
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-1460                         COASTAL FUELS OF PUERTO RICO, INC.,                                Plaintiff - Appellee,                                          v.                           CARIBBEAN PETROLEUM CORPORATION,                                Defendant - Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. P rez-Gim nez, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                                Watson,* Senior Judge,                                         ____________                              and Lynch, Circuit Judge.                                         _____________                                _____________________               William L.  Patton, with  whom Thomas B.  Smith, Kenneth  A.               __________________             ________________  ___________          Galton, Ropes  & Gray, Rub n  T. Nigaglioni and Ledesma,  Palou &          ______  _____________  ____________________     _________________          Miranda were on brief for appellant.          _______               Michael S. Yauch, with whom  Neil O. Bowman, Roberto  Boneta               ________________             ______________  _______________          and Mu oz  Boneta Gonz lez Arbona  Ben tez & Peral were  on brief              ______________________________________________          for appellee.                                 ____________________                                    March 12, 1996                                 ____________________                                        ____________________          *  Of the United States Court of International Trade.                    TORRUELLA, Chief Judge.  This appeal involves claims of                    TORRUELLA, Chief Judge.                               ___________          price discrimination, 15 U.S.C.   13(a) (1994); 10 L.P.R.A.   263          (1976), monopolization, 15  U.S.C.   2 (1994); 10  L.P.R.A.   260          (1976),  and Puerto  Rico law  tort, 31  L.P.R.A.    5141 (1976),          brought  against appellant Caribbean  Petroleum Corp. by appellee          Coastal  Fuels of  Puerto Rico,  Inc.   After  a jury  trial, the          district court entered judgment for $5,000,000 -- $1.5 million in          antitrust damages trebled plus $500,000  in tort damages.  CAPECO          seeks that  the judgment  of the district  court be  reversed and          judgment be  granted to CAPECO  on all counts,  or alternatively,          that the  judgment be reversed  and the case  remanded for  a new          trial.   We affirm the  price discrimination and Puerto  Rico law          tort verdicts, as  well as the tort damage verdict.   However, we          reverse  the monopolization verdict, vacate the antitrust damages          verdict,  and accordingly remand for further proceedings on price          discrimination damages.                                      BACKGROUND                                      BACKGROUND                                      __________                    We  relate the evidentiary background in the light most          favorable  to the  jury verdicts.   See  Kerr-Selgas v.  American                                              ___  ___________     ________          Airlines, Inc., 69 F.3d 1205, 1206 (1st Cir. 1995).          ______________                    Coastal  Fuels  of Puerto  Rico,  Inc. ("Coastal")  was          formed in  1989  as a  wholly-owned subsidiary  of Coastal  Fuels          Marketing,   Inc.  ("CFMI"),  a  company  that  ran  marine  fuel          operations in  numerous ports  using a staff  of sales  agents in          Miami,  Florida.  Caribbean  Petroleum Corp. ("CAPECO")  owns and          operates a  refinery in  Bayam n, Puerto  Rico, which  produces a                                         -2-                                         -2-          number of fuel products, as  well as residual fuel.   A principal          use of residual fuel is in the production of "bunker fuel," which          is  used by cruise ships  and other ocean-going vessels outfitted          with internal combustion or steam engines.                    At trial,  Coastal  introduced  testimony  and  letters          showing that CAPECO  had committed to supply Coastal  on the same          terms and conditions as other resellers in San Juan, Puerto Rico,          in 1990, but Coastal deferred the start of its operations because          of uncertainty  due to the  Gulf War.  Eventually,  Coastal began          business operations in Puerto Rico in October 1991, buying bunker          fuel in San Juan and reselling it to ocean-going  liners at berth          in San Juan  Harbor.  Based on CFMI's  experience and reputation,          Coastal produced a business plan  which shows that it expected to          reach a  sales volume of  100,000 barrels a  month, approximately          25-30% of the  sales volume in  San Juan Harbor.   The plan  also          shows that  Coastal  assumed it  could  obtain an  average  gross          margin (sales revenues less product costs) of $1.65 a barrel.                    In  September  1991, CAPECO  agreed  to  charge Coastal          prices  based on a formula involving the previous Thursday/Friday          New York market postings, minus discounts that varied  by volume.          These prices were to cover the six month period from October 1991          to   March  1992.     Unknown  to  Coastal,   CAPECO  was  almost          simultaneously  offering Coastal's  two competitors  in San  Juan          Harbor, Caribbean Fuel Oil Trading, Inc. ("Caribbean") and Harbor          Fuel Services, Inc. ("Harbor"), new contracts that gave Caribbean                                         -3-                                         -3-          and Harbor bigger  discounts from the formula  price than Coastal          received.1   Trial  evidence introduced  by  CAPECO's own  expert          witness quantified  the total  price discrimination  in favor  of          Caribbean and Harbor as $682,451.78  for the period from  October          1991 to April 1992.                    Coastal filed this suit in  May of 1992 when it learned          of CAPECO's price discrimination against it.  This court affirmed          the district court's denial of a preliminary injunction requiring          that CAPECO end  its price discrimination.  See  Coastal Fuels of                                                      ___  ________________          Puerto Rico, Inc.  v. Caribbean Petroleum Corp., 990  F.2d 25, 26          _________________     _________________________          (1st Cir. 1993).  After Coastal filed suit, CAPECO proposed a new          price  formula  to   Coastal.    According  to   trial  testimony          introduced by Coastal, CAPECO basically  made a "take it or leave          it" offer,  which Coastal took.  Expert testimony Coastal offered          at   trial   contended  that   competitively   significant  price          discrimination  continued until Spring  of 1993, when  CAPECO cut          Coastal off entirely.                    Additionally,  Coastal presented  evidence that,  while          throughout  this period  CAPECO would  from time  to time  inform          Coastal  that it  had  no  fuel available,  in  fact, CAPECO  had          available  fuel.   Coastal also  presented evidence  that  it was                                        ____________________          1  CAPECO  tried to argue below  and again argues here,  that the          contracts   it   executed   with  Caribbean   and   Harbor   were          qualitatively different  in their non-price  terms and conditions          from CAPECO's arrangement with Coastal, justifying the discounts.          Coastal  responds  that  it  was  never  offered  the  terms  and          conditions that Caribbean  and Harbor received.  In  light of the          jury's verdict  for Coastal  on the  price discrimination  claim,          from conflicting evidence such as  this, we draw the (reasonable)          conclusion in Coastal's favor.                                         -4-                                         -4-          discriminated against  in terms  of the quality  of fuel  that it          received  from  CAPECO.    Finally,  on  March  31, 1993,  CAPECO          informed  Coastal in  writing that  it  would not  sell any  more          product to Coastal, and shortly  thereafter, Coastal went out  of          business.                    The case was tried to a jury on claims (1) that  CAPECO          discriminated  in  price in  violation  of  Section  2(a) of  the          Clayton Act, 38 Stat. 730 (1914) (current version  at 15 U.S.C.            13(a)), as  amended by  the  Robinson-Patman Act,  49 Stat.  1526          (1936), and  in violation of  Section 263(a)  of Title 10  of the          Laws  of  Puerto  Rico;  (2)  that  CAPECO  monopolized trade  or          commerce in violation of Section 2 of the Sherman Act and Section          260 of  Title 10  of the  Laws of  Puerto Rico;  (3) that  CAPECO          violated Section  5141 of Title 31 of  the Puerto Rico Civil Code          by engaging in  tortious conduct  that injured  Coastal; and  (4)          that  CAPECO  committed a  breach  of  contract  in violation  of          Sections 3371 et  seq. of Title 31 of the Puerto Rico Civil Code.                        __  ____          As   reflected   in   the   jury's   answers   to   the   Special          Interrogatories, the jury found for Coastal on the first three of          these  claims, but  found for  CAPECO on  the breach  of contract          claim.  The jury awarded  damages of $1,500,000 for the antitrust          violations  combined  and  $500,000  for  the  Puerto  Rico  tort          violation.   The  antitrust damages  were trebled, see  15 U.S.C.                                                             ___            15(a), bringing the total award to $5,000,000.                                      DISCUSSION                                      DISCUSSION                                      __________                                         -5-                                         -5-                    CAPECO  argues for a  reversal of the  district court's          judgment,  or alternatively,  for a  new trial.   We  address the          arguments for reversal first.                                         -6-                                         -6-                              I.  Arguments for Reversal                              I.  Arguments for Reversal                    The first set  of issues involves the  district court's          denial of CAPECO's motions for judgment as a matter of  law under          Fed. R. Civ. P. 50.   With respect to matters of  law, our review          is de novo.  Sandy River Nursing Care v. Aetna Casualty, 985 F.2d             __ ____   ________________________    ______________          1138, 1141 (1st Cir. 1993).                    Seeking  judgment as a matter of law, CAPECO has raised          a set of issues on appeal that concern the application of federal          and Puerto Rico law on price discrimination and monopoly, as well          as Puerto Rico tort law, to the facts of this case.  With respect          to these  issues, we review  the court's decision de  novo, using                                                            __  ____          the  same  stringent  decisional  standards  that controlled  the          district  court.  See  Sullivan v.  National Football  League, 34                            ___  ________     _________________________          F.3d 1091, 1096 (1st Cir. 1994); Gallagher v. Wilton Enterprises,                                           _________    ___________________          Inc.,  962 F.2d 120, 125 (1st Cir. 1992).  Under these standards,          ____          judgment for CAPECO  can only be ordered if  the evidence, viewed          in the  light most favorable  to Coastal, points so  strongly and          overwhelmingly in  favor of CAPECO, that a  reasonable jury could          not have arrived at a verdict for Coastal.  See Sullivan, 34 F.3d                                                      ___ ________          at 1096; Gallagher, 962 F.2d at 124-25.                   _________                               A.  Price Discrimination                               A.  Price Discrimination                    Section 2(a) of the Clayton Act, amended in 1936 by the          Robinson-Patman Act, makes it                      unlawful   for   any  person   . . .   to                      discriminate in  price between  different                      purchasers of  commodities of  like grade                      and quality, where either  or any of  the                      purchases involved in such discrimination                      are in commerce,  . . . where  the effect                                         -7-                                         -7-                      of    such    discrimination    may    be                      substantially  to  lessen  competition or                      tend  to create a monopoly in any line of                      commerce,  or  to   injure,  destroy,  or                      prevent competition  with any  person who                      either grants  or knowingly  receives the                      benefit of such discrimination . . . .          15 U.S.C.   13(a).  A pair of sales at different prices makes out          a  prima  facie  case.   See  Falls City  Indus.,  Inc.  v. Vanco             _____  _____          ___  _________________________     _____          Beverage, Inc., 460  U.S. 428, 444 n.10 (1983);  FTC v. Anheuser-          ______________                                   ___    _________          Busch, Inc., 363 U.S. 536,  549 (1960) ("[A] price discrimination          ___________          within  the  meaning   of  [the  statute]   is  merely  a   price          difference.").                    Section  2(a)   includes  two   offenses  that   differ          substantially, but are covered by the same statutory language.  A          "primary-line" violation occurs where the discriminating seller's          price  discrimination  adversely  impacts  competition  with  the          seller's direct competitors.   See,  e.g., Brooke  Group Ltd.  v.                                         ___   ____  __________________          Brown & Williamson Tobacco Corp., ___ U.S.  ___, 113 S. Ct. 2578,          ________________________________          2586, reh'g denied, 114 S. Ct. 13 (1993).   