in excessive heating costs and inadequate heating.

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On June 2, 2014, Plaintiffs filed their Complaint against Ritz-Craft and
Mountain View, alleging violations of the Vermont Consumer Protection Act (VCPA)
and breaches of express and implied warranties in relation to Plaintiffs’ purchase of
the modular home. (Doc. 1.) About a year later, after a failed mediation attempt
(Doc. 51), default was entered against Mountain View pursuant to Federal Rule of
Civil Procedure 55(a) (Doc. 55), leaving Ritz-Craft as the only active defendant in the
case. Thereafter, Ritz-Craft filed a Motion for Summary Judgment (Doc. 63), which
the Court denied in an Opinion and Order dated August 23, 2016 (Doc. 73). While the
Motion for Summary Judgment was pending, Plaintiffs filed a Motion for Leave to
Amend the Complaint, which the Court granted. (Doc. 76.) On October 13, 2016, the
Amended Complaint was filed: it added no new claims, but rather, alleged additional
facts in support of the claims contained in the original Complaint. (Doc. 77.)
Thereafter, the parties attended a second failed mediation, conducted additional
discovery, and filed several motions in limine in preparation for trial. After a five-day
trial in August 2017, the jury found in favor of Plaintiffs on their consumer protection
claim, awarding them their consideration paid to Ritz-Craft for the home in the
stipulated amount of $94,262. (Doc. 134 at 1–2.) The jury found in favor of Ritz-Craft,
however, on Plaintiffs’ breach of warranty claims, finding that Plaintiffs failed to prove
that Ritz-Craft made any warranties about the home to Plaintiffs or that Plaintiffs
were in privity of contract with Ritz-Craft. (Id. at 2–3.)
Both parties filed post-trial motions. Plaintiffs filed an Application for Costs
and Attorney Fees (Doc. 141) and a Motion for Prejudgment Interest (Doc. 139), which

5

are currently pending and will be addressed in a separate Opinion and Order. And
Ritz-Craft filed the pending Supplemental Motion for Post-Trial Relief (Doc. 169),
which is under consideration herein. Ritz-Craft’s Post-Trial Motion contains both a
Rule 50(b) motion for judgment as a matter of law (id. at 5–20) and, in the alternative,
a Rule 59(a) motion for a new trial (id. at 20–21), as discussed below.
Motion for Judgment as a Matter of Law
Relying on Rule 50(b) of the Federal Rules of Civil Procedure, Ritz-Craft makes
the following arguments in support of its motion for judgment as a matter of law:
(1) the Court should have granted Ritz-Craft’s Motion for Summary Judgment with
respect to Plaintiffs’ VCPA claim (Doc. 169 at 5–6); (2) the Court should have denied
Plaintiffs’ Motion for Leave to Amend Complaint (id. at 7); (3) the Court should have
granted Ritz-Craft’s Rule 50(a) motion for judgment as a matter of law, made orally
after the close of Plaintiffs’ evidence at trial, and the Court may now grant the motion
post-trial under Rule 50(b) (id. at 7–13); (4) the jury charge regarding the VCPA claim
contained information that was prejudicial to Ritz-Craft (id. at 14); (5) the verdict form
improperly failed to require the jury to make an express finding of the particular
misrepresentation or omission giving rise to a determination that Ritz-Craft violated
the VCPA (id. at 14–17); (6) the Court should not have permitted Plaintiffs’ expert
James Bradley to testify regarding opinions that were not disclosed in his expert
report (id. at 17–19); and (7) the Court’s instruction to the jury regarding Mountain
View’s involvement in this lawsuit was insufficient (id. at 19–20).

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I.

Legal Standard
Federal Rule of Civil Procedure 50(b) provides that:
If the court does not grant a motion for judgment as a matter of law made
under Rule 50(a), the court is considered to have submitted the action to
the jury subject to the court’s later deciding the legal questions raised by
the motion. No later than 28 days after the entry of judgment—or if the
motion addresses a jury issue not decided by a verdict, no later than 28
days after the jury was discharged—the movant may file a renewed motion
for judgment as a matter of law and may include an alternative or joint
request for a new trial under Rule 59.

