

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 94-1044

             EASTERN MOUNTAIN PLATFORM TENNIS, INC.,

                      Plaintiff, Appellant,

                                v.

               THE SHERWIN-WILLIAMS COMPANY, INC.,

                       Defendant, Appellee.

                                           

No. 94-1045

             EASTERN MOUNTAIN PLATFORM TENNIS, INC.,

                       Plaintiff, Appellee,

                                v.

               THE SHERWIN-WILLIAMS COMPANY, INC.,

                      Defendant, Appellant.

                                           

          APPEALS FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

     [Hon. Clarence C. Newcomer,* Senior U.S. District Judge]                                                                      

                                           

                              Before

                    Torruella, Circuit Judge,                                                      
                 Campbell, Senior Circuit Judge,                                                         
                  and Carter,** District Judge.                                                        

                                                  

*    Of   the  Eastern  District  of  Pennsylvania,   sitting  by
designation.

**  Of the District of Maine, sitting by designation.

                                           

     Ovide M.  Lamontagne with whom  George R. Moore  and Devine,                                                                           
Millimet  &amp; Branch, P.A.  were on brief  for The Sherwin-Williams                                  
Company.
     Stephen S.  Ostrach, Patrick  W. Hanifin, Todd  S. Brilliant                                                                           
and New England Legal  Foundation were on brief for  Business and                                           
Industry Association of New Hampshire, amicus curiae.                                                              
     Kenneth G.  Bouchard with whom Paul B. Kleinman and Bouchard                                                                           
&amp;  Mallory, P.A.  were  on brief  for  Eastern Mountain  Platform                          
Tennis, Inc.

                                           

                        November 28, 1994
                                           

                               -2-

          CARTER, Chief  District Judge.  This  action arose from                                                  

the sale of a paint system recommended by Defendant, The Sherwin-

Williams  Company  ("Sherwin-Williams"),  to  Plaintiff,  Eastern

Mountain  Platform Tennis,  Inc. ("EMPT"),  for use  in producing

platform  tennis courts.   Sherwin-Williams' representative David

Shelley ("Shelley") recommended a paint system to EMPT after EMPT

informed Shelley that it would not change products unless the new

system met or exceeded the performance of the paint system it had

used previously.  The Sherwin-Williams  system did not perform as

well as the system it replaced.  In fact, the courts covered with

Sherwin-Williams paints  began to  show signs  of wear,  with the

coating peeling  away from the  aluminum panels  and the  courts'

surface becoming slick  due to loss  of aluminum oxide  aggregate

during the  first season of use.1   After a jury  trial, the jury

entered a verdict in  favor of EMPT in the  amount of $1,087,000.

The  special  verdict form  indicated  that the  jury  found that

                                                  

1  The painting of the tennis platform courts involves a six-step
process  and  two types  of paint.    First, aluminum  panels are
washed  with acid  to  eliminate  grease  and etch  the  surface.
Second,  the panels  are sanded  to increase  the profile  of the
surface.   Third,  a  layer of  primer  epoxy paint  is  applied.
Fourth, aluminum oxide aggregate is  pneumatically broadcast over
the wet epoxy  primer layer.  Fifth, a topcoat  of epoxy paint is
applied.    Sixth,  aluminum  oxide  aggregate  is  pneumatically
broadcast over the wet topcoat.

   The  paint system  must  have  two important  characteristics.
First,  the primer  coat  must  adhere  to the  aluminum  through
extreme  changes  of  temperature  because  the  game  is  played
outdoors  on a year-round basis with a heater installed under the
platform to melt snow and ice.  Second, both the  primer coat and
the  topcoat  must  have  the  capacity  to  hold aluminum  oxide
aggregate  to insure a gritty nonslip surface for platform tennis
players.

                               -3-

Sherwin-Williams  had violated  an express  warranty, an  implied

warranty  of  fitness  for  a particular  purpose,  and  the  New

Hampshire Consumer  Protection Act ("CPA"  or "the  Act").   N.H.

Rev. Stat.  Ann.   358-A (1993).    In  addition, the jury  found

that  Sherwin-Williams  had  willfully  or  knowingly  engaged in

unfair or deceptive  practices.   Pursuant to section  10 of  the

CPA, the trial judge doubled  the jury verdict.  N.H.  Rev. Stat.

Ann.   358-A:10  (1993).   In addition,  the trial  judge awarded

prejudgment interest on  the amount of the  original jury verdict

up to the date of entry  of the final judgment.  N.H. Rev.  Stat.

Ann.   524:1-b (1993).

                         ISSUES ON APPEAL                                                   

          Sherwin-Williams raises a number  of issues on  appeal.

