
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 92-1987                                KISHANLAL CHAKRABARTI,                                 Plaintiff, Appellee,                                          v.                  JOSEPH L. COHEN, M.D., and MICHAEL J. GILL, M.D.,                               Defendants, Appellants.                                 ___________________          No. 92-1988                                KISHANLAL CHAKRABARTI,                                Plaintiff, Appellant,                                          v.                            JOSEPH L. COHEN, M.D., ET AL.,                                Defendants, Appellees.                                 ____________________                                     ERRATA SHEET               The  opinion of  this  Court issued  on  July 22,  1994,  is          amended as follows:               On page 9, last line, replace "count II;" with "count III;".                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1987                                KISHANLAL CHAKRABARTI,                                 Plaintiff, Appellee,                                          v.                  JOSEPH L. COHEN, M.D., and MICHAEL J. GILL, M.D.,                               Defendants, Appellants.                                 ____________________        No. 92-1988                                KISHANLAL CHAKRABARTI,                                Plaintiff, Appellant,                                          v.                            JOSEPH L. COHEN, M.D., ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS              [Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge]                                            __________________________                                 ____________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Timothy  A. Mullen, Assistant Attorney General, Government Bureau,            __________________        Trial Division, with whom Scott Harshbarger, Attorney General,  was on                                  _________________        briefs for defendants.            Robert LeRoux Hernandez for plaintiff.            _______________________                                 ____________________                                    July 22, 1994                                 ____________________                 BOUDIN, Circuit Judge.  Dr. Kishanlal Chakrabarti served                         _____________            as a staff psychiatrist at the Lemuel Shattuck Hospital ("the            hospital"),  a facility  of  the Massachusetts  Department of            Public  Health.   In  this suit  he  sought redress  for  his            discharge by the hospital,  and won a jury award  of $75,000.            Both sides appeal.  We affirm.                 The background facts are straightforward.  Born in India            and trained in England, Chakrabarti  joined the staff of  the            hospital  in  1979  and  worked initially  in  its  geriatric            psychiatry unit.  In  the early 1980s, another facility--this            one  managed by a different state agency--was merged into the            hospital.   Chakrabarti  disagreed  with the  merger and  its            implementation and made his criticisms known; and he objected            unsuccessfully to the naming  of Dr. Michael Gill as  head of            the combined psychiatric unit at the hospital.                 In October 1985 Gill asked Chakrabarti to resign, citing            their inability to work together and asserted deficiencies in            the  latter's  performance.     Chakrabarti's  new  immediate            supervisor,  Dr. Susan  Wehry, also  expressed  some concerns            about his performance.  Gill repeated his request in December            1985  and Chakrabarti  rejected the  request.   In June  1986            Wehry replaced  Chakrabarti in her unit  with another doctor,            and  the  hospital's chief  of  medicine,  Dr. Joseph  Cohen,            assigned  Chakrabarti to  a  newly created  job: guardianship            coordinatorandutilization                                    reviewphysicianfor                                                     psychiatricpatients.                                         -2-                                         -2-                 During  the  next  twelve  months  Chakrabarti  did  not            perform  his new duties to the satisfaction of Cohen, Gill or            Wehry.   Chakrabarti in turn took  the view that his  new job            was  effectively a  demotion,  cutting him  off from  medical            practice with patients  at the  hospital.  On  June 5,  1987,            Gill gave Chakrabarti a negative evaluation and told him that            if Chakrabarti still  declined to resign, Gill would urge the            Medical  Executive  Committee  not  to   renew  Chakrabarti's            clinical  privileges.1     On  June  8,   1987,  the  Medical            Executive   Committee  voted  unanimously  not  to  recommend            renewal.                  Later in June 1987  Chakrabarti was formally notified of            the decision not to  renew; the reason given was  his failure            to  perform satisfactorily  his current  assignment.   He was            told that he could appeal pursuant to the hospital's medical-            staff bylaws.   Chakrabarti apparently could  not perform his            guardianship  role without  clinical  privileges but  he  was            continued on the hospital  payroll until June 1988.   At that            time  he  was  terminated on  the  ground  that  no post  was            available  for  him at  the  hospital  because  he could  not            perform clinical duties there.                                              ____________________                 1Under  the by-laws clinical  privileges were reexamined            every two years by  the Medical Executive Committee  on which            Cohen  sat.   Its  recommendation could  be  appealed to  the            Public  Health Council  headed by  the State  Commissioner of            Public Health.                                         -3-                                         -3-                 In  1988  Chakrabarti  brought  the  present  action  in            district court, naming as  defendants Cohen, Gill and several            others who are no longer parties  to the case.  The complaint            set  forth five  counts: a section  1983 claim  under federal            law,   42  U.S.C.     1983  (count  I);  a  claim  under  the            Massachusetts Civil Rights Act, Mass. Gen. L. ch. 12,    11H,            11I  (count II); and state  common law claims for intentional            infliction  of emotional  distress (count  III), interference            with business relations (count IV), and defamation (count V).            Damages and reinstatement were both sought.                 The  first trial occurred  in November 1991.   The court            directed a verdict  for defendants on count  III.  Thereafter            the jury found in favor of Cohen and Gill on counts I, II and            V.   On count IV the  jury found in favor  of Chakrabarti and            awarded him  $1 in nominal  damages and  $30,000 in  punitive            damages.  In  answer to interrogatories,  the jury said  that            Cohen  and   Gill  had   not  sought  to   retaliate  against            Chakrabarti for constitutionally protected speech.                 In January 1992 the  district court resumed  proceedings            to consider equitable relief.  The following month, the court            allowed  Chakrabarti to  amend  his  complaint to  allege--as            count   VI--violations   of  substantive   due   process  and            procedural due process; these were  to be considered as bases            for  equitable relief on the existing record.  The court also            ordered a new jury trial on damages under count IV because it                                         -4-                                         -4-            concluded  that  punitive damages  were  not  permitted under            Massachusetts  law  on  count IV.    A  retrial  on count  IV            occurred  in March  1992,  and the  jury awarded  Chakrabarti            $75,000 in actual damages against Cohen and Gill.                 Thereafter the  district court  resolved the claims  for            equitable relief.   It first  found that the  substantive due            process claim failed on the merits.  Later the court rejected            the procedural due process  claim; the court said Chakrabarti            had been terminated prematurely because Cohen and Gill failed            to  follow required  procedures,  but the  state provided  an            adequate  appeal  process  that  Chakrabarti  had  failed  to            follow.    Finally,  as to  count  IV  the  court found  that            equitable relief  was barred  by the Pennhurst  doctrine, see                                                 _________            ___            Pennhurst State School  & Hospital v. Halderman,  465 U.S. 89            __________________________________    _________            (1984).  It also  ruled that under state law  attorney's fees            were not available as to count IV.                 On June 26, 1993, judgment  in favor of Chakrabarti  and            against Cohen and Gill was entered on count IV in the  amount            of  $75,000 plus  $33,351.45 in  pre-judgment  interest, plus            costs.   Judgment was entered  in favor of  the defendants on            all other counts.   Represented by the state, Cohen  and Gill            appeal from the  judgment on count  IV.  Chakrabarti  appeals            from the  judgment on counts  III and VI  and the  refusal to            allow attorney's fees as damages under count IV.                                           -5-                                         -5-                 We  start with the appeal  by Cohen and  Gill.  Although            limited  to count  IV,  this appeal  raises several  distinct            issues.  Defendants begin by asserting that on this record no            reasonable  jury could  have  found that  the defendants  had            unlawfully   interfered   with   an   advantageous   business            relationship, and a verdict should have been directed on this            count.  On appeal, we draw all reasonable inferences in favor            of the party who opposed  the directed verdict and  prevailed            at trial;  and credibility  issues are similarly  resolved in            favor of the jury verdict.  Santiago-Negron v. Castro-Davila,                                        _______________    _____________            865 F.2d 431, 445 (1st Cir. 1989).                 Both sides agree that the elements of the count IV claim            under Massachusetts  law are  a business relationship  with a            third party, knowledge of  it by the defendants, interference            "through improper motives  or . .  . means," and harm.2   The            defendants say that  under state law they enjoyed the benefit            of  statutory privileges that  protect them  so long  as they            acted in good faith  and in the reasonable belief  that their            actions were proper.  See Mass. Gen. L. ch. 231,   85N; Mass.                                  ___            Gen.  L. ch.  111,     203(c).    