Davignon v. Clemmey

United States Court of Appeals
For the First Circuit

No. 01-1862

NEAL DAVIGNON AND PATRICIA KELLEY,

Plaintiffs-Appellees/Cross-Appellants,

AMANDA DAVIGNON AND CHELSEA DAVIGNON,

Plaintiffs-Appellees,

v.

KARL D. CLEMMEY AND KARL D. CLEMMEY, JR.,

Defendants-Appellants/Cross-Appellees,

TOWN OF MANSFIELD, MASSACHUSETTS,
ARTHUR O'NEIL, ETC.

Defendants-Appellees,

CLEMMEY, INC., ET AL.,

Defendants.

No. 02-1293

NEAL DAVIGNON AND PATRICIA KELLEY,

Plaintiffs-Appellees/Cross-Appellants,

AMANDA DAVIGNON AND CHELSEA DAVIGNON,
 Plaintiffs-Appellees,

v.

KARL D. CLEMMEY AND KARL D. CLEMMEY, JR.,

Defendants-Appellants/Cross-Appellees,

TOWN OF MANSFIELD, MASSACHUSETTS,
ARTHUR O'NEIL, ETC.

Defendants-Appellees,

CLEMMEY, INC., ET AL.,

Defendants.

No. 02-1346

NEAL DAVIGNON AND PATRICIA KELLEY,

Plaintiffs-Appellees/Cross-Appellants,

AMANDA DAVIGNON AND CHELSEA DAVIGNON,

Plaintiffs-Appellees,

v.

KARL D. CLEMMEY AND KARL D. CLEMMEY, JR.,

Defendants-Appellants/Cross-Appellees,

TOWN OF MANSFIELD, MASSACHUSETTS,
ARTHUR O'NEIL, ETC.

Defendants-Appellees,

2
 CLEMMEY, INC., ET AL.,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Torruella, Circuit Judge,

Cyr and Stahl, Senior Circuit Judges.

Michael J. Traft, with whom Carney & Bassil, P.C. was on brief
for defendants-appellants.
Leonard H. Kesten, with whom Deidre Brennan Regan, Patricia
Malone Campbell, and Brody, Hardoon, Perkins & Kesten were on brief
for plaintiffs-appellees and defendants-appellees.

March 4, 2003

3
 CYR, Senior Circuit Judge. Defendants Karl D. Clemmey

("Karl") and Karl D. Clemmey, Jr. ("Dan") appeal from a district

court judgment, entered following a jury verdict, directing them to

pay $2,850,000 in damages to Neal Davignon, Patricia Kelley, and

their two minor children, for intentional infliction of emotional

distress, assault and battery, and various violations of their

civil rights. In turn, Davignon and Kelley cross-appeal from a

district court ruling that their jury verdict against Karl Clemmey,

totaling $2,000,000, for intentional infliction of emotional

distress, is barred by res judicata. We affirm the jury verdict.

I

BACKGROUND

The relevant background facts are recited in the light

most consistent with the jury verdict. See Quint v. A.E. Staley

Mfg. Co., 172 F.3d 1, 9 (1st Cir. 1999). On January 9, 1998, Karl

and Dan Clemmey, owners of Clemmey Auto Body in Mansfield,

Massachusetts, abruptly discharged their mechanic, Neal Davignon,

physically assaulted him, and thereafter threatened his life and

the lives and physical safety of his family. At the time,

Davignon, Patricia Kelley, and their two minor children were

tenants in a residence owned by Karl Clemmey's real estate company

— 360 Chauncey Street LLC.

Twenty minutes after he was fired, Davignon returned to

the auto body shop, with Kelley and their children, in order to

4
retrieve some personal tools which had been wrongfully confiscated

from Davignon by the Clemmeys during the earlier assault. After

Dan Clemmey refused to allow Davignon to enter, claiming that

Davignon had assaulted his father — Karl Clemmey — Kelley and the

children left in tears to seek police assistance. Subsequently,

Dan Clemmey advised the police officer that Karl Clemmey had

decided not to press assault charges against Davignon and Kelley.

Thereafter, Neal Davignon signed an assault-and-battery complaint

against Karl Clemmey.

One week later, the Clemmeys commenced a long and

relentless campaign of harassment and intimidation against Davignon

and Kelley, beginning with their filing of criminal charges of

assault and threats of arson. Subsequently, Karl Clemmey actively

opposed Davignon's pending claim for unemployment compensation.

Additionally, Karl Clemmey's real estate company, 360 Chauncey

Street LLC, commenced eviction proceedings in state housing court

against Davignon and Kelley. Davignon and Kelley counterclaimed

for intentional infliction of emotional distress and thereafter

included Karl Clemmey as a party defendant. Ultimately, in July

1998, Davignon, Kelley, and 360 Chauncey Street LLC entered into an

Agreement for Judgment, which ceded possession of the leased

premises to 360 Chauncey Street LLC, effective October 1, 1998, and

stated that "the parties agree to waive all claims and

counterclaims regarding this matter with prejudice."

5
 Meanwhile, the Clemmeys, acting in concert, repeatedly

intimidated and harassed the Davignons from February to August of

1998. For instance, while Davignon was visiting a friend at

another auto repair garage, he observed that Karl Clemmey was

taking his photograph. On the same occasion, Karl Clemmey warned

Neal Davignon that no unemployment-compensation hearing would ever

be held because "[y]ou'll be dead by then, you and your family."

In due course, Neal Davignon reported these threats to

the Mansfield Police Department. Whereupon, Karl Clemmey was

arrested and charged with the January 9 assault, and the state

court entered a "stay-away" order as a condition of bail.

Thereafter, Karl Clemmey submitted several additional false

criminal complaints against Davignon, alleging assault and

threatened assault.

