USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 97-1361

YVONNE GIL-DE-REBOLLO,

Plaintiff - Appellant,

v.

THE MIAMI HEAT ASSOCIATIONS, INC., ET AL.,

Defendants - Appellees.

____________________

Nos. 97-1622
97-1830

YVONNE GIL-DE-REBOLLO,

Plaintiff - Appellee,

v.

THE MIAMI HEAT ASSOCIATIONS, INC., ET AL.,

Defendants - Appellants.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jos

Antonio Fust , U.S. District Judge]

___________________

____________________

Before

Lynch, Circuit Judge,

_____________

Cyr, Senior Circuit Judge,

____________________

and DiClerico, Jr.,* District Judge.

______________

____________________

Of the District of New Hampshire, sitting by designation.

_____________________

Kevin G. Little, Jr., with

____________________

whom David Efr n and Law Offices

___________
___________

David Efr n were on brief for appellant.

___________
Ricardo F. Casellas, with whom
____________________

Rodr guez & Casellas was on

____________________

brief for appellees.

____________________

March 5, 1998
____________________

-2-

DICLERICO,
DICLERICO,

District Judge.
District Judge.
______________

The

plaintiff-appellant,

Yvonne Gil Bonar

de Rebollo, was injured

Wes Lockard, who

portrays "Burnie," the mascot

appellee, Miami Heat Limited Partnership.1

a tort action

seeking damages.

awarded the plaintiff $10,000 but

verdict was most likely

it aside.

After a

In

by defendant-appellee,

of co-defendant-

The plaintiff brought

the first

trial, the

jury

the trial court found that the

the result of bias or compromise and set

second trial, the jury awarded the

plaintiff

$50,000.

The

district court also

which they incurred after an offer

awarded costs

to the plaintiff

appeal, the plaintiff

the trial

cross-appeal,

judge

costs

of judgment had been made and

as a prevailing party.

In this

contends that she should have been granted

a third trial because the

and

awarded the defendants

$50,000 damage award was

improperly excluded

insufficient

evidence.

In

their

the defendants contend that (1) the district court

erred in granting

a second trial;

(2) given

the fact that

the

plaintiff ultimately received less than the amount the defendants

had

proposed in

an

offer

of judgment,

they

are entitled

to

attorney's fees incurred after the offer; and (3) the trial court

should not

have awarded the

plaintiff costs

offer

judgment.

agree

of

We

with

the

incurred after

district

an

court's

____________________

Florida Basketball Associates, Inc. is also a defendant to the

action.

The record does

defendant Miami
Basketball
distinguished
refers

to

not make clear the relationship between

Heat Limited

Associates,
between
the

Miami

Basketball Associates,

Partnership and

Inc.,
them
Heat
Inc.

but

the

on appeal.
Limited

defendant Florida
parties

have

Therefore,
Partnership

throughout the

and

remainder

not

the court

Florida
of

this

opinion collectively as "the Heat."

-3-

disposition of the case in all respects with the exception of its

ruling awarding costs to the plaintiff incurred after an offer of

judgment.

Therefore, we affirm in part and reverse in part.

Factual and Procedural Background2

Factual and Procedural Background
_________________________________

On

October

21,

1994,

the

plaintiff

attended

an

exhibition basketball game between the Miami Heat and the Atlanta

Hawks at the Roberto

front

row as

tickets to

Clemente Coliseum.

part of

the game.

a group

She

that had

was seated in

the

received complementary

She had attended another

exhibition game

under similar circumstances the prior year.

During

Burnie, approached

time-out,

defendant

the plaintiff and

selected her at random to participate

perform as

Lockard,

dressed

grabbed her hand.

as

He had

in a routine he planned to

entertainment during the time-out.

When he attempted

to pull her onto the floor, she

resisted and loudly told him no.

He persisted, however, grabbing her

left arm with both hands and

pulling, because in his experience people often were reluctant at

first

but

party, the

later changed

their

minds.

plaintiff's purse strap

her seat

and was

efforts.

He pulled the

Unbeknownst

to either

had fallen over the

providing additional

resistance to

back of

Lockard's

plaintiff with such force, however, that

her purse strap broke and as a result she surged forward, falling

to the

floor.

Lockard took the plaintiff's sudden movement as a

____________________

Because the plaintiff

has challenged the sufficiency

damages awarded by the second

relevant to damages

of the

jury, the court recounts the facts

in the light most favorable

to the verdict.

See Molloy v. Blanchard, 115 F.3d 86, 88 (1st Cir. 1997).

___ ______
_________

-4-

sign

that

she had

dragged her by the

changed

her

mind about

participating

arm to the center of the court.

When he saw

that the plaintiff still did not wish to participate, he

further coerce her.

off

the

court

She stood up, composed

while

plaintiff was extremely

prior

to

its

he

completed the

She

felt

did not

herself, and walked

routine

upset by the incident and

conclusion.

and

as though

alone.

The

left the game

she

had been

humiliated in front of the entire crowd.

The plaintiff suffered both

as a result of

the incident.

physically and emotionally

She felt pain in

shoulder as well as pain to a lesser extent

She also

suffered a

bruise on

however,

break

bones or

After arriving

any

at home, the

applied ointment to her body.

orthopedist and

injuries.