To succeed on a Rule 50 motion for judgment as a matter of law, the moving party
must show that, “after full hearing on an issue at trial, ‘there is no legally sufficient
evidentiary basis for a reasonable jury’ to resolve the issue in favor of the non-moving
party.” Cross v. New York City Transit Auth., 417 F.3d 241, 247 (2d Cir. 2005)
(quoting Fed. R. Civ. P. 50(a)(1)); see Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp.,
136 F.3d 276, 289 (2d Cir. 1998) (“Judgment as a matter of law may not properly be
granted under Rule 50 unless the evidence, viewed in the light most favorable to the
opposing party, is insufficient to permit a reasonable juror to find in her favor.”). In
reviewing a Rule 50 motion, the court “may consider all the record evidence, but in
doing so it ‘must draw all reasonable inferences in favor of the nonmoving party, and it
may not make credibility determinations or weigh the evidence.’” Cross, 417 F.3d at
247 (quoting Reeves. v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000));
see S.E.C. v. Ginder, 752 F.3d 569, 574 (2d Cir. 2014) (“The court must consider the
evidence in the light most favorable to the non-movant and give that party the benefit
of all reasonable inferences that the jury might have drawn in his favor from the
evidence.” (internal quotation marks omitted).) Thus, weak evidence does not itself

7

justify judgment as a matter of law; and the judge’s role is not to resolve problems
with testimony, but rather, to determine whether a reasonable jury could make the
inference the jury made.
A movant’s burden in achieving Rule 50 relief is “particularly heavy” where, as
here, a jury has deliberated and returned its verdict. Cross, 417 F.3d at 248. The
motion must be denied unless “the evidence is such that, without weighing the
credibility of the witnesses or otherwise considering the weight of the evidence, there
can be but one conclusion as to the verdict that reasonable [persons] could have
reached.” Id. (quoting Samuels v. Air Transp. Local 504, 992 F.2d 12, 14 (2d Cir.
1993)). In other words, the court may grant a post-verdict Rule 50 motion only if there
is “such a complete absence of evidence supporting the verdict that the jury’s findings
could only have been the result of sheer surmise and conjecture” or there is “such an
overwhelming amount of evidence in favor of the movant that reasonable and fair[]minded [persons] could not arrive at a verdict against him.” Id. (quoting Song v. Ives
Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992)); see also Drake v. Allergan, Inc., 111 F.
Supp. 3d 562, 566 (D. Vt. 2015).
II.

Analysis
A.

Court’s Prior Decisions on Ritz-Craft’s Motion for Summary
Judgment (VCPA Claim) and Plaintiffs’ Motion for Leave to
Amend Complaint

Ritz-Craft first contends that the Court should have granted its Motion for
Summary Judgment with respect to Plaintiffs’ VCPA claim because all of Ritz-Craft’s
alleged misrepresentations or omissions were “expressly known to Plaintiffs prior to

8

their contact[] with Mountain View[] to purchase the home” (Doc. 169 at 5), and for
other reasons not articulated in the pending Motion (id. at 6). The only support RitzCraft provides for this argument is as follows: “For the reasons set forth in its
summary judgment pleadings, Ritz-Craft respectfully submits [that] the Court’s
determination regarding summary judgment was in error and provides a basis for
post-trial relief in this case.” (Id.) Plaintiffs’ response to this argument (as well as to
Ritz-Craft’s following two arguments) is that it does not merit a response because it is
“improper under governing case law as a basis for post-trial relief.” (Doc. 162 at 3.)
Indeed, Ritz-Craft’s argument appears to be an attempt to relitigate a settled issue in
the case, with no offer of new evidence or law to support it. (See, e.g., Doc. 63 at 4,
Doc. 73 at 10–15.)
But “post-trial motions do not exist to allow [losing parties] to relitigate the
case, present new theories, or otherwise take a ‘second bite at the apple.’” Hines v.

Veterans Outreach Ctr., Inc., No. 10-CV-6493, 2016 WL 1271076, at *1 (W.D.N.Y. Mar.
28, 2016) (quoting Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998)). RitzCraft provides no colorable argument to vacate the judgment here, but rather, merely
references arguments advanced nearly two years ago in its Motion for Summary
Judgment (see Doc. 63). Those issues have been fully considered and rejected (see Doc.
73), and there is no reason for the Court to repeat the analysis here, especially where
neither the moving nor responding party has analyzed them in their briefs, and where
Ritz-Craft has offered no evidence that was admitted at trial to dispute the Court’s
decision.

