Rivera Castillo v. Autokirey, Inc.

United States Court of Appeals
For the First Circuit

No. 03-1806

MARGARITA RIVERA CASTILLO, CARLOS T. RAVELO GUERRERO,
AND CONJUGAL PARTNERSHIP RAVELO-RIVERA

Plaintiffs, Appellees,

v.

AUTOKIREY, INC. D/B/A AUTOCENTRO TOYOTA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. José Antonio Fusté, U.S. District Judge]

Before

Torruella, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.

Aníbal Lugo Miranda, with whom Lugo Miranda Law Offices was on
brief, for appellant.

Rafael A. Oliveras López de Victoria, with whom Edificio
Asociación de Maestros was on brief, for appellees.

August 11, 2004
 LIPEZ, Circuit Judge. This appeal challenges a jury

verdict against an auto dealer for violations of the Motor Vehicle

Information and Cost Savings Act, 49 U.S.C. §§ 32701-711 (1994 &

Supp. 1 2001) (the "Odometer Act") and Puerto Rico's General Tort

Statute, 31 P.R. Laws Ann. § 5141 ("Article 1802"). The defendant,

Autocentro Toyota ("Autocentro"), asks us to vacate the jury

verdict in favor of the two plaintiffs (wife and husband when they

bought the car in question) and enter a judgment in its favor. In

the alternative, Autocentro seeks either a new trial or an

adjustment of the damages awarded by the jury.

These claims for relief might have more force if

defendant had protected itself with the required motions and

objections at trial. For the most part, though, it did not.

However, we do find that the damages award to plaintiff Margarita

Rivera Castillo ("Rivera") is not supported by the record.

Therefore, we must vacate Rivera's damages award and remand to the

district court for a determination of the appropriate award on

remittitur (or for a new trial if Rivera declines to accept the

remitted amount). We leave the award to Carlos Ravelo Guerrero

("Ravelo") undisturbed on appeal.

I.

The plaintiffs purchased a Toyota Tercel from Autocentro

in October 1999 for $13,000 (or, when the cost of financing was

considered, $18,789). Apparently, the defendant disclosed to

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plaintiffs that the car had been previously titled, though not to

whom. However, Autocentro also represented to plaintiffs that the

car had never been used. Indeed, when plaintiffs purchased the

car, the odometer registered less than ten miles.

According to plaintiffs, the car developed various

rattles and mechanical problems soon after they purchased it.

Suspicious that their newly purchased car might not be so new,

plaintiffs investigated the car's title history. That

investigation revealed that the Tercel was imported by the

distributor Toyota de Puerto Rico, then "consigned, delivered,

and/or sold" to Autocentro Toyota, the defendant, who then sold the

car to Cabrera Car Rental.1 Eventually, Cabrera Car Rental sold

the car back to Autocentro. Having determined that the prior owner

was a car rental agency, plaintiffs' suspicions were heightened,

and they retained a master mechanic to inspect the car. The

mechanic concluded that the car's odometer might have been altered.

Plaintiffs filed suit in federal court, alleging

violations of both Article 1802 of the law of Puerto Rico, which

states in pertinent part that "[a] person who by an act or omission

causes damage to another through fault or negligence shall be

1
Under Toyota's distributor and dealership agreements, a
dealer such as Autocentro acts as an intermediary for and receives
a commission on distributor sales to fleet clients such as rental
car agencies.

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obliged to repair the damage so done," 31 P.R. Laws Ann. § 5141,2

and the federal Odometer Act, which states inter alia that "[a]

person may not . . . disconnect, reset, alter, or have

disconnected, reset, or altered, an odometer of a motor vehicle

intending to change the mileage registered by the odometer." 49

U.S.C. § 32703(2). In considering the Odometer Act, originally

passed in 1972, Congress found that although seventeen states at

the time had enacted legislation to prohibit altering odometers,

States without such legislation have found
this practice on the increase, especially when
a neighboring State has an odometer law.
Odometers are turned back in States without
odometer laws and then cars are marketed at
inflated values in States with such laws.
Thus, State odometer laws are easily
circumvented and people in a State with such a
law suffer because of this practice.