Another witness saw Dan Clemmey break open a trash bag

and strew its contents over the Davignons' lawn. In a similar

vein, Patricia Kelley observed as Karl Clemmey drove past the

Davignon residence. Later, upon returning home from an errand,

Kelley found that the front door had been broken. On yet another

occasion, a Mansfield police officer saw Karl as he was driving by

the Davignon home. By way of further harassment, Karl falsely

reported to the Mansfield Fire Department that the Davignons were

storing explosives and other hazardous materials at their home.

6
Upon investigation, the latter allegation proved to be unfounded as

well.

In April 1998, an anonymous telephone report was received

by the Massachusetts Department of Social Services, to the effect

that Davignon and Kelley were abusing and/or neglecting their

children. Following an investigation, which included interviews of

the Davignon children, the allegations were determined to have been

unfounded.

On several other occasions, Patricia Kelley and another

person witnessed the Clemmeys surveilling the Davignon residence

from their parked car. In August 1998, Davignon saw Karl Clemmey

as he was driving away from the Davignon residence, and immediately

thereafter found the rock which had been thrown through the window

of his residence moments earlier. On yet another occasion, Karl

Clemmey brought his car to a stop on the street beside the Davignon

residence and (i) called out to the Davignon children: "Assholes"!

and (ii) ranted that their parents were "pieces of shit." These

outbursts brought the Davignon children to tears.

Subsequently, Karl Clemmey was convicted in state court

for having assaulted Davignon on January 9, 1998; at the same time,

Kelley was acquitted of the charge that she had assaulted Dan

Clemmey. Thereafter, the numerous remaining criminal complaints

brought by the Clemmeys against Davignon and Kelley were dropped.

7
 In September 1999, Davignon, Kelley, and their children

commenced the instant action against the Clemmeys in the United

States District Court for the District of Massachusetts, demanding

damages for (i) assault and battery; (ii) intentional infliction of

emotional distress; and (iii) various civil rights violations. The

Clemmeys counterclaimed against Davignon and Kelley, and instituted

a cross-claim against the Town of Mansfield and its police chief

for facilitating Davignon's and Kelley's alleged harassment of the

Clemmeys.1 Following the nine-day trial, the jury awarded Davignon

$350,000 on the assault and battery charge; as well as $1,000,000

each to Davignon and Kelley, and $1,250,000 to each Davignon child,

on their respective claims for intentional infliction of emotional

distress and civil rights violations.

On June 1, 2001, at the behest of Davignon and Kelley, the

district court certified its partial judgment as final, pursuant to

Federal Rule of Civil Procedure 54(b), and the Clemmeys timely filed

their notice of appeal. On June 11, the district court extended the

time for submitting applications for counsel fees, as well as

motions for judgment as a matter of law, new trial, and remittitur.

1
Following their appeal, the Clemmeys' cross-claim against the
Town was dismissed by the district court as moot, pursuant to
Federal Rule of Civil Procedure 16(c). The Clemmeys contend on
appeal that we must reverse the Rule 16(c) dismissal in the event
we determine that a new trial is warranted on the Clemmeys' claims.
As we reach no such conclusion, see infra, their contention need
not be addressed.

8
The Clemmeys did not file their post-trial motions until June 29,

more than ten days after the entry of final judgment on June 1.

Although the district court rejected the Clemmeys' motions

for new trial and remittitur, it vacated the $1,000,000 jury awards

to Davignon and Kelley for intentional infliction of emotional

distress as well as various civil rights violations. The district

court determined that these claims had been fully litigated and

waived by Davignon and Kelley pursuant to the July 1998 Agreement

for Judgment in the housing-court eviction proceedings, which

included a release stating that "the parties agree to waive all

claims and counterclaims regarding this matter with prejudice."

The Clemmeys now appeal from the district court rulings

which rejected their post-trial motions. Davignon and Kelley cross-

appeal from the district court order which vacated their respective

$1,000,000 awards for intentional infliction of emotional distress

and various civil rights violations.

II

DISCUSSION

A. The Clemmey Appeal

1. Federal Rule of Evidence 803(4)

The district court permitted Jeffrey Parks — a family

therapist and social worker not licensed to practice medicine — to

testify concerning statements made to him by the Davignons during

family-therapy sessions relating to the extreme emotional distress

9
experienced by the Davignon children.2 The Clemmeys contend that

the district court erred in permitting Parks to testify regarding

these statements because (i) Federal Rule of Evidence 803(4)

provides an exception to the hearsay rule only for those statements

made "for the purpose of medical diagnosis," whereas (ii) the

plaintiffs consulted Parks for generalized advice on family

problems, rather than to facilitate contemporaneous or subsequent

treatment by a medical professional for any particular illness or

disease.

Normally, "proper interpretation of the Federal Rules of

Evidence [presents] a question of law and is reviewed de novo,

whereas the application of [a particular rule of evidence] . . . is

reviewed under an abuse-of-discretion standard." Crowley v. L.L.

Bean, Inc., 303 F.3d 387, 394 (1st Cir. 2002) (citation omitted).

The Clemmeys failed to assert any objection at the time Parks

testified. Moreover, their pretrial motion in limine was

insufficient as well. See Varano v. Jabar, 197 F.3d 1, 4 (1st Cir.

1999) (noting that objection asserted by motion in limine does not

2
There are four elements to an intentional-infliction claim
under Massachusetts law: (i) defendant intended to inflict
emotional distress or knew or reasonably should have known that
emotional distress was likely to result from such conduct; (ii) the
conduct was "extreme and outrageous," "beyond all possible bounds
of decency," and "utterly intolerable in a civilized community";
(iii) the defendant's conduct proximately caused plaintiff's
emotional distress; and (iv) the distress was so "severe that no
reasonable man could be expected to endure it." Agis v. Howard
Johnson Co., 355 N.E.2d 315, 318-19 (Mass. 1976) (citations
omitted).

