Correia v. Fitzgerald

United States Court of Appeals
For the First Circuit

No. 02-1417

BEVERLY CORREIA AND JOHN CARVALHO,

Plaintiffs, Appellants,

v.

KEVIN FITZGERALD, ETC., ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Lipez, Circuit Judge.

Bruce A. Assad for appellants.
Melody A. Alger, with whom Baluch, Gianfrancesco, Mathieu &
Szerlag was on brief, for appellees.

December 31, 2003
 SELYA, Circuit Judge. The appellants in this tort action

profess disappointment with the jury's take-nothing verdict and

invite us to order a new trial. Finding their disappointment

understandable but their arguments unpersuasive, we decline the

invitation.

I.

Background

The facts are straightforward. On February 5, 1997,

plaintiffs-appellants Beverly Correia and John Carvalho were

passengers in a car heading eastbound on Route 195 in Seekonk,

Massachusetts. The driver, Russell Machado, was proceeding in the

far left-hand lane of a six-lane divided highway. At the same time

and place, defendant-appellee Roderick Davol, Jr., a firefighter,

was driving a fire engine owned by the City of East Providence,

Rhode Island (the City). Although Seekonk and East Providence

repose in separate states, they are contiguous communities.

Davol was responding to an accident that had occurred in

East Providence. To reach the scene of the accident, he needed to

make a U-turn and access the westbound lanes of Route 195. As he

attempted to guide the fire engine through that maneuver, it

collided with Machado's vehicle. The crash occurred in broad

daylight.

There is considerable dispute about the etiology of the

collision. According to Davol, the fire truck was traveling in the

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far left-hand lane (in front of Machado's car) with its siren

blaring. As he approached an emergency vehicle turnaround in the

median strip, he slowed the truck, swung to the right (straddling

the far left and center lanes) in order to execute the wide left

turn, and activated the directional signal. The appellants tell a

different tale. They maintain that the fire engine was fully in

the center lane all along and veered to the left without activating

either its siren or blinker lights.

The parties agree that Machado's car (which was trying to

pass on the left) collided with the fire truck (which was trying to

enter the turnaround). Both vehicles were badly damaged and the

appellants sustained severe injuries.

Relying on diversity of citizenship and the existence of

a controversy in the requisite amount, 28 U.S.C. § 1332(a), the

appellants brought suit against the City, the City treasurer (as an

"official capacity" defendant), and Davol in the United States

District Court for the District of Massachusetts. The City

retorted by filing a third-party complaint against Machado for the

cost of repairing the fire engine.

For the most part, pretrial proceedings were uneventful.

We mention only one aspect. The district court set the case for

trial in December of 2001. On November 28, the appellants asked

the court to postpone the trial for three months, expressing

concern that the jury would be prejudiced in favor of a

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firefighter-defendant due to the publicity surrounding the events

of September 11, 2001, and the sentiment engendered by those

events.1 The district court denied the motion.

As matters turned out, the court subsequently delayed the

trial for a few weeks in hopes of achieving a settlement.

Negotiations proved fruitless and a five-day trial commenced on

January 14, 2002. The district court submitted a verdict sheet to

the jury that incorporated several special interrogatories. These

questions addressed both the appellants' personal injury claims and

the City's property damage claim. In connection with the former,

the jury returned a take-nothing verdict. In connection with the

latter, the jury apportioned negligence 99% to Machado and 1% to

Davol, and awarded the City $72,801. The district court entered

judgment for the defendants on the take-nothing verdict and for the

City on the property damage award (albeit in a modified amount).2

1
On September 11, 2001, terrorists struck the United States.
One hijacked airliner, then another, crashed into the World Trade
Center towers in Manhattan, causing the towers to collapse. 2,752
lives were lost. As part of the same foray, a third hijacked
airliner crashed into the Pentagon, and a fourth — diverted from
its nefarious mission by a brave group of passengers — went down
near Pittsburgh, Pennsylvania, killing all who were aboard. In the
aftermath, so-called first responders, particularly New York City
police officers and firefighters, performed valiantly to prevent
even greater carnage.
2
The court reduced the property damage award by 1% to account
for Davol's negligence and by an additional $25,000 to account for
an earlier payment. Neither Machado nor the City has appealed that
judgment.

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 The appellants filed a timely motion for a new trial.

The take-nothing verdict, they said, confirmed their fears about

the ripple effect of the September 11 tragedy, contravened both the

law and the weight of the evidence, and highlighted an

irreconcilable inconsistency in the jury's answers to the special

questions. The district court rebuffed this asseverational array

in a thoughtful rescript. See Carvalho v. Fitzgerald, 188 F. Supp.