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Specifically, on August 23, 2016, the Court issued an Opinion and Order clearly
addressing the principal issue argued here and finding as follows:
[T]h[e] evidence suggests that the Centrellas did not have “express
knowledge” of the respective responsibilities of and extent of the work
(including insulation) to be performed by Mountain View and other
subcontractors. In particular, contrary to Ritz-Craft’s assertion that the
Centrellas knew entities other than Ritz-Craft were responsible for the
insulation work (see Doc. 63 at 5), the Sales Agreement and deposition
testimony suggests Ritz-Craft may have “suppl[ied]/install[ed]” insulation
and provided the plans for its installation. Accordingly, the responsibilities
of other entities were not in fact “fully known” to the Centrellas. (See id.
at 6 (arguing no VCPA claim “[b]ecause all of these facts were fully known
to Plaintiffs”).)
(Doc. 73 at 14.) Centrella v. Ritz-Craft Corp. of Pennsylvania, Inc., Civil Action No.
2:14-cv-111-JMC, 2016 WL 4444759, at *6 (D. Vt. Aug. 23, 2016). The Court also
found that there were triable issues of fact regarding Plaintiffs’ awareness that the
energy efficiency of the home was necessarily dependent on work performed by parties
other than Ritz-Craft; and triable issues of fact regarding whether Ritz-Craft made
statements of fact to Plaintiffs regarding the home’s energy efficiency. Id. The Court
explained: “Even assuming the phrases ‘inherently green’ and ‘energy efficiency’ . . .
constitute statements of opinion, they were not the only statements made to the
Centrellas[:] . . . [a] Ritz-Craft employee . . . told the Centrellas that their modular
home would satisfy Vermont energy code.” Id.
Ritz-Craft points to no evidence admitted at trial to undermine the Court’s
decision. And in fact, there was ample evidence at trial to support the jury’s verdict on
the VCPA claim, particularly regarding misrepresentations or omissions made by RitzCraft to Plaintiffs. (See, e.g., Doc. 167 at 88:20–24, 91:1–13, 92: 3–12 (Mary Centrella
trial testimony); Doc. 168 at 42:12–19, 46:6–7, 73:17–20 (Carmen Centrella trial
10

testimony).) Ritz-Craft has clearly failed to meet the high bar of showing “a complete
absence of evidence supporting the verdict” on this issue, or, stated differently, that
the jury’s findings “could only have been the result of sheer surmise and conjecture” or
that “reasonable and fair minded [persons] could not arrive at a verdict against [RitzCraft]” on this issue. Advance Pharm., Inc. v. United States, 391 F.3d 377, 390 (2d Cir.
2004) (first alteration in original) (quoting Galdieri, 136 F.3d at 289).
Similar to the argument regarding the Court’s ruling on Ritz-Craft’s Motion for
Summary Judgment, Ritz-Craft argues that the Court erred in granting Plaintiffs’
Motion for Leave to Amend Complaint. (Doc. 169 at 7; see Docs. 71, 76.) Ritz-Craft
states:
For the reasons set forth in its opposition [to Plaintiffs’ Motion for Leave
to Amend Complaint] and because the amendment permitted Plaintiffs to
include additional bases for alleged violation of the CPA . . . , Ritz-Craft
respectfully submits that amendment was improper and provides a basis
for post-trial relief in this case.
(Doc. 169 at 7.) As explained above, the purpose of post-trial motions is not to
relitigate the case or rehash arguments, like this one (see Docs. 71, 76), that have
already been made and decided, especially when the moving party points to no
evidence presented at trial that would require a different decision. Ritz-Craft offers no
reason to disturb the Court’s decision, which simply allowed Plaintiffs to amend their
Complaint to “allege additional facts in support of the[ir] existing legal claims.”
(Doc. 76 at 2.)
Furthermore, Ritz-Craft did not make a Rule 50(a) motion regarding the
arguments made in its Opposition to Plaintiffs’ Motion for Leave to Amend the
Complaint; nor did Ritz-Craft make such a motion regarding the arguments made in
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its Motion for Summary Judgement. A Rule 50(a) motion requesting judgment as a
matter of law on one ground but omitting another is insufficient to preserve a
judgment-as-a-matter-of-law argument based on the latter. Lore v. City of Syracuse,
670 F.3d 127, 152–53 (2d Cir. 2012) (citing Holmes v. United States, 85 F.3d 956,
961–63 (2d Cir. 1996); Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 164 (2d Cir. 1998)).
“Together, Rules 50(a) and (b) limit the grounds for judgment [as a matter of law] to
those specifically raised in the prior motion for a directed verdict.” Holmes, 85 F.3d at
962 (emphasis added) (internal quotation marks omitted); see Fed. R. Civ. P. 50(b),
Notes of Advisory Committee to 2006 Amendment (“Because the Rule 50(b) motion is
only a renewal of the preverdict motion, it can be granted only on grounds advanced in
the preverdict motion.”); Munn v. Hotchkiss Sch., 24 F. Supp. 3d 155, 182 (D. Conn.
2014) (“A party may only assert a renewed claim for judgment as a matter of law
under Rule 50(b) if it previously raised that specific issue during trial in a Rule 50(a)
motion.”); Lexjac, LLC v. Bd. of Trustees of the Inc. Vill. of Muttontown, No. CV 074614 (ARL), 2014 WL 12653834, at *4 (E.D.N.Y. July 30, 2014) (“It is well settled that
a party may not move for judgment as a matter of law for the first time after a verdict
has been entered, but rather may only renew a motion that has been made prior the
submission of the case to a jury.”).
The Second Circuit has held that the specificity requirement of Rule 50 is
“obligatory,” its purpose being to “ensure[ ] that the other party is made aware of any
deficiencies in proof that may have been overlooked.” Holmes, 85 F.3d at 962
(alteration in original) (internal quotation marks omitted). Requiring a party to state
specific grounds for its Rule 50(a) motion puts the opposing party on notice of potential
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deficiencies in its proof before the case is submitted to the jury. Id. Here, Ritz-Craft
made an oral Rule 50(a) motion at the close of Plaintiffs’ case during the third day of
trial. With respect to the VCPA claim (the only claim relevant here), the motion
identified four grounds on which Ritz-Craft claimed it was entitled to judgment as a
matter of law: (1) the jury could not find that Ritz-Craft made one of the particular
alleged misrepresentations or omissions listed in Plaintiffs’ Amended Complaint;
(2) Plaintiffs’ interpretation of Ritz-Craft’s alleged misrepresentations or omissions
was not reasonable and was not material because of their knowledge of the respective
roles of Ritz-Craft and Mountain View; (3) Ritz-Craft’s alleged misrepresentations that
the home was “inherently green” and “energy efficient” were statements of opinion, not
fact, and thus could not give rise to a VCPA claim; and (4) Plaintiffs failed to present
any evidence to support their exemplary damages claim. Ritz-Craft made no mention
of any additional arguments that were previously made in its Opposition to Plaintiffs’
Motion for Leave to Amend Complaint or in its Motion for Summary Judgment.
Therefore, these arguments have not been preserved, and the Court need not rule on
them here. See Cruz v. Local Union No. 3 of the Int’l Bhd. of Elec. Workers, 34 F.3d
1148, 1155 (2d Cir. 1994) (“[I]f an issue is not raised in a previous motion for a
directed verdict, a Rule 50(b) motion should not be granted unless it is required to
prevent manifest injustice.” (internal quotation marks omitted)).
B.

