
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-1920                                  AIR SAFETY, INC.,                            A/K/A AIR SAFETY ENGINEERING,                                Plaintiff, Appellant,                                          v.               ROMAN CATHOLIC ARCHBISHOP OF BOSTON, A CORPORATION SOLE               AND CHRISTIAN BROTHERS INSTITUTE OF MASSACHUSETTS, INC.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Reginald C. Lindsay, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Stahl, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                            and Cummings,* Circuit Judge.                                           _____________                                 ____________________               William M. Simmons with whom Nancy G. O'Donnell was on brief               __________________           __________________          for appellant.               Francis J. O'Connor with whom Wilson D. Rogers, Jr., was on               ___________________           _____________________          brief for appellee Roman Catholic Archbishop of Boston.               Regina Williams Tate with whom William J. Egan was on brief               ____________________           _______________          for appellee Christian Brothers Institute of Massachusetts, Inc.                                 ____________________                                   August 21, 1996                                 ____________________                                        ____________________               *Of the Seventh Circuit, sitting by designation.               COFFIN, Senior  Circuit Judge.   Appellant Air  Safety, Inc.                       _____________________          filed  this diversity  suit  seeking payments  allegedly due  for          asbestos  removal at  six  Boston area  parochial  schools.   The          defendants, the Roman Catholic  Archbishop of Boston ("RCAB") and          the  Christian Brothers  Institute  of Massachusetts,  Inc. ("the          Institute"),  filed counterclaims  alleging damages  arising from          Air Safety's work.1  The bottom line after a series of rulings by          the  court  and  the  jury  was a  net  award  in  favor  of each          defendant.   Air  Safety asserts  two claims  on appeal:  (1) the          district  court abused  its  discretion  in  refusing to  hold  a          partial  new  trial  on  negligence  damages,  which  Air  Safety          contends were  excessive and unsupported  by the record;  and (2)          the district  court erred  in excluding crucial  exhibits showing          Air Safety's overhead costs, requiring a partial new trial on its                                                                        ___          damages  against  the  RCAB  and  the  Institute.    We  find  no          reversible error  in the  court's evidentiary ruling,  but vacate          and  remand  for a  new trial  on  the negligence  damages unless          defendants accept a proposed remittitur.                                I. Factual Background                                   __________________               This  case  originated in  Air  Safety's  successful bid  to          remove asbestos at six schools owned by the defendants.  The work          began  in the  summer  of 1988.    Conflicts arose  over  various          aspects  of the project,  including the  quality of  Air Safety's          performance and the defendants'  obligations to pay for completed                                        ____________________               1 RCAB is the owner of five of the schools.  The Institute          owns the sixth, Catholic Memorial High School.                                         -2-          work.   Air Safety filed suit to obtain payment, asserting claims          for breach  of contract,  for payments  on an  "account stated,"2          and, as alternative relief, for quantum meruit.  The RCAB and the          Institute   filed  counterclaims  for   breach  of  contract  and          negligence.3               During the  course of  pre-trial  proceedings, the  district          court  allowed Air Safety's account stated claim in the amount of          $328,738  for  the five  schools owned  by  the RCAB,  but stayed          enforcement  of   the  judgment  until  all   other  claims  were          resolved.4   Following  a twelve-day trial,  the jury  found that          neither the RCAB nor the  Institute had breached their contracts,          but that  Air Safety  had done  so.  It  found, however,  that no          breach of contract damages had been suffered by either defendant.          The jury  also  determined that  Air Safety  was responsible  for                                        ____________________               2 An "account stated" claim is one based on an          acknowledgement of an existing liability for a specified amount,          from which the law implies a promise to pay.  Rizkalla v.                                                        ________          Abusamra, 187 N.E. 602, 603 (Mass. 1933).          ________               3 Other causes of action not of significance here were          dismissed.               4 Two aspects of the account stated portion of the case need          clarification.  