2d 132 (D. Mass. 2002). This appeal followed.

II.

Analysis

In this venue, the appellants assign error to (i) the

lower court's denial of their motion for a continuance, and (ii)

the court's denial of their motion for a new trial. We address

these claims sequentially.

A.

Denial of the Continuance

The appellants argue that the widespread publicity about

the cataclysmic events of September 11 and the consequent

outpouring of emotion negated the jury's ability to render an

impartial verdict (and that, therefore, the district court

blundered in failing to postpone the trial). We review a district

court's denial of a motion to continue for abuse of discretion.

Macaulay v. Anas, 321 F.3d 45, 48 (1st Cir. 2003). This makes

sense because even the most scrupulous study of an algid appellate

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record cannot put the reader on an equal footing with the trial

judge, who has gained first-hand knowledge of the nuances of a

particular case. Given this deferential standard of review, we

will not deem the denial of a continuance erroneous unless our

canvass of the record indicates that "the trial court indulged a

serious error of law or suffered a meaningful lapse of judgment,

resulting in substantial prejudice to the movant." United States

v. Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995).

Here, the appellants' core contention is that the

district court grossly underestimated the prejudicial effects of

the shock waves surrounding the September 11 tragedy. The lower

court rejected this contention both before trial and in its post-

verdict opinion. On the later occasion, it explained that the jury

"most likely shared in the respect that fire fighters have earned

from those for whom they risk their lives," but that the appellants

nonetheless received a fair trial. Carvalho, 188 F. Supp. 2d at

135 & n.4.

We note at the outset that the appellants' argument is an

unusual one. Typically, a motion for a continuance on the ground

of pretrial publicity involves publicity directly related to the

litigants or the matters at issue in the litigation. See, e.g.,

United States v. Moreno Morales, 815 F.2d 725, 730 (1st Cir. 1987);

Delaney v. United States, 199 F.2d 107, 110-13 (1st Cir. 1952).

Here, however, the allegedly prejudicial publicity is exogenous in

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the sense that it bears no direct connection to either the

litigants or the litigation. While publicity of this sort

occasionally may necessitate postponement of a trial, we suspect

that such occasions will be rare.

In all events, the appellants' argument depends upon the

notion that the events of September 11 so exalted first responders

that, for many months thereafter, no one who sat across a courtroom

from a police officer or a firefighter could get a fair shake. We

think that argument underestimates a trial court's ability to cope

with public sentiment. The best way to ensure that jurors do not

harbor biases for or against the parties is for the trial court to

conduct a thorough voir dire examination. See Patton v. Yount, 467

U.S. 1025, 1038 & n.13 (1984) ("[V]oir dire has long been

recognized as an effective method of rooting out such [publicity-

based] bias, especially when conducted in a careful and

thoroughgoing manner.") (citation and internal quotation marks

omitted). Assuming that venirepersons pass through this screen,

the trial court thereafter may operate on the presumption that the

chosen jurors will obey the judge's instructions to put extraneous

matters aside and decide each case on its merits. See Richardson

v. Marsh, 481 U.S. 200, 206 (1987); Blake v. Pellegrino, 329 F.3d

43, 50 (1st Cir. 2003). While the presumption that jurors follow

the court's instructions is rebuttable, rebutting it takes more

than empty rhetoric.

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 In this case, the appellants have wholly failed to rebut

the presumption. To warrant a continuance on the ground of

potential jury contamination, the appellants had to do more than

show that the jurors were exposed to pervasive (and potentially

influential) news accounts. They had to carry the added burden of

demonstrating that the exposure was likely to result in unfair

prejudice. United States v. Orlando-Figueroa, 229 F.3d 33, 43 (1st

Cir. 2000); Moreno Morales, 815 F.2d at 733-34. The requisite

prejudice can be shown either directly (say, by proof of actual

bias among the seated jurors) or indirectly (say, by inferences

arising out of circumstantial evidence). See Moreno Morales, 815

F.3d at 731, 734-35.

The appellants have not shown any cognizable prejudice

here. The district court conducted a thorough voir dire. It

queried all the potential jurors about their biases vis-à-vis

firefighters and excused the one juror who expressed such a bias

(the juror in question had a son who was a firefighter). The

appellants' counsel neither sought to have the court augment its

inquiry nor suggested any other questions that might usefully be

posed. The questioning did not reveal anything even remotely

indicating actual bias on the part of any seated juror.

By like token, the circumstantial evidence falls far

short of what would be needed to raise a presumption of prejudice.