10
preserve evidentiary challenge absent contemporaneous objection at

trial). Consequently, we review for plain error only. We discern

none. See Linn v. Andover Newton Theolog. Sch., Inc., 874 F.2d 1,

3 (1st Cir. 1989) ("We have stated repeatedly that absent

extraordinary circumstances, we will not in a civil case excuse a

party's failure to make a contemporaneous objection [to hearsay

evidence].") (emphasis added).3

2. The Jury Instruction

The district court instructed the jury that a knowing

violation of the state-court restraining order by the Clemmeys would

be sufficient, "standing alone," to demonstrate "outrageous

conduct," an essential element of the claim for infliction of

3
The ambit of Rule 803(4) is not limited to statements made to
a licensed physician, but instead may encompass those made to
social workers, provided that the declarant intended to procure
medical treatment. See Navarro de Cosme v. Hospital Pavia, 922
F.2d 926, 933 (1st Cir. 1991). Here, the plaintiffs sought Parks'
counsel in order to address mental-health issues associated with
the campaign of harassment which the Clemmeys conducted against
them and their children.
The Clemmeys belatedly attempt to distinguish Navarro, based
on legal arguments whose correctness is not remotely obvious. For
instance, they urge that these statements should have been excluded
from evidence because the declarants (viz., the Davignons) had a
compelling motive to lie. However, the district court allowed Park
to testify only to statements the Davignons made prior to this
litigation. Similarly, the Clemmeys cite child-sex-abuse cases, in
which various courts have refused to admit parental statements to
medical doctors who diagnosed physical abuse. However, those cases
are based on the theory that a parent who abuses his or her own
child may harbor a strong motive to mislead the doctor. See, e.g.,
United States v. Yazzie, 59 F.3d 807, 813 (9th Cir. 1995).

11
emotional distress. See supra note 2.4 The Clemmeys maintain that

the challenged instruction misstates Massachusetts law. Jury

instructions are reviewed de novo. See Crowley, 303 F.3d at 394.

A jury instruction, duly objected to, constitutes

reversible error only if it (i) is "misleading, unduly complicating,

or incorrect as a matter of law," id. (citation omitted); and (ii)

cannot be considered harmless, viz., as adversely affecting the jury

verdict and the "substantial rights" of the objecting party, see

Romano v. U-Haul Int'l, 233 F.3d 655, 665 (1st Cir. 2000). Absent

a duly asserted objection at trial, however, an appellant may

prevail only by establishing "plain error," viz., by demonstrating

that (i) the instruction constituted error as a matter of law; (ii)

the error was plain; (iii) likely altered the outcome; and (iv)

threatened the fairness, integrity or public reputation of the

judicial proceeding. See Seahorse Marine Supplies, Inc. v. P.R. Sun

Oil Co., 295 F.3d 68, 80 (1st Cir. 2002).

4
The challenged instruction stated, in pertinent part:

[If Karl Clemmey] knew there was a[] [stay-
away] order and that he intentionally violated
it, I'm telling you that that's enough under
intentional infliction of emotional distress
standing alone because the orders of the state
court are expected to be obeyed. Now that
doesn't say that there's damages. The
violation would have to be the proximate cause
of this severe emotional distress.

12
 We need not consider whether the instant jury instruction

constitutes a correct statement of Massachusetts law,5 nor whether

the Clemmeys adequately preserved the present claim for appeal,6

inasmuch as the record on appeal discloses beyond any genuine doubt

that the putative error was neither plain nor harmful, given that

it almost certainly did not affect the verdict. The Clemmeys

maintain, for example, that the jury may have found them liable

based merely on some isolated and relatively innocuous violation of

the "stay-away" order, such as Karl Clemmey driving by the Davignon

home on a single occasion. Of course, appellants conveniently

overlook the fact that the jury was explicitly charged with

5
We note, however, that the validity of the Clemmeys' legal
thesis is hardly self-evident. The Clemmeys cite cases which hold
that a violation of a statute does not itself establish a
negligence claim per se, but rather that it is one factor the
factfinder may consider. See Bennett v. Eagle Brook Country Store,
Inc., 557 N.E.2d 1166, 1168 (Mass. 1990). However, the Clemmeys
cite (and we have found) no Massachusetts case which holds that the
same rule applies to (i) a violation of a court order; or (ii) a
claim for intentional infliction of emotional distress. Cf., e.g.,
Cramer v. Consol. Freightways, Inc., 255 F.3d 683, 697 (9th Cir.
2001) (en banc) (holding that conduct which violates California
penal law is "per se outrageous" for purposes of intentional-
infliction claim), cert. denied, 534 U.S. 1078 (2002).
6
During the precharge conference, the Clemmeys lodged no
objection when the district court announced its intention to give
this jury instruction. Tr. VIII, at 195-96. Following the jury
charge, however, counsel stated: "Objection for the record to the
instruction that violation of the stay-away order is per se
emotional distress." Tr. IX, at 108. A party will be deemed to
have waived objection to a jury instruction unless, prior to the
jury deliberations, it "'stat[ed] distinctly the matter objected to
and the grounds of the objection.'" Seahorse Marine Supplies, 295
F.3d at 79 (emphasis added; citation omitted).

13
assessing the outrageousness of the Clemmeys' conduct in determining

the severity of the injury proximately caused to the Davignons,

hence the amount of damages. Thus, the district court explicitly

instructed the jury: "The violation [of the stay-away order] would

have to be the proximate cause of this severe emotional distress."

