
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        Nos. 93-2314             94-1015                                 ARTHUR H. LA PLANTE,                                 Plaintiff, Appellee,                                          v.                           AMERICAN HONDA MOTOR CO., INC.,                               Defendants, Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Ernest C. Torres, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Breyer,* Chief Judge,                                          ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Andrew  L. Frey, with whom  Evan M. Tager, Adam  C. Sloane, Mayer,            _______________             _____________  _______________  ______        Brown & Platt, Gerald C. DeMaria,  and Higgins, Cavanagh & Cooney were        _____________  _________________       __________________________        on brief for defendants.            Mark  B. Decof,  with whom  Vincent  T.  Cannon, Howard  B. Klein,            ______________              ___________________  ________________        Decof & Grimm were on brief for plaintiff.        _____________            Hildy  Bowbeer, Lezlie Ott  Marek, Darin  D. Smith  and Bowman and            ______________  _________________  _______________      __________        Brooke on brief for Product Liability Advisory Council, amicus curiae.        ______                                 ____________________                                    June 29, 1994                                 ____________________        ___________________        *Chief Judge Stephen Breyer heard oral argument in this matter but did        not  participate  in  the drafting  or  the  issuance  of the  panel's        opinion.   The remaining  two panelists therefore  issue this  opinion        pursuant to 28 U.S.C.   46(d).                      BOWNES, Senior Circuit  Judge.   Plaintiff-appellee                      BOWNES, Senior Circuit  Judge.                              _____________________            Arthur  LaPlante  was  rendered  quadriplegic  from   a  fall            sustained while riding an all-terrain vehicle (ATV) designed,            manufactured, and distributed by  defendants-appellants Honda            R&D  Co., Ltd.,  Honda Motor  Co., Ltd.,  and American  Honda            Motor  Co., Inc. (collectively "Honda").   A jury found Honda            liable  and  awarded  plaintiff  $9,652,000  in  compensatory            damages.   This amount  was reduced to  $8,204,200 to account            for  plaintiff's  comparative  negligence.    In  a  separate            proceeding, the  district court granted judgment  as a matter            of law for  Honda on plaintiff's claim for  punitive damages.            Honda appeals from the judgment of liability and compensatory            damages.   Plaintiff  cross-appeals on  its punitive  damages            claim.                      Finding reversible error, we vacate the judgment of            liability  and remand  for a  new trial  as to  all liability            issues.  If  Honda is found liable  on retrial, the award  of            damages   stands.    As  for  plaintiff's  cross-appeal,  the            judgment of the district court is affirmed.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                      On Saturday,  March 11, 1989, the  course of Arthur            LaPlante's  life was  dramatically and  irreversibly altered.            On  that  morning  plaintiff,  a  twenty-four  year-old  army            mechanic  stationed  at  Fort  Carson,  Colorado,  and  three                                         -2-                                          2            friends,  Kelly  Kallhoff,  Randy  Leib,   and  Mike  Mohawk,            ventured to  nearby Pikes  Peak in order  to ride  Kallhoff's            three-wheel ATV, a  1982 Honda ATC200.  This ATV  is a three-            wheeled  motorized vehicle  intended for  off-road use.   The            vehicle has  handlebar steering and large low-pressure tires,            two in the rear, and one in front.                      Plaintiff, who had never  before ridden an ATV, was            the third to ride after Kallhoff and Leib.  After climbing to            the top of a knoll, plaintiff  began to descend at a speed of            5-10 m.p.h.  When  plaintiff was unable to negotiate  a left-            hand turn onto a twelve  foot wide dirt road, he fell  over a            steep embankment  and broke his neck,  resulting in permanent            paralysis from the neck down.                      On January 11, 1991,  plaintiff, who lived in Rhode            Island  before enlisting  in  the Army  in 1983  and returned            there after the accident,  commenced this diversity action in            the  United States District  Court for the  District of Rhode            Island.   The complaint delineated six causes of action:  (1)            breach  of  warranty;  (2) false  advertising;  (3) negligent            failure to advise  how to operate the vehicle;  (4) negligent            failure to warn; (5) strict  liability design defect; and (6)            willful,   wanton  and   reckless  conduct   (i.e.,  punitive                                                          ____            damages).   The  trial was  bifurcated so  that the  issue of            punitive damages could be tried after the issues of liability            and  compensatory  damages.    The  parties  agree  that  the                                         -3-                                          3            substantive law of Rhode  Island governs the liability issues            in this action.                        A   twenty-three  day   trial   on  liability   and            compensatory damages began  in July  1993.  At  the close  of            plaintiff's case Honda moved for judgment as a matter of law.            Only  the claims  for  negligent failure  to warn  and strict            liability design defect survived  the motion.  Ultimately the            jury found  Honda  liable on  these two  claims, and  awarded            plaintiff $3,652,000 for medical expenses and lost wages, and            $6,000,000 for physical injuries and pain and suffering.  The            jury also found  that plaintiff was  comparatively negligent,            and reduced his award by fifteen percent.  The district court            denied Honda's motions for postjudgment relief.                      The punitive damages phase of this action commenced            on September  16, 1993.   On  the same day,  at the  close of            plaintiff's  evidence, the  district  court  granted  Honda's            motion  for judgment as a matter of law.  These cross-appeals            ensued.                                         II.                                         II.                                      DISCUSSION                                      DISCUSSION                                      __________            A.  Rhode Island's Subsequent Alteration Statute            A.  Rhode Island's Subsequent Alteration Statute                ____________________________________________                      Honda  argues that  the  district  court  committed            reversible  error   by  not  instructing  the   jury  on  the            affirmative  defense provided  by Rhode  Island's "subsequent            alteration" statute, R.I. Gen. Laws   9-1-32 (1985).                                         -4-                                          4                      Rhode Island law  provides that "[n]o  manufacturer            or  seller of a product shall be liable for product liability            damages where  a substantial cause  of the injury,  death, or                    _________________________________________            damage was  a subsequent  alteration or modification."   R.I.            Gen. Laws   9-1-32(b) (emphasis  added).  The statute defines            "subsequent alteration or modification" as                      an  alteration  or   modification  of   a                      product    made    subsequent   to    the                      manufacture or sale  by the  manufacturer                      or  seller  which  altered, modified,  or                      changed   the  purpose,   use,  function,                      design, or  manner of use of  the product                      from that originally designed,  tested or                      intended  by  the  manufacturer,  or  the                      purpose, use, function, design, or manner                      of  use  or intended  use for  which such                      product  was originally  designed, tested                      or manufactured.            Id.     9-1-32(a)(2).    Honda  contends  that  it  presented            ___            evidence  that  the ATV  ridden by  plaintiff was  altered or            modified  after its  original sale,  and therefore  the trial            court's  failure to instruct the jury in accordance with   9-            1-32  was reversible error.  In support of its position Honda            points to evidence  that, at  the time of  the accident,  the            ATV's  front brakes  were  inoperable, its  rear brakes  were            faulty, its right rear tire was overinflated, its front forks            were bent, and it pulled to the right.                      Plaintiff's  response  is   fourfold.    First,  he            maintains   that  "lax   maintenance"  cannot   constitute  a            "subsequent  alteration or  modification" under  the statute.            Rather,  plaintiff  insists that     9-1-32  was intended  to                                         -5-                                          5            "provide a  defense when  someone has deliberately  altered a            machine. .  . ."   Next,  he argues that  the statute  merely            codified  comment  g  of  Section  402A  of  the  Restatement            (Second) of  Torts.  Third, plaintiff contends  that the jury            charge adequately  apprised the  jurors of Rhode  Island law.            