Cambridge Plating Co. v. Napco, Inc.

                United States Court of Appeals
                    For the First Circuit

                                         

No. 95-1781

                 CAMBRIDGE PLATING CO., INC.,

                     Plaintiff-Appellee,

                              v.

                         NAPCO, INC.,

                     Defendant-Appellant.

                                         

No. 95-1782

                 CAMBRIDGE PLATING CO., INC.,

                     Plaintiff-Appellant,

                              v.

                         NAPCO, INC.,

                     Defendant-Appellee.

                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

  [Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge]
                                                                      

                                         

                            Before

                    Selya, Boudin and Lynch

                       Circuit Judges.
                                                 

                                         

   Thomas K. Christo,  with whom  David B. Chaffin  and Hare  &
                                                                           


Chaffin were on brief, for Cambridge Plating Co., Inc.
                 
   Lawrence S. Robbins, with whom Gary A. Winters, Mayer, Brown
                                                                           
& Platt, Richard L.  Burpee and Burpee &  DeMoura were on  brief,
                                                           
for Napco, Inc.

                                         

                         June 3, 1996
                                         

                             -2-


          LYNCH,  Circuit Judge.   These  cross-appeals arise
                      LYNCH,  Circuit Judge.
                                           

out  of the sale  of a defective  wastewater treatment system

for use in  an electroplating operation.  For want  of a $620

part, there was  a damages verdict  of over $7 million.   The

purchaser of  the system,  Cambridge Plating Co.,  Inc., sued

the seller, Napco, Inc., for, among other things,  failing to

reveal that it had knowingly omitted a critical part from the

system.      The  complaint   alleged  breach   of  contract,

intentional  misrepresentation,  negligent  misrepresentation

and  a violation of Mass. Gen. L. ch. 93A,    2, 11 ("Chapter

93A").   After a  twelve-day trial, Cambridge  Plating won on

all counts, with a  jury finding liability on the  common law

counts and the district court finding liability under Chapter

93A.   Both the jury and the district court awarded Cambridge

Plating  significant  damages.    Napco  now  raises  various

challenges  to the verdicts.   We believe there  was error in

the  striking of  post-judgment motions  and that  the claims

were timely filed under  the Massachusetts discovery rule; we

find  the evidence  sufficient and  affirm on  liability (but

reverse the  multiple damages under Chapter  93A), and vacate

and remand the award of damages.

                        I.  Background

                             -3-


          We recite the facts as the  jury and district court

could have  found them.  See Sampson v. Eaton Corp., 809 F.2d
                                                               

156, 157 (1st Cir. 1987).

          Cambridge Plating, as part of its metal plating and

metal finishing  operations, uses  large quantities of  water

for  bath   solutions  and  rinsing.     This  water  becomes

contaminated   with  chemicals  and  metals.    Environmental

regulations require that Cambridge Plating  decontaminate the

wastewater before discharging it into the sewers.

          Napco manufactures and  sells wastewater  treatment

systems  for commercial  users.   In January  1984, Cambridge

Plating   entered  into   a   contract   to   purchase,   for

approximately  $398,000, a  wastewater treatment  system that

would remove the contaminants from the water.  As part of the

contract, Napco provided a "performance warranty" under which

Napco warranted  that the system, if  operated within certain

defined  limits, would  meet  all Massachusetts  and  federal

pollution  abatement requirements.    The warranty,  however,

excluded liability  for all consequential damages or business

loss  Cambridge Plating might incur in the event of a breach.

          The system  Napco sold to Cambridge  Plating used a

precipitation process  to  remove the  contaminants from  the

water.   The wastewater was  fed through pipes,  and injected

with a polymer solution.  The  polymers were to attach to the

                             -4-


contaminants  and  then   aggregate  them   to  form   larger

particles, known  as "floc."  The  floc was to  settle out of

the water and form sludge at the bottom of a clarifying tank.

The clean water  layer on  top would be  discharged into  the

sewer  and Cambridge  Plating would  properly dispose  of the

sludge left behind in the tank.  "Flocculation,"  the joining

of  the smaller  particles into  bigger ones,  was absolutely

critical to  the success of the  wastewater treatment system.

Absent   proper   flocculation,  contaminants   would  remain

suspended  in the water and the water could not be discharged

into the sewer.

          For  proper  flocculation  to  occur,  the  polymer

solution  had  to be  thoroughly  mixed  into the  wastewater

stream.  The system needed  some means of creating turbulence

in  the  stream  sufficient  to  perform  that  mixing.   One

mechanism designed  to create  the necessary turbulence  is a

"static  mixer."   A  static  mixer  is  a  section  of  pipe

containing a  series of "baffles," small  metal plates placed

at  an  angle inside  the pipe  which create  resistance and,

consequently, turbulence.   The polymer solution  is injected

into  the waste  stream  just before  the  water reaches  the

static  mixer.  Once the water with the polymer solution hits

the baffles, mixing occurs.

          There are  alternatives to static  mixers to create

the   required  turbulence  for  a  precipitation  wastewater

                             -5-


treatment system.  As Joseph Aliota, Napco's expert engineer,

testified,  proper mixing can occur if the system is designed

with a series of  significant bends in the piping  around the

area  where the polymer is  injected into the  stream.  Napco

did not opt for  that design.  The engineering  drawings (and

other  items)  for  the   Cambridge  Plating  system  clearly

indicate that the system was to include a static mixer.

          Napco did not install the static mixer.  Nor did it

tell  Cambridge Plating  that the  static mixer had  not been

installed.  It did, however, provide Cambridge Plating with a

"tech   manual"   containing    blueprints   and    operating

instructions for the system.  This manual, given to Cambridge

Plating upon completion of the system, purported to show what

had actually  been built.1 It contained  engineering drawings

indicating that  the static mixer  had been installed  in the

system.  Napco  also provided a  control panel that  depicted

the static mixer as being part of the system.

          Napco's  employees were aware that the static mixer

had  not  been installed.    Bob  Triplett, Napco's  plumbing

subcontractor,  testified  that  he  was  instructed  not  to

install  the static  mixer at  the direction  of either  Carl

                    
                                

1.  Although  the  parties  vigorously  dispute  whether  the
drawings  in  the tech  manual can  be  considered to  be "as
built" drawings as  that term  is used  among engineers,  the
evidence shows clearly that these drawings were placed in the
manual  to  show Cambridge  Plating  what  had actually  been
built.

                             -6-


Bredfield,  a  Napco  employee,  or Bob  DeBisschop,  Napco's

project  manager on the  Cambridge Plating job.   John Eason,

Napco's  Manager  of  Pollution  Abatement  and  the   person

principally responsible  for the  design of the  system, also

testified  that  he knew  the  static  mixer was  not  there,

although he  claimed that the  static mixer was  installed at

first but later removed because it had a tendency to clog.

          The system was installed in late 1984.  For several

months  after  installation,  the  system  generally met  the

applicable  pollution  limits.   A series  of reports  from a

testing  laboratory that  Cambridge Plating forwarded  to the

Massachusetts   Water   Resources  Authority   ("MWRA")  (the

relevant  state regulatory  body)  showed  that from  roughly

March 1985 until  September 1985, the system  usually met the

applicable discharge limits.

          As time  went  on, however,  the  system  regularly

failed to meet the  applicable pollution limits and Cambridge

Plating complained  to Napco about the problems.  Starting in

early  1986,  Edward  Marullo, a  Cambridge  Plating employee

responsible  for running  the  system,  called DeBisschop  at

Napco  to complain  about the  poor performance.   DeBisschop

told Marullo to  manipulate the  polymer and pH  levels.   In

March 1986,  Laurence  Tosi, Cambridge  Plating's  President,

called DeBisschop "yelling and screaming" about the  system's

failures.  Tosi  thought that Napco's  equipment might be  at

                             -7-


fault,  but  DeBisschop  allayed  his concerns,  saying  that

operator error was the likely cause of the problem.  Based on

DeBisschop's assurances,  Tosi took no further  steps to have

the system inspected  for defects.   Again, in 1987,  Marullo

called Eason  at Napco,  who, like his  colleague DeBisschop,

told Marullo to manipulate the polymer flow and pH level.  At

some point, Napco told Tosi that it would be willing to  send

engineers to examine the system or to train further Cambridge

Plating's operators.   But there  was a price  tag: Cambridge

Plating had to agree  to pay $1000 per day  for such service.

Tosi declined.  At no time did Napco inform Cambridge Plating

that the static mixer was missing.

          During  this  period,  Cambridge  Plating  hired  a

series of experts to  determine what was wrong.   In December

1986,  it hired Patrick Hunt, a  waste treatment operator for

Hewlett-Packard  who was  also an  instructor of  a licensing

course for  wastewater treatment operators  at the University

of   Lowell.     Hunt   inspected   the  system,   recognized

"insufficient floc formation" as a problem, and made numerous

suggestions,  most of which  related to operation.   Hunt did

not discover that the static mixer was missing.  In May 1987,

Robert Capaccio, also a wastewater  treatment expert, visited

Cambridge Plating but failed to  detect that the static mixer

was missing.   A third  group of experts  from Memtek,  which

designs  and  manufactures   wastewater  treatment   systems,

                             -8-


examined  the  system in  September 1987  for the  purpose of

proposing a course of action.  They recommended a substantial

overhaul  of the  system  at a  cost  that Cambridge  Plating

considered prohibitive.   During  their review, they  did not

notice that the static mixer was missing.

          As  Cambridge Plating  was trying  to identify  and

solve  the problems with the  system, it was  also becoming a

consistent violator  of the MWRA's regulations.   In December

1988  the   MWRA   fined  Cambridge   Plating  $682,250   for

discharging  excessive levels  of  contaminants.    Cambridge

Plating  challenged  the fine,  which  was  later reduced  to

$128,500,  but   at  a  cost  of   approximately  $54,000  in

attorneys' fees.

          Cambridge  Plating  tried  to  manage  the system's

deficiencies  by rigging  the system  so that  the wastewater

would  be recirculated and retreated  in the system.  "Closed

looping,"  as this practice  was called,  gave more  time for

flocculation  to  occur.    It also  slowed  down  production

considerably.  When there was closed  looping, the system had

to  process both  the retreated  wastewater and  the incoming

wastewater generated  by production.   From 1985  to February

1989,  the  closed  looping  was  accomplished  by  attaching

flexible hoses  to the system.   In February  1989, Cambridge

Plating  replaced  the flexible  hoses  with  hard piping  to

create permanent closed looping.  Cambridge Plating also shut

                             -9-


down  its zinc  plating operation  because, even  with closed

looping, the  system could  not remove the  contaminants from

that  operation.    Because  of its  slowdown  in  production

capacity,  Cambridge Plating's business began to deteriorate.

