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<pre>                  United States Court of Appeals<br>                      For the First Circuit<br>                       ____________________<br><br>Nos. 98-1223<br>    98-1738<br><br>                DELIA A. SMITH & JAMES ORTH, ETC.,<br><br>                      Plaintiffs, Appellees,<br><br>                                v.<br><br>                        KMART CORPORATION,<br><br>                      Defendant, Appellant.<br><br>                       ____________________<br><br>          APPEALS FROM THE UNITED STATES DISTRICT COURT<br><br>                 FOR THE DISTRICT OF PUERTO RICO<br><br>       [Hon. Jaime Pieras, Jr., Senior U.S. District Judge]<br><br>                       ____________________<br><br>                              Before<br><br>                     Torruella, Chief Judge,<br><br>                      Selya, Circuit Judge,<br><br>                and Acosta, Senior District Judge.<br><br>                      _____________________<br><br>    Thomas M. Elcock, with whom Morrison, Mahoney & Miller was on<br>brief, for appellant.<br>    Eric M. Quetglas-Jordn, with whom Jos F. Quetglas-Jordn,<br>Quetglas Law Offices, Zygmunt G. Slominski, James M. Orr and<br>Francis & Orr, L.L.P. were on brief, for appellees.<br><br><br>                       ____________________<br><br>                           May 20, 1999<br>                       ____________________

         TORRUELLA, Chief Judge.  Before the Court is defendant-<br>appellant Kmart Corporation's ("Kmart") appeal of a jury verdict in<br>favor of husband and wife plaintiffs-appellees Delia Smith and<br>James Orth.  Smith and Orth brought a negligence suit when Smith<br>was struck by a falling ice cooler while shopping with Orth in a<br>Kmart store.  The jury awarded Smith and Orth damages totaling <br>$800,590, including $500,000 to Smith and $250,000 to Orth for<br>noneconomic damages.  After plaintiffs accepted a remittitur of one<br>portion of the award in the amount of $8,611.20, the district court<br>entered final judgment in favor of plaintiffs in the amount of<br>$1,186,428.37, representing: (1) the remitted damage awards of<br>$791,978.80; (2) prejudgment interest in the amount of $123,933.57;<br>(3) costs in the amount of $6,516; and (4) attorneys' fees in the<br>amount of $264,000.  Kmart appeals from this judgment, requesting<br>that this Court: (1) vacate the award due to errors allegedly<br>committed at trial, or (2) remit certain components of the damage<br>award due to their excessiveness.  We reject Kmart's claims of<br>reversible error, but agree that a portion of the damage award is<br>so excessive as to warrant a remittitur.<br>                            BACKGROUND<br>  Because Kmart asks us to review a jury award of damages<br>for excessiveness, we must examine the evidence in the light most<br>favorable to the award, drawing all possible inferences in its<br>favor.  See Havinga v. Crowley Towing and Transp. Co., 24 F.3d<br>1480, 1483 (1st Cir. 1994).<br>  At approximately 11:00 a.m. on March 4, 1995, Smith and<br>Orth were shopping at the Kmart store in Humacao, Puerto Rico. <br>They were looking at lounge chair cushions which hung from the<br>ceiling, and they asked a Kmart employee to assist them in bringing<br>one of the cushions down.  While Smith and Orth waited for that<br>assistance, a 48-quart Coleman ice cooler fell from a shelf behind<br>them.  The 8.5-pound cooler fell from a height of approximately<br>10.5 feet, struck Smith on the back of her head, and rolled down<br>her neck and shoulders.  Smith fell to her knees and then backwards<br>to the ground.  She lost consciousness for 40-45 seconds and<br>briefly stopped breathing, prompting Orth to administer mouth-to-<br>mouth resuscitation.<br>  When Smith regained consciousness, she felt a sharp pain<br>in her head and heard ringing in her ears.  Smith could not feel<br>her left side, causing her to fear that she was permanently<br>paralyzed.  When the paramedics arrived, they placed a cervical<br>collar on Smith's neck, placed a board underneath her, and moved<br>her into an ambulance.  Smith was taken to the Ryder Memorial<br>Hospital and was diagnosed with a cerebral trauma.  A CAT Scan was<br>performed, but the results were normal.  She was released a few<br>hours later with a prescription for pain medication and<br>instructions to remain under observation for 24 to 48 hours.<br>  At home, Smith suffered from dizziness, nausea,<br>headaches, numbness and weakness on her left side.  She also began<br>to experience anxiety, restlessness, irritability, sleeplessness,<br>difficulty with her speech, and short-term memory loss.  Smith<br>returned to Ryder Hospital on March 7, 1998.  She was continued on<br>pain medication and was prescribed a muscle relaxant and an anti-<br>inflammatory medication.  She was ordered to continue to rest and<br>to see a neurologist.  On March 16, 1995, Dr. Hctor Cases Gallardo<br>diagnosed Smith as suffering from a cervical radiculopathy, which<br>is inflammation of the nerve in the cervical root.  Dr. Cases<br>ordered a cervical MRI, which revealed ligament inflammation and<br>the swelling and sliding of a posterior disc in her neck. <br>Dr. Cases determined that the resulting compression on the nerve in<br>her cervical spine caused Smith muscle spasms, inflammation and<br>pain in her neck.<br>  Smith continued to experience muscle spasms, pain and<br>movement limitations, so she went to another neurologist, Dr. Angel<br>Chinea, on August 24, 1995.  Dr. Chinea diagnosed Smith as<br>suffering from a post-concussion syndrome, cervical whiplash, and<br>a muscular-skeletal injury to her cervical area.  Dr. Chinea also<br>made a clinical finding of cervical radiculopathy.  In December of<br>1995, Smith went to the Baylor University Medical Center in Dallas,<br>Texas.  She was examined by Dr. Sam Finn and placed on a six-week<br>rehabilitation program.  She also began a home therapy program,<br>which she was still engaging in as of the time of trial.