
USCA1 Opinion

	




                            United States Court of Appeals                                For the First Circuit                                 ____________________          No. 95-1781                             CAMBRIDGE PLATING CO., INC.,                                 Plaintiff-Appellee,                                          v.                                     NAPCO, INC.,                                 Defendant-Appellant.                                 ____________________          No. 95-1782                             CAMBRIDGE PLATING CO., INC.,                                 Plaintiff-Appellant,                                          v.                                     NAPCO, INC.,                                 Defendant-Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS              [Hon. W. Arthur Garrity, Jr., Senior U.S. District Judge]                                            __________________________                                 ____________________                                        Before                                Selya, Boudin and Lynch                                   Circuit Judges.                                   ______________                                 ____________________               Thomas K. Christo,  with whom  David B. Chaffin  and Hare  &               _________________              ________________      _______          Chaffin were on brief, for Cambridge Plating Co., Inc.          _______               Lawrence S. Robbins, with whom Gary A. Winters, Mayer, Brown               ___________________            _______________  ____________          & Platt, Richard L.  Burpee and Burpee &  DeMoura were on  brief,          _______  __________________     _________________          for Napco, Inc.                                 ____________________                                     June 3, 1996                                 ____________________                                         -2-                      LYNCH,  Circuit Judge.   These  cross-appeals arise                      LYNCH,  Circuit Judge.                              _____________            out  of the sale  of a defective  wastewater treatment system            for use in  an electroplating operation.  For want  of a $620            part, there was  a damages verdict  of over $7 million.   The            purchaser of  the system,  Cambridge Plating Co.,  Inc., sued            the seller, Napco, Inc., for, among other things,  failing to            reveal that it had knowingly omitted a critical part from the            system.      The  complaint   alleged  breach   of  contract,            intentional  misrepresentation,  negligent  misrepresentation            and  a violation of Mass. Gen. L. ch. 93A,    2, 11 ("Chapter            93A").   After a  twelve-day trial, Cambridge  Plating won on            all counts, with a  jury finding liability on the  common law            counts and the district court finding liability under Chapter            93A.   Both the jury and the district court awarded Cambridge            Plating  significant  damages.    Napco  now  raises  various            challenges  to the verdicts.   We believe there  was error in            the  striking of  post-judgment motions  and that  the claims            were timely filed under  the Massachusetts discovery rule; we            find  the evidence  sufficient and  affirm on  liability (but            reverse the  multiple damages under Chapter  93A), and vacate            and remand the award of damages.                                    I.  Background                                         -3-                      We recite the facts as the  jury and district court            could have  found them.  See Sampson v. Eaton Corp., 809 F.2d                                     ___ _______    ___________            156, 157 (1st Cir. 1987).                      Cambridge Plating, as part of its metal plating and            metal finishing  operations, uses  large quantities of  water            for  bath   solutions  and  rinsing.     This  water  becomes            contaminated   with  chemicals  and  metals.    Environmental            regulations require that Cambridge Plating  decontaminate the            wastewater before discharging it into the sewers.                      Napco manufactures and  sells wastewater  treatment            systems  for commercial  users.   In January  1984, Cambridge            Plating   entered  into   a   contract   to   purchase,   for            approximately  $398,000, a  wastewater treatment  system that            would remove the contaminants from the water.  As part of the            contract, Napco provided a "performance warranty" under which            Napco warranted  that the system, if  operated within certain            defined  limits, would  meet  all Massachusetts  and  federal            pollution  abatement requirements.    The warranty,  however,            excluded liability  for all consequential damages or business            loss  Cambridge Plating might incur in the event of a breach.                      The system  Napco sold to Cambridge  Plating used a            precipitation process  to  remove the  contaminants from  the            water.   The wastewater was  fed through pipes,  and injected            with a polymer solution.  The  polymers were to attach to the                                         -4-            contaminants  and  then   aggregate  them   to  form   larger            particles, known  as "floc."  The  floc was to  settle out of            the water and form sludge at the bottom of a clarifying tank.            The clean water  layer on  top would be  discharged into  the            sewer  and Cambridge  Plating would  properly dispose  of the            sludge left behind in the tank.  "Flocculation,"  the joining            of  the smaller  particles into  bigger ones,  was absolutely            critical to  the success of the  wastewater treatment system.            Absent   proper   flocculation,  contaminants   would  remain            suspended  in the water and the water could not be discharged            into the sewer.                      For  proper  flocculation  to  occur,  the  polymer            solution  had  to be  thoroughly  mixed  into the  wastewater            stream.  The system needed  some means of creating turbulence            in  the  stream  sufficient  to  perform  that  mixing.   One            mechanism designed  to create  the necessary turbulence  is a            "static  mixer."   A  static  mixer  is  a  section  of  pipe            containing a  series of "baffles," small  metal plates placed            at  an  angle inside  the pipe  which create  resistance and,            consequently, turbulence.   The polymer solution  is injected            into  the waste  stream  just before  the  water reaches  the            static  mixer.  Once the water with the polymer solution hits            the baffles, mixing occurs.                      There are  alternatives to static  mixers to create            the   required  turbulence  for  a  precipitation  wastewater                                         -5-            treatment system.  As Joseph Aliota, Napco's expert engineer,            testified,  proper mixing can occur if the system is designed            with a series of  significant bends in the piping  around the            area  where the polymer is  injected into the  stream.  Napco            did not opt for  that design.  The engineering  drawings (and            other  items)  for  the   Cambridge  Plating  system  clearly            indicate that the system was to include a static mixer.                      Napco did not install the static mixer.  Nor did it            tell  Cambridge Plating  that the  static mixer had  not been            installed.  It did, however, provide Cambridge Plating with a            "tech   manual"   containing    blueprints   and    operating            instructions for the system.  This manual, given to Cambridge            Plating upon completion of the system, purported to show what            had actually  been built.1 It contained  engineering drawings            indicating that  the static mixer  had been installed  in the            system.  Napco  also provided a  control panel that  depicted            the static mixer as being part of the system.                      Napco's  employees were aware that the static mixer            had  not  been installed.    Bob  Triplett, Napco's  plumbing            subcontractor,  testified  that  he  was  instructed  not  to            install  the static  mixer at  the direction  of either  Carl                                            ____________________            1.  Although  the  parties  vigorously  dispute  whether  the            drawings  in  the tech  manual can  be  considered to  be "as            built" drawings as  that term  is used  among engineers,  the            evidence shows clearly that these drawings were placed in the            manual  to  show Cambridge  Plating  what  had actually  been            built.                                         -6-            Bredfield,  a  Napco  employee,  or Bob  DeBisschop,  Napco's            project  manager on the  Cambridge Plating job.   John Eason,            Napco's  Manager  of  Pollution  Abatement  and  the   person            principally responsible  for the  design of the  system, also            testified  that  he knew  the  static  mixer was  not  there,            although he  claimed that the  static mixer was  installed at            first but later removed because it had a tendency to clog.                      The system was installed in late 1984.  For several            months  after  installation,  the  system  generally met  the            applicable  pollution  limits.   A series  of reports  from a            testing  laboratory that  Cambridge Plating forwarded  to the            Massachusetts   Water   Resources  Authority   ("MWRA")  (the            relevant  state regulatory  body)  showed  that from  roughly            March 1985 until  September 1985, the system  usually met the            applicable discharge limits.                      As time  went  on, however,  the  system  regularly            failed to meet the  applicable pollution limits and Cambridge            Plating complained  to Napco about the problems.  Starting in            early  1986,  Edward  Marullo, a  Cambridge  Plating employee            responsible  for running  the  system,  called DeBisschop  at            Napco  to complain  about the  poor performance.   DeBisschop            told Marullo to  manipulate the  polymer and pH  levels.   In            March 1986,  Laurence  Tosi, Cambridge  Plating's  President,            called DeBisschop "yelling and screaming" about the  system's            failures.  Tosi  thought that Napco's  equipment might be  at                                         -7-            fault,  but  DeBisschop  allayed  his concerns,  saying  that            operator error was the likely cause of the problem.  Based on            DeBisschop's assurances,  Tosi took no further  steps to have            the system inspected  for defects.   Again, in 1987,  Marullo            called Eason  at Napco,  who, like his  colleague DeBisschop,            told Marullo to manipulate the polymer flow and pH level.  At            some point, Napco told Tosi that it would be willing to  send            engineers to examine the system or to train further Cambridge            Plating's operators.   But there  was a price  tag: Cambridge            Plating had to agree  to pay $1000 per day  for such service.            