First, it challenges the trial judge's denial of summary judgment

on the CPA claim contending that the CPA does not apply to purely

commercial transactions (i.e.,  transactions that do not  involve                                       

sales  to ultimate consumers).   Second,  Sherwin-Williams argues

that, if the CPA does govern purely commercial transactions,  the

trial judge nevertheless erred in  denying its motion for summary

judgment  on the CPA claim  because the undisputed  facts did not

establish a violation of the Act.  Third, Sherwin-Williams argues

that the trial judge erred in denying its motion to set aside the

verdict  on the CPA claim because the  issue should not have been

presented  to the jury and because it was impossible to determine

what portion,  if any, of  the award  was the result  of the  CPA

                               -4-

violation.   Fourth,  Sherwin-Williams  contends  that the  judge

erred in  failing to give  the jury instructions  on "plaintiff's

misconduct" or comparative fault.   Fifth, Sherwin-Williams seeks

a new trial, or remittitur, on the basis that the damages awarded

were speculative.  Sixth, Sherwin-Williams asserts that the trial

judge's  conduct during the trial requires a new trial.  Finally,

Sherwin-Williams  challenges the  calculation  of  the  award  of

prejudgment  interest  on  the  grounds  that  such  interest  is

available only to  the date of  the jury verdict, rather  than to

the date of entry of final judgment.  It further contends that it

was error to  award prejudgment  interest on the  portion of  the

verdict which represented an award of future lost profits.

          On cross-appeal, EMPT argues that the trial judge erred

in  awarding  prejudgment  interest  only on  the  original  jury

verdict and not on  the entire amount of the  judgment, including

the doubled verdict under the CPA.

          We will address, in turn, each of these contentions.

                            DISCUSSION                                                

I.   Application of the New  Hampshire Consumer Protection Act to
     the Purely Commercial Transaction.                                                                                                   

          The  Appellant has  failed to  preserve this  point for

review on  appeal.  The  denial of a motion  for summary judgment                                         

does not merge into the final judgment.  Glaros v. H.H. Robertson                                                                           

Co., 797 F.2d 1564, 1573  (Fed. Cir. 1986).  Such a denial, to be             

preserved for  review  of  a  legal conclusion  subsumed  in  the

ruling, must be  perfected by making a  motion for judgment  as a

                               -5-

matter of law  at the close  of the evidence.   Watson v.  Amedco                                                                           

Steel, Inc., 29  F.3d 274,  279 (7th Cir.  1994); Whalen v.  Unit                                                                           

Rig,  Inc., 974 F.2d  1248, 1251  (10th Cir.  1992); see  Lama v.                                                                           

Borras,  16 F.3d 473 (1st Cir. 1994).   The denial of this latter                

motion  does  merge into  the judgment,  and  all rulings  of law

subsumed  within  it are  subject to  review  on appeal  from the

judgment.

          Here, Appellant failed to  make any motion for judgment

as  a   matter  of  law  at  the   close  of  all  the  evidence.

Accordingly,  the determination, as a matter of law, by the trial

judge  in  ruling on  the summary  judgment  motion that  the CPA

applied to  business transactions never merged  into the judgment

and is not available for review on this appeal.

          Even though the issue of statutory construction was not

preserved for  appeal, we  have nevertheless reviewed  the record

and are satisfied that,  in determining the legal question  as to

whether the CPA applied  to the type of transaction  disclosed by

the evidence in this case, the trial judge committed no "manifest

error."  The appeal on this  point raises a question of statutory

construction.     In  short,  Sherwin-Williams  argues  that  the

Consumer Protection Act was intended to redress the discrepancies

between  a knowledgeable commercial seller  and a consumer who is

placed  in the position of relying on the representations of that

seller.  The provisions of the Act, Sherwin-Williams argues, have

no  application  where, as  here, a  commercial buyer  acquires a

product  for use in the  manufacture of another  product in which

                               -6-

its expertise may easily be greater than that of the  seller.  On

amicus  brief,  the  Business  and Industry  Association  of  New                

Hampshire agrees.  Because the  issue raised is an issue of  law,

our review is de novo.                               

          We begin, and could  easily conclude, our assessment of

this  argument by considering the  plain meaning of  the words of

the statute.   Town of Wolfeboro  v. Smith, 556  A.2d 755, 756-57                                                    

(N.H. 1989).   We must glean the intention of  the legislature as

to the scope of the Act "from its construction as a whole, not by

examining isolated words and phrases."  Petition of Jane Doe, 564                                                                      

A.2d 433, 438  (N.H. 1989).   A  thorough reading  of the  entire

statute   provides  no   direct  support   for  Sherwin-Williams'

contention  that  the  Act  applies  only  to  transactions  with

ultimate consumers.

The unfair and deceptive  practices prohibited by the CPA  appear

to include  transactions between business competitors  as well as

those involving ultimate consumers.  N.H. Rev. Stat. Ann. 358-A:2

(1993).  There are no provisions which limit the Act's protection

to ultimate "consumers" alone.  Indeed, there is no definition of

a consumer, a consumer good,  or a consumer transaction, although

such definitions would be critical if the Act were intended to be

limited in the way that Sherwin-Williams suggests.  Moreover, the

statute  specifies "exempt  transactions"  and  does not  include

among them  the kind  of "commercial transactions"  the defendant

would  delete from the purview of the statutory provisions.  N.H.

Rev. Stat. Ann. 358-A:3 (1993). 