S. Rep. No. 92-413 (1971), reprinted in 1972 U.S.C.C.A.N. 3960,

3962. On this background, Congress found that federal action on

2
Neither party devotes any argumentation to the Article 1802
claim on appeal. Briefly, to state an Article 1802 claim for
damages based on negligence, "a plaintiff must prove that (1)
defendant owed a duty to prevent the harm by conforming to a
reasonable standard of conduct; (2) defendant breached that duty
through a negligent act or omission; and (3) the negligent act or
omission caused the plaintiff's harm." Tokio Marine & Fire Ins.
Co. v. Grove Mfg. Co., 958 F.2d 1169, 1171 (1st Cir. 1992). We
focus on the Odometer Act, as do the parties, and the availability
of damages under Article 1802 does not alter our analysis of the
issues on appeal. Furthermore, as the district court noted,
Autocentro "did not elicit evidence from Plaintiffs nor present
independent evidence that would have allowed for a better
allocation of those damages that were properly attributable to the
Odometer Act and those that were attributable to the state law
fraud action."

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the issue was desirable and passed the Odometer Act to "establish

a national policy against odometer tampering and prevent consumers

from being victimized by such abuses." Id.

After plaintiffs filed their Odometer Act and Article

1802 claims in federal court, and pre-trial motion practice and

discovery were completed, the case was tried before a jury for

three days. According to the testimony of plaintiffs' witness

Kenneth Cabrera, president and owner of the eponymous car rental

concern, the car sat on the lot unrented for approximately two and

a half months, and it was driven only once to be filled up with

gasoline. Because demand for rental cars was low, Cabrera resold

the car to Autocentro, returning physical custody of the car in

mid-July. In an apparent surprise to all the parties, Cabrera also

testified that the publicly registered invoice from his company to

Autocentro was forged in December 1999, two months after plaintiffs

bought the car, though it was not clear whether Autocentro, Toyota

Credit de Puerto Rico, or some other entity was responsible for the

forgery. In any event, Cabrera did not dispute that he resold the

car to Autocentro, returned possession of the car to Autocentro in

mid-July, and was paid the agreed upon price.

For approximately three months, from mid-July until

plaintiffs purchased the car in October, Autocentro had the Tercel

in its possession. While it was not uncommon for some cars to

remain on the sale lot for that period of time or even longer, the

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evidence indicated that Toyota Tercels were among the most popular

and quick-selling cars in Puerto Rico -- in fact, the best-selling

car on defendant's lot. Therefore, it was somewhat unusual, or, in

the eyes of plaintiffs, highly suspect, that an available Tercel

would remain unsold and unused for that length of time.

Plaintiffs also offered the testimony of a master

mechanic, José Maldonado, regarding the alleged odometer tampering.

The parties disagree as to the precise nature of Maldonado's

testimony and his antecedent knowledge of the car's repair history

prior to his inspection. Although he could not say that the

odometer definitely had been altered, Maldonado did testify that it

was his opinion that the car had been sold with an altered

odometer, based on (1) the condition of the nuts and bolts in the

transmission and odometer area, (2) the car having been purchased

with less than ten miles on the odometer, (3) the car appearing to

have "a lot more mileage" on it than was registered on the odometer

at the time of the inspection, and (4) his understanding that the

area of the car around the transmission and odometer had not

previously been repaired.

Finally, plaintiffs called an expert witness to testify

regarding plaintiffs' economic losses caused by the problems with

the car. According to the expert witness, who based his

conclusions on information provided by Ravelo, the damages were as

follows: $145 for repairs that would not have been incurred if the

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car was new; $4,532 that plaintiffs paid in excess of the actual

value of the car; $1,000 in job-related taxi fares Ravelo incurred

because of the unavailability of the car; $14,400 in lost income

because Ravelo, a freelance court interpreter who charged $60 per

hour, lost 240 working hours due to this case and a related

administrative complaint; and $156 in simple interest at 6%.

