Rodriguez v. Senor Frog's de la Isla, Inc.

United States Court of Appeals
For the First Circuit

No. 09-2548

PALOMA RODRÍGUEZ,

Plaintiff, Appellee,

v.

SEÑOR FROG'S DE LA ISLA, INC.,

Defendant, Appellant.

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

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Torruella, Lipez, and Thompson,
Circuit Judges.

Harry Anduze Montaño, with whom José Morales Boscio and Harry
Anduze Montaño Law Office were on brief, for appellant.
John Fitzpatrick Vannucci, with whom the Law Office of John
Fitzpatrick Vannucci was on brief, for appellee.

April 12, 2011
 THOMPSON, Circuit Judge. This is a diversity-based

personal-injury case. A jury returned a $450,000 verdict for

Paloma Rodríguez against Señor Frog's de la Isla, Inc. ("Señor

Frog," for short) in Puerto Rico's federal district court. Señor

Frog now appeals, challenging nearly every aspect of the district

judge's performance. Unable to find any reversible error in the

judge's actions, we affirm.

How It All Began1

San Juan, Puerto Rico, early in the pre-dawn morning of

December 5, 2004. Cruising in her Mazda 323 on the Muñoz Rivera

Expressway, 21-year-old Rodríguez hit a pothole – a collision that

cost her two tires and killed the engine. But the worst was yet to

come.

Turning her hazards on, Rodríguez somehow got her car to

the side of the road, completely out of the way of oncoming

traffic. A police officer patrolling that stretch of highway

spotted her and pulled over. He left the cruiser's flashing lights

on. A tow-truck driver also showed up, parked his truck in front

of Rodríguez's car, activated the truck's flashing lights, pointed

a spotlight on the work area, and put out cones to caution drivers

passing by. As the truck driver lowered the truck's platform,

1
We narrate the facts in the light most favorable to the
jury's verdict. See, e.g., Bielunas v. F/V Misty Dawn, Inc., 621
F.3d 72, 74 (1st Cir. 2010).

-2-
Rodríguez got back into the Mazda either to grab some personal

items or to do something to help out with the towing process.

That is when Carlos Estrada closed in, speeding in a

Mitsubishi Mirage registered to Señor Frog. His headlights were

off. He had a blood-alcohol level nearly double the legal limit in

Puerto Rico. And he smashed that Mitsubishi right into the rear of

Rodríguez's Mazda. Rodríguez was hurt, and apparently hurt badly.

"She was thrown inside the vehicle," the officer later said.

Covered in blood, she had no vital signs – "she appeared to be

dead." But she survived and sued Señor Frog in district court

under diversity jurisdiction, see 28 U.S.C. § 1332, alleging

negligence and negligent entrustment. She sued other defendants

too (including Estrada), but they were later dismissed for reasons

that are not important here, so we skip them.

The Twists And Turns Of Trial

We fast-forward to the trial, where hard-charging counsel

pulled out all the stops. For starters, Rodríguez's lawyer moved

in limine to prevent Señor Frog from showing or arguing that

Estrada had owned the Mitsubishi or that Rodríguez had drunk a beer

or two hours before the crash. The judge granted the motion.

Also, Rodríguez's counsel told the jurors during his

opening statement that the evidence would compel them to return a

$450,000 verdict in his client's favor. Señor Frog's lawyer asked

for a mistrial but instead got a cautionary instruction telling

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jurors that they (not the lawyers) would decide the damage amount

due Rodríguez (if any).

The attorneys later sparred over whether the parties were

of diverse citizenship, and the judge ruled that they were,

following an evidentiary hearing convened after Rodríguez had

rested her case. They also battled over the jury instructions.

And the judge seemingly sided with Rodríguez when she apparently

refused to instruct the jurors on contributory or comparative

negligence. We hedge with "seemingly" and "apparently" because

Señor Frog failed to give us a transcript of the judge's final

charge – a misstep that affects our analysis in several respects,

as we discuss later in more detail.

The fighting spilled over into closing arguments too.

Rodríguez's counsel said that his client sought damages for lost

wages, which he conceded were not much, given that she was a

college student/waitress when injured. But she also sought

compensation for pain and suffering, which he put at "six figures."

