Air Safety, Inc. v. Roman Catholic Archbishop of Boston

United States Court of Appeals
For the First Circuit

No. 95-1920

AIR SAFETY, INC.,
A/K/A AIR SAFETY ENGINEERING,

Plaintiff, Appellant,

v.

ROMAN CATHOLIC ARCHBISHOP OF BOSTON, A CORPORATION SOLE
AND CHRISTIAN BROTHERS INSTITUTE OF MASSACHUSETTS, INC.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

Stahl, Circuit Judge,

Coffin, Senior Circuit Judge,

and Cummings,* Circuit Judge.

William M. Simmons with whom Nancy G. O'Donnell was on brief

for appellant.
Francis J. O'Connor with whom Wilson D. Rogers, Jr., was on

brief for appellee Roman Catholic Archbishop of Boston.
Regina Williams Tate with whom William J. Egan was on brief

for appellee Christian Brothers Institute of Massachusetts, Inc.

August 21, 1996

*Of the Seventh Circuit, sitting by designation.

COFFIN, Senior Circuit Judge. Appellant Air Safety, Inc.

filed this diversity suit seeking payments allegedly due for

asbestos removal at six Boston area parochial schools. The

defendants, the Roman Catholic Archbishop of Boston ("RCAB") and

the Christian Brothers Institute of Massachusetts, Inc. ("the

Institute"), filed counterclaims alleging damages arising from

Air Safety's work.1 The bottom line after a series of rulings by

the court and the jury was a net award in favor of each

defendant. Air Safety asserts two claims on appeal: (1) the

district court abused its discretion in refusing to hold a

partial new trial on negligence damages, which Air Safety

contends were excessive and unsupported by the record; and (2)

the district court erred in excluding crucial exhibits showing

Air Safety's overhead costs, requiring a partial new trial on its

damages against the RCAB and the Institute. We find no

reversible error in the court's evidentiary ruling, but vacate

and remand for a new trial on the negligence damages unless

defendants accept a proposed remittitur.

I. Factual Background

This case originated in Air Safety's successful bid to

remove asbestos at six schools owned by the defendants. The work

began in the summer of 1988. Conflicts arose over various

aspects of the project, including the quality of Air Safety's

performance and the defendants' obligations to pay for completed

1 RCAB is the owner of five of the schools. The Institute
owns the sixth, Catholic Memorial High School.

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work. Air Safety filed suit to obtain payment, asserting claims

for breach of contract, for payments on an "account stated,"2

and, as alternative relief, for quantum meruit. The RCAB and the

Institute filed counterclaims for breach of contract and

negligence.3

During the course of pre-trial proceedings, the district

court allowed Air Safety's account stated claim in the amount of

$328,738 for the five schools owned by the RCAB, but stayed

enforcement of the judgment until all other claims were

resolved.4 Following a twelve-day trial, the jury found that

neither the RCAB nor the Institute had breached their contracts,

but that Air Safety had done so. It found, however, that no

breach of contract damages had been suffered by either defendant.

The jury also determined that Air Safety was responsible for

2 An "account stated" claim is one based on an
acknowledgement of an existing liability for a specified amount,
from which the law implies a promise to pay. Rizkalla v.

Abusamra, 187 N.E. 602, 603 (Mass. 1933).

3 Other causes of action not of significance here were
dismissed.

4 Two aspects of the account stated portion of the case need
clarification. First, the proceeding affected only the RCAB and
its five schools because the Institute had not yet been made a
party; Air Safety did not realize at the outset of the litigation
that the sixth school, Catholic Memorial High School, was owned
by a separate entity. It subsequently filed a First Amended and
Supplemental Complaint adding the Institute as a defendant.
Second, the account stated award was reduced after trial,
based on amounts paid by the RCAB, to $62,249.97.

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negligence damages, but that it was entitled to quantum meruit

relief. The net result was awards in favor of both defendants.5

Air Safety filed a motion for new trial on the negligence

damages, claiming that the amounts awarded were not supported by

the evidence. After briefing and oral argument, the district

court denied the motion in a margin order. This appeal followed.