Other than to elicit testimony that the expert based his

calculations on numbers provided by plaintiffs, Autocentro did not

counter the expert's testimony regarding damages. Also, defendant

did not introduce a mechanic of its own to testify that the

odometer had not been altered. Autocentro put on two witnesses who

were employed by Autocentro during the relevant time period:

Richard Lee San, the finance manager who sold plaintiffs the car,

and José Roberto Ramirez Suriel, the general manager. Lee

testified about the details surrounding plaintiffs' purchase of the

car, including detailed testimony about the documents that were

part of the transaction. Additionally, he testified that he

informed plaintiffs that the car previously had been registered to

a company, which he did not identify to plaintiffs, and that the

company had not used the car and "had been compelled to sell it

again." Ramirez testified about the business relationship between

Cabrera Car Rental and Autocentro, the history of their dealings

related to the plaintiffs' Tercel, and the inspection procedures

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Autocentro uses upon receipt of a car into inventory. Ramirez also

testified that Autocentro did not alter the odometer of the car.

After the close of evidence, the jury returned a

unanimous verdict for plaintiffs under the Odometer Act and Article

1802. The jury awarded Rivera and Ravelo $20,000 each in damages.3

According to the jury verdict form, the jury found that Autocentro

"intentionally defrauded plaintiffs regarding the reading of the

odometer in the Toyota Tercel." As a result, the district court

trebled the award pursuant to 42 U.S.C. § 32710(a), which provides

that "[a] person that violates this [Act], with intent to defraud,

is liable for 3 times the actual damages or $1,500, whichever is

greater." After the district court entered judgment for

plaintiffs, the defendant filed a post-trial motion for judgment as

a matter of law and a motion for new trial or remittitur, both of

which were denied. Defendant now appeals from the jury verdict,

the award of damages, and the district court's denial of

defendant's post-trial motions for relief.

II.

Autocentro advances three claims of error on appeal.

First, it argues that the district court erred in declining to

3
The trial transcript indicates that the jury awarded
plaintiff Rivera $21,000 and plaintiff Ravelo $20,000. However,
the district court entered judgment in the amount of $20,000 each,
which was trebled to total $120,000, plus costs. No party
addresses this apparent discrepancy on appeal; we treat the
district court's entry as the figure at issue.

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grant defendant's post-trial motion for judgment as a matter of

law, pursuant to Federal Rule of Civil Procedure 50. Second,

Autocentro claims that the district court's instructions to the

jury regarding damages were flawed. Third, defendant urges that

the district court erred in failing to grant its motion for a new

trial or remittitur under Federal Rule of Civil Procedure 59. As

we shall explain, only the latter claim is meritorious, and only

then with respect to the award to plaintiff Rivera.

A. Motion for Judgment as a Matter of Law

Defendant argues that evidence submitted at trial was

insufficient to allow a reasonable jury to conclude that Autocentro

violated the Odometer Act when it sold plaintiffs the car in

question. Even in the best of circumstances, the standards for

granting a motion for judgment as a matter of law are stringent.

Courts may only grant a judgment contravening a jury's

determination when "the evidence points so strongly and

overwhelmingly in favor of the moving party that no reasonable jury

could have returned a verdict adverse to that party." Keisling v.

SER-Jobs for Progress, Inc., 19 F.3d 755, 759-60 (1st Cir. 1994).

In making that determination, courts must consider the evidence and

its attendant inferences in the light most favorable to the non-

moving party. Id. at 760. However, we do not even reach the

application of this stringent standard here because defendant

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failed to preserve the sufficiency of the evidence issue for

appeal.