(Emphasis added.)

Given the $4.5 million jury award for intentional

infliction of emotional distress, we are entirely confident that the

jury did not opt to rely upon any one innocuous drive-by. Instead,

as the trial outcome turned almost entirely upon the Clemmeys'

credibility vel non, the jury in all likelihood determined that

appellants' well-documented, extensive campaign of harassment

readily rose to the level of "outrageous conduct," resulting in

severe emotional injury to the Davignon family. Accordingly, viewed

in context, any instructional error was harmless.

3. The Sufficiency of the Evidence

a. Appellate Jurisdiction

The Davignons contend that we lack jurisdiction of the

Clemmeys' challenge to the sufficiency of the evidence supporting

the jury verdict, given that the Clemmeys failed to submit their

Rule 50 and Rule 59(e) motions within ten days after entry of the

final judgment on June 1, 2001. See Vargas v. Gonzalez, 975 F.2d

916, 917 (1st Cir. 1992) (per curiam) (noting that district court

lacks jurisdiction to extend "mandatory" ten-day window prescribed

14
by Fed. R. Civ. P. 6(b)). The Clemmeys respond that we may excuse

their tardy motions under the "unusual circumstances" exception, see

Thompson v. INS, 375 U.S. 384, 398-99 (1964) (per curiam), due to

their detrimental reliance upon the specific, albeit mistaken,

assurance by the district court that their motions were not

untimely.7 Their suggestion is problematic for several reasons.

First, the viability of the Thompson doctrine remains in

considerable doubt, see, e.g., Osterneck v. Ernst & Whinney, 489

U.S. 169, 178-79 (1989); United States v. Heller, 957 F.2d 26, 28

(1st Cir. 1992) (noting that Thompson "may be on shaky ground"); see

also Arnold v. Wood, 238 F.3d 992, 996 (8th Cir.), cert. denied, 534

U.S. 975 (2001), most notably as concerns its application to motions

submitted under Rules 50 and 59(e). See Weissman v. Dawn Joy

Fashions, Inc., 214 F.3d 224, 231 (2d Cir. 2000) (holding that

Thompson applies exclusively to timeliness of notices of appeal).

Second, unlike the situation in Thompson, the sole "assurance" given

the Clemmeys by the district court was implicit at most, in that the

district court simply granted, by endorsement, the joint motion of

the parties for an extension. Although we have not determined

whether such an endorsement, standing alone, constitutes an

"assurance" upon which an appellant reasonably may rely, but see

7
We reject their alternative argument that the judgment
entered on June 1 was not "final." The district court explicitly
certified its judgment as final, pursuant to Federal Rule of Civil
Procedure 54(b), and the Clemmeys thereafter lodged their notice
of appeal from that judgment.

15
Scola v. Beaulieu Wielsbeke, N.V., 131 F.3d 1073, 1075 (1st Cir.

1997) (noting, in dicta, that this proposition is "very dubious"),

other courts of appeals have been unreceptive. See, e.g., Rhoden

v. Campbell, 153 F.3d 773, 774 (6th Cir. 1998); Endicott Johnson

Corp. v. Liberty Mut. Ins. Co., 116 F.3d 53, 57 (2d Cir. 1997).

Finally, even assuming that the district court's endorsement did not

itself give rise to "unique circumstances," the Davignons acquiesced

in its grant of the extension. See, e.g., Weissman, 214 F.3d at

232 (holding that, despite absence of "unique circumstances,"

opposing party, by failing to oppose time extension, waived

nonjurisdictional requirement that appellant renew its Rule 50

motion after trial).

Given the enigmatic nature of the "unique circumstances"

doctrine, and our determination that the sufficiency challenges

asserted by the Clemmeys fail on the merits, see infra, we bypass

the jurisdictional issue, and turn to the substance of their appeal.

See United States v. Woods, 210 F.3d 70, 74 n.2 (1st Cir. 2000)

(noting that timely notice of appeal is not an Article III

requirement, thus does not implicate Steel Co. v. Citizens for a

Better Env't, 523 U.S. 83 (1998)); Kelly v. Marcantonio, 187 F.3d

192, 197 (1st Cir. 1999) (holding that appellate court remains free

to bypass problematic jurisdictional issue, provided it does not

implicate Article III "case and controversy" requirement)

(distinguishing Steel Co.).

16
 b. The Assault and Battery Verdict for Neal Davignon

The Clemmeys contend that the $350,000 damages award to

Neal Davignon, arising from the assault and battery by Karl Clemmey

on January 9, 1998, is excessive, in that (i) Davignon established

at most that he sustained but minor physical injuries (e.g., bruised

ribs), as well as little or no lost income; and (ii) the jury may

have compensated Davignon separately — for the emotional injuries

resulting from the assault — under the Davignon intentional-

infliction-of-emotional-distress count. The Clemmeys seek either

a new trial or a remittitur.

A district court ruling rejecting a motion for new trial

is reviewed only for abuse of discretion. See Marrero v. Goya of

P.R., Inc., 304 F.3d 7, 14 (1st Cir. 2002). We accord considerable

deference to the trial court's "greater ability to understand the

scope of the evidence presented before it and to judge the

credibility of th[e] witnesses." MacQuarrie v. Howard Johnson Co.,

877 F.2d 126, 132 (1st Cir. 1989). Furthermore, new-trial motions

predicated on an insufficiency of evidence cannot prevail unless we

determine the verdict to have been "'against the clear weight of the

evidence such that upholding [it would] result in a miscarriage of

justice.'" Marrero, 304 F.3d at 14 (citation omitted); Hendricks

& Assocs., Inc. v. Daewoo Corp., 923 F.2d 209, 217 (1st Cir. 1991)

(noting double-layered deference accorded by courts of appeals —

17
first to jury, then to trial judge — in appeals from denials of Rule

59 motions).