Señor Frog's lawyer objected, and the judge sustained the

objection. But she declined to tell the jury right then and there

to disregard the value comment. "I will instruct the jury at the

end," she said, though we do not know if she did because, again,

the record on appeal contains no transcript of the final charge.

Rodríguez's attorney then mentioned a process that the jury could

use to fix damages: her pain was worth "$9.00 a day," he said, and

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she should live "55 more years," so she should get over $178,000.

The judge sustained an objection to this statement, adding that the

"jury will be able to evaluate what compensation, if any,"

Rodríguez is due. Sparks flew too when Rodríguez's lawyer said

that his client had found herself under "attack" at trial

(objection sustained) and that Estrada had been deported to Mexico

as part of a plea agreement in a criminal case arising from the

crash (objection overruled).

Finding Señor Frog liable, the jury awarded Rodríguez

$450,000. The verdict does not distinguish between the types of

damages. But the parties (who agree on little else) concur that

the bulk of this represented pain and suffering.

In any event, Señor Frog timely moved for a new trial or

remittitur. The new-trial portion of its motion blasted

Rodríguez's lawyer for his comments during opening or closing

statements that suggested a specific damage number, accused the

defense of attacking his client, and noted that authorities had

shipped Estrada back to Mexico pursuant to a plea agreement. The

remittitur section called the jury's award grossly excessive.

Ultimately, the judge denied the motion in an unexplained order.

Having set the stage, we turn to the legal issues on

appeal, noting further facts as needed.

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 The Diverse-Citizenship Issue

The diversity-jurisdiction statute empowers federal

courts to hear and decide suits between citizens of different

states, provided the amount in controversy is more than $75,000.

See 28 U.S.C. § 1332(a). Puerto Rico is a state for diversity-

jurisdiction purposes. See id. § 1332(e). And Señor Frog is a

citizen of Puerto Rico, see id. § 1332(c)(1), so Rodríguez's suit

is untenable if she was a Puerto Rico citizen when she filed her

December 1, 2005 complaint, see, e.g., Hall v. Curran, 599 F.3d 70,

72 (1st Cir. 2010) (per curiam). Señor Frog argues that she was,

though it did not press this argument until after Rodríguez had

rested her case. Cf. generally Valentin v. Hospital Bella Vista,

254 F.3d 358, 362 (1st Cir. 2001) (calling a pre-answer motion to

dismiss under Fed. R. Civ. P. 12(b)(1) the "proper vehicle for

challenging a court's subject-matter jurisdiction"). But after an

evidentiary hearing, the judge deemed Rodríguez a citizen of

California when she sued, and this conclusion survives clear-error

review. See, e.g., Padilla-Mangual v. Pavía Hosp., 516 F.3d 29, 32

(1st Cir. 2008) (noting that a district judge's determination in

this area is "a mixed question of law and fact," which we review

under the "clearly erroneous" rubric) (internal quotation marks

omitted); Cantellops v. Alvaro-Chapel, 234 F.3d 741, 742 (1st Cir.

2000) (similar).

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 Citizenship for diversity purposes is domicile, and

domicile is the place where one is present and intends to stay.

See, e.g., Padilla-Mangual, 516 F.3d at 31 (explaining that "[a]

person's domicile is the place where he has his true, fixed home

and principal establishment, and to which, whenever he is absent,

he has the intention of returning") (quoting Rodríguez-Díaz v.

Sierra-Martínez, 853 F.2d 1027, 1029 (1st Cir. 1988) (internal

quotation marks omitted)); García Pérez v. Santaella, 364 F.3d 348,

350 (1st Cir. 2004) (similar); see also Hawes v. Club Ecuestre El

Comandante, 598 F.2d 698, 701 (1st Cir. 1979) (adding that we

require "no minimum period of residency"). As the party invoking

diversity jurisdiction, Rodríguez had to prove domicile by a

preponderance of the evidence, see, e.g., Padilla-Mangual, 516 F.3d

at 31; García Pérez, 364 F.3d at 350 – and she did just that,

presenting enough evidence to show that she was a domiciliary (and

thus a citizen) of California.