First, the proceeding affected only the RCAB and          its five schools because the Institute had not yet been made a          party; Air Safety did not realize at the outset of the litigation          that the sixth school, Catholic Memorial High School, was owned          by a separate entity.  It subsequently filed a First Amended and          Supplemental Complaint adding the Institute as a defendant.               Second, the account stated award was reduced after trial,          based on amounts paid by the RCAB, to $62,249.97.                                         -3-          negligence damages, but  that it was  entitled to quantum  meruit          relief.  The net result was awards in favor of both defendants.5               Air  Safety filed a motion  for new trial  on the negligence          damages, claiming that  the amounts awarded were not supported by          the  evidence.  After  briefing and  oral argument,  the district          court denied the motion in a margin order.  This appeal followed.                                II. Negligence Damages                                    __________________               Air Safety  contends that  the jury's negligence  awards far          exceed the record evidence of damage.  It maintains that the RCAB          established  only  $21,672 in  damages,  while  the jury  awarded          $235,000.  It further claims  that the Institute's proven damages          totaled only  $85,894, compared with  a jury  award of  $138,000.          The district court rejected Air Safety's request through a motion          for new trial to revisit the issue of negligence damages, and Air          Safety now urges us to find that that ruling was erroneous.               Our review is narrow.  A district court's denial of a motion          for new  trial may be  reversed only for an  abuse of discretion.          Ahern  v. Scholz,  85 F.3d  774,  780 (1st  Cir. 1996).   "`In  a          _____     ______          challenge  to a jury award,  [the appellate court]  is limited to                                        ____________________               5 The judgment specified the following amounts, plus          interest:          (a) quantum meruit from the RCAB to Air Safety: $87,000;          (b) quantum meruit from the Institute to Air Safety: $63,100;          (c) account stated from the RCAB to Air Safety: $62,249.97;          (cont'd)          (cont'd from page 3)          (c) negligence damages to the RCAB from Air Safety: $235,500;          (d) negligence damages to the Institute from Air Safety:          $138,100.                                         -4-          examining whether  evidence in  the record supports  the verdict.          If  the jury  award has  a rational  basis in  evidence,  we must          affirm it.'"  Nydam v. Lennerton, 948 F.2d  808, 810-11 (1st Cir.                        _____    _________          1991)  (quoting O'Brien v. Papa Gino's of America, Inc., 780 F.2d                          _______    ____________________________          1067,  1076   (1st  Cir.   1986)).    Under   Massachusetts  law,          uncertainty  as to  the  amount of  damages  does not  bar  their          recovery,  see Stuart v. Town of Brookline, 587 N.E.2d 1384, 1387                     ___ ______    _________________          (Mass. 1992), but a plaintiff "`must establish [its] claim upon a          solid foundation in  fact, and cannot recover  when any essential          element is left to  conjecture, surmise or hypothesis,'" Snelling                                                                   ________          &  Snelling of Massachusetts, Inc.  v. Wall, 189  N.E.2d 231, 232          __________________________________     ____          (Mass.  1963) (quoting John Hetherington &  Sons, Ltd. v. William                                 _______________________________    _______          Firth Co., 95 N.E. 961, 964 (Mass. 1911)).  See  also Hendricks &          _________                                   ___  ____ ___________          Assocs., Inc. v. Daewoo Corp., 923 F.2d 209, 217 (1st Cir. 1991);          _____________    ____________          Puritan Medical  Ctr., Inc.  v. Cashman,  596  N.E.2d 1004,  1013          ___________________________     _______          (Mass. 1992).               Despite  the confines of our inquiry, our examination of the          trial  transcript requires  us  to conclude  that the  negligence          awards  cannot  stand.   The  evidence  in  the  record fails  to          substantiate the amounts imposed; even  a generous reading of the          testimony supports  only a small  portion of  the damages  beyond          those  conceded by Air Safety  on appeal.   We discuss separately          the results of our study with respect to each defendant.               The RCAB.  Air Safety contends that the record supports only               ________          $21,672  in damages for  the cost  of a  temporary boiler  at St.          Theresa's school.    The  jury  awarded  $235,000.    Our  search                                         -5-          revealed  three  additional  items   that  the  jury  could  have          attributed  to Air  Safety's negligence:  extra clean-up  work by          custodians at St. Theresa's for which Rev. Helmick testified that          he "paid  a lot;" damage to  a clock and bell  system; and $7,400          for painting at St. William's school.   