Net sales declined from a  high of approximately $6.2 million

in 1985 to approximately $4.8 million in 1989.

          In  February 1989  Cambridge  Plating  hired  Peter

Moleux,  another  expert  in  wastewater  treatment  systems.

Moleux  reviewed   Napco's   proposal  and   copies  of   the

engineering drawings.  By chance, Moleux had been given a bad

photocopy  of the drawings.  The portion of the drawings that

depicted the  static mixer did  not appear on  the photocopy.

He decided  to look for the  static mixer in the  system.  He

physically examined the system and  inspected the area of the

system where the static  mixer should have been.   Because of

his expertise,  he noticed  that the piping  looked different

than it should have  if the static mixer had  been installed.

He  later confirmed  that  the  static  mixer  had  not  been

installed.    He told  Cambridge Plating  that the  mixer was

missing.

          Shortly  thereafter, on  March 17,  1989, Cambridge

Plating sent a  letter to Napco  enclosing a draft  complaint

"concerning difficulties" Cambridge  Plating had  experienced

with Napco.  The draft complaint mentioned the missing static

mixer  and  the letter  requested  an "amicable  resolution."

                             -10-


Napco ignored the letter, never agreeing to come to a meeting

to  seek  an amicable  resolution  nor  agreeing  to fix  the

problem.    

          Despite Moleux's discovery,  Cambridge Plating  did

not order the static  mixer until December 1989.   It arrived

at the plant in January 1990 but  was not installed until May

1990.   Installation required the  plant to be  shut down for

one day.  Once  the static mixer was installed,  the system's

performance improved dramatically,  and Cambridge Plating was

able  to discontinue, for the most part, closed looping.  The

static mixer cost $620.

          Cambridge  Plating sued  Napco  on  June  22,  1990

charging breach of contract (including willful repudiation of

warranty),    intentional     misrepresentation,    negligent

misrepresentation  and  violation  of  Chapter  93A.    Napco

subsequently moved for summary  judgment.  The district court

granted the  motion, holding that  Cambridge Plating's claims

were  time-barred.   This  court  reversed  and remanded  for

trial,  see  Cambridge  Plating  Co.,  Inc.  v.  Napco,  Inc.
                                                                         

(Cambridge Plating  I),  991 F.2d  21,  22 (1st  Cir.  1993),
                                  

holding that a genuine  issue of material fact existed  as to

whether Cambridge Plating  could benefit  from the  discovery

rule.

          On  remand,  the  case  was  tried  to  a  jury  in

September 1994.  The district court submitted Fed. R. Civ. P.

                             -11-


49(b) special interrogatories to  the jury on the  statute of

limitations question,  the three  common law counts,  and the

Chapter  93A   count.     The  jury   answered  all   of  the

interrogatories  in Cambridge  Plating's  favor,  returned  a

general verdict on each of the common law counts, and awarded

Cambridge Plating $12,183,120.  The district court treated as

advisory the jury's answers to the Rule 49(b) interrogatories

on  the  Chapter 93A  count, and,  on  February 7,  1995, the

district court issued findings of fact and conclusions of law

on the Chapter 93A count.  See Cambridge Plating Co., Inc. v.
                                                                      

Napco,  Inc. (Cambridge  Plating II),  876  F. Supp.  326 (D.
                                                

Mass. 1995).   In that opinion, the  district court concluded

that  the  Chapter  93A  count  was  timely,  that  Napco had

violated Chapter 93A, and that Cambridge Plating was entitled

to compensatory  damages in the  amount of $3,363,120.2   The

district court  also concluded that the  violation of Chapter

93A  was "willful or knowing" and ordered a punitive award of

double damages.

          Napco filed post-judgment motions for judgment as a

matter  of law, a new trial, remittitur, and amended findings

on the  Chapter 93A  claim.   After Cambridge  Plating argued

that  the  post-judgment motions  failed  to  set forth  with

sufficient  specificity the grounds  for relief, the district

                    
                                

2.  The  district  court  also  awarded  attorneys'  fees  of
$345,000 pursuant to Mass. Gen. L. ch. 93A,   11.

                             -12-


court  struck  all  of the  motions,  except  the motion  for

remittitur.   The district court then granted a remittitur in

the  amount  of $7,839,000  and  gave  Cambridge Plating  the

option of  accepting  the  remittitur,  thereby  accepting  a

reduced damage award on  the common law counts in  the amount

of $4,344,120, or submitting  to a new trial.   See Cambridge
                                                                         

Plating Co., Inc. v. Napco, Inc. (Cambridge Plating III), 890
                                                                    

F.  Supp. 55, 59 (D. Mass. 1995).  Cambridge Plating accepted

the remittitur.

          Napco  now  challenges   the  sufficiency  of   the

evidence, both  as to liability and  damages.  Alternatively,

it seeks  a new trial  due to instructional  error.   It also

argues  that  the  district  court should  have  limited  the

damages even  more.   We turn  first to  the question  of our

scope of review.

                     II.  Scope Of Review

          The  district court's  decision  to strike  Napco's

post-judgment motions affects the scope of our review.  Napco

challenges the sufficiency of the evidence to show willful or

intentional misconduct, seeking a judgment as a matter of law

or, in  the alternative,  a  new trial  on the  "intentional"

counts: intentional misrepresentation, willful repudiation of

warranty  and Chapter  93A.   This  court will  not, however,

review sufficiency  challenges absent a proper  motion in the

                             -13-


district  court for  judgment  as a  matter of  law or  a new

trial.   See Johnson v. New  York, New Haven  & Hartford R.R.
                                                                         

Co., 344 U.S. 48, 54 (1952) (motion for j.n.o.v.); Pinkham v.
                                                                      

Burgess,  933 F.2d 1066, 1070 (1st Cir. 1991) (motion for new
                   

trial);  cf. Hammond v. T.J. Litle & Co., Inc., Nos. 95-1690,
                                                          

95-1913, slip op.  at 10 (1st  Cir. April  30, 1996) ("It  is

beyond   peradventure  that   in  order   to  challenge   the

sufficiency  of the evidence  on appeal,  a party  must first

have  presented the  claim to  the district court,  either by

moving for  judgment as a  matter of law  before the case  is

submitted  to the  jury and  renewing  that motion  after the

verdict, Fed. R.  Civ. P. 50(a), (b), or by  moving for a new

trial  pursuant to  Fed. R. Civ.  P. 59.").   If the district

court acted properly in striking the motions, the motions are

nullities, and,  under Johnson  and Pinkham, Napco  is barred
                                                       

from  challenging  the  sufficiency  of  the  evidence.    We

believe, however, that the district court understandably  but

improperly struck the post-judgment motions.

          A.  Procedural Background
                                               

          The district court entered  judgment on February 8,

1995.  The next day, Napco moved for an extension of time for

filing its memoranda in support of its post-judgment motions,

stating:

          Plaintiff has prevailed on  four separate
          and distinct legal claims.  Therefore, in
          order  to   obtain  postjudgment  relief,
          Napco must  challenge all four  bases for

                             -14-


          the judgment.  This will require Napco to
          argue   several  substantial   legal  and
          factual  issues  including, for  example,
          the  recoverability  of lost  profits for
          negligent      misrepresentation,     the
          sufficiency    of    the   evidence    of
          intentional   misrepresentation   and  of
          repudiation of warranty,  the statute  of
          limitations  (three-year and  four-year),
          as well as issues relating to Chapter 93A
          and damages. 

On February 14, the district court granted the motion, giving

Napco  until   March  1,  1995  to   file  the  post-judgment

memoranda.  On February  17, six days before the  10-day time

limit for filing post-judgment motions expired, Napco filed a

motion pursuant  to Fed. R. Civ. P. 50(b) and 59.  In summary

fashion, the motion outlined its  subject matter and said the

grounds would  be set forth in  the March 1  memorandum to be

filed later in accord  with the Court's extension.3   Also on

                    
                                

3.  The text of the motion was:

          Pursuant to Fed. R. Civ. P. 50(b) and 59,
          the defendant, Napco, Inc., hereby:

               (1) renews the motion for entry
               of judgment as  a matter of law
               that  it made  at the  close of
               the  plaintiff's  evidence  and
               again at  the close of  all the
               evidence;
               (2)  moves for  a new  trial on
               the  common law  counts decided
               by the jury; and
               (3) moves for a remittitur or a
               new  trial  on  damages on  the
               common  law  counts decided  by
               the jury.

          The grounds  for this motion  will be set
          forth in Napco's Memorandum in Support of

                             -15-


February  17, Napco filed a similar motion under Fed. R. Civ.

P.  52(b) and 59 seeking either to amend the district court's

findings of  fact and  conclusions of  law or  to have  a new

trial on  the Chapter 93A claim.   This motion also said that

the grounds  for the motion would be set forth in the March 1

memorandum.  

          On  February 24,  1995, one  day after  the ten-day

period  expired,  Cambridge Plating  moved to  strike Napco's

post-judgment  motions, arguing  that they  lacked sufficient

"particularity"  under  Fed. R.  Civ.  P.  7(b)(1) and  that,

accordingly,  no "motion"  had been  timely filed  within the

ten-day period prescribed by  Rules 50(b), 52(b) and 59.   In

granting Cambridge Plating's motion, except on the remittitur

issue, the district court  refused to take into consideration

Napco's  extension motion  or  any of  the other  surrounding

circumstances.

          B.  Analysis
                                  

          Rule  7(b)(1)  requires  that motions  "state  with

particularity the grounds therefor." Fed. R. Civ. P. 7(b)(1).

Napco's post-judgment motions are subject to the requirements

of Rule 7(b)(1).   The particularity requirement, however, is

                    
                                

          Motion for Judgment  as a Matter of  Law,
          for a  New Trial or for Remittitur, which
          Napco  will  file  on  March  1, 1995  in
          accordance  with  the  Court's ruling  on
          Defendant's Motion for Additional Time to
          File Memorandum.

                             -16-


to  be   read  flexibly  in  "recognition   of  the  peculiar

circumstances of the case."   Registration Control Sys., Inc.
                                                                         

v. Compusystems,  Inc., 922 F.2d  805, 808 (Fed.  Cir. 1990).
                                  