See generally Herbert                ____________                          _____________          Hovenkamp, Federal Antitrust  Policy: The Law of  Competition and                     ______________________________________________________          its  Practice    8.8  (1994).   In  contrast, a  "secondary-line"          _____________          violation  occurs   where  the   discriminating  seller's   price          discrimination  injures competition among his customers, that is,          purchasers from  the seller.  See, e.g., FTC  v. Sun Oil Co., 371                                        ___  ____  ___     ___________          U.S. 505,  519 (1963);  Caribe BMW,  Inc.  v. Bayerische  Motoren                                  _________________     ___________________          Werke, A.G., 19 F.3d 745, 748  (1st Cir. 1994); J.F. Feeser, Inc.          ___________                                     _________________          v. Serv-A-Portion, Inc.,  909 F.2d 1524, 1535-38 (3d  Cir. 1990),             ____________________          cert. denied, 499  U.S. 921 (1991).    See generally  Hovenkamp            ____________                           _____________                                         -8-                                         -8-          14.6.   The theory  of injury is  generally that  the defendant's          lower  price sales  to the  plaintiff's  competitor (the  favored          purchaser) placed the plaintiff at a competitive disadvantage and          caused it to lose business.  Id.                                       ___                    We address first CAPECO's contention that  the district          court erred in treating this  case as one of secondary-line price          discrimination  rather  than primary-line  price  discrimination.          Specifically, CAPECO protests the district court's instruction to          the  jury that injury  to competition among  competing purchaser-          resellers  may  be  inferred  from  proof  of  substantial  price          discrimination by a producer among competing purchaser-resellers,          an  inference appropriate to  secondary-line discrimination.  See                                                                        ___          FTC v. Morton Salt Co., 334 U.S. 37, 50-51 (1948).  CAPECO argues          ___    _______________          that Coastal  is affiliated  with an  organization that  competes          with CAPECO,  and therefore  this was a  primary-line case;  as a          result, the Morton Salt inference would not apply.                      ___________                    We do not consider the argument that this is a primary-          line case,  because CAPECO has  chosen to make this  argument for          the first time on appeal.  While CAPECO did object to  the Morton                                                                     ______          Salt  instruction at  the  district  court,  that  objection  was          ____          directed at the use of the  word "infer" couched in a generalized          attack on the instruction as  suggesting a presumption not  borne          out by case law.2  We have noted before that "Rule 513 means what                                        ____________________          2  We address this distinct argument below.          3  Fed. R. Civ. P. 51 states, in pertinent part, that                                         -9-                                         -9-          it says:   the grounds for objection must  be stated 'distinctly'          after the charge to give the  judge an opportunity to correct his          [or  her] error."   Linn  v. Andover  Newton  Theological School,                              ____     ____________________________________          Inc., 874 F.2d  1, 5 (1st Cir.  1989); see also Jordan  v. United          ____                                   ________ ______     ______          States Lines, Inc.,  738 F.2d 48,  51 (1st  Cir. 1984).   Leaving          __________________          aside  whether the  district court  in fact  erred in  making the          questioned  instruction, it seems  clear that CAPECO  did not set          forth  the argument  it  now  advances when  it  objected to  the          instruction at issue.   And if CAPECO did intend  to express this          argument, it  neither advised  the district  court judge  of this          problem in  a manner that  would allow him to  make a correction,          nor informed  him what a satisfactory  cure would be.   Linn, 874                                                                  ____          F.2d at 5.  Because the argument was thus not preserved,  we will          reverse or  award a new  trial only if  the error "resulted  in a          miscarriage  of justice  or  'seriously  affected  the  fairness,          integrity  or public  reputation of  the judicial  proceedings.'"          Scarfo v.  Cabletron Systems,  Inc., 54 F.3d  931, 945  (1st Cir.          ______     ________________________          1995) (quoting Lash v. Cutts, 943 F.2d 147, 152 (1st Cir. 1991)).                         ____    _____          We fail  to find such  concerns of judicial  propriety implicated          here.4                                        ____________________                      [n]o party  shall  assign  as  error  the                      giving   or  the   failure  to   give  an                      instruction  unless  that  party  objects                      thereto  before   the  jury   retires  to                      consider its verdict,  stating distinctly                      the matter objected to and the grounds of                      the objection.          4  While  this court has admitted "occasional"  exceptions to the          "raise-or-waive" principle, see National Assoc. of Social Workers                                      ___ _________________________________          v.  Harwood, 69  F.3d at  627-28,  the concerns  that justify  an              _______                                         -10-                                         -10-                    As a result, we analyze  this case as one of secondary-          line discrimination.   Thus, the theory of injury  is that CAPECO          sold bunker fuel  to Coastal at an unfavorable  price relative to          Harbor  and  Caribbean,  and  consequently,  competition  between          Coastal, Harbor  and Caribbean was  thereby injured.   On appeal,          CAPECO  makes three  arguments based  on what  it purports  to be          required  elements  for  Coastal's price  discrimination  damages          claim:  first, that the sales in question  were not "in commerce"          and  so section  2(a)'s prohibitions do  not apply;  second, that          Coastal  failed  to  make the  requisite  showing  of competitive          injury to  prevail; and third,  that Coastal failed to  carry its          burden  of proving  actual injury in  order to be  entitled to an          award of money damages.                                  1.  "In Commerce"                                  1.  "In Commerce"                    CAPECO argues, correctly we conclude, that section 2(a)          of the Clayton  Act does not apply  because in the instant  case,          neither of the two transactions  which evidence the alleged price          discrimination  crossed a  state line.   Gulf  Oil Corp.  v. Copp                                                   _______________     ____          Paving Co.,  419  U.S. 186,  200-201,  200 n.17  (1974).   For  a          __________          transaction  to qualify,  the product  at  issue must  physically          cross a state boundary in either the sale to the favored buyer or          the sale  to  the buyer  allegedly discriminated  against.   See,                                                                       ___          e.g., Misco, Inc. v. United States Steel Corp., 784 F.2d 198, 202          ____  ___________    _________________________                                        ____________________          exception are  not implicated  here, see id.,  69 F.3d  at 627-28                                               ___ ___          (finding exception given certain circumstances including the fact          that failure to raise  issue did not deprive court  of appeals of          useful  factfinding, and  the  fact that  the  issue in  question          raises constitutional concerns).                                         -11-                                         -11-          (6th Cir.  1986); Black Gold  Ltd. v. Rockwool  Industries, Inc.,                            ________________    __________________________          729 F.2d 676, 683 (10th Cir.), cert. denied, 469 U.S. 854 (1984);                                         ____________          William Inglis &  Sons Baking Co. v. ITT  Continental Baking Co.,          _________________________________    ___________________________          668 F.2d  1014, 1043-44 (9th  Cir. 1981), cert. denied,  459 U.S.                                                    ____________          825 (1982);  S&M Materials  Co. v. Southern  Stone Co.,  612 F.2d                       __________________    ___________________          198, 200 (5th Cir.), cert. denied, 449 U.S. 832 (1980); Rio Vista                               ____________                       _________          Oil, Ltd.  v. Southland  Corp., 667  F. Supp.  757, 763 (D.  Utah          _________     ________________          1987).                    However,  this issue  is not  dispositive, because  the          jury  found   that  CAPECO   violated  the   Puerto  Rico   price          discrimination statute, which is identical to Section 2(a) except          that it contains no interstate commerce requirement.5  CAPECO has          not  challenged the  district  court's supplemental  jurisdiction          stemming from Coastal's Sherman Act claims.  The relevant statute          states that "in  any civil action over which  the district courts                                        ____________________          5  The relevant language is as follows:                      It  shall  be  unlawful for  any  person,                      either   directly   or   indirectly,   to                      discriminate in  price between  different                      purchasers of  commodities of  like grade                      and quality,  where such  commodities are                      sold for  use, consumption, or  resale in                      Puerto Rico, and where the effect of such                      discrimination  may  be  substantially to                      lessen competition  or tend  to create  a                      monopoly  in  any  line  of  commerce  in                      Puerto Rico,  or to  injure, destroy,  or                      prevent competition  with any  person who                      either grants  or knowingly  receives the                      benefit of  such discrimination,  or with                      customers of either of them.          10 L.P.R.A. 263 (1976).   Furthermore, Puerto Rico law includes a          counterpart for the section 4  of the Clayton Act's authorization          of treble damages.  See 10 L.P.R.A. 268 (1976).                              ___                                         -12-                                         -12-          have  original  jurisdiction,  the  district  courts  shall  have          supplemental  jurisdiction  over  all other  claims  that  are so          related to claims in the action . . . that they form part of  the          same  case  or  controversy."    28 U.S.C.     1367  (1994).   In          application, "[i]f, considered without regard to their federal or          state character, a  plaintiff's claims are  such that [it]  would          ordinarily  be  expected   to  try  them  all  in   one  judicial          proceeding, then,  assuming substantiality of the federal issues,          there is power in federal courts to hear the whole."  United Mine                                                                ___________          Workers of America v. Gibbs,  383 U.S. 715, (1966); see Rodr guez          __________________    _____                         ___ _________          v. Doral  Mortgage Corp., 57  F.3d 1168, 1175-76 (1st  Cir. 1995)             _____________________          (interpreting and  applying 28  U.S.C.   1367).   In  the instant          case, the price discrimination claims flow out of the same set of          facts and  require the same  evidence as the Sherman  Act claims.          Because  we uphold  the district  court's  jurisdiction over  the          Sherman Act  claims, see 15  U.S.C.   4 (1994)  (investing "[t]he                               ___          several  district  courts  of  the  United  States  .  .  .  with          jurisdiction to  prevent and  restrain violations  of [Title  15]          sections 1 to 7[,]" which includes the Sherman Act), we also must          conclude that the district court properly exercised supplementary          jurisdiction over the price discrimination claims.                    Thus,  we conclude  that the  district  court erred  in          applying section 2(a) of the Clayton Act to the conduct at issue,          and accordingly  reverse that part  of its opinion.   However, we          find applicable section 263 of the Puerto Rico Anti-Monopoly Act,          10 L.P.R.A.   263.  Because  section 263 was patterned after  and                                         -13-                                         -13-          is  almost identical  to  section  2(a) of  the  Clayton Act,  as          amended by the Robinson-Patman Act, we look to  the jurisprudence          interpreting federal  law as  a guide  in applying the  statute.6          Given that the one key  difference between the federal and Puerto          Rico statutes is the lack of an  "in commerce" requirement in the          Puerto  Rico analogue,  we  conclude  that  we  should  interpret          section 263 as intended to  extend the provisions of section 2(a)          of the  Clayton Act to  price discrimination within  Puerto Rico,          the situation which we  confront in the instant case.   Given the          relative lack  of applicable section  263 case law and  the well-          developed jurisprudence concerning  Clayton Act section 2(a),  we          will focus on  the latter in  assessing the price  discrimination          claims.                              2.  Injury to Competition                              2.  