Ritz-Craft’s Rule 50 Motion Made at Trial (VCPA Claim)

Next, Ritz-Craft argues that its oral Rule 50 motion for judgment as a matter of
law, made after the close of Plaintiffs’ evidence at trial, should have been granted and
may now be granted. (Doc. 169 at 7–13.) At trial, the Court denied the motion on the
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VCPA claim, stating that a reasonable jury could conclude that all the elements of the
claim had been satisfied. Although the Court agreed with Ritz-Craft that the
statement that Ritz-Craft’s homes are “inherently green” was a statement of opinion,
not fact, and thus that statement could not constitute a “misrepresentation” under the
VCPA, see PH W. Dover Prop., LLC v. Lalancette Eng’rs, 2015 VT 48, ¶ 6, 199 Vt. 1,
120 A.3d 1135 (quoting Heath v. Palmer, 2006 VT 125, ¶ 14, 181 Vt. 545, 915 A.2d
1290) (“We have distinguished statements of fact from statements of opinion in the
consumer-fraud context, holding that misrepresentations of the former may constitute
fraud while misrepresentations of the latter cannot.”); the Court found that the
statement that the home was “energy efficient” was a statement of fact. Only one
misrepresentation is required to demonstrate a violation of the VCPA, and
representations that could have more than one reasonable interpretation may violate
the VCPA if just one of those interpretations is false. See Carter v. Gugliuzzi, 168 Vt.
48, 57, 716 A.2d 17, 24 (1998); 9 V.S.A. § 2453(a). Evidence was admitted at trial that
Ritz-Craft represented to Plaintiffs that the home was energy efficient. (See, e.g.,
Doc. 167 at 91:1–13, 92: 3–12 (Mary Centrella trial testimony); Doc. 168 at 42:12–19,
46:6–7, 73:17–20 (Carmen Centrella trial testimony).) Therefore, Ritz-Craft’s
assertion that the only alleged misrepresentations made by Ritz-Craft to Plaintiffs
about the modular home were statements of opinion is inaccurate. Given the evidence
admitted at trial, a reasonable person could conclude––as the jury did––that RitzCraft violated the VCPA based on misrepresentations of fact made to Plaintiffs about
the home.

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C.

Jury Charge on VCPA Claim

Next, Ritz-Craft argues that the jury charge regarding the VCPA claim
contained information that was prejudicial to Ritz-Craft. (Doc. 169 at 14.)
Specifically, Ritz-Craft contends the following excerpt from the instruction was
prejudicial:
Plaintiffs claim that Ritz-Craft committed unfair or deceptive acts in
violation of the CPA by: (a) making misrepresentations to Plaintiffs
regarding the modular home’s energy efficiency and compliance with
Vermont’s energy code, and misrepresenting that the home would be fully
backed by Ritz-Craft and completed with quality workmanship; (b) failing
to disclose to Plaintiffs that the energy efficiency of the modular home
would be dependent on the work performed by Mountain View; and
(c) failing to disclose to Plaintiffs information concerning Ritz-Craft’s
relationship with “approved” builders like Mountain View and the process
by which a builder like Mountain View became “approved” by Ritz-Craft.
(Doc. 131 at 12–13.) Ritz-Craft objects that this part of the instruction was
“unnecessary” and “could serve to amplify Plaintiffs’ claim before the jury.” (Doc. 169
at 14.)
“As a general matter, no particular wording is required for a jury instruction to
be legally sufficient, but rather, th[e] Court must look to the charge as a whole to
determine whether it adequately reflected the law and would have conveyed to a
reasonable juror the relevant law.” United States v. Gabinskaya, 829 F.3d 127, 132–33
(2d Cir. 2016) (internal quotation marks omitted). Ritz-Craft does not argue that the
Court’s VCPA instruction inadequately reflected the law to jurors. The only law cited
by Ritz-Craft to support its argument is a case involving a jury instruction that
contained an “erroneous statement of the law” and was “likely to leave the jury highly
confused.” DeLima v. Trinidad Corp., 302 F.2d 585, 587 (2d Cir. 1962). Here, nothing