Federal Rule of Civil Procedure 50 provides that

"[m]otions for judgment as a matter of law may be made at any time

before submission of the case to the jury." Fed. R. Civ. P.

50(a)(2). This case was submitted to the jury on February 24,

2003, judgment was entered on February 26, and Autocentro moved for

judgment as a matter of law for the first time on March 10. Simply

put, defendant's failure to move for judgment as a matter of law at

the close of evidence procedurally defaults this claim on appeal.

See, e.g., Keisling, 19 F.3d at 758 (holding that even when a

defendant moves under Rule 50 at the close of plaintiff's evidence

-- and Autocentro did not even do that -- "[i]f a defendant wishes

to renew a motion for judgment as a matter of law at the post-trial

stage, with a view to having denial of that motion considered by

the court of appeals, the defendant is required to have moved for

judgment as a matter of law at the close of all the evidence"). As

we observed in Keisling: "[r]equiring the motion to be made at the

close of all the evidence gives the opposing party an opportunity

to respond to any evidentiary deficiencies noted by the motion by

seeking to reopen the evidence prior to submission of the case to

the jury." Id. at 758-59. A party's failure to move under Rule 50

at the close of all evidence "cannot be taken lightly . . . ."

Jusino v. Zayas, 875 F.2d 986, 991 (1st Cir. 1989). We have

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consistently held that we "will not consider claims of insufficient

evidence unless the district court was presented with a motion for

judgment as a matter of law at the close of all the evidence."

Keisling, 19 F.3d at 759; see also Jusino, 875 F.2d at 991

(collecting cases dating from 1954).

Defendant suggests no reason that our well settled rule

should not apply in this case, and we see none in the record.

Accordingly, we leave undisturbed the district court's denial of

Autocentro's post-trial motion for judgment as a matter of law.

B. Jury Instructions

Autocentro alleges that the district court's instructions

to the jury regarding damages were erroneous. Defendant again

suffers a self-inflicted wound on appeal because, in addition to

failing to submit proposed instructions at the district court's

invitation as provided for in Rule 51(a), it failed to object to

the jury instructions at trial. Federal Rule of Civil Procedure 51

provides that "[a] party who objects to an instruction or the

failure to give an instruction must do so on the record, stating

distinctly the matter objected to and the grounds of the

objection." Fed. R. Civ. P. 51(c)(1). The "failure to object to

the [jury] instructions at the time, and in the manner, designated

by Rule 51 is treated as a procedural default . . . ." Moore v.

Murphy, 47 F.3d 8, 11 (1st Cir. 1995). "Silence after instructions

ordinarily constitutes a forfeiture of any objections . . . ."

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Muñiz v. Rovira, 373 F.3d 1, 6 (1st Cir. 2004). Again, as with the

need to preserve an issue under Rule 50, we have "consistently held

that the strictures of Rule 51 must be followed without deviation."

Smith v. Mass. Inst. of Tech., 887 F.2d 1106, 1109 (1st Cir. 1989).

When a party fails to object to the jury instructions

below, as Autocentro failed to do here, we review the claim on

appeal only for plain error. Muñiz, 373 F.3d at 7. The well

established plain error standard requires Autocentro to show "(1)

an error was committed; (2) the error was 'plain' (i.e. obvious and

clear under current law); (3) the error was prejudicial (i.e.

affected substantial rights); and (4) review is needed to prevent

a miscarriage of justice." Smith v. Kmart Corp., 177 F.3d 19, 26

(1st Cir. 1999). We have also formulated the fourth prong as

requiring a showing that the error "seriously impaired the

fairness, integrity, or public reputation of judicial proceedings."