Finally, he argues that any error was harmless  because Honda            failed to present sufficient evidence that any of the alleged            subsequent alterations was a substantial cause of plaintiff's            injuries.                      With respect to the  scope of the statute,  we have            been unable  to find  any support for  plaintiff's contention            that  the  scope  of      9-1-32  is  limited  to  deliberate            alterations, such  as the removal of safety  guards, and does            not reach "alterations" or "modifications" that have resulted            from inadequate maintenance.  It is well settled  under Rhode            Island  law  that   "[i]n  the  event   that  a  statute   is            unambiguous, it  is  necessary for  this court  to apply  its            terms  literally."  Keenan v.  Vose, 634 A.2d  866, 868 (R.I.                                ______     ____            1993); see also Costello v. American Univ. Ins. Co., 633 A.2d                   ___ ____ ________    _______________________            260 (R.I. 1993)  (where statute "has a plain  and unambiguous            meaning . . . this court  is bound to construe the statute in            accordance  with  that meaning");  Levesque  v.  Rhode Island                                               ________      ____________            Dep't  of Transp.,  626  A.2d 1286,  1289  (R.I. 1993)  (when            _________________            statute is  clear and unambiguous  on its  face courts  "must            give  the  words of  the  statute  their  plain  and  obvious                                         -6-                                          6            meaning").   Here,  plaintiff's proposed  limitation directly            contradicts  the  unambiguous  and  broad  language   of  the            statute.  No  exception has  been drawn by  the Rhode  Island            legislature   for   alterations  resulting   from  inadequate            maintenance as opposed to deliberate changes, and we can find            no  principled reason for reading such  an exception into the            statute.                      Several  states  have  enacted comparable  statutes            that  specifically   include  "failure  to   observe  routine            maintenance" within  the meaning of  subsequent alteration or            modification.  See, e.g.,  Ky. Rev.  Stat. Ann.    411.320(1)                           ___  ____            ("product alteration or modification shall include failure to            observe routine  care and maintenance, but  shall not include            ordinary  wear and tear"); N.C. Gen Stat.   99B-3 (same); see                                                                      ___            also Lamb By  Shepard v. Sears,  Roebuck & Co., 1  F.3d 1184,            ____ ________________    _____________________            1188 (11th Cir.  1993) (under Georgia, law failure to observe            routine  care  and  maintenance  can  constitute  a  material            alteration   or   modification   insulating  defendant   from            liability for defective design).  We have failed, however, to            uncover a single statute that excludes inadequate maintenance            from the  category of  subsequent alteration  or modification            for purposes of  this defense.   Finally, given the  apparent            purpose  of    9-1-32,  i.e., to  protect manufacturers  from                                    ____            unanticipated risks  created by alterations  or modifications            occurring after a product leaves their control, we can see no                                         -7-                                          7            reason  why  the Rhode  Island  legislature  would provide  a            defendant  with  a  complete   defense  where  an  ATV  owner            disconnected his front brakes, but not where the front brakes            were  inoperative  due  to  the owner's  failure  to  perform            routine maintenance.                      Next,  plaintiff   argues  that      9-1-32  merely            codifies  the essence  of comment  g to  Section 402A  of the            Restatement (Second) of  Torts which  provides, in  pertinent            part, that "[t]he seller  is not liable when he  delivers the            product in  a safe  condition, and subsequent  mishandling or            other causes make  it harmful  by the time  it is  consumed."            Plaintiff points to no  language in   9-1-32 to  support this            argument.  Rather, plaintiff  relies solely upon the presence            of   9-1-32  in two  string citations,   i.e., Model  Uniform                                                     ____            Product Liability Act   112(D), analysis (1979) (citing    9-            1-32 among statutes that  have "enacted the essence of  . . .            comment [g]  into law"); Robinson v.  Reed-Prentice Div., 403                                     ________     __________________            N.E.2d 440,  443 (N.Y. 1980) (citing   9-1-32 for proposition            that  "[s]ubsequent  modifications  of  a  product  from  its            original condition  by  a third  party  which render  a  safe            product  defective   are  not   the  responsibility   of  the            manufacturer"), as support for this statutory interpretation.                      The  plain  meaning of     9-1-32  simply does  not            support  the proposition for which  it is cited  by either of            the above sources.   Neither authority explains the inclusion                                         -8-                                          8            of   9-1-32 in  its respective string citation, nor  does the            text of the statute bear even a modest resemblance to comment            g of  the Restatement.   The statute  means what it  says and            must be applied.  Plaintiff's attempt to limit the  statute's            breadth by relying on these two citations is unavailing.                      The next  question is  whether the jury  charge was            deficient.  We  examine jury instructions with an eye towards            determining if "they adequately explained the law or `whether            they  tended to  confuse or  mislead the jury  on controlling            issues.'"   Davet  v. Maccarone,  973 F.2d  22, 26  (1st Cir.                        _____     _________            1992)  (quoting Brown v.  Trustees of Boston  Univ., 891 F.2d                            _____     _________________________            337, 353  (1st Cir.  1989), cert.  denied, 496  U.S. (1990)).                                        _____  ______            The judge's  instructions on  strict liability were  that the            plaintiff  must  prove,  inter  alia, that  the  product  was                                     _____  ____            defective,  and "that  the  defect existed  at  the time  the            product  left the Defendant's hands."   In elaborating on the            latter point, the judge stated:                           The  manufacturer  or seller  is not                      responsible  for  defects resulting  from                      changes  made to  its  product  by  other                      persons over whom it had no control after                      the   product    left   the   Defendant's                      possession.                           Therefore,   in    order   for   the                      Plaintiff  to  prevail   on  his   strict                      liability claim, the Plaintiff must prove                      that the defect  that caused his injuries                      existed at the time the product  left the                      Defendant's  control.    That   does  not                      necessarily  mean  that the  product must                      have  been in exactly  the same condition                      at  the time  of the  injury that  it was                      when  it  left  the Defendant's  control.                                         -9-                                          9                      What it does mean is  that the particular                      defect for  which the Plaintiff  seeks to                      hold  the manufacturer  responsible, must                      have existed at the time the product left                      the Defendant's control.            Trial Transcript of August 19, 1993 at 12-13.  The judge then            instructed the jury that the  plaintiff was required to prove            that the defect proximately caused his injuries:                      That does not mean  that a defect must be                      the only  or the last cause  of an injury                      in order  to  be considered  a  proximate                      cause.   It may be considered a proximate                      cause if  it operates together  with some                      other  contemporaneous  cause to  produce                      the injury.   In such  cases, both causes                      may be  considered proximate causes.   If                      the two of  them act together  to produce                      the  injury, you could have two proximate                      causes.                           [A]  defect  must  be,  at  least, a                      substantial   contributing   factor    in                      producing the  injury in order  for it to                      be  considered a proximate  cause of that                      injury.  In other  words, there must be a                      reasonable connection  between the defect                      and the injury that is being claimed.            Id. at 14.            ___                      Although  consistent with the prevailing common law            rule  governing  strict liability  design  defect  actions in            Rhode Island, see Ritter v. Narragansett Elec. Co.,  283 A.2d                          ___ ______    ______________________            255, 262-63  (R.I. 1971), the  judge's instructions  directly            contradict   9-1-32.  