A district court ruling rejecting a motion for remittitur

is reviewed for abuse of discretion. See Trull, PPA v. Volkswagen

of Am., Inc., 311 F.3d 58, 67 (1st Cir. 2002). The task of

estimating money damages, especially intangible, noneconomic loss,

constitutes a core jury function. Id. Thus, in the instant case

appellants face a "formidable" burden, since they must demonstrate

that the district court abused its discretion in determining that

the jury verdict (i) does not exceed "any rational appraisal or

estimate of the damages that could be based on the evidence before

the jury"; and (ii) is not "'grossly excessive, inordinate, shocking

to the conscience of the court, or so high that it would be a denial

of justice to permit it to stand.'" Id. (citations omitted).

An abundance of evidence enabled the jury rationally to

conclude that Neal Davignon sustained severe physical and emotional

injury as a consequence of the Clemmeys' brutal assault on January

9, 1998. Well known for his temper, enraged and unprovoked, Karl

Clemmey abruptly fired Davignon, shoved him, pinned him against a

van, insulted him (e.g., "You're so f---ing stupid"); threatened him

and his family with bodily harm (e.g., "You're a f---ing deadman,"

and "I'm going to stuff you in a trunk so you never see the light

of day."); misappropriated Davignon's work tools and other personal

belongings; held him from behind with a tire iron, while using it

18
to lift him off the floor by the neck and chest, swinging him from

left to right; threatened to break his back "so you never work

again"; and finally struck Davignon in the face with the tire iron.

The version of these events tendered by the Clemmeys was

quite different, of course, but both the jury and the district court

credited the Davignon evidence. Thus, the suddenness and brutality

of the assault, precipitated principally by Karl Clemmey's

unprovoked rage against Davignon and his family, amply supported the

jury finding that much of the emotional trauma sustained by Davignon

proximately resulted from the physical assault, as distinct from the

trauma caused by the Clemmeys' ensuing campaign of harassment,

thereby precluding any ruling on appeal that the $350,000 jury award

was either grossly excessive or shocking to the conscience. See

Trull, 311 F.3d at 67; see also Davis v. DelRosso, 359 N.E.2d 313,

316 (Mass. 1977) (rejecting further remittitur based on argument

that assault verdict should be "measured by reference only to the

physical damage to plaintiff," and not to "the shock and humiliation

of a sudden deliberate assault"); Ross v. Michael, 140 N.E. 292, 293

(Mass. 1923) (noting assault victim was "entitled to recover as an

element of damages for the humiliation, indignity, and injury to his

feelings").

The Clemmeys contend as well that the damages awarded in

relation to Karl's assault upon Davignon must be set aside, since

the jury may have compensated Davignon for the same injuries in its

19
discrete award for intentional infliction of emotional distress.

The district court instructed the jury to indicate, on its special

verdict form, whether and to what extent the mental and emotional

damages sustained by Davignon, due to the Clemmeys' assault,

overlapped with the damages awarded for intentional infliction of

emotional distress. The Clemmeys neither objected nor proposed an

alternative instruction. But cf., e.g., O'Connell v. Chasdi, 511

N.E.2d 349, 350 (Mass. 1987) ("In response to a special question,

the jury indicated that the damages awarded for intentional

infliction of emotional distress included the amount awarded for

assault and battery."). Moreover, on the verdict form in the

instant case, the jury explicitly noted: "no overlap."

c. The Verdict for the Davignon Children

The Clemmeys contend that the district court erred in

declining to enter judgment, as a matter of law, against the

Davignon children in relation to their claim for intentional

infliction of emotional distress, in that (i) the children's counsel

failed to mention or describe, during opening statement, any damages

sustained by the children; and (ii) the children adduced no evidence

that they were present during most of the alleged harassment, so as

to have experienced the requisite "direct impact" of any such

harassment.

Normally, a district court order rejecting a Rule 50(b)

motion is reviewed de novo, and is to be sustained unless the

20
evidence adduced at trial permitted but one conclusion — that the

verdict simply cannot stand. See Jarrett v. Town of Yarmouth, 309

F.3d 54, 59 (1st Cir. 2002). In order even to qualify for such

deferential review, however, appellants were required to preserve

their arguments by (i) submitting timely Rule 50 motions at the

close of evidence; (ii) renewing their motions following the jury

verdict; and (iii) identifying with sufficient particularity the

legal theories supporting their motions. See, e.g., CMM Cable Rep,

Inc. v. Ocean Coast Props., Inc., 97 F.3d 1504, 1530-31 (1st Cir.

1996). Absent such compliance, our review simply contemplates the

basic inquiry as to "'whether the record reflects an absolute dearth

of evidentiary support for the jury's verdict'"; and the district

court will be reversed "sparingly," that is, only where its ruling

is "obviously insupportable." Udemba v. Nicoli, 237 F.3d 8, 13-14

(1st Cir. 2001) (citations omitted).

As appellants did not broach their first contention —

viz., that the children's attorney failed to mention damages during

opening argument — until their post-verdict Rule 50 motion, it must

be deemed waived. Additionally, although the two cited cases do

acknowledge that, in certain circumstances, a trial court might

enter judgment immediately after such a delinquent opening argument,

neither case upheld such a premature dismissal on its facts. See

Best v. Dist. of Columbia, 291 U.S. 411, 415 (1934); Franchi Constr.

Co. v. Combined Ins. Co. of Am., 580 F.2d 1, 8 (1st Cir. 1978).

21
Thus, "[w]hile the district court has the power to direct a verdict

following the plaintiff's opening statement, to warrant the exercise

of that power 'it must clearly appear, after resolving all doubts

in plaintiff's favor, that no cause of action exists.'" Id.