                               -7-

          With this overview of  the statute, we now turn  to the

specific provisions  that  EMPT contends  make  Sherwin-Williams'

acts  unlawful, and provide  EMPT with a right  of action.  Here,

the  statute declares that "[i]t shall be unlawful for any person                                                                           

to  use any  unfair  method  of  competition  or  any  unfair  or

deceptive act or practice in the conduct of any trade or commerce                                                                           

within  this  state."    N.H.  Rev.  Stat.  Ann.  358-A:2  (1993)

(emphasis  added).2  Section 10 of the statute provides a private

right of action as follows:

            I.  Any person  injured by another's use of                                    
          any method, act or practice declared unlawful
          under  this chapter may  bring an  action for
                                                  

2    The  statute defines  a  "person"  and  "trade or  commerce"
broadly:

     I.  "Person" shall  include, where applicable,  natural
     persons,     corporations,     trusts,    partnerships,
     incorporated  or  unincorporated associations,  and any
     other legal entity.

     II.   "Trade"   and   "commerce"  shall   include   the
     advertising,  offering for sale,  sale, or distribution
     of  any   services  and   any  property,  tangible   or
     intangible, real,  personal  or mixed,  and  any  other
     article, commodity, or thing of value wherever situate,
     and  shall include  any trade  or commerce  directly or
     indirectly affecting the people of this state.

N.H. Rev. Stat. Ann. 358-A:1 (1993).

   Sherwin-Williams'  contention  that  the   "where  applicable"
language  in the  definition of  person creates  ambiguity  as to
whether   the  act   applies   to  commercial   transactions   is
unconvincing.  The language is  not surplusage because section  6
of the  Act provides different penalties for  natural persons and
all other persons.   The relevant portions of the statute in this
action specifically override any restriction on the term "person"
by  providing  that "any  person" may  be  guilty of  unlawful or                                  
deceptive  practices under section 2, and that "any person" has a                                                             
private  right of action  for damages under  section 10 (emphasis
added).

                               -8-

          damages  and  for   such  equitable   relief,
          including an  injunction, as the  court deems
          necessary and proper.  If the court finds for
          the  plaintiff,  recovery  shall  be  in  the
          amount of  actual damages or  $200, whichever
          is  greater.  If the court finds that the use
          of the  method of  competition or the  act or
          practice was  a willful or  knowing violation
          of this chapter, it shall award as  much as 3
          times,  but  not  less  than  2  times,  such
          amount.  In  addition, a prevailing plaintiff
          shall be  awarded the  costs of the  suit and
          reasonable attorney's fees, as  determined by
          the court.  Any attempted waiver of the right
          to the  damages set  forth in  this paragraph
          shall be void and unenforceable.

N.H. Rev. Stat. Ann. 358-A:10 (1993) (emphasis added).  Defendant

points  to nothing in the statute that suggests that "any person"

in  either of these sections should be read to exclude commercial

purchasers.   Nor do they  point to language  that indicates that

"commerce or trade" is restricted  to commerce or trade involving

ultimate  consumers.   The plain meaning  of the  statute clearly

includes both retail and commercial transactions.

          This construction is supported  by the decisions of New

Hampshire  courts.  The New  Hampshire Supreme Court has recently

observed:

          [T]he   Consumer   Protection   Act   "is   a
          comprehensive  statute  designed to  regulate
          business practices for consumer protection by
          making  it unlawful  for  persons engaged  in
          trade  or commerce to  use various methods of
          unfair  competition  and  deceptive  business
          practices."   Chase v. Dorais,  122 N.H. 600,                                                 
          601,  448 A.2d  390,  391 (1982).   The  very
          words  contained in the statute indicate that
          the  act's proscriptions  are  to be  broadly
          applied.

Gilmore v. Bradgate Assoc.,  Inc., 604 A.2d 555, 557  (N.H. 1992)                                           

(holding that although the  condominium industry was regulated by

                               -9-

a state authority, it was not exempt from the CPA under section 3

because,  given the  Act's expansive  language, "the  legislature

. . . could [not] have intended to exclude from the protection of

the  act  the large  number of  industries  which are  subject to

regulation  in  this State  simply  because  the legislature  has

provided  for  regulation of  that  industry  within a  statutory

framework."    Id.).    Since  Gilmore,   the  issue  of  whether                                                

nonconsumer plaintiffs have a  cause of action under the  CPA has

been  raised in two New  Hampshire courts and,  in each instance,

the Courts have  held that the plain  meaning of the  statute and

Gilmore do not require  a plaintiff to be a consumer.   Christian                                                                           

Mutual  Life  Ins.  Co.  v.  Kemper  Securities  Group,  91-C-190                                                                

(Merrimack  County  Superior   Court,  Nov.  19,  1993);  A  &amp;  B                                                                           

Electronics  Co. v.  Permagile Industries,  Inc.,  91-C-107 (Coos                                                          

County Superior Court  Jan. 15,  1993).3  While  these cases  are

not controlling, the  decisions of lower  state courts are  often
                                                  

3  Prior to  Gilmore, the three  courts which had considered  the                              
issue had not reached uniform  decisions.  Bowman Business Forms,                                                                           
Inc. v. Bowman, 87-E-0022-D (Merrimack County Superior Court Aug.                        
11,  1988)(358-A  available to  nonconsumer  plaintiffs), contra,                                                                          
International Corp. v. IDG Communications/Peterborough, Inc., No.                                                                      
90-E-247  (Hillsborough County  Superior Court August  27, 1990),
and  Thermal Dynamics  Corp.  v. McGrath,  No. 88-C-090  (Grafton                                                  
County Superior Court May 4, 1989)(nonconsumer plaintiffs did not
have a cause  of action under the CPA.)   International Corp. was                                                                       
decided by Justice Kathleen McGuire who, in light of Gilmore, has                                                                      
since held  that the CPA's  provisions extend to  actions between
businesses in Christian Mutual Life, supra.                                                    