<br>  On February 29, 1996, Smith and Orth filed a complaint<br>against Kmart on behalf of themselves and the legal conjugal<br>partnership formed by them.  The complaint was premised on<br>diversity jurisdiction, 28 U.S.C.  1332(a).  It alleged that Kmart<br>was negligently responsible for the accident and sought damages in<br>the form of: (1) Smith's physical and emotional pain and suffering;<br>(2) Orth's emotional pain and suffering and loss of consortium;<br>(3) the loss of work that Smith could no longer perform; (4) past<br>and future medical expenses; and (5) attorneys' fees and interest. <br>  Meanwhile, on June 12, 1996, Smith went to see<br>Dr. Fernando Cabrera, a psychiatrist, for the first time. <br>Dr. Cabrera diagnosed Smith with post-traumatic stress disorder<br>("PTSD").  Dr. Cabrera found that Smith suffered from nightmares,<br>irritability, mood changes, chronic major depression, difficulty<br>sleeping, and impairment in her social and occupational<br>relationships.  Dr. Cabrera recommended that Smith continue<br>psychiatric treatments for three to five years.<br>  During the course of discovery, the district court<br>ordered Kmart to produce its loss control manager, Ben Guffy, for<br>deposition on June 13, 1997 in Puerto Rico.  Despite the order,<br>Kmart failed to produce Guffy on that day and offered no<br>satisfactory reason for its failure.  Plaintiffs moved for<br>sanctions.  Although Guffy was later made available for deposition<br>by telephone, the district court issued a September 15, 1997 Order<br>noting Kmart's "reprehensible" conduct during discovery, including<br>its refusal to produce Guffy on the proper day and its refusal to<br>provide other discovery requested by plaintiffs and ordered by the<br>court.  The court then stated that it was considering sanctioning<br>Kmart by instructing the jury: (1) that Kmart refused to produce<br>Guffy for deposition; (2) that the jury should infer from that<br>refusal that Guffy's statements would have been harmful to Kmart's<br>case; and (3) that the jury must accept as true that Kmart knew<br>that merchandise in its stores was often stacked in an unsafe<br>manner, frequently causing that merchandise to fall from shelves<br>and severely injure Kmart's customers.  Kmart objected to the<br>giving of a sanction instruction, but did not object to the<br>language of the instruction.<br>  Trial commenced the following day.  In addition to the<br>medical testimony mentioned above, Dr. Chinea testified at trial<br>that Smith still suffers from many of the symptoms of the whiplash<br>injury, including muscle spasms, nerve damage, severe pain, and<br>decreased functioning of the cervical muscles.  Dr. Chinea<br>testified that this condition is permanent, meaning that the<br>symptoms will recur and aggravate whenever Smith engages in<br>physical activity.  Dr. Chinea testified that Smith will experience<br>pain intermittently for the rest of her life and at times will be<br>completely disabled for days at a time.  Dr. Chinea also testified<br>that Smith will have to continue with her medication and therapy<br>indefinitely.<br>  Smith and Orth testified about the accident and the<br>effect Smith's injury had on their lives.  Smith testified that, at<br>the time of her injury, she was forty-three years old and had been<br>married to Orth approximately three years and three months.  Smith<br>testified that, due to her injury, she could no longer: (1) travel<br>or continue with her responsibilities in their business;<br>(2) perform normal household chores; or (3) engage in the daily<br>activities of walking, dancing, and taking aerobics classes.  She<br>also testified that she experiences constant pain and continually<br>fears additional injury, to the extent that she does not go<br>anywhere, does not allow anyone to stand behind her, does not go<br>into stores like Kmart, and does not drive.<br>  Orth testified that he saw the accident and feared that<br>Smith was dead.  He testified to his observations regarding Smith's<br>condition and their multiple visits to various doctors.  He<br>testified to the medication Smith has taken and will continue to<br>take and to the therapy that Smith has undergone and will continue<br>to undergo.  He testified that he and Smith have had a strained<br>relationship since the accident in that they do not touch, talk, or<br>have a physical relationship any longer.  He testified that Smith<br>could no longer meaningfully help with their business and that he<br>now works 18 to 20 hours per day and has no personal life.  He<br>testified that he was also forced to do many of the household<br>chores Smith had done previously.  He stated that he constantly<br>worries about Smith's condition, but has never seen a psychiatrist<br>or other professional about his mental condition.<br>  Plaintiffs also presented testimony from their friends<br>and neighbors, Arlene and Patrick Fromer.  They testified that they<br>met the plaintiffs approximately three years before trial and that<br>Smith became a "different person" after the accident.  They<br>testified that Smith no longer engaged in activities such as<br>dancing, walking, and taking aerobics classes.  They testified that<br>their once-frequent socializing "pretty much stopped."  They also<br>testified that when the two couples did spend time together, Smith <br>was in constant pain and discomfort.<br>  During his closing argument, plaintiffs' counsel reviewed<br>the evidence presented at trial and argued that Kmart was negligent<br>and that this negligence caused Smith's injuries and the damages<br>suffered by Smith and Orth.  Plaintiffs' counsel stressed that<br>Kmart had a duty to keep its premises safe for its customers, but<br>simply "did not care" enough to do so.  Plaintiffs' counsel argued<br>that Kmart did not "care" about Smith, her condition, or the safety<br>conditions of its stores.  