Muñiz, 373 F.3d at 6 (citing United States v. Duarte, 246 F.3d 56,

60 (1st Cir. 2001)); see also Kmart Corp., 177 F.3d at 26

(explaining that to merit reversal under plain error review, "the

error must have resulted in a miscarriage of justice or seriously

affected the fairness, integrity or public reputation of the

judicial proceedings") (internal quotations and citations omitted);

Scarfo v. Cabletron Sys., Inc., 54 F.3d 931, 940 (1st Cir. 1995)

(noting that Fed. R. Civ. P. 51 "has been rigorously enforced in

this circuit, and its clear language will be overlooked only in

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exceptional cases or under peculiar circumstances to prevent a

clear miscarriage of justice, where the error seriously affected

the fairness, integrity or public reputation of judicial

proceedings") (internal quotations and citations omitted). We have

commented before that "[p]lain error is a rare species in civil

litigation, encompassing only those errors that reach the pinnacle

of fault . . . ." Kmart Corp., 177 F.3d at 26 (internal quotations

and citations omitted).

Here, the district court instructed the jury that

plaintiffs are suing for actual damages, on
account of certain alleged representations
made by [defendant] to plaintiffs . . . . Any
damages that you may award in this case, or
any other case, must be based upon evidence in
the case and on your dispassionate analysis of
the extent of any injuries sustained by
plaintiff as a result of the defendant's
wrong, if any. You are not permitted to award
damages on the basis of passion, prejudice, or
improper sympathy for or against any of the
parties in this case. . . .

In determining any damages recoverable by the
plaintiffs, you can consider the following
items: Any emotional pain and mental anguish,
if proven; any economic damages, if proven.
Damages may be reasonable, as I said before.
They have to be based solely upon the evidence
and cannot be rendered as punishment. They
cannot be speculative. They can only be
assessed to compensate for actually sustained
losses and nothing else.

In its brief, Autocentro claims that this instruction was in error

because

[t]he jury was never given the definition of
"actual damages" or of the calculation of

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 damages as provided by the [Odometer Act].
Because of the fact that the jury was never
instructed on the definition of actual damages
and on the fact that only actual damages would
be trebled as required by Law, Autocentro
moves the Court to not treble the award, since
clearly the jury intended Ravelo and Rivera to
receive compensatory damages, and under the
Federal Odometer Act these are not trebled.

Defendant apparently is unaware that the definitions of "actual

damages," which are trebled under the Odometer Act, and

"compensatory damages," which it claims the jury intended to award,

are synonymous. Black's Law Dictionary 394 (7th ed. 1999)

(defining "actual damages" and noting that they are "[a]lso termed

'compensatory damages'"). To the extent that defendant relies on

this misapprehended distinction to support its claim of error, the

claim is baseless.

Autocentro further claims that we "should consider that

not informing the jury that the award would be triplicated poses a

due process problem, since Autocentro was not afforded the

Constitutional guarantees as to the portion of the award

corresponding to the triplication." Leaving aside that defendant

offers this broad assertion with no supporting legal citation, we

find this claim wholly unpersuasive for another reason: when

discussing the district court's proposed verdict form, defense

counsel specifically stated that he did not think the issue of

treble damages should be addressed to the jury. Since the

defendant requested that the availability of treble damages not be

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addressed to the jury, and the district court honored that request,

the defendant cannot argue on appeal that the district court's

approach constitutes reversible error.

More troubling is defendant's claim that under the

Odometer Act, the measure of "actual damages" should be limited to

the difference in the amount paid by plaintiffs and the amount the

car was actually worth given its true condition, along with repair

costs that plaintiffs would not have incurred had the car's true

mileage matched that shown on the odometer. Defendant cites

scattered district court cases to support this theory of limited

damages, and this approach has some intuitive appeal.

Unfortunately, the term "actual damages" is not defined in the

statute, nor could we find any relevant legislative history

clarifying the point. However, as one district court observed:

"The method of calculating damages favored by the courts is to

utilize the difference between the fair market value of the car

with the actual mileage thereon, and the amount paid for the

automobile by the purchaser, plus any other damages that the

purchaser may have incurred." Williams v. Toyota of Jefferson,

Inc., 655 F. Supp. 1081, 1085 (E.D. La. 1987) (collecting cases).