This is  because Rule 7 is designed  "to afford notice of the

grounds and prayer  of the motion to  both the court  and the

opposing  party,  providing  that  party  with  a  meaningful

opportunity to respond and  the court with enough information

to process the motion correctly."  Id. at 807.  When a motion
                                                  

is  challenged  for lack  of  particularity  the question  is

"whether any party is  prejudiced by a lack  of particularity

or 'whether the court can comprehend the basis for the motion

and  deal with  it  fairly.'"   Id. at  807-08 (quoting  5 C.
                                               

Wright &  A. Miller, Federal Practice &  Procedure   1192, at
                                                              

42 (1990)).

          While Napco's motion  was at best sloppy  practice,

we  believe that it was  sufficiently particular when read in

conjunction  with the  extension  motion and  prior  filings.

Although  the extension  motion was not  filed simultaneously

with the Rule 50(b),  59 and 52(b) motions, it was filed only

a week before,  within the ten-day period, and  was obviously

closely related to  the Rule  50(b) motion.   Compare Lac  Du
                                                                         

Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin,
                                                                        

957  F.2d 515,  517 (7th  Cir.) (supporting  memorandum filed

with  insufficiently particular  motion),  cert. denied,  506
                                                                   

U.S. 829 (1992).  The extension motion specified the bases of

                             -17-


the  judgment  that  Napco  "must challenge,"  including  the

sufficiency    of   the    evidence   on    the   intentional

misrepresentation  claim  and   the  willful  repudiation  of

warranty claim, as well as issues relating to Chapter 93A and

damages.    Napco thus  represented  to  both the  court  and

Cambridge Plating the grounds  for its post-judgment motions.

No  claim is made that  there was any  intervening event that

would have  made the representations in  the extension motion

unreliable.

          Cambridge Plating  makes a passing  argument in its

brief that it was unable to respond to, or the district court

to process, Napco's motions.  If the Rule 50(b), 59 and 52(b)

motions  are viewed  in  isolation, Cambridge  Plating has  a

point.   But the motions cannot  be viewed in isolation.   In

addition to the  closely filed extension motion,  significant

briefing on the  Chapter 93A issues  had just been  completed

and  Napco  had  earlier  made quite  a  detailed  Rule 50(a)

motion, of which  the Rule 50(b) motion was  a "renewal."  In

short,  the   record  shows  that  Napco   was  taking  steps

specifically to make evidentiary challenges to the verdict on

all  of the  major issues  litigated at  trial.   The grounds

Napco  would  press   in  its   post-judgment  motions   were

sufficiently known.   The motions  under Rules 50(b),  59 and

                             -18-


52(b)   were   adequate,    although   barely,   under    the

circumstances.4

          The  district court  premised  its decision  on the

belief that the law prevented it from looking beyond the four

corners of  the motion  to determine  whether the  motion had

stated  its grounds  with  sufficient  particularity.   While

understandable,  such a view of Rule 7(b)(1) is, in our view,

too narrow.  "Overly technical"  evaluations of particularity

are  disfavored.   Wright  & Miller,  supra,    1192, at  43.
                                                       

Courts routinely take into consideration other closely  filed

pleadings to  determine  whether  sufficient  notice  of  the

grounds for the motion are given and the opposing party has a

fair opportunity to respond.  See Chippewa Indians, 957  F.2d
                                                              

at  517  (motion failing  to  state  grounds is  sufficiently

particular where supporting  memorandum adequately  discusses

the  grounds); Brown v. United  States Postal Serv., 860 F.2d
                                                               

884,  887 (9th  Cir.  1988) (motion  for reconsideration  was

adequate  under Rule  7 even  though a particular  ground was

                    
                                

4.  As  should be clear, the  bar places its  clients at risk
with this sort of  practice and unnecessarily complicates the
litigation.  Nevertheless, the circumstances involved in this
case  are distinguishable  from  Riley v.  Northwestern  Bell
                                                                         
Telephone  Company, 1 F.3d  725, 726-27 (8th  Cir. 1993), and
                              
Martinez v. Trainor,  556 F.2d 818,  819-20 (7th Cir.  1977),
                               
the cases upon  which Cambridge  Plating principally  relies.
In  those  cases the  moving  parties  filed only  bare-bones
motions  within  the specified  time period.   There  were no
other closely  related documents filed before  the expiration
of the  time period  making it  clear  to the  court and  the
opposing party what the moving party would be arguing.

                             -19-


omitted, where the parties had already briefed and argued the

issue  and  no prejudice  would  result);  see  also King  v.
                                                                     

Mordowanec, 46  F.R.D. 474, 477 (D.R.I.  1969) (where grounds
                      

for Rule  60(b) motion were stated at  oral argument previous

day  and were  discussed  after  filing,  during  in-chambers

argument,  motion   did  not   run  afoul  of   Rule  7(b)(1)

particularity  requirement).   Accordingly, we  reach Napco's

various  challenges to  the sufficiency  (and weight)  of the

evidence.5

                       III.  Liability

          A.  Statute Of Limitations
                                                

          1.  Sufficiency of the evidence.
                                                     

          Napco first argues that  none of the claims survive

the statute of limitations.  Cambridge Plating filed  suit on

June 22, 1990.   A four-year  statute of limitations  governs

the Chapter 93A  and breach  of warranty claims.   See  Mass.
                                                                  

Gen.  L. ch. 106,   2-725 (contract for sale of goods); Mass.

Gen. L. ch. 260,   5A (Chapter 93A).  A three-year statute of

limitations   governs   the    intentional   and    negligent

misrepresentation claims.  See  Mass. Gen. L. ch. 260,    2A.
                                          

                    
                                

5.  Cambridge Plating has cross-appealed the district court's
decision not to strike  the motion for remittitur.   In light
of our decision that the district court erred in striking the
motions,  we reject  Cambridge  Plating's  argument that  the
district  court should also have struck Napco's request for a
remittitur. 

                             -20-


As  established  in  Cambridge Plating  I,  991  F.2d at  27,
                                                     

Cambridge  Plating must rely  on the discovery  rule to prove

its   claims  were   timely  filed.     The   discovery  rule

"'prescribes as crucial the  date when a plaintiff discovers,

or  any   earlier  date  when  she   should  reasonably  have

discovered,  that she has been harmed or may have been harmed

by  the defendant's  conduct.'"   Id. (quoting  Bowen  v. Eli
                                                                         

Lilly & Co., Inc., 557 N.E.2d 739, 740-41 (Mass. 1990)).  The
                             

discovery rule  here "turns on  when the company  should have

known that Napco might be responsible for the water treatment

system's failing performance."  Cambridge Plating I, 991 F.2d
                                                               

at 29.   The question  to be  resolved at  trial was  whether

Cambridge Plating "knew  or should have  known of its  claims

before June  22, 1987 [or June 22, 1986]."  Id.  Napco argues
                                                           

that the  evidence was insufficient  for a  jury to  conclude

that Cambridge Plating  should not have  known of its  claims

before the pertinent cut-off dates.  We disagree.

          The  question of  the timeliness  of the  breach of

warranty and  Chapter 93A claims under  the four-year statute

is, we believe, largely answered by the admirable description

of  the evidence provided by  the district court  in light of

our previous opinion in Cambridge Plating I.  The evidence at
                                                       

trial showed that Cambridge Plating was aware that the system

was complex and that  the performance warranty Napco provided

contained the implicit condition  that the system be operated

                             -21-


properly.    At  least  at  first,  Cambridge  Plating  could

reasonably  have believed that  its own  inexperience, rather

than Napco's defective equipment, was to blame.

          Of  course,  at some  point,  when  things were  no

better, Cambridge  Plating should have thought that something

other  than operator error was  causing the problem.   And as

Napco points out, there  was evidence that such a  point came

for  Cambridge Plating  either  in early  1986, when  Marullo

complained  to Debisschop  about the  system, or  March 1986,

when Tosi "kept yelling and screaming" at Debisschop that the

problems were due to the equipment.

          But  the  critical  question is  whether  Cambridge

Plating reasonably relied on Napco's responses to those early

1986  inquiries that  operator error,  rather than  equipment

defect, was the  cause of the  trouble.  The  fact that  Tosi

complained vociferously  that the  equipment was at  fault is

not dispositive if DeBisschop was reasonably able to convince

Tosi  he  was  wrong.      Napco  had  considerably  superior

expertise in this area.   The absence of the static mixer was

not something Cambridge Plating, with its level of expertise,

should   have  detected.     We   believe  that   under  such

circumstances, when Napco  gave Tosi its "assur[ances]"  that

the problem had to be with the Cambridge Plating's operators,

Cambridge Plating reasonably took Napco at its word.

                             -22-


          The  misrepresentation claims, governed by a three-

year  statute, were also  timely.  Cambridge  Plating did not

sit  idle  during  the  next twelve  months.    When  Napco's

suggestions  did  not solve  the  problem, Cambridge  Plating

hired Patrick Hunt, in late 1986, to evaluate the system.  In

January 1987 Hunt gave Cambridge Plating his recommendations,

which suggested  operational changes but not  that the static

mixer  was either missing or  not working properly.   If Hunt

were  unqualified  to  examine  the  system,  then  Cambridge

Plating  might have  difficulty  arguing that  it was  acting

reasonably.  But  Hunt was an expert in  wastewater treatment

systems and competent to evaluate the system.

          Was  Hunt's failure  to  discover  that the  static

mixer was missing  reasonable?  See Cambridge  Plating I, 991
                                                                    

F.2d at 29-30.   We think the jury was  entitled to think so.

First, the absence of the static mixer was not something that

could be easily detected from  a physical observation of  the

system.  Indeed, other experts after Hunt who looked over the

system  were  also fooled.    Second, Napco  had  supplied to

Cambridge Plating drawings representing that the static mixer

had been  installed.   According to Cambridge  Plating, these

drawings were "as built"  drawings.  Napco disputes Cambridge

Plating's  characterization  of  the  drawings,  pointing  to

testimony  that   "as  built"   drawings,  as  the   term  is

technically  used, were  never prepared.   Yet  regardless of

                             -23-


whether the drawings technically  could be called "as built,"

Napco admitted supplying the drawings to Cambridge Plating in

the tech manual "[t]o show what was built."

          Perhaps,  given the  problems with the  system, the

accuracy  of  the  drawings  should  have  been  called  into

question  at this  time.   The  jury  was entitled  to  think

otherwise.  The system was extremely complex and the cause of

the  malfunction  could have  been  any  number of  problems,

including, as  Napco points  out, problems  of  design.   The

factfinder could reasonably conclude  on this record that the

probability the drawings were false was sufficiently low that

questioning  the accuracy  of the  drawings would  be low  on

Cambridge Plating's  (or Hunt's)  diagnostic checklist.   The

evidence was sufficient to support  a finding that the claims

were timely.   Nor was such  a finding against the  weight of

the evidence.