Tosi declined.  At no time did Napco inform Cambridge Plating            that the static mixer was missing.                      During  this  period,  Cambridge  Plating  hired  a            series of experts to  determine what was wrong.   In December            1986,  it hired Patrick Hunt, a  waste treatment operator for            Hewlett-Packard  who was  also an  instructor of  a licensing            course for  wastewater treatment operators  at the University            of   Lowell.     Hunt   inspected   the  system,   recognized            "insufficient floc formation" as a problem, and made numerous            suggestions,  most of which  related to operation.   Hunt did            not discover that the static mixer was missing.  In May 1987,            Robert Capaccio, also a wastewater  treatment expert, visited            Cambridge Plating but failed to  detect that the static mixer            was missing.   A third  group of experts  from Memtek,  which            designs  and  manufactures   wastewater  treatment   systems,                                         -8-            examined  the  system in  September 1987  for the  purpose of            proposing a course of action.  They recommended a substantial            overhaul  of the  system  at a  cost  that Cambridge  Plating            considered prohibitive.   During  their review, they  did not            notice that the static mixer was missing.                      As  Cambridge Plating  was trying  to identify  and            solve  the problems with the  system, it was  also becoming a            consistent violator  of the MWRA's regulations.   In December            1988  the   MWRA   fined  Cambridge   Plating  $682,250   for            discharging  excessive levels  of  contaminants.    Cambridge            Plating  challenged  the fine,  which  was  later reduced  to            $128,500,  but   at  a  cost  of   approximately  $54,000  in            attorneys' fees.                      Cambridge  Plating  tried  to  manage  the system's            deficiencies  by rigging  the system  so that  the wastewater            would  be recirculated and retreated  in the system.  "Closed            looping,"  as this practice  was called,  gave more  time for            flocculation  to  occur.    It also  slowed  down  production            considerably.  When there was closed  looping, the system had            to  process both  the retreated  wastewater and  the incoming            wastewater generated  by production.   From 1985  to February            1989,  the  closed  looping  was  accomplished  by  attaching            flexible hoses  to the system.   In February  1989, Cambridge            Plating  replaced  the flexible  hoses  with  hard piping  to            create permanent closed looping.  Cambridge Plating also shut                                         -9-            down  its zinc  plating operation  because, even  with closed            looping, the  system could  not remove the  contaminants from            that  operation.    Because  of its  slowdown  in  production            capacity,  Cambridge Plating's business began to deteriorate.            Net sales declined from a  high of approximately $6.2 million            in 1985 to approximately $4.8 million in 1989.                      In  February 1989  Cambridge  Plating  hired  Peter            Moleux,  another  expert  in  wastewater  treatment  systems.            Moleux  reviewed   Napco's   proposal  and   copies  of   the            engineering drawings.  By chance, Moleux had been given a bad            photocopy  of the drawings.  The portion of the drawings that            depicted the  static mixer did  not appear on  the photocopy.            He decided  to look for the  static mixer in the  system.  He            physically examined the system and  inspected the area of the            system where the static  mixer should have been.   Because of            his expertise,  he noticed  that the piping  looked different            than it should have  if the static mixer had  been installed.            He  later confirmed  that  the  static  mixer  had  not  been            installed.    He told  Cambridge Plating  that the  mixer was            missing.                      Shortly  thereafter, on  March 17,  1989, Cambridge            Plating sent a  letter to Napco  enclosing a draft  complaint            "concerning difficulties" Cambridge  Plating had  experienced            with Napco.  The draft complaint mentioned the missing static            mixer  and  the letter  requested  an "amicable  resolution."                                         -10-            Napco ignored the letter, never agreeing to come to a meeting            to  seek  an amicable  resolution  nor  agreeing  to fix  the            problem.                          Despite Moleux's discovery,  Cambridge Plating  did            not order the static  mixer until December 1989.   It arrived            at the plant in January 1990 but  was not installed until May            1990.   Installation required the  plant to be  shut down for            one day.  Once  the static mixer was installed,  the system's            performance improved dramatically,  and Cambridge Plating was            able  to discontinue, for the most part, closed looping.  The            static mixer cost $620.                      Cambridge  Plating sued  Napco  on  June  22,  1990            charging breach of contract (including willful repudiation of            warranty),    intentional     misrepresentation,    negligent            misrepresentation  and  violation  of  Chapter  93A.    Napco            subsequently moved for summary  judgment.  The district court            granted the  motion, holding that  Cambridge Plating's claims            were  time-barred.   