15

in the above excerpt erroneously described the relevant law or was likely to confuse
the jury. Rather, the excerpt merely summarizes Plaintiffs’ claims, based on the
evidence presented at trial, prior to outlining the elements of a VCPA claim for the
jury. See Poulin v. Ford Motor Co., 147 Vt. 120, 127 (1986) (approving jury
instructions that “outlin[ed] the plaintiff’s claims”). The Court finds no error.
D.

VCPA Claim on Verdict Form

Ritz-Craft next argues that the verdict form should have included the seventeen
specific alleged misrepresentations or omissions by Ritz-Craft that were listed in
Plaintiffs’ Amended Complaint (see Doc. 77 at 9–11), and the Court should have
required the jury to “determine that each specific representation was made, that it was
reasonably interpreted[,] and that the specific representation was material.” (Doc. 169
at 15 (emphasis added).) Ritz-Craft presents no law to support this argument, and the
Court is aware of none. The law simply requires that a plaintiff prove the following
elements, by a preponderance of the evidence, to succeed on a claim for violation of
Vermont’s CPA: (1) the defendant made a statement, omitted information, or engaged
in a practice, that an ordinary person would decide was misleading; (2) the plaintiff
reasonably interpreted what the defendant said, failed to say, or did; and (3) the
defendant’s statement, omission, or practice was “material,” meaning it would be
likely to affect an ordinary person’s decision whether to purchase the relevant goods or
services or enter into the relevant contract. McKinstry v. Fecteau Residential Homes,
Inc., 2015 VT 125, ¶ 10, 200 Vt. 392, 131 A.3d 1123 (citing Jordan v. Nissan N. Am.,
Inc., 2004 VT 27, ¶ 5, 176 Vt. 465, 853 A.2d 40); see 9 V.S.A. § 2453. The verdict form
tracked this law, requiring the jury to answer the following questions:
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1.
Did Plaintiffs prove by a preponderance of the evidence that RitzCraft made a statement, omitted information, or engaged in a practice,
that was likely to mislead Plaintiffs with respect to their purchase of a
Ritz-Craft modular home? . . .
2.
Did Plaintiffs prove by a preponderance of the evidence that they
interpreted Ritz-Craft’s statement, omission, or practice reasonably under
the circumstances? . . .
3.
Did Plaintiffs prove by a preponderance of the evidence that RitzCraft’s misleading statement, omission, or practice was material, meaning
it affected Plaintiffs’ decision to purchase the modular home?
(Doc. 134 at 1.)
Ritz-Craft cites to Gregory v. Poulin Auto Sales, Inc., 2010 VT 85, 188 Vt. 619,
9 A.3d 679, in support of its argument, noting that in that case, the Vermont Supreme
Court remanded for a “‘clear finding of a violation’” of the CPA, as necessary to
establish liability under Vermont law. (Doc. 169 at 15–16 (quoting Gregory, 2010 VT
85, ¶ 16)). Applying Gregory here, Ritz-Craft contends that, “absent the express
allegations [regarding which particular misrepresentations Ritz-Craft made to
Plaintiffs], it is impossible to determine whether . . . there was a ‘clear finding of a
violation’ of the CPA.” (Id. at 16 (quoting Gregory, 2010 VT at ¶ 16).) Gregory does
not, however, stand for that proposition: nowhere in the case does the court indicate
that the jury in a CPA case must specify on the verdict form which particular
misrepresentations the defendant made to the plaintiff. Moreover, the procedural
posture of that case was entirely different from this one. There, without holding a
hearing and with “precious little evidence in the record,” the trial court granted the
plaintiff’s motion for summary judgment on a CPA claim, finding that the defendant
had made false representations in violation of the CPA. Gregory, 2010 VT at ¶ 16.