Under  the statute, where a  subsequent            alteration  or modification  to a  product is  a "substantial            cause" of a plaintiff's injuries, the defendant is completely            immune  from a products  liability claim even  if the product            was defective  at the time  it left the  defendant's control,                                         -10-                                          10            and  the  defect was  a  proximate cause  of  the plaintiff's            injuries.  Despite the evidence in this case that changes had            been made to the ATV between the time of its initial sale and            the  time  of  plaintiff's  accident, this  defense  was  not            communicated  to  the jury.    Under  the circumstances,  the            district  court erred  in refusing  to give  Honda's proposed            instructions.1                      There is one additional step  to our analysis.   As            plaintiff correctly points out,  a finding of error does  not                                            ____________________            1.  Honda timely objected to  the district court's refusal to            give several of its proposed jury instructions:                      [1] [T]he  Honda defendants shall  not be                      held liable for product liability damages                      where a substantial cause of the accident                      was    a    subsequent   alteration    or                      modification of the all terrain vehicle.                      [2]  [F]ailure  to properly  maintain the                      braking system, steering system and other                      safety   related  items   can  constitute                      alteration  or  modification  of the  all                      terrain vehicle.                      [3]  [I]f you  find  that certain  safety                      related items on the all  terrain vehicle                      were   improperly  maintained   and  this                      improper  maintenance  created  a  danger                      that  was  a  substantial  cause  of  Mr.                      LaPlante's injuries  . . . then  you must                      find the Honda  defendants are not liable                      for plaintiff's injuries.            Appellants'  Second Supplemental  Jury  Instructions at  1-2.            Plaintiff argues that the above request was defective because            Honda did not label  it as an affirmative defense.   Assuming            plaintiff  is correct, the judge  still had a  duty to submit            the statutory defense to the jury.  See Jerlyn Yacht Sales v.                                                ___ __________________            Roman Yacht Brokerage, 950 F.2d 60, 69 n.16 (1st Cir. 1991).            _____________________                                         -11-                                          11            necessarily  warrant  reversal.     An  instructional   error            requires  reversal only where  the error is  determined to be            prejudicial based on a whole-record  review.  Davet, 973 F.2d                                                          _____            at 26; Shane v. Shane, 891 F.2d 976, 987 (1st Cir. 1989).  An                   _____    _____            error  is prejudicial if it could have affected the result of            the jury's deliberations.  Allen v. Chance Mfg. Co., 873 F.2d                                       _____    _______________            465,  469  (1st Cir.  1989).   At  trial Honda  adduced ample            evidence  that  the  ATV  ridden  by  plaintiff was  in  poor            condition  on the day of  the accident.   Most significant is            the undisputed fact that the ATV's front brakes did not work.            In addition, the evidence was sufficient for the jury to have            found that,  at the time  of the accident,  the ATV  had bent            front  forks, severely  maladjusted  rear  brakes,  unequally            inflated rear tires, and pulled to the right.2                      A rational jury,  presented with Honda's subsequent            alteration defense, could have  found that any or all  of the            alleged alterations or  modifications "substantially  caused"            plaintiff's    injuries.       Consequently,    the   court's            instructional  error could  have changed  the outcome  of the            trial.   Honda  was  not  only  entitled  to  have  the  jury                                            ____________________            2.  To  underscore the  poor condition  of the  ATV, Sergeant            James Shirley, its owner prior to Kallhoff, testified that he            paid only  $25 for the  ATV.   Trial Transcript of  August 2,            1993, Morning Session at 49.   In addition, Shirley testified            that  he did not make any significant repairs to the vehicle,            and that  the vehicle's condition appeared  unchanged when he            saw it one week prior to the accident. Id. at 53, 56.                                                   ___                                         -12-                                          12            instructed  on  this  defense, but  it  is  evident that  the            court's failure to give the instruction was reversible error.                      Plaintiff  raises  one  additional   argument  that            warrants brief  discussion.   He maintains that  the district            court's failure to give  a subsequent alteration charge, even            if reversible error, has no bearing on the  negligent failure            to warn claim.  This argument fails for two reasons.   First,              9-1-32 expressly covers  failure to warn claims as  well as            design  defect  claims.     R.I.  Gen.  Laws     9-1-32(a)(1)            ("product  liability damages"  includes damages  for personal            injuries  sustained  by reason  of  an  alleged  defect in  a            product  or an  alleged failure  to warn  against a  danger).            Second,  the  case cited  by  plaintiff as  support  for this            proposition, Witthauer v. Burkhart Roentgen, Inc., 467 N.W.2d                         _________    _______________________            439 (N.D.  1991), is  clearly distinguishable.   In Witthauer                                                                _________            the court held  that a North Dakota statute similar to   9-1-            32  did not provide manufacturers with a defense to claims of            negligent  failure to  warn  consumers of  dangers caused  by            foreseeable alterations or modifications to a product.  Here,            plaintiff's claim is that Honda failed to warn him of dangers            caused  by  the  ATV's  original  design  defect,  not  by  a            foreseeable   modification   or  alteration.     Accordingly,            Witthauer is  inapposite.   We  have  considered  plaintiff's            _________            other  arguments anent   9-1-32  and find them  to be without            merit.                                         -13-                                          13            B.  Scope of Retrial            B.  Scope of Retrial                ________________                      This leaves  us with  the question of  which issues            should be retried.   It is well settled that  "[a]n appellate            court has broad discretion to remand for a new trial  on all,            or only some, of the issues in the case."  Dopp v. HTP Corp.,                                                       ____    _________            947 F.2d  506, 518 (1st  Cir. 1991)  (collecting cases);  see                                                                      ___            also Fed. R. Civ. P. 59(a) (permitting a new trial on "all or            ____            part  of the  issues").   A new  trial may  not,  however, be            limited  to  fewer  than all  the  issues  unless  it clearly            appears that the  issues to  be retried are  so distinct  and            separable  from the other issues that a trial of those issues            alone may  be had without  injustice.  See  Gasoline Products                                                   ___  _________________            Co.  v.  Champlin Refining  Co.,  283 U.S.  494,  500 (1931);            ___      ______________________            Kassel v. Gannett Co., 875 F.2d 935, 953 (1st Cir. 1989).            ______    ___________                      All of  the issues pertaining to  liability must be            retried, including comparative negligence.  On balance, we do            not  think that a new trial limited to Honda's liability, but            excluding  the  extent  of  its  liability,  would  be  fair.            Moreover, comparative negligence is  regarded as a  liability            concept.  See Winn v. Lafayette Town House, 839 F.2d 835, 837                      ___ ____    ____________________            (1st Cir. 1988); Akermanis v.  Sea-Land Serv., Inc., 688 F.2d                             _________     ____________________            898,  906-07 (2d  Cir.  1982),  cert.  denied, 461  U.S.  927                                            _____  ______            (1983), and cert. denied, 464 U.S. 1039 (1984).                        _____ ______                                         -14-                                          14                      There  is  no basis  on  the  record, however,  for            retrying the jury's  damage award.3  The liability  issues in            this  case are  so distinct  and separable  from the  damages            issue that  a partial trial of the  former may be had without            injustice.    