The fact that only one member of the venire had to be excused

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because of a pro-firefighter bias is itself telling. See Murphy v.

Florida, 421 U.S. 794, 803 (1975). And to cinch matters, the

district court instructed the jurors, both at the commencement of

the trial and in the charge, to decide the case based strictly and

solely on the evidence. The court's language was firm and pointed.

There is nothing in the record before us that casts doubt upon the

presumption that the jurors followed these instructions.

The short of it is that the district court handled this

issue with great sensitivity. The careful voir dire examination,

the clear instructions, and the absence of any evidentiary basis

for a finding of prejudice speak volumes. Those features impel us

to hold that the court acted well within the realm of its

discretion in denying the requested continuance. Cf. United States

v. Capelton, ___ F.3d ___, ___ (1st Cir. 2003) [No. 02-1248, slip

op. at 7-8] (rejecting defendants' claim that jury could not

dispassionately evaluate police testimony and upholding denial of

mistrial motion in trial commenced prior to the events of September

11 and concluded thereafter).

B.

Denial of a New Trial

We turn now to the appellants' motion for a new trial.

That motion implored the lower court to nullify the verdict as (i)

contrary to law, (ii) against the weight of the evidence, and (iii)

based upon irreconcilably inconsistent answers to the special

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questions that were incorporated into the verdict sheet. The

district court rejected these importunings, and so do we.

We pause first to make a procedural point. The parties

have briefed this case as if state law (here, the law of

Massachusetts) describes the appropriate standard for granting a

new trial in a diversity action, and the district court acquiesced

in this view. See Carvalho, 188 F. Supp. 2d at 134 (citing

Turnpike Motors, Inc. v. Newbury Group, Inc., 596 N.E.2d 989, 994

(Mass. 1992)). We do not agree.

Federal courts sitting in diversity apply state

substantive law and federal procedural rules. Hanna v. Plumer, 380

U.S. 460, 465 (1965); Dichner v. Liberty Travel, 141 F.3d 24, 32

(1st Cir. 1998). Classifying a particular matter as substantive or

procedural can sometimes be a challenging endeavor. See, e.g.,

Hanna, 380 U.S. at 463-74; Guaranty Trust Co. v. York, 326 U.S. 99,

104-12 (1945). But classification is generally a straightforward

exercise when a Federal Rule of Civil Procedure covers the point.

See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 n.7

(1996); Burlington N. R. Co. v. Woods, 480 U.S. 1, 4-5 (1987).

This is such a case. The granting or denial of a motion

for a new trial is a procedural matter governed by a directly

applicable federal rule: Fed. R. Civ. P. 59(a). See 11 Charles A.

Wright et al., Federal Practice & Procedure § 2802, at 42 (2d ed.

1995 & Supp. 2003); 12 James Wm. Moore et al., Moore's Federal

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Practice § 59.03, at 59-12 (3d. ed. 2003). We consistently have

looked to federal law for the standard for deciding new trial

motions in diversity cases, see, e.g., Quinones-Pacheco v. Am.

Airlines, Inc., 979 F.2d 1, 3-4 (1st Cir. 1992); Putnam Res. v.

Pateman, 958 F.2d 448, 459 (1st Cir. 1992), and state practice

generally has no place in that endeavor.3

We deem it worthwhile to clarify this procedural point

even though it has no practical implications here. When a trial

court applies an incorrect legal standard to a motion for a new

trial, one possible course of action is to remand for

reconsideration. See, e.g., Wagner v. Fair Acres Geriatric Ctr.,

49 F.3d 1002, 1019 (3d Cir. 1995). That course is unnecessary in

this case because the federal and Massachusetts standards for

granting or denying a new trial are identical in all relevant

respects. Compare, e.g., Wagenmann v. Adams, 829 F.2d 196, 200-01

(1st Cir. 1987), with, e.g., Turnpike Motors, 596 N.E.2d at 994.

We therefore proceed with our assessment of the district court's

decision.

Our starting point is the standard of review. We will

overturn the denial of a motion for a new trial only for abuse of

discretion. Milone v. Moceri Family, Inc., 847 F.2d 35, 37 (1st

3
We say "generally" because exceptions may apply in special
circumstances. See, e.g. Gasperini, 518 U.S. at 426-31 (holding
that a federal trial court sitting in diversity should use the
applicable state standard in reviewing allegedly excessive damage
awards). Here, however, no such special circumstances exist.