No amounts for either the          custodial  time or the clock  repair were presented  to the jury,          although the  district court reported in a June 20, 1990 Order on          the  parties'  summary judgment  motions  that  those items  were          alleged to cost $4,377 and $272.50, respectively.               We  think it  within  reason  for  the  jury  to  choose  to          compensate the RCAB for these asserted harms, despite the lack of          testimony on specific  dollar amounts.6  This is  not the sort of          conjecture  barred by  Massachusetts law in  calculating damages,          but simply a matter of imprecision with respect to the amount for          a  specifically  identified  harm.   The  gap  challenged  by Air          Safety,  however,  is  far  greater than  any  reasonable  figure          attributable  to these additional harms.  We think an appropriate          recovery for them  would be the amounts  previously identified by          the RCAB, totaling $12,049.50.               The  RCAB points to one additional expense that the jury may          have attributed to Air  Safety: the $57,971.80 difference between          the  contract  price for  Mission  High School  and  the combined                                        ____________________               6 The record arguably is ambiguous as to whether Air Safety          did the necessary painting at St. William's.  On cross-          examination, Air Safety's witness, John Murphy, acknowledged that          it was his company's responsibility to paint areas damaged by the          asbestos removal process, but was unsure whether the work had          been done.  He testified: "I would have to look back.  I thought          we painted the floor."                                         -6-          amount of Air Safety's  account stated claim for Mission  and the          amount  paid  to  a new  contractor  to  complete  the work  left          unfinished by Air Safety.  In other words, the RCAB contends that          the record showed that  it paid nearly $58,000 more  for asbestos          removal at  Mission  High School  than  the Air  Safety  contract          price.               We  have  two problems  with this  contention.   First, this          differential amount  between the original contract  price and the          amount  actually expended  to  get the  job  done is  classically          breach  of contract  damages.    The  jury, however,  awarded  no          damages for the breach.7               Second, and  more significantly,  there was no  testimony or          argument at trial concerning the $58,000.  In closing, the RCAB's          attorney pointed out (consistent with Rev. Ryan's testimony) that          it cost $105,000 to complete the contract work left unfinished by          Air  Safety;  he  did  not  assert,  however,  that  that  amount          represented  higher charges for work Air Safety had contracted to          perform  for less.  Although the original contract amount and Air          Safety's  account  stated  claim  both were  contained  in  trial          exhibits,  there was  no basis for  the jurors  to have  made the          calculation now  offered  by  the  RCAB to  undergird  its  award          without the crucial $58,000 figure having been explained to them.                                        ____________________               7 We recognize that the district court explicitly told the          jurors that they may award damages "only once for each harm," and          that the jury, for convenience, might have decided to classify          all damages under the negligence rubric.                                         -7-               We  think it  likely that the  huge discrepancy  between the          damages actually  proven and  the amount  awarded stems  from the          jury's effort to compensate the RCAB and the parents and students          attending the five affected schools for the trouble caused by Air          Safety's negligent  work.  Beyond the  fact that the RCAB  has no          claim  to damages for discomfort  suffered by others  is the fact          that  this case  involves property  damage, not  personal injury.          See  generally Guaranty-First  Trust Co.  v. Textron,  622 N.E.2d          ___  _________ _________________________     _______          597, 599 (Mass. 1993) (under common law, if injury to property is          reasonably curable by  repairs, the expense  of repairs, if  less          than  diminished  market  value,  is the  measure  of  recovery);          Michael B.  Bogdanow, Massachusetts  Tort Damages    9.03 (1995).                                ___________________________          It goes without saying that a breach of contract or the negligent          performance of  a contractual  obligation will impose  burdens on          the  wronged party,  but compensation  is limited to  making that          party whole.8               Moreover, even if harm  in the nature of pain  and suffering          were  compensable in  this context,  such damages  would be  rank          speculation  here.    No  testimony  was  presented  of  specific          intangible injuries  to the RCAB or its  officials as a result of          Air Safety's conduct.  