And,  say  the  defendants,            Chakrabarti's  central  argument  is  that he  was  fired  in                                            ____________________                 2United Truck  Leasing Corp. v. Geltman,  551 N.E.2d 20,                  __________________________     _______            23 (Mass.  1990); see also  G.S. Enters. v.  Falmouth Marine,                              ___ ____  ____________     _______________            571  N.E.2d  1363, 1370  (Mass.  1991).   Traditionally,  the            remedy differs  in certain  aspects, depending on  whether an            existing  contract  or  merely  a  business  relationship  is            disarranged; but these differences  have not been stressed in            this case.                                         -6-                                         -6-            retaliation for his  criticism but this  claim is negated  by            the jury's interrogatory answers on this issue.3                   We will  assume arguendo that  the interrogatory answers                                 ________            established  that Cohen  and Gill  did not  retaliate against            protected speech.  This may  mean a debatable assumption; one            might argue that inconsistency in civil verdicts on different            counts   is   permissible   or,    at   best,   grounds   for            contemporaneous  relief (e.g.,  further consideration  by the                                     ____            jury  before entry of the verdicts).  But even if retaliation            for protected  speech were disregarded as  a possible motive,            defendants  must still show  that nothing else  in the record            supported  a finding  of  bad faith  or unreasonable  belief.            Defendants' brief does not attempt the task.                 At trial Chakrabarti sought to  show that he had enjoyed            good  evaluations prior  to Gill's  arrival; that  Gill, with            Cohen's  acquiescence  and  Wehry's  support,  had set  about            building a  false record of  Chakrabarti's incompetence; that            improper threats  had been employed  by Gill; that  Cohen had            assigned Chakrabarti to  a dead-end job  with no guidance  or            help as a pretext for  forcing him out of the hospital;  that            defendants ignored procedures that governed removal; and that            others on the  staff had been outraged at what  they said was                                            ____________________                 3As noted, the jury found in response to interrogatories            under  Fed.  R.  Civ.  P. 49  that  Chakrabarti's  "protected            speech" was not  "a substantial or motivating factor"  in the            actions taken against him by Cohen and Gill.                                         -7-                                         -7-            unfair  treatment  of Chakrabarti.   In  short, Chakrabarti's            criticism of  the new merger and  of Gill was only  a part of            the story.                 Whether the  story has much basis may  be debatable, but            it is the job of  an appellate brief to muster and  array the            evidence  to show why no reasonable jury could find bad faith            or other misconduct.   Here the  defendants' brief on  appeal            makes no serious effort, in support of this ground of appeal,            to analyze the evidence taking it in the light most favorable            to Chakrabarti and resolving credibility issues in his favor.            It is not  our job  to comb a  seven-volume trial  transcript            afresh and without counsel's assistance, and we decline to do            so.   Cf.  U.S. Healthcare, Inc.  v. Healthsource,  Inc., 986                  ___  _____________________     ___________________            F.2d 589, 599 (1st Cir. 1993).                 Although it weakens  Chakrabarti's case  to assume  away            the main  motive he argued to  the jury--supposed retaliation            against protected  speech--it does not  eliminate that  case.            Fabricating false claims  of incompetence could  easily serve            as  wrongdoing under count IV  even if one  assumed that Gill            acted  out of  personal dislike  and Cohen  and Weary  out of            loyalty to Gill.  The original punitive damage award suggests            that the jury may well have taken such a view  of the matter.            Quite possibly  the jury was  wrong.   But it is  the job  of            defendants' counsel to show  us why and counsel has  not made            the effort.                                         -8-                                         -8-                 Later in their brief defendants make a different kind of            argument against liability.  They say that as a matter of law            administrators  of   the  hospital  cannot   be  liable   for            interference  with an  advantageous relationship  between the            hospital  and one of its own employees.  This certainly could            be the law  and perhaps ought to be; but  the general rule is            that supervisor  status, or  co-employment, merely  creates a            privilege  for  good-faith  interference  through  reasonable            means.  See P. Keeton,  Prosser and Keeton on Torts 985  (5th                    ___             ___________________________            ed. 1984) (citing cases).                   Defendants  cite  only  a   single  case  to  show  that            Massachusetts  follows a  different course.   Saint  Louis v.                                                          ____________            Baystate Medical Ctr.,  568 N.E.2d 1181  (Mass. 1991).   That            _____________________            case confirms that,  as one might expect,  an employer cannot                                                          ________            be sued by its own employee for interfering with the contract            between them.  