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Cir. 1988); Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 200

(1st Cir. 1980). A mistake of law is, of course, tantamount to an

abuse of discretion. Rosario-Urdaz v. Rivera-Hernandez, ___ F.3d

___, ___ (1st Cir. 2003) [No. 02-2593, slip op. at 5].

The appellants' initial argument is that the jury verdict

flouts the applicable law. This is a somewhat convoluted argument

and must be placed into workable perspective.

The jury's take-nothing verdict was underpinned by its

answers to special questions. In response to Question No. 1, the

jury declared that Davol had been "negligent while turning his fire

truck into the [Route 195] crossover." In response to Question No.

2, it declared that Davol's negligence was not "a substantial or

proximate cause of [the appellants'] injur[ies] and damages." The

appellants concede that negligence was an open question appropriate

for jury consideration. They argue, however, that once the jurors

found Davol negligent, they were legally obliged to find that his

negligence proximately caused their injuries and damages.

The appellants cobble together this theory out of a

series of stipulations entered into among the parties in connection

with the authentication and admissibility of various medical bills

and reports. The operative language of each stipulation identified

the bills and reports as relating to treatment for "injuries

sustained as a result of the motor vehicle accident of February 5,

1997." The appellants construe this language as a legally binding

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admission of proximate cause. This interpretation elevates hope

over reason.

Determinations as to a stipulation's meaning and legal

effect are determinations of law, and, thus, engender de novo

review. Gómez v. Rivera Rodríguez, 344 F.3d 103, 121 (1st Cir.

2003). Courts should construe stipulations in accordance with

accepted principles of general contract law. Id. Context can be

— and often is — of decretory significance. See, e.g., id.;

Newport Plaza Assocs. v. Durfee Attleboro Bank (In re Newport Plaza

Assocs.), 985 F.2d 640, 646 (1st Cir. 1993).

In this instance, the trial court read the stipulations

as falling well short of an admission of proximate cause and

charged the jurors that causation was for them to determine. This

was undeniably correct. Fairly read, the stipulations conceded

that the appellants had suffered injuries in the collision and had

incurred reasonable hospital and medical expenses in an effort to

cure and relieve those injuries. The stipulations also admitted

that the injuries and damages flowed from the crash — but not that

anyone's negligence caused the accident. Because nothing in the

stipulations even remotely approaches a concession of causation

vis-à-vis the occurrence of the accident, the stipulations supply

no basis for overturning the verdict.

The appellants next contend that the jury's answer to

Question No. 2 was against the weight of the evidence. They hammer

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the version of the accident that they espoused to the jury and note

that their accident reconstructionist, one McNally, opined that

Davol's turning maneuver was the primary cause of the collision.

They also excoriate the district court's rejection of their claim.

This line of argument does not hold water. A party

challenging a trial court's determination that a verdict did not

contradict the weight of the evidence faces a steep uphill climb.

The challenger must show that the evidence so far preponderates

against the verdict that upholding it will perpetuate a manifest

miscarriage of justice. Putnam Res., 958 F.2d at 459; Wagenmann,

829 F.2d at 200-01.

The appellants' effort to carry this burden fails: their

brief does not present a balanced view of the facts, but, rather,

insupportably discounts (and, to some extent, blithely overlooks)

the evidence favorable to the verdict. Taken as a whole, the proof

in this case was not one-sided. It could well have led rational

minds to differ as to the issue of causation. See Carvalho, 188 F.

Supp. 2d at 134-35 (highlighting permissible inferences from the

evidence that supported the jury verdict).

If more were needed — and we doubt that it is — the

appellants' argument succumbs to the law of the case. The lower

court's instructions laid out the ground rules. The court told the

jurors, without objection, that returning a verdict for the

appellants required them to find not only that Davol breached an

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actionable duty (i.e., that he was negligent) but also that this

negligence was a proximate cause of the accident. The court's

instructions included the following explanation:

"Proximate cause" is defined as any cause
which in a natural and continuous sequence,
unburdened by any intervening cause, produces
the injury complained of and without which the
injurious result would not have occurred. In
plainer English, a defendant's negligent
conduct is the proximate cause of harm to
another if his conduct is a substantial factor
in bringing about that harm. (Emphasis
supplied.)

Question No. 2 reflected the substance of this instruction: "Was

Fireman Davol's negligence a substantial or proximate cause of

injur[ies] and damages to [the appellants]?"

Both the instruction and the question jibe with

substantive principles of Massachusetts law. See, e.g., Jorgensen

v. Mass. Port Auth., 905 F.2d 515, 524 (1st Cir. 1990) (noting that

causation under Massachusetts negligence law requires a showing

that the defendant's conduct was a "substantial . . . factor" in

bringing about the alleged harm); Tritsch v. Boston Edison Co., 293

N.E.2d 264, 267 (Mass. 1973) (same). Moreover, the appellants did

not object either to the instruction or to the form of Question No.