See Allen,  873 F.2d  at  473-74 (new  trial on                          ___ _____            liability only  where error  did not affect  determination of            damages); Winn, 839  F.2d at 837  (retrial on liability  only                      ____            where damages properly determined); see  generally 11 Charles                                                ___  _________            A. Wright  & Arthur R. Miller, Federal Practice and Procedure                                           ______________________________              2814  at 95 (1973) (there  may be a new  trial on liability            with the  prior determination  of damages allowed  to stand).            This  is  particularly  true  here because  the  trial  judge            submitted detailed  interrogatories to the jury,  and thus we            know  the jury's total damage award to the plaintiff, as well            as  the amount discounted due to  comparative negligence.  If            the comparative negligence figures are changed as a result of            the  new  trial,  the  total  damage  award can  be  adjusted            accordingly.                       Because we vacate  and remand  for a  new trial  on            both the strict  liability and negligence claims, as  well as            comparative negligence,  it is unnecessary for  us to address            Honda's remaining arguments regarding  these matters.  But in                                            ____________________            3.  Honda does  not  argue  that  the amount  of  the  jury's            unadjusted damage  award, $9.6  million, or any  component of            that award, is excessive or shocking.                                         -15-                                          15            order to expedite  the retrial, we  have considered one  such            argument.            C.  Evidence of Honda's Profits from ATV Sales            C.  Evidence of Honda's Profits from ATV Sales                __________________________________________                      Plaintiff's  counsel  was  permitted, over  Honda's            objection, to read the  following interrogatory and answer to            the jury  in connection with  his negligent  failure to  warn            claim:                      Q.     Please   state  the   total  gross                      revenues, profits and net income from the                      sale of the  all-terrain vehicles for the                      years 1970 through 1989 in each and every                      country  where ATVs  are or  were offered                      for sale  to the public.   Please respond                      separately for each listed  entity, Honda                      Motor Company, Inc., American Honda Motor                      Company,   Inc.,   Honda   R&D   Company,                      Limited.                      A.   [I]n 1987 it was  calculated for the                      period January 21, 1979 to June 25, 1985,                      gross  receipts   for  ATVs  approximated                      $1,722,881,000.   Although American Honda                      does not  keep records  of net profit  by                      ATV  product  line it  allocated expenses                      pursuant    to   reasonable    accounting                      principles to obtain a sum  comparable to                      pre-tax  net  profits in  the approximate                      sum of $73,371,000.            Honda  argues that the evidence of its profits from ATV sales            was  irrelevant and  therefore  inadmissible.   Assuming  the            evidence was relevant, Honda  argues that its probative value            was substantially outweighed by its prejudicial effect.                      "Evidence  is relevant  if it  has any  tendency to            make  the   existence  of  any  fact   consequential  to  the            determination  of the action more  or less probable."  United                                                                   ______                                         -16-                                          16            States  v. St. Michael's Credit Union, 880 F.2d 579, 600 (1st            ______     __________________________            Cir.  1989) (internal quotation  marks and citation omitted);            see also Fed. R.  Evid. 401.  After plaintiff's  counsel read            ___ ____            the interrogatory  and answer,  the trial judge  explained to            the jury that                      [t]he  evidence  [of Honda's  profits] is                      being presented  only  to assist  you  in                      determining  what Honda may have known or                      not  known  about the  particular vehicle                      that's  the  subject of  this  case.   In                      other   words,  it's  to  assist  you  in                      understanding or  reaching conclusions as                      to what Honda may  have known or believed                      about the ATC 200  or why it acted  as it                      did and  so forth. .  . .   [Y]ou're  not                      being  asked to  be Robin Hoods  here and                      take money from Honda simply because they                      may have  made money on the  sale of this                      vehicle.    The  only  purpose   of  this                      evidence is, as I  said, to assist you in                      reaching  whatever conclusions  you think                      are warranted about  whether the  vehicle                      as used had means to be dangerous or what                      Honda may have known about the vehicle or                      what it  might  have believed  about  the                      safety of the vehicle.            Near  the end  of  the trial  the  court commented  that  the            records  of Honda's  ATV profits  "seemed to be  probative of            the,  shall  we say,  the credibility  of the  explanation by            Honda; and  the Court  gave a limit[ing]  instruction to  the            jury at that time."                      The   first  question  is  whether  the  challenged            evidence was  relevant  to plaintiff's  negligent failure  to            warn claim.  In Rhode Island,  a defendant has a duty to warn            if he knew or should have known about the product's dangerous                                         -17-                                          17            propensities which caused  plaintiff's injuries.   Thomas  v.                                                               ______            Amway  Corp., 488 A.2d  716, 722 (R.I.  1985); Scittarelli v.            ____________                                   ___________            Providence Gas Co., 415 A.2d 1040, 1043 (R.I. 1980).  Failure            __________________            to  properly  perform  this  duty  as  a  reasonably  prudent            manufacturer   would   have   under  the   same   or  similar            circumstances,     constitutes     actionable     negligence.            Scittarelli, 415 A.2d at 1043.            ___________                      A defendant's motive for its action or inaction is,            generally speaking, immaterial to the question of whether the            defendant  acted negligently.  See Kunz v. Utah Power & Light                                           ___ ____    __________________            Co., 913  F.2d 599, 605 (9th Cir. 1990).  This is because the            ___            negligence  inquiry measures  behavior  against an  objective            standard, without reference to the defendant's state of mind.            See Sparks v. Gilley Trucking Co.,  992 F.2d 50, 52 (4th Cir.            ___ ______    ___________________            1993); Jones  v. Wittenberg Univ.,  534 F.2d 1203,  1211 (6th                   _____     ________________            Cir. 1976); see  generally W. Page Keeton, Prosser and Keeton                        ___  _________                 __________________            on Torts,    31 at  169-70 (5th  ed. 1984).   Here,  however,            ________            whether or  not Honda  had a duty  to warn  plaintiff of  the            ATV's  dangerous  propensities depended  upon  its subjective            knowledge of  those dangers.   Consequently, the  evidence of            Honda's  profits from ATV sales was, as we demonstrate in the            ensuing  paragraph, relevant to plaintiff's negligent failure            to warn claim.                      With  respect  to  his negligence  claim  plaintiff            alleged that, prior to his accident, Honda knew that its ATVs                                         -18-                                          18            would "plow" (i.e., continue in a straight line even when the                          ____            handlebars are turned) under normal riding  conditions unless            the rider  shifted his  or her  weight in  a counterintuitive            manner.    Honda denied  that it  had  any knowledge  of this            danger.   Honda's profits  from ATV  sales was  introduced as            evidence that  Honda's failure  to provide  adequate warnings            about  plowing   resulted  from  greed,  not   from  lack  of            knowledge.    Therefore,  proof  of profits  as  evidence  of            motive, while not material  to any element of the  failure to            warn claim, was probative  of an issue relevant to  the case:            the credibility of Honda's explanation for its inaction.                      Generally  speaking,  "[a]ll  relevant evidence  is            admissible."  Fed. R.  Evid. 402.   Under Rule  403, however,            relevant evidence may  be excluded if the  probative value of            the evidence  "is substantially  outweighed by the  danger of            unfair prejudice" to  the party against  whom it is  offered.            Fed.  R. Evid.  403; see  also Raymond  v. Raymond,  938 F.2d                                 ___  ____ _______     _______            1518, 1523-24  (1st Cir.  1991); St. Michael's  Credit Union,                                             ___________________________            880  F.2d at 601.   