Injury to Competition                    CAPECO's second  argument in  support of reversing  the          price  discrimination portion  of the  judgment  is that  Coastal          failed to demonstrate injury to  competition.  As noted above, we          analyze  this case as one of secondary-line price discrimination,                                        ____________________          6   See  Caribe  BMW,  Inc.,  19 F.3d  at  753  (1st  Cir.  1994)              ___  __________________          (interpreting "Puerto  Rico's laws  as essentially  embodying the          jurisprudence  relevant  to  the  parallel  federal  law,"  where          antitrust plaintiff asserted claims under a Puerto Rico antitrust          law that paralleled  its federal antitrust law  claim); Whirlpool                                                                  _________          Corp. v. U.M.C.O. Int'l Corp., 748 F. Supp. 1557, 1565 n.4  (S.D.          _____    ____________________          Fla.  1990)  (noting  that  "federal  precedents  construing  the          [Clayton   Act,  as  amended  by  the]  Robinson-Patman  Act  are          applicable to the  interpretation of Section  263" of the  Puerto          Rico Anti-Monopoly Act); see also Diario de Sesiones,  1964, Vol.                                   ________          18,  Part 4, pp.  1425-26, 1509, 1512,  1707-09; Arturo Estrella,          Antitrust Law in Puerto Rico, 28 Rev.  Jur. del Col. Ab. P.R. 615          ____________________________          (stating that interpretations of the Federal  Robinson-Patman Act          are to be looked to in construing section 263).                                         -14-                                         -14-          and  thus  Coastal   bears  the  burden  of   showing  injury  to          competition  between Coastal and its rival bunker fuel resellers,          Harbor and Caribbean.   Addressing the  burden of the  secondary-          line plaintiff, the Supreme Court has stated that                       [i]t  would  greatly  handicap  effective                      enforcement   of  the   Act  to   require                      testimony to show  that which we  believe                      to be self-evident, namely, that there is                      a    "reasonable     possibility"    that                      competition may be  adversely affected by                      a practice under  which manufacturers and                      producers  sell   their  goods   to  some                      customers substantially cheaper than they                      sell  like goods  to  the competitors  of                      these customers.          Morton Salt Co., 334 U.S. at 50.  As a result, the Supreme  Court          _______________          has  held that  "for  the  purposes of  section  2(a), injury  to          competition is established prima facie by proof  of a substantial          price  discrimination between  competing  purchasers over  time."          Falls City, 460 U.S. at 435 (citing  Morton Salt, 334 U.S. at 46,          __________                           ___________          50-51); see  also Texaco,  Inc. v. Hasbrouck,  496 U.S.  543, 559                  _________ _____________    _________          (1990); Monahan's Marine,  Inc. v. Boston Whaler,  Inc., 866 F.2d                  _______________________    ____________________          525, 528-529  (1st Cir. 1989) (noting lower  burden for antitrust          plaintiff  under Clayton Act,  as amended by  the Robinson-Patman          Act, than  under Sherman  Act); Boise Cascade  Corp. v.  FTC, 837                                          ____________________     ___          F.2d 1127, 1139 (D.C. Cir. 1988).                    CAPECO  challenges  the  district  court's  finding  of          competitive injury in two ways, arguing that the Morton Salt rule                                                           ___________          is no  longer good  law, or alternatively,  that the  Morton Salt                                                                ___________          rule  was incorrectly  applied in  this case.   We  first address          CAPECO's  direct challenge  to the  vitality of  the Morton  Salt                                                               ____________                                         -15-                                         -15-          rule, a challenge based on  the Supreme Court's opinion in Brooke                                                                     ______          Group, 113 S.  Ct. 2578.  In  that case, the Supreme  Court ruled          _____          that,  because primary-line price discrimination injury is of the          "same general character" as predatory  pricing schemes actionable          under Sherman Act section  2, Brooke Group, ___ U.S. ___,  113 S.                                        ____________          Ct.  at  2587, a  primary-line  injury plaintiff  bears  the same          substantive burden  as  under  the  Sherman  Act,  that  is,  the          plaintiff  must show  that  the predator  stands  some chance  of          recouping his losses,  id. ___ U.S. at  ___, 113 S. Ct.  at 2588.                                 ___          In so deciding,  the Supreme Court implicitly  overruled Utah Pie                                                                   ________          Co. v. Continental Baking Co., 386 U.S. 685 (1967),  in which the          ___    ______________________          Supreme  Court had set forth different standards for primary-line          injury.   Brooke  Group, ___  U.S.  at ___,  113 S.  Ct.  at 2587                    _____________          (explaining  that  Utah   Pie  was  merely  an   "early  judicial                             __________          inquiry").                    According  to   CAPECO,  the  Supreme   Court's  recent          emphasis  in  Brooke  Group  on reconciling  the  area  of  price                        _____________          discrimination with  other antitrust  law requires  that we  find          that the Morton  Salt rule no longer  is good law.   CAPECO notes                   ____________          that both  primary-line and  secondary-line price  discrimination          are prohibited by the same language of section 2(a) as amended by          the Robinson-Patman Act.   Furthermore, CAPECO contends  that the          Supreme Court in Brooke Group apparently undercut any reliance on                           ____________          a principled  distinction between  the aims of  section 2  of the          Clayton  Act  and  other antitrust  laws'  purported  emphasis on          protecting  "competition, not competitors,"  Brooke Group, 113 S.                       ___________      ___________    ____________                                         -16-                                         -16-          Ct. at 2588  (emphasis in original) (citation  omitted); see also                                                                   ________          Monahan's Marine,  Inc., 866 F.2d  at 528-29 (not  discussing the          _______________________          Morton Salt rule, but noting  that "unlike the Sherman Act, which          ___________          protects  'competition not  competitors,' .  .  . the  [Robinson-                     ___________      ___________          Patman] Act protects those who compete with a favored seller, not                               _________________          just the  overall competitive process."  (emphasis in original)).          Thus,  according to CAPECO, precedent that pre-dates Brooke Group                                                               ____________          and applies the Morton Salt rule must be  reexamined.  See, e.g.,                          ___________                            ___  ____          496 U.S. at  544; Falls City, 460  U.S. at 436; Boise  Cascade v.                            __________                    ______________          FTC, 837 F.2d 1127, 1153 (D.C. Cir. 1988).          ___                    While  CAPECO's argument  has merit,  we  join the  two          other   circuits  that  have   addressed  competitive  injury  in          secondary-line  cases since Brooke Group in refusing to disregard                                      ____________          the rule the  Supreme Court formulated in Morton  Salt, for three                                                    ____________          reasons.7  First, the statutory structure that prohibits primary-          line  price  discrimination  "stands  on  an  entirely  different          footing" than the statutory scheme that proscribes secondary-line          discrimination.  See Rebel  Oil Co., 51 F.3d  at 1446.   Congress                           ___ ______________          first forbade primary-line price discrimination with  the Clayton                                        ____________________          7   See Stelwagon  Manufacturing Co. v.  Tarmac Roofing  Systems,              ___ ____________________________     ________________________          Inc., 63  F.3d 1267,  1271 (3d Cir.  1995) (applying  Morton Salt          ____                                                  ___________          rule  without  discussion of  Brooke  Group);  Rebel Oil  Co.  v.                                        _____________    ______________          Atlantic  Richfield  Co.,  51  F.3d 1421,  1446  (9th  Cir. 1995)          ________________________          (noting in  dicta that "in holding that  a primary-line plaintiff          must  demonstrate  an  injury  flowing  from  an  aspect  of  the          defendant's conduct injurious  to consumer welfare, we  intend in          no way to affect the  standard for antitrust injury in secondary-          line  cases").   But see  also Bob  Nicholson Appliance,  Inc. v.                           _____________ _______________________________          Maytag Co., 883 F. Supp. 321, 326 (S.D. Ind. 1994)  (holding that          __________          "we  are  persuaded that  the  Seventh Circuit  would  extend the          reasoning   of  Brooke  Group   and  require  actual   injury  to                          _____________          competition").                                         -17-                                         -17-          Act of 1914, which originally condemned discrimination that might          "substantially   . .  . lessen  competition or  tend to  create a          monopoly in  any line  of commerce."   Clayton Antitrust  Act, 38          Stat.  730 (1914)  (codified  as  amended at  15  U.S.C.    13(a)          (1994)).  The statute was  intended to prevent large corporations          from  invading  markets  of small  firms  and  charging predatory          prices  for the purpose of destroying marketwide competition, and          thus specifically applied only to  primary-line injury.  See H.R.                                                                   ___          Rep. No. 627, 63rd Cong., 2d Sess.   8 (1914); E. Thomas Sullivan          & Jeffrey L. Harrison, Understanding  Antitrust and Its  Economic                                 __________________________________________          Implications   8.03 (1988).          ____________                    By   contrast,    secondary-line   discrimination    is          forbidden  by the Robinson-Patman  Act, 49 Stat.  1526 (1936), 15          U.S.C.     13-13b, 21a (1988), which amended the original Clayton          Act's  price  discrimination  proscriptions.    Congress  clearly          intended the  Robinson-Patman Act's  provision to  apply only  to          secondary-line cases, not  to primary-line cases.   See H.R. Rep.                                                              ___          No. 2287, 74th  Cong., 2d Sess.    8 (1936),8 cited in  Rebel Oil                                                        ________  _________          Co., 51 F.3d at  1446.  In  contrast to the  Sherman Act and  the          ___          Clayton  Act, which were intended to  proscribe only conduct that          threatens  consumer  welfare, the  Robinson-Patman  Act's framers          "intended  to  punish  perceived economic  evils  not necessarily                                        ____________________          8   The Robinson-Patman  Act "attaches  to competitive  relations          between a  given seller and  his several customers.   It concerns          discrimination  between customers  of the  same  seller.   It has          nothing to  do with  . .  .  requir[ing] the  maintenance of  any          relationship in prices charged by a competing seller."  H.R. Rep.          No. 2287, 74th Cong., 2d Sess.   8 (1936).                                         -18-                                         -18-          threatening to  consumer welfare per se."  Rebel Oil Co., 51 F.3d                                                     _____________          at 1445.    See generally  Hovenkamp   2.1a.  In  particular, the                      _____________          Robinson-Patman  Act's amendments to the Clayton Act stemmed from          dissatisfaction  with  the original  Clayton  Act's  inability to          prevent  large retail chains from obtaining volume discounts from          big  suppliers,  at  the  disadvantage  of  small  retailers  who          competed with  the chains.  See S. Rep.  No. 1502, 74th Cong., 2d                                      ___          Sess.   4 (1936); H.R. Rep. No. 2287, 74th Cong., 2d Sess.    3-4          (1936); see also Morton Salt,  334 U.S. at 49 ("Congress intended                  ________ ___________          to protect  a merchant  from competitive  injury attributable  to          discriminatory  prices");  Rebel  Oil Co.,  51  F.3d  1421, 1446;                                     ______________          Monahan's Marine, Inc., 866 F.2d at 528-29.          ______________________                    Second, we are persuaded by the reasoning  of the Ninth          Circuit's  opinion in  Rebel Oil  Co. that  the amendment  to the                                 ______________          Clayton  Act effected  by the  Robinson-Patman  Act supports  the          continued vitality of the  Morton Salt rule, even in the  face of                                     ___________          Brooke  Group's alteration  of standards  for primary-line  price          _____________          discrimination.   While the  Clayton Act only  proscribed conduct          that may  "substantially lessen competition  or tend to  create a          monopoly[,]" the  new law  added the following  passage:   "or to          injure,  destroy,  or  prevent competition  with  any  person who          either  grants  or   knowingly  receives  the  benefit   of  such          discrimination, or with customers of  either of them."  