   Federal  judges  considering  the  same issue  have  uniformly
concluded the New Hampshire Supreme  Court would construe the Act
as  applying  to commercial  transactions.    See, e.g.,  Nault's                                                                           
Automobile Sales,  Inc. v. America  Honda Motor  Co., Acura  Auto                                                                           
Div., 148 F.R.D.  25, 48 (D.N.H. 1993); Globe  Distributors, Inc.                                                                           
v. Adolph Coors Co., 111 B.R. 377 (Bankr. D.N.H. 1990).                             

                               -10-

the best indicator  of how the high court  will resolve an issue.

Commissioner v. Estate of  Bosch, 387 U.S. 456, 465 (1967); In re                                                                           

Brooklyn Navy  Yard Asbestos Litigation,  971 F.2d  831, 850  (2d                                                 

Cir.  1992).  Despite the  plain language of  the statute and the

dearth  of case  law  to support  its  proposition that  the  New

Hampshire courts would adopt this narrow construction of the Act,

Sherwin-Williams makes  several other arguments in  favor of this

construction.  We will address these arguments briefly.

          Sherwin-Williams  first argues  that the  New Hampshire

Supreme Court's decision in  Chase v. Dorais, 448 A.2d  390 (N.H.                                                      

1982), supports  its contention that the  Consumer Protection Act

is  not as  broad as  it appears.   In  Chase, the  New Hampshire                                                       

Supreme  Court held that no  cause of action  was available under

chapter 358-A when an individual, who was not  in the business of

selling used cars, sold a used car to another private individual.

Id. at 391-92.   This transaction was characterized by  the Court             

as "strictly private in nature."   Id. at 392.  Because  the sale                                                

in Chase did  not take place in a "trade  or business context" it                  

was  not in  the course  of "commerce  or trade"  as required  by

section  2  of  the  CPA.    Id.    Therefore,  the  CPA  had  no                                          

application.  The decision in Chase  did not turn on whether  the                                             

transaction  was  a  "consumer   transaction"  or  a  "commercial

transaction" but on whether  it was a "private transaction"  or a

"commercial  transaction."     Because  the  transaction  between

Sherwin-Williams and EMPT  took place in  the "trade or  business

context," Chase  has no relevance  to the issue  at hand in  this                         

                               -11-

case.

          Sherwin-Williams  next argues  that  the  CPA does  not

apply to  purely commercial transactions because  it is analogous

to  the Massachusetts Consumer Protection  Act (Mass. Gen. L. ch.

93A, "chapter  93A"),  but, unlike  chapter 93A,  has never  been

expressly amended to provide  a cause of action for  transactions

between businesses.  This argument  is based on a myopic  view of

the history of the two acts.   It is true that the  New Hampshire

Act  is analogous in many  regards to the  Massachusetts Act, and

that New  Hampshire courts refer to Massachusetts  case law where

appropriate in construing the  Act.  See Chase, 448 A.2d  at 391.                                                        

However, Massachusetts authorities lose relevance when, as  here,

the New Hampshire legislature opted to enact different provisions

from those set out in  chapter 93A.  The New Hampshire  Act never

included any counterpart to section 9 of chapter 93A which, prior

to 1979, restricted the availability of a private right of action

"to any  person  who  purchases  or  leases  goods,  services  or

property  . . .  primarily  for  personal,  family  or  household                                                                           

purposes."   The New  Hampshire  legislature did  not adopt  this                  

restriction,  opting  instead  for  broad  applicability  in  all

commerce  and trade.   Therefore,  New Hampshire  had no  need to

adopt an express provision to cover commercial transactions.

          Because we find no ambiguity  in the plain language  of

the  statute,  we  need not  consider  the  title of  the  Act in

determining  the  correct construction.    See  2A Sutherland  on                                                                           

Statutory Construction    47.03 (5th  ed. 1992) (the  title of  a                                

                               -12-

statute should be considered only when the language of the law is

ambiguous).   Even  so,  reference to  the  title "Regulation  of

Business Transactions for  Consumer Protection"  does nothing  to

shed doubt  on  our  conclusion.   The  Act  regulates  "Business

Transactions."   It is clear from  the facts of the  case at hand

that deceptive practices in the sale of inputs between a producer

and  a  manufacturer  can  have significant  impact  on  consumer

welfare.      This  is   particularly   true   where,  as   here,

misrepresentations about such matters are likely to be discovered

only  after the final product begins to fail, creating costly and

potentially dangerous situations for end-line consumers.

          Because the  plain language of  the statute encompasses

the transaction  at issue  and Defendant  points to no  authority

which  would  require  this  Court's  deviation  from  the  plain

language  of  the statute,  there is  ample  basis for  the trial

judge's  determination  to stand  that the  sale of  the Sherwin-

Williams  paint system to EMPT  was covered by  the New Hampshire

Consumer Protection Act.