This  court  reversed  and remanded  for            trial,  see  Cambridge  Plating  Co.,  Inc.  v.  Napco,  Inc.                    ___  ______________________________      ____________            (Cambridge Plating  I),  991 F.2d  21,  22 (1st  Cir.  1993),            ______________________            holding that a genuine  issue of material fact existed  as to            whether Cambridge Plating  could benefit  from the  discovery            rule.                      On  remand,  the  case  was  tried  to  a  jury  in            September 1994.  The district court submitted Fed. R. Civ. P.                                         -11-            49(b) special interrogatories to  the jury on the  statute of            limitations question,  the three  common law counts,  and the            Chapter  93A   count.     The  jury   answered  all   of  the            interrogatories  in Cambridge  Plating's  favor,  returned  a            general verdict on each of the common law counts, and awarded            Cambridge Plating $12,183,120.  The district court treated as            advisory the jury's answers to the Rule 49(b) interrogatories            on  the  Chapter 93A  count, and,  on  February 7,  1995, the            district court issued findings of fact and conclusions of law            on the Chapter 93A count.  See Cambridge Plating Co., Inc. v.                                       ___ ___________________________            Napco,  Inc. (Cambridge  Plating II),  876  F. Supp.  326 (D.            ____________________________________            Mass. 1995).   In that opinion, the  district court concluded            that  the  Chapter  93A  count  was  timely,  that  Napco had            violated Chapter 93A, and that Cambridge Plating was entitled            to compensatory  damages in the  amount of $3,363,120.2   The            district court  also concluded that the  violation of Chapter            93A  was "willful or knowing" and ordered a punitive award of            double damages.                      Napco filed post-judgment motions for judgment as a            matter  of law, a new trial, remittitur, and amended findings            on the  Chapter 93A  claim.   After Cambridge  Plating argued            that  the  post-judgment motions  failed  to  set forth  with            sufficient  specificity the grounds  for relief, the district                                            ____________________            2.  The  district  court  also  awarded  attorneys'  fees  of            $345,000 pursuant to Mass. Gen. L. ch. 93A,   11.                                         -12-            court  struck  all  of the  motions,  except  the motion  for            remittitur.   The district court then granted a remittitur in            the  amount  of $7,839,000  and  gave  Cambridge Plating  the            option of  accepting  the  remittitur,  thereby  accepting  a            reduced damage award on  the common law counts in  the amount            of $4,344,120, or submitting  to a new trial.   See Cambridge                                                            ___ _________            Plating Co., Inc. v. Napco, Inc. (Cambridge Plating III), 890            _________________    ___________________________________            F.  Supp. 55, 59 (D. Mass. 1995).  Cambridge Plating accepted            the remittitur.                      Napco  now  challenges   the  sufficiency  of   the            evidence, both  as to liability and  damages.  Alternatively,            it seeks  a new trial  due to instructional  error.   It also            argues  that  the  district  court should  have  limited  the            damages even  more.   We turn  first to  the question  of our            scope of review.                                                     II.  Scope Of Review                      The  district court's  decision  to strike  Napco's            post-judgment motions affects the scope of our review.  Napco            challenges the sufficiency of the evidence to show willful or            intentional misconduct, seeking a judgment as a matter of law            or, in  the alternative,  a  new trial  on the  "intentional"            counts: intentional misrepresentation, willful repudiation of            warranty  and Chapter  93A.   This  court will  not, however,            review sufficiency  challenges absent a proper  motion in the                                         -13-            district  court for  judgment  as a  matter of  law or  a new            trial.   See Johnson v. New  York, New Haven  & Hartford R.R.                     ___ _______    _____________________________________            Co., 344 U.S. 48, 54 (1952) (motion for j.n.o.v.); Pinkham v.            ___                                                _______            Burgess,  933 F.2d 1066, 1070 (1st Cir. 1991) (motion for new            _______            trial);  cf. Hammond v. T.J. Litle & Co., Inc., Nos. 95-1690,                     ___ _______    ______________________            95-1913, slip op.  at 10 (1st  Cir. April  30, 1996) ("It  is            beyond   peradventure  that   in  order   to  challenge   the            sufficiency  of the evidence  on appeal,  a party  must first            have  presented the  claim to  the district court,  either by            moving for  judgment as a  matter of law  before the case  is            submitted  to the  jury and  renewing  that motion  after the            verdict, Fed. R.  Civ. P. 50(a), (b), or by  moving for a new            trial  pursuant to  Fed. R. Civ.  P. 59.").   If the district            court acted properly in striking the motions, the motions are            nullities, and,  under Johnson  and Pinkham, Napco  is barred                                   _______      _______            from  challenging  the  sufficiency  of  the  evidence.    