We found only one case that addressed the availability of lost

wages, and there the district court "excluded testimony which the

plaintiff offered at trial to establish the value of lost wages, on

the grounds that such damages are too remote to be recoverable

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under the [Odometer] Act." Jones v. Fenton Ford, Inc., 427 F.

Supp. 1328, 1332 n.8 (D. Conn. 1977). Another court has held that

in the absence of a statutory definition of actual damages, "it

seems reasonable to give it the meaning commonly applied to fraud

cases." Duval v. Midwest Auto City, Inc., 425 F. Supp. 1381, 1388

(D. Neb. 1977), aff'd, 578 F.2d 721 (8th Cir. 1978). In turn, the

Restatement (Second) of Torts § 549 (1977) explains that in fraud

cases,

[t]he recipient of a fraudulent
misrepresentation is entitled to recover as
damages in an action of deceit against the
maker the pecuniary loss to him of which the
misrepresentation is a legal cause, including
(a) the difference between the value of what
he has received in the transaction and its
purchase price or other value given for it;
and (b) pecuniary loss suffered otherwise as a
consequence of the recipient's reliance upon
the misrepresentation.

Id. § 549(1).

This last approach -- applying the definitions of damages

derived from fraud cases -- would result in the availability of

pecuniary damages, presumably including lost wages if a proper

showing of causation could be made, but likely exclude recovery for

such nonpecuniary damages as emotional pain and mental anguish.

See Steven J. Gaynor, Annotation, "Fraud Actions: Right to Recover

for Mental or Emotional Distress," 11 A.L.R.5th 88 (2004) ("Damages

in an action for fraud are generally limited to actual pecuniary

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loss; however, this rule is not without exceptions.") (collecting

and analyzing cases).

We acknowledge, then, that in a case where the issue was

properly raised, a substantial argument could be made that

violations of the Odometer Act should be treated as a species of

fraud, and the actual damages recoverable should be limited to

pecuniary damages, which might include lost wages. However, as we

have emphasized, defendant's procedural lapses with respect to the

jury instructions require us to apply plain error review. Even if

the inclusion of "emotional pain and mental anguish" in the jury

instructions on damages constituted error (an issue we do not

decide), the error would not be plain because of the absence of a

statutory definition of actual damages, the lack of legislative

history, and the inconclusive nature of the available precedents.

Morever, the district court's instructions did not result

in a miscarriage of justice or affect the fairness, integrity, or

public reputation of the proceedings below. Defendant did not

propose jury instructions. It did not object to the instructions

given by the district court. It did not afford the district court

a timely opportunity to rule on the issues it now raises on appeal.

Its one request – that the issue of treble damages not be addressed

to the jury – was honored. Under the circumstances, we think our

words from over a decade ago apply with force in the present case:

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 The plain error standard . . . is near its
zenith in the Rule 51 milieu. . . . It
strains credulity well past the breaking point
to argue that the defendants' self-created
plight can fit within so exclusive a
classification.

Moreover, to employ the plain error exception
in this situation would sow the seeds for a
mischievous harvest and would be fundamentally
unfair to both the plaintiff and the district
court. Rules serve a valuable purpose.
Without them, the judicial system would be in
shambles. It follows that, in the ordinary
case, parties flout well-established rules at
their peril.

Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st Cir. 1991). So

it is here. We find no plain error in the district court's

instructions that would entitle Autocentro to relief from the jury

verdict on appeal.