II.  Sherwin-Williams' Motion for  Summary Judgment on  the Basis
     of Failure to Show  "Rascality" as a Necessary  Predicate to
     Liability Under the Consumer Protection Act Claim.                                                                                     

          We  need  not address  the  merits  of this  preverdict

challenge  to the sufficiency of  the evidence on  the motion for

summary  judgment.  Such an  attack on the  denial of defendant's

motion  for summary  judgment "has  been overtaken  by subsequent

events,  namely, a full-dress trial and an adverse jury verdict."

                               -13-

Lama v.  Borras, 16 F.3d at  476 n.5.  In  such circumstances, we                         

will  not address the propriety of the denial of summary judgment

where  challenge is  made on  the basis  of the  insufficiency of

evidence to  support the denial  in the motion  record.  Id.  and                                                                     

cases  there collected.   The  rationale for  this rule  has been

based  on the  procedural  fact that  a  denial of  a motion  for

summary judgment "is merely  a judge's determination that genuine

issues of  material fact exist.   It is not a  judgment, and does

not  foreclose trial  on  issues on  which  summary judgment  was

sought."  Glaros v. H.H. Robertson Co., 797 F.2d at 1573.  Hence,                                                

a challenge to  the sufficiency  of the evidence  adduced on  the

motion to  support the  district court's conclusion  that genuine

issues of material fact exist will not lie on appeal.

          We have reviewed the record with respect  to the merits

of this  aspect of  the Plaintiff's  proposed  challenge and  are

satisfied that no manifest error exists.

III. Defendant's  Motion to  Set Aside  the Jury  Verdict on  the
     Consumer Protection Act Claim.                                                                                                         

          In  Sherwin-Williams'  motion  to set  aside  the  jury

verdict,  it contended that the judge erred in submitting the CPA

claim  to the jury for two reasons: (1) because the determination

of violations  of the  Act was  a matter for  the judge,  not the

jury;  and, (2)  because  it  was  impossible to  ascertain  what

portion,  if  any,  of  the damages  represented  actual  damages

flowing  from  the  CPA  violation.    The  judge reviewed  these

contentions  to  determine whether  the  verdict  was so  clearly

                               -14-

against  the weight of the  evidence as to  constitute a manifest

miscarriage of  justice.   Kearns v.  Keystone Shipping  Co., 863                                                                      

F.2d 177, 181 (1st Cir. 1988).  Finding that the "clear and great

weight  of evidence" supported the  jury verdict the judge denied

the  motion.  Having reviewed  the record, we  find that Sherwin-

Williams has waived these claims.

          As for the argument that claims of violations under the

CPA are for the judge alone  to try, the district judge concluded

that by failing  to object to the submission of  the CPA claim to

the jury, Sherwin-Williams had waived any objection.4  The  judge

further noted  that it  was not  inappropriate to  submit factual

issues  to the jury, reserving the equitable issues under the CPA

for the Court's  determination.  Memorandum, dated June 19, 1993,                                                     

at 5.  Because the  objection to submitting the CPA claim  to the

jury  was not raised below, and was not argued before this Court,

we conclude that this objection was waived.5

          As for the contention that the jury verdict must be set

aside because it is  impossible to ascertain what portion  of the

verdict represents  damages flowing from the  CPA violation, this

                                                  

4  In fact, Sherwin-Williams submitted proposed jury instructions
and special verdict forms which covered the claims under the CPA.

5  On appeal  Sherwin-Williams argues that the matter  should not
have gone to the jury because a jury verdict was precluded by the
judge's  findings on the motion for summary judgment on the fraud
and bad faith claims.  This point was not argued in the motion to
set  aside  the  verdict,  nor did  Sherwin-Williams  raise  this
objection or seek a directed verdict on this basis.  Accordingly,
this  argument was waived.  Furthermore,  as discussed in section
two  above, a CPA violation  may be established  where express or
implied warranties are breached.

                               -15-

ambiguity  was  the result  of  special jury  questions  to which

Sherwin-Williams made no timely objection.  Under Federal Rule of

Civil Procedure 49(a), the parties agree to let the court resolve

issues of fact not covered by special jury interrogatories unless

an  objection  is raised  before the  jury  retires.   Rule 49(a)

"ensures  that, if  submitted questions  omit material  issues of

fact  and no timely objection  is lodged, the  district court may

itself  make  the  findings  which  are  necessary  to  cure  the

omission.  . . .   Curative findings  are implied  even when  not

expressly made."  Peckham  v. Continental Casualty Insurance Co.,                                                                          

895 F.2d 830, 836 (1st Cir. 1990) (citation omitted).  By failing

to  object to the damages interrogatory  before the jury retired,

Sherwin-Williams agreed  to let  the court determine  this issue.

Sherwin-Williams has  not challenged  the district court  judge's

determination that  all damages flowed from the CPA violation, an

implicit finding based  on the court's  doubling of the  damages.

Therefore, the issue was waived.