We            believe, however, that the district court understandably  but            improperly struck the post-judgment motions.                      A.  Procedural Background                      __  _____________________                      The district court entered  judgment on February 8,            1995.  The next day, Napco moved for an extension of time for            filing its memoranda in support of its post-judgment motions,            stating:                      Plaintiff has prevailed on  four separate                      and distinct legal claims.  Therefore, in                      order  to   obtain  postjudgment  relief,                      Napco must  challenge all four  bases for                                         -14-                      the judgment.  This will require Napco to                      argue   several  substantial   legal  and                      factual  issues  including, for  example,                      the  recoverability  of lost  profits for                      negligent      misrepresentation,     the                      sufficiency    of    the   evidence    of                      intentional   misrepresentation   and  of                      repudiation of warranty,  the statute  of                      limitations  (three-year and  four-year),                      as well as issues relating to Chapter 93A                      and damages.             On February 14, the district court granted the motion, giving            Napco  until   March  1,  1995  to   file  the  post-judgment            memoranda.  On February  17, six days before the  10-day time            limit for filing post-judgment motions expired, Napco filed a            motion pursuant  to Fed. R. Civ. P. 50(b) and 59.  In summary            fashion, the motion outlined its  subject matter and said the            grounds would  be set forth in  the March 1  memorandum to be            filed later in accord  with the Court's extension.3   Also on                                            ____________________            3.  The text of the motion was:                      Pursuant to Fed. R. Civ. P. 50(b) and 59,                      the defendant, Napco, Inc., hereby:                           (1) renews the motion for entry                           of judgment as  a matter of law                           that  it made  at the  close of                           the  plaintiff's  evidence  and                           again at  the close of  all the                           evidence;                           (2)  moves for  a new  trial on                           the  common law  counts decided                           by the jury; and                           (3) moves for a remittitur or a                           new  trial  on  damages on  the                           common  law  counts decided  by                           the jury.                      The grounds  for this motion  will be set                      forth in Napco's Memorandum in Support of                                         -15-            February  17, Napco filed a similar motion under Fed. R. Civ.            P.  52(b) and 59 seeking either to amend the district court's            findings of  fact and  conclusions of  law or  to have  a new            trial on  the Chapter 93A claim.   This motion also said that            the grounds  for the motion would be set forth in the March 1            memorandum.                        On  February 24,  1995, one  day after  the ten-day            period  expired,  Cambridge Plating  moved to  strike Napco's            post-judgment  motions, arguing  that they  lacked sufficient            "particularity"  under  Fed. R.  Civ.  P.  7(b)(1) and  that,            accordingly,  no "motion"  had been  timely filed  within the            ten-day period prescribed by  Rules 50(b), 52(b) and 59.   In            granting Cambridge Plating's motion, except on the remittitur            issue, the district court  refused to take into consideration            Napco's  extension motion  or  any of  the other  surrounding            circumstances.                      B.  Analysis                      __  ________                      Rule  7(b)(1)  requires  that motions  "state  with            particularity the grounds therefor." Fed. R. Civ. P. 7(b)(1).            Napco's post-judgment motions are subject to the requirements            of Rule 7(b)(1).   The particularity requirement, however, is                                            ____________________                      Motion for Judgment  as a Matter of  Law,                      for a  New Trial or for Remittitur, which                      Napco  will  file  on  March  1, 1995  in                      accordance  with  the  Court's ruling  on                      Defendant's Motion for Additional Time to                      File Memorandum.                                         -16-            to  be   read  flexibly  in  "recognition   of  the  peculiar            circumstances of the case."   Registration Control Sys., Inc.                                          _______________________________            v. Compusystems,  Inc., 922 F.2d  805, 808 (Fed.  Cir. 1990).               ___________________            This is  because Rule 7 is designed  "to afford notice of the            grounds and prayer  of the motion to  both the court  and the            opposing  party,  providing  that  party  with  a  meaningful            opportunity to respond and  the court with enough information            to process the motion correctly."  Id. at 807.  When a motion                                               ___            is  challenged  for lack  of  particularity  the question  is            "whether any party is  prejudiced by a lack  of particularity            or 'whether the court can comprehend the basis for the motion            and  deal with  it  fairly.'"   