C. Motion for a New Trial or Remittitur

Finally, Autocentro claims that the district court erred

in declining to grant its motion for new trial or remittitur under

Federal Rule of Civil Procedure 59. Rule 59 provides in relevant

part that "[a] new trial may be granted . . . in an action in which

there has been a trial by jury, for any of the reasons for which

new trials have heretofore been granted in actions at law in the

courts of the United States." Fed. R. Civ. P. 59(a). We have

stated that a district court may exercise its discretion to grant

a Rule 59 motion if "the verdict is against the weight of the

evidence, that the damages are excessive, or that, for other

reasons, the trial was not fair to the party moving; and may raise

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questions of law arising out of alleged substantial errors in

admission or rejection of evidence or instructions to the jury."

Cigna Fire Underwriters Co. v. MacDonald & Johnson, Inc., 86 F.3d

1260, 1262-63 (1st Cir. 1996) (quoting Montgomery Ward & Co. v.

Duncan, 311 U.S. 243, 251 (1940)). District courts "may set aside

a jury's verdict and order a new trial only if the verdict is so

clearly against the weight of the evidence as to amount to a

manifest miscarriage of justice." Federico v. Order of Saint

Benedict in Rhode Island, 64 F.3d 1, 5 (1st Cir. 1995).

We review denials of motions for a new trial or

remittitur for abuse of discretion by the district court. See,

e.g., Trull v. Volkswagen of America, Inc., 320 F.3d 1, 8, 9 (1st

Cir. 2002). On appeal, we will find that a district court abused

its discretion only if the jury verdict exceeds "any rational

appraisal or estimate of the damages that could be based on the

evidence before the jury . . . ." Milone v. Moceri Family, Inc.,

847 F.2d 35, 37 (1st Cir. 1988) (quoting Segal v. Gilbert Color

Sys., Inc., 746 F.2d 78, 81 (1st Cir. 1984)).

1. The Damages Award to Ravelo

As to the $20,000 awarded to Ravelo, defendant's argument

is unpersuasive. Plaintiffs introduced an expert witness who

testified that Ravelo's economic damages were approximately

$21,000. Ravelo also testified regarding the extent of damages he

incurred. Defendant introduced no rebuttal witnesses regarding the

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extent of plaintiffs' damages. To be sure, Ravelo's evidence was

not overwhelming. In entering judgment for the plaintiffs, the

district court observed that while the jury verdict "may contradict

the bench's assessment of the evidence, viewing the facts in the

light most favorable to Plaintiffs allows for a liberal jury

interpretation of the matters at issue." As the district court

rightly observed, courts are not entitled to substitute their view

of the evidence for the verdict reached by the jury. Only when the

verdict is a "manifest miscarriage of justice," Federico, 64 F.3d

at 5, or the damages awarded are "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," will courts

intervene to upset a jury verdict and award. Segal, 746 F.2d at

80-81 (internal quotations and citations omitted).

Although we might characterize the award to Ravelo as

generous, it is grounded in evidence adduced at trial and does not

shock the conscience of the court. Therefore, we cannot conclude

that the district court abused its discretion by refusing to

disturb the jury verdict to Ravelo either by ordering a new trial

or granting a remittitur of the damages.

2. The Damages Award to Rivera

The damages award to Rivera presents a different story.

The only damages evidence was her testimony that she "felt very bad

because I felt that I had been misled. I felt let down with the

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whole situation. I felt like any human being who discovers that he

has been misled by someone." Rivera also testified that after she

came to believe that the car in fact had many more miles on it than

represented by the odometer, she no longer felt safe driving the

car. In addition to testifying that she was upset by the whole

situation, Rivera testified that "this brought emotional conflicts

between me and my husband [and] because of the stress that we had

because of all of this, and he was angry and upset, and . . . he

would fight a lot and argue a lot with the children." Finally,

Rivera testified that "when things like this happen, you start

mistrusting because of the fact that you see that they are trying

to fool you, and many things go through your head. . . . I am

still affected because mainly of having to go through this entire

process."