She

prescribed

for

her left

suffer

her.

throughout her body.

thigh.

any

She did

not,

neurological damage.

plaintiff took pain

medication and

A few days later, she consulted an

a physiatrist

undertook

her left arm and

in connection

physical

Surgery

was

with her

physical

therapy

which

had

neither

recommended

been

nor

undertaken.

The plaintiff

has been

tendonitis in her left shoulder,

diagnosed with

post-traumatic

the primary symptom of which is

pain.

She

shoulder,

activities.

continues

which

The

to experience

affects

her

when

plaintiff takes

pain in

she

her left

engages

pain medication

arm and

in

everyday

on a

regular

basis, and her condition is not expected to improve further.

plaintiff's condition has required her

The

to modify her behavior in

-5-

order

to avoid

tasks and

activities that

will exacerbate

the

pain,

particularly

heavy

lifting

and

certain

repetitive

movements.

However, she has a pre-existing condition in her back

that

periodically

also

causes

previously sought treatment.

her

pain

for

which

she

had

This pre-existing condition imposed

similar restrictions on her ability to perform certain activities

such as lifting heavy objects.

The

emotional

distress.

profoundly

being,

She

negative effect

which

conservative

she

with a

feels

that

on her

attributes

upbringing.

and feels that

incident.

plaintiff consulted

The

in

psychiatrist

the

mental

part

event

has

and emotional

to

her

had

well-

traditional

plaintiff avoids large gatherings

her privacy and dignity have been

She now takes

for her

injured by the

anti-anxiety medications on

a regular

basis.

The

defendants' expert

testified

that

the emotional

difficulties experienced by the plaintiff were not permanent, but

instead

represented a normal

Experts for

does

not

disorder.

the

both parties

rise

to

the

In addition to

plaintiff

reaction to an

agree that

level

of

adverse situation.

the plaintiff's

recognized

psychological

the distress caused by

the incident,

had pre-existing

condition

emotional

stressors, including

marital difficulty, that could account for some of her dysphoria.

Subsequent

to

the

incident,

criminal charges against Lockard.

the people

who she

guilty of misdemeanor

felt

plaintiff

brought

She felt the need to confront

had wronged

battery.

the

her.

The plaintiff

-6-

Lockard was

found

also brought this

civil

action

employer.

against

both

Lockard

and

Her claim, brought pursuant

the

Heat,

Lockard's

to the court's diversity

jurisdiction, alleged that Lockard had negligently injured her in

violation

of Puerto

Rico law

and that

the Heat,

as Lockard's

employer, was responsible for that injury.

Prior to the

evidence

of

Lockard's

civil trial, the

criminal

trial court ruled

conviction

prejudicial and precluded the plaintiff

would

be

that

unduly

from introducing it.

On

October

first

30, 1996,

time.

After

deliberation, the

$100,000 in

liable and

because

the plaintiff's

case went

approximately

jury

returned

one

the plaintiff

judge

only a theory

the

jury

on the

hours

of

amount

of

the verdict

of respondeat

and thus the Heat could not

liable unless Lockard was

reinstructed

for the

only the Heat

judge rejected

superior liability against the Heat,

have been found

the

but it found

The trial

had pursued

and one-half

verdict in

favor of the plaintiff,

not Lockard.

to trial

liable as well.

issue

of

liability

The

and

directed it to continue deliberating.

After another hour,

requesting

guidance

on

plaintiff was entitled.

the

the jury sent a note

amount

of

damages

The trial judge instructed

to the court

to which

the

the jury to

review

The

the instruction on

jury deliberated

returned a

damages the court

for approximately

verdict that held

had already given.

another

both Lockard and the

hour and

then

Heat liable.

However, the jury awarded the plaintiff only $10,000 in damages.

-7-

The plaintiff

filed a motion

for a new trial

and for

relief from judgment on November 14, 1996.

the

district

court ruled

that

the

On December 16, 1996,

jury's

verdict

was

most

probably an impermissible verdict based on compromise or bias and

granted a

new trial.

Partnership, 949
___________

court

reasoned

reduction

selected

of the

Gil de Rebollo v.
_______________

F. Supp.

62, 64-65 (D.P.R.

that three

possibilities

damage award

initially:

reconsidered its

deliberate

See
___

(1)

decision on

further;

unaccountable for his

(2)

the

jury

may

damages when it

jury

may

1996).

The trial

explained the

to one-tenth

the

Miami Heat Ltd.

________________

have

the figure

have

jury's

it had

rationally

was sent

back to

thought

Lockard

interaction with the plaintiff

but wanted

to compensate her anyway from the corporate deep pocket, and when

confronted with the requirements of respondeat superior, the jury

lowered the amount of damages

which Lockard might be required to

pay, reflecting an improper compromise;

thought

that the

plaintiff had

or (3) the jury may have

suffered

$100,000 damages

but

tried to shield Lockard from having to pay because of an improper

bias in

his

favor, and

when it

Lockard,

it

lowered the

amount

liability would be

minimized.

realized it

of

the

See id.
___ ___

could not

verdict so

at 64.

The

shield

that

his

court found

that the latter two alternatives, both improper, were more likely

than the first, which was proper,

and granted a new trial.