IV.  Plaintiff Misconduct as Defense to Warranty Claims.                                                                  

          Defendant's  next  assignment  of  error  is  that  the

district  court judge erred in  refusing to instruct  the jury on

"plaintiff misconduct"  or comparative  fault due  to Plaintiff's

alleged failure to use the vinyl wash primer or to test the paint

system adequately before going into full production with Sherwin-

Williams  products.    Defendant  contends  that   principles  of

comparative fault apply  under New Hampshire law to  claims based

                               -16-

on  breach  of  warranty.6    In  support  of  this  proposition,

Sherwin-Williams relies on Thibault v.  Sears, Roebuck &amp; Co., 395                                                                      

A.2d  843  (N.H. 1978).   In  Thibault,  the Court  gave judicial                                                

recognition to  comparative fault in personal  injury cases based

on   strict  liability   and  breach   of  implied   warranty  of

merchantability.  Id. at 850.  Plaintiff argued, and the district                               

court  agreed, that Thibault does not apply to all warranty cases                                      

but  is limited  to personal  injury  cases.   Memorandum denying

Sherwin-Williams'  motion for a new trial, dated June 1, 1993, at

6.   The district court judge  further held that, even  if he had

erred  in   failing  to   give  an  instruction   on  Plaintiff's

misconduct, the  error was harmless  because, in order  to render

its  verdict, the jury had  to determine that  EMPT's reliance on

Sherwin-Williams'  recommendations  was  reasonable.   Memorandum                                                                           

dated June 1, 1993,  at 7.  For the reasons that  follow, we find

that  the district  judge  did not  err in  refusing  to give  an

instruction based on "plaintiff's misconduct."

          First, we agree  that the holding in  Thibault does not                                                                  

presage the general extension of notions of comparative fault  to

                                                  

6   On appeal, Sherwin-Williams  also argues  that a  comparative
fault  instruction should have been given with regard to the CPA.
However,  Sherwin-Williams  never articulated  the  position that
comparative fault was relevant to the CPA claim.   Rather, in its
motion for a new trial Sherwin-Williams' assignment  of error was
addressed only to  the Court's  refusal "to charge  the jury  and
submit  special  interrogatories  on  the issue  of  'plaintiff's
conduct' (i.e. assumption of the risk) with respect to its breach                                                                           
of  warranty  claims."   Defendant's Motion  for  a New  Trial on                              
Liability  and Damages,    3 (emphasis  added).  Accordingly,  we
find  that   Sherwin-Williams  has   waived  the  issue   of  the
application of comparative fault principles under the CPA.

                               -17-

all  breach of  warranty cases.   Thibault  was decided  to bring                                                    

recovery  rules in cases based  on strict liability  in tort into

line with statutory recovery rules governing tort cases  based on

negligence.  Id.   Sherwin-Williams  has not cited,  nor have  we                          

found, any New Hampshire case which applies  comparative fault in

warranty cases  except in  personal injury  cases  based on  dual

theories of strict liability in tort and breach of an the implied

warranty of  merchantability.   N.H. Rev. Stat.  Ann. 382-A:2-314

(1993).

          Thibault does  not address  the availability of  such a                            

defense  to override  either an  express warranty  or an  implied

warranty  of  fitness  for  a  specific  purpose  under  the  New

Hampshire  Uniform Commercial  Code ("NHUCC").   N.H.  Rev. Stat.

Ann.    382-A:2-313, 2-315.  These provisions govern the creation

of  specific warranties  between the  buyer and seller  of goods.

Under NHUCC, such warranties may be excluded or modified only (a)

in  writing, or  (b) under  specific  circumstances.7   N.H. Rev.
                                                  

7  One such circumstance which has the effect of limiting implied
warranties  is when a buyer  examines, or has  the opportunity to
examine, a product and, despite defects that the buyer discovered
or should  have discovered,  enters into  a contract  to purchase
goods.    See  N.H.  Rev. Stat.  Ann.  382-A:2-316(3)(b)  (1993).                       
However,  the buyer  is  not responsible  for discovering  latent
defects.   Id.  Here, it  is undisputed that early  inspection of                        
the first  deck painted  using Sherwin-Williams products  did not
reveal the defects which  caused the failure of the  paint system
within the first season in use.  

   More  important, inspection  and  testing does  not negate  an
express  warranty.   See General  Electric Co.  v. United  States                                                                           
Dynamics, Inc., 403  F.2d 933, 935  (1st Cir. 1968)(holding  that                        
under   identical  provisions   of   the  Massachusetts   Uniform
Commercial Code "inspection [under section 2-316(3)(b)] could not
offset express warranties").

                               -18-

Stat. Ann. 382-A:2-316 (1993).   We do  not believe that the  New

Hampshire Supreme Court, in crafting  a judicial rule of recovery

governing strict  liability in tort  cases, had any  intention of

altering the  comprehensive  statutory provisions  of  the  NHUCC

governing sales contracts.

          Furthermore, even if  the concept of  comparative fault

were  available as  a  defense  to a  claim  based on  breach  of

warranty  in a  contract case,  Sherwin-Williams has  not alleged

anything amounting to "plaintiff misconduct" on EMPT's part.  The

New Hampshire Supreme Court has  defined "plaintiff's misconduct"

as  "product misuse  or abnormal  use, as  well as  embodying the

'negligence' or  'assumption of the  risk' concepts in  our prior

cases of  voluntarily and unreasonably proceeding  to encounter a

known  danger."  Thibault,  395 A.2d at  849.   Defendant has not                                   

alleged   that  Plaintiff   either   misused   the  products   or

"voluntarily and  unreasonably proceed[ed]  to encounter  a known

danger."   The uncontroverted evidence at  trial established that

EMPT  used  the  products  in  accordance with  Sherwin-Williams'

recommendations and that  such use was  supervised by a  Sherwin-

Williams  representative   who  observed   each   phase  of   the

application  process.  After the first  deck was completed, there

was  no indication  that the  paint system  was not  suitable for

EMPT's purpose.  Thus,  there is no evidence that  EMPT "misused"

the paints, put the  paints to abnormal use, or that it knowingly

and   unreasonably  proceeded  to   encounter  a   known  danger.                                                                          

Accordingly, Sherwin-Williams was not entitled to an  instruction

                               -19-

on Plaintiff's misconduct.