II. Negligence Damages

Air Safety contends that the jury's negligence awards far

exceed the record evidence of damage. It maintains that the RCAB

established only $21,672 in damages, while the jury awarded

$235,000. It further claims that the Institute's proven damages

totaled only $85,894, compared with a jury award of $138,000.

The district court rejected Air Safety's request through a motion

for new trial to revisit the issue of negligence damages, and Air

Safety now urges us to find that that ruling was erroneous.

Our review is narrow. A district court's denial of a motion

for new trial may be reversed only for an abuse of discretion.

Ahern v. Scholz, 85 F.3d 774, 780 (1st Cir. 1996). "`In a

challenge to a jury award, [the appellate court] is limited to

5 The judgment specified the following amounts, plus
interest:

(a) quantum meruit from the RCAB to Air Safety: $87,000;
(b) quantum meruit from the Institute to Air Safety: $63,100;
(c) account stated from the RCAB to Air Safety: $62,249.97;
(cont'd)

(cont'd from page 3)
(c) negligence damages to the RCAB from Air Safety: $235,500;
(d) negligence damages to the Institute from Air Safety:
$138,100.

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examining whether evidence in the record supports the verdict.

If the jury award has a rational basis in evidence, we must

affirm it.'" Nydam v. Lennerton, 948 F.2d 808, 810-11 (1st Cir.

1991) (quoting O'Brien v. Papa Gino's of America, Inc., 780 F.2d

1067, 1076 (1st Cir. 1986)). Under Massachusetts law,

uncertainty as to the amount of damages does not bar their

recovery, see Stuart v. Town of Brookline, 587 N.E.2d 1384, 1387

(Mass. 1992), but a plaintiff "`must establish [its] claim upon a

solid foundation in fact, and cannot recover when any essential

element is left to conjecture, surmise or hypothesis,'" Snelling

& Snelling of Massachusetts, Inc. v. Wall, 189 N.E.2d 231, 232

(Mass. 1963) (quoting John Hetherington & Sons, Ltd. v. William

Firth Co., 95 N.E. 961, 964 (Mass. 1911)). See also Hendricks &

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

Puritan Medical Ctr., Inc. v. Cashman, 596 N.E.2d 1004, 1013

(Mass. 1992).

Despite the confines of our inquiry, our examination of the

trial transcript requires us to conclude that the negligence

awards cannot stand. The evidence in the record fails to

substantiate the amounts imposed; even a generous reading of the

testimony supports only a small portion of the damages beyond

those conceded by Air Safety on appeal. We discuss separately

the results of our study with respect to each defendant.

The RCAB. Air Safety contends that the record supports only

$21,672 in damages for the cost of a temporary boiler at St.

Theresa's school. The jury awarded $235,000. Our search

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revealed three additional items that the jury could have

attributed to Air Safety's negligence: extra clean-up work by

custodians at St. Theresa's for which Rev. Helmick testified that

he "paid a lot;" damage to a clock and bell system; and $7,400

for painting at St. William's school. No amounts for either the

custodial time or the clock repair were presented to the jury,

although the district court reported in a June 20, 1990 Order on

the parties' summary judgment motions that those items were

alleged to cost $4,377 and $272.50, respectively.

We think it within reason for the jury to choose to

compensate the RCAB for these asserted harms, despite the lack of

testimony on specific dollar amounts.6 This is not the sort of

conjecture barred by Massachusetts law in calculating damages,

but simply a matter of imprecision with respect to the amount for

a specifically identified harm. The gap challenged by Air

Safety, however, is far greater than any reasonable figure

attributable to these additional harms. We think an appropriate

recovery for them would be the amounts previously identified by

the RCAB, totaling $12,049.50.

The RCAB points to one additional expense that the jury may

have attributed to Air Safety: the $57,971.80 difference between

the contract price for Mission High School and the combined

6 The record arguably is ambiguous as to whether Air Safety
did the necessary painting at St. William's. On cross-
examination, Air Safety's witness, John Murphy, acknowledged that
it was his company's responsibility to paint areas damaged by the
asbestos removal process, but was unsure whether the work had
been done. He testified: "I would have to look back. I thought
we painted the floor."