See
___

id. at 65.
___

The

second trial commenced

February 14, 1997, the jury returned

on February 10,

1997.

On

a verdict for the plaintiff

-8-

in the

amount of $50,000, finding that both Lockard and the Heat

were liable.

The plaintiff again filed a motion for a new trial,

asserting that the damages were insufficient, but the trial court

denied the motion.

During the course

several attempts

of the litigation, the

to settle their

plaintiff's initial

demand in the

parties made

dispute without a trial.

case was for $1,000,000.

The

On

October 7, 1996, the defendants

under

Federal Rule

of Civil

judgment

entered against

plaintiff

rejected the

$600,000

and a

made a written offer of judgment

Procedure 68

them in

offer

("Rule 68")

the amount

and countered

public apology.

The

to have

of $80,000.

with

The

a demand

defendants

of

rejected this

proposal and the first trial began on October 30, 1996.

After the

offer of judgment

first trial,

$180,000.

The

The

the offer and countered with

the defendants rejected.

the defendants made a

$100,000.

made a

second

on January 14, 1997, in the amount of $70,000.

The plaintiff rejected

$250,000, which

the defendants

On January

third offer of judgment

plaintiff also

rejected

23, 1997,

in the amount

that offer,

$50,000 verdict obtained by the

a demand of

of

demanding

plaintiff in the

second trial was less than all three offers of judgment.

After

defendants

the second trial, the district court awarded the

$8,271.71 for

costs

judgment pursuant to Rule 68.

for attorney's

fees under

incurred

after

the

offer

of

It denied the defendants' request

Puerto Rico Rule

44.1 ("Rule 44.1"), finding that

-9-

of Civil

Procedure

the plaintiff had not conducted

her case with temerity.

a prevailing

The court awarded the plaintiff costs as

party under Federal

Rule of Civil Procedure

54 in

the amount of $7,894.84.

At

the

plaintiff filed

conclusion

a timely

of

this

appeal.

The

legal

imbroglio,

defendants have

the

raised

several issues on cross-appeal.

Discussion
Discussion
__________

The parties raise the following

the defendants

by

claim that the trial court

setting aside

granting a new

verdict

issues on appeal:

the $10,000

verdict

abused its discretion

in the

trial; (2) the plaintiff asserts

of $50,000 damages in

(1)

first trial

and

that the jury's

the second trial was insufficient

and the trial court therefore abused its discretion by failing to

grant her motion for a third trial; (3) the plaintiff claims that

the

trial

court

impermissibly excluded

criminal misdemeanor

that the

failure

trial court

to award

conviction; and

erred in

attorney's

evidence

(4) the

its award

fees.

of Lockard's

defendants assert

of costs

We discuss

and in

these

its

claims

seriatim.
________

I.

Grant of the Second Trial

_________________________

The

second trial

trial court granted

after it

properly reconsidered

more likely

argue that

verdict and

had acted

the

the plaintiff's motion

found that the

the amount of

jury possibly

damages to be

for an improper

trial court

erred by granting

should

reason.

have accepted

for a

could have

awarded, but

The defendants

the

the plaintiff's motion for

$10,000

a new

-10-

trial.

The

court, they

choose among the

As

long as

should not

have endeavored

possible explanations for the

there was

conduct that was

urge,

plausible explanation

to

jury's behavior.

for the

permissible, the defendants contend,

jury's

the trial

court should not have granted a new trial.

This

argument is unpersuasive.

See Phav v. Trueblood,

___ ____
__________

Inc., 915
____

reviewed

F.2d 764,

only

766 (1st

for abuse

of

Cir. 1990)

discretion).

(denial of new

As

the

trial

defendants

acknowledge, First Circuit precedent

distinguishes between cases

where a jury's verdict is challenged

as improper based only on a

damage

award that allegedly fails to

to the

evidence of

bear any rational relation

the damages presented

at trial,

see, e.g.,
___ ____

Correa v. Hospital San Francisco, 69 F.3d 1184, 1197-98 (1st Cir.

______
______________________

1995) (verdict

alleged to

Ct. 1423 (1996); Milone

______

be excessive),

cert. denied,
____________

v. Moceri Family, Inc., 847

___________________

(1st Cir. 1988)

(verdict alleged to be insufficient),

where

some evidence

there is

factors other

than the

of an

amount of the

F.2d 35, 37

improper verdict

damage award,

116 S.

and cases

based on

see, e.g.,
___ ____

Skinner v. Total Petroleum, Inc.,

_______
_____________________

859 F.2d 1439, 1446 (10th Cir.

1988), cited with approval in Phav, 915 F.2d at

_______________________ ____

rel. Mekdici
____________

v. Merrell Nat'l Lab., 711

___________________

Cir. 1983) (same).

is

based

solely

F.2d 1510,

Where the allegation of

on

the

amount

of

768; Mekdici ex
__________

the

1514 (11th

an improper verdict

damage

award,

circumstances under which

a trial court

are

e.g., CIGNA Fire Underwriters Co. v.

____ _____________________________

more limited.

See,
___

MacDonald & Johnson, Inc.,

__________________________

86 F.3d 1260,

-11-

may overturn a

the

1267 (1st

verdict

Cir. 1996)

(grant

of a

new

calculable and

trial appropriate

damage award

where

damages were

exceeded maximum

value of

easily

damages

claimed and did not take into account offset to damages); Torres_______

Troche v.
______

Cir.