2. In the absence of a contemporaneous objection, the instruction

became the law of the case. See Milone, 847 F.2d at 38-39.

That dooms the appellants' argument. Given the law of

the case and the totality of the proof, we cannot say that the

finding of "no substantial cause" worked a miscarriage of justice.

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On this chiaroscuro record, the jury supportably could have found

that Davol was driving in the far left-hand lane of Route 195

eastbound with his siren blaring; that he eased the fire truck

partially into the center lane as a prelude to a left-hand turn;

that he activated his left directional signal; and that Machado

caused the collision by recklessly attempting to pass. A rational

jury might well have concluded — as this jury apparently did — that

Davol was guilty of some slight negligence (say, moving toward the

center lane without signaling) but that, in the overall scheme of

things, his conduct did not proximately cause the collision.

We have said before that causation questions "are

normally grist for the jury's mill." Peckham v. Cont'l Cas. Ins.

Co., 895 F.2d 830, 837 (1st Cir. 1990). This case illustrates the

point. It is the jury's task, not ours or the trial court's, to

resolve conflicts in the testimony. See id. at 839 (holding that

this court "cannot reject possibilities rooted in the record merely

because, if sitting as factfinders, we would likely have drawn a

different set of conclusions").

The appellants have one last arrow in their quiver. They

insist that certain of the jury's answers to the special questions

were irreconcilably inconsistent. This claim requires an

understanding of a further question posed by the court to the jury.

In the course of resolving the City's third-party

complaint (its property damage suit against Machado), Question No.

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7 asked the jurors to apportion negligence between Davol and

Machado. See Mass. Gen. Laws ch. 231, § 85. In response, the

jurors found Davol 1% negligent and Machado 99% negligent. The

appellants posit that this answer (in particular, the finding that

Davol was 1% negligent) is fatally inconsistent with the jurors'

response to Question No. 2 (in which they determined that Davol's

conduct was not a substantial cause of the appellants' damages).

This argument is hopeless. To begin with, it has been

forfeited. The special questions here were propounded pursuant to

Fed. R. Civ. P. 49(b).4 When the verdict was returned, the

appellants did not raise a claim of inconsistency before the court

discharged the jury. In that situation, failure to object to an

alleged inconsistency while the jury is still in the box forfeits

a party's objection, subject only to the possibility of relief for

4
The rule empowers the district court to "submit to the jury,
together with appropriate forms for a general verdict, written
interrogatories upon one or more issues of fact the decision of
which is necessary to a verdict." Fed. R. Civ. P. 49(b). If the
court elects to use this methodology, it is obliged to "give such
explanation or instruction as may be necessary to enable the jury
both to make answers to the interrogatories and to render a general
verdict." Id. In the event that "the answers are inconsistent
with each other and one or more is likewise inconsistent with the
general verdict . . . the court shall return the jury for further
consideration of its answers and verdict or shall order a new
trial." Id. We have placed a gloss on this last proviso,
requiring the parties, on pain of forfeiture, to call any such
alleged inconsistency to the trial court's attention as soon as the
verdict is returned. See, e.g., Peckham, 895 F.2d at 836; McIsaac
v. Didriksen Fishing Corp., 809 F.2d 129, 134 (1st Cir. 1987).

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plain error. See Peckham, 895 F.2d at 836; McIsaac v. Didriksen

Fishing Corp., 809 F.2d 129, 134 (1st Cir. 1987).

We need not explore the parameters of plain error review

because no less an authority than the Supreme Court has instructed

that "[w]here there is a view of the case that makes the jury's

answers to special interrogatories consistent, they must be

resolved that way." Atl. & Gulf Stevedores, Inc. v. Ellerman

Lines, Ltd., 369 U.S. 355, 364 (1962). Here, one easily can

conceive of theories that harmonize the jury's answer to Question

No. 7 with its answer to Question No. 2. For example, the jury may

have thought Davol's 1% negligence insubstantial and — consistent

with the law of the case — insufficient to support a finding of

proximate cause.

To recapitulate, each of the appellants' arguments in

support of their new trial motion lacks merit. We conclude,

therefore, that the district court acted appropriately in denying

the motion.

III.

Conclusion

We need go no further. For the reasons elucidated above,

we uphold both the lower court's denial of a continuance and its

refusal to grant a new trial.

Affirmed.

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