See Rebel                                                                  ___ _____          Oil Co., 51 F.3d   at 1447.  The purpose  of this passage was  to          _______          relieve  secondary-line  plaintiffs --  small  retailers  who are          disfavored  by discriminating suppliers  -- from having  to prove                                         -19-                                         -19-          harm to competition  marketwide, allowing them instead  to impose          liability simply  by proving  effects on  individual competitors.          See id.; H.R.  Rep. No. 2287,  74th Cong., 2d  Sess.   8  (1936).          ___ ___          Such legislative intent directly supports  maintaining the Morton                                                                     ______          Salt  rule, which  puts  into  practice  Congress'  concern  with          ____          placing the same  burden on secondary-line plaintiffs  that other          antitrust plaintiffs face.  Thus, the comparison that the Supreme          Court  drew   between  primary-line   price  discrimination   and          predatory pricing  in Brooke  Group  stands on  a different,  and                                _____________          stronger, footing than any comparison  that could be made between          secondary-line price discrimination  and other area of  antitrust          law, including, but not only, predatory pricing.                     Third, and  finally, the  holding of  the Brooke  Group                                                              _____________          opinion  on its  face  applies only  to  primary-line cases,  not          secondary-line cases.  As a result, given the legislative history          and statutory language distinctions, we will not presume, without          more guidance, that the Supreme Court intended in Brooke Group to                                                            ____________          alter the well-established rule that it adopted in Morton  Salt.9                                                             ____________          Thus,  we hold that  the Morton Salt  rule continues  to apply to                                   ___________          secondary-line injury cases such as the present one.                                        ____________________          9   While concerns about overenforcement harming overall consumer          welfare may  be valid,  the Supreme Court  retains the  option of          speaking  further  on this  issue.   See  generally  Paul Larule,                                               ______________          Robinson-Patman Act in the Twenty-First Century:  Will the Morton          _________________________________________________________________          Salt  Rule  Be Retired?  48  S.M.U.  L.  Rev. 1917,  1927  (1995)          _______________________          (concluding that "[w]hen an appropriate case comes before it, the          [Supreme]  Court  may  well  decide  to  make  the  final  cut");          Hovenkamp     14.6a   (arguing  that,  after  Brooke   Group,  "a                                                        ______________          reinterpretation of  Robinson-Patman so  as to permit  secondary-          line injury  only when competition  itself is threatened  is long          overdue").                                         -20-                                         -20-                    The Morton Salt rule provides that, for the purposes of                        ___________          secondary-line claims under section  2(a), "injury to competition          is established  prima  facie  by proof  of  a  substantial  price          discrimination between competing  purchasers over  time."   Falls                                                                      _____          Cities Industries  v. Vanco  Beverage, Inc.,  460  U.S. 428,  435          _________________     _____________________          (1983)  (citing Morton  Salt, 334  U.S.  at 46,  50-51).   If the                          ____________          plaintiff makes  such a  showing, then "[t]his  inference may  be          overcome by  evidence breaking  the causal  connection between  a          price differential and  lost sales or profits."   Falls City, 460                                                            __________          U.S. at 435.  Barring evidence breaking that connection, however,          "for  a[] plaintiff to  prove competitive injury  under Robinson-          Patman,  he [or  she] need  only  show that  a substantial  price          discrimination  existed as between  himself [or herself]  and his          [or her]  competitors   over  a period  of time."   Hasbrouck  v.                                                              _________          Texaco, Inc.,  842 F.2d  1034, 1041 (9th  Cir. 1987),  aff'd, 496          ____________                                           _____          U.S. 543 (1990).                    Here the jury  properly inferred prima facie  injury to                                                     _____ _____          competition since Coastal produced sufficient evidence before the          jury  to conclude  (1) that  the discrimination  in question  was          continuous  and  substantial  and  (2)  that  the  discrimination          occurred  in  a  business  where  profit  margins  were  low  and          competition was keen.  4 Von Kalinowski, Antitrust Laws and Trade                                                   ________________________          Regulation   31.04(1).   First, the discrimination lasted  all 18          __________          months that Coastal was in business, and always exceeded the five          cents  per  barrel  that  witnesses testified  was  competitively          significant.   Additionally, there  was ample testimony  that the                                         -21-                                         -21-          marine  fuel  oil  business, in  which  Coastal  competed against          Caribbean  and  Harbor,  was characterized  by  thin  margins and          intense competition.   At  any rate, on  appeal, CAPECO  does not          make  the  argument  that  Coastal  failed  to  produce  evidence          required for a prima facie showing of injury to competition under                         _____ _____          the Morton Salt rule.              ___________                    However, CAPECO argues  that the Morton  Salt inference                                                     ____________          was undercut by evidence "breaking the causal connection" between          CAPECO's  price  discrimination  and   Coastal's  lost  sales  or          profits, Falls City,  460 U.S. at 435, and showing  an absence of                   __________          competitive injury,  Boise Cascade Corp.  v. FTC, 837  F.2d 1144,                               ___________________     ___          1146  (D.C.  Cir. 1988).    According to  CAPECO,  overall market          forces depressed the  price for bunker fuel more  than 30 percent          between late 1991  and early 1992,  and it was this  fact, rather          than CAPECO's price discrimination, that led to Coastal's demise.          CAPECO  points to the  admission of Coastal's  CEO that Coastal's          sales  agents based  their price  quotes to  ships on  the prices          being charged by  competitors in San Juan and  other ports, often          without  even  knowing  the  cost of  the  fuel  that  was  to be          delivered.   According to CAPECO,  if prices were set  when costs          were unknown,  then discounts from  CAPECO could not have  been a          material factor in setting prices.                    We  reject  the  argument  that  this  evidence  rebuts          Coastal's  prima facie  showing  of  price  discrimination.    In                     _____ _____          reviewing the  jury verdict, "[w]e are compelled .  . . even in a          close  case,  to   uphold  the  verdict  unless   the  facts  and                                         -22-                                         -22-          inferences, when  viewed in a  light most favorable to  the party          for whom the  jury held, point so strongly  and overwhelmingly in          favor of the movant that a reasonable jury could not have arrived          at  this  conclusion."    Chedd-Angier  Production  Co.  v.  Omni                                    _____________________________      ____          Publications Int'l Ltd.,  756 F.2d 930, 934 (1st  Cir. 1985); see          _______________________                                       ___          also Rodr guez  v. Montalvo, 871  F.2d 163, 165 (1st  Cir. 1989);          ____ _________     ________          Castro v. Stanley Works, 864 F.2d 961, 963 (1st Cir. 1989); Brown          ______    _____________                                     _____          v. Freedman Baking Co., 810 F.2d 6, 12 (1st Cir. 1987).  Thus, in             ___________________          this case,  the appellants  must "persuade us  that the  facts of          this case  so conclusively  point to a  verdict in  [their] favor          that  fair-minded people could  not disagree about  the outcome."          Chedd-Angier Production Co., 756 F.2d at 934.          ___________________________                    Here,  neither section  2(a),  section 263,  nor  their          attendant case  law, requires  that the  price discrimination  in          question be directly  factored into the  prices that favored  and          disfavored  purchaser-resellers   offered  to   their  customers.          Presumably,  regardless  of  whether these  costs  were  factored          directly into  the prices  that  Coastal offered,  or were  later          calculated  into  Coastal's  bottom  line,  these costs  affected          Coastal's pricing.  Certainly, no  argument can be made from this          evidence  alone that bunker fuel  costs, no matter when accounted          for, were not causally connected to Coastal's lost profits.  See,                                                                       ___          e.g., Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1039-41 (9th Cir.          ____  _________    ____________          1987), aff'd, 496  U.S. 543  (1990) (finding  that evidence  that                 _____          "some portion" of small extra  discounts of 2 -5  on gasoline was          passed on  by  favored customers  sufficient,  particularly  when                                         -23-                                         -23-          retail   gasoline  market   was   "strongly  price   sensitive").          Additionally,  the  fact  that Coastal's  sales  agents  operated          without  complete knowledge of the  prices at which other Coastal          agents  were  purchasing  the  bunker fuel  that  would  later be          delivered does  not, without more, show an absence of competitive          injury.                                  3.  Actual Injury                                  3.  Actual Injury                    CAPECO  also contends  that Coastal  failed  to present          adequate evidence  of actual injury  to support the verdict.   On          appeal, CAPECO does not complain that the court's instructions to          the jury on the actual  injury requirement were erroneous.  Thus,          the only question  regarding this issue  is whether the  evidence          that  Coastal presented  to the  jury  was adequate  to permit  a          reasonable inference of actual injury.                    Although  we  have  concluded that  Coastal  has proved          competitive injury  under Title  10, Section 263  of the  Laws of          Puerto Rico, in order to  collect damages as a private plaintiff,          Coastal must show that CAPECO's offense was a "material cause" of          injury.  See  Zenith Radio Corp. v. Hazeltine  Research, 395 U.S.                   ___  __________________    ___________________          100, 114 n.9 (1969);  Hasbrouck, 842 F.2d at 1042;  Allen Pen Co.                                _________                     _____________          v.  Springfield Photo  Mount Co.,  653 F.2d  17, 21-22  (1st Cir.              ____________________________          1981).   Coastal  was  required to  show  that,  as a  result  of          CAPECO's  price  discrimination,  it "lost  sales  and  profits."          Hasbrouck, 842 F.2d at 1042; see Allen  Pen Co., 653 F.2d 17, 21-          _________                    ___ ______________          22 (1st Cir. 1981).  CAPECO contends that, to do so,  Coastal was          required  to "indicate and  document specific losses  of business                                         -24-                                         -24-          [for Coastal] and corresponding  gains by [favored  competitors],          or   otherwise  show  that  [Coastal's]  losses  were  caused  by          [CAPECO's]    practices."        Foremost-McKesson,    Inc.    v.                                           __________________________          Instrumentation Laboratory,  Inc., 527  F.2d 417,  420 (5th  Cir.          _________________________________          1976);  see also  Falls City,  460  U.S. at  437-38 (ruling  that                  ________  __________          findings based on "direct evidence of  diverted sales" "more than          established the  competitive injury  required for  a prima  facie          case under section 2(a)").                    Assuming  arguendo  that CAPECO  correctly  claims that          Coastal  needed to  show specific  losses  of business,  CAPECO's          argument fails to persuade us.10   CAPECO concedes that a Coastal          employee, Andrew McIntosh ("McIntosh") testified that Coastal was          getting  "feedback" from its  customers that its  prices were not          competitive.   Whether  or  not  to credit  such  testimony is  a          decision best left to the factfinder.  See Wytrwal v. Saco School                                                 ___ _______    ___________          Bd., 70 F.3d 165, 171 (1st Cir.  1995); Flanders & Medeiros, Inc.          ___                                     _________________________          v. Begosian, 65 F.3d  198, 204 n.4  (1st Cir. 1995).   McIntosh's             ________          testimony,  if believed,  could lead a  jury to  reasonably infer          actual injury in the form of lost sales.                    