V.   Denial of Motion for New Trial on Damages and Remittitur.                                                                        

          The  trial judge denied  Sherwin-Williams' motion for a

new trial or remittitur, concluding that the damages awarded were

based on  a rational appraisal  of the damages.   In reviewing an

award of damages,  the district  court is obliged  to review  the

evidence  in the light most favorable to the prevailing party and

to grant remittitur or a new trial on damages only when the award

"exceeds any  rational appraisal or estimate of  the damages that

could be based upon  the evidence before it."  Kolb  v. Goldring,                                                                           

Inc., 694 F.2d 869, 872 (1st Cir. 1982).  Under New Hampshire law              

a  jury  award  of  damages  may  be  set  aside  only  if it  is

"conclusively against  the  weight of  the evidence."   Panas  v.                                                                           

Harakis, 529 A.2d 976, 983 (N.H. 1987).  This standard "should be                 

interpreted to mean that  the verdict was one no  reasonable jury

could return."  Id.  Where an award  of future lost profits is at                             

issue, the  verdict will be upheld if there is sufficient data to

indicate that profits were reasonably certain to result.  Petrie-                                                                           

Clemons v. Butterfield, 441 A.2d 1167, 1171 (N.H. 1982).  This is                                

so even if  a business posted losses every year that it operated.

Restaurant Operators,  Inc. v.  Jenney, 519  A.2d 256, 260  (N.H.                                                

1986)  (upholding   award  of   future  lost  profits   based  on

uncontradicted evidence that business "had reached the break-even

point and gave every prospect of continued growth.").  

          In this case, the  record indicates that EMPT was  at a

                               -20-

break-even  point and  had  shown  strong  growth for  six  years

preceding the paint failure.   There was testimony that  the cost

of repairing the decks  covered with Sherwin-Williams paint would

be approximately $267,000.   Lost  profits to the  date of  trial

were $383,000  based on Plaintiff's expert's  testimony that EMPT

had  shown an approximate growth rate  of 15% and a profit margin

of 23% on each deck.  EMPT had recently constructed a new factory

and hired  additional employees and, therefore,  had the capacity

to maintain this growth rate into the future.  There  was further

testimony that it would take Mr. Rogers approximately three years

to  rebuild  the business.    The jury  awarded EMPT  a  total of

$1,087,000, an  award that  apparently includes $437,000  in lost

future profits.8  

          In  its motion,  Sherwin-Williams contended  that there

was  no evidence to support  the award of  lost profits and that,

therefore, the jury award  is speculative.  The trial  judge, who

                                                  

8   The instruction on lost profits covered both past profits and
future lost profits as follows:

     Loss  of  profits  may be  recovered  as  consequential
     damages  if  the  plaintiff  proves that  it  was  more
     probable than  not that the business  profits sought to
     be  recovered   were  reasonably  foreseeable   by  the
     defendant when  the  contract was  entered,  reasonably
     ascertainable,  and were  reasonably certain  to result
     based  upon  the  relevant  data presented  to  you  as
     evidence in this case.

          Future lost  profits do not have to be proven with
     absolute  certainty  but  the  plaintiff  must  produce
     sufficient  evidence to  demonstrate some  profits were
     otherwise  reasonably certain  to  result.   As  stated
     above,  you  may  not  award damages  that  are  merely
     speculative.

                               -21-

had  the benefit  of  hearing  the  testimony and  observing  the

witnesses, denied  this motion, finding that  "the jury's verdict

is well supported  up to the point that it  awarded $650,000"  in

repair costs and  past lost  profits.  The  district court  found

that an  award of  future lost  profits was  also supported  by a

rational appraisal of the evidence.

          The  jury could  also award  a  higher figure
          because there was sufficient evidence for the
          jury to determine future lost  profits. . . .
          The evidence produced concerning  future lost
          profits   was  not   precise,   but  it   was
          sufficient  to enable the jury to project and
          calculate  beyond the  $650,000 amount.   For
          example,   Plaintiff's  expert,   Mr.  Hughes
          testified that the business had gotten to the
          stage where  the fixed costs were  covered so
          that every additional sale went to the bottom
          line; therefore, the profits  from additional
          sales go directly to net profit.  In addition
          to this, Mr.  Rogers testified that it  would
          take three  years  to rebuild  the  business,
          . . . and Messrs.  Rogers, Hughes,  Crabtree,
          and Liddy all testified that the business was
          generally not affected by the fluctuations in
          the economy and  that the business  continued
          to grow on a yearly basis.  The evidence was,
          therefore, sufficient to support an  award of
          future   lost  profits   in  the   amount  of
          $437,000.