Id. at  807-08 (quoting  5 C.                                            ___            Wright &  A. Miller, Federal Practice &  Procedure   1192, at                                 _____________________________            42 (1990)).                      While Napco's motion  was at best sloppy  practice,            we  believe that it was  sufficiently particular when read in            conjunction  with the  extension  motion and  prior  filings.            Although  the extension  motion was not  filed simultaneously            with the Rule 50(b),  59 and 52(b) motions, it was filed only            a week before,  within the ten-day period, and  was obviously            closely related to  the Rule  50(b) motion.   Compare Lac  Du                                                          _______ _______            Flambeau Band of Lake Superior Chippewa Indians v. Wisconsin,            _______________________________________________    _________            957  F.2d 515,  517 (7th  Cir.) (supporting  memorandum filed            with  insufficiently particular  motion),  cert. denied,  506                                                       _____ ______            U.S. 829 (1992).  The extension motion specified the bases of                                         -17-            the  judgment  that  Napco  "must challenge,"  including  the            sufficiency    of   the    evidence   on    the   intentional            misrepresentation  claim  and   the  willful  repudiation  of            warranty claim, as well as issues relating to Chapter 93A and            damages.    Napco thus  represented  to  both the  court  and            Cambridge Plating the grounds  for its post-judgment motions.            No  claim is made that  there was any  intervening event that            would have  made the representations in  the extension motion            unreliable.                      Cambridge Plating  makes a passing  argument in its            brief that it was unable to respond to, or the district court            to process, Napco's motions.  If the Rule 50(b), 59 and 52(b)            motions  are viewed  in  isolation, Cambridge  Plating has  a            point.   But the motions cannot  be viewed in isolation.   In            addition to the  closely filed extension motion,  significant            briefing on the  Chapter 93A issues  had just been  completed            and  Napco  had  earlier  made quite  a  detailed  Rule 50(a)            motion, of which  the Rule 50(b) motion was  a "renewal."  In            short,  the   record  shows  that  Napco   was  taking  steps            specifically to make evidentiary challenges to the verdict on            all  of the  major issues  litigated at  trial.   The grounds            Napco  would  press   in  its   post-judgment  motions   were            sufficiently known.   The motions  under Rules 50(b),  59 and                                         -18-            52(b)   were   adequate,    although   barely,   under    the            circumstances.4                      The  district court  premised  its decision  on the            belief that the law prevented it from looking beyond the four            corners of  the motion  to determine  whether the  motion had            stated  its grounds  with  sufficient  particularity.   While            understandable,  such a view of Rule 7(b)(1) is, in our view,            too narrow.  "Overly technical"  evaluations of particularity            are  disfavored.   Wright  & Miller,  supra,    1192, at  43.                                                  _____            Courts routinely take into consideration other closely  filed            pleadings to  determine  whether  sufficient  notice  of  the            grounds for the motion are given and the opposing party has a            fair opportunity to respond.  See Chippewa Indians, 957  F.2d                                          ___ ________________            at  517  (motion failing  to  state  grounds is  sufficiently            particular where supporting  memorandum adequately  discusses            the  grounds); Brown v. United  States Postal Serv., 860 F.2d                           _____    ___________________________            884,  887 (9th  Cir.  1988) (motion  for reconsideration  was            adequate  under Rule  7 even  though a particular  ground was                                            ____________________            4.  As  should be clear, the  bar places its  clients at risk            with this sort of  practice and unnecessarily complicates the            litigation.  Nevertheless, the circumstances involved in this            case  are distinguishable  from  Riley v.  Northwestern  Bell                                             _____     __________________            Telephone  Company, 1 F.3d  725, 726-27 (8th  Cir. 1993), and            __________________            Martinez v. Trainor,  556 F.2d 818,  819-20 (7th Cir.  1977),            ________    _______            the cases upon  which Cambridge  Plating principally  relies.            In  those  cases the  moving  parties  filed only  bare-bones            motions  within  the specified  time period.   There  were no            other closely  related documents filed before  the expiration            of the  time period  making it  clear  to the  court and  the            opposing party what the moving party would be arguing.                                         -19-            omitted, where the parties had already briefed and argued the            issue  and  no prejudice  would  result);  see  also King  v.                                                       ___  ____ ____            Mordowanec, 46  F.R.D. 474, 477 (D.R.I.  1969) (where grounds            __________            for Rule  60(b) motion were stated at  oral argument previous            day  and were  discussed  after  filing,  during  in-chambers            argument,  motion   did  not   run  afoul  of   Rule  7(b)(1)            particularity  requirement).   