The general reference in counsel's closing          argument  to "frustration," "aggravation," and "inconvenience" --          byproducts of any tort or  breach of contract -- is far  from the                                        ____________________               8 Although loss-of-use damages are recoverable, the RCAB          made no showing of such losses.                                         -8-          "solid foundation in  fact," Snelling &  Snelling, 189 N.E.2d  at                                       ____________________          232, necessary to support an award of damages.9               We  therefore conclude  that,  unless the  RCAB agrees  to a          remittitur of  $201,278.50 -- reducing its  negligence damages to          $33,721.50 -- Air Safety is entitled to a partial new trial.  See                                                                        ___          Anthony,  17 F.3d  at  495 (appellate  court  has the  option  of          _______          selecting a reduced damages figure or remanding to district court          to determine damages).                The  Institute.   Air  Safety acknowledges  that the  record               ______________          supports an award  of $85,894 in damages for a number of specific                                        ____________________               9 It is worth noting that most of the cases cited by the          RCAB and the Institute highlighting the extremely deferential          standard for reviewing damage awards involve awards for          intangible injuries, a matter "`peculiarly within a jury's ken,'"          Velazquez v. Figueroa-Gomez, 996 F.2d 425, 428 (1st Cir. 1993)          _________    ______________          (quoting Wagenmann v. Adams, 829 F.2d 196, 215 (1st Cir. 1987)).                    _________    _____          See, e.g., Anthony v. G.M.D. Airline Servs., Inc., 17 F.3d 490,          ___  ____  _______    ___________________________          494 (1st Cir. 1994) (remand for remittitur; pain and suffering          damages excessive); De Leon Lopez v. Corporacion Insular de                              _____________    ______________________          Seguros, 931 F.2d 116, 125 (1st Cir. 1991) (damages to          _______          grandfather stemming from switch of twins by hospital); Brown v.                                                                  _____          Freedman Baking Co., 810 F.2d 6, 11 (1st Cir. 1987) (review of          ___________________          damages for civil rights violation).  In such cases,                [w]e accord broad discretion to the trial court's               decision to affirm the jury's award of damages because               of [the] court's greater familiarity with local               community standards and with the witnesses' demeanor at               the trial.          Nydam v. Lennerton, 948 F.2d 808, 810 (1st Cir. 1991) (citations          _____    _________          omitted) (suit involving, inter alia, police misconduct and false                                    _____ ____          arrest).  Although we do not lightly reverse an award for          economic loss, the inquiry in such a case is much more closely          focused on whether there is adequate evidentiary support for the          amount awarded.  See Havinga v. Crowley Towing and Transp. Co.,                           ___ _______    ______________________________          24 F.3d 1480, 1489 (1st Cir. 1994); Redgrave v. Boston Symphony                                              ________    _______________          Orchestra, Inc., 855 F.2d 888, 896 (1st Cir. 1988).          _______________                                         -9-          problems at Catholic Memorial High School,10 but contends that no          other  figures were  provided to  explain the  additional $52,106          awarded by the jury.  Our review turned up three additional items          for  which the  jury  properly could  have awarded  compensation:          replacing gymnasium  light frames, repairing a  broken piano leg,          and replacing  paneling in two  rooms.  The  piano leg  and light          frames were the  subject of  testimony by Rev.  Sheehan, and  the          need for repaneling was noted in  Exhibit 58, to which the jury's          attention was directed.11               One more aspect of  the Institute's harm warrants attention.          Air  Safety  concedes  responsibility  for the  $12,770  cost  of          repairing  the  gymnasium  floor  at Catholic  Memorial.    Kevin          Murphy, whose company  did the floor  repair, testified that  the          process  of  sanding  removes   wood,  and  the  gymnasium  floor          therefore  was, to  some  degree, in  worse  condition after  the          repair than before  the damage was done.  When  asked whether the          deficiency  would limit the use of  the floor in future years, he          responded that it would, "considerably down the road."               We  believe  this  testimony  permitted the  jury  to  award          damages   for  the   premature  loss   of  use   of  the   floor.                                        ____________________               10 These are: $12,570 for gym floor repairs; $966 for          damaged books; $432 for damaged computer cables; $296 for damaged          phone wires; $1,630 for re-hanging curtains; $42,000 for wasted          salaries, and $28,000 for 14 weeks' lost bingo profits.               