CAPECO also contends that because McIntosh's  testimony          was based on statements other  Coastal employees had made to him,                                        ____________________          10   There is  conflicting authority for  the proposition  that a          jury may infer  actual injury from circumstantial  evidence.  See                                                                        ___          Continental Ore Co. v. Union Carbide Corp., 370 U.S. 690, 697-700          ___________________    ___________________          (1962).    However,  we  need  not  consider  here  whether  this          standard, which is more favorable to Coastal, applies rather than          the  standard that CAPECO  advocates, since Coastal  actually did          proffer evidence, albeit only employee testimony, that its prices          were causing it to lose business.                                         -25-                                         -25-          it was both inadmissible hearsay evidence, see Fed. R. Evid. 802,                                                     ___          and even if admissible, legally insufficient to support a finding          of  actual injury.   In  making this  argument, CAPECO  cites two          cases,  Stelwagon  Manufacturing Co.  v. Tarmac  Roofing Systems,                  ____________________________     ________________________          Inc., 63 F.3d  1267, 1275-76 (3d Cir. 1995),  and Chrysler Credit          ____                                              _______________          Corp. v. J. Truett Payne Co., 670  F.2d 575, 581 (5th Cir. 1982).          _____    ___________________          However, the  two cases  are inapposite.   Apparently unlike  the          defendant in Stelwagon, CAPECO did not make a lower court hearsay                       _________          objection to the testimony in  question.  See Stelwagon Mfg. Co.,                                                    ___ __________________          63 F.3d at 1275, n.17.                    Additionally, the Fifth Circuit's opinion  in J. Truett                                                                  _________          Payne is distinguishable in a significant manner from the instant          _____          case.  In a preceding Supreme Court opinion, the Court noted that                      [a]lthough [Payne  Co.'s owner]  asserted                      that his salesmen  and customers told him                      that the dealership  was being undersold,                      he admitted that  he did not know  if his                      competitors  did in  fact  pass on  their                      lower costs to their customers.          J. Truett  Payne, Co. v. Chrysler Motors Corp., 451 U.S. 557, 564          _____________________    _____________________          (1981).   Likewise,  Payne Co.'s  expert witness did  not testify          that the lower  costs were passed  on in the  retail price.   Id.                                                                        ___          The Court found  important the lack of evidence  that competitors          passed on discounts to customers.   Id. at 564, n.4.  On  remand,                                              ___          the  Fifth Circuit noted,  in finding the  evidence insufficient,          that Payne Co.'s witnesses only  "spoke to either the supposed or          hypothesized effect of the programs."   J. Truett Payne, 670 F.2d                                                  _______________          at 581.  By contrast,  while Coastal offered similar testimony of          feedback   about  being  undersold,  it  also  put  forth  expert                                         -26-                                         -26-          testimony that  Caribbean and  Harbor had  fully passed  on their          lower  costs to  the  ships purchasing  marine  fuel.   Coastal's          expert testified that  "CAPECO gave discriminatory low  prices to          Harbor and Caribbean . .  . [that] were fully passed on .  . . to          the  ships  purchasing  marine  fuel."    Thus,  because  Coastal          proffered evidence linking  the discounts in question  to actual,          not hypothetical, effects, J. Truett Payne is inapposite.                                     _______________                    We conclude  that, once  admitted, this evidence  could          have  led   the  jury  to  reasonably  infer   actual  injury  to          competition.                                  B.  Monopolization                                  B.  Monopolization                    Section 2 of  the Sherman Act, 15 U.S.C.    2, condemns          "every person who shall monopolize,  or attempt to monopolize . .          . any part  of the trade  or commerce among the  several States."          Similarly,  Title 10,  Section 260  of  the Laws  of Puerto  Rico          tracks this language.  Claims under this Puerto Rico analogue are          to be analyzed  in the same manner  as claims under section  2 of          the Sherman Act.  See R.W. Intern.  Corp. v. Welch Food, Inc., 13                            ___ ___________________    ________________          F.3d  478, 486-88  (1st  Cir. 1994);  Americana  Indus., Inc.  v.                                                _______________________          Wometco de Puerto Rico, 556 F.2d 625, 626-28 (1st Cir. 1977); see          ______________________                                        ___          also  Pressure Vessels  of Puerto  Rico v.  Empire Gas  of Puerto          ____  _________________________________     _____________________          Rico, 94  JTS 144, *432  (P.R. 1994).   To  successfully prove  a          ____          monopolization  offense, a  plaintiff  must  show  that  (1)  the          defendant has monopoly power  and (2) the defendant  "has engaged          in  impermissible  'exclusionary' practices  with  the  design or          effect  of  protecting  or  enhancing  its   monopoly  position."                                         -27-                                         -27-          Hovenkamp     6.4a.   On  appeal,  CAPECO challenges  the  jury's          verdict that it had monopoly power, and also contends that it did          not  engage in impermissible 'exclusionary' practices in order to          protect or gain a monopoly.                    To  determine  whether  a party  has  or  could acquire          monopoly power  in a market,  "courts have found it  necessary to          consider  the  relevant  market and  the  defendant's  ability to          lessen or destroy  competition in that market."   Spectrum Sports                                                            _______________          v. McQuillan, 506 U.S. 447, 456 (1993).  CAPECO's  first argument             _________          is that the jury erred in finding San Juan Harbor as the relevant          geographic  market for  bunker  fuel.   In general,  the relevant          geographic  market consists of "the  geographic area in which the          defendant   faces  competition   and   to  which   consumers  can          practically   turn  for  alternative  sources  of  the  product."          Baxley-DeLamar v. American Cemetary Assn., 938 F.2d 846, 850 (8th          ______________    _______________________          Cir. 1991);  see also Tampa  Electric Co. v. Nashville  Coal Co.,                       ________ ___________________    ___________________          365 U.S. 320, 327 (1961).                    In its monopolization claim, Coastal argued that CAPECO          took steps to drive it out of San Juan Harbor because  Coastal is          affiliated with a refinery in  Aruba.  Coastal apparently had the          capacity to import the residual oil and diesel into San Juan from          Aruba.   Coastal also  had storage capacity.   CAPECO  feared, so          Coastal's theory  went, that  this would  allow  the refinery  in          Aruba to compete  with CAPECO  and threaten  CAPECO's ability  to          sell  its targeted  10,000 barrels  of  residual oil  per day  to          dealers.    Coastal's  argument  is  that  CAPECO,  fearing  that                                         -28-                                         -28-          Coastal's  affiliate posed a competitive threat, decided to drive          Coastal  out  by  (1) engaging  in  price  discrimination against          Coastal, (2) discriminating in the provision of residual oil, (3)          discriminating in the quality of the residual  oil available, and          (4) threatening to  cut off plaintiff entirely,  eventually doing          so.                    Coastal  successfully  argued  to  the  jury  that  the          relevant geographic market was San  Juan Harbor, since neither it          nor  its competitors,  Caribbean  and  Harbor, could  practicably          obtain supplies in San Juan Harbor from anyone other than CAPECO.          Coastal produced  evidence that CAPECO  made 90% of the  sales of          bunker  fuel to  resellers in the  San Juan Harbor  market -- and          CAPECO does not dispute this figure on appeal.                    CAPECO's main argument regarding monopoly power is that          the  choice  of  San  Juan  Harbor as  the  relevant  market  was          incorrect.  Instead, it maintains that because the broader market          for bunker fuel  among cruise ships and other  vessels plying the          waters  of the  Caribbean  and  the  southeastern  United  States          constrains the  prices CAPECO  can charge  resellers in  San Juan          Harbor, the proper geographic market should have been  defined to          include a much  wider area.  A larger geographic  market would of          course lead to a lower figure for the percentage of sales  in the          market made  by CAPECO, likely defeating the monopoly power prong          of the monopolization offense.                    In  assessing CAPECO's argument,  we must bear  in mind          that "market definition is a  question of fact" and "we therefore                                         -29-                                         -29-          must affirm the jury's conclusion  unless the record is devoid of          evidence   upon  which  the   jury  might  reasonably   base  its          conclusion."  Weiss v. York Hospital, 745 F.2d 786, 825  (3d Cir.                        _____    _____________          1984);  see also  Rebel Oil  Co., 51  F.3d at 1435  (stating that                  ________  ______________          standard   upon    motion   for   directed    verdict,   judgment          notwithstanding the verdict, and summary judgment is "whether the          jury, drawing  all inferences  in favor of  the nonmoving  party,          could reasonably render a verdict in favor of the nonmoving party          in  light of  the substantive law")  (citing Anderson  v. Liberty                                                       ________     _______          Lobby, Inc., 477 U.S. 242, 249-52 (1986)).          ___________                    In  order to  show  that  CAPECO  had  monopoly  power,          Coastal was required  to show that  CAPECO had sufficient  market          power  to raise  price by  restricting  output.   IIA Phillip  E.          Areeda et al., Antitrust Law   501 (1995).  "[S]ubstantial market                         _____________          power that concerns antitrust  law arises when the  defendant (1)          can profitably  set prices  well above its  costs and  (2) enjoys          some protection against [a] rival's entry or expansion that would          erode  such supracompetitive  prices and profits."   Id.   Market                                                               ___          power can  be shown through two types of  proof.  A plaintiff can          either  show direct evidence of market  power (perhaps by showing          actual  supracompetitive   prices  and   restricted  output)   or          circumstantial evidence of market power.   Rebel Oil Co., Inc. v.                                                     ___________________          Atlantic Richfield  Co., 51  F.3d 1421,  1434  (9th Cir.),  cert.          _______________________                                     _____          denied,  116 S.  Ct.  515 (1995).   Market  power  may be  proved          ______          circumstantially by  showing that  the defendant  has a  dominant          share  in  a well-defined  relevant  market  and that  there  are                                         -30-                                         -30-          significant barriers  to entry in  that market and  that existing          competitors lack  the capacity to  increase their  output in  the          short  run.    Id.    Coastal's  evidence  at  trial  was of  the                         ___          circumstantial  type and  thus  the  question  the  parties  have          presented  on  appeal  is  whether  Coastal  supplied  sufficient          evidence for  that CAPECO  had a dominant  share in  the relevant          market.                    Before determining market share, however, the  relevant          geographic  market must be  defined.11  Although,  "[f]inding the          relevant market  and its structure is not a  goal in itself but a          surrogate of market power," see Areeda, supra,    531a, "[m]arket                                      ___         _____          definition  is  crucial."    Rebel  Oil Co.,  51  F.3d  at  1434.                                       ______________          "Without a definition of the relevant market, it is impossible to          determine market share."   Id.  Proving market  definition is the                                     ___          plaintiff's burden.  See H.J., Inc.  v. Int'l Tel. & Tel.  Corp.,                               ___ __________     ________________________          867 F.2d 1531 (8th Cir.  1989) ("The plaintiff carries the burden          of describing a well-defined relevant market, both geographically          and by product,  which the defendants monopolized.");  Neumann v.                                                                 _______          Reinforced Earth  Co., 786 F.2d  424 (D.C. Cir.)  ("The plaintiff          _____________________          bears  the burden of  establishing the relevant  market."), cert.                                                                      _____          denied, 107  S. Ct. 181 (1986);  M.A.P. Oil Co., Inc.  v. Texaco,          ______                           ____________________     _______          Inc., 691 F.2d 1303, 1306 (9th Cir. 1982) ("the proponent of [the          ____          monopolization]  theory must  identify the  relevant product  and                                        ____________________          11  The  plaintiff must also define the  relevant product market.          H.J., Inc.  v. Int'l Tel. & Tel. Corp.,  867 F.2d 1531, 1537 (8th          __________     _______________________          Cir. 1989).   The parties agree that the  relevant product market          is residual  fuel oil  sold by all  refineries for use  as bunker          fuel for ocean-going vessels.                                         -31-                                         -31-          geographic  markets  as  a  threshold  requirement").    Although          Coastal  has properly  pointed  out that  the question  of market          definition is one of fact for the jury, a plaintiff  must present          sufficient evidence from which a  reasonable jury could find  the          existence of the proposed relevant market.  Cf.                                                      ___          Flegel  v. Christian Hosp.  Northeast-Northwest, 4 F.3d  682 (8th          ______     ____________________________________          Cir. 1993) (affirming  grant of summary judgment on  grounds that          there was insufficient evidence  to support plaintiffs'  proposed          market definition).                    A market may be any grouping of sales whose sellers, if          unified  by a  hypothetical cartel  or  merger, could  profitably          raise  prices significantly above the  competitive level.  If the          sales  of  other  producers  substantially  constrain  the price-          increasing ability of  the hypothetical cartel, these  others are          part of the  market.  Areeda, supra,    533b; see also  Rebel Oil                                        _____           ________  _________          Co., 51 F.3d  at 1434 (relying on Professor  Areeda's formulation          ___          of  the  test for  the  relevant  market).   "The  definition  of          relevant market depends  upon economic  restraints which  prevent          sellers from  raising prices  above competitive  levels."   H.J.,                                                                      _____          Inc., 867 F.2d at 1537.          ____                    Coastal  and  CAPECO   have  presented  two   competing          conceptions of the relevant market.  Coastal argues, and the jury          found,12 that the relevant market was the market for residual oil                                        ____________________          12  The  jury answered "yes" to the  special interrogatory asking          "Did Coastal establish that there is a relevant market comprising          of the  sale  of  residual fuel  oil  or diesel  to  bunker  fuel          resellers in the  port of San Juan  and that CAPECO  has monopoly          power in the relevant market?"                                         -32-                                         -32-          for bunker  fuel in  San Juan.   Coastal presented  evidence that          resellers in San  Juan (Harbor, Caribbean and  Coastal) purchased          90% of their  supplies for bunker  fuel from CAPECO.   CAPECO, in          contrast,  has  argued  that  the  relevant  market  is  broader,          consisting of all  sales of residual oil  for bunker fuel in  the          Caribbean  and  Southeastern United  States.   Our review  of the          issue leads us to  conclude that it would  be unreasonable for  a          juror  to infer  from the  evidence presented  that the  sales of          residual  oil for  bunker  fuel  outside of  San  Juan should  be          excluded from the relevant market.                    The  residual oil CAPECO  sells is blended  with diesel          into bunker fuel  and sold by resellers like  Coastal, Harbor and          Caribbean  to large ocean-going  vessels.  Residual  oil refiners          and  bunker fuel  resellers exist  throughout  the Caribbean  and          Southeastern United States.   The parties  agree that the  ocean-          going vessels can choose to  refuel from whatever supplier in the          Caribbean and Southeastern United States offers the best terms as          to price, quality and dependability.   The market for bunker fuel          is  therefore extremely  fluid and  competitive,  as the  parties          agree.                    Coastal  argues  that,  because  of  this  competition,          margins  for  resellers  are  razor  thin  and  it  is  virtually          impossible for  a reseller in  San Juan, like Coastal,  to obtain          residual  oil  from  anyone  other  than  CAPECO.    Transporting          supplies from other  refineries, such as the refinery  Coastal is          affiliated with in  Aruba, would increase the cost of the fuel to                                         -33-                                         -33-          such an extent (transportation costs, import taxes, risk of price          changes, and storage costs) that it is not an economically viable          alternative.  (Of course, this is, it might be observed, somewhat          inconsistent with  the theory  that CAPECO was  so afraid  of the          'threat' from  Coastal and  its Aruba  affiliate,  that it  drove          Coastal  out   of  business.)     Consequently,  Coastal  argues,          resellers of bunker  fuel must purchase from CAPECO  when they do          business in San Juan.  In Coastal's view, the San Juan resellers'          inability to purchase  from suppliers outside  of San Juan  makes          San Juan the relevant market.                    We  do not agree.  The  touchstone of market definition          is whether  a hypothetical  monopolist could  raise prices.   See                                                                        ___          Rebel Oil Co., 51 F.3d at 1434.  Although a reseller based in San          _____________          Juan  may have nowhere else to turn  to in San Juan for its fuel,          Coastal  did  not  produce sufficient  evidence  that  this meant          CAPECO has the ability to restrict supply and raise prices in San          Juan to supracompetitive levels.   Indeed, the evidence points in          the other  direction.   CAPECO cannot sell  its residual  oil for          bunker fuel  unless it does so at a  price at which the resellers          will  be able  to sell  the fuel to  its ultimate  consumers, the          ocean-going vessels.   Those ocean-going vessels can  go anywhere          in the  Caribbean  and Southeastern  United States  to get  their          bunker  fuel.   If  CAPECO  were  to  raise  its  prices  to  the          resellers, the resellers  could not offer the bunker  fuel to the          ocean-going  vessels  at competitive  prices and  the ocean-going          vessels would simply get their fuel at another port.                                         -34-                                         -34-                    Given these facts, the immobility of the resellers does          not mean  that CAPECO could  maximize profits  by raising  prices          significantly above the competitive level.  Raising prices in San          Juan  would repel the  ultimate consumers,  who would  seek other          suppliers.  The  resellers would either stop  purchasing residual          fuel or  cease business,  or both.   CAPECO would  then lose  its          ability  to sell its residual oil for  bunker fuel and this would          redound to the benefit of CAPECO's competitors.  While under most          circumstances  the  immobility  of  the  resellers  would  be  of          considerable  importance  in  defining the  market,  it  does not          control  here  where  the  mobility  of  the  ultimate  consumers          protects  the immobile resellers.   Cf. Ball Memorial Hosp., Inc.                                              ___ _________________________          v.  Mutual  Hosp. Ins.,  Inc.,  784  F.2d  1325 (7th  Cir.  1986)              _________________________          (Easterbrook,   J.)  (relevant  market  for  purposes  of  health          insurance  coverage  to  Indiana   consumers  was  "regional   or          national" not simply Indiana, even though Indiana consumers could          not  get insurance  from any  source other  than defendant  doing          business in  Indiana; the  mobility  of potential  rivals to  the          defendant protected the consumers whose mobility was restricted).          Under the circumstances here,  defining the market as San Juan is          too narrow.  It does not capture the likelihood of expanded sales          by CAPECO's rivals in the event that CAPECO were  to raise prices          in San Juan.                    Once  the relevant  market  is  defined  to  include  a          geographic region larger  than San Juan (i.e., the  Caribbean and                                                   ____          Southeastern United States), Coastal has not satisfied its burden                                         -35-                                         -35-          of  showing that  CAPECO  had  a dominant  market  share.   While          Coastal might, at least in theory, have shown that all refineries          throughout  the  Caribbean  and the  Southeastern  United  States          behaved like  a cartel and  priced their residual oil  to capture          the transportation  and other costs  of getting oil  from sources          outside the  local ports,  it has  not done  so here  and it  has          failed  to produce evidence  sufficient for a  reasonable jury to          infer that such  was the case.   In short, Coastal has  not shown          that CAPECO  had monopoly  power over the  relevant market.   Cf.                                                                        ___          Zoslaw  v. MCA  Distrib. Corp.,  693 F.2d  870, 886-87  (9th Cir.          ______     ___________________          1982) (secondary-line price  discrimination under Robinson-Patman          Act does not  necessarily violate Sherman Act), cert. denied, 103                                                          ____________          S. Ct. 1777 (1983).  Accordingly, Coastal's monopolization claims          fail  under  both section  2  of the  Sherman  Act and  Title 10,          Section  260  of the  Laws  of  Puerto Rico  and  we reverse  the          monopolization  verdicts.   We note  that  because we  affirm the          price discrimination verdict, the  reversal on the monopolization          theory, by  itself, leaves    unchanged the  amount of  antitrust          damages  awarded, subject to our discussion on damage evidentiary          sufficiency in Part I.D., infra.                                    _____                                         -36-                                         -36-                               C.  Puerto Rico Law Tort                               C.  Puerto Rico Law Tort                    CAPECO also challenges the  judgment on Coastal's claim          under 31 L.P.R.A.  5141 ("Article 1802").13   CAPECO claims  that          Coastal  was required  to  allege  and prove  the  elements of  a          recognized  tort, and  failed to  do  so.   According to  CAPECO,          because the Supreme Court of Puerto Rico has recently declined to          rule that violation of an antitrust statute will also necessarily          give  rise to a  violation of Article  1802, the  violation of an          antitrust statute  does not give  rise to a  per se violation  of                                                       ___ __          Article 1802.   See Pressure Vessels of Puerto Rico,  94 JTS 144,                          ___ _______________________________          *438-39.   Additionally, CAPECO challenges the sufficiency of the          evidence supporting the judgment on  this issue.  CAPECO asks for          a reversal of the verdict on these grounds.                    CAPECO's  arguments may well  have merit.   However, we          need  express no opinion  regarding CAPECO's arguments  as CAPECO          waived them  by  failing  to  object  to  the  jury  instructions          regarding the  Article 1802  claim.  See  Linn v.  Andover Newton                                               ___  ____     ______________          Theological School, Inc., 874  F.2d 1, 5.   These are not  simply          ________________________          technical  requirements.    By  failing to  object  to  the  jury          instructions,  CAPECO denied "the judge an opportunity to correct          his  error," assuming that CAPECO  rightly contends that an error                                        ____________________          13  Article 1802 states, in pertinent part, that:                      [a]  person who  by  an  act or  omission                      causes damage to another through fault or                      negligence shall be obliged to repair the                      damage so done.          Id.          ___                                         -37-                                         -37-          was made.  Id.  While CAPECO may correctly contend that antitrust                     ___          violations  do not  fall within  the scope  of Article  1802, the          district court's jury  instructions were not strictly  limited to          antitrust  offenses.    It  is  entirely  possible that,  had  an          objection been  made, the district  court could have  charged the          jury with antitrust offenses as an Article 1802 ground separately          from  other Article  1802 grounds  that may  have applied  in the          present case.  For example,  it could have charged the jury  with          tortious interference  with contractual  relations, since  CAPECO          may well have intentionally complicated, via its refusal to deal,          Coastal's efforts to meet its obligations to deliver bunker fuel.          See General Office Products Corp. v. A.M. Capen's Sons, Inc., 780          ___ _____________________________    _______________________          F.2d 1077, 1081 (1st Cir. 1986)  (noting that even in the absence          of  a contract,  liability may  be incurred under  other judicial          principles) (citing General Office Products Corp. v. A.M. Capen's                              _____________________________    ____________          Sons,  Inc.,  No. 0-84-278,  Trans.  Op.  at  6-7 (P.R.  June 29,          ___________          1984)).   