Although the evidence  of Honda's profits            from  ATV sales was of  some probative value,  we believe the            danger that  this evidence would unfairly  prejudice the jury            was overwhelming.                      The evidence was, at best, marginally  relevant and            of  scant  probative value  to  plaintiff's  failure to  warn            claim.   On the other hand,  the risk that the  jury would be                                         -19-                                          19            prejudiced by this reference to the enormous profitability of            Honda's  ATVs  was  almost  inescapable.     The  potentially            prejudicial nature of this "motive" evidence in the liability            phase of  the trial was one of  the factors that prompted the            district  court   to  try  the  issue   of  punitive  damages            separately.  While the court did give a  limiting instruction            to the  jury warning  against equalizing wealth  between rich            and poor, it  did not  alert the jury  to the impropriety  of            punishing Honda  for an unsavory  motive.  The  inadequacy of            the limiting  instruction coupled with  the highly attenuated            relevance  of  the evidence  leads  us  to  believe that  the            district court miscalibrated its Rule 403 scales.                      Honda argues  that the  admission of  this evidence            was reversible error,  as it skewed the  jury's allocation of            fault, and infected its liability determinations.  Because we            have already ordered a new trial on both of these matters, we            need  not  decide  whether  the  district  court's  error  in            admitting  the evidence  of  Honda's profits  from ATV  sales            warrants  a  new  trial.   Nevertheless,  we  hold that  this            material should not be admitted on retrial.  In addition, any            references  to that  information,  such as  the  one made  by            plaintiff at closing argument, should not be allowed.4                                            ____________________            4.  The  following   remarks   were  made,   albeit   without            objection, during plaintiff's summation:                           Well, I told you at the beginning of                      this case that the very disturbing, . . .                                         -20-                                          20                      On appeal Honda  has raised two arguments  relating            to the damages award that should be addressed at this time.            D.  Choice-of-Law            D.  Choice-of-Law                _____________                      Honda  argues that the district court's decision to            apply Rhode Island, rather than Colorado law, to the issue of            compensatory damages was erroneous.5  We disagree.                                            ____________________                      one  of the  most  disturbing aspects  of                      this  case is  something that  I believed                      throughout my  work on  this case. .  . .                      Honda's actions or more  truthfully their                      inactions in this case were  motivated by                      greed.  They were motivated by greed.                           Do you remember when I  stood before                      you on the  last day of  Plaintiff's case                      and  I  read  to you  that  interrogatory                      answer  concerning  the  amount of  money                      that Honda made in a six-year period from                      1979 to 1985 from  ATVs, and I stood here                      and I read it, and you may have been able                      to  notice,  I almost  became overwhelmed                      with  emotion  when  I was  reading  that                      because  it  sunk into  me at  that point                      what really was  the reason Honda  didn't                      do  anything to  warn  people about  this                      machine.    It  was  money.    It  was  a                      business decision.  They were making just                      between  1979  and   1985  $1.7   billion                      selling these machines in this country. .                      .  .      I  submit to  you  that  Arthur                      LaPlante's   accident   would  not   have                      happened  if  this  company  had  thought                      about  people before  money.    Had  they                      thought about people before money.            5.  The  difference between  the two  is substantial.   While            neither  state  limits a  plaintiff's recovery  of "economic"            damages,    or   damages   for    physical   impairment   and            disfigurement, Colorado  sets a  $250,000 cap on  damages for            "noneconomic  loss or  injury," (i.e.,  pain and  suffering),                                             ____            Colo.  Rev. Stat.   13-21-102.5  (1987 & 1993  Supp.).  Rhode            Island has no such limit.                                         -21-                                          21                      At  the  outset, we  reject  plaintiff's contention            that  Honda failed to preserve the choice-of-law issue.  This            matter  was timely  and  squarely presented  to the  district            court prior  to trial, and was decided  in plaintiff's favor.            Honda  was under no obligation  to renew its  motion later in            the  proceedings.  See Union  Mut. Life Ins.  Co. v. Chrysler                               ___ __________________________    ________            Corp.,  793 F.2d  1,  17 (1st  Cir.  1986) (no  waiver  where            _____            choice-of-law matter was "brought with  sufficient clarity to            the [district] court's attention"); see also Jaurequi v. John                                                ___ ____ ________    ____            Deere Co., 986  F.2d 170,  173 (7th Cir.  1993) (to  preserve            _________            choice-of-law  issue for  appeal party  only needs  to timely            notify court of the applicability of another state's law).                      A federal court sitting in diversity must apply the            conflict of  law rules of the state in which it sits.  Klaxon                                                                   ______            Co. v. Stentor Elec. Manuf. Co., 313 U.S. 487 (1941); Crellin            ___    ________________________                       _______            Technologies, Inc. v. Equipmentlease Corp., 18 F.3d 1, 4 (1st            __________________    ____________________            Cir.  1994).    Therefore  we  turn  our attention  to  Rhode            Island's choice-of-law principles.                      In resolving conflict of  law disputes arising  out            of tort  actions, Rhode  Island employs  an interest-weighing            approach.  Blais v. Aetna Cas.  & Sur. Co., 526 A.2d 854, 856                       _____    ______________________            (R.I.  1987); Pardey  v.  Boulevard Billiard  Club, 518  A.2d                          ______      ________________________            1349, 1351  (R.I. 1986); Woodward  v. Stewart, 243  A.2d 917,                                     ________     _______            923 (R.I.), cert. dismissed, 393 U.S. 957 (1968).  Under this                        _____ _________            approach  various interests  are weighed  in order  to decide                                         -22-                                          22            which jurisdiction has the most significant relationship with            reference to a particular substantive issue.  Pardy, 518 A.2d                                                          _____            at 1351; Woodward, 423 A.2d at 923.  The first set of factors                     ________            to be  taken into account are (1)  the place where the injury            occurred; (2) the place where  the conduct causing the injury            occurred; (3)  the place that  the parties  call home  (e.g.,                                                                    ____            their domicile,  residence, place of incorporation,  or place            of  business); and (4)  the place where  the relationship, if            any, between the parties is centered.  See Brown v. Church of                                                   ___ _____    _________            the  Holy  Name,  252  A.2d  176,  179  (R.I.  1969);  Putnam            _______________                                        ______            Resources v. Pateman, 958 F.2d 448, 464 (1st Cir. 1992).            _________    _______                      The  resolution of  choice-of-law problems  may not            always  turn on  the  number  of  contacts, but  rather,  the            qualitative  nature   of  those  contacts  affected   by  the            following  factors:    (1)  predictability  of  results;  (2)            maintenance  of interstate order;  (3) simplification  of the            judicial task;  (4) advancement of  the forum's  governmental            interest; and (5) application of the better rule of law.  See                                                                      ___            Brown, 252 A.2d at 178; Blais, 526 A.2d at 856.            _____                   _____                      Our  review  of  the  district  court's  ruling  is            plenary.   Pateman Resources, 958  F.2d at 464;  Quaker State                       _________________                     ____________            Oil  Refining Corp. v. Garrity  Oil Co., 884  F.2d 1510, 1515            ___________________    ________________            (1st Cir. 1989).   In the present case, Honda  wants Colorado            and  not  Rhode  Island  law  to  apply  to  the  measure  of            compensatory damages  available to plaintiff, but  not to the                                         -23-                                          23            substantive  rules of liability governing plaintiff's claims.            