Municipality of Yauco, 873 F.2d

______________________

499, 501 &

n.6 (1st

1989) (suggestion that allegedly low damage award indicated

compromise

verdict was speculation

not meeting heavy

burden of

showing entitlement to new trial).

However, where evidence of an

improper verdict exists other than

the amount of the jury award,

such as when a jury

manner,

the trial

answers special questions in an inconsistent

court's discretion

to grant

a new

trial is

broader.

In

circumstances

amount of

such

cases the

surrounding

the damage

court

the

jury's

cases

defendants

where the

allegedly insufficient

of

the

including

the

distinction

and cases

compromise, but they

this case the

the

whether or

a compromise

damage award

case as falling into the

However, in

verdict,

of

not the

See Phav, 915 F.2d at 768-69.3

___ ____

acknowledge

only evidence

evidence indicates a

consider all

award, in determining

jury reached an improper verdict.

The

can

between

verdict is

an

where additional

attempt to cast

this

former rather than the latter category.

trial court's

determination did

not

turn solely on the amount of the verdict that the jury ultimately

returned.

initial

Rather,

the ten-fold

award of damages

reduction by

and the circumstances

the jury

of its

surrounding its

____________________

Prior First

proposition

Circuit

propounded

cases,
by

the

however,

do not

defendants that

endorse
an

the

inadequate

damage award is an indispensable element of a compromise verdict.

See Phav,
___ ____

915 F.2d at

768-69 (inadequate damages

are potential

evidence of compromise verdict, as are additional factors).

-12-

determination of Lockard's liability

for

provided the primary

the trial court's determination that

returned was motivated

by compromise or

basis

the verdict as finally

sympathy.

The

verdict

form ultimately

inconsistency

completed by the

because it

jury was free of

held Lockard

and the Heat

$10,000 damages suffered by the plaintiff.

of events preceding

trial court

liable for

However, the sequence

that verdict was properly considered

as an indication

based on compromise or

jury

any internal

bias.

that the jury reached

See id. at 768

___ ___

by the

the verdict

(odd chronology of

deliberations one "telltale sign of a compromise verdict").

Therefore,

the trial

court had

exercising its discretion

more latitude

was the alleged insufficiency of

Mekdici, 711 F.2d

_______

case in

to overturn the jury's verdict than it

would have had in a case where the only basis

new trial

in this

for the grant of a

a damage award.

See
___

at 1513, cited with approval in Phav, 915 F.2d

______________________ ____

at 768.

The

trial court determined that the sequence of events

leading up to the

likely

jury's final verdict in

indicated

improperly.

the

jury

reached

its

did not find Lockard liable.

most

verdict

in damages

A short time

being told to deliberate further and requesting additional

guidance the

jury determined that Lockard was liable but reduced

the amount of damages to $10,000.

it

had

The jury initially had assessed $100,000

against the Heat but

after

that

the first trial

was logical

wanted to

for the trial

give the

Based on the jury's behavior,

court to

conclude that

plaintiff something but

-13-

it did not

the jury

want to

hold Lockard personally liable for a $100,000 award.

indication

that the

timing of the

abused

trial

questions, and the

his discretion in

Phav, 915 F.2d

____

judge, who

at 766.

observed the

results of the

arriving at this

We

There is no

trial, the

deliberations,

determination.4

therefore decline

to overturn

See
___

the

trial court and to reinstate the initial $10,000 verdict.

II.

Insufficiency of the Jury Verdict

_________________________________

The plaintiff's main

contention on appeal is

that the

trial court erred by failing to grant

following

the second

award

$50,000

of

comparatively more

verdict where the

an allegedly

verdict, on

is

the grounds

insufficient.

difficult

her motion for a new trial

As

to justify

that the

noted

above,

overturning

only evidence that something has

insufficient damages award.

free to run the whole gamut

damage

it

is

jury's

gone awry is

Indeed, the

of euphonious notes -- to

jury "is

harmonize

the verdict at the highest or lowest points for which there

is a

sound evidentiary predicate, or anywhere in between -- so long as

the end result does

strike such a

not violate the conscience

dissonant chord that justice would

the judgment permitted to stand."

best,

plaintiff's

verdicts

of the court

be denied were

Milone, 847 F.2d at 37.

______

in personal

injury

or

cases

"At

are not

models

of

mathematical

particular award

exactitude.

Thus,

the fact

that

is a few dollars long or short would rarely (if

ever) translate into a manifest

miscarriage of justice."

Id. at
___

____________________

In

reaching

this

decision we

intend

no

comment

on the

sufficiency of the $10,000 damage award.

-14-

41 n.7.

We

view the evidence in the light most favorable to the

jury's verdict,

see Molloy
___ ______

v. Blanchard, 115
_________

F.3d 86,

88 (1st

Cir. 1997), and will only overturn the jury's award and the trial

judge's

ensuing

refusal to

grant

new

trial for

abuse

of

discretion, see Correa, 69 F.3d at 1197.