The only objection raised by defense<br>counsel complained of plaintiffs' counsel's mention of "post-<br>concussion syndrome," rather than post-traumatic stress disorder. <br>Rather than objecting to what Kmart describes now as "improper<br>argument," defense counsel responded with an inflammatory argument<br>of his own, focusing mainly on the plaintiffs' credibility in<br>arguing that Kmart was not negligent and that plaintiffs were<br>motivated by money and were deceptively inflating their damages. <br>In rebuttal, plaintiffs' counsel again argued that Kmart and its<br>doctors did not "care" about Smith.  Counsel also argued that<br>plaintiffs were not seeking to profit and were not asking for<br>punishment.  Counsel argued that plaintiffs sought only the full<br>amount of their damages in order to send a message to Kmart. <br>Counsel also reminded the jury that Ben Guffy committed an act of<br>defiance of the court and asked the jury to send him a message that<br>"in Puerto Rico we won't take this."  Defense counsel did not<br>object to any portion of plaintiffs' counsel's rebuttal argument.<br>  The district court then instructed the jury on the<br>applicable law.  The only instruction to which appellant objects on<br>appeal is the instruction given as a sanction due to Kmart's<br>failure to produce Guffy for deposition as ordered.  The district<br>court gave the instruction it previewed to the parties in its<br>September 15, 1997 Order.  While Kmart objected before the<br>instruction was given to the giving of any sanction instruction, it<br>did not object -- either before or after the sanction instruction<br>was given -- to the specific language of the instruction. <br>  The jury retired to deliberate and returned with a<br>verdict in favor of plaintiffs.  The jury found Kmart to have been<br>negligent and awarded: (1) $25,000 to the conjugal partnership for<br>past medical expenses; (2) $25,590 to the conjugal partnership for<br>projected medical expenses in the future; (3) $500,000 to Smith for<br>damages excluding medical expenses; and (4) $250,000 to Orth for<br>damages excluding medical expenses.<br>  After the jury rendered its verdict, Kmart moved for a<br>new trial or a remittitur of all of the awards.  The district court<br>found all components of the award to be amply supported by the<br>evidence, except the award for past medical expenses.  Thus, the<br>court conditionally granted the motion for a new trial.  The court<br>stated that it would not order a new trial if plaintiffs accepted<br>a remittitur of $8,611.20 of the award for past medical expenses. <br>Plaintiffs agreed to the remittitur, and the $25,000 award for past<br>medical expenses was reduced to $16,388.80, while all other<br>components of the damage award remained unchanged.  The court then<br>entered judgment awarding: (1) the remitted amount; (2) prejudgment<br>interest on the remitted amount; (3) costs and attorneys' fees; and<br>(4) post-judgment interest on the total.  Kmart immediately<br>appealed.<br>                            DISCUSSION<br>I.  Improper Closing Argument of Plaintiffs' Counsel<br>  Kmart first argues that plaintiffs' counsel's closing<br>argument interjected purely emotional, inflammatory, and<br>prejudicial elements into the jury deliberations.  Kmart argues<br>that this closing argument constituted plain error, warranting a<br>new trial despite its failure to object to the arguments at trial<br>and its failure to request a new trial on this basis.<br>  Kmart argues that plaintiffs' counsel made three types of <br>purely emotional, inflammatory, and prejudicial statements during<br>his closing argument.  First, Kmart objects to counsel's repeated<br>arguments that Kmart did not "care" about Smith, her alleged<br>condition, or the safety conditions in Kmart stores.  Second, Kmart<br>complains that counsel improperly asked the jury to punish Kmart<br>for the failure to produce Guffy for deposition.  Third, Kmart<br>argues that plaintiffs' counsel encouraged the jury to award<br>punitive damages against defendants by requesting that the jury<br>consider the damages associated with other potential customers.<br>  A.  Standard of Review<br>  Kmart admits that it failed to object to any of these<br>allegedly improper arguments and concludes from this that the<br>standard of review is plain error.  See Fernndez v. Corporacin<br>Insular De Seguros, 79 F.3d 207, 210 (1st Cir. 1996); Johnson v.<br>National Sea Products, Ltd., 35 F.3d 626, 631 (1st Cir. 1994). <br>Appellees counter that Kmart's failure to raise the improper<br>argument issue at any point prior to its brief on appeal results in<br>a total waiver of the issue, rather than plain error review. <br>Appellees cite two cases for the general proposition that "[i]f any<br>principle is settled in this circuit, it is that, absent the most<br>extraordinary circumstances, legal theories not raised squarely in<br>the lower court cannot be broached for the first time on appeal."<br>Teamsters, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21<br>(1st Cir. 1992): see also Noonan v. Winston Co., 135 F.3d 85, 89-90<br>(1st Cir. 1998).  Appellees also cite cases in which this court has<br>stated that "[w]e will not consider arguments which could have<br>been, but were not, advanced below," Sullivan v. National Football<br>League, 34 F.3d 1091, 1097 n.1 (1st Cir. 1994), cert. denied, 513<br>U.S. 1190 (1995), and that "it is a bedrock rule that when a party<br>has not presented an argument to the district court, she may not<br>unveil it in the court of appeals," United States v. Slade, 980<br>F.2d 27, 30 (1st Cir. 1992).<br>  The appellees' citations overlook the basic difference<br>between waiver and forfeiture.  See United States v. Olano, 507<br>U.S. 725, 732-33 (1993); United States v. Mitchell, 85 F.3d 800,<br>807-08 (1st Cir. 1996).  The overwhelming weight of the authority<br>supports the rule that, when no timely objection is made, claims of<br>improper closing argument are forfeited, not waived, and thus<br>amenable to review for plain error.  See Fernndez, 79 F.3d at 210;<br>Johnson, 35 F.3d at 631; Anthony v. G.M.D. Airline Services, Inc.,<br>17 F.3d 490, 496 n.7 (1st Cir. 1994); DeVasto v. Faherty, 658 F.2d<br>859, 864 (1st Cir. 1981).  