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amount of Air Safety's account stated claim for Mission and the

amount paid to a new contractor to complete the work left

unfinished by Air Safety. In other words, the RCAB contends that

the record showed that it paid nearly $58,000 more for asbestos

removal at Mission High School than the Air Safety contract

price.

We have two problems with this contention. First, this

differential amount between the original contract price and the

amount actually expended to get the job done is classically

breach of contract damages. The jury, however, awarded no

damages for the breach.7

Second, and more significantly, there was no testimony or

argument at trial concerning the $58,000. In closing, the RCAB's

attorney pointed out (consistent with Rev. Ryan's testimony) that

it cost $105,000 to complete the contract work left unfinished by

Air Safety; he did not assert, however, that that amount

represented higher charges for work Air Safety had contracted to

perform for less. Although the original contract amount and Air

Safety's account stated claim both were contained in trial

exhibits, there was no basis for the jurors to have made the

calculation now offered by the RCAB to undergird its award

without the crucial $58,000 figure having been explained to them.

7 We recognize that the district court explicitly told the
jurors that they may award damages "only once for each harm," and
that the jury, for convenience, might have decided to classify
all damages under the negligence rubric.

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We think it likely that the huge discrepancy between the

damages actually proven and the amount awarded stems from the

jury's effort to compensate the RCAB and the parents and students

attending the five affected schools for the trouble caused by Air

Safety's negligent work. Beyond the fact that the RCAB has no

claim to damages for discomfort suffered by others is the fact

that this case involves property damage, not personal injury.

See generally Guaranty-First Trust Co. v. Textron, 622 N.E.2d

597, 599 (Mass. 1993) (under common law, if injury to property is

reasonably curable by repairs, the expense of repairs, if less

than diminished market value, is the measure of recovery);

Michael B. Bogdanow, Massachusetts Tort Damages 9.03 (1995).

It goes without saying that a breach of contract or the negligent

performance of a contractual obligation will impose burdens on

the wronged party, but compensation is limited to making that

party whole.8

Moreover, even if harm in the nature of pain and suffering

were compensable in this context, such damages would be rank

speculation here. No testimony was presented of specific

intangible injuries to the RCAB or its officials as a result of

Air Safety's conduct. The general reference in counsel's closing

argument to "frustration," "aggravation," and "inconvenience" --

byproducts of any tort or breach of contract -- is far from the

8 Although loss-of-use damages are recoverable, the RCAB
made no showing of such losses.

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"solid foundation in fact," Snelling & Snelling, 189 N.E.2d at

232, necessary to support an award of damages.9

We therefore conclude that, unless the RCAB agrees to a

remittitur of $201,278.50 -- reducing its negligence damages to

$33,721.50 -- Air Safety is entitled to a partial new trial. See

Anthony, 17 F.3d at 495 (appellate court has the option of

selecting a reduced damages figure or remanding to district court

to determine damages).

The Institute. Air Safety acknowledges that the record

supports an award of $85,894 in damages for a number of specific

9 It is worth noting that most of the cases cited by the
RCAB and the Institute highlighting the extremely deferential
standard for reviewing damage awards involve awards for
intangible injuries, a matter "`peculiarly within a jury's ken,'"
Velazquez v. Figueroa-Gomez, 996 F.2d 425, 428 (1st Cir. 1993)

(quoting Wagenmann v. Adams, 829 F.2d 196, 215 (1st Cir. 1987)).

See, e.g., Anthony v. G.M.D. Airline Servs., Inc., 17 F.3d 490,

494 (1st Cir. 1994) (remand for remittitur; pain and suffering
damages excessive); De Leon Lopez v. Corporacion Insular de

Seguros, 931 F.2d 116, 125 (1st Cir. 1991) (damages to

grandfather stemming from switch of twins by hospital); Brown v.