Rodríguez was the only witness at the hearing on the

diversity issue – Señor Frog called no one. Rodríguez testified

that she had moved from Puerto Rico to California in September

2005, roughly three months before she filed this suit. She was

pregnant, and she and her boyfriend Adrian Peralta wanted to start

their lives together in the Golden State. Since they had very

little money, the couple lived in a San Francisco Bay area home

owned by Peralta's grandmother. And by the time she sued Señor

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Frog, she had fully relocated from Puerto Rico to California: she

was physically present in California (with her clothes, books,

furniture, household items, etc.), had opened up a California bank

account (she had no money in any Puerto Rico banks), had gotten a

California driver's license and job, and had hired a California

lawyer to fight on her behalf. And though she had not registered

to vote in California (actually, she was not registered to vote

anywhere) and did not attend church there, she had settled on

living in the Golden State permanently. Cf. Bank One, Texas, N.A.

v. Montle, 964 F.2d 48, 50 (1st Cir. 1992) (holding that factors

that can help an inquiring court determine a party's intent include

where the party exercises civil and political rights, pays taxes,

has real and personal property, has a driver's or other license,

has bank accounts, has a job or owns a business, attends church,

and has club memberships – for simplicity we call these the "Bank

One factors").

Post-complaint events cast no doubt on the earnestness of

Rodríguez's intent either. See generally García Pérez, 364 F.3d at

351 (holding that, even though they "are not part of the primary

calculus," post-suit happenings "may bear on the sincerity of a

professed intention to remain"). Rodríguez told the judge that she

gave birth to a baby boy in California, turned to a California

pediatrician to treat him, and put him in a California daycare for

a spell. She also enrolled in three California community college

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courses and got a cell phone with a California area code (she may

have acquired the cell phone pre-complaint, but we cannot tell for

certain). True, starting in 2007, Rodríguez spent several

semesters at the InterAmerican University in Puerto Rico (she could

get her bachelor's degree faster if she studied there, she said),

and she was still taking classes there at the time of trial. But

she made clear that she returned to California whenever school was

not in session (during winter, spring, and summer breaks, for

example), and she provided copies of plane tickets to prove that

point. She also reaffirmed that she intended to live in California

for the rest of her life (she hoped to land a teaching job there

once she got her degree).

Having the exclusive ability to assess Rodríguez's

demeanor and tone, the district judge was best positioned to

separate true from false testimony. See, e.g., Padilla-Mangual,

516 F.3d at 33-34. The judge found Rodríguez credible, and after

carefully canvassing the testimony, she meticulously detailed

findings of fact, which she supported with specific references to

the evidence. Because we cannot say that these findings were

clearly erroneous, her ruling that there was diverse citizenship

must stand.

Undaunted, Señor Frog insists that the district judge

botched her ruling in several respects. For openers, Señor Frog

protests that Rodríguez did not have enough Bank One factors on her

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side, given that she had not registered to vote in California and

had no religious affiliation there. Also, Rodríguez produced no

documentary evidence – no bank statements, driving records, college

transcripts, etc. – to support key claims, and, given the best-

evidence rule, see Fed. R. Evid. 1002, the judge had no business

accepting her "self-serving" comments about her intent to stay in

California indefinitely. Searching for a "gotcha!" moment, Señor

Frog notes too that Rodríguez said at trial that she "lived in

Mayaguez," Puerto Rico, "all my life" – testimony it says should

have caused the judge to dismiss the case for lack of diversity

jurisdiction straightaway, without bothering with an evidentiary

hearing.

We cannot buy into these arguments. For one thing, a

party need not check off every Bank One factor to satisfy her

burden, see, e.g., Padilla-Mangual, 516 F.3d at 33, and, in any

event, Rodríguez checked off more than enough of them – the

California bank account, driver's license, job, and personal-

property location sync up nicely with key Bank One factors.

For another thing, the district judge did not blindly

accept Rodríguez's statement that she intended to make California

her home. Rather, the judge sifted the testimony and grounded her

ruling in facts that confirmed Rodríguez's intent claim. And Señor

Frog's best-evidence theory changes nothing. With exceptions not

relevant here, the best-evidence rule requires a party trying to

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prove the "content" of a written document to introduce the document

itself. See Fed. R. Evid. 1002. Think of a will contest where the

will is not in evidence and a witness tries to discuss the

document's words from memory – that is the sort of situation that

the rule was designed to address. See generally United States v.