Even courts which purport to foreclose<br>review of such claims due to the absence of an objection make<br>exceptions tantamount to plain error review.  See, e.g., Doty v.<br>Sewall, 908 F.2d 1053, 1056 (1st Cir. 1990) (stating that issues<br>regarding twelve items of impermissible argument or evidence were<br>not properly preserved for appeal due to the failure to object, but<br>still allowing review upon a showing of "substantial injustice");<br>Wildman v. Lerner Stores Corp., 771 F.2d 605, 609 (1st Cir. 1985)<br>(stating that review of a claim of improper closing argument was<br>"foreclosed" due to the failure to object, but still determining<br>whether review was required to prevent a miscarriage of justice<br>despite the lack of an objection).  Thus, we review Kmart's claims<br>for plain error.<br>  Under plain error review, we will consider a forfeited<br>objection only if: (1) an error was committed; (2) the error was<br>"plain" (i.e. obvious and clear under current law); (3) the error<br>was prejudicial (i.e. affected substantial rights); and (4) review<br>is needed to prevent a miscarriage of justice.  See Chute v. Sears<br>Roebuck and Co., 143 F.3d 629, 631 (1st Cir. 1998); United States<br>v. Bartelho, 129 F.3d 663, 673 (1st Cir. 1997), cert. denied, 119<br>S. Ct. 241 (1998).  To merit reversal, the error must have<br>"resulted in a miscarriage of justice or seriously affected the<br>fairness, integrity or public reputation of the judicial<br>proceedings."  Coastal Fuels of Puerto Rico, Inc. v. Caribbean<br>Petroleum Corp., 79 F.3d 182, 189 (1st Cir.) (citation and internal<br>quotation marks omitted), cert. denied, 117 S. Ct. 294 (1996). <br>Plain error is a "rare species in civil litigation," encompassing<br>only those errors that reach the "pinnacle of fault" envisioned by<br>the standard set forth above.  See Cambridge Plating Co., Inc. v.<br>Napco, Inc., 85 F.3d 752, 767 (1st Cir. 1996) (citations omitted).<br>  B.  The Alleged Instances of Improper Argument<br>  Kmart's first claim of improper argument centers on<br>plaintiffs' counsel's nine references that Kmart did not "care"<br>about Smith or safety conditions at its stores.  As noted by<br>appellant, "[i]ntroduction of purely emotional elements into the<br>jury's deliberations is clearly prohibited conduct."  Doty, 908<br>F.2d at 1059 (citing Polansky v. CNA Ins. Co., 852 F.2d 626, 630<br>(1st Cir. 1988)).  Appellees argue that counsel's references were<br>not such emotional appeals, but rather were proper arguments<br>addressed to the negligence issues of whether Kmart knew or could<br>foresee that injuries would occur, but still failed to prevent<br>them.  <br>  Viewed in context, some of plaintiffs' counsel's<br>references do appear to have been properly directed towards the<br>knowledge, foreseeability, and breach of duty questions.  Others,<br>however, do not.  For example, counsel argued at one point that<br>Kmart and its doctors "don't care at all" about Smith personally,<br>which is quite different than arguing that Kmart did not care about<br>or take steps to prevent the possibility of injury.  There were<br>other instances in which plaintiffs' counsel argued that Kmart<br>"does not care," in the present tense, which has little bearing on<br>the question of Kmart's negligence at the time of the accident. <br>Counsel also argued that Kmart did not even care enough to make<br>Guffy available to give a deposition in the case.  Finally, counsel<br>argued that Kmart did not care because it was not paying the true<br>amount of damages that it caused.  The import of these remarks was<br>to stain the corporate character of Kmart in front of the jury. <br>This is improper argument.<br>  Kmart's second claim is that plaintiffs' counsel<br>improperly asked the jury to punish Kmart for failing to produce<br>Guffy for deposition by awarding a greater amount of damages. <br>Appellees argue that their counsel made no such argument.  During<br>rebuttal, plaintiffs' counsel argued:<br>    Now, what we do want here is that this same<br>  thing not continue to happen.  And I am not<br>  asking for punishment, I'm asking to send a<br>  message to this guy, [Ben Guffy], who even<br>  committed an act of defiance to this Court. <br>  That's why an order is here.  And you send a<br>  message to this guy, that in Puerto Rico we<br>  won't take this.  And if they allow it, they<br>  were to pay the full price.<br>  Appellees claim that when counsel argued "we don't take<br>this," he meant that the public would not tolerate the unsafe<br>conditions in the Humacao Kmart store.  We agree with appellees<br>that it is reasonable to interpret this passage as asking the jury<br>to send a message about the unsafe conditions that caused the<br>accident, while simultaneously reminding the jury that Guffy failed<br>to appear for deposition and that an instruction existed to punish<br>Kmart for that failure. <br>  Still, counsel's reminder was improper to the extent that<br>it was a request for a punitive form of damages, and it was also<br>improper because it attempted to sanction Kmart a second time for<br>its failure to produce Guffy for deposition.  Because the district<br>court had already determined that it would punish Kmart for that<br>failure in the form of an instruction to accept certain facts as<br>true, this solicitation of a second sanction was improper.  Cf.<br>Werbungs Und Commerz Union Austalt v. Collectors' Guild, Ltd., 930<br>F.2d 1021, 1027 (2d Cir. 1991) (finding error when a district court<br>first sanctioned a party for late production of documents by<br>precluding the introduction of evidence and then effectively<br>allowed the jury to sanction the party a second time by instructing<br>the jury that it could consider the late production).<br>  Kmart's final claim of improper argument asserts that<br>plaintiffs' counsel encouraged the jury to award punitive damages<br>against Kmart in excess of any compensable damages for injuries<br>actually suffered by appellees.  