(citations omitted).

Although plaintiffs' counsel certainly could have been

more particular, in no respect did their opening statements remotely

permit the suggestion that the Davignon children had sustained no

damages. See id. (in order to warrant early dismissal, opening

statement must be unambiguously "inconsistent" with asserted cause

of action). Instead, these opening statements placed the children

in the presence of tumultuous confrontations between their parents

and the Clemmeys, which necessarily implied that the children were

exposed to the harassment directed at their parents. See Sixty-

Eight Devonshire, Inc. v. Shapiro, 202 N.E.2d 811, 815-16 (Mass.

1964) ("[I]n an opening it is not to be expected that a plaintiff

will outline his damages with particularity. That is a matter

ordinarily left to proof.") (citation omitted).8 Consequently, we

conclude that (i) the instant claim has been waived; and (ii)

8
For instance, plaintiffs' counsel stated that they
represented the Davignon children; "Patty Kelley arrive[d], with
the two babies in the back of the car" at the Clemmeys' business on
the day the Clemmeys fired Davignon, and that when Kelley left with
the children to get the police, she was crying; and the Clemmeys
submitted a false child-abuse claim, against Davignon and Kelley,
to the DDS, seeking to have the Davignon children removed from
parental custody.

22
appellants have not demonstrated an "absolute dearth of evidentiary

support" for the jury verdict. Udemba, 237 F.3d at 13-14.

The second sufficiency challenge advanced by the Clemmeys

— that the children failed to establish that they sustained any

"direct impact" from the alleged harassment — was waived as well.

Contrary to their record citations on appeal, the Clemmeys failed

to include the present contention in their prejudgment Rule 50

motions. Appellants' assertion that their post-verdict motion not

only "focused" upon the plaintiffs' failure to mention damages in

their opening arguments, but also raised the "direct impact"

argument, is utterly disingenuous. Instead, their post-verdict

motion focused exclusively upon the "opening argument" claim. See

CMM Cable Rep, Inc., 97 F.3d at 1530-31.

Moreover, even if we were to assume, arguendo, that

Massachusetts law requires evidence of "direct impact," as advocated

by the Clemmeys, the record on appeal contains such evidence.

Unlike a truly absent family member who lives in another state, for

example, the Davignon children resided with their parents, and their

family home was the focal point of the Clemmeys' campaign.

Accordingly, it cannot reasonably be considered unduly speculative

to infer that the Davignon children were directly impacted by the

Clemmeys' actions. Furthermore, the record discloses several

instances in which the Clemmeys directed their conduct at the

children. For example, Karl Clemmey himself directly asserted to

23
the Davignon children that they were "assholes," and their parents

"pieces of shit!" Finally, Karl Clemmey submitted a false child-

abuse complaint to DSS, which resulted in a DSS interview of the

Davignon children.

Accordingly, and for all these reasons, the Clemmey appeal

must be denied. See Udemba, 237 F.3d at 13-14.

B. The Davignon Cross-Appeal

In January 1998, the Clemmeys' real estate company, which

owned the house the Davignons were renting, brought suit in state

housing court to evict Neal Davignon and Patricia Kelley, who then

counterclaimed against both the real estate company and Karl Clemmey

for intentional infliction of emotional distress. In July 1998,

Davignon, Kelley, and the company (but not Karl Clemmey) entered

into an Agreement for Judgment, which provided, inter alia, that (i)

judgment enter for the real estate company "for possession only,"

requiring the Davignons to vacate the premises by October 1, 1998;

(ii) the real estate company reimburse the Davignons for moving

expenses and attorney fees; (iii) "[t]he parties agree to waive all

claims and counterclaims regarding this matter with prejudice"; and

(iv) that the Agreement for Judgment was to operate as "a direct

order from the [Housing] Court . . . [and] as an injunction." The

caption of the Agreement designated the company alone (i.e., not

Karl Clemmey) as "Landlord/Plaintiff," and Davignon and Kelley as

24
"Tenant/Defendant." Karl Clemmey's counsel signed the Agreement for

"P's" – viz., Plaintiffs.

Davignon and Kelley now cross-appeal from a post-trial

ruling, in which the district court set aside their $2 million

damages award against Karl Clemmey for intentional infliction of

emotional distress, on the ground that their July 1998 Agreement for

Judgment in the housing-court case is res judicata. See Forman v.

Wolfson, 98 N.E.2d 615, 616 (Mass. 1951) (noting three elements of

res judicata defense: "identity of cause of action and issues, the

same parties, and judgment on the merits by a court of competent

jurisdiction").

1. Appellate Jurisdiction

First, the Davignons assert that the district court lacked

subject matter jurisdiction to vacate the jury verdict, since Karl

Clemmey failed to submit his post-trial motion within the ten-day

postjudgment deadline. For the reasons previously discussed, see

supra Section II.A.3(a), we bypass the jurisdictional issue, as the

Davignon and Kelley cross-appeal must be sustained on the merits in

any event. See Kelly, 187 F.3d at 197.