Id. at 1188.  But the case does not say that a                           ___            supervisor is similarly exempt from suit; it merely says that            the  supervisor enjoys a privilege to express his views.  Id.                                                                      ___            Nothing  in  the  discussion,  or  in  the  underlying  facts            described  in the  opinion, suggests  that this  privilege is            absolute  or shields  an improper  motive or  improper means.            Accord, Wright  v. Shriners  Hospital, 589 N.E.2d  1241, 1246            ______  ______     __________________            (Mass. 1992).                 Turning to  damages, defendants make  several arguments.            They  first  point to  the  directed  verdict for  defendants                                         -9-                                         -9-            entered  by the district judge  on count III;  they note that            Chakrabarti did  not claim  pecuniary damages (he  appears to            have  earned  more  in  private practice  after  leaving  the            hospital); and  they say that the  emotional distress claimed            as damages under count IV represent the same damages that the            judge declined to permit  under count III.  The  short answer            to  the supposed  inconsistency  is that  the district  judge            dismissed  count  III  because  he  thought  that  outrageous            conduct had not been  shown.  Thus the dismissal  had nothing            to do with a lack of emotional distress.                 Defendants  also  say that  one  who  sues for  wrongful            interference  with  an   advantageous  relationship  may  not            collect compensatory  damages for  emotional trauma  but only            for pecuniary  loss.  This  argument has some  surface appeal            since  the  wrongful   interference  tort   is  directed   to            protecting economic relationships, see Keeton, supra, at 978,                                               ___         _____            and Massachusetts  has a  separately defined tort  to protect            against emotional distress.  But defendants did not make this            argument to the district court, and we cannot say that it was            "plain  error" for the  district court to  allow such damages            where the relationship in question was an economic one.4                                            ____________________                 4Compare American Velodur Metal, Inc. v. Schinabeck, 481                  _______ ____________________________    __________            N.E.2d  209,  216  (Mass.  1985)   (compensation  for  mental            distress and  anxiety allowed),  cert. denied, 475  U.S. 1018                                             ____________            (1986),  with Ratner v. Noble,  35 Mass. App.  Ct. 137 (1993)                          ______    _____            (no   such  compensation   allowed  where   the  relationship            interfered with was a non-pecuniary one).  See Keeton, supra,                                                       ___         _____            at 1003,  n.68, listing  Massachusetts as  one of the  states                                         -10-                                         -10-                 Defendants' last claim on damages is that the first jury            verdict  showed that no actual damages were suffered and that            the district court should simply  have set aside the punitive            damages  award without  granting  a new  trial.   In  one  of            several versions  of this  argument, defendants contend  that            the  jury's finding of no actual damages was untainted by the            misinstruction allowing punitive  damages.  Chakrabarti,  say            the  defendants,   should  not  benefit  from   an  error  in            instructions that he himself invited.                 Based  on  his  remarks,  the  district  judge evidently            believed that  the jury had, under  the mistaken instruction,            accepted the evidence of  emotional distress but  compensated            for it in the punitive damages award.  The judge thought that            fairness required a fresh start on damages, and he noted that            neither  side had  properly  advised him  on the  no-punitive            damages rule.   A new trial on damages was arguably the right            course  and was certainly not  an abuse of  the trial court's            broad discretion to order  new trials.   See Fed. R. Civ.  P.                                                     ___            59(a); Dopp v. HTP Corp., 947 F.2d 506, 518 (1st Cir. 1991).                   ____    _________                 We turn  now to  the cross-appeal by  Chakrabarti.   His            first argument is that the  district court erred in directing            a verdict against him  on his count III claim  of intentional            infliction   of  emotional   distress.     Massachusetts  law                                            ____________________            that  allows recovery  "for  mental suffering"  for  tortious            interference.                                         -11-                                         -11-            recognizes  such a  tort to  redress "extreme  and outrageous            conduct."   Agis v. Howard  Johnson Co., 355  N.E.2d 315, 318                        ____    ___________________            (Mass. 1976).  The district  court thought that no reasonable            jury  could find  that the defendants'  conduct rose  to that            level.  