___ ______

The

record

demonstrates

that

most

suffered by the plaintiff were intangible.

normal

of

the

damages

"An appellate court's

disinclination to second-guess a jury's evaluation of the

proper amount of damages is magnified where, as here, the damages

entail a monetary

valuation of intangible losses,

and the trial

judge, having seen and heard the witnesses at first hand, accepts

the

jury's

appraisal."

Id.
___

Even

complaints uncritically, which the jury

her

primary claims

for damages

accepting

the plaintiff's

was not required to

are that

(1) she

do,

suffers from

pain; (2) the quality of her life has been reduced because of her

pain and because of the measures she must take to avoid pain; and

(3) her

dignity, self-image, and

sense of well-being

have been

adversely affected by the incident.

In addition to the intangible nature of the plaintiff's

injuries, the

evidence in this

that her injuries

case permitted the jury

were not as severe

could also have found that

as she claimed.

to find

The jury

most of the plaintiff's physical pain

was caused not by the incident in question but by the plaintiff's

failure to

which

injury.

obey her doctor's

orders not to move

heavy objects,

orders were given in connection with her pre-existing back

The jury

was

free

to

-15-

disbelieve

as

much

of

the

plaintiff's expert and lay testimony as it wished.

plaintiff has

provided no support

jury's $50,000 verdict was so

verdicts, based

constituted

on

court did not abuse

new trial.

for the proposition

that the

far beyond the range of acceptable

the evidence

a manifest

In short, the

presented

miscarriage of

its discretion by

at trial,

justice.

The

that

it

district

denying her motion for

III.

The

criminal

Failure to Admit Evidence of Lockard's Conviction

_________________________________________________

trial

court

misdemeanor

ruled

conviction

that

evidence

was inadmissible

of

Lockard's

because

prejudicial effect substantially outweighed its probative

See Fed.
___

R. Evid. 403.

was error.

evidence

The plaintiff asserts

its

value.

that this ruling

We review the district court's determination that the

of Lockard's conviction

abuse of discretion.

should have been

See Kowalski v.
___ ________

excluded for

Gagne, 914 F.2d

_____

299, 306

(1st Cir. 1990).

The plaintiff places undue reliance on Kowalski, a case

________

which stands

discretion

for the

proposition

to admit evidence

that the

such as this.

district court

See
___

id.
___

has

However,

Kowalski
________

abused

does not

its discretion

evidence.

decision

support

the notion

in this

case

that the

by failing

Indeed, as Kowalski makes clear,

________

that the

evidence was

the

jurors

to admit

substantially more

were

evidence to gauge the seriousness

-16-

this

the district court's

than probative was well within its discretion.

Here,

district court

presented

prejudicial

See id.
___ ___

with

sufficient

of Lockard's actions and their

effect

on the

plaintiff

plaintiff.

and other

In

addition to the

witnesses,

the episode

testimony of the

was recorded

by a

television camera and the tape was made available for the jury to

watch.

The parties

mascot Burnie

stipulated that Lockard

throughout the

evidence of Lockard's criminal

the

incident.

Under

incident.

The

was portraying the

jury did

conviction to assess his

the circumstances, admission

not need

role in

of Lockard's

criminal conviction would have allowed the jury to substitute the

judgment reached in the criminal proceeding for its own.

Furthermore, even assuming

arguendo that the exclusion

________

of the evidence was error, the error had no effect on the outcome

of the

case.

The only

issue on which

Lockard's conviction was

probative was

injury.

Both

injuries.

issue of

the

issue of

his liability

juries found

Lockard's

for the

Lockard liable for

conviction had

the plaintiff's injuries

relevance

plaintiff's

the plaintiff's

neither to

nor to the amount

the

of damages

necessary to compensate her for those injuries.

The

plaintiff's

reliance

on

Kowalski
________

for

the

proposition that a criminal conviction is, as a matter of course,

relevant to

the issue of

also misplaced.

death statute

Kowalski
________

dealt with

which provides

with reference to

914 F.2d at 306.

the crime of

damages in an

a Massachusetts

that damages

the degree of [the

For

ensuing civil trial

should be

is

wrongful

"assessed

defendant's] culpability."

that reason, the defendant's conviction of

second degree murder

was relevant to the

issue of

culpability,

and

thus the

issue

of

damages.

See
___

id.
___

The

-17-

plaintiff's cause of

entitled only

to compensatory damages.

district court did

evidence

action here was for negligence

For these

not abuse its discretion by

of Lockard's

entitled to a new trial.

conviction,

and

the

and she was

reasons, the

failing to admit

plaintiff

is

not

IV.

The Award of Costs & Failure to Award Attorney's

__________________________________________________
Fees
____

The trial court

after their

first offer

defendants their

had

not

been obstinate

not obstinate

judgment.

that

award attorney's

judgment; (2) the

awarded

at any

the

declined to

It found that

point in

(1) the

fees

plaintiff

costs

incurred after

the plaintiff

after

We discuss these claims seriatim.

________

In

court erred

by

the offer

of

the plaintiff was

(3) the court erred

incurred

award the

prevailing party.

district

court erred in finding that

under Rule 44.1; and

incurred

the proceedings.

the plaintiff costs as a

defendants contend

failing to

of judgment but

attorney's fees.

addition, it awarded

The

awarded the defendants costs

their

when it

offer

of

A. Attorney's Fees Incurred After the Offer of Judgment

________________________________________________________

The trial

they

court declined the defendants'

be awarded attorney's

offer of judgment.

fees that were

Resolution of this

the

relationship between two

68 and

incurred after their

The defendants assert that it was error to do

so.