Freedman Baking Co., 810 F.2d 6, 11 (1st Cir. 1987) (review of

damages for civil rights violation). In such cases,

[w]e accord broad discretion to the trial court's
decision to affirm the jury's award of damages because
of [the] court's greater familiarity with local
community standards and with the witnesses' demeanor at
the trial.

Nydam v. Lennerton, 948 F.2d 808, 810 (1st Cir. 1991) (citations

omitted) (suit involving, inter alia, police misconduct and false

arrest). Although we do not lightly reverse an award for
economic loss, the inquiry in such a case is much more closely
focused on whether there is adequate evidentiary support for the
amount awarded. See Havinga v. Crowley Towing and Transp. Co.,

24 F.3d 1480, 1489 (1st Cir. 1994); Redgrave v. Boston Symphony

Orchestra, Inc., 855 F.2d 888, 896 (1st Cir. 1988).

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problems at Catholic Memorial High School,10 but contends that no

other figures were provided to explain the additional $52,106

awarded by the jury. Our review turned up three additional items

for which the jury properly could have awarded compensation:

replacing gymnasium light frames, repairing a broken piano leg,

and replacing paneling in two rooms. The piano leg and light

frames were the subject of testimony by Rev. Sheehan, and the

need for repaneling was noted in Exhibit 58, to which the jury's

attention was directed.11

One more aspect of the Institute's harm warrants attention.

Air Safety concedes responsibility for the $12,770 cost of

repairing the gymnasium floor at Catholic Memorial. Kevin

Murphy, whose company did the floor repair, testified that the

process of sanding removes wood, and the gymnasium floor

therefore was, to some degree, in worse condition after the

repair than before the damage was done. When asked whether the

deficiency would limit the use of the floor in future years, he

responded that it would, "considerably down the road."

We believe this testimony permitted the jury to award

damages for the premature loss of use of the floor.

10 These are: $12,570 for gym floor repairs; $966 for
damaged books; $432 for damaged computer cables; $296 for damaged
phone wires; $1,630 for re-hanging curtains; $42,000 for wasted
salaries, and $28,000 for 14 weeks' lost bingo profits.

11 Although the paneling was not the subject of specific
testimony, and, unlike other items, no invoice for it was
included in the record, see Exhibit 65, we think it reasonable

for the jury to conclude, on the basis of Exhibit 58, that this
was damage for which Air Safety was responsible.

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Unfortunately, no value was placed on either this harm or the

three items of damage listed above. Without question, however,

the approximately $50,000 questioned by appellant is far in

excess of the appropriate amount. The evidence was that a new

floor would have cost $50,000 to $60,000; from that knowledge, we

are confident that compensation for reducing the old floor's

lifespan "considerably down the road" could not reasonably amount

to more than several thousand dollars. The other items, all of

which appear to be relatively minor, might generously add up to

$5,000.

Because our task is to view the evidence in the light most

favorable to the defendants, see Velazquez, 996 F.2d at 428, we

conclude that the record supports a maximum award of $95,000 for

all damages to the Institute. Thus, unless the Institute

consents to a remittitur of $43,000, Air Safety is entitled to a

partial new trial.

III. Exclusion of Summaries12

Air Safety sought to introduce into evidence a number of

summary exhibits in support of its claim for damages or quantum

meruit relief. Such exhibits may be admissible under Fed. R.

Evid. 1006, which provides:

The contents of voluminous writings, recordings, or
photographs which cannot conveniently be examined in
court may be presented in the form of a chart, summary,

12 Defendants' assertion that this issue was not preserved
for appeal is untenable. See McLaurin v. Fischer, 768 F.2d 98,

101 (1st Cir. 1985) ("[T]he law is well settled that an appeal
from a final judgment draws into question all prior non-final
rulings and orders.").

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or calculation. The originals, or duplicates, shall be
made available for examination or copying, or both, by
other parties at reasonable time and place. The court
may order that they be produced in court.

