                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-1886

                        FRANK X. LOSACCO,

                      Plaintiff, Appellant,

                                v.

                F.D. RICH CONSTRUCTION CO., INC.,

                       Defendant, Appellee.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Frank H. Freedman, U.S. District Judge]
                                                      

                                           

                              Before

                       Breyer, Chief Judge,
                                          

              Torruella and Boudin, Circuit Judges.
                                                  

                                           

     Paul  F.  Kelly, with  whom  Shelley  B. Kroll,  and  Segal,
                                                                 
Roitman &amp; Coleman, were on brief for appellant.
                 
     Lewis G. Schwartz,  with whom  Gary S. Klein,  and Schatz  &amp;
                                                                 
Schatz, Ribicoff &amp; Kotkin, were on brief for appellee.
                         

                                           

                           May 10, 1993
                                           

          TORRUELLA, Circuit Judge.   At trial, appellant claimed
                                  

that  appellee  ended  his   employment  improperly.    The  jury

determined  that  appellant was  terminated  for  just cause  and

therefore   found  no  violation   of  his  employment  contract.

Appellant now claims  that the  district court gave  the jury  an

erroneous  instruction as  to "just  cause" and  wrongly excluded

admissible relevant evidence at trial.   Appellant thus asks this

court to  vacate the judgment  and order  a retrial.   Because we

find no error in the district court's instructions or evidentiary

rulings, we do not grant appellant his requests.

                            THE FACTS
                                     

          Appellant is a structural engineer with an expertise in

pre-cast concrete  construction.   He worked  as a consultant  on

matters  involving  pre-cast  concrete  at  appellee's  Stamford,

Connecticut headquarters.  Appellee soon determined that it would

be more profitable  to make pre-cast  products instead of  buying

them from  outside vendors.    The company thus set  up a factory

for this purpose in Pittsfield, Massachusetts and hired appellant

to manage it.

          The  details of  the employment  contract are  in sharp

dispute.    Appellant  contends  that  he  agreed  to manage  the

Pittsfield facility for a minimum of three years, in exchange for

salary and benefits including housing in Pittsfield for the three

year  term.  Appellee, on the other hand, contends that appellant

was  an  at-will employee,  as were  all  other employees  of the

company.  In  any event,  appellant began work  in Pittsfield  in

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August, 1987.

          In October 1987, the  company's senior managers visited

the plant,  announced its  immediate closure, and  terminated all

employees,  including appellant.   Appellant claims that appellee

closed  the plant to  thwart union activity.   Appellee, however,

contends that it  decided to  close the plant  because the  sharp

downturn  in  the  Northeast  real  estate  market  affected  its

construction projects.   Appellee  also claimed  that appellant's

performance was inadequate.

          Appellant  sued,  claiming that  appellee was  bound by

contract  to employ him for three years.  Appellee responded that

no  contract  was  formed, but  that  even  if  one existed,  the

termination  was  for "just  cause"  and  therefore proper  under

Massachusetts  law.   During  the trial,  appellant attempted  to

cross-examine a  former supervisor about testimony  at a National

Labor Relations Board hearing to the effect that there was plenty

of work  at the plant.   The hearing occurred  shortly before the

plant's  closing.    The  district court  judge  disallowed  this

questioning, finding  it beyond the scope  of direct examination,

and more prejudicial than probative.

          At the close of evidence, the district court instructed

the jury that if a contract existed, termination for "just cause"

would be proper.   The district court judge defined  "just cause"

as 1) poor performance by appellant on the job or 2) a good faith

determination that  the economic  needs of the  business required

appellant's discharge.  During  deliberations, the jury asked the

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judge to repeat its definition of "just cause."  The jury finally

found that  a contract for fixed-term  employment existed between

the  parties, but  that  "just cause"  allowed  appellee to  fire

appellant.    This appeal  followed  in which  appellant  seeks a

retrial on only the breach of contract claims.

                            DISCUSSION
                                      

          Appellant  urges two  errors in  the  jury instruction.

First,  he contends that the instruction does not reflect the law

in Massachusetts as to the definition of just cause.   Second, he

claims that  the instruction  improperly invaded the  province of

the  jury,  by  settling a  question  of  fact,  in violation  of

Massachusetts law.  As appellant claims that the jury instruction

incorrectly stated  Massachusetts contract  law, we review  it de
                                                                 

novo.   Salve Regina  College v. Russell, 111  S. Ct. 1217 (1991)
                                        

(mandating  de novo  review  of  a  district  court's  state  law
                   

determinations).

          The suspect instruction reads as follows:

            An employer  has just cause  to discharge
            an  employee   if,   one,  there   is   a
            reasonable     basis     for     employer
            dissatisfaction  with  an  employee,  for
            reasons  such  as  lack  of  capacity  or
            diligence,  failure  to conform  to usual
            standards of conduct,  or other  culpable
            or  inappropriate behavior.   Or two, the
            discharge is reasonably  related, in  the
            employer's   honest   judgment,  to   the
            economic needs of his business.

The district court derived  this instruction almost verbatim from

a duo of Massachusetts  cases, Goldhor v. Hampshire  College, 521
                                                            

N.E.2d 1381, 1385 (Mass.  App. Ct. 1988), and Klein  v. President
                                                                 

                               -4-

and Fellows of Harvard  College, 517 N.E.2d 167, 169  (Mass. App.
                               

Ct. 1987).   Although those  cases stated the  entire just  cause

definition, they  focussed on the  first prong, holding  that the

employee either  did or  did not  meet the performance  standard.

Because  the  holdings did  not invoke  the  second prong  of the

definition, appellant argues that  the economic needs standard is

not  a part of Massachusetts law but rather dicta by intermediate

state courts.  As such, it cannot support a jury instruction.