By failing to  object to the instructions  in question,          CAPECO has deprived us  of factual findings that would aid in the          resolution of  these issues.   Because of  the generality  of the          instruction,  we  conclude  that  evidence  existed  of  CAPECO's          possibly tortious conduct  sufficient for the jury  to reasonably          reach the verdict that it did.                    CAPECO also challenges the  sufficiency of the evidence          supporting the Article 1802 findings.  However, CAPECO has waived          review here  of this argument too by failing  to move at any time          for a judgment  as a matter of  law on this ground  under Fed. R.                                         -38-                                         -38-          Civ.  P. 50(a),  see Wells  Real Estate,  Inc. v.  Greater Lowell                           ___ _________________________     ______________          Board  of   Realtors,  850  F.2d   803,  810   (1st  Cir.   1988)          ____________________          ("[a]ppellate review may  be obtained only on the specific ground          stated in the motion for directed verdict").14                    As  a  result  of  CAPECO's  failure  to  preserve  its          arguments for  review on  appeal, we affirm  the judgment  on the          Article 1802 claim.                          D.  Sufficient Evidence on Damages                          D.  Sufficient Evidence on Damages                    CAPECO also  argues that Coastal's evidence  on damages          was  inadequate as  a matter  of law,  and therefore,  the jury's          verdict  on damages  must  be reversed.    In particular,  CAPECO          argues that, as a new market entrant, Coastal was required to use          the "yardstick" method of estimating damages.                    With respect  to the  issue of  how accurately  damages          must  be  measured, "there  is  a clear  distinction  between the          [relatively high] measure of proof necessary to establish that [a          plaintiff] has  sustained some  damage and  the [relatively  low]          measure of proof necessary to enable the jury to fix the amount."          Story Parchment  Co. v.  Paterson Parchment  Paper Co.,  282 U.S.          ____________________     _____________________________          555, 562 (1931).  In  the antitrust context, "the most elementary          conceptions  of  justice  and  public  policy  require  that  the          wrongdoer shall  bear the risk  of the uncertainty which  his own                                        ____________________          14   In 1991, Rule  50 was amended,  and the term  "judgment as a          matter of  law" was adopted  "to refer  to preverdict"  (directed          verdict) and "postverdict" (judgment notwithstanding the verdict)          "motions  with a  terminology that  does not  conceal  the common          identity  of  two   motions  made  at  different   times  in  the          proceeding."  See Fed. R. Civ. P. 50 advisory committee's note.                        ___                                         -39-                                         -39-          wrong has created."  Bigelow v. RKO Radio Pictures, 327 U.S. 251,                               _______    __________________          256  (1946).   Nonetheless,  the  plaintiff  must  still  produce          evidence  from which  the jury  can  make a  just and  reasonable          inference.   Wells Real Estate,  Inc. v. Greater Lowell  Board of                       ________________________    ________________________          Realtors, 850  F.2d 803, 816  (1st Cir.), cert. denied,  488 U.S.          ________                                  ____________          955 (1988).                    Citing Home Placement Service v. The Providence Journal                           ______________________    ______________________          Co., 819  F.2d 1199 (1st  Cir. 1987), CAPECO argues  that Coastal          ___          was  required to  use the yardstick  method for  calculating lost          profits, rather than the "before-and-after" method.  Id. at 1205-                                                               ___          06.   Under  the  yardstick approach,  the plaintiff  attempts to          identify a  firm similar to the plaintiff in all respects but for          the impact of  the antitrust violation.  Hovenkamp    17.6b2.  By          contrast, under the "before-and-after" method, the court looks at          the plaintiff's  business before  the violation occurred,  during          the   violation  period,  and  after  the  violation  ended,  and          estimates  the  amount   by  which  the  violation   reduced  the          plaintiff's profits.  Id.   17.6b1.                                ___                    We conclude  that whether  a yardstick  record must  be          used ultimately  requires an appraisal  of the  reliability of  a          firm's track record,  and the length of that track  record is one          factor to consider.  The plaintiff in Home Placement Services had                                                _______________________          operated  as planned  only weeks  before  the alleged  violations          began.  Home Placement Services can best be read as demonstrating                  _______________________          both  the  type of  situation  in  which  a yardstick  method  is          preferable,  and  the  factors  that should  go  into  a  court's                                         -40-                                         -40-          evaluation of  the comparability of  the yardstick firm  or firms          with the plaintiff.15                    Ultimately, the  proper method should be  determined by          the district court in accord with the facts of the situation.  In          this case, the district court will have exactly that opportunity,          since  we  must vacate  the  district court's  damages  award and          remand for further  proceedings.  The district court  charged the          jury  with  an  instruction  to find  an  amount  for  "antitrust          damages,"  comprising awards  for both  price discrimination  and          monopolization claims.16   Because we reverse  the monopolization          verdict, if  left to stand,  the jury's  antitrust damages  award          would likely constitute an excessive  recovery.  In coming to its          conclusion, the jury may well  have weighed harms resulting  from          conduct  that  was  pleaded with  respect  to  the monopolization          offense (e.g. refusal  to deal with a customer,  lying, etc.) but                   ____          would   have  been  additional  to  harms  resulting  from  price          discrimination, the  claim we  uphold.   Furthermore, were  we to                                        ____________________          15   We  note in  passing  that the  plaintiff-appellant in  Home                                                                       ____          Placement  Services was challenging the district court's award of          ___________________          nominal damages and instead  sought damages based on  a yardstick          analysis;  the appeals court  upheld the nominal  damages finding          because the evidence was "not 'sufficient to get the Court beyond          the  guessing  stage.'"   Id.  at 1209  (quoting  William Goldman                                    ___                     _______________          Theatres, Inc. v.  Loew's, Inc., 69 F.  Supp. 103, 106 (E.D.  Pa.          ______________     ____________          1946), aff'd, 164  F.2d 1021, 1022 (3d Cir.  1947), cert. denied,                 _____                                        ____________          334 U.S. 811 (1948)).          16   We understand the  difficult choice that the  district court          faced.   As a  practical matter,  it would  be difficult,  if not          impossible, for a  juror to segregate antitrust damages  due to a          monopolization   offense   but   not   due   to   illegal   price          discrimination  from   antitrust  damages   due  only  to   price          discrimination, where as here, the  facts and conduct involved in          both allegations greatly overlap.                                           -41-                                         -41-          allow  the  verdict   to  stand  despite  our   reversal  of  the          monopolization verdict,  there would exist the  strong likelihood          that the jury  had granted Coastal  a duplicative recovery  under          monopolization  and  tort  law,  for injury  caused  by  the same          conduct, such as  refusal to  deal and  lying.   The law  "abhors          duplicative recoveries."   Dopp v.  HTP Corp., 947 F.2d  506, 517                                     ____     _________          (1st  Cir. 1991) (vacating damage award for, among other reasons,          "a  strong  likelihood  that  the  remedies  thus  far  conferred          overlap").  Thus,  we find that the district  court's award rests          on an error  of law.  See  Adams v. Zimmerman, No.  94-2161, slip                                ___  _____    _________          op. at  17, ___ F.3d  ___, ___, (1st  Cir. 1996) (stating  that a          "district court's award  is reviewed for  an abuse of  discretion          unless it  relies on  an erroneous legal  determination").   As a          result, we must vacate the antitrust damage award of $4.5 million          ($1.5 million trebled), and remand for further proceedings.                            II.  Arguments for a New Trial                            II.  Arguments for a New Trial                    In  addition to  its  arguments  for  reversal  of  the          district  court's  findings, CAPECO  makes several  arguments for          reversal of the district court's  denial of its motion for a  new          trial.                    "The authority to  grant a new trial . .  . is confided          almost entirely to the exercise of discretion on the  part of the          trial court."   Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33,                          __________________    _____________          36 (1980), cited in Wells Real Estate, Inc. v. Greater Lowell Bd.                     ________ _______________________    __________________          of Realtors,  850 F.2d 803, 810 (1st Cir.  1988).  "Only abuse of          ___________          discretion will trigger  reversal of a denial of a motion for new                                         -42-                                         -42-          trial."  Vel zquez  v. Figueroa-G mez, 996 F.2d  425, 427 (1993).                   _________     ______________          In reviewing for  abuse of discretion, we must bear  in mind that          the  trial court's discretion is quite limited concerning motions          for new trials.  "A trial judge may not upset the  jury's verdict          merely   because  he   or  she   would  have  decided   the  case          differently."  Id.                         ___                               A.  Duplicative Judgment                               A.  Duplicative Judgment                    In  support of  its  request for  a  new trial,  CAPECO          argues  that  the  damages awards  constituted  an  impermissible          double recovery.   CAPECO contends that both  Coastal's antitrust          and tort claims were grounded in  the same set of acts.   Because          we  vacate and remand the  antitrust damages for further findings          on price  discrimination damages, we  construe CAPECO's  argument          that price  discrimination  and  tort  damages  would  constitute          duplicative damage recoveries,   see Borden  v. Paul Revere  Life                                           ___ ______     _________________          Ins. Co., 935 F.2d 370, 382 (1st  Cir. 1991) ("recovery against a          ________          defendant  under  one  tort   theory  precludes  any  duplicative          recovery for the same damages under some other tort theory"), and          so a new trial or remittitur is required, see Dopp v.  HTP Corp.,                                                    ___ ____     _________          947 F.2d 506, 516 (1st Cir. 1991).                    We  reject this  argument for  three  reasons.   First,          CAPECO failed  to object to  the form or  content of  the special          interrogatories to which the  jury answered.  Second, CAPECO  may          well have  waived its right  to raise  this issue here,  since it          failed to  raise the  issue  in a  timely manner  with the  trial          court.  Previously, we have held  that a defendant may not  argue                                         -43-                                         -43-          verdict inconsistency  if he or  she failed to object  "after the          verdict  was read  and  before  the jury  was  discharged."   See                                                                        ___          McIsaac v. Didriksen  Fishing Corp., 809 F.2d 129,  134 (1st Cir.          _______    ________________________          1987).  This  rule is grounded in the realization that "to decide          otherwise   would   countenance    'agreeable   acquiescence   to          perceivable  error  as a  weapon  of appellate  advocacy.'"   Id.                                                                        ___          (quoting Merchant  v. Ruhle,  740 F.2d 86,  92 (1st  Cir. 1984)).                   ________     _____          The same  concern should make  us hesitate to  consider arguments          about verdict redundancy that were similarly not put forth below.                    Finally, "[a] special  verdict will be upheld  if there          is a view of the case which makes the jury's answers consistent."          McIsaac, 809 F.2d  at 133.  As  we have noted above,  Coastal may          _______          have had a  legitimate Article 1802 claim apart  from any overlap          with antitrust law.  Had CAPECO chosen to object to  the district          court's  instructions, the district court may have corrected this          problem.  Accordingly,  giving the district court the  benefit of          the doubt, had  it responded to a timely  objection by CAPECO and          given  an  Article 1802  instruction  that did  not  overlap with          antitrust  claims,  the  jury's  damages  verdicts  on  tort  and          antitrust  claims could  have been  consistent.   