Memorandum,  dated June 1, 1993,  at 10-11.   Having reviewed the                    

record, we cannot say that the district court erred in concluding

that the jury's damage award was supported by the evidence.

                               -22-

VI.  The Judge's Conduct During Trial.                                                

          In its brief, Sherwin-Williams points to two statements

made by  the  judge during  the  course of  the trial  which,  it

contends,  irreversibly  prejudiced the  process  and constituted

judicial misconduct.  In order to sustain this charge, this court

must find  that "a party  was so  seriously prejudiced  as to  be

deprived  of a  fair  trial  .  . . .  in  light  of  the  entire

transcript."   Aggarwal v. Ponce School of Medicine, 837 F.2d 17,                                                             

22 (1st Cir.  1988) (citing Crowe v. Di Manno,  225 F.2d 652, 659                                                       

(1st  Cir. 1955);  Glasser  v. United  States,  315 U.S.  60,  83                                                       

(1942)).

          Here,  Defendant contends  that  two statements  by the

judge to the effect that the "only issue" or "sole  issue" in the

case was whether or not the Sherwin-Williams paint had failed had

prejudiced Sherwin-Williams  to the extent  of depriving it  of a

fair  trial.    Taken  out  of  context,  the  statements  appear

improper.   However,  viewed in  context, the  statements related

only to  the relevancy  of comparisons of  product specifications

which were  both confusing  and  cumulative.   Moreover, in  both

instances, the  judge  permitted  the  Defendant's  attorneys  to

proceed with  their questions  relating to these  specifications.

In light of the  jury instructions at the beginning of  the trial

explaining   the  proper  role   of  judge  and   jury,  and  the

instructions at the end  of the trial outlining the  many factual

issues to  be  decided by  the  jury,  we do  not  believe  these

isolated  statements had the  effect of removing  issues from the

                               -23-

jury and depriving Sherwin-Williams of a fair trial.

VII. Sherwin-Williams' Objections to the Award of 
     Prejudgment Interest.                                                                                  

          Sherwin-Williams  is correct  in its  challenge to  the

award of prejudgment interest  from the date of the  jury verdict

to that of the final judgment.  The New Hampshire legislature has

provided for prejudgment interest in cases "in which a verdict is

rendered or a finding is made for pecuniary  damages to any party

. . . from the date of the writ or the filing of  the petition to                                                                           

the  date of  such verdict  or finding."   N.H.  Rev. Stat.  Ann.                                                

  524:1-b (1993).   The plain language  of the statute  indicates

that the award of  prejudgment interest should be granted  to the

date of the verdict or finding.  Although Plaintiffs contend that

the  word  "finding"  should  be  interpreted  to  mean  a "final

judgment," there  can be no doubt, in light of the history of the

statute,  that this  was  not the  legislature's intention.   The

history  of the statute reveals  that in 1969,  the provision was

rephrased and the words "verdict or finding" were substituted for

"entry of  final judgment."   Accordingly, we conclude  that EMPT

was entitled to prejudgment interest only up to January 12, 1993,

the date  of  the verdict  in  this case,  and  we remand  for  a

recalculation of prejudgment interest and entry of final judgment

in accordance therewith.

          Defendant's   second  argument,   that  the   award  of

prejudgment  interest on  future lost  profits was  improper, has

been  waived.    Sherwin-Williams   never  raised  the  issue  of

                               -24-

prejudgment interest on future lost profits -- objecting only  to

the  award  of such  interest on  the  "punitive" portion  of the

judgment.9  Moreover,  Sherwin-Williams' request  for relief  was

for the district  court to "calculate  the award of  pre-judgment

interest   based  on  the   amount  of  the   jury's  verdict  of

$1,087,000."  Defendants' Objection to Plaintiff's Amended Motion

for  Pre-Judgment  Interest.   Accordingly,  Sherwin-Williams has

waived  any objection  to the  award  of prejudgment  interest on

future lost profits.

VIII.   EMPT's Objection to the Award of Prejudgment Interest.                                                                        

          EMPT cross-appeals claiming that the trial judge  erred

in  denying  its request  for  prejudgment interest  on  the full

amount of the  judgment after  the judge doubled  the jury  award

pursuant  to section  10 of  the CPA.   The district  court judge

denied the request for prejudgment interest  based on the purpose

of section 524:1-b, which is to compensate the plaintiff for loss

of use of the money it should have had.  See Lakin v. Daniel Marr                                                                           

&amp; Son,  Co., 732  F.2d  233, 238  (1st Cir.  1984).   Noting,  in                     

particular, that the statute provides for prejudgment interest on

"pecuniary  damages,"  we agree  that the  judge  did not  err in

refusing to award prejudgment interest on the doubled award.

                                                  

9    The  jury was  instructed  that  damages  were available  to
compensate  plaintiff for (a) the  cost of repairs,  and (b) lost
profits.  We are satisfied that, based on these instructions, the
jury verdict included only pecuniary damages.

                               -25-

                            CONCLUSION                                                

          The  decision below  is remanded  for recalculation  of                                                    

prejudgment interest from the date  of filing to the date of  the

jury  verdict.  In all other regards, the district courts rulings

and judgment are affirmed.                                   

                               -26-