2. The Waiver of the Karl Clemmey Res Judicata Defense

Next, the Davignons insist on appeal, as they did before

the district court, that Karl Clemmey waived any res judicata

defense by failing to raise it until near the close of the

Davignons' case on the eighth day of the nine-day trial. As an

25
affirmative defense enumerated in Federal Rule of Civil Procedure

8(c), normally res judicata is deemed waived unless raised in the

answer. See Fed. R. Civ. P. 8(c); Rivera-Puig v. Garcia-Rosario,

983 F.2d 311, 319 n.12 (1st Cir. 1992); Badway v. United States, 367

F.2d 22, 24-25 (1st Cir. 1966); see also Mass. R. Civ. P. 8(c).9

Rule 8(c) is designed to provide plaintiffs with adequate

notice of a defendant's intention to litigate an affirmative

defense, thereby affording an opportunity to develop any evidence

and offer responsive arguments relating to the defense. See Knapp

Shoes, Inc. v. Sylvania Shoe Mfg. Corp., 15 F.3d 1222, 1226 (1st

Cir. 1994). There are certain exceptions to the Rule 8(c) bar which

might be invoked, inter alia, either where (i) the defendant asserts

it without undue delay and the plaintiff is not unfairly prejudiced

by any delay, see id.; or (ii) the circumstances necessary to

establish entitlement to the affirmative defense did not obtain at

the time the answer was filed, see, e.g., Depositors Trust Co. v.

Slobusky, 692 F.2d 205, 208 (1st Cir. 1982) ("A party may also have

recourse to a late discovered affirmative defense by obtaining leave

to amend his complaint.").

9
Federal Rule 8(c) provides, in pertinent part: "In pleading
to a preceding pleading, a party shall set forth affirmatively
accord and satisfaction, arbitration and award, assumption of risk,
contributory negligence, discharge in bankruptcy, duress, estoppel,
failure of consideration, fraud, illegality, injury by fellow
servant, laches, license, payment, release, res judicata, statute
of frauds, statute of limitations, waiver, and any other matter
constituting an avoidance or affirmative defense." Fed. R. Civ. P.
8(c) (emphasis added).

26
 Although application of the res judicata doctrine

essentially constitutes a legal determination for the district

court, which we would assess de novo, post-trial motions generally

are reviewed only for abuse of discretion, as is the case with

district court rulings regarding whether a defendant timely

interposed an affirmative defense. See Perez v. Volvo Car Corp.,

247 F.3d 303, 318-19 (1st Cir. 2001).

In the instant case, Karl Clemmey concededly failed to

raise the res judicata defense in his answer. Moreover, given the

circumstances, the district court abused its discretion, both in

permitting Clemmey to assert a res judicata defense at the eleventh

hour, and in failing to address the Rule 8(c) waiver issue squarely

raised by the Davignons in their opposition. See Coutin v. Young

& Rubicam P. R., Inc., 124 F.3d 331, 336 (1st Cir. 1997) (noting

that "abuse of discretion" obtains if court overlooks material

factor).

The contention that Karl Clemmey raised the res judicata

defense before trial is disingenuous, especially since he relies

entirely upon the fact that he asserted an estoppel defense in his

answer. To the contrary, (i) estoppel — viz., equitable estoppel

— is a defense separate and distinct from res judicata; and (ii)

estoppel broadly adverts to a claimant's prior representations and

conduct in general, while Rule 8(c), with its individualized

enumeration of "res judicata," "estoppel," and "release" as

27
affirmative defenses, plainly evinces an intention to accord

discrete treatment to the preclusive effects of prior consent

judgments, releases, and settlements.

Additionally, Karl Clemmey disingenuously contends that

the plaintiffs were placed on notice, during discovery, that he

intended to pursue a res judicata defense, simply by virtue of the

fact that Clemmey inquired of Patricia Kelley, on deposition,

regarding the Agreement for Judgment. The Patricia Kelley

deposition reflects, however, that defense counsel briefly probed

her understanding of the intended scope of the July 1998 settlement.

When Kelley insisted upon a narrow interpretation, and emphasized

her understanding that her waiver of claims pertained exclusively

to claims "regarding this matter" — viz., the company's claim for

eviction and possession — defense counsel dropped the subject. At

that juncture, therefore, it seems much more likely that plaintiffs

would have understood that Clemmey would not pursue any defense

predicated on the preclusive effect of the Agreement for Judgment,

particularly in light of Clemmey's admitted failure to raise the

defense in his answer.

Those cases which permit the interposition of an

affirmative defense outside the pleadings generally have involved

moderate delays, such as an attempt to raise the defense in a

pretrial motion to dismiss or for summary judgment, rather than at

trial or in a postjudgment motion. Compare, e.g., LaFreniere Park

28
Found. v. Broussard, 221 F.3d 804, 808 (5th Cir. 2000) (allowing

affirmative defense to be raised in summary judgment motion), with

Mozingo v. Correct Mfg. Corp., 752 F.2d 168, 172 (5th Cir. 1985)

(rejecting affirmative defense raised after jury verdict). Such

postponements become far less tolerable where a defendant, such as

Karl Clemmey, has tendered no justification whatsoever for the

belated request for further delay, and his putative entitlement to

the res judicata defense accrued well before the time Clemmey

submitted an answer, in November 1999, to the Davignon complaint.

See Slobusky, 692 F.2d at 208; see also In re Cumberland Farms,

Inc., 284 F.3d 216, 227 (1st Cir. 2002) ("[I]f Rule 8(c) is not to

become a nullity, we must not countenance attempts to invoke such

defenses at the eleventh hour, without excuse and without adequate

notice to the plaintiff.").

Moreover, Clemmey continued to waffle even after

purportedly asserting his affirmative defense. At trial, the

parties stipulated that the jury should be instructed that the

Agreement, at the very least, waived Davignon's and Kelley's claims

with respect to any emotional distress directly attributable to the

eviction, as distinguished from that attributable to the other acts

of harassment and intimidation perpetrated by the Clemmeys. The

district court (i) advised Clemmey's trial counsel that he could

later contend, by motion, that the Agreement had a broader

preclusive effect; (ii) suggested as possible defenses accord and

29
satisfaction, collateral estoppel (or issue preclusion), and res

judicata (or claim preclusion); and (iii) expressed its intention

to decide the issue as a matter of law.