Diaz-Lopez, 625 F.3d 1198, 1201-02 (9th Cir. 2010) (quoting leading

treatises on the subject). But that is not our case. Rodríguez

never tried to give the exact terms of her California bank account,

driver's license, or college transcripts. She simply tried to

prove, through her own direct testimony, certain facts that she had

direct knowledge of – that she had opened a California bank

account, acquired a California license, and taken several

California community-college courses pre-complaint. Consequently,

this case falls outside the compass of the best-evidence rule. See

R & R Assocs., Inc. v. Visual Scene, Inc., 726 F.2d 36, 38 (1st

Cir. 1984) (commenting that "[n]o evidentiary rule . . . prohibits

a witness from testifying to a fact simply because the fact can be

supported by written documentation"); see also Simas v. First

Citizens' Fed. Credit Union, 170 F.3d 37, 51 (1st Cir. 1999);

United States v. Grossman, 614 F.2d 295, 298 n.1 (1st Cir. 1980).

Last but not least, Rodríguez's trial testimony in no way

short-circuited her diverse-citizenship claim. Consider the

context. Thrilled beyond words that his daughter had survived the

collision, Rodríguez's father hosted a Christmas Day party at his

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Mayaguez home in 2004 – roughly three weeks after Estrada had rear-

ended Rodríguez and one year before she filed this action.

Rodríguez was deeply depressed, he said, and he thought a small

soirée with family and friends might lift her spirits. At trial,

Rodríguez's counsel asked her whether any party-goers had come from

San Juan (we are not sure why this mattered). "No," she replied,

"I lived in Mayaguez all my life, so most of my friends are from

Mayaguez." Señor Frog makes much of this language, suggesting that

it proved her California-domicile claim was a lie – so, the

argument goes, the judge should have kicked her case to the curb

without further ado. We think not. Again, diversity of

citizenship is determined as of the time of suit. See, e.g., Bank

One, 964 F.2d at 49. And, fairly read, Rodríguez's testimony went

to her pre-suit living situation, which means that her statement

could not and did not sabotage diversity jurisdiction.

That ends this phase of the case. Standing by what we

said moments ago – that we cannot call the judge's diverse-

citizenship conclusion clearly wrong – we move, finally, to the

other issues before us.

The Evidentiary Issues

Señor Frog criticizes the judge's in limine ruling

barring evidence that Estrada had owned the Mitsubishi and that

Rodríguez had downed a couple of beers hours before the crash. We

are unpersuaded.

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 We need not delve too deeply into the car-ownership issue

because, just before Rodríguez rested, Señor Frog stipulated that

it owned the Mitsubishi Mirage at the time of the collision. And

the judge read the stipulation to the jury. Fact stipulations like

this speed up the trial process by eliminating "'the need for

proving essentially uncontested facts,'" which helps preserve

precious judicial resources. Caban Hernandez v. Philip Morris USA,

Inc., 486 F.3d 1, 5 (1st Cir. 2007) (quoting Gomez v. Rivera

Rodriguez, 344 F.3d 103, 120 (1st Cir. 2003)). So, obviously,

stipulations of this sort are valued by litigants and judges alike,

and once freely-made they bind the parties, the trial court, and

the appellate court too. See, e.g., H. Hackfeld & Co. v. United

States, 197 U.S. 442, 446 (1905); United States ex rel. Miller v.

Bill Harbert Int'l Constr., Inc., 608 F.3d 871, 889 (D.C. Cir.

2010); Am. Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th

Cir. 1988); Fisher v. First Stamford Bank and Trust Co., 751 F.2d

519, 523 (2d Cir. 1984). Consistent with these principles, Señor

Frog's stipulation undercuts the line of reasoning that it seeks to

pursue here – in other words, having freely stipulated to a key

fact, Señor Frog must now live with the consequences. See

generally Miller, 608 F.3d at 889 (explaining that "one party" to

a stipulation "need offer no evidence to prove it and the other is

not allowed to disprove it") (internal quotation marks omitted).

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 Nor is Señor Frog's argument about the beer evidence

particularly promising. As we see things, its proffer reduced to

this: from Rodríguez's drinking a beer or two hours before the

collision, a jury could infer that (a) she drove impaired, which

(b) caused her to hit a pothole that blew out her tires (she would

not have hit it otherwise, apparently) and required her to pull

over, which (c) put her in line to be rear-ended by Estrada as she

sat in a parked car along the shoulder of the road, which,

ultimately, (d) put her partly at fault for her injuries. Señor

Frog's proffered evidence did not show that Rodríguez had been

impaired, her lawyer argued, or that she had any role in Estrada's

slamming into her while she was parked by the side of the road,

totally out of the travel lane. The evidence, he added, had one

purpose – to convince the jury that she was a "bad person" for

having a beer or two.