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Here, not only was there a hearing, there was a five-day trial; and the jury verdict
clearly indicates the jury’s findings on the CPA claim.
In a footnote, Ritz-Craft argues that the verdict form was also deficient because
it “precludes any opportunity to determine whether or not the jury’s verdict is
inconsistent.” (Doc. 169 at 17 n.1.) Ritz-Craft explains that, although it is “unable
definitively to make [a] determination [as to whether the verdict is inconsistent], RitzCraft believes it “may be inconsistent.” (Id.) This argument fails for two reasons.
First, Ritz-Craft did not raise this objection earlier and thus it has been waived, given
the well-established rule that “a party waives its objection to any inconsistency in a
jury verdict if it fails to object to the verdict prior to the excusing of the jury.”
Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 83 (2d Cir. 2006). Second, even if the
objection had not been waived, it lacks merit because the findings contained in the
jury’s verdict can be reconciled with each other; and the law provides that, where there
is a view of the case that makes a jury’s verdict internally consistent, the verdict must
be resolved that way. See Turley v. Police Dep’t of City of New York, 167 F.3d 757, 760
(2d Cir. 1999) (“Before a court may set aside a special verdict as inconsistent and
remand the case for a new trial, it must make every attempt to reconcile the jury’s
findings, by exegesis if necessary.” (internal quotation marks omitted)). As Ritz-Craft
itself states: “[I]f the jury’s determination of a misrepresentation or omission giving
rise to the CPA claim was [Ritz-Craft’s] failure to disclose that [the home’s] energy
efficiency would be dependent upon work performed by the builder, the verdict[] [is]
not necessarily inconsistent.” (Doc. 169 at 17 n.1.)

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E.

Testimony of Expert Witness James Bradley

Ritz-Craft next finds error with the Court’s decision to allow Plaintiffs’ expert,
James Bradley of Caleb Contracting LLC, to testify at trial regarding opinions that
were not disclosed in Bradley’s expert report. (Doc. 169 at 17–19.) By way of
background, Plaintiffs had produced to Ritz-Craft Bradley’s expert report before the
trial and later introduced the report as an exhibit at the trial. Bradley then testified
about an opinion at trial that was not included in his report: specifically, that the
home as designed by Ritz-Craft failed to comply with Vermont’s energy code because
the design placed a heating unit in the basement, which was not an unconditioned
space. (See Doc. 167 at 114–19, 144–47, 149, 165–66 (Bradley trial testimony);
Doc. 169 at 18.) Despite the parties agreeing in their Joint Trial Memorandum that
Bradley would “provide testimony on the energy efficiency of the home, Vermont
Energy Code compliance, and defective workmanship” (Doc. 92 at 27), this particular
opinion regarding Ritz-Craft’s alleged faulty design of the home in such a way as to
violate Vermont’s energy code was not included in Bradley’s report. In fact, Plaintiffs
failed to disclose this expert testimony at any time prior to Bradley testifying about it
at trial. (Doc. 169 at 18.) Ritz-Craft moved for the Court to strike the testimony and
issue a limiting instruction to the jury, but the Court denied the motion, finding that:
(1) Ritz-Craft could address the issue on cross-examination of Bradley, and (2) RitzCraft’s expert architect, Albert Russell, could testify beyond the scope of his previously
produced expert report in order to respond to Bradley’s testimony regarding RitzCraft’s design of the plans for the home.

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Rule 26(a)(2)(B)(i) of the Federal Rules of Civil Procedure requires that expert
testimony be accompanied by a written report, which shall contain “a complete
statement of all opinions the witness will express and the basis and reasons for them.”
Rule 37(c)(1) of the Federal Rules of Civil Procedure states that, “[i]f a party fails to
provide information . . . as required by Rule 26(a) . . . , the party is not allowed to use
that information . . . at a trial, unless the failure was substantially justified or is
harmless.” Although Rule 37 is written in mandatory terms and is designed to provide
strong inducement for disclosure of information, the rule expressly provides that the
information should not be excluded if the failure to disclose was harmless or if a
substantial justification exists for such a failure. Design Strategies, Inc. v. Davis, 367
F. Supp. 2d 630, 634 n.3 (S.D.N.Y. 2005). Therefore, “[c]ourts in this Circuit have
noted that, [d]espite the self-executing nature of Rule 37(c)(1), the imposition of
sanctions under the rule is a matter within the trial court’s discretion.” Id. (internal
quotation marks omitted) (second alteration in original); Hein v. Cuprum, S.A., De
C.V., 53 F. App’x 134, 136 (2d Cir. 2002) (“[T]he imposition of sanctions for abuse of
discovery under [Rule] 37 is a matter within the discretion of the trial court.”).
Applying these principles, the Second Circuit held in Hein v. Cuprum, 53 F.
App’x at 136, that the district court did not abuse its discretion by allowing an expert
witness to testify about an issue that was not disclosed in his expert report, where the
court took appropriate steps––including allowing the plaintiff to examine the expert
on re-direct examination and to recall another expert to rebut the testimony––to
ensure that the plaintiff would not be harmed by the nondisclosure. Noting that “[t]he