11 Although the paneling was not the subject of specific          testimony, and, unlike other items, no invoice for it was          included in the record, see Exhibit 65, we think it reasonable                                  ___          for the jury to conclude, on the basis of Exhibit 58, that this          was damage for which Air Safety was responsible.                                         -10-          Unfortunately, no value  was placed  on either this  harm or  the          three items of  damage listed above.   Without question, however,          the  approximately  $50,000 questioned  by  appellant  is far  in          excess  of the appropriate amount.   The evidence  was that a new          floor would have cost $50,000 to $60,000; from that knowledge, we          are  confident that  compensation  for reducing  the old  floor's          lifespan "considerably down the road" could not reasonably amount          to more than  several thousand dollars.  The other  items, all of          which appear to be  relatively minor, might generously add  up to          $5,000.               Because our task is  to view the evidence in the  light most          favorable to the defendants,  see Velazquez, 996 F.2d at  428, we                                        ___ _________          conclude  that the record supports a maximum award of $95,000 for          all  damages  to  the  Institute.    Thus, unless  the  Institute          consents  to a remittitur of $43,000, Air Safety is entitled to a          partial new trial.                            III.  Exclusion of Summaries12                                  ______________________               Air Safety  sought to  introduce into  evidence a  number of          summary exhibits in support  of its claim for damages  or quantum          meruit relief.   Such exhibits  may be admissible  under Fed.  R.          Evid. 1006, which provides:               The  contents  of voluminous  writings,  recordings, or               photographs  which cannot  conveniently be  examined in               court may be presented in the form of a chart, summary,                                        ____________________               12 Defendants' assertion that this issue was not preserved          for appeal is untenable.  See McLaurin v. Fischer, 768 F.2d 98,                                    ___ ________    _______          101 (1st Cir. 1985) ("[T]he law is well settled that an appeal          from a final judgment draws into question all prior non-final          rulings and orders.").                                         -11-               or calculation.  The originals, or duplicates, shall be               made available for examination  or copying, or both, by               other parties at reasonable time  and place.  The court               may order that they be produced in court.                      At issue  in this case is  the requirement in Rule  1006 that the          materials  underlying   a  proposed  summary  exhibit   be  "made          available" to opposing parties.  After a two-hour, mid-trial voir          dire  hearing in which each of Air Safety's proposed exhibits was          considered individually, the court  excluded most of them because          the  documents from which the  summaries were drawn  had not been          seen  by the  defendants  and were  unavailable  at the  time  of          trial.13               Air Safety asserts that  the court erred in  concluding that          the documents  were inadmissible  under Rule 1006.14   It  claims                                        ____________________               13 The supporting records at issue were those showing the          company's overhead costs, and were located in its home office in          Illinois.               14 A portion of Air Safety's argument seems based on an          assumption that the district court improperly excluded the          summaries because they were not supported by evidence          independently established in the record.  Although the court at          one point indicated that it felt bound by the "already-in-          evidence" requirement because of language to that effect in a          First Circuit decision, United States v. Nivica, 887 F.2d 1110,                                  _____________    ______          1125-26 (1989), the court recognized that such an approach          conflicted with the language of Rule 1006 giving the court          discretion to order production in court of the documents          __________          underlying a summary.  In any event, its decision ultimately was          based on a determination that the underlying documents had not          been "made available" to the defendants, and it therefore did not          need to rule on whether a summary based on records that were                                                                  ____          available nonetheless must be excluded because they were          unsupported in the record.               We note, for the sake of clarity, that Air Safety is correct          that the evidence underlying Rule 1006 summaries need not be          admitted into evidence.  