The judge agreed with Rodríguez's lawyer. Rodríguez was

not driving when Estrada "smash[ed]" into her – she was simply

sitting there in the front seat of her parked car as the tow-truck

driver worked on getting her auto towed. Rodríguez's supposed beer

drinking had no causal role, the judge ruled, so "[a]bsent any

other evidence to establish the alleged facts," the proffered

evidence was excludable as more prejudicial than probative. See

Fed. R. Evid. 403.

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 Before taking up this issue we must iron out a wrinkle

concerning our standard of review. If an in limine ruling excludes

evidence unconditionally, the adversely-affected party need take no

additional steps to preserve the issue for appeal, which means

abuse-of-discretion review will control. See, e.g., Crowe v.

Bolduc, 334 F.3d 124, 133 (1st Cir. 2003). But if the ruling is

merely tentative and "clear[ly] invit[es]" the party "to offer the

evidence at trial" under the ruling's terms, that party must follow

up on the invitation or else plain-error review will hold sway.

See id. (adding that counsel must "clarify whether the in limine

ruling was final or not" if there is any doubt). The judge's

ruling here – excluding the beer evidence unless circumstances at

trial changed so that Señor Frog had to offer it again – was final

enough, see id. at 134, which makes abuse of discretion the proper

test.

Rule 403 says that district judges may exclude relevant

evidence if its probative value is substantially outweighed by

other considerations, including unfair prejudice. Because they are

on the front lines, district judges are better positioned than we

to strike this balance, so they get a special degree of deference:

only in extreme circumstances will we reverse their on-the-spot

judgment calls. See, e.g., United States v. Tierney, 760 F.2d 382,

388 (1st Cir. 1985). Having thoroughly considered this matter, we

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see no reason to second-guess the judge's ruling here. We explain

briefly.

Sitting as a diversity court, we must apply the

substantive law of Puerto Rico. See, e.g., Borges ex rel. S.M.B.W.

v. Serrano-Isern, 605 F.3d 1, 6 (1st Cir. 2010) (citing, among

other cases, Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).

Tort liability under Puerto Rico law requires both "'fault,'"

Marshall v. Perez Arzuaga, 828 F.2d 845, 847 (1st Cir. 1987)

(quoting Jimenez v. Pelegrina, 112 P.R.R. 881, 885 (1982)), and the

requisite causal connection between the wrongdoing and the damages

sustained, which is just another way of saying proximate cause, see

Vázquez-Filippetti v. Banco Popular de Puerto Rico, 504 F.3d 43, 49

(1st Cir. 2007). The proximate-cause concept "limits a party's

liability for hazards flowing from its negligence to those hazards

that could be '"anticipated by a prudent person."'" Marshall, 828

F.2d at 847 (quoting Pacheco v. Puerto Rico Water Res. Auth., 112

P.R. Offic. Trans. 369, 372 (1982) (quoting Hernandez v. The

Capital, 81 P.R. 998, 1005 (1960))). Foreseeability holds the key:

a person is liable if the consequences of her wrongdoing were

immediate and foreseeable, not if they were more remote and

unlikely. See, e.g., Irvine v. Murad Skin Research Labs., Inc.,

194 F.3d 313, 321-22 (1st Cir. 1999) (applying Puerto Rico law);

Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 971-72 (1st Cir.

1991) (applying Puerto Rico law).

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 Clearly, then, speculation or conjecture will not cut it

when it comes to proximate cause. See, e.g., Malave-Felix, 946

F.2d at 972 (citing Widow of Delgado v. Boston Insur. Co., 99

P.R.R. 693, 703 (1971), and Saez v. Municipality, 84 P.R.R. 515,

523 (1962)). And this is where Señor Frog falters: the proffered

evidence (which we painstakingly portrayed five paragraphs ago)

depends on a chain of inferences far too strained and uncertain to

have much probative worth, and certainly not enough to

counterbalance its high potential for unfair prejudice.