Nevertheless, the post-trial motion submitted by Clemmey

broached no res judicata defense. Instead, the Clemmey motion

captioned his argument "Release," rather than "Res Judicata."

Moreover, the motion made but one prefatory citation to the general

doctrine of collateral estoppel. All five pages of the Clemmey

argumentation focused exclusively upon release, however, yet another

affirmative defense which he had never asserted in his answer. See

Sharon v. City of Newton, 769 N.E.2d 738, 742 (Mass. 2002) (noting

that "the defense of a release must be raised as an affirmative

defense and [] the omission of an affirmative defense from an answer

generally constitutes a waiver of that defense," but upholding trial

court's leave to amend answer to add "release" defense only where

it "did not raise a new issue on the eve of trial").

Moreover, as has been made crystal clear, "a suit can be

barred by the earlier settlement of another suit in either of two

ways: res judicata or release . . . [and] [t]he defenses are

separate and distinct." Nottingham Partners v. Trans-Lux Corp., 925

F.2d 29, 31-32 (1st Cir. 1991) (emphasis added). Here, however,

Clemmey argued that once he established the existence of the

release, the Davignons had to bear the burden of proving its

invalidity, Costello v. Hayes, 144 N.E. 368, 370 (Mass. 1924),

30
whereas the burden of establishing the affirmative defense of res

judicata rests upon the proponent. See Cochrane v. Cochrane, 22

N.E.2d 6, 9 (Mass. 1939); see also Nwosun v. Gen. Mills Rests.,

Inc., 124 F.3d 1255, 1257 (10th Cir. 1997) ("Res judicata is an

affirmative defense on which the defendant has the burden to set

forth facts sufficient to satisfy the elements."). Unlike res

judicata, see Forman, 98 N.E.2d at 616, the release defense simply

would require a showing that the release applied to Clemmey,

encompassed the intentional-infliction claim interposed in the

district court, and was legally enforceable (e.g., not the product

of fraud or duress). See Nottingham Partners, 925 F.2d at 32; Cram

v. Town of Northbridge, 575 N.E.2d 747, 749 (Mass. 1991); Sher v.

Sandler, 90 N.E.2d 536, 540 (Mass. 1950).

It is debatable, however, whether the Agreement for

Judgment applies to Clemmey at all, given that his name appears

nowhere in its caption. The only parties named in the Agreement are

the Clemmey real estate company, Davignon, and Kelley. Moreover,

the caption of the Agreement names the company, rather than Karl

Clemmey, as "Landlord/Plaintiff," and the Davignons as

"Tenant/Defendant."

In addition, the judgment arguably purports simply to

settle the real estate company's eviction action, rather than the

counterclaims for intentional infliction of emotional distress

against Karl Clemmey individually. Karl was merely a counterclaim

31
defendant, of course, not a "plaintiff," and his attorney signed the

Agreement as counsel for the plaintiffs. The release ambiguously

applies to claims "regarding this matter," which may advert either

narrowly to the settlement of the company's claim for eviction, or

more broadly to the eviction claim as well as all counterclaims in

the case, including the counterclaims against Clemmey individually.

But the intended breadth of the pivotal term "matter" is neither

expressly nor otherwise unambiguously defined. Finally, the fact

that the settlement took effect as "a direct order from the

[Housing] Court[,] . . . [and] as an injunction," is not conclusive

for purposes of its interpretation, in that the housing court may

have envisioned its injunctive order merely as a partial, nonfinal

judgment on the 360 Chauncey Street LLC eviction claim.

A judicial interpretation of an ambiguous release of a

joint tort liability implicates two important principles. First,

unless the release specifically conveys such an intent, it should

not be construed as a release of joint tortfeasors. See Cram, 575

N.E.2d at 748-49. Second, any ambiguity in the release is to be

resolved in favor of Davignon and Kelley. See Cormier v. Cent.

Mass. Chapter of the Nat'l Safety Council, 620 N.E.2d 784, 786

(Mass. 1993) ("[A]ny doubts about the interpretation of the release

must be resolved in the plaintiff's favor."). Thus, Clemmey

arguably failed to sustain the burden of proving the affirmative

defense of release, let alone to meet the more stringent

32
requirements of res judicata (e.g., identicality of parties,

finality of prior judgment).

Nor has Clemmey demonstrated that the res judicata

doctrine, even if applicable to the Agreement for Judgment, would

support a vacatur of the entire jury verdict. Clemmey acknowledges

that evidence of tortious conduct after the entry of the Agreement

for Judgment, such as the allegation that he threw a rock through

a window at the Davignon home in August 1998, was introduced and

admitted at trial. See Havercombe v. Dep't of Educ. of the

Commonwealth of P.R., 250 F.3d 1, 4-5 (1st Cir. 2001) (noting that

res judicata may not apply where second lawsuit alleges that

defendant engaged in additional, discrete instances of wrongful

conduct following prior judgment).10

Finally, the record on appeal is sufficiently developed

to enable clear resolution of the pivotal Rule 8(c) waiver issue,

without a remand. Although the district court ably grappled with

the affirmative defense asserted by Clemmey, its failure to consider

the waiver issue, which resulted in the vacation of the jury award,

constituted an abuse of discretion.

The district court order allowing the cross-appellees'

postjudgment motion is therefore vacated, and the original judgment

10
Clemmey contends that these post-July 1998 events are
immaterial, as the Davignons did not include them in their original
complaint. Nevertheless, the testimony was admitted at trial,
without objection. Consequently, the related factual issues were
tried with the implied consent of the parties.

33
for the appellees, entered pursuant to the jury verdict, is hereby

reinstated and affirmed. The parties shall bear their own costs.

SO ORDERED.

34