Rule

request that

Puerto Rico

issue requires that we carefully analyze

Rule

rules of civil

35.1, both

govern the situation at hand.

-18-

procedure, Federal

of which

ostensibly

In

Erie Railroad Co. v.

__________________

Supreme Court

set forth the

courts in diversity

the United

general doctrine

by which

State

federal

cases determine whether state or federal law

will apply to a controversy.

v. Plumer, the
______

Tompkins,
________

See 304 U.S. 64 (1938).

___

Supreme Court set forth the

In Hanna
_____

test for determining

how a court should choose between a federal procedural rule and a

conflicting

(1965).

the

state

Where

substantive rule.

See
___

380

a Federal Rule is "sufficiently

U.S. 460,

471

broad to control

issue" but conflicts with a state law, the court applies the

Federal

Rule unless

it

transgresses the

limits

of the

Rules

Enabling Act, 28 U.S.C.

2072, or the Constitution.

Id. at 471___

72; see also Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29_________ __________________
___________

31 (1988).5

In most cases where a conflict

exists, the Federal

____________________

Since the Hanna decision, the Supreme Court has clarified the
_____

focus of the

inquiry for determining whether

Federal Rule conflict.

"direct collision."
U.S.

740, 749-51

See, e.g.,
___ ____

Walker v. Armco Steel Corp., 446

______
_________________

at

751

&

380 U.S.

at 472.

however, that the "direct

does not involve the narrowest

Federal Rule.

Subsequent

collision" analysis

possible reading of the

See Stewart, 487 U.S.

___ _______

n.9.

In Stewart,
_______

the

cases at

question
inquiry

times

Supreme

Court

stated

have referred

to the

at this stage of the analysis as an

into

collision"

whether

between

relevant

at 26 n.4; Walker, 446 U.S.

______

following:

Our

and a

Early cases indicated the necessity for a

(1980); Hanna,
_____

cases make clear,

a state law

there

state and

is

"direct

federal

law.

the

Logic

indicates,

reading

of the

that this

however,

coextensive

relevant passages

language is

that federal

and

not meant

law and state

and

careful
confirms,

to mandate

law be perfectly

equally applicable

to

the

issue at hand; rather, the "direct collision"

language, at least where the applicability of
a federal

statute is at issue, expresses the

requirement
sufficiently

that
broad

the
to

federal
cover the

statute

be

point

in

-19-

Rule will be applied because

the Federal Rules are presumptively

valid.

See Burlington N. R.R. v. Woods, 480 U.S. 1, 5 (1987); 17

___ __________________
_____

James Wm. Moore

et al., Moore's Federal Practice

________________________

124.03[1] (3d

ed. 1997).

Rule 35.1 of the

("Rule

35.1")

Puerto Rico Rules of Civil

addresses offers

of judgment.

It

Procedure

provides, in

pertinent part, as follows:

At

least ten

(10) days

before

the trial

begins, a party defending against a claim may

serve

upon the

adverse

party

allow judgment

to be taken

the

property

money

or

specified

in

accrued.

. . .

and]

his

or

offer,
If

the judgment

against him
to
with

[the offer
finally

an offer

the

to
for

effect

costs

then

is rejected

obtained by

the

offeree is not more favorable than the offer,

the offeree must pay

the costs, expenses and

attorney's fees incurred

after the making of

the offer.

P.R. Laws Ann. tit. 32, App. III, Rule 35.1 (1983).

The Supreme

Court of

when

Puerto Rico has

held that

the plaintiff/offeree

this rule applies

prevails

at

trial

and

not only

attains

verdict that is less than the offer of judgment but also when the

plaintiff/offeree loses the suit in its entirety.

v.

Keltron Corp.,
_____________

823 F.2d

700,

701 (1st

See Ganapolsky
___ __________

Cir. 1987)

(citing

____________________

dispute.

It

supremacy

of federal

because there

would make

is

no

law to

no state

sense for

the

wane precisely
law directly

on

point.

487 U.S. at 26 n.4 (citations omitted).

cases

confirm

that

potential conflict is
broad

the

relevant

inquiry

whether the Federal Rule

to control the issue."

Walbrook Ins. Co.,

_________________

Subsequent First Circuit

for

evaluating

is "sufficiently

See Commercial Union Ins. Co. v.

___ __________________________

41 F.3d 764, 772

(1st Cir. 1994);

Maine Med. Ctr., Inc., 14 F.3d 684, 689 (1st Cir. 1994).
_____________________

Daigle v.
______

-20-

Hermandad Unida de Carpinteros y Ebanistas de America v. V. & E.

______________________________________________________
_______

Eng'g Constr. Co., 115 D.P.R. 711 (1984)).

_________________

Rule 68 provides, in pertinent part, as follows:

At
trial

any time more

begins,

claim may
offer to

serve

than 10 days

a party

defending

upon the

before the
against a

adverse party

allow judgment to be

an

taken against

the defending party for the money or property

or to the effect specified in the offer, with

costs then accrued.
rejected and]

. . .

