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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Correia v. Fitzgerald
Court: Court of Appeals for the First Circuit
Date filed: 2003-12-31
Citations: 354 F.3d 47
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