          2.  Special interrogatory.
                                               

          Napco  alternatively argues that a new trial should

be  granted  on  the  misrepresentation  counts  because  the

special interrogatory submitted to the jury on this point was

defectively  worded.    Over  Napco's  objection,  the  court

submitted interrogatory 1(b), which asked:  "Should plaintiff

Cambridge Plating reasonably have  known before June 22, 1987
                                                                         

of defendant  Napco's failure  to install the  static mixer?"

(Emphasis in original.)

                             -24-


          Review  of  this  interrogatory  is  for  abuse  of

discretion.  See Frank Briscoe Co., Inc. v. Clark County, 857
                                                                    

F.2d  606, 614 (9th Cir.  1988), cert. denied,  490 U.S. 1048
                                                         

(1989).     Abuse   of  discretion  may   be  found   if  the

interrogatories are worded in such a way that they are likely

to  mislead or  confuse  the jury  or inaccurately  state the

issues.  Id.   Although Napco's argument has some  merit, the
                        

district court did not abuse its discretion.

          Cambridge  Plating I  stated  that the  appropriate
                                          

test  for the  discovery rule  was whether  Cambridge Plating

"should  have known that  Napco might be  responsible for the

water  treatment system's  failing  performance."   Cambridge
                                                                         

Plating I, 991 F.2d at 29.  Napco points out that the opinion
                     

drew no specific distinction among the claims and argues that

it was improper to  direct the jury's focus onto  the failure

to  discover  the static  mixer  specifically.6   Napco  also

relies on  the  passage from  the opinion  stating that  "the

statute of limitations will  begin to run once the  plaintiff

has enough information to target the  defendant as a suspect,

though  not  necessarily  to  identify  the  defendant  as  a

culprit."  Id. at 29-30.  Under Napco's reading, all claims -
                          

-  warranty,  negligence and  fraud  -- would  have  the same

trigger  date  under  the  discovery rule:    when  Cambridge

                    
                                

6.  Napco  requested  an  interrogatory  that  asked  whether
plaintiff  "knew or should  have known of  its claims against
Napco before June 22, 1987."

                             -25-


Plating should  have thought  Napco might be  responsible for

the problems with the system.

          Cambridge Plating I did not  say that.  The opinion
                                         

does  not   address  the   question   specifically  of   what

information is needed to "target  the defendant as a suspect"

for  a breach  of  contract as  compared to  that information

needed to "target the defendant as a suspect" for fraud.  The

information needed to target the  defendant as a suspect  is,

in  fact,  different  for  each claim.    Although  Cambridge

Plating  may have had reason  to know that  Napco might be in

breach of its warranty when the  system did not perform up to

snuff  and Cambridge  Plating had  ruled out  operator error,

that  does not mean that Cambridge Plating had reason to know

that Napco  had deceived it.   Cf. Childers Oil Co.,  Inc. v.
                                                                      

Exxon Corp., 960 F.2d 1265, 1275 (4th Cir. 1992) (Luttig, J.,
                       

dissenting) ("[A]lthough appellants knew or should have known

when  construction  of  the  station  began  that  Exxon  had

breached its contract, appellants did not have reason to know

of the possibility  of deception until  they learned in  1988

that  Exxon   had  always  intended  to   build  a  competing

station.").

          Under  Massachusetts  law, a  cause  of  action for

deceit accrues when  the plaintiff knew or  should have known

of  the misrepresentation.   See  Friedman v.  Jablonski, 358
                                                                    

N.E.2d   994,  997   (Mass.  1976)   (cause  of   action  for

                             -26-


misrepresentation in the sale of real estate accrues when the

plaintiff  knew  or  reasonably  should  have  known  of  the

misrepresentation); see also Tagliente v. Himmer, 949 F.2d 1,
                                                            

5 (1st  Cir. 1991) ("The burden is  on the plaintiff to prove

that in  the exercise of  reasonable diligence she  could not

have  known of  the misrepresentation  within the  statute of

limitations.").7  In this  case, the misrepresentation was in

the  failure to disclose that  the static mixer  had not been

installed.    Thus, under  Massachusetts  law,  the cause  of

action for  misrepresentation did not  accrue until Cambridge

Plating  should have known that the static mixer had not been

installed.  The special interrogatory was not erroneous.8

          B.  Intentional Misrepresentation
                                                       

          Cambridge Plating  had the  burden of  proving that

Napco  had  engaged   in  an  intentional  misrepresentation.

Cambridge  Plating  alleged  in  its  complaint   that  Napco

fraudulently induced it to  purchase the wastewater system by

falsely  promising that  the  system would  contain a  static

                    
                                

7.  Indeed, in accordance with that case law, Napco requested
an instruction  stating that the pertinent  issue was whether
"Cambridge Plating  knew or  should have known  of the  facts
giving rise  to its misrepresentation claims  more than three
years before it filed suit on June 22, 1990." 

8.  Cambridge Plating  I was  concerned with the  question of
                                    
whether  the  plaintiff had  acted  reasonably  diligently in
discovering the claim, rather than whether some theoretically
reasonable  investigation  would have  discovered  the claim.
Such a focus of inquiry does not require that distinctions be
drawn  among  the nature  of  the  claims  the plaintiff  has
asserted.

                             -27-


mixer.  At trial, however, the district court did not believe

that  Cambridge Plating had  presented sufficient evidence to

show  such fraudulent  inducement,  and did  not submit  that

theory  to  the  jury.   The  district  court,  nevertheless,

believed  that  Cambridge  Plating  had  presented sufficient

evidence to show  fraudulent nondisclosure9 and, accordingly,

charged  the  jury on  that  theory.   The  jury subsequently

found, as  framed in the special  interrogatories, that Napco

had  "intentionally conceal[ed]" its  failure to  install the

static mixer "while aware of the System's failure to meet the

applicable  discharge  limits"   and  was  thus   liable  for

intentional misrepresentation.

          Napco   raises  two  challenges  to  this  verdict.

First, it argues  that the evidence was  insufficient to show

fraudulent nondisclosure.  Second, it argues that, regardless

of  the evidence,  the intentional  misrepresentation verdict

was  tainted by a  defective jury  instruction.   It requests

that either judgment  be entered in its favor  or a new trial

granted.

          1.  Sufficiency of the evidence.
                                                     

          Napco argues  that there was  insufficient evidence

to support the  jury's finding  of fraudulent  nondisclosure.

                    
                                

9.  The parties have used the terms  "wrongful nondisclosure"
and "intentional nondisclosure."   We use the term fraudulent
nondisclosure simply to distinguish the theory from negligent
nondisclosure.  

                             -28-


To set aside a jury verdict and enter a  contrary verdict for

Napco, we  must  examine  the  evidence  in  the  light  most

favorable   to  Cambridge   Plating,  drawing   all  possible

inferences in its favor.   See Havinga v. Crowley  Towing and
                                                                         

Transp.  Co., 24  F.3d 1480,  1483 (1st  Cir. 1994).   To set
                        

aside  a  verdict and  remand for  a new  trial based  on the

evidence, Napco must  show that the  verdict was against  the

great  weight  of  the  evidence, viewed  in  the  light most

favorable  to  Cambridge  Plating,  or  would  work  a  clear

miscarriage  of justice.  See  id. at 1482-83.   Napco cannot
                                              

meet either standard. 

          Napco's  sufficiency challenge  largely rests  on a

single  proposition:   that there  was insufficient  evidence

from  which a jury could conclude that Napco knew or believed

that  the static mixer was responsible  for the problems with

the system.10    In  Napco's words,  "every  piece  of  proof
                                                       

bearing on the issue confirmed that Napco  never believed the
                                                            

static mixer was necessary,  and in fact, believed the  mixer

might impair  system performance."   (Emphasis in  original.)
                        

But  there was such evidence:   Napco designed  the system to

include  the  static  mixer.   It  knew  that  the mixer  was

originally included in the system to create the proper mixing

of the polymer solution,  without which flocculation would be

                    
                                

10.  Napco  also argues  that the  materiality of  the static
mixer was not a  fact susceptible of actual knowledge.   That
argument is without merit.

                             -29-


hindered.   This  evidence, when  combined with  the evidence

that Napco knew the mixer had not been installed (so that the

omission  was not mere oversight) and that it knew the system

was  not  working, adequately  supports  the conclusion  that

Napco intentionally failed to tell Cambridge Plating that the

static mixer was missing, knowing it was responsible  for the

system's problems.

          Napco protests  that it  simply made a  "good faith

(and, at worst, negligent) professional judgment that a mixer

was  not material to the system."  After all, it argues, what

did it have to gain from omitting a $620 part from the system

or from hiding  a problem that could  be inexpensively cured.

Napco    relies   on   testimony   from   Triplett,   Napco's

subcontractor, Aliota,  Napco's  expert, and  Eason,  Napco's

manager of pollution abatement.  But Triplett's testimony and

Aliota's testimony  do not  much help  Napco.  Although  both

Triplett  and Aliota testified  that the use  of "elbows," or

pipe bends,  could create the necessary turbulence in lieu of

the  static mixer, Napco did not show that such "elbows" were

specifically  designed into the  system.  More  to the point,

Aliota, who  was not a  fact witness, did  not testify as  to

what the people  at Napco  were thinking in  leaving out  the

static  mixer,  and Triplett,  at  best,  had only  a  "vague

recollection"  of  "some discussion that  when the pumps came

                             -30-


on they hit the  two -- they hit a  90 and a T, and  that was

enough turbulence to mix with the polymer."

          And, unfortunately  for Napco, the  jury could have

found Eason's testimony  in a  number of respects  not to  be

credible.  His account of the events surrounding the decision

to omit  the static mixer  conflicted somewhat  with that  of

other Napco witnesses.  Triplett testified that the mixer was

never installed, while Eason said it was  installed but taken

out.   Eason's  testimony that  the static mixer  was omitted

because it was "minor" was damaged by his admission on cross-

examination that he  could not find even one  other component

depicted  on the drawings that  was "minor."   Napco does not

point to  other evidence presented to the  jury (for example,

contemporaneous memos showing that  Napco had made a judgment

that  the  mixer was  irrelevant)  that  corroborates Eason's

testimony.  In short,  the "professional judgment" theory was

largely  a  credibility  question.   In  light  of  the shaky

aspects  of  Eason's  testimony,  the jury  was  entitled  to

conclude that  Eason was  not believable and  that Triplett's

"vague   recollection"   was   not  enough   to   rebut   the

circumstantial  evidence  (particularly  the  drawings)  that

Napco knew the absence of the static mixer was the problem.