We share that view and therefore by-pass the question            whether count III could have afforded Chakrabarti any further            damages not covered by the count IV award.                 Chakrabarti's brief  portrays the  case as one  in which            "an exemplary  public  servant" and  "inspiring  leader"  was            hounded out of his  job through insults, lies  and calculated            humiliations.   In fact, the record shows not another Dreyfus            affair but a  fairly common employment dispute  etched not in            black and white  but in  gray.  Chakrabarti,  whose own  past            evaluations were  reasonably good but not  flawless, resisted            the new regime; the working relationship deteriorated; he was            shifted to a less attractive job and further disputes ensued;            ultimately,  he was  terminated,  despite the  protests of  a            number of those with whom he had worked.                 In obtaining this termination,  the defendants may  have            misstated  facts  concerning  Chakrabarti's   competence  and            conduct, although his brief  offers more generalizations than            record  citations on  this  point.   The administrators,  who            after  all had gone to medical school rather than law school,            may also have made some procedural missteps, as  the district                                         -12-                                         -12-            court found.5  Perhaps  it was  not an  impermissible stretch            for  a jury to  find their conduct  unprivileged (although as            noted  the evidence  on  this issue  has  not been  seriously            sifted by defendants).   But there is no indication  that any            of  their conduct, or all  of it taken  together, was extreme            and outrageous.                 Life is  crowded with events that  cause emotional upset            and  turmoil.  As one  would expect, the  cases indicate that            Massachusetts law keeps a  reasonably tight rein on the  tort            remedy for intentional infliction of emotional distress.  The            courts' language,  although  general, includes  phrases  like            "beyond all possible bounds of decency," "utterly intolerable            in a civilized community," and "atrocious."  See, e.g., Foley                                                         _________  _____            v. Polaroid Corp., 508  N.E.2d 72, 82 (Mass. 1987);  Short v.               ______________                                    _____            Town  of  Burlington, 414  N.E.2d  1035,  1036 (Mass.  1980).            ____________________            Lawyers,  who use  the term  "outrage" liberally,  may become            tone-deaf to the nuances; but  an atrocity is something  more            than  a faulty  evaluation,  a procedural  error in  applying            opaque  credentials   rules,  or  even  a   dead-end  job  as            competency coordinator.                                            ____________________                 5The principal misstep  described by the district  court            was the termination of Chakrabarti's medical privileges based            on the action  of the  Medical Executive Committee.   As  the            district  judge  read the  by-laws,  that  body merely  makes            recommendations to  the Public Health Council,  which in this            case apparently did not act.                                         -13-                                         -13-                 This discussion also answers Chakrabarti's next claim of            error.  The district court ruled, on count VI, that there was            no  violation of  substantive due  process, a  label normally            reserved for conduct that  is truly shocking.  See  Rochin v.                                                           ___  ______            California,  342 U.S. 165, 172 (1952) (use of stomach pump to            __________            retrieve  evidence).  One need not  be blind to Chakrabarti's            undoubted  distress  to appreciate  that  defendants' conduct            fell far short of the  "egregiously unacceptable, outrageous,            or conscience-shocking."   Amsden v. Moran, 904 F.2d 748, 754                                       ______    _____            (1st Cir. 1990), cert. denied, 498 U.S. 1041 (1991).                             ____________                 As his  third claim  of error, Chakrabarti  asserts that            the  district court erred in  failing to find  a violation of            procedural  due  process.    The  district  court  said  that            Chakrabarti's privileges had been terminated prematurely (see            note  5,  above),  but  that  no  improper  state action  was            implicated.  The court reasoned that the fault lay not in the            by-laws but in defendants' mistaken treatment of  committee's            action as final. Citing Lowe v. Scott, 959 F.2d 323 (1st Cir.                                    ____    _____            1992), the court called this a random and unauthorized action            by individuals and not a basis for relief against the state.                 On  appeal, Chakrabarti's  brief points  to a  different            possible defect in the by-laws and insists that under section            1983 he is entitled to an injunction reinstating his clinical            privileges  (and presumably  to  attorney's fees  as provided            where  relief is obtained under  that section).  The supposed                                         -14-                                         -14-            defect, created by  obscure wording  in the  by-laws, is  the            possibility  that hospital administrators  could frustrate an            appeal from an  adverse committee action by  having the chief            of   the  applicant's   service  unilaterally   withdraw  the            disapproved  application.6    This,  Chakrabarti   argues  at            length, is a wholly foreseeable threat to due process.                 