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trial judge appropriately used his discretion to steer a middle course between the
extreme remedy of exclusion and the possibility of unfair prejudice to the plaintiff,” id.
at 137, the court held that “it was not an abuse of discretion for the trial judge to have
allowed the challenged testimony where he took appropriate steps to ensure that
plaintiff would not be harmed by the defendants’ nondisclosure,” id. at 136.
Similarly, here, the Court allowed Ritz-Craft to cross-examine Bradley
regarding whether Ritz-Craft’s design of the basement complied with Vermont’s
energy code and to question its own expert architect, Russell, on this issue even
though it was not contained in Russell’s report. Counsel for Ritz-Craft did in fact
cross-examine Bradley on the issue (see Doc. 167 at 155, 163–68 (Bradley trial
testimony)), pointing out that his testimony at trial differed from his earlier testimony
in deposition and asking him to explain the change in opinion (id. at 166–67).
Bradley’s primary reply was simply that he did not testify about “unconditioned space”
at his deposition. (Id. at 167.) Moreover, after reviewing Bradley’s testimony
overnight, Russell refuted Bradley’s testimony, advising the jury that “the Ritz-Craft
design [of the modular home] did comply with the energy code” and that “a lot of the
work that was done . . . or not done properly by the builder on site really accounted for
the issues that were found and documented by Bradley.” (Doc. 165 at 45:3–7 (Russell
trial testimony) (emphases added).) Upon questioning by Ritz-Craft, Russell
repeatedly confirmed that Ritz-Craft’s plans for the home complied with Vermont’s
energy code and that any deficiencies in the home’s energy efficiency were the fault of
the builder not Ritz-Craft. (Id. at 45–49.)

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Therefore, the jury was provided with evidence on both sides and was tasked
with assessing the credibility of each expert in determining whether Ritz-Craft’s
design of Plaintiffs’ home complied with Vermont’s energy code based on the
placement of the heating system in an unconditioned space. Ritz-Craft has failed to
identify any information that it would have presented to the jury had the relevant
opinion been disclosed earlier, or any other prejudice resulting from the testimony. At
most, the allowance of Bradley’s testimony was harmless error. Notably, given the
elements of a VCPA claim (see Doc. 131 (Jury Charge), at 13; Doc. 134 (Verdict Form),
at 1–2), the jury was not required to find that Ritz-Craft’s design of the home failed to
comply with Vermont’s energy code in order to conclude that Ritz-Craft violated the
VCPA.
F.

Instruction to Jury Regarding Mountain View

Finally, Ritz-Craft asserts that the Court’s instruction to the jury regarding
Mountain View’s involvement in this lawsuit was insufficient. (Doc. 169 at 19–20.)
The Jury Charge contains the following references to Mountain View:
 As you have seen and heard in this trial, this case involves a modular
home manufactured by Ritz-Craft, sold to Plaintiffs by Mountain View . . . ,
and installed on Plaintiffs’ property in Vermont by Mountain View and its
subcontractors. I remind you that claims concerning Mountain View’s
liability are not before you. (Doc. 131 at 11 (emphasis added).)
 Ritz-Craft further claims that it had no control or involvement in
Plaintiffs’ purchase of the modular home from Mountain View and no role
or responsibility regarding any work performed on the home by Mountain
View or its subcontractors at the home site. According to Ritz-Craft, its
only obligation to Plaintiffs was to deliver the modular home as ordered by
Mountain View; and it met that obligation. (Id. at 12.)