Consequently, we cannot conclude that the judge's decision was so

off the mark as to be an abuse of discretion. See generally

Lussier v. Runyon, 50 F.3d 1103, 1111 (1st Cir. 1995) (noting that,

"[i]n general, the abuse of discretion framework is not appellant-

friendly"); Dopp v. Pritzker, 38 F.3d 1239, 1253 (1st Cir. 1994)

(stressing that most "appellants who consider themselves aggrieved

by discretionary decisions of the district court . . . are destined

to leave this court empty-handed").

The Instruction Issue

Señor Frog criticizes the judge for refusing to give a

contributory- or comparative-negligence instruction. We review

that issue de novo if properly preserved, see, e.g., Gray v.

Genlyte Group, Inc., 289 F.3d 128, 133 (1st Cir. 2002), reversing

only if the rejected instruction was substantively correct,

essential to an important issue in the case, and not substantially

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covered in the charge given, see, e.g., Seahorse Marine Supplies,

Inc. v. P.R. Sun Oil Co., 295 F.3d 68, 76 (1st Cir. 2002). At the

pre-charge conference Señor Frog's lawyer objected with reasons

when the judge said that she would not give either instruction,

which means that counsel did enough to preserve the point for

appellate review. See, e.g., Fed. R. Civ. P. 51(c) & (d); Booker

v. Mass. Dep't of Pub. Health, 612 F.3d 34, 40-42 (1st Cir. 2010).

But regardless, Señor Frog's arguments have no traction.

Puerto Rico is a comparative-negligence jurisdiction, see

P.R. Laws Ann. tit. 31, § 5141 (2008) – hence, a contributory-

negligence charge had no place here. On top of that, we cannot

tell whether the judge carried through her intention not to offer

either instruction – and that is because Señor Frog failed to give

us a transcript of the instructions as read to the jury. The

transcript it has provided ends with this: "AT WHICH TIME THE JURY

INSTRUCTION [sic] WERE GIVEN." Parties pursuing appellate review

must supply us with enough raw material so that we can do our job.

See, e.g., Campos-Orrego v. Rivera, 175 F.3d 89, 93 (1st Cir.

1999); Moore v. Murphy, 47 F.3d 8, 10-12 (1st Cir. 1995). Because

Señor Frog did not meet that most basic requirement, it cannot

prevail on this issue. See, e.g., Campos-Orrego, 175 F.3d at 94;

Moore, 47 F.3d at 10-12.

We hasten to add that even if it had given us a

transcript that left no doubt about what the judge actually said in

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her final charge, Señor Frog would still lose. Señor Frog's thesis

is simple: had the judge not wrongly granted Rodríguez's in limine

motion on the beer issue, the record evidence would have obliged

her to deliver the requested instruction. Having already concluded

that the judge did not gaffe the in limine ruling, we easily reject

this thesis – after all, a trial judge cannot give an instruction

if there is no evidence in the record to support it, see, e.g.,

Kelliher v. Gen. Transp. Serv. Inc., 29 F.3d 750, 754 (1st Cir.

1994); Sexton v. Gulf Oil Corp., 809 F.2d 167, 169 (1st Cir 1987),

and that is the case here.

The New-Trial Issue

Señor Frog tells us that the judge also stumbled in

denying its new-trial motion.2 District judges, of course, do not

have carte blanche to ignore "the considered verdict of a properly

instructed jury" simply because they might have reached a different

result in a bench trial, Quinones-Pacheco v. Am. Airlines, Inc.,

979 F.2d 1, 3 (1st Cir. 1992) (emphasis added) – the underscored

phrase is critical for reasons that we get to shortly. Rather,

judges may grant a new trial "'only if the verdict is against the

law, against the weight of the credible evidence, or tantamount to

a miscarriage of justice.'" Crowe v. Marchand, 506 F.3d 13, 19

2
As we said, the judge denied the motion without a written
explanation. But we can take on Señor Frog's issues anyway. See
Bielunas, 621 F.3d at 77-78 (explaining when the court can take
that tack).

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(1st Cir. 2007) (discussing Fed. R. Civ. P. 59(a) and quoting

Casillas-Díaz v. Palau, 463 F.3d 77, 81 (1st Cir. 2006)). And we

review the denial of a new-trial motion under the highly-

deferential abuse-of-discretion standard. See, e.g., id.