Without diminishing the aggravation that the problems

with the car caused Rivera, we are constrained to say that the

record evidence simply does not support the $20,000 award.4 Unlike

the $20,000 award to Ravelo, which comports with the amount of his

economic damages to which the expert witness testified, the $20,000

award to Rivera has no "rational basis in evidence." O'Brien v.

4
We are not suggesting that emotional pain and mental anguish
are necessarily damages appropriately recovered under the Odometer
Act. However, since those items were in the unobjected-to jury
instructions, which we have held do not constitute plain error,
they are the law of the case. Muñiz, 373 F.3d at 7 ("The defendant
did not object to th[e] instruction and it is, therefore, the law
of the case.").

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Papa Gino's of America, Inc., 780 F.2d 1067, 1076 (1st Cir. 1986).

The only evidence to support Rivera's award is testimony that she

felt "bad," "let down," "mistrusting," and that domestic life had

added stresses. This level of bother, which in many ways describes

the everyday frustrations all members of society suffer from time

to time, does not remotely warrant $20,000 in relief, trebled to

$60,000.

Having concluded that the damages award to Rivera is

excessive as a matter of law, we have two options: remanding to the

district court to determine damages, or setting the amount of

remittitur ourselves based on the evidence adduced at trial.

Koster v. Trans World Airlines, Inc., 181 F.3d 24, 36 (1999).

Fixing a dollar amount on a plaintiff's emotional distress is

always an uncomfortable judicial undertaking: "[t]ransmitting legal

damages into money damages is a matter 'peculiarly within a jury's

ken,' especially in cases involving intangible, non-economic

losses." Torres v. Kmart Corp., 233 F. Supp. 2d 273, 282 (D.P.R.

2002) (quoting Smith v. Kmart Corp., 177 F.3d 19, 30 (1st Cir.

1999)). Nevertheless, we have consistently held that when the jury

award is not "within the universe of possible awards which are

supported by the evidence," courts must provide relief, despite the

lack of precision in determining nonpecuniary damages. Clark v.

Taylor, 710 F.2d 4, 13 (1st Cir. 1983); see also Marchant v. Dayton

Tire & Rubber Co., 836 F.2d 695, 704 (1st Cir. 1988) (vacating

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jury-awarded damages as excessive on appeal); Laaperi v. Sears,

Roebuck & Co., 787 F.2d 726, 734 (1st Cir. 1986) (same).

The task of remitting noneconomic damages is even more

delicate when attempted from the cold appellate record. We think

that the district court's greater familiarity with the course of

proceedings below, and particularly its ability to observe the

witnesses' testimonies, afford a better position to assess the

amount of damages appropriate on remittitur. On remand, the

district court will remit the jury award "to the maximum that would

be upheld by the trial court as not excessive." Jones & Jones v.

Pineda & Pineda, 22 F.3d 391, 398 (1st Cir. 1994). The damages

award determined by the district court will be trebled under the

Odometer Act because of the jury finding that Autocentro

intentionally defrauded the plaintiffs. Finally, as per the usual

rule, Rivera will have the choice of accepting the remitted award

or opting for new trial. See, e.g., Liberty Mut. Ins. Co. v.

Continental Cas. Co., 771 F.2d 579, 589 (1st Cir. 1985). The

district court has the option of ordering a full trial for Rivera

or limiting the new trial to the issue of damages. Fed. R. Civ. P.

59(a) ("A new trial may be granted to all or any of the parties and

on all or part of the issues . . . ."); see also Marchant, 836 F.2d

at 704 (concluding "that a new trial on damages is appropriate").

III.

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 For the forgoing reasons, we affirm the judgment to

Ravelo. We vacate the judgment to Rivera and direct the district

court to enter a new judgment for Rivera in the amount that it

determines is appropriate in light of the evidence, to then be

trebled, or, if Rivera refuses to accept entry of such judgment,

order a new trial for Rivera, which may but need not be limited to

the issue of damages. We REMAND for proceedings consistent with

this opinion. Each party shall bear its own costs.

SO ORDERED.

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