          We  disagree.   When the  highest state  court has  not

issued  a definitive  ruling on  the precise  issue at  hand, the

federal  courts  may  refer  to  analogous decisions,  considered

dicta, scholarly  works, or  other reliable sources  to ascertain

how  the highest court would  rule.  Redgrave  v. Boston Symphony
                                                                 

Orchestra, Inc., 855  F.2d 888,  903 (1st Cir.  1988) (en  banc),
               

cert.  denied,   488  U.S.  1043   (1989).    The   decisions  of
             

intermediate  state appellate  courts  are  trustworthy data  for

ascertaining state  law.   CPC International, Inc.  v. Northbrook
                                                                 

Excess &amp; Surplus Insurance Co., 962 F.2d 77, 91 (1st Cir. 1992).
                              

          The   Massachusetts  Supreme  Judicial  Court  has  not

answered the precise  issue at  hand -- whether  an employer  may

terminate a fixed-term employee  due to economic  considerations.

The plaintiffs in Goldhor and Klein were fixed-term employees and
                                   

therefore  similarly  situated  to   appellant.    As  such,  the

considered dicta  in those  cases concerning terminations  due to

economic necessity represents a reliable statement  of the law in

Massachusetts.   The district court did not err in relying on it.

                               -5-

There is no  indication that the  highest court of  Massachusetts

would define just cause any differently.

          To the contrary, we note that Massachusetts courts have

defined just cause, or similar language, in a virtually identical

manner  in  other  contexts.    Goldhor  and  Klein  derived  the
                                                   

definition  of just cause from G  &amp; M Employment Service, Inc. v.
                                                              

Commonwealth, 265 N.E.2d  476 (Mass.  1970).  In  that case,  the
            

highest  court  in  Massachusetts  defined  just  cause  for  the

purposes  of a  statute regulating  private employment  agencies.

The court's definition in  that case was the direct  precursor to

the definition  used in Goldhor  and Klein.   Other Massachusetts
                                          

cases  validating premature  terminations  due to  economic  need

include Amoco Oil  Co. v.  Dickson, 389 N.E.2d  406 (Mass.  1979)
                                  

(franchise agreement) and Karcz  v. Luther Manufacturing Co., 155
                                                            

N.E.2d 441  (Mass. 1959) (collective bargaining  agreement).  See
                                                                 

also Foreign Motors, Inc. v. Audi  of America, Inc., 755 F. Supp.
                                                   

30 (D. Mass. 1991) (franchise agreement).  Appellant has directed

us  to, and  we have found,  no cases involving  just cause which

prohibit economically-motivated terminations.   Given the  weight

of authority,  we believe that  the jury instruction,  taken from

Goldhor and Klein, correctly set forth Massachusetts law.
                 

          Appellant's second attack  on that instruction  claimed

that the instruction improperly invaded the province of the jury.

Consistent  with   the  law  on   economically-based  discharges,

however, the jury  could decide whether  appellee made an  honest

business judgment to  close the plant.  Appellant  cannot contend

                               -6-

that the  parties contemplated  just  cause to  have a  different

meaning in this context because  there was no evidence indicating

the  existence  of such  an alternate  meaning.   The  court thus

properly  relied on  the  implied Massachusetts  definition.   We

decline appellant's invitation to remand the case  for retrial or

to certify the state law question due to the jury instruction.

          We  turn now  to appellant's  arguments  concerning the

exclusion of certain evidence.  Appellant sought to cross-examine

a witness  to show  that there  was plenty of  work at  the plant

shortly before its closing.   Appellant hoped that an  officer of

appellee  would relate  testimony from  an NLRB  hearing to  this

effect.   To elicit this  testimony, appellant asked  "[i]t was a

matter of some concern  to you that the  employees were going  to

organize,  wasn't  it?"     Appellee  promptly  objected  to  the

relevance of the question, and the judge held a bench conference.

Appellant there indicated that he wished  to elicit the testimony

concerning the amount of work at the plant.  The  district  court

excluded the testimony because the  supervisor did not testify on

direct  as  to the  motivation behind  the  plant closing  or the

economic woes troubling the company.  

          We review a district  court's evidentiary rulings  only

for abuse of discretion, e.g., Willhauck v. Halpin, 953 F.2d 689,
                                                  

717 (1st Cir.  1991), and the district court  did not commit such

abuse in this instance.   The new line  of questioning sought  to

establish  that  the plant  was  not closed  for  honest business

reasons.    The  witness, however,  did  not  testify  as to  the

                               -7-

motivation for  the company's action on direct  examination.  The

district court  therefore properly  refused to entertain  the new

line of questioning pursuant to Fed. R. Evid. 611(b).  

          Of  course, trial judges,  within their discretion, may

disregard Rule  611(b).  Fed.  R. Evid.  611(b).  We  cannot say,

however, that  the district court's  decision to follow  the rule

constitutes  an   abuse  of  discretion.     The  district  court

reasonably  believed that  the question  threatened prejudice  in

that it  would ascribe an  unfair anti-union animus  to appellee.

Even  if  appellant sought  to show  that  the plant  closing was

motivated  by  such animus,  this  single  question supported  by

minimal  explanation  or  proffer  cannot  overcome  Rule 611(b).

Appellant  should have  presented a  more coherent  rationale for

pursuing  the  questioning, or  revived  the  questioning when  a

witness testified as to such motivation.

          Because we have found no cause to remand the case for a

new  trial,  we need  not address  whether  that trial  should be

limited  to the breach of contract issues or should encompass all

issues in the case.

          Affirmed.
                  

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