If [the

the judgment

offer is

finally obtained

by the offeree is not more favorable than the

offer,

the

offeree

must

pay

the

costs

incurred after the making of the offer.

Fed. R. Civ.

P. 68.

of

Instead, it incorporates

"costs."

found in

Rule 68 does not itself supply a definition

the relevant

substantive statute

whose substantive law

definition

of

applies to the case.

"costs"

includes

attorney's

offer of

judgment must

Chesny, 473 U.S.

______

in

fees,

the

relevant

attorney's fees

be paid by

1, 9 (1985).

when a plaintiff/offeree

offer of judgment,

the definition of "costs"

of the

jurisdiction

Therefore, when the

substantive

incurred

the offeree.

See
___

statute

after the

Marek v.
_____

In addition, Rule 68 applies only

obtains an award that is

and not when the

less than the

plaintiff/offeree loses the

suit in its entirety.

See
___

Delta Air Lines, Inc. v. August,

_____________________
______

450

U.S. 346, 352 (1981); Ganapolsky, 823 F.2d at 701-02.

__________

Rule

attorney's

68

would

fees in this

not allow

case unless the

law defines attorney's fees

U.S. at 9.

the

defendants

underlying substantive

as a part of costs.

See Marek, 473

___ _____

The substantive law underlying this action

Rico's law of negligence.

See P.R. Laws Ann. tit. 31,

___

-21-

to recover

is Puerto

5141 ("A

person who by an act or omission causes damage to another through

fault

or negligence

done.").

Puerto

except

costs

obliged to

Rico law makes

attorney's fees as

Rule 44.1(a)

shall be

necessarily

be

allowed

incurred in

by law or

by the

prosecuting

of

Compare
_______

prevailing party,

by these rules.

court

an

damage so

the award

in such cases.

allowed to the

when otherwise directed

which may

no provision for

any part of "costs"

("Costs shall be

repair the

are those

action

or

The

expenses

proceeding

which, according to law or to the discretion of the court, one of

the parties should

("In

reimburse to the other."),

the event any party or

with Rule 44.1(d)

____

its lawyer has acted obstinately or

frivolously, the

court shall,

person the payment

in its

judgment, impose on

of a sum for attorney's fees

such

which the court

decides corresponds to such conduct.").

The only other

supply a

definition of

Rule 35.1 itself.6

"costs, expenses and

App. III,

and

fees

fees as

Puerto Rico

costs that includes

However, Rule 35.1

attorney's fees."

Rule 35.1 (1983).

attorney's

attorney's

source of

as

On its

separate

part of

costs.

law that

might

attorney's fees

is

allows for the award

of

P.R. Laws

Ann. tit. 32,

face, the rule treats costs

items;

it

See id.;
___ ___

does not

define

see also,
________

e.g.,
____

Knight v. Snap-On Tools Corp., 3 F.3d 1398, 1405 (10th Cir. 1993)
______
___________________
____________________

We

accept, arguendo,
________

the proposition

that the

Puerto Rico

Rules of Civil
in some

Procedure may supply substantive

circumstances.

F.2d at

702 (Rule

35.1); V lez v. Crown Life Ins. Co., 599 F.2d 471, 474
_____
___________________

(1st Cir.

1979) (earlier
Airways
_______

See Ganapolsky, 823

___ __________

legal standards

enactment of

v. Ramos,
_____

357 F.2d

current Rule
341, 342

44.1); Pan Am. World

______________

(1st Cir.

1966) (earlier

enactment of current Rule 44.1).

-22-

("[T]he fee-shifting provision clearly identifies attorney's fees

separately from

costs."); Oates v.
_____

Oates, 866 F.2d

_____

203, 206-07

(6th Cir. 1989).

Therefore,

the "costs" to which the defendants

would be entitled under Rule 68

are those detailed in 28

U.S.C.

1920, which do not include attorney's fees.

Rule 35.1 and

case and

in

Rule 68

both ostensibly

would result in a different award.7

"direct

collision"

despite

the

fact

apply to

this

The two rules are

that

they

are

not

"perfectly coextensive" because Rule 68 is "sufficiently broad to

cover the point

in dispute."

Burlington, 480
__________

U.S. at

See
___

4-5.

Co., 68 F.3d 1160, 1167-68

___

Stewart, 487 U.S. at

_______

Compare
_______

Aceves v.
______

26 n.4;

Allstate Ins.
_____________

(9th Cir. 1995) (Rule 68

and federal

law on expert witness fee compensation controlled despite similar

California offer

expert

witness

of

judgment

law), with

law

and

S.A. Healy

conflicting

Co. v.

California

Milwaukee Metro.

____

_______________

________________

Sewerage Dist., 60 F.3d 305, 310 (7th Cir. 1995) (Rule 68

______________

direct

conflict

settlement

Brunson,
_______

with

offers

by

918 F.2d 1524,

Wisconsin

statute

plaintiffs), and
___

1528 (11th Cir.

governing

not in

rejected

Tanker Mgm't, Inc. v.

____________________

1990) (Rule

68 not in

____________________

The defendants urge, based on our decision in Ganapolsky, that

__________

the district

court should have

attorney's fees.
not involve
The

case was dismissed

Rule 68

as a sanction.

did apply.