Señor Frog attacks the judge's new-trial order on three

primary fronts. First, it argues that Rodríguez's counsel's

mention of either a lump sum or formula for computing pain-and-

suffering damages during opening and closing statements constituted

reversible error. We have outlawed both practices in this

circuit.3 See Bielunas, 621 F.3d at 78-79. But that gets Señor

3
On this issue – which is a matter of procedure and thus
governed by federal law, see Davis v. Browning-Ferris Indus., Inc.,
898 F.2d 836, 837 (1st Cir. 1990) – our outright ban is clearly out
of step with the prevailing federal practice. The Second, Fourth,
Fifth, Sixth, Seventh, Eighth, and Tenth Circuits leave it to
district judges to decide whether and how lawyers may discuss pain-
and-suffering damages with juries. See, e.g., Lightfoot v. Union
Carbide Corp., 110 F.3d 898, 912 (2d Cir. 1997) (noting that
district judges have the discretion either to "prohibit counsel
from mentioning specific figures" or to allow it with certain
safeguards, "including cautionary jury instructions"); Murphy v.
Nat'l R.R. Passenger Corp., 547 F.2d 816, 818 (4th Cir. 1977)
(stating that if the trial court, "in its discretion, concludes
that the summation would not have an unduly prejudicial effect, it
may permit counsel to suggest a monetary figure for the award or to
illustrate damages for a unit of time multiplied by the expected
duration of suffering"); Baron Tube Co. v. Transp. Ins. Co., 365
F.2d 858, 861, 864-65 (5th Cir. 1966) (en banc) (holding that
counsel can argue "for damages for pain and suffering on a so-
called 'unit of time' formula," provided there are safeguards in
place, e.g., cautionary instructions, though "whether to allow such
an argument and the protective features to be employed are matters
vested, in the end, in the sound discretion of the trial court");
Pa. R.R. Co. v. McKinley, 288 F.2d 262, 266 (6th Cir. 1961)
(refusing to reverse where counsel "suggested a per diem figure for
pain suffered at various periods of time," concluding that district
judges possess substantial discretion to control "the style and

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Frog only so far. To succeed, Señor Frog must also show that the

error was harmful – i.e., that the error affected its "substantial

rights," which in turn depends on whether the error "substantially

swayed" the jury's verdict. See Nieves-Villanueva v. Soto-Rivera,

133 F.3d 92, 102 (1st Cir. 1997) (internal quotation marks

omitted); see also Seahorse Marine Supplies, Inc., 295 F.3d at 82.

Certainly the fact that the jury gave Rodríguez exactly what her

lawyer asked for suggests prejudice. But that does not tell us all

we need to know. The key here lies in the jury instructions. Did

the judge tell the jury to disregard the lawyer's suggested numbers

as she had promised? If yes, were her words strong enough to draw

all the sting from counsel's comments? See Bielunas, 621 F.3d at

79 (noting that such an instruction might be a sufficient salve in

content of counsel's argument"); Waldron v. Hardwick, 406 F.2d 86,
89 (7th Cir. 1969) (concluding "that an inflexible rule treating
per diem argument as reversible error is not advisable," adding
that "the question should be left largely to the discretion of the
trial judge as are other matters dealing with the style and content
of argument"); Vanskike v. ACF Indus., Inc., 665 F.2d 188, 211 (8th
Cir. 1981) (stressing that "limitation of counsel's argument to the
jury on computation of damages is within the discretion of the
district judge," adding that "[a]lthough we continue to condemn
[jury] instructions requiring per diem mathematical calculations,
we do not disapprove of per diem closing arguments [provided] such
arguments are carefully controlled by the district court");
McDonald v. United Airlines, Inc., 365 F.2d 593, 595 (10th Cir.
1966) (indicating that whether to permit "a per diem damages
argument . . . by counsel to the jury" is a "matter[] within the
discretion of the trial judge"). As far as we can tell, only the
Third Circuit stands with us. See, e.g., Waldorf v. Shuta, 896
F.2d 723, 744 (3d Cir. 1990) (holding that lawyers may not "request
a specific dollar amount for pain and suffering in [their] closing
remarks").