There  is no  reason that  this cannot  be  done.   Under the            doctrine of depecage, different  substantive issues in a tort            case may be resolved under the laws of different states where            the choices  influencing decisions differ.   See Pateman, 958                                                         ___ _______            F.2d  at 465; Ashland Oil, Inc. v. Miller Oil Purchasing Co.,                          _________________    _________________________            678 F.2d 1293, 1304 (5th Cir. 1982) (laws of different states            may  apply to issues of liability and damages in one action).            It follows that, in conducting our choice-of-law analysis, we            must consider  the states' interests  regarding the  distinct            issue  of  compensatory  damages,  and  not  their  interests            generally.    Rhode  Island  ascribes to  the  principles  of            depecage in tort cases.  Pateman Resources, 958 F.2d at 465.                                     _________________                      Regarding the number of contacts, we can discern no            material  difference  between   Rhode  Island  and  Colorado.            Although  the  injury  occurred  in  Colorado,  none  of  the            defendants are domiciliaries of Colorado.6  Furthermore,  the            tortious  conduct   allegedly  giving  rise   to  plaintiff's            injuries  occurred  in  Japan,  where  the  subject  ATV  was            designed and its warnings devised.  See Price v. Litton Sys.,                                                ___ _____    ____________            Inc.,  784 F.2d 600, 604 (5th Cir. 1986) (conduct occurred at            ____            place of design in design defect case).  Finally, there being                                            ____________________            6.  American  Honda  is  a  California  corporation with  its            principal place of business  in that state.  Honda  Motor Co.            and Honda  R&D Co.  are both Japanese  corporations and  have            their principal place of business in that country.                                         -24-                                          24            no "relationship"  between the parties in  the ordinary sense            of  the word, this factor is unhelpful in making a choice-of-            law determination.   See Allison  v. ITE Imperial  Corp., 928                                 ___ _______     ___________________            F.2d 137,  142 &  n.5  (5th Cir.  1991) (this  factor is  not            helpful  in  products  liability  cases where  there  was  no            preexisting  relationship  between  the  parties);  see  also                                                                ___  ____            Restatement (Second)  of Conflict  of Laws    145 (factor  in            choice-of-law analysis is  place where the relationship,  "if            any", of  the parties is centered).   Consequently, Colorado,            as  the place of injury,  has a single  material contact with            the present action.                      Rhode  Island  too  has   one  contact  with   this            litigation because,  at the  time of the  accident, plaintiff            was a domiciliary of Rhode  Island.  See Restatement (Second)                                                 ___            of Conflict of Laws   17 ("A person does not  usually acquire            a domicil of choice by his presence in a place under physical            or  legal compulsion.");  Stifel v.  Hopkins, 477  F.2d 1116,                                      ______     _______            1122 (6th Cir. 1973) (presence at a military station does not            make the  station serviceman's  domicile because he  is there            subject  to superiors'  orders); Ellis  v. Southeast  Constr.                                             _____     __________________            Co.,  260  F.2d 280,  281-82 (8th  Cir.  1958) (same).   And,            ___            predictably,   plaintiff  returned   home  to   Rhode  Island            immediately after the accident.7                                            ____________________            7.  Honda argues that plaintiff's post-accident return to his            home state  should not  factor into our  equation because  "a            litigant's  decision to  move to  the forum  state  after the                                         -25-                                          25                      That Rhode Island  was plaintiff's domicile at  the            time of the accident is conceded by the parties, and is amply            supported  by  the  record  -- throughout  his  stay  in  the            military  plaintiff  continued to  pay  income  tax in  Rhode            Island,  and, on  his  1987  reenlistment  papers,  plaintiff            listed Rhode Island as his home. That plaintiff was stationed            at an army base in Colorado at the time of the accident was a            matter of pure chance.  In fact, in his six years of service,            plaintiff  had been stationed  in Hawaii,  Maryland, Kentucky            and Korea prior to arriving in Colorado.                      Because  the  number of  contacts  claimed by  each            state  is  equivalent,  we  examine  the  additional  factors            enumerated  by  the  Rhode   Island  courts,  beginning  with            "predictability of  results."  This factor  militates against            the  application of  Colorado  law.   Honda,  a large  multi-            national  corporation,  cannot  argue  convincingly  that  it            expected  Colorado  law to  apply to  a  case arising  from a            product manufactured  in Japan  and involving a  Rhode Island            citizen  simply because  the product  was originally  sold in            Colorado.  It  would be  difficult for Honda  to persuade  us                                            ____________________            cause of action accrued should  be accorded minimal weight in            the  choice-of-law analysis."   Appellants' Brief at  44.  As            the  cases cited  by  Honda illustrate,  see, e.g.,  Phillips                                                     ___  ____   ________            Petroleum Co. v. Shutts,  472 U.S. 797, 820 (1985);  Reich v.            _____________    ______                              _____            Purcell, 432 P.2d 727, 730 (Cal. 1967), this general rule was            _______            adopted  in order to discourage forum shopping.  Where, as is            the  case  here, there  is not  the  slightest hint  of forum            shopping, plaintiff's  return to  Rhode Island should  not be            ignored.                                         -26-                                          26            that it molded its behavior in reliance on Colorado's damages            law, particularly where  that law was not enacted  until four            years after the  subject ATV  was thrust into  the stream  of            commerce.   See Roy v. Star Chopper  Co., 584 F.2d 1124, 1129                        ___ ___    _________________            (1st  Cir. 1978), cert. denied,  440 U.S. 916  (1979).  Honda                              _____ ______            certainly did  not purchase liability insurance  based on its            potential  exposure under  a nonexistent  Colorado law.   See                                                                      ___            Turcotte  v. Ford Motor Co., 494 F.2d  173, 178 n.6 (1st Cir.            ________     ______________            1974).  Honda can neither claim nor rely on a vested right to            limited exposure for non-economic damages under Colorado law.            Jaurequi, 986  F.2d at 186.   Consequently, Honda's justified            ________            expectations would not  be upset by the  application of Rhode            Island law.                      We turn to the next  factor:  maintenance of inter-            state order.   "`Interstate order is  served when application            of  one state's  law offends  no law  or policy of  the other            state.'"  Roy, 584  F.2d at 1129 (quoting Turcotte,  494 F.2d                      ___                             ________            at  178).   To perform  this analysis,  we must  identify the            purposes or policies which underlie each state's rule of law,            and the  degree to  which the purposes  underlying each  rule            would be  furthered by  the rule's application.   Inevitably,            this analysis  subsumes the  fourth factor delineated  by the            Rhode  Island   courts:     "advancement   of   the   forum's            governmental interests."                                         -27-                                          27                      Colorado  has  little   governmental  interest   in            limiting  the  amount  of  damages  for  pain  and  suffering            available  to  plaintiff  in  the present  litigation.    The            Colorado statute limiting the amount of damages for pain  and            suffering in  civil actions, Colo. Rev.  Stat.   13-21-102.5,            reflects an economic policy  consideration.  According to the            Colorado Supreme  Court, "[i]t is clear  from the legislative            history of section 13-21-102.5 . . . that the primary goal of            the  legislature  was  to  increase  the   affordability  and            availability  of  insurance by  making  the  risk of  insured            entities more predictable."  General Elec. Co. v. Niemet, 866                                         _________________    ______            P.2d 1361, 1364 (Colo.  1994).  Thus, the goal  of Colorado's            legislature was:                      to  improve  the predictability  of risks                      faced  by insurance  companies.    