Kmart claims that counsel asked<br>the jury to consider the injuries allegedly suffered by other<br>individuals.  We cannot agree with this contention.  Even the<br>excerpt cited by Kmart specifically states that plaintiffs' counsel<br>was asking for "the full price, not more than that."  Counsel did<br>attempt to portray the magnitude of the alleged safety problem by<br>estimating the number of accidents in Kmart stores nationally. <br>Counsel also spoke in general terms in stating that "every customer<br>is entitled to be safe" and that "if you have an injury, you have<br>a right to be treated fairly."  However, Kmart points to no<br>instance -- and we can find none -- in which counsel argued that<br>the jury should award appellees additional damages for this general<br>problem or for any injuries allegedly suffered by others.<br>  In sum, while some of the arguments complained of by<br>Kmart were proper, others were clearly not.<br>  C.  Prejudice to Substantial Rights<br>  Kmart faces an uphill battle in attempting to show<br>prejudice because, on this record, we are confident in stating that<br>a verdict in favor of the plaintiffs was inevitable.  Whether the<br>improper arguments identified above were responsible for elevating<br>the award to an excessive one is highly debatable.  Kmart now<br>argues that the excessive award was caused by the improper argument<br>of plaintiffs' counsel, but it made no such claim in its post-trial<br>motion for judgment as a matter of law, a new trial, or remittitur. <br>Nor did Kmart raise the improper argument issue in its statement of<br>issues filed under former Fed. R. App. P. Rule 30(b).  These<br>omissions cast doubt on whether Kmart itself believed that the<br>alleged excessiveness of the award was caused by plaintiffs'<br>counsel's closing argument.<br>  Several other factors could have caused or contributed to<br>the substantiality of the award.  We have already found many of<br>appellees' counsel's arguments to be proper, and the jury may well<br>have been influenced to grant such a substantial award by those<br>proper arguments.  The jury may have been swayed by the extensive<br>expert medical testimony in this case or by the emotional testimony<br>of Smith or Orth.  Or the jury may have been inflamed by Kmart's<br>trial tactics (including the choice to dangle the offending cooler<br>over Smith's head) or by Kmart's own improper argument. <br>Additionally, the district court took precautions in its<br>instructions to minimize the chance of a verdict based on passion<br>or prejudice.  The jury was instructed that: (1) its duty was to<br>follow the law; (2) the attorneys' statements were not evidence;<br>(3) it should apply the law without being governed by sympathy or<br>prejudice; and (4) plaintiffs were only entitled to receive<br>compensatory damages for injuries they had suffered and proven.  As<br>a result, we are not persuaded that plaintiffs' counsel's improper<br>argument caused whatever excessiveness may exist in the award.<br>  D.  Miscarriage of Justice<br>  Even if Kmart could demonstrate some degree of prejudice<br>resulting from  plaintiffs' counsel's argument, we still would not<br>count this case among the "rare species" of civil cases that must<br>be reversed due to plain error.  Kmart must demonstrate that the<br>error "resulted in a miscarriage of justice or seriously affected<br>the fairness, integrity or public reputation of the judicial<br>proceedings."  Coastal Fuels, 79 F.3d at 189.  We do not find such<br>a miscarriage in this case, where Kmart's own closing argument was<br>nearly as improper as that of which it complains.  Kmart repeatedly<br>introduced emotional elements of its own into the jury's<br>deliberations in response to plaintiffs' counsel's attempts to<br>paint Kmart as an uncaring villain.  Kmart sought to demonize the<br>plaintiffs when, under the guise of credibility arguments, defense<br>counsel argued: (1) that Smith forgot she was supposed to be in<br>pain until her lawyer reminded her; (2) that Orth was planning<br>litigation rather than attending to his supposedly injured wife;<br>and (3) that Orth claimed to have seen another person express shock<br>at "what [they]'ve done" to hide the fact that he caused the<br>accident himself.  Both sides made emotional arguments in this<br>case, sometimes proper, sometimes not.  But it is hardly a<br>miscarriage of justice when a party fails to object to improper<br>argument by its opponent and chooses to retaliate with improper<br>argument of its own, only to have this strategic decision backfire<br>when the jury returns a substantial award against it.<br>  For all of these reasons, we find no reversible error<br>either in plaintiffs' counsel's summation or in the district<br>court's failure sua sponte to grant a new trial due to that<br>summation.<br>II.  Improper Sanction Instruction<br>  Kmart's second argument is that the district court abused<br>its discretion in giving the sanction instruction that it gave to<br>punish Kmart for failing to produce Guffy for deposition.  Kmart<br>recognizes that the choice of sanctions for failing to comply with<br>a discovery order lies within the sound discretion of the court. <br>See Marx v. Kelly, Hart & Hallman, P.C., 929 F.2d 8, 10 (1st Cir.<br>1991).  Kmart also concedes that it is proper for a trial judge to<br>sanction a party for its failure to appear for deposition pursuant<br>to Fed. R. Civ. P. 37(b)(2)(A) & (B) and  Fed. R. Civ. P. 37(d) by<br>instructing the jury to assume that the party's testimony would<br>have been unfavorable.  What Kmart objects to here is the language<br>of the sanction instruction given.<br>  Kmart acknowledges that it would not have been an abuse<br>of the district court's discretion to have instructed the jury to<br>accept as true that Kmart was on notice that merchandise in the<br>Humacao store was stacked in a dangerous manner.  