          Napco properly  makes  the point  that it  "strains

credulity" to suppose that Napco would expose itself  to such

drastic  liability  over a  $620 part  that  took one  day to

                             -31-


install.  Why Napco would do so is something of  a puzzle and

could  raise questions  about the  reliability of  the jury's

finding that Napco intentionally concealed the absence of the

mixer.   But Napco's behavior is not wholly inexplicable.  It

might  be explained in terms of the theory of "agency costs":

the  aberrant  conduct  occurred when  Napco's  interests  in

avoiding exposure to drastic liability diverged from those of

its  employees.   Cf.  AMPAT/Midwest, Inc.  v. Illinois  Tool
                                                                         

Works, Inc., 896 F.2d 1035, 1043 (7th Cir. 1990) (Posner, J.)
                       

(seemingly irrational  behavior on the part  of a corporation

may be  explained by  the "divergence of  objectives" between

the  corporation  and  its  employees).    For  example,  the

designer Eason  and the  project manager DeBisschop  may each

have  wished to avoid individual blame for the defects in the

system.  

          Finally, Napco's current focus on plaintiff's proof

of scienter represents a shift  from its defense at  trial.11

                    
                                

11.  At trial  Napco's principal defense was  that the system
worked  fine,  i.e.  that  there  never  was  any  breach  of
                               
warranty.   Napco placed great reliance  on discharge reports
sent to the MWRA  from March 1985 to September  1985 (shortly
after the  system was  installed) indicating that  the system
was meeting  the discharge limits.   The importance  of these
reports  was hotly  contested.   Cambridge Plating  explained
away  these reports  by noting that  the materials  it plated
were  often  different,  using different  concentrations  and
types of  chemicals, and  that the  system could  handle some
jobs but not others.   Cambridge Plating also noted  that its
closed looping masked the inadequacies of the system, but did
not  solve them.  The finding that the system did not perform
as warranted is not challenged on appeal.

                             -32-


Its   defense  to  the  misrepresentation  count  principally

focussed  on whether the static mixer was in fact material to

the  problem.   Moreover, Napco's  defense to  the breach  of

warranty claim,  which rested in large part  on the assertion

that it  never had any  idea that Cambridge  Plating's system

was   not  meeting   the   effluent   requirements,  was   in

considerable   tension  with   any   defense   made  on   the

misrepresentation  claims  that,  once  it  heard  about  the

problems,  Napco made  a judgment  that the static  mixer was

unimportant.    Not  surprisingly,  then,  there  was  little

specific testimony that Napco seriously  considered Cambridge

Plating's complaints and then made a judgment that the static

mixer was the problem.   Napco principally chose to  take the

position at trial  that it did not know there  was a problem,

rather than that it thought there was a problem but the cause

was  something  else.   Since  there  was competent  evidence

showing that  Eason and  DeBisschop were contacted  about the
                                                    

problems with  the system on numerous occasions, and that the

system worked after the static mixer was installed, Napco was
                               

vulnerable on the intentional misrepresentation count.

          Cambridge  Plating  needed   to  show   intentional

misrepresentation only by  a preponderance  of the  evidence.

See Compagnie De  Reassurance D'Ile De France  v. New England
                                                                         

Reinsurance  Corp., 57 F.3d 56, 72  (1st Cir.), cert. denied,
                                                                        

116  S. Ct.  564  (1995).   Under  this standard,  there  was

                             -33-


sufficient  evidence of  fraudulent  nondisclosure,  and  the

district court was entitled to submit the theory to the jury.

The verdict was also  not against the weight of  the evidence

and a new trial is not warranted.

          2.  Instructional error.
                                             

          In   its  initial   charge,   the  district   court

instructed    the    jury     that    Napco's     intentional

misrepresentation  was  in its  "silence."12    It instructed

that  "[t]he question to  be decided  here is  whether .  . .

[the] defendant  willfully concealed from  the plaintiff  the

absence of  the  static mixer  when  it knew . . .  that  the

discharge limits were not being met and that the inclusion of

the static mixer would,  at least to some extent,  enable the

system  to  perform as  it  was  intended."   Following  this

initial charge, plaintiff's  counsel requested an instruction

specifying  that materiality  was to  be measured  against an

objective standard.  In response,the court gave the following

supplemental instruction:

                    
                                

12.  The charge was:

          The fraud  is  in the  silence, you  see,
          that  characterizes  the  conduct of  the
          defendant; that is, their failure to tell
          the  plaintiff  of  the  absence  of this
          static   mixer   while  aware   that  the
          discharge limits were not being met.  You
          see, that's  when the  duty arises.   And
          that's    when   the    concealment,   if
          intentional,    is     what    we    call
          "actionable,"  that  is,  a  basis  for a
          lawsuit.

                             -34-


          [I]n discussing the state of  mind of the
          defendant with regard  to the  importance
          of the static  mixer to the system .  . .
          the standard is objective.  It's not what
          the defendant did or did not subjectively
          think  about  it.    It's  what  would  a
          reasonable  manufacturer or  seller under
          the same circumstances have thought about
          it.

Napco argues  that this  instruction "conflated the  torts of

intentional   and   negligent   misrepresentation"  and   was

"manifestly  erroneous."13   In  Napco's view,  it cannot  be

held liable  unless it  actually knew  the  static mixer  was

material.

          The  standard under  which we review  this argument

depends upon whether Napco  properly preserved it.  Cambridge

Plating protests  that Napco has not  preserved this argument

because it failed to lodge a proper objection before the jury

retired to  consider its verdict.  Under  Fed. R. Civ. P. 51,

objections  must "stat[e] distinctly  the matter  objected to

and the grounds of  the objection."  Fed. R. Civ. P.  51.  An

objection  based on  one ground  does not  preserve appellate

review of a different ground.  See Wells Real Estate, Inc. v.
                                                                      

Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.),
                                          

cert. denied, 488 U.S. 955 (1988).
                        

                    
                                

13.  This  point is  important because  lost profits  are not
compensable    for    negligent    misrepresentation    under
Massachusetts  law,   see  Section  IV-D,  and  lost  profits
                                     
represent   the   bulk  of   the   damages   in  this   case.
Additionally, Napco claims that this instruction tainted both
the  willful  breach of  warranty  verdict  and the  district
court's Chapter 93A decision.

                             -35-


          Napco states that  the instruction  was given  over

its "opposition."   But Napco's objection to the  charge only

identified three  problems with the instruction,  and not the

issue it now raises.  Napco complained that (1) the complaint

did  not fairly  disclose the  nondisclosure theory,  (2) the

theory was not supported  by the evidence, and (3)  there was

no obligation on  the part of the seller  to disclose.  Napco

did not object that the instruction was  incorrect because it

failed to make clear that actual knowledge of materiality was

required  for  liability,  nor  did  Napco  object  that  the

instruction     conflated    negligent     and    intentional

misrepresentation.      Thus,   Napco  failed   to   "state[]

distinctly"  the  argument  it  makes  now,  i.e.,  that  the
                                                             

instruction imposed an incorrect scienter requirement.

          Napco urges  that colloquies occurring  days before

the charge satisfy Rule 51.  Without considering whether such

colloquies  may   be  used  to   determine  compliance,   the

colloquies Napco  directs us to  do not contain  any specific

statement that Napco needed to have "actual knowledge" of the

static mixer's materiality to  be liable.  Napco's contention

that this lack  of specificity should be  excused because the

fraudulent  nondisclosure theory  was "novel"  and came  as a

"surprise" to counsel is contrary to what the record shows.14

                    
                                

14.  Napco  characterizes  the  nondisclosure  theory  as  an
"eleventh-hour reformulation" which was "improvised literally
at the final hour -- at the end of the ninth day of trial and

                             -36-


          In  any  event, Napco  concedes  that  the district

court charged the  jury correctly on the scienter  element of
                                             

intentional misrepresentation during its initial charge.   It

was only  after plaintiff objected to  the charge, suggesting

that  the court make clear that materiality be viewed from an

objective point of view, that the court gave the supplemental

instruction.  The supplemental instruction thus created a new
                                                                         

issue,  independent  of   the  supposed  surprise  over   the

fraudulent nondisclosure theory.  Despite this,  Napco's only

objections to the supplemental charge related to the charging

of the fraudulent nondisclosure  theory generally, not to the

new  ambiguity the  instruction  created  over  the  scienter

                    
                                

on  the eve  of closing  arguments" to  which counsel  had no
"foreshadowing."  But as early as  the third day of trial the
court  had   asked  counsel  to  research   the  question  of
nondisclosure.  The nondisclosure theory  was foreshadowed on
the   fifth   day  of   trial   where,   in  discussing   the
misrepresentation   count,   the   court  stated   that   the
plaintiff's theory was that "upon learning of  the absence of
the  static mixer,  it  became  defendant's  duty to  do  two
things:  first, to  install  it; and  secondly,  to tell  the
plaintiff that it  wasn't in."   On the eighth day  of trial,
which was a Friday, the district  court asked counsel whether
"the  lack of disclosure or  the absence of  the static mixer
[could] serve as  a basis of a misrepresentation  and fraud,"
and asked them to think about the issue over the weekend.  On
the  ninth day of trial, the  court announced its view that a
fraudulent  nondisclosure   theory  might  be  a   basis  for
liability.   After having a chance overnight  to consider the
objections  it  would  lodge  against  the  district  court's
theory, Napco  lodged basically the same  objections it later
gave  to  the supplemental  instruction.   In  light  of this
record, we do not agree that Napco's failure to object should
be excused because the  fraudulent nondisclosure theory was a
surprise.

                             -37-


requirement.   On  the question  of scienter,  Napco remained

silent.15

          Absent  a proper  objection,  review is  for  plain

error.  On  this record, the  plain error hurdle is  too high

for Napco to overcome.  "Plain error [ ] is a rare species in

civil litigation."  Gay  v. P.K. Lindsay Co., Inc.,  666 F.2d
                                                              

710,  712 n.1  (1st Cir.  1981), cert.  denied, 456  U.S. 975
                                                          

(1982); see also Clausen  v. Sea-3, Inc., 21 F.3d  1181, 1196
                                                    

(1st  Cir. 1994)  ("[T]he plain  error standard, high  in any

event,  . .  . is  near its  zenith in  the Rule  51 milieu."