At issue in this case is the requirement in Rule 1006 that the

materials underlying a proposed summary exhibit be "made

available" to opposing parties. After a two-hour, mid-trial voir

dire hearing in which each of Air Safety's proposed exhibits was

considered individually, the court excluded most of them because

the documents from which the summaries were drawn had not been

seen by the defendants and were unavailable at the time of

trial.13

Air Safety asserts that the court erred in concluding that

the documents were inadmissible under Rule 1006.14 It claims

13 The supporting records at issue were those showing the
company's overhead costs, and were located in its home office in
Illinois.

14 A portion of Air Safety's argument seems based on an
assumption that the district court improperly excluded the
summaries because they were not supported by evidence
independently established in the record. Although the court at
one point indicated that it felt bound by the "already-in-
evidence" requirement because of language to that effect in a
First Circuit decision, United States v. Nivica, 887 F.2d 1110,

1125-26 (1989), the court recognized that such an approach
conflicted with the language of Rule 1006 giving the court
discretion to order production in court of the documents

underlying a summary. In any event, its decision ultimately was
based on a determination that the underlying documents had not
been "made available" to the defendants, and it therefore did not
need to rule on whether a summary based on records that were

available nonetheless must be excluded because they were
unsupported in the record.
We note, for the sake of clarity, that Air Safety is correct
that the evidence underlying Rule 1006 summaries need not be
admitted into evidence. See, e.g., United States v. Bakker, 925

F.2d 728, 736-37 (4th Cir. 1991); 5 Jack B. Weinstein & Margaret
A. Berger, Weinstein's Evidence, 1006[02], 1006-9 (1995);

Michael H. Graham, Federal Practice and Procedure 7031, at 959

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that it gave defendants copies of the challenged exhibits in

November 1992, and that they never asked during the year and a

half before trial to see the underlying material. Moreover,

defense counsel had signed two pretrial memoranda without noting

any problems with Air Safety's proposed exhibits. Air Safety

points out that the documents at issue easily could have been

brought to Boston for defendants' review had there been any

indication before the start of trial that defendants wanted to

see them. Thus, Air Safety contends that the records were "made

available" within the meaning of Rule 1006, and, to the extent

that they were inaccessible at trial, the defendants were to

blame. In Air Safety's view, defendants' trial objections

constituted an ambush and should have been dismissed as untimely.

We cannot agree. Although it appears that Air Safety left

the overhead records in Illinois in the reasonable belief that no

one was interested in them, the record indicates that the company

fell short of meeting its responsibility under Rule 1006. Air

(1992). Indeed, such an interpretation of the rule would negate
its explicit grant of discretion to the trial judge to order the

underlying documents produced in court.
Although in Nivica and a subsequent case relying on it,

United States v. Sawyer, 85 F.3d 713, 740 (1st Cir. 1996), we

stated that Rule 1006 summaries must be based upon "evidence
independently established in the record," the language in both
cases was dictum because the relevant evidence there had been
admitted. The requirement of prior admission actually applies to
a different sort of summary: one used as a jury aid to summarize
complex or voluminous information already in the record. See,

e.g., Bakker, 925 F.2d at 736-37; Weinstein's Evidence, at

1006[07], 1006-21. In such cases, the summary is not itself
evidence, Bakker, 925 F.2d at 736; Weinstein's Evidence, at

1006[07], 1006-21-23, and the court's concern is to ensure that
the jury is not misled or confused by selective emphasis,
Weinstein's Evidence, at 1006[07], 1006-21-22.

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Safety apparently submitted only a skeletal version of its

summary exhibits in November 1992, perhaps without designating

them as summaries,15 and first provided a comprehensive version

in June 1994. In the interim, all parties had signed pretrial

memoranda that Air Safety took as a sign that defendants saw no

problems with its exhibits. Defendants, however, intended no

such acquiesence and, once the nature of the damages exhibits was

clear to them, sought to examine the underlying documents.