If  an                      insurance company can predict  risks with                      reasonable  accuracy,  then  it can  also                      predict  its losses  and  profits.    The                      concern  of an  insurance company  is the                      risk   associated   with  insuring   each                      individual insured, not  with denying  an                      injured person  damages that may  be paid                      by another insurance company or person.              Id. at 1365.  The crucial  question, then, is whether, on the            ___            facts  of this  particular  case, Colorado's  policy will  be            advanced by the application of its damages cap.                      We can  see no reason why  the Colorado legislature            would be concerned with  the affordability of insurance  to a            multinational  Japanese  corporation   or  its   wholly-owned            subsidiary, a California corporation.   Honda sells its cars,                                         -28-                                          28            motorcycles and recreational  vehicles in  all fifty  states,            and Colorado's  damages law plays, at  best, an insignificant            role in setting Honda's  insurance rates.  In fact,  there is            no  evidence  in  the  record  that  Honda  has  ceased doing            business in any state because of  a failure by that state  to            limit  the amount  of damages  a plaintiff  may recover  in a            civil action.                      Rhode  Island  courts,  on  the  other  hand,  have            repeatedly   stressed  that  a   plaintiff  should  be  fully            compensated  for his  personal  injuries, including  pain and            suffering.   See, e.g.,  Hayhurst v. LaFlamme,  441 A.2d 544,                         ___  ____   ________    ________            548-49 (R.I.  1982); Kelaghan v.  Roberts, 433 A.2d  226, 230                                 ________     _______            (R.I. 1981).   Domiciliary states have  a strong interest  in            the welfare  of their  plaintiffs, and  in seeing  that their            plaintiffs  are adequately  compensated  for their  injuries.            See In re Air Crash Disaster Near Chicago, 644 F.2d 594, 612-            ___ _____________________________________            13 (7th Cir.), cert.  denied, 454 U.S. 878 (1981);  Burgio v.                           _____  ______                        ______            McDonnell  Douglas, Inc.,  747  F. Supp.  865, 872  (S.D.N.Y.            ________________________            1990) ("Where courts  have applied  the law of  the place  of            injury,  the issue  has often  been  liability as  opposed to            [compensatory] damages."  (citing cases)).  This  interest is            best served  by applying the law of  the plaintiff's domicile            to  the measure  of compensatory  damages.   In re  Air Crash                                                         ________________            Disaster,  644 F.2d  at  613.   In  the instant  case,  Rhode            ________                                         -29-                                          29            Island's interest would  be frustrated  rather than  advanced            were Colorado law applied.                      The  interests of  simplification  of the  judicial            task and  application of the better rule  of law do not weigh            heavily  in either state's direction.   As to  the former, we            cannot  see how  the  judicial task  would  be more  or  less            simplified  by  application of  one  rule as  opposed  to the            other.  As  for the  latter, the Rhode  Island Supreme  Court            would  undoubtedly  favor   a  compensatory  damage  standard            without limits.  We  are confident that a Rhode  Island court            faced  with this choice-of-  law dilemma would  apply its own            law.   The  district  court, it  follows,  acted properly  in            applying Rhode Island law.            E.  Prejudgment Interest            E.  Prejudgment Interest                ____________________                      Honda argues  that prejudgment interest  should not            be assessed on future damages, or on damages awarded for pain            and suffering.  A brief foray into Rhode Island law evidences            the futility of Honda's arguments.8                      In arguing  that the trial court  erred in applying            Rhode   Island's  prejudgment  interest   statute  to  future            damages,   Honda   maintains   that  "interest"   is   simply                                            ____________________            8.  In light of our  determination that a Rhode Island  court            would apply its own law to the issue of compensatory damages,            so too would it  apply its own prejudgment  interest statute.            See  Johnson v.  Continental Airlines  Corp., 964  F.2d 1059,            ___  _______     ___________________________            1064-64 (10th Cir. 1992) (law governing compensatory  damages            should govern prejudgment interest).                                         -30-                                          30            compensation  for the loss of  use of money,  and that, "[i]n            light  of the common  understanding of the  term, only Humpty            Dumpty  would  be  brazen  enough  to  assert  that  interest            encompasses monies  paid to compensate for  the time-value of            money that has not yet been expended. See L. Carroll, Alice's                                                  ___             _______            Adventures  in Wonderland  &  Through  the Looking-Glass  186            ________________________________________________________            (Signet  Classic  1960)."   Appellants'  Brief at  52.   This            argument, while colorful, is substantively wrong.                      The  Rhode  Island  prejudgment   interest  statute            provides, in pertinent part:                      In any civil action in which a verdict is                      rendered or a decision made for pecuniary                      damages,  there  shall  be added  by  the                      clerk  of  the  court  to  the amount  of                      damages, interest at  the rate of  twelve                      percent (12%) per  annum thereon from the                      date  the cause  of action  accrued which                      shall be included in the judgment entered                      therein.            R.I.  Gen. Laws    9-21-10  (Supp. 1993).   The  Rhode Island            Supreme   Court  has   frequently   pointed  out   that  "the            Legislature's primary intention  [in enacting the prejudgment            interest  statute] was not to add interest but to establish a            device  to encourage  settlements of  cases sounding  in tort            without  undue delay."  DiMeo  v. Philbin, 502  A.2d 825, 826                                    _____     _______            (R.I. 1986) (citing cases); see also Pray v. Narrangansett                                         ___ ____ ____    ______________            Imp. Co.,  434 A.2d 923,  930 (R.I. 1981);  Roy, 584  F.2d at            ________                                    ___            1135;  cf. Rhode Island Turnpike &  Bridge Auth. v. Bethlehem                   ___ _____________________________________    _________            Steel Corp., 446  A.2d 752, 757  (R.I.) (noting that  statute            ___________                                         -31-                                          31            serves  two  purposes,  promotion  of early  settlements  and            compensation for the loss of use of money), appeal dismissed,                                                        ______ _________            459 U.S. 938 (1982); Murphy  v. United Steelworkers of Amer.,                                 ______     ____________________________            507 A.2d 1342, 1346 (R.I. 1986) (same).                      In Pray, the  court held that    9-21-10 applies to                         ____            damages  awarded in  wrongful  death actions,  even though  a            jury's  verdict  in  a   wrongful  death  action  includes  a            prediction of  what  the decedent  would have  earned in  the            future,  discounted to present value.  Pray, 434 A.2d at 930.                                                   ____            The court  acknowledged that simultaneous  application of the            prejudgment interest and wrongful death statutes would "allow            interest to accrue upon  interest as well as upon  an award,"            but observed that this would not frustrate the purpose of the            prejudgment  interest  statute,  namely,  promotion  of early            settlements.  Id. at 930.  Moreover, the court held that, due                          ___            to the mandatory nature  of the prejudgment interest statute,            the  trial judge would have  had no authority  to prevent the            addition of interest to future damages:                      "In  our opinion  the statute  is neither                      ambiguous  nor  equivocal.     It  speaks                      imperatively  and  directly  not  to  the                      court but to the  clerk who is ordered to                      add `to  the amount of  damages, interest                      thereon  .  .  .  .'   This  is  a purely                      ministerial   act;  it   contemplates  no                      judicial  intervention.   The legislative                      fiat   is  explicit  and   admits  of  no                      conditions  or  reservations.   The claim                      for damages  having been duly  reduced to                      judgment  the  addition  of  interest  is                      peremptory."                                         -32-                                          32            Pray, 434 A.2d at 931 (quoting Kastal v. Hickory House, Inc.,            ____                           ______    ___________________            187 A.2d 262, 264 (R.I. 1963)).                      The court  further  noted  that, had it  wanted to,            the  legislature could  have excluded wrongful  death actions            from the ambit of the prejudgment interest statute, but chose            not to:                           "In the  face of a statute  so clear                      and  unambiguous there is no room for the                      application  of  the   usual  canons   of                      statutory construction.   In such a  case                      the statute declares itself.  We  may not                      where no ambiguity  exists search  beyond                      the  statute  for  a  different  meaning.                      Even hardship does not justify a court in                      reading into a statute something contrary                      to its unequivocal  language.  Only  when                      the   legislature  sounds   an  uncertain                      trumpet may the court move in  to clarify                      the call.  But when the call is clear and                      certain as it is here we may not consider                      whether the statute  as written  comports                      with  our ideas of justice, expediency or                      sound   public   policy.       In    such                      circumstances  that  is  not the  court's                      business."            Id. at 931 (quoting Kastal, 187 A.2d at 264-65).            ___                 ______                      While it has provided  us with a literary allusion,            Honda  has chosen to ignore  both the primary  purpose of the            Rhode  Island  prejudgment  interest  statute,   and  binding            precedent  that firmly  establishes that  the statute,  which            does not  distinguish between past and  future damages, means            what  it says,  and  says what  it  means.   It follows  that            prejudgment  interest was  properly  assessed on  all  future            damages awarded to plaintiff.                                         -33-                                          33                      Honda  also  argues  that  damages  for  "pain  and            suffering" are not "pecuniary,"  and are therefore beyond the            scope of  the prejudgment interest statute.   Like bumper-to-            bumper traffic, this argument goes nowhere.                      Section   9-21-10  calls  for   the  imposition  of            interest in any "civil action" in which a verdict or decision            awards "pecuniary  damages."  In construing  the statute, the            Rhode   Island   Supreme  Court   has  explained   "that  the            Legislature, in employing the  term 'pecuniary,' was using it            as a synonym for compensatory."  Murphy, 507 A.2d at 1346.                                             ______                      Because  awards of punitive and nominal damages are            not designed to compensate a plaintiff, they fall outside the            reach  of the  prejudgment interest statute.   Id.;  DeLeo v.                                                           ___   _____            Anthony  A. Nunes,  Inc., 546  A.2d 1344,  1348 (R.I.  1988),            ________________________            cert.  denied and appeal dismissed, 489 U.S. 1074 (1989).  On            _____  ______     ______ _________            the  other   hand,  the   Rhode  Island  Supreme   Court  has            consistently held that damages for pain and suffering are "in            the nature  of compensatory  damages."   Trainor  v. Town  of                                                     _______     ________            North  Kingstown, 625  A.2d  1349, 1350  (R.I. 1993)  (citing            ________________            cases).   This is so  even though "`no  particular formula or            rule of thumb  is available either to a jury  or to [a] court            for  computing the damages which  are due to  a plaintiff for            pain and  suffering.'"   Hayhurst, 441  A.2d at  547 (quoting                                     ________            Worsley v.  Corcelli, 377 A.2d 215, 217 (R.I. 1977)).  We are            _______     ________            led  inexorably  to   the  conclusion  that   Rhode  Island's                                         -34-                                          34            prejudgment  interest statute encompasses damages awarded for            pain and suffering.            F.  Plaintiff's Cross-Appeal            F.  Plaintiff's Cross-Appeal                ________________________                      Plaintiff's  claim for  punitive damages  was tried            subsequent  to  the  issues  of  liability  and  compensatory            damages.   At  the  close  of plaintiff's  case  on  punitive            damages,  the  district  court  granted  Honda's  motion  for            judgment as  a matter  of law  under Fed.  R. Civ. P.  50(a).            Plaintiff appeals this ruling.                      We   exercise  plenary  review  over  the  district            court's grant  of a motion for  judgment as a matter  of law,            and apply  the same standard  as applied below.   See Cook v.                                                              ___ ____            State of  Rhode Island  Dep't of Mental  Health, Retardation,            _____________________________________________________________            and  Hosp., 10 F.3d  17, 21 (1st  Cir. 1993).   Such a motion            __________            should  be granted if, viewing  the evidence in  a light most            favorable to the  nonmovant, no jury could properly decide in            that party's favor.   Id.   We  cannot assess  the weight  of                                  ___            conflicting evidence or pass on the credibility of witnesses.            Id.  It is  undisputed that the district  court's examination            ___            of the evidence here diligently followed this standard.                      We turn  to Rhode Island  law for the  lens through            which  we must view the  evidence.  The  Rhode Island Supreme            Court has recently articulated the standard  governing claims            for punitive damages:                      [A]  party seeking  an award  of punitive                      damages  bears  the  burden   of  proving                                         -35-                                          35                      evidence     of     such     willfulness,                      recklessness or wickedness on the part of                      the  party  at  fault,  as  amount[s]  to                      criminality,  which  for   the  good   of                      society  and  warning to  the individual,                      ought to be punished.            Soares v.  Ann & Hope,  Inc., 637 A.2d  339, 351 (R.I.  1994)            ______     _________________            (internal  quotation marks and  citations omitted);  see also                                                                 ___ ____            Sarkisian  v. Newpaper, Inc.,  512 A.2d 831,  836 (R.I. 1986)            _________     ______________            (evidence  must indicate that defendant acted maliciously and            in bad faith).   It is a question of law  for the trial court            to decide whether the plaintiff's  proofs support an award of            punitive damages.   Soares,  637 A.2d at  351.  Only  if that                                ______            court determines that  the facts  of a case  warrant such  an            award, should it allow the jury to decide the amount, if any,            of that award.  Id.                            ___                      We have  conducted  an  exhaustive  review  of  the            record,  and  are in  complete  agreement  with the  district            court's  ruling.    Even  assuming  (without  deciding)  that            sufficient evidence was introduced at the first phase of  the            trial to support plaintiff's strict  liability and negligence            claims, no reasonable juror could have found, at the close of            plaintiff's  punitive  damages  evidence,  that  Honda  acted            maliciously,  in bad faith, or with the intent to cause harm.            See Palmisano,  624 A.2d at  318.  Accordingly,  the judgment            ___ _________            for Honda on plaintiff's  claim for punitive damages  must be            affirmed.                                         III.                                         III.                                         -36-                                          36                                      CONCLUSION                                      CONCLUSION                                      __________                      The judgment of liability  is vacated, and the case            is remanded  for a  new trial  on all  liability issues.   On            retrial  the district  court should  exclude the  evidence of            Honda's profits  from ATV  sales, and prohibit  references to            that information similar to the one made in  closing argument            at the original trial.                      We uphold the  district court's  decision to  apply            Rhode  Island law  as to  compensatory damages,  and conclude            that,  should  plaintiff prevail  on  retrial,  the award  of            damages shall  stand,  and  prejudgment  interest  should  be            assessed  on the entire damage award.  The judgment for Honda            on plaintiff's claim for  punitive damages claim is affirmed.            No costs to either party.                      So ordered.                      So ordered.                      __________                                         -37-                                          37