(internal quotations omitted)).  "[I]t applies only where the

error results in a clear  miscarriage of justice or seriously

affects  the  fairness,  integrity or  public  reputation  of

judicial proceedings."   Clausen,  21 F.3d at  1196 (internal
                                            

quotations omitted).  Napco cannot show on this record that a

miscarriage of  justice  will  result if  the  error  is  not

corrected.  There was sufficient evidence adduced at trial to

conclude  that  Napco  knew that  the  static  mixer  was the

problem  with the system.  Nor can  Napco show that the error

seriously affects the integrity  or impairs public confidence

                    
                                

15.  Jerlyn  Yacht  Sales,  Inc.  v.  Wayne  R.  Roman  Yacht
                                                                         
Brokerage, 950 F.2d  60 (1st  Cir. 1991), a  case upon  which
                     
Napco  places great  reliance,  is inapplicable.   In  Jerlyn
                                                                         
Yacht  Sales there was at  least some request  that the court
                                                 
include  an  instruction  on  the specific  issue  raised  on
appeal.  Id. at 64.  There was no such request here.  Despite
                        
Napco's  claims to  the contrary,  this  is a  garden variety
failure to object situation.

                             -38-


in   the   proceedings.     Under   the   circumstances,  the

supplemental  instruction  did  not  reach  the "pinnacle  of

fault" envisioned by the plain error standard.  See id.16  
                                                                   

          C.  Willful Breach Of Warranty
                                                    

                    
                                

16.  Because  Napco cannot satisfy the discretionary elements
of the plain error  standard, we need not decide  whether the
instruction was  "plainly" incorrect.   Cf. United  States v.
                                                                      
Olano, 507 U.S.  725, 734 (1993)  ("Plain is synonymous  with
                 
clear or,  equivalently, obvious";  the error must  be "clear
under  current  law"  (internal  quotation  marks  omitted)).
Napco argues  that Massachusetts law is  clear that knowledge
of  materiality  is  required.   According  to  Napco,  under
Massachusetts law,  "[a]bsent  a showing  that the  defendant
knew that his  statement was  false, and  intended to  induce
                                                              
reliance,  the tort  of intentional  misrepresentation simply
does  not lie."  (Emphases  in original.)   Napco argues that
there must be an  "intent to deceive" to be liable for fraud.
But Massachusetts  fraud law does  not require an  "intent to
deceive."  Snyder v. Sperry & Hutchinson Co., 333 N.E.2d 421,
                                                        
428 (Mass. 1975).   Moreover, "knowledge  of falsity" in  the
sense that  Napco urges --  that defendant actually  know the
statement  is false -- is  also probably not  required.  This
court  has said that "[n]othing is clearer than the fact that
under Massachusetts  law, plaintiff need not  prove that [the
defendant] knew  his statement  to be false."   Nickerson  v.
                                                                     
Matco  Tools Corp., 813 F.2d 529, 530 (1st Cir. 1987) (citing
                              
Powell  v.  Rasmussen,  243  N.E.2d  167,  168  (Mass.  1969)
                                 
(holding that  knowledge or reckless disregard  of falsity is
not required for an action of intentional  misrepresentation;
it is enough if  representation was false and susceptible  of
actual  knowledge)); see  also  VMark Software,  Inc. v.  EMC
                                                                         
Corp.,  642 N.E.2d 587, 593 n.9 (Mass. App. Ct. 1994) (same);
                 
Zimmerman  v. Kent, 575 N.E.2d  70, 74 (Mass.  App. Ct. 1991)
                              
(same).   The case upon which Napco principally relies, Danca
                                                                         
v. Taunton Savings  Bank, 429 N.E.2d 1129, 1133 (Mass. 1982),
                                    
does list "knowledge  of falsity"  as an element.   But  this
does not  help Napco.  Either there is lack of clarity in the
Massachusetts case law, see In re Friedlander, 170 B.R.  472,
                                                         
476-78  (Bankr. D.  Mass.  1994) (noting  the confusion),  or
"knowledge of falsity" does  not mean what Napco urges.   See
                                                                         
Roadmaster Indus., Inc.  v. Columbia Mfg.  Co., Inc., 893  F.
                                                                
Supp.  1162, 1176  (D.  Mass. 1995)  ("knowledge of  falsity"
under Danca  does not  require that defendant  "actually knew
                       
its statement was false").

                             -39-


          Napco's    warranty    excludes    liability    for

consequential damages.  By its terms, this damages limitation

provision    bars    Cambridge   Plating    from   recovering

consequential damages and,  under usual circumstances,  would

be  enforceable.   See  Mass. Gen.  L.  ch. 106,    2-719(3);
                                  

Deerskin  Trading  Post, Inc.  v.  Spencer  Press, Inc.,  495
                                                                   

N.E.2d 303,  306 (Mass.  1986).  Massachusetts  law provides,

however,  that  the  damages  limitation   provision  is  not

enforceable  if  Napco  either  willfully  repudiated or  was

willfully  dilatory in  performing its  warranty obligations.

Cf. Canal Elec.  Co. v. Westinghouse Elec. Corp.,  548 N.E.2d
                                                            

182,  186  (Mass.  1990).   The  jury  concluded  that  Napco

willfully  repudiated  or  was  dilatory  in  performing  its

warranty  obligations.   Napco  claims this  finding was  not

supported  by the  evidence  and, in  any event,  was fatally

tainted by the district  court's "state of mind" supplemental

instruction.

          These  arguments  are  worth  only  brief  comment.

Napco  concedes that evidence it knew the static mixer was to

blame "might  well amount  to 'willful repudiation.'"   Since

Cambridge Plating  adduced sufficient evidence of  this fact,

the willful  breach of  warranty  verdict stands.17   As  for

                    
                                

17.  Other  evidence is  also relevant  to this  count.   For
example,  once Cambridge Plating  discovered that  the static
mixer was  missing, its attorney wrote  to Napco's president,
Herbert Fishman,  asking for  "an amicable resolution"  and a
"meeting" to  "explore the  prospects of such  a resolution."

                             -40-


Napco's  claim  of  instructional  error,  Napco's  challenge

suffers  the  same   fate  as  it  did  on   the  intentional

misrepresentation count:  there was no objection and no plain

error.

          D.  Chapter 93A
                                     

          Upon making independent  findings of fact following

the  jury verdict,  the district  court held  that  Napco had

violated  Chapter  93A   and  that   punitive  damages   were

warranted.   Napco  challenges both  aspects of  the district

court's decision.  Review of the district court's findings of

fact is for clear error, see Fed. R. Civ. P. 52(a); review of
                                        

its  conclusions of  law  is de  novo.   Pullman-Standard  v.
                                                                     

Swint, 456 U.S. 273, 287 (1982).
                 

          1.  Chapter 93A liability.
                                               

                    
                                

Napco ignored the letter and a meeting was never held.  Napco
disparages this evidence as a "red herring[]" saying that any
inference that Napco refused to meet "misreads" the testimony
Fishman gave about  the letter  and that, in  any event,  the
letter was  turned over  to lawyers  and  therefore sheds  no
light on  whether Napco  willfully  repudiated its  warranty.
Fishman's testimony on this point, however, is hardly helpful
to  Napco.  Fishman testified that  he personally ignored the
letter because it raised only a "minor" issue.  By "minor" he
meant  that there  wasn't enough  money involved  to  get his
attention.    At  the  time,  Fishman  apparently  had  other
problems with a "dollar volume  [that] was much greater  than
what this was here" and "people were supposedly handling this
for [him]."   Napco does not seriously dispute that, whatever
Fishman thought about the  problem, his "people" did nothing.
Napco's awareness  of the  problem, its consideration  of its
scope  as "minor,"  and  its failure  to respond,  support at
least to some degree an inference of willful repudiation.    

                             -41-


          Section  2  of Chapter  93A  makes  it unlawful  to

engage  in  "unfair  methods  of competition  and  unfair  or

deceptive acts or practices."   Mass. Gen. L. ch.  93A,    2,

11  (section 11  makes section  2 applicable  to businesses).

Perhaps by  design, the  dimensions of Chapter  93A liability

are difficult  to discern  with precision.   Neither "unfair"

nor "deceptive"  is specifically defined in  the statute; nor

has  the case law supplied  precise definitions.   There is a

rubric:   "The objectionable conduct  must attain a  level of

rascality that would  raise an eyebrow  of someone inured  to

the rough and  tumble of the world of commerce."   Levings v.
                                                                      

Forbes & Wallace, Inc.,  396 N.E.2d 149, 153 (Mass.  App. Ct.
                                  

1979); see also  Quaker State Oil  Refining Corp. v.  Garrity
                                                                         

Oil Co., Inc., 884  F.2d 1510, 1513 (1st Cir.  1989) (quoting
                         

Levings).   But, as the  Supreme Judicial Court  has recently
                   

observed,  the  rhetoric of  "rascality"  is "uninstructive."

Massachusetts Employers Ins. Exch. v. Propac-Mass, Inc.,  648
                                                                   

N.E.2d 435, 438 (Mass. 1995).

          Chapter 93A  liability may exist if the defendant's

conduct falls "within  at least the penumbra of  some common-

law, statutory,  or other established concept  of unfairness"

or is "immoral, unethical,  oppressive or unscrupulous."  PMP
                                                                         

Assoc.,  Inc. v.  Globe Newspaper  Co., 321  N.E.2d 915,  917
                                                  

(Mass. 1975).   Thus, proof of  a common law  tort, while not

necessary   for  liability,  see  Massachusetts  Farm  Bureau
                                                                         

                             -42-


Federation, Inc.  v. Blue  Cross of Massachusetts,  Inc., 532
                                                                    

N.E.2d 660, 664 (Mass. 1989)  ("a violation of G.L. c. 93A,  

11, need not  be premised  on a violation  of an  independent

common  law  or statutory  duty"),  may be  sufficient.   See
                                                                         

Anthony's  Pier Four, Inc. v. HBC Assoc., 583 N.E.2d 806, 822
                                                    

(Mass.  1991) (breach  of  implied contractual  duty of  good

faith  and fair dealing gave  rise to Chapter 93A liability);

VMark Software, Inc. v. EMC Corp., 642 N.E.2d 587, 594 (Mass.
                                             

App. Ct. 1994)  (intentional misrepresentation provided basis

for Chapter 93A liability).

          Under  this  precedent,  Napco's   liability  under

Chapter  93A follows  almost  as a  matter  of course.    The

district court appropriately found that:

          NAPCO,  which  knew  throughout that  the
          static mixer was  not installed,  learned
          that  the system  was  not performing  as
          warranted and nevertheless  1) failed  to
          reveal  knowledge  within its  possession
          which  would  have  stemmed the  tide  of
          damages   being   caused   by   its   own
          misconduct and 2) misdirected plaintiff's
          attention to operator error as the source
          of the System's shortcomings.