Kmart argues that<br>the district court crossed the line when it instead instructed:<br>    From K-Mart's refusal to produce its loss<br>  control manager, the Court instructs you that<br>  the loss control manager's statements would<br>  have been harmful to K-Mart's case. <br>  Therefore, you are instructed to accept as<br>  true that K-Mart knew that merchandise in its<br>  store was often stacked in an unsafe manner,<br>  frequently causing that merchandise to fall<br>  from shelves and injuring K-Mart customers. <br><br>  Kmart argues that this instruction improperly<br>communicated to the jury that Kmart knew of a serious, nationwide<br>safety problem that frequently caused injuries to Kmart customers. <br>Kmart argues that this message caused the jury to award damages<br>designed to punish Kmart for this nationwide problem.<br>  Again, Kmart complains after failing to raise an<br>objection before the trial court, as is required by Rule 51 of the<br>Federal Rules of Civil Procedure.  Therefore, we review the<br>challenged jury instruction for plain error.  See Chute, 143 F.3d<br>at 631; TransAmerica Premier Ins. Co. v. Ober, 107 F.3d 925, 933<br>(1st Cir. 1997); Poulin v. Greer, 18 F.3d 979, 982 (1st Cir. 1994).<br>  While the language of the instruction was not perfect,<br>there was no plain error.  We do not read the instruction, as Kmart<br>does, to establish that Kmart had a nationwide safety problem.  The<br>sanction instruction referred only to "the store" and did not<br>attempt to establish any facts regarding other Kmart stores.  With<br>regard to the statements that merchandise in the store was "often"<br>stacked in an unsafe manner and that merchandise "frequently" fell<br>and injured customers, we do not find this language, in the absence<br>of a focused objection, to fall outside the scope of the district<br>court's discretion.  Rule 37(b)(2)(A) authorizes the district court<br>to enter an order stating that the matters that were the subject of<br>the discovery order that was violated shall be taken to be<br>established.  Fed. R. Civ. P. 37(b)(2)(A).  Guffy was Kmart's loss<br>control manager, and the purpose of taking his deposition was to<br>determine facts regarding: (1) merchandise display and storage, and<br>(2) the extent of similar accidents and injuries occurring in Kmart<br>stores.  When Kmart violated the court's order by failing to<br>produce Guffy for deposition, it was proper for the district court<br>to sanction Kmart by instructing the jury to accept the unfavorable<br>proposition that plaintiffs hoped to prove during Guffy's<br>testimony: that unsafe merchandise display practices had caused<br>similar accidents and injuries in the relevant Kmart store. <br>Therefore, the giving of this particular sanction instruction does<br>not warrant a new trial.<br>III.  Grossly Excessive Damage Awards<br>  Kmart's final argument requests a remittitur of the<br>damages awarded to Smith and Orth because the amounts of those<br>awards are so grossly excessive as to constitute a miscarriage of<br>justice.  Kmart does not challenge the awards to the conjugal<br>partnership for past and future medical expenses in the combined<br>amount of $41,978.80.  Rather, Kmart challenges only the awards to<br>Smith and Orth for damages excluding medical expenses in the<br>amounts of $500,000 and $250,000, respectively.<br>  Kmart has apparently dropped its request for a new trial<br>on this ground and argues only that this Court should order a<br>remittitur of both awards.  We review the denial of a motion for a<br>remittitur for abuse of discretion.  See Anthony, 17 F.3d at 493;<br>McDonald v. Federal Laboratories, Inc., 724 F.2d 243, 246 (1st Cir.<br>1984).  We will find an abuse of discretion only if the jury's<br>verdict exceeds "any rational appraisal or estimate of the damages<br>that could be based on the evidence before the jury."  Milone v.<br>Moceri Family, Inc., 847 F.2d 35, 36 (1st Cir. 1988) (quoting Segal<br>v. Gilbert Color Systems, Inc., 746 F.2d 78, 81 (1st Cir. 1984)). <br>We have noted that "the obstacles which stand in the path of" such<br>claims of excessiveness "are formidable ones."  Wagenmann v. Adams,<br>829 F.2d 196, 215 (1st Cir. 1987).  Translating legal damage into<br>money damages is a matter "peculiarly within a jury's ken,"<br>especially in cases involving intangible, non-economic losses. <br>Id.; see also Correa v. Hospital San Francisco, 69 F.3d 1184, 1197<br>(1st Cir. 1995) ("An appellate court's normal disinclination to<br>second-guess a jury's evaluation of the proper amount of damages is<br>magnified where, as here, the damages entail a monetary valuation<br>of intangible losses, and the trial judge, having seen and heard<br>the witnesses at first hand, accepts the jury's appraisal."), cert.<br>denied, 517 U.S. 1136 (1996). Viewing the evidence in the light<br>most favorable to the verdict, the jury's assessment of damages<br>will not be disturbed unless it is "grossly excessive, inordinate,<br>shocking to the conscience of the court, or so high that it would<br>be a denial of justice to permit it to stand."  Id. (quoting Segal,<br>746 F.2d at 80-81) (internal quotation marks omitted).<br>  The district court instructed the jury that plaintiffs'<br>damages excluding medical expenses were for "physical and emotional<br>pain and suffering already suffered or to be suffered in the<br>future."  The court defined "pain and suffering" damages to include<br>any damages for loss of enjoyment of life that he or she is<br>reasonably certain to suffer in the future, taking into account<br>each plaintiff's past interests and way of life.  The court then<br>defined "damages for enjoyment of life" to include damages for<br>"loss of consortium, including reduction in sexual relations,<br>affection, comfort, companionship, conjugal life, fellowship,<br>society and/or the assistance that accompanies the marriage<br>relationship."  The court then instructed the jury that it could<br>award only those types of damages.  As a result, the two awards at<br>issue can only be said to reflect damages for: (1) past and future<br>physical pain and suffering; (2) past and future emotional pain and<br>suffering; and (3) loss of enjoyment of life, including loss of<br>consortium.