See, e.g., United States v. Bakker, 925                                   ___  ____  _____________    ______          F.2d 728, 736-37 (4th Cir. 1991); 5 Jack B. Weinstein & Margaret          A. Berger, Weinstein's Evidence,   1006[02], 1006-9 (1995);                     ____________________          Michael H. Graham, Federal Practice and Procedure   7031, at 959                             ______________________________                                         -12-          that it  gave defendants  copies  of the  challenged exhibits  in          November 1992, and that  they never asked during  the year and  a          half  before trial  to  see the  underlying material.   Moreover,          defense counsel had signed  two pretrial memoranda without noting          any  problems with Air  Safety's proposed  exhibits.   Air Safety          points out that  the documents  at issue easily  could have  been          brought  to  Boston for  defendants'  review had  there  been any          indication  before the start  of trial that  defendants wanted to          see them.  Thus, Air Safety contends that the records  were "made          available"  within the meaning of  Rule 1006, and,  to the extent          that  they were  inaccessible at  trial, the  defendants were  to          blame.    In  Air  Safety's view,  defendants'  trial  objections          constituted an ambush and should have been dismissed as untimely.               We cannot agree.   Although it appears that Air  Safety left          the overhead records in Illinois in the reasonable belief that no          one was interested in them, the record indicates that the company          fell  short of meeting its  responsibility under Rule  1006.  Air                                        ____________________          (1992).  Indeed, such an interpretation of the rule would negate          its explicit grant of discretion to the trial judge to order the                                __________          underlying documents produced in court.               Although in Nivica and a subsequent case relying on it,                           ______          United States v. Sawyer, 85 F.3d 713, 740 (1st Cir. 1996), we          _____________    ______          stated that Rule 1006 summaries must be based upon "evidence          independently established in the record," the language in both          cases was dictum because the relevant evidence there had been          admitted.  The requirement of prior admission actually applies to          a different sort of summary: one used as a jury aid to summarize          complex or voluminous information already in the record.  See,                                                                    ___          e.g., Bakker, 925 F.2d at 736-37; Weinstein's Evidence, at            ____  ______                      ____________________          1006[07], 1006-21.  In such cases, the summary is not itself          evidence, Bakker, 925 F.2d at 736; Weinstein's Evidence, at                      ______                   ____________________          1006[07], 1006-21-23, and the court's concern is to ensure that          the jury is not misled or confused by selective emphasis,          Weinstein's Evidence, at   1006[07], 1006-21-22.           ____________________                                         -13-          Safety  apparently  submitted  only  a skeletal  version  of  its          summary exhibits  in November  1992, perhaps  without designating          them as  summaries,15 and first provided  a comprehensive version          in  June 1994.  In  the interim, all  parties had signed pretrial          memoranda that Air  Safety took as a sign that  defendants saw no          problems  with its  exhibits.   Defendants, however,  intended no          such acquiesence and, once the nature of the damages exhibits was          clear to them, sought to examine the underlying documents.               In concluding that  Air Safety  had failed to  lay a  proper          foundation for the summaries, the district court did not  dispute          that  the company  willingly would  have provided  the underlying          documents  --  if requested  -- at  any  time during  the lengthy          pretrial period.   The  court ruled,  however, that such  passive          availability did  not  meet Air  Safety's obligation.   Near  the          conclusion of the voir dire hearing, it summarized its ruling:                     I  don't think that it  is enough to  say that the               documents  have  been  available  or  could  have  been               available  or  were   available  when  they  were   not               identified as the  source for these summaries.  What is               important in  the discovery  context is one  thing, but               once  the discovery  comes down  to trial  and somebody               prepares a  summary, it  seems  to me  that the  person               providing  the summary  must say  now these  documents,               this summary  is a  summary of the  following documents               and here they are.                                        ____________________               15 Defendants claim that the exhibits provided in 1992,          described by Air Safety's counsel as "prototypes," contained          little information.  Indeed, the Institute's counsel described          them during the voir dire hearing as "blanks" that bore headings,          but no numbers and few subheadings.  