Cambridge Plating II,  876 F.  Supp. at 337.   This  finding,
                                

which was not clearly erroneous, supports the conclusion that

Napco behaved both "deceptively" and "unfairly" under Chapter

93A.18

                    
                                

18.  Because the  Chapter 93A claim is  predicated on conduct
amounting  to an  intentional  misrepresentation and  willful
breach of  warranty, Napco's limitation  of damages provision
does  not bar consequential damages on this count.  Cf. Canal
                                                                         

                             -43-


          Moreover,  Napco's argument  --  that  Chapter  93A

liability is  inappropriate because its decision  to omit the

static mixer was simply a professional judgment -- misses the

mark.  Even  if at  the time of  installation Napco  believed

that the  probability was small  that the static  mixer would

make   a  difference   to  the   system's  performance,   the

probability was  large enough  that it  should not have  been

ignored once Napco learned  that Cambridge Plating was having

problems.   Yet even  after Cambridge Plating  had complained

about  the  system's   performance,  Napco  never   seriously

reconsidered its professed  judgment about the  static mixer.

Napco  also knew  all along  that it  had provided  Cambridge

Plating with inaccurate  drawings.  So  Napco also knew  that

Cambridge Plating  would be  handicapped in reaching  its own

conclusion  on the matter.   Where Napco knew  the system was

not performing as warranted, Napco was not free to ignore the

fact that  Cambridge Plating might benefit  from knowing that

the  mixer   had  been  omitted.     Napco's  silence  became

sufficiently "unscrupulous" to fall within a  "penumbra . . .

of  [an] established concept of unfairness."  PMP Assoc., 321
                                                                    

N.E.2d  at 917.   We  therefore affirm  the district  court's

judgment of liability for single damages under Chapter 93A.

          2.  Punitive damages.
                                          

                    
                                

Elec., 548 N.E.2d at 186.
                 

                             -44-


          We  part company  with  the district  court on  the

question of  punitive damages.  Punitive  damages are awarded

only  for "willful  or knowing"  violations of  section 2  of

Chapter 93A.   Mass. Gen. L. ch. 93A,    11 (providing for up

to three, but  not less  than two, times  actual damages  for

willful  or knowing  violations  of section  2).   Here,  the

district court  imposed double  damages based  on essentially

the same finding upon  which it imposed substantive liability

under Chapter 93A:   that  Napco failed to  disclose what  it

knew  about  the  static  mixer  while knowing  that  it  was

material  to the problem.   See Cambridge Plating  II, 876 F.
                                                                 

Supp.  at  346.   At first  blush,  this conclusion  may seem

sound,  given  the  "willful  or  knowing"  language  of  the

statute.  Napco's conduct,  which also amounts to intentional

misrepresentation (and  willful breach of  warranty), clearly

involves a certain level of deliberateness.

            But shades of culpability are supposed to  matter

in applying  the punitive  damages provision of  the statute.

See Kansallis Fin. Ltd.  v. Fern, 659 N.E.2d 731,  738 (Mass.
                                            

1996)  ("[T]he Legislature  envisaged multiple  damage awards

against those defendants with  a higher degree of culpability

than that sufficient to ground simple liability."); Heller v.
                                                                      

Silverbranch Constr.  Corp.,  382 N.E.2d  1065,  1070  (Mass.
                                       

1978)  (only  "callous   and  intentional  violations"  merit

multiple damages);  VMark Software, 642 N.E.2d  at 596 (court
                                              

                             -45-


refused  to multiply damages in intentional misrepresentation

case  stating  that  section   11  multiple  damages  are  an

"extraordinary remedy"  not applicable  to a case  of "dogged

bumbling");  cf. International  Fidelity Ins. Co.  v. Wilson,
                                                                        

443  N.E.2d  1308,  1317  (Mass.  1983)  ("The  Massachusetts

legislature  consciously enacted  a rule  whereby defendant's

[Chapter  93A] liability  is measured  by the  degree  of his

culpability.").

          Liability under  Chapter 93A for  conduct amounting

to intentional misrepresentation (or breach of warranty  like

that here) does  not automatically trigger  punitive damages.

There must be something more.  See VMark Software, 642 N.E.2d
                                                             

at 595 (liability for intentional misrepresentation supported

Chapter 93A liability, but  misrepresentations were not "made

so 'knowingly' as to warrant the punitive sanctions of double

damages under Chapter  93A"); International Totalizing  Sys.,
                                                                         

Inc.  v. Pepsico, Inc., 560  N.E.2d 749, 757  (Mass. App. Ct.
                                  

1990) (defendant  liable for "knowing"  misrepresentation and

failure to disclose  also violated Chapter  93A, but was  not

liable  for  multiple  damages  because  of  the  absence  of

"willful  or  intentional  conduct   within  the  purview  of

[Chapter 93A]" (internal quotation omitted)).

          The district court  appropriately recognized  these

principles.  See Cambridge  Plating II, 876 F. Supp.  at 346.
                                                  

It   believed,  however,  that  its  findings  supported  the

                             -46-


conclusion that Napco's conduct was sufficiently egregious to

warrant a punitive sanction.  We do not think so.  If Napco's

conduct was fraud  and a willful repudiation  of warranty, it

was only marginally  so.   Napco had reason  to believe  that

operator error was the cause of Cambridge Plating's problems.

The system, after all, had worked for  a period of time after

its  installation.   Indeed,  Cambridge  Plating itself  took

nearly a  year and a half to install the static mixer once it

found it was  missing.  Napco did not stand  to profit by its

actions,  and   there  was  no  evidence   that  Napco  acted

maliciously towards Cambridge  Plating or remained  silent so

that  it  could watch  Cambridge  Plating  go into  distress.

Rather,  as the district court  noted, this was  a case where

Napco simply ignored the problem hoping that it would somehow

resolve itself.  Id.;  cf. VMark Software, 642 N.E.2d  at 596
                                                     

("The inept blend of  hopeful dissembling and dogged bumbling

displayed by  VMark does  not, however, reflect  the culpable

state of mind required for imposition of   11's extraordinary

damage penalty." (internal quotation omitted)). This evidence

does not rise to the level of callousness or meretriciousness

that  would justify  multiple  damages.19   See Wasserman  v.
                                                                     

                    
                                

19.  That Napco  raises a legitimate argument  that it should
not be  liable for  multiple damages  does  not undercut  the
finding  of   liability  for  intentional  misconduct.    The
considerations discussed above mitigate  Napco's culpability;
they do not excuse Napco.  See VMark Software, 642  N.E.2d at
                                                         
596   (intentional   misrepresentation   "is  surely   market
disruptive  to  the  same  extent  whether  the  promisor  is

                             -47-


Agnastopoulos, 497 N.E.2d 19, 24-25 (Mass. App. Ct.) (setting
                         

aside award of multiple damages because facts as found by the

trial  court  did  not  rise  to  the  "purposeful  level  of

culpability" contemplated  by the  statute),  rev. den.,  499
                                                                   

N.E.2d 298 (Mass. 1986).

                         IV.  Damages

          The  district  court   awarded  Cambridge   Plating

$3,363,120  in  compensatory  damages  for  the  Chapter  93A

violation.  The district  court then remitted the $12,183,120

jury award on the common law counts to $4,344,120,  reasoning

that no  rational jury  could award  more than  $4,161,000 in

lost profits.20  See  Cambridge Plating III, 890 F.  Supp. at
                                                       

                    
                                

genuinely  hopeful   of  fulfilling  his   contract,  or   is
deliberately  deceptive  and  entirely  disdainful  of  [its]
commitments."); accord  AMPAT/Midwest, Inc. v.  Illinois Tool
                                                                         
Works,  Inc., 896 F.2d  1035, 1044 (7th  Cir. 1990) (punitive
                        
damages  not awarded,  but  failure to  disclose defects  was
deemed  to  be fraud,  even  though  the court  indulged  the
assumption  that (1) there was some reason to believe that it
was  the plaintiff's  installation,  rather than  the defect,
that was responsible for  the problem, and (2) the  defendant
honestly believed  that the  plaintiff was to  blame; "[e]ven
deep  conviction  of the  rightness of  one's cause  does not
justify fraud").

20.  The  $183,120  difference  between the  amount  of  lost
profits awarded  and the  total damages  awarded on  the jury
counts  represents   the  MWRA  fine,  the   attorneys'  fees
Cambridge Plating  incurred in connection with  the fine, and
the cost of  the static  mixer.  Also,  the district  court's
lost profits award for  the 93A count was $981,000  less than
the lost profits  awarded after  the remittitur  of the  jury
award because  the court believed  that the $981,000  in lost
profits  was   an  amount  over  which   fact  finders  might
reasonably differ.   Cambridge Plating III,  890 F. Supp.  at
                                                      

                             -48-


59.   Napco  argues  that the  award  of lost  profits  still

"exceeds any  rational appraisal  or estimate of  the damages

that could be based upon the evidence."  See Eastern Mountain
                                                                         

Platform Tennis, Inc. v.  Sherwin-Williams Co., Inc., 40 F.3d
                                                                

492,  502  (1st Cir.  1994),  cert. denied,  115 S.  Ct. 2247
                                                      

(1995).  Napco argues  that the entire award of  lost profits

should be set  aside or  be further remitted  to reflect  (1)

Cambridge  Plating's  failure  to  mitigate  damages and  (2)

Cambridge Plating's failure to  account for selling,  general

and administrative ("SG&A") expenses associated with the lost

profits.   Napco  separately  argues that  the award  of lost

profits for the negligent misrepresentation count must be set

aside  because   such  damages   are  not   cognizable  under

Massachusetts law.

          A.  Sufficiency Of The Evidence On Lost Profits
                                                                     

          Cambridge  Plating had  the burden  of providing  a

reasonably  certain  basis to  believe that  Napco's wrongful

conduct caused  the loss  of anticipated profits,  cf. Augat,
                                                                         

Inc. v. Aegis,  Inc. (Augat  I), 565 N.E.2d  415, 421  (Mass.
                                           

1991) (plaintiff  must prove  losses would not  have occurred

but for  the wrongful  conduct), and proving  with sufficient

certainty  the amount  of  those anticipated  profits.   "The

nature of the business  or venture upon which the anticipated

profits are claimed must  be such as to support  an inference

                    
                                

59.