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 Plaintiffs claim that Ritz-Craft committed unfair or deceptive acts in
violation of the CPA by: (a) . . . ; (b) failing to disclose to Plaintiffs that the
energy efficiency of the modular home would be dependent on the work
performed by Mountain View; and (c) failing to disclose to Plaintiffs
information concerning Ritz-Craft’s relationship with “approved” builders
like Mountain View and the process by which a builder like Mountain View
became “approved” by Ritz-Craft. (Id. at 12–13.)
Ritz-Craft claims these instructions were “too limited” because they “failed to give the
jury the complete picture of the litigation, leaving [the jury] to decide the claims
against Ritz-Craft in a vacuum.” (Doc. 169 at 20.) Ritz-Craft provides no legal
support for this argument. Moreover, it cannot be argued that these instructions
misled or confused the jury about either Mountain View’s or Ritz-Craft’s involvement
in this lawsuit. See Luciano v. Olsten Corp., 110 F.3d 210, 218 (2d Cir. 1997) (“[W]e
will not grant a new trial, unless, taken as a whole, the jury instructions gave a
misleading impression or inadequate understanding of the law.” (internal quotation
marks omitted)). Throughout the trial, the jury heard evidence, as necessary, about
Mountain View’s involvement in the facts underlying Plaintiffs’ claims. There was no
reason for the jury to be instructed about Mountain View’s default, however, and this
information may have misled or confused the jury.
For these reasons, the Court DENIES Ritz-Craft’s Motion for Judgment as a
Matter of Law under Rule 50(b) and holds that the evidence, viewed in a “light most
favorable” to Plaintiffs, is sufficient “to permit a reasonable juror to find in [Plaintiffs’]
favor.” Galdieri, 136 F.3d at 289.
Motion for a New Trial
In the alternative, relying on Rule 59(a) of the Federal Rules of Civil Procedure,
Ritz-Craft argues that the Court should order a new trial to prevent injustice or to
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correct a verdict that is contrary to the weight of the evidence. (See Doc. 169 at 4–5,
20–21.) Specifically, Ritz-Craft seeks a new trial on the following two grounds: (1) the
verdict may be based on Ritz-Craft’s alleged misrepresentations regarding “maximum
energy efficiency,” but this phrase is a statement of opinion, not fact, and thus not
actionable under the VCPA; and (2) Ritz-Craft could not have violated the VCPA
because (a) Plaintiffs had knowledge of the modular home industry and the work to be
performed by Mountain View prior to their purchase of the home, and (b) Plaintiffs
selected and had an ongoing relationship with Mountain View prior to contacting RitzCraft. (Id. at 21.)
I.

Legal Standard
The standard for granting a new trial is less stringent than that for judgment as

a matter of law. See Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d
Cir. 1987). On a motion for new trial, the judge may set aside the verdict even though
there is substantial evidence to support it. Am. Nat’l Fire Ins. Co. v. Mirasco, Inc., 451
F. Supp. 2d 576, 582 (S.D.N.Y. 2006); see Crawford v. Tribeca Lending Corp., 815 F.3d
121, 128 (2d Cir. 2016) (“A district court may grant a Rule 59 motion—even if some
evidence supports the verdict”). The court may weigh the evidence for itself without
viewing it in the light most favorable to the verdict winner. Am. Nat’l Fire Ins. Co.,
451 F. Supp. 2d at 582; see Song, 957 F.2d at 1047. Still, “[t]he district court
ordinarily should not grant a new trial unless it is convinced that the jury has reached
a seriously erroneous result or that the verdict is a miscarriage of justice.” Smith v.
Lightning Bolt Prods., Inc., 861 F.2d 363, 370 (2d Cir. 1988); see Kosmynka, 462 F.3d
at 82. And “a trial judge should not be quick to revisit a jury’s credibility
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determinations, and must proceed ‘with caution and great restraint’ when asked to do
so.” Crawford, 815 F.3d at 128 (quoting Raedle v. Credit Agricole Indosuez, 670 F.3d
411, 418 (2d Cir. 2012)).
Moreover, “Rule 59 is not a vehicle for relitigating old issues, presenting the
case under new theories, securing a rehearing on the merits, or otherwise taking a
‘second bite at the apple.’” Sequa Corp., 156 F.3d at 144. The primary grounds for
granting a Rule 59 motion turn on “an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear error or prevent manifest
injustice.” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d
Cir. 1992) (internal quotation marks omitted). “In passing on a motion for a new trial,
a district court exercises broad discretion.” Olson v. Bradrick, 645 F. Supp. 645, 654
(D. Conn. 1986) (citing McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556
(1984)).
II.

Analysis
Ritz-Craft moves in the alternative for a new trial on principally the same

grounds for which it moves for judgment as a matter of law. (See Doc. 169 at 20
(seeking a new trial “for the reasons set forth above”).) Ritz-Craft presents no
intervening change of law, new evidence, or clear error or manifest injustice in the
jury verdict. Rather, the verdict suggests that the jury found Plaintiffs’ witnesses
sufficiently credible, or Ritz-Craft’s witnesses sufficiently incredible, to warrant a
verdict in Plaintiffs’ favor on the VCPA claim. There is nothing in the record to
warrant upsetting the verdict. Therefore, for the reasons explained above, and finding
that the jury did not reach a “seriously erroneous result” and that the verdict is not a
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“miscarriage of justice,” Kosmynka, 462 F.3d at 82, the Court DENIES Ritz-Craft’s
alternative Motion for a New Trial under Rule 59(a).
Conclusion
For these reasons, the Court DENIES Ritz-Craft’s Supplemental Motion for
Post-Trial Relief (Doc. 169) and orders that judgment be entered in favor of Plaintiffs
in accordance with the jury verdict and the Court’s ruling on Plaintiffs’ Motion for
Costs and Attorney Fees (Doc. 141), which is filed simultaneously with this Order.
Ritz-Craft’s previously filed Motions for Post-Trial Relief (Docs. 140 and 147) are
dismissed as moot. (See supra p. 2, note 1.)
Dated at Burlington, in the District of Vermont, this 12th day of February 2018.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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