Those preliminary documents          apparently are not in the appellate record.  The Institute's          counsel additionally asserts that the challenged exhibits were          identified as "summaries" for the first time at the final          pretrial conference on June 30; the next day, she sent a letter          requesting the underlying documents.                                         -14-               We think this is a correct and sensible construction of Rule          1006's "made  available" requirement.   As the  court recognized,          Rule  1006 operates  independently  of the  discovery rules,  see                                                                        ___          Weinstein's  Evidence   1006[04], at  1006-16, and the failure to          _____________________          request or obtain the documents during discovery  does not negate          a party's  "absolute right  to subsequent production  of material          under Rule 1006,  should that material  become incorporated in  a          chart,  summary, or calculation."  Id.; see also Square Liner 360                                             ___  ___ ____ ________________          Degrees,  Inc.  v. Chisum,  691 F.2d  362,  376 (8th  Cir. 1982).          ______________     ______          Common sense  dictates that  this guaranteed access,  designed to          give the opponent the ability to check the summary's accuracy and          prepare  for cross-examination,  see, e.g.,  Chisum, 691  F.2d at                                           ___  ____   ______          376-77; United States  v. Smyth,  556 F.2d 1179,  1183 (5th  Cir.                  _____________     _____          1977); Weinstein's Evidence    1006[04], at 1006-15, must include                 ____________________          unequivocal  notice of  the other  party's intent to  invoke Rule          1006.  It seemingly was the lack of such notice that gave rise to          the misunderstanding and confusion here.                Thus, to  satisfy the "made available"  requirement, a party          seeking  to use  a  summary under  Rule  1006 must  identify  its          exhibit as such, provide  a list or description of  the documents          supporting  the exhibit,  and state  when and  where they  may be          reviewed.16  Here,  Air Safety merely assumed that the defendants          were  uninterested  in reviewing  the  overhead  records that  it          believed were  the obvious -- though not explicitly identified --                                        ____________________               16 This assumes, of course, that the "when" and "where" are          reasonably convenient for the opposing party.                                         -15-          source   for   its  proposed   damage   summaries.     In   these          circumstances, the  district court committed no  reversible error          in  concluding  that  Air  Safety  had  not  satisfied the  "made          available" foundation requirement for admitting the exhibits.               Moreover,  we  doubt that  the  exclusion  of this  material          significantly prejudiced Air Safety.   The district court allowed          Air Safety to use the exhibits as chalks, and they were relied on          heavily  during the testimony of its damages expert.  The expert,          Dennis Staats, testified to the specific amounts contained in the          summaries while the jury was able to peruse the chalks.  Although          the  district  court  repeatedly   reminded  the  jury  that  the          testimony -- not the summaries -- was the evidence, we think  the          jury  was more likely to have understood  this as a caution about          the  technicalities of litigation  than as a  suggestion that the          calculations  in the  chalks  were untrustworthy.   The  numbers,          after all,  also were contained  in the  testimony.  To  be sure,          exclusion  of the summaries  from the jury  room required greater          reliance  on memory.    Air Safety,  however,  makes no  specific          argument -- even  a speculative  one -- showing  how the  quantum          meruit figures might have  been more accurate had the  jurors had          access to the excluded exhibits during deliberations.               We therefore affirm the court's judgment with respect to the          quantum meruit award.                                    IV. Conclusion                                        __________               The district court's judgment on negligence  damages against          Air Safety is vacated, and  the case is remanded for a  new trial                                         -16-          on  that   issue  unless  defendants  agree   to  remittiturs  of          $201,278.50 for the RCAB  and $43,000 for the Institute.   Having          found  no error in the court's exclusion of Air Safety's proposed          damages summary exhibits,  we affirm the quantum meruit award for          Air Safety as determined by the jury.               Affirmed  in part, vacated and remanded in part.  Each party               ________________________________________________  __________          to bear its own costs.          ______________________                                         -17-