Even  assuming,          arguendo,   that  CAPECO  correctly  asserts  that  such  overlap          ________          occurred,  to grant  CAPECO  a new  trial  now  on the  basis  of          duplicative recovery  would allow it  to avoid the result  of its          own failure to object to the Article 1802 instruction.                                 B.  CAPECO's Experts                                 B.  CAPECO's Experts                                         -44-                                         -44-                    Additionally, CAPECO  argues that the  district court's          refusal to allow its two experts, Dr. Jorge Freyre ("Dr. Freyre")          and  Dr. El as Guti rrez ("Dr.  Guti rrez"), to testify was based          on a fundamental error of law and was an abuse of discretion that          requires  that we  reverse the  district  court and  order a  new          trial.                    In  order  to evaluate  CAPECO's  contentions, we  must          review the district court's orders leading up to the exclusion of          the  relevant  testimony.   The  district court's  June  22, 1993          Scheduling Order  stated that  "[t]he parties  will announce  the          names and  qualifications of their  experts by October  1, 1993."          This  date was  modified subsequently  to December  1, 1993.   In          compliance  with   this  order,  CAPECO   named  C sar   Figueroa          ("Figueroa")    and    Rafael    Mart nez-Margarida   ("Mart nez-          Margarida").   On March  1, 1994,  pursuant to  a  motion by  new          counsel for Caribbean,  the district court modified  the previous          order and issued a revised  scheduling order stating "all experts          are to be announced by March 30," and also specifying that expert          reports to be used "during each party's case-in-chief" were to be          exchanged on June 3, 1994,  and that expert rebuttal reports were          to be exchanged  on July 1, 1994.   Upon CAPECO's June  1 motion,          the date for reports to be exchanged was extended  by an "Omnibus          Order" to  ten days after service of that order, dated August 15,          1994.   On August  29, 1994, Coastal  delivered to  CAPECO expert          reports  prepared by  Dr. Sherwin  and  Dr. Zalacain, and  CAPECO          provided  Coastal with  an expert  report  prepared by  Figueroa.                                         -45-                                         -45-          These  experts were deposed between September 9 and September 14,          and  thereafter  CAPECO  retained  experts  Dr.  Freyre  and  Dr.          Guti rrez ostensibly as  rebuttal witnesses under Fed. R. Civ. P.          26(a)(2)(C).  CAPECO informed Coastal on September 20, 1994, that          it had retained  Dr. Freyre as a rebuttal  witness, and similarly          informed Coastal  of Dr. Guti rrez  on or about October  4, 1994.          CAPECO informed  the  district court  about  Dr. Freyre  and  Dr.          Guti rrez on October 5, 1995.                    The  district  court   instructed  CAPECO  to   produce          Dr. Freyre  and Dr.  Guti rrez  and to  make  them available  for          depositions.  On  October 5 and October 6,  Coastal filed motions          in limine to  exclude Dr. Freyre and Dr. Guti rrez, respectively,          on   the  theory   that  neither   witness   could  properly   be          characterized as  a "rebuttal" witness within the meaning of Rule          26(a)(2)(C), and thus both should have been disclosed previously.          After  oral argument, the district court granted Coastal's motion          and excluded the testimony of  Dr. Freyre and Dr. Guti rrez.  The          district court, upon  CAPECO's admission that  it planned to  use          Dr. Freyre  and Dr. Guti rrez  in its  case-in-chief, noted  that          "you got a problem  with my orders because you  have not complied          with my orders  insofar as Freyre and Guti rrez [are] concerned,"          apparently referring  to the  previous scheduling order  deadline          for experts in the case-in-chief to be disclosed.                    CAPECO  argues (1) that  because the Omnibus  Order did          not  provide  a deadline  for  the  exchange  of rebuttal  expert          reports,   no  scheduling  order   applied,  and   therefore  the                                         -46-                                         -46-          disclosure of Dr. Freyre and Dr. Guti rrez was controlled by Rule          26(a)(2)(C);17  and (2) that the district court misconstrued Rule          26(a)(2)(C) to signify that a defendant cannot offer testimony to          "contradict  or  rebut"  under  Rule 26(a)(2)(C).    We  need not          consider whether  the district  court in  fact misconstrued  Rule          26(a)(2)(C),  because,  for three  reasons, we  find no  abuse of          discretion  in its  exclusion  of  these  witnesses  as  rebuttal          witnesses.  First, at no time  did CAPECO ever seek leave of  the          court  to  announce  the  names  of  experts  not  disclosed   by          December 1, 1993, as  originally required, or by  March 30, 1994,          as  permitted by  the  trial court.   CAPECO's  motion of  June 1          sought extension  principally  due to  alleged noncooperation  by          Coastal  in discovery, making CAPECO's experts' task difficult to          complete by the deadline then in effect.  We cannot  conclude, as          CAPECO  does, that  the Omnibus  Order's  extension rendered  all          other  orders unbinding.   Because  CAPECO  did not  ask for  its          extension on the grounds it  now argues, the district court could          not  have  had  such an  effect  in  mind, nor  was  it  given an          opportunity to consider such effect.   A trial court may "readily          exclude a  witness or exhibit  if some previous  order had set  a          deadline  for  identification and  the  proponent [has],  without          adequate excuse, failed  to list the witness or  exhibit."  Fusco                                                                      _____                                        ____________________          17    Rule  26's   schedule  concerning  the  duty   to  disclose          information concerning expert witnesses and their opinions may be          altered by  the court.  See Fed.  R. Civ. P. 26(a)(2)(C) (setting                                  ___          forth  schedule of  disclosure  of  expert  testimony  "[i]n  the          absence of other directions from  the court or stipulation by the          parties").                                         -47-                                         -47-          v. General  Motors Corp., 11 F.3d  259, 265 (1st  Cir. 1993); see             _____________________                                      ___          also Freund  v. Fleetwood  Enter., Inc., 956  F.2d 354  (1st Cir.          ____ ______     _______________________          1992).                    Additionally, we cannot agree that the district court's          March 1, 1994, Scheduling Order was necessarily superceded, given          that  that order  scheduled trial  for October  24, 1994,  and in          fact, trial began on  that date.  The  proximity in time  between          CAPECO's attempts  to bring in  Dr. Freyre and Dr.  Guti rrez and          actual trial casts doubt on  any argument that CAPECO was somehow          misled  into thinking  that previous  Scheduling  Orders did  not          apply.   Finally, even assuming  that CAPECO is correct  that the          Scheduling Order's  provisions regarding  rebuttal witnesses  had          been superceded and  thus Rule 26(a)(2)(B) applied,  the district          court  might still have enforced its previous deadlines regarding          experts in the case-in-chief.  For  better or for worse, at  oral          argument  on October  21, 1994  (three days  before trial  was to          start),   counsel  for  CAPECO  identified  Dr.  Freyre  and  Dr.          Guti rrez as witnesses in its case-in-chief.18                    Given  the circumstances, we  cannot conclude  that the          exclusion of the testimony of Dr. Freyre and Dr. Guti rrez was an          abuse of discretion warranting a new trial.                       C.  CAPECO's Meeting Competition Defense                       C.  CAPECO's Meeting Competition Defense                                        ____________________          18  At  one point in the  oral argument over Coastal's  motion in          limine to exclude  Dr. Freyre and Dr. Guti rrez,  the court asked          "And  when are  you  going to  bring  them?"   To  this question,          counsel  for CAPECO  directly  responded, "We  are  going to  use          [them] in our case [in] chief."                                         -48-                                         -48-                    CAPECO  also argues that the district court should have          given jury  instructions on  the affirmative  defense of  meeting          competition.   Section  2(b) of  Clayton Act,  as amended  by the          Robinson-Patman Act, permits a defendant  to rebut a prima  facie                                                               _____  _____          case of violation  by showing that its  lower price "was made  in          good faith to  meet an equally  low price of  a competitor."   15          U.S.C.    13(b).  The "meeting competition" defense can be raised          only  by a defendant  who responds in good  faith to the believed          lower  price of  a competitor.   United  States v.  United States                                           ______________     _____________          Gypsum Co.,  438 U.S. 422  (1978), appeal after remand,  600 F.2d          __________                         ___________________          414 (3d Cir. 1979), cert. denied, 444 U.S. 884 (1979).                              ____________                    We need not consider CAPECO's argument that it believed          in  good faith  that it  was responding  to a  competitive threat          posed by Coastal in combination  with its parent CFMI, because we          conclude that even  assuming that Coastal and CFMI  were a single          entity, they do not constitute  a competitor in the same specific          area as CAPECO, see Falls City, 460 U.S.  at 448.  In Falls City,                          ___ __________                        __________          the  Supreme Court concluded  that Congress intended  the meeting          competition  defense "to allow reasonable pricing responses on an          area-specific  basis  where   competitive  circumstances  warrant          them."   Id. at 448.   Here, the district court  could reasonably                   ___          conclude  that the defense did not  apply, since there was a lack          of  evidence, beyond CAPECO's own employees' testimony about what          they believed to  be the case, that CFMI offered  lower prices on          bunker fuel in San Juan than CAPECO.  See Rose  Confections, Inc.                                                ___ _______________________          v. Ambrosia Chocolate  Co., 816 F.2d 381, 391-93  (8th Cir. 1987)             _______________________                                         -49-                                         -49-          (ruling  defense rejected where  seller relied on  "assumption or          speculation" without  verification that competitor's  prices were          in fact lower).  Therefore, we do not find abuse of discretion in          the district court's denial of a  new trial based on its  refusal          to issue a jury instruction on the meeting competition defense.                    D.  CAPECO's Puerto Rico Law Tort Counterclaim                    D.  CAPECO's Puerto Rico Law Tort Counterclaim                    CAPECO  contends  that  the  district  court  erred  in          dismissing its counterclaim grounded in Article 1802, 31 L.P.R.A.            5141.  According  to CAPECO, it  was a compulsory  counterclaim          and was thus  not barred by the one year  statute of limitations,          at least to the extent of defeating the main claim.                    We reject CAPECO's argument for two reasons.  First, in          opposition  to Coastal's  motion  for  summary  judgment  on  the          counterclaim,  it failed  to  inform the  district  court of  the          theory  it  now  advances,  that  it is  entitled  to  recoupment          notwithstanding the  statute of  limitations.   Additionally, the          gist of CAPECO's counterclaim argument  was that the threat posed          by Coastal and CFMI allegedly working in concert forced CAPECO to          give Harbor  and  Caribbean discounts,  costing CAPECO  potential          profits.  Given that we  uphold the district court's finding that          these  discounts were illegal price discrimination, it appears at          least doubtful under Puerto Rico  law that CAPECO can collect for          any lost profits thereby incurred.  See, e.g., Rubio-Sacarello v.                                              ___  ____  _______________          Roig,  84 D.P.R.  344, 351  (P.R. 1962)  (stating, in  a contract          ____          context, that  one who  is guilty of  illegality cannot  bring an          action).  As a result, we fail to find abuse of discretion by the                                         -50-                                         -50-          district court  in its decision not to grant  a new trial on this          basis.                                      CONCLUSION                                      CONCLUSION                                      __________                    Coastal   succeeded  below   on  three   claims:  price          discrimination, monopolization  and  tort.   CAPECO's failure  to          make the points below that it now argues on appeal hamstrung  its          attempt to obtain  reversal of the price discrimination  and tort          claims.  But  the definition of relevant  market Coastal espoused          could  not  be  reasonably  adopted  by  the  jury,  since   this          definition  was legally insufficient in neglecting to account for          downstream constraints on  the proposed monopoly, and  in failing          to draw on  sufficient evidence regarding those constraints.                    For the foregoing reasons, the judgment of the district          court is affirmed in part, reversed in part, and remanded.                   ________________  ________________      ________                                         -51-                                         -51-