<br>  A.  Smith's Award of $500,000<br>  In light of the deference owed the jury award under this<br>standard, we do not find that the $500,000 award to Smith is so<br>excessive as to warrant a remittitur.  The evidence of Smith's<br>physical and emotional pain and suffering is abundant.  There was<br>evidence that Smith has been in near-constant pain since the blow<br>to her head, neck and shoulders at approximately 11:00 a.m. on<br>March 4, 1995.  Smith stopped breathing and was unconscious for<br>approximately forty seconds.  She lost feeling on the left side of<br>her body, causing her to fear paralysis.  She was then rushed to<br>the hospital in a cervical collar and given pain medication for a<br>head trauma.  Smith then experienced additional pain, numbness,<br>difficulty speaking, and muscle limitations, causing her to visit<br>several other doctors.  Smith has been under various medications<br>for pain and inflammation since her first visit to the hospital. <br>Smith has experienced severe depression, anxiety, irritability,<br>restlessness, sleeplessness, and short-term memory loss. <br>Dr. Chinea testified that Smith will suffer from intermittent pain,<br>muscle spasms, and decreased functioning of her cervical muscles<br>for the rest of her life.  Dr. Chinea also testified that these<br>symptoms recur and aggravate whenever Smith engages in the simplest<br>of physical activity, and will continue to do so.  Smith has been<br>diagnosed with PTSD, exhibiting the symptoms of nightmares, mood<br>changes, major depression, sleeplessness, and impairment of<br>relationships.  While Kmart took steps to minimize this physical<br>and emotional pain and suffering before the jury, we must now view<br>the evidence in the light most favorable to the verdict.  Viewed in<br>that light, we note that the record teems with evidence of Smith's<br>past and future pain and suffering.<br>  There was also substantial evidence presented regarding<br>Smith's loss of enjoyment of life.  Testimony by Smith and her<br>doctors established that Smith was simply unable to engage in many<br>of the physical activities she had enjoyed in the past, including<br>dancing, walking, and taking aerobics classes.  Smith testified<br>that she is unable to drive a car or venture out beyond her house<br>due to her fear of additional injury.  Smith and Orth testified to<br>the great strain that has been placed on their relationship and to<br>the marked decrease in the amount of socializing with friends.  If<br>the jury believed this testimony -- which it is entitled to do<br>without judicial second-guessing of its credibility determinations<br>-- the jury was faced with a plaintiff who is virtually unable to<br>leave her home, unable to perform any physical activity, and unable<br>to maintain normal social relationships.  Such limitations amount<br>to a substantial loss of the opportunity to enjoy life as Smith had<br>prior to the accident.<br>  While we agree with Kmart that this award was certainly<br>generous, we do not find it to be "grossly excessive" or "shocking<br>to the conscience," in light of the extensive evidence of the pain<br>and suffering endured and yet to be endured by Smith and the<br>limitations that her condition has placed on her ability to enjoy<br>life.  We have upheld awards for pain and suffering and lost<br>enjoyment damages in the range of the damages awarded to Smith. <br>See, e.g., Correa, 69 F.3d at 1198 (upholding: (1) a $200,000 award<br>for the pain and suffering experienced by Carmen Gonzlez Figueroa<br>for the few hours prior to her death, following the negligence of<br>the hospital she appeared at complaining of dizziness and chest<br>pains, and (2) a combined $500,000 award for the pain and suffering<br>of Gonzlez' heirs); Hogan v. Bangor and Aroostook Railroad Co., 61<br>F.3d 1034, 1037-38  (1st Cir. 1995) (upholding $200,000 award for<br>emotional distress, inconvenience, mental anguish, and loss of<br>enjoyment of life in the absence of any physical injury, when<br>defendant refused to allow plaintiff to return to work, causing<br>plaintiff to be depressed and to give up his usual activities);<br>Havinga v. Crowley Towing and Transp. Co., 24 F.3d 1480, 1483 (1st<br>Cir. 1994) (upholding several awards for pain and suffering and<br>loss of enjoyment of life ranging from $200,000 to $450,000 when<br>evidence was presented that the plaintiffs suffered severe<br>emotional and psychological injuries which significantly affected<br>the quality of their lives and caused each to avoid activities in<br>which he had previously engaged); Ruiz v. Gonzlez, 929 F.2d 31,<br>34-35 (1st Cir. 1991) (upholding a past and future damages award of<br>$350,000 when there was evidence that plaintiff was diagnosed with<br>post-traumatic stress disorder and suffered a permanent partial<br>disability, although a portion of the award could have represented<br>lost future earnings).<br>  In Anthony, we found a $566,765 award for pain and<br>suffering to be so grossly disproportionate to the plaintiff's<br>injury as to be unconscionable.  See Anthony, 17 F.3d at 494. <br>However, in that case, we based our finding of excessiveness on<br>several factors.  First, there was no evidence that the plaintiff's<br>leg injury prevented him from engaging in any particular<br>activities.  See id.  Second, there was no evidence that the injury<br>otherwise interfered with the plaintiff's professional,<br>recreational, or personal life.  See id.  Third, the physical<br>injury was not particularly severe or painful and required no major<br>medical treatment.  See id.  Finally, there was no evidence that<br>the plaintiff's injury was permanent.  See id.  While each<br>aggravating factor was absent in Anthony, each aggravating factor<br>is present in Smith's case.  Thus, our holding in Anthony is of<br>little assistance.<br>  Kmart offers a series of damage awards in various state<br>courts ranging from $3,000 to $132,215 for what Kmart terms "soft<br>tissue injuries" comparable to Smith's injuries.  