                             -49-


of definite profits grounded upon  a reasonably sure basis of

facts."   Augat, Inc.  v. Aegis, Inc. (Augat  II), 631 N.E.2d
                                                             

995, 998 (Mass. 1994) (internal quotations omitted).  Because

every  calculation  of  lost  profits  has  some  element  of

uncertainty, a plaintiff need not calculate lost profits with

"mathematical exactness."  Id.   But they cannot  be "remote,
                                          

speculative  [or]  hypothetical."   Id.    Napco argues  that
                                                   

Cambridge Plating failed to establish the critical connection

between  the   defective  wastewater  treatment   system  and

Cambridge Plating's inability  to do plating  work.  On  this

point Napco is wrong.

          Cambridge Plating  provided evidence  of  causation

principally through  three witnesses  -- Mssrs.  Tosi, Moleux

and Joseph  Finn, Cambridge  Plating's damages expert.   Tosi

testified that, in the  plating business, customers insist on

quick  turn-around time.  He  also testified that because the

wastewater   treatment  system   was  not   working  properly

Cambridge Plating had to  employ closed looping, which slowed

down  the  amount  of  wastewater  fed  through  the  system,

consequently  slowing  down  the  plating  process.    Moleux

confirmed that closed looping  "required Cambridge Plating to

either partially  or totally shut down."   Additionally, Tosi

testified that the zinc  plating operation closed because the

system was  unable to remove  sufficiently the  contaminants.

                             -50-


Further,  Debisschop directly linked the wastewater treatment

system to a plating operation's profitability.

          Finally, Finn testified that until 1985, the  first

full  year the  wastewater treatment system  was operational,

Cambridge Plating  had generally  experienced an increase  in

sales.   He also  testified that for the  years following the

installation  of the  system,  Cambridge  Plating's  revenues

decreased  from approximately  $6.2 million  in 1985  to $4.8

million in  1989, and net income  declined from approximately

$284,000 in 1985 to  a net loss of approximately  $131,000 in

1989.  During  this time  period, the plating  industry as  a

whole averaged modest growth.

          Cambridge  Plating  provided  a simple  before-and-

after financial picture  of an established company.   It also

provided  testimony  from people  expert  in  plating and  in

wastewater treatment  that the difference in  profits was due

to  a slowdown  in production  and failure  to meet  effluent

limitations,  both  of  which  could be  traced  back  to the

malfunctioning wastewater  treatment system.  Napco chose not

to  present  an expert  of  its own  to break  the connection

between the financial decline  and the malfunctioning system.

Instead,  Napco was content to try to poke holes in Cambridge

Plating's damages  testimony.  "This [was]  a risky strategy,

and it  failed."  AMPAT/Midwest,  896 F.2d at  1046 (internal
                                           

                             -51-


citation  omitted).     There  was  sufficient   evidence  of

causation to support an award of lost profits.

          B.  Mitigation
                                    

          "The general principle is well settled that a party

cannot recover for harms  that its own reasonable precautions

would have avoided."  Knapp Shoes, Inc. v. Sylvania Shoe Mfg.
                                                                         

Corp.,  72 F.3d  190, 204-05  (1st  Cir. 1995),  petition for
                                                                         

cert.  filed, 64 U.S.L.W. 3709 (U.S. April 11, 1996) (No. 95-
                        

1650).   Cambridge Plating did  not install the  static mixer

until 15 months after it knew in February 1989 that the mixer

was  missing.    Installation  took one  day.    This was  an

inexcusable failure to mitigate damages.

          The  district  court   recognized  that   Cambridge

Plating had  failed to mitigate  its damages.   See Cambridge
                                                                         

Plating  II, 876  F.  Supp.  at 345  ("Once  Moleux  informed
                       

Cambridge  Plating that the System was missing a vital part .

. . . [t]he obvious next step was to buy and install a  mixer

immediately.").   Nevertheless, in its Chapter  93A decision,

the district court awarded damages for both 1990 and 1991 and

then discounted them.  It also did  not adjust the jury award

in  its  remittitur  to  take  account  of  this  failure  to

mitigate.  We agree with  Napco that both the Chapter 93A and

the remittitur rulings were in error.

          Cambridge Plating argues that it should be absolved

for its failure to mitigate after February 1989 because there

                             -52-


would have, in any  event, been recovery time.   The recovery

time,  it  says, was  needed  in order  to offset  the damage

resulting from its new  reputation as a polluter, and  to get

word  out to customers  that it could fill  their needs while

complying  with the  environmental  regulations.   This is  a

plausible theory.  But Cambridge Plating did  not provide the

type or  quantity of proof that Massachusetts law requires to

support damages for this "reputational"  injury sufficient to

overcome its failure to mitigate.

          Cambridge   Plating  points  to  no  evidence  from

customers  that it  would  not  have  been  able  to  recover

business  because of its  reputation as a polluter.   The one

customer who  testified, Alfred Jacques  of General Electric,

did  not  support  Cambridge  Plating's  reputational  injury

theory.  The   evidence  Cambridge Plating relies  upon --  a

statement from DeBisschop agreeing  that companies "tend"  to

lose  business when they  are found  to be  polluters, Tosi's

testimony   that  Cambridge   Plating  became  "known   as  a

polluter,"   and  an  advertisement  from  Cambridge  Plating

touting  its  system  --   provides  scant  support  for  the

proposition  that  there was  any  reputational  harm.   This

evidence  of  reputational injury  is  also  in tension  with

Finn's  testimony that  if  Cambridge Plating  had a  working

wastewater treatment  system,  it  could  have  replaced  its

business "almost immediately."  Even Cambridge Plating states

                             -53-


in its brief  that "demand  for plating  and metal  finishing

services  such as  those  provided by  Cambridge Plating  was

strong  throughout  the  late   1980s  and  to  the  time  of

trial."21

          On  this  record,  Cambridge  Plating's  theory  of

reputational  injury is,  to  say  the least,  "speculative."

Augat II,  631 N.E.2d at 998.  Cambridge  Plating can find no
                    

comfort in the case  law that allows for some  uncertainty in

proving damages  in tort  cases.   See,  e.g., Computer  Sys.
                                                                         

Eng., Inc. v. Qantel Corp., 740 F.2d 59, 67 (1st Cir.  1984).
                                      

Those cases  reason that some uncertainty  is allowed because

it has been created by the defendant's wrongful conduct.  Id.
                                                                         

Here,  however,  the  uncertainty  for the  period  following

February 1989  was largely caused by  Cambridge Plating's own

wrongful conduct in failing to mitigate. 

          Still, Napco has conceded  that the period  through

November 1989, or nine  months after Cambridge Plating should

have  installed the  static mixer,  is a  reasonable recovery

period.  In the absence of evidence showing Cambridge Plating

mitigated  its damages, the  outer limit for  such damages on

the record before  the trial  court was November  1989.   Cf.
                                                                         

                    
                                

21.  Although  Cambridge  notes that  its sales  continued to
decline after May  1990, the booming economic  times had come
to an end by then.  Indeed, the declining sales following the
installation of the static mixer might even suggest  that the
missing  static  mixer  had  nothing  to  do  with  Cambridge
Plating's financial problems.

                             -54-


Augat II, 631 N.E.2d at 1000 (reducing period of lost profits
                    

to six months).

          We also  believe that both the  Chapter 93A damages

and the  remittitur should equally take  account of Cambridge

Plating's  failure  to mitigate.    We  therefore vacate  the

district  court's award of Chapter 93A  damages and remand to

eliminate all damages occurring  after November 1989; we also

vacate  the order  of remittitur  and remand  with directions

that  the  district  court  grant  a  further  remittitur  to

eliminate  damages occurring  after  November 1989.   See  28
                                                                     

U.S.C.   2106  (appellate court  may vacate any  judgment and

remand to require  such further proceedings as  may be just);

Anthony v. G.M.D. Airline Servs., Inc., 17 F.3d 490, 495 (1st
                                                  

Cir. 1994)  (remanding with  directions to district  court to

grant  a remittitur).22  Of course,  plaintiff has the option

to seek a new trial on damages in lieu of the remittitur.

          C.  SG&A Expenses
                                       

          Cambridge  Plating  had to  prove  lost profits  in

terms of net profits,  not gross profits.  Jet  Spray Cooler,
                                                                         

Inc.  v. Crampton, 385  N.E.2d 1349, 1359  n.15 (Mass. 1979).
                             

Generally, this  requires that gross profits  be adjusted for

SG&A  expenses.   In  this case,  however, Cambridge  Plating

                    
                                

22.  Because we believe both the district court damages award
and  the jury award  must be adjusted in  the same manner, we
need  not address  Napco's argument  that the  district court
erred in allowing damages on the jury award that exceeded the
damages under Chapter 93A.

                             -55-


argued that SG&A  expenses would  not have  increased as  its

sales increased and thus the anticipated gross profits should

not be reduced by SG&A expenses.  The district court accepted

Cambridge Plating's argument, as do we.

          Cambridge Plating relies  on the testimony of  Finn

that "lost  gross profit for  Cambridge Plating is  the exact

same  number  as  the  lost  net  profit  for  the  years  in

question."   Although, as Napco points  out, the consolidated

financial  statements  from  1980  to  1985  show  a  general

increase in both sales and SG&A expenses, Finn testified that

SG&A expenses  increased only 10%-11% as  sales increased 30%

for  the  period  1982  to 1984.    Moreover,  in 1984,  SG&A

expenses decreased  slightly as  sales increased.   From this

evidence,  Finn   believed  that  there   was  "no  dependent

relationship  between  S G  and  A and  sales" and  that SG&A

expenses  would  not  have  necessarily  increased  as  gross

profits  increased.    Although  these  inferences  from  the

evidence are weak, they are sufficiently plausible to survive

Napco's challenge on appeal.

          D.  Negligent Misrepresentation
                                                     

          Lost  profits of  $4,161,000  were  awarded on  the

negligent   misrepresentation   count.     This   was  error.

Massachusetts  law does  not allow  "benefit of  the bargain"

damages for  negligent misrepresentation.   Danca v.  Taunton
                                                                         

Sav. Bank, 429 N.E.2d 1129, 1134 (Mass. 1982).  Lost profits,
                     

                             -56-


which  are a species  of benefit of the  bargain damages, are

therefore prohibited.  See also Redstone v. Goldman, Sachs  &
                                                                         

Co., 583 F. Supp. 74, 76-77 (D. Mass. 1984) (lost profits not
               

available for  negligent  misrepresentation).   The award  of

lost  profits  on  the negligent  misrepresentation  count is

reversed.

                        V. Conclusion 

          For the foregoing reasons,  we affirm on  liability

(save for 93A  multiple damages), but  vacate and remand  the

Chapter  93A  single  and  multiple  damages  award  and  the

remittitur  for  further  proceedings  consistent  with  this

opinion.  Parties to bear their own costs.  It is so ordered.
                                                                        

                             -57-