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certain situations); Río Mar Assoc., LP, SE v. UHS of P.R., Inc.,

522 F.3d 159, 163 (1st Cir. 2008) (noting the presumption that

jurors follow the district judge's clear instructions). Also, what

did the judge tell the jury about pain-and-suffering damages under

Puerto Rico law? And viewing the record through that legal lens,

was the pain-and-suffering evidence so overwhelming that counsel's

remarks mattered not in the grand scheme of things? We can answer

none of these questions, however, because Señor Frog has not

presented us with a transcript of the judge's final charge, which

means Señor Frog loses this aspect of its new-trial bid. See,

e.g., Campos-Orrego, 175 F.3d at 94; Moore, 47 F.3d at 10-12.

Next, Señor Frog says that Rodríguez's counsel's closing-

argument comment that his client had come under "attack" in court

requires a new trial. Not so. Assuming purely for argument's sake

that counsel's statement crossed a line (which we in no way

intimate), Señor Frog has not shown any prejudice. See, e.g.,

Gonzalez-Marin v. Equitable Life Assurance Soc'y, 845 F.2d 1140,

1147 (1st Cir. 1988) (noting that district judges have

"considerable discretion" when it comes to policing lawyers'

closing-argument comments, stressing that "[w]e will reverse only

upon a showing of prejudice"). Counsel's "attack" comment was a

small and unrepeated part of a fairly lengthy summation. And the

judge sustained Señor Frog's objection right away. The judge

probably also instructed the jury in the end that counsels'

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statements in closing argument are not evidence, an instruction

that can often lessen any potential harm. See, e.g., Bielunas, 621

F.3d at 79. But we cannot double-check our hunch against the

transcript because Señor Frog did not give us what we need to carry

out our review function. Given all of the circumstances, Señor

Frog's complaint goes nowhere. See, e.g., Campos-Orrego, 175 F.3d

at 94; Moore, 47 F.3d at 10-11.

Finally, Señor Frog cries foul over Rodríguez's counsel's

remark in closing that Estrada had been deported back to Mexico

under the terms of a plea agreement – a statement that supposedly

turned the jury against Estrada. Even if we assume for the sake of

discussion that Rodríguez's lawyer exceeded the bounds of fair

argument, we cannot see how this fleeting comment could have

unfairly prejudiced Señor Frog, see Gonzalez-Marin, 845 F.2d at

1147 – and, critically, Señor Frog spends no time explaining how it

could have, see Casillas-Díaz, 463 F.3d at 83 (holding that

litigants have "an unflagging obligation to spell out their

contentions 'squarely and distinctly, or else forever hold [their]

peace,'" adding that a cursory mention of a possible argument will

not suffice) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990)). Ultimately, then, this new-trial argument, like the

others, cannot succeed.

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 The Remittitur Issue

Saying that most if not all of the $450,000 damage award

represented compensation for pain and suffering, Señor Frog calls

the figure conscience-shocking and asks us to reverse the judge's

decision not to grant a remittitur. That is a very tall order.

"Only rarely and in extraordinary circumstances" will we nix a

jury's non-economic damages award. Bielunas, 621 F.3d at 80. That

is especially true where, as here, the judge, "who saw and heard

the evidence play out," has endorsed the award. Id. "Stepping

lightly," we only look to see if the judge abused her discretion in

not trimming the award – mindful, of course, that the defendant

must prove that the "award is '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. (quoting

Casillas-Díaz, 463 F.3d at 83).

Another obstacle looms large, however – one we have

mentioned already, namely, the absence of a full record. Our

review of the remittitur question is "inescapably 'fact-bound,'"

id. (quoting Casillas-Díaz, 463 F.3d at 83), and we must analyze

the facts "under the legal criteria" established by the jury

charge, id. at 80-81; see also Casillas-Díaz, 463 F.3d at 83; Smith

v. Kmart Corp., 177 F.3d 19, 30 (1st Cir. 1999). But because Señor

Frog failed to furnish a transcript of the final charge, we cannot

reach a reasoned decision on the remittitur issue. Consequently,

-24-
Señor Frog's remittitur challenge collapses. See, e.g., Campos-

Orrego, 175 F.3d at 94; Moore, 47 F.3d at 10-12.

What This All Means

For the reasons recited above, we affirm the judgment

below in all respects. Costs to Rodríguez.

So Ordered.

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