823 F.2d at

68 and

plaintiff's

See id. at 701.

___ ___

Therefore,

Rule 35.1,

See id. at 701 (citing Hermandad).

___ ___
_________

Ganapolsky, because here

Rule 35.1.

because the

See Delta Air Lines, 450

___ ________________
701-02.

award them

Ganapolsky, however, did

__________

conflict between Rule

Ganapolsky prevailed
__________

did not apply.

Ganapolsky,
__________

from

See 823 F.2d at 702.

___

an actual

defendant in

applied Rule 35.1 to

U.S. at 352;

on the other hand,

This case differs

the plaintiff received

a verdict

__________
less favorable

than the defendants'

offer of judgment

and thus

Rule 68 applies.

-23-

"direct

collision"

fees, offers

with

of judgment, and

have not suggested and the

Rule 68

Florida statute

sufficient

settlement offers).

attorney's

The parties

court cannot discern any infirmity in

to defeat

constitutionality mandated

governing

the presumption

of validity

and

by Burlington Northern Railroad, 480

_____________________________

U.S. at 5.

be

See
___

any doubt

Enabling

S.A. Healy Co., 60 F.3d at 312

______________

that Rule

Act.").

68

is within

Therefore, Rule

case and

("[T]here cannot

the scope

68, rather

applies

in this

the defendants

costs.

The district court did not err

of

the Rules

than Rule

are entitled

35.1,

only to

in refusing to award the

defendants their attorney's fees as part of costs.

B. Obstinacy
_____________

The district

obstinate under

fees.8

discretion.

931 F.2d 116,

court found

Rule 44.1(d)

finding

of

that the

and declined

obstinacy

is

plaintiff was

to award

reviewed

for

not

attorney's

abuse

of

See De Le n L pez v. Corporaci n Insular de Seguros,

___ _____________
______________________________

126-27 (1st Cir. 1991).

The defendants urge that

the

plaintiff's conduct

was obstinate

because

she refused

____________________

Rule 44.1(d) provides that:

In

the event any

acted obstinately

party or its

lawyer has

or frivolously,

the court

shall, in its judgment, impose on such person

the

payment

which the

of a

sum

for attorney's

court decides corresponds

fees

to such

conduct.

P.R. Laws Ann. tit. 32, App. III, Rule 44.1(d) (Supp. 1992).

-24-

to

accept

multiple

reasonable.9

less than

evidence

offers

of

judgment

The fact that the plaintiff was

the amount of

the verdict at

they

assert

that failure to accept

trial turns

out to

The

were

eventually awarded

the offers, the defendants

of their reasonableness.

adopt a rule

which

contend, is

defendants ask

that we

an offer of judgment,

be less than

when

the offer,

be

considered obstinate per se.

______

The

presumption

support in Puerto

district

Rico law,

court judge,

who

requested

and we

observed

by

the

defendants

decline to adopt

the

proceedings

lacks

it.

The

as

they

unfolded, made

Because

a finding that

we find

discretion

no evidence

in that

the plaintiff was

that

the trial

determination, we

decline

not obstinate.

judge abused

his

to overturn

the

district court on this issue.

C. Plaintiff's Expert Fees Incurred After the Offer of Judgment

________________________________________________________________

The

awarding the

judgment.

defendants finally contend that the court erred by

plaintiff expert fees

Such an award

incurred after the

expressly contravenes the terms of Rule

68, which provides that, if an offer of

"the

judgment

offer of

finally

obtained

by

judgment is rejected and

the

offeree

is not

more

favorable than the offer, the offeree must pay the costs incurred

after

the making

district

court

of the

erred

____________________

in

offer."

making

Fed.

this

R.

Civ. P.

award.

68.

Although

The

the

The defendants argue

that the plaintiff was

the standards of either Rule 44.1 or Rule 35.1.

we

have determined that Rule

see section
___

IV.A supra,
_____

35.1 does not

we consider

obstinate under

However, because

apply in this case,

here only

the defendants'

argument with respect to Rule 44.1.

-25-

plaintiff did

not distinguish

defendants

between costs

post-offer,

the

have only

$3,950 paid

for the testimony of two

incurred pre-

contested

the

and

award of

experts at the two trials.

Because

judgment

such amounts were

and

the

clearly incurred

defendants

have

not

after the

challenged

offer of

the

other

components of the trial court's initial award of costs, we reduce

the plaintiff's award of costs by that amount.

Conclusion
Conclusion
__________

To conclude,

and claimed errors

discussion.

we find the parties'

to be without merit and

For the reasons

district court is affirmed as

affirmed
________

remaining arguments

unworthy of extended

stated above, the judgment

to the grant of the

of the

second trial,

the exclusion of evidence of Lockard's conviction, the refusal to

grant a third trial, and the refusal to grant attorney's

part of costs

incurred after the first

district court's award

fees as

offer of judgment.

to the plaintiff of costs

The

incurred after

the offer of judgment

in the amount

of $3,950 is reversed,
reversed
________

the plaintiff's award

of costs shall be reduced

and

by that amount.

Because the plaintiff's appeal was wholly without merit, costs of

the appeal are awarded to the defendants.

-26-