From this, Kmart<br>argues that the award to Smith should be reduced to more closely<br>match those awards.  However, even if we could accept Kmart's<br>belittling characterization of Smith's injuries, the existence of<br>smaller damage awards in other jurisdictions, based upon different<br>factual scenarios, does not render the present award "grossly<br>excessive."  We do not disagree that the present award is generous<br>in comparison to the awards given by Kmart as examples, but we have<br>stated in the past that "merely showing that the damage award is<br>generous in comparison to other (hand-picked) cases is insufficient<br>to warrant relief."  See Correa, 69 F.3d at 1198 (citing Havinga,<br>24 F.3d at 1488-89).  Thus, Kmart's tour of personal injury cases<br>in courts from California to Maine does not dissuade us from<br>finding that the evidence before the jury was sufficient to support<br>the $500,000 award to Smith for past and future pain and suffering,<br>emotional distress, and lost enjoyment of life.<br>  B.  Orth's Award of $250,000<br>  Unfortunately for plaintiffs, the same cannot be said of<br>the $250,000 award to Orth.  As a bystander to Smith's injury, Orth<br>has no physical injuries of his own.  While this does not preclude<br>Orth from recovering for his emotional pain and suffering and for<br>his lost enjoyment of life, it does preclude him from recovering<br>for a category of injury -- past and future physical pain and<br>suffering -- that makes up a substantial portion of Smith's award. <br>  Additionally, the evidence of Orth's emotional pain and<br>suffering was considerably less than the evidence of Smith's<br>emotional pain and suffering. Since Orth has not seen a<br>psychologist, psychiatrist or therapist for his emotional distress,<br>there was no expert testimony on this issue whatsoever.  Orth<br>testified to his horror in watching as Smith was struck by the<br>cooler and lost consciousness.  Orth testified that he performed<br>CPR on Smith and thought, at various times, that she was either<br>dead or paralyzed.  Orth testified to all of the medical visits on<br>which he accompanied Smith and testified to his constant worry over<br>her condition.  He testified that he was "emotionally tired,<br>mentally tired, [with] periods of fear."  In addition to Orth's<br>testimony, Arlene Fromer (and Patrick Fromer, through a<br>stipulation) testified that the accident "really impacted James"<br>and that Orth was constantly worried about Smith's condition.  This<br>evidence amply demonstrates that Orth witnessed a distressing event<br>and is now often a tired and worried individual, but hardly<br>approaches the emotional pain and suffering required to sustain<br>such a substantial award.<br>  Regarding Orth's loss of enjoyment of life, including<br>loss of consortium, the evidence is nearly as limited.  Orth<br>testified that Smith performed two to three hours of housekeeping<br>work per day before the accident, but could only manage 45 minutes<br>to an hour of such work after the accident.  Orth testified that he<br>was forced to do all of the cooking each night, but that they hired<br>someone to help with the other housework.  Orth testified that he<br>no longer has a personal life because he works 18-20 hours per day<br>to compensate for the amount of work that Smith can no longer<br>perform.  Orth testified that he and Smith have a strained<br>relationship in that "we don't touch, we don't talk, we don't have<br>a physical relationship anymore."  Orth testified that, before the<br>accident, they had considered starting a family.  The Fromers<br>testified that Orth had to take over many of the household<br>responsibilities that Smith was once able to do.  The Fromers also<br>testified that Smith and Orth stopped socializing with them after<br>the accident.  This evidence of Orth's loss of enjoyment of life<br>and loss of consortium simply does not rise to a level commensurate<br>with the amount of damages awarded.<br>  In short, we find the jury's $250,000 award to Orth for<br>past and future emotional pain and suffering, loss of enjoyment of<br>life, and loss of consortium to be "grossly excessive, inordinate,<br>shocking to the conscience of the court, [and] so high that it<br>would be a denial of justice to permit it to stand."  Correa, 69<br>F.3d at 1197 (quoting Segal, 746 F.2d at 80-81) (internal quotation<br>marks omitted).  Because the jury's verdict in this regard exceeds<br>"any rational appraisal or estimate of the damages that could be<br>based on the evidence before the jury," Milone, 847 F.2d at 36, we<br>find that the district court abused its discretion in denying<br>Kmart's motion for a remittitur of Orth's award.  Accordingly, we<br>remand this case with instructions to vacate the $250,000 award to<br>Orth for his damages excluding medical expenses and order a new<br>trial on this issue, unless Orth agrees to remit all of that award<br>in excess of $100,000.  After carefully reviewing the evidence of<br>Orth's damages that was presented at trial and examining the<br>various types of injuries and damage awards of the cases cited<br>supra at pp. 22 and 25, we conclude that $100,000 represents the<br>upper limit of a rational appraisal of Orth's damages.<br>                            CONCLUSION<br>  Based on the foregoing, the portion of the judgment<br>awarding Smith $500,000 in damages excluding medical expenses is<br>AFFIRMED.  This case is REMANDED to the district court with<br>instructions to set a deadline by which plaintiffs must accept or<br>reject a remittitur of the $250,000 award for Orth's damages<br>excluding medical expenses to $100,000.  If plaintiffs elect to<br>accept this remittitur, the district court shall modify the<br>judgment accordingly.  If plaintiffs elect not to accept this<br>remittitur, the district court shall vacate the judgment and order<br>a new trial on the issue of Orth's damages excluding medical<br>expenses.<br></pre>

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