In concluding that Air Safety had failed to lay a proper

foundation for the summaries, the district court did not dispute

that the company willingly would have provided the underlying

documents -- if requested -- at any time during the lengthy

pretrial period. The court ruled, however, that such passive

availability did not meet Air Safety's obligation. Near the

conclusion of the voir dire hearing, it summarized its ruling:

I don't think that it is enough to say that the
documents have been available or could have been
available or were available when they were not
identified as the source for these summaries. What is
important in the discovery context is one thing, but
once the discovery comes down to trial and somebody
prepares a summary, it seems to me that the person
providing the summary must say now these documents,
this summary is a summary of the following documents
and here they are.

15 Defendants claim that the exhibits provided in 1992,
described by Air Safety's counsel as "prototypes," contained
little information. Indeed, the Institute's counsel described
them during the voir dire hearing as "blanks" that bore headings,
but no numbers and few subheadings. Those preliminary documents
apparently are not in the appellate record. The Institute's
counsel additionally asserts that the challenged exhibits were
identified as "summaries" for the first time at the final
pretrial conference on June 30; the next day, she sent a letter
requesting the underlying documents.

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We think this is a correct and sensible construction of Rule

1006's "made available" requirement. As the court recognized,

Rule 1006 operates independently of the discovery rules, see

Weinstein's Evidence 1006[04], at 1006-16, and the failure to

request or obtain the documents during discovery does not negate

a party's "absolute right to subsequent production of material

under Rule 1006, should that material become incorporated in a

chart, summary, or calculation." Id.; see also Square Liner 360

Degrees, Inc. v. Chisum, 691 F.2d 362, 376 (8th Cir. 1982).

Common sense dictates that this guaranteed access, designed to

give the opponent the ability to check the summary's accuracy and

prepare for cross-examination, see, e.g., Chisum, 691 F.2d at

376-77; United States v. Smyth, 556 F.2d 1179, 1183 (5th Cir.

1977); Weinstein's Evidence 1006[04], at 1006-15, must include

unequivocal notice of the other party's intent to invoke Rule

1006. It seemingly was the lack of such notice that gave rise to

the misunderstanding and confusion here.

Thus, to satisfy the "made available" requirement, a party

seeking to use a summary under Rule 1006 must identify its

exhibit as such, provide a list or description of the documents

supporting the exhibit, and state when and where they may be

reviewed.16 Here, Air Safety merely assumed that the defendants

were uninterested in reviewing the overhead records that it

believed were the obvious -- though not explicitly identified --

16 This assumes, of course, that the "when" and "where" are
reasonably convenient for the opposing party.

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source for its proposed damage summaries. In these

circumstances, the district court committed no reversible error

in concluding that Air Safety had not satisfied the "made

available" foundation requirement for admitting the exhibits.

Moreover, we doubt that the exclusion of this material

significantly prejudiced Air Safety. The district court allowed

Air Safety to use the exhibits as chalks, and they were relied on

heavily during the testimony of its damages expert. The expert,

Dennis Staats, testified to the specific amounts contained in the

summaries while the jury was able to peruse the chalks. Although

the district court repeatedly reminded the jury that the

testimony -- not the summaries -- was the evidence, we think the

jury was more likely to have understood this as a caution about

the technicalities of litigation than as a suggestion that the

calculations in the chalks were untrustworthy. The numbers,

after all, also were contained in the testimony. To be sure,

exclusion of the summaries from the jury room required greater

reliance on memory. Air Safety, however, makes no specific

argument -- even a speculative one -- showing how the quantum

meruit figures might have been more accurate had the jurors had

access to the excluded exhibits during deliberations.

We therefore affirm the court's judgment with respect to the

quantum meruit award.

IV. Conclusion

The district court's judgment on negligence damages against

Air Safety is vacated, and the case is remanded for a new trial

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on that issue unless defendants agree to remittiturs of

$201,278.50 for the RCAB and $43,000 for the Institute. Having

found no error in the court's exclusion of Air Safety's proposed

damages summary exhibits, we affirm the quantum meruit award for

Air Safety as determined by the jury.

Affirmed in part, vacated and remanded in part. Each party

to bear its own costs.

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