There  is no evidence that any such pocket veto was used            to  frustrate  an  appeal  here.    Rather,  Chakrabarti  was            specifically and  promptly advised of his right to appeal the            adverse  recommendation of  the Medical  Executive Committee.            He took no action to  pursue that right.  It is  unclear that            the  by-law  creates such  a  pocket  veto--the language  may            envision a withdrawal, with the applicant's consent, to avoid            further embarrassment--but in any  event the potential defect            caused no harm in this case.                 The  last issue  in  the case  concerns attorney's  fees            under count IV.  At the second jury trial, Chakrabarti sought            to offer evidence of  attorney's fees as part of  his damages            claimed for tortious interference by defendants.  Recognizing            that attorney's fees are  not normally compensable damages in                                            ____________________                 6Section 6.5-5(c) of the bylaws reads:                      Adverse   Recommendation:      When   the                      ________________________                      recommendation of  the MEC is  adverse to                      the  applicant, the  superintendent shall                      immediately request the chief of services                      to resubmit a revised  application within                      10  days  or  to  withdraw  the  original                      application.                                         -15-                                         -15-            common law actions, Chakrabarti's  counsel cited to the court            an   exception  recognized   in  Massachusetts   in  tortious            interference cases where the victim is forced "to sue . . . .            a third party  in order to  protect his rights."   M.F. Roach                                                               __________            Co.  v. Town  of  Provincetown, 247  N.E.2d  377, 378  (Mass.            ___     ______________________            1969).                 The district  court rejected the evidence,  saying that,            by  contrast  to  Roach,  the present  case  did  not involve                              _____            attorney's fees  incurred in suing  a third party  to restore            contractual  rights; rather  the  fees were  incurred in  the            present suit  to  recover  against  the  alleged  tortfeasors            themselves.     Roach  is   a  very  brief   opinion,  little                            _____            illuminated by later cases.  But its language and what can be            discerned of its rationale give no hint that Roach applies to                                                         _____            legal fees incurred in suing the tortfeasor.                 Rather  imaginatively,  Chakrabarti's  brief  on  appeal            tries to analogize this  case to a suit against  the hospital            in proper persona for reinstatement:  the brief asserts that,            _________________            so  far  as equitable  relief is  concerned, the  request for            reinstatement is  made against the doctors  in their official                                                                 ________            capacity,  just as  if  the hospital  had  been joined  as  a            defendant.  This analogy is not without some force,  although            it may not have been clearly presented to the district court.                 In   any  case,   reinstatement   was  not   granted  to                                                        ___            Chakrabarti in this case or, so far as we know, in any other.                                         -16-                                         -16-            In Roach the attorney's fees allowed were incurred to achieve               _____            redress against the third party.  Here, no such reinstatement            has been  achieved and, in  view of Chakrabarti's  failure to            appeal the  action of  the Medical Executive  Committee, such            relief was always  unlikely.   We have no  warrant to  extend            Roach to  such a situation  where redress  against the  third            _____            party  is not achieved or  even likely, unless  and until the            Massachusetts courts  choose  so to  extend it.   See,  e.g.,                                                              __________            Pearson v. John Hancock Mut. Life Ins. Co., 979 F.2d 254, 259            _______    _______________________________            (1st Cir. 1992).                 This case reveals the  limitations of the trial process,            which imposes  yes or no  answers on liability  questions, in            coping  with muddled disputes of  this kind.   Frankly, it is            not manifestly clear to us  that Chakrabarti deserved to lose            his clinical privileges, nor that Cohen and Gill acted in bad            faith or through  patently improper means.   But the  parties            chose  to litigate  the case  rather than  to settle,  as the            district judge wisely encouraged  them to do, and we  find no            legal error  affecting substantial rights in the proceedings,            nor any basis to overturn the jury's decision.                   Affirmed.                   ________                                         -17-                                         -17-