Accordingly, we  reach Napco's            various  challenges to  the sufficiency  (and weight)  of the            evidence.5                                   III.  Liability                      A.  Statute Of Limitations                      __  ______________________                      1.  Sufficiency of the evidence.                      __  ___________________________                      Napco first argues that  none of the claims survive            the statute of limitations.  Cambridge Plating filed  suit on            June 22, 1990.   A four-year  statute of limitations  governs            the Chapter 93A  and breach  of warranty claims.   See  Mass.                                                               ___            Gen.  L. ch. 106,   2-725 (contract for sale of goods); Mass.            Gen. L. ch. 260,   5A (Chapter 93A).  A three-year statute of            limitations   governs   the    intentional   and    negligent            misrepresentation claims.  See  Mass. Gen. L. ch. 260,    2A.                                       ___                                            ____________________            5.  Cambridge Plating has cross-appealed the district court's            decision not to strike  the motion for remittitur.   In light            of our decision that the district court erred in striking the            motions,  we reject  Cambridge  Plating's  argument that  the            district  court should also have struck Napco's request for a            remittitur.                                          -20-            As  established  in  Cambridge Plating  I,  991  F.2d at  27,                                 ____________________            Cambridge  Plating must rely  on the discovery  rule to prove            its   claims  were   timely  filed.     The   discovery  rule            "'prescribes as crucial the  date when a plaintiff discovers,            or  any   earlier  date  when  she   should  reasonably  have            discovered,  that she has been harmed or may have been harmed            by  the defendant's  conduct.'"   Id. (quoting  Bowen  v. Eli                                              ___           _____     ___            Lilly & Co., Inc., 557 N.E.2d 739, 740-41 (Mass. 1990)).  The            _________________            discovery rule  here "turns on  when the company  should have            known that Napco might be responsible for the water treatment            system's failing performance."  Cambridge Plating I, 991 F.2d                                            ___________________            at 29.   The question  to be  resolved at  trial was  whether            Cambridge Plating "knew  or should have  known of its  claims            before June  22, 1987 [or June 22, 1986]."  Id.  Napco argues                                                        ___            that the  evidence was insufficient  for a  jury to  conclude            that Cambridge Plating  should not have  known of its  claims            before the pertinent cut-off dates.  We disagree.                      The  question of  the timeliness  of the  breach of            warranty and  Chapter 93A claims under  the four-year statute            is, we believe, largely answered by the admirable description            of  the evidence provided by  the district court  in light of            our previous opinion in Cambridge Plating I.  The evidence at                                    ___________________            trial showed that Cambridge Plating was aware that the system            was complex and that  the performance warranty Napco provided            contained the implicit condition  that the system be operated                                         -21-            properly.    At  least  at  first,  Cambridge  Plating  could            reasonably  have believed that  its own  inexperience, rather            than Napco's defective equipment, was to blame.                      Of  course,  at some  point,  when  things were  no            better, Cambridge  Plating should have thought that something            other  than operator error was  causing the problem.   And as            Napco points out, there  was evidence that such a  point came            for  Cambridge Plating  either  in early  1986, when  Marullo            complained  to Debisschop  about the  system, or  March 1986,            when Tosi "kept yelling and screaming" at Debisschop that the            problems were due to the equipment.                      But  the  critical  question is  whether  Cambridge            Plating reasonably relied on Napco's responses to those early            1986  inquiries that  operator error,  rather than  equipment            defect, was the  cause of the  trouble.  The  fact that  Tosi            complained vociferously  that the  equipment was at  fault is            not dispositive if DeBisschop was reasonably able to convince            Tosi  he  was  wrong.      Napco  had  considerably  superior            expertise in this area.   The absence of the static mixer was            not something Cambridge Plating, with its level of expertise,            should   have  detected.     We   believe  that   under  such            circumstances, when Napco  gave Tosi its "assur[ances]"  that            the problem had to be with the Cambridge Plating's operators,            Cambridge Plating reasonably took Napco at its word.                                         -22-                      The  misrepresentation claims, governed by a three-            year  statute, were also  timely.  Cambridge  Plating did not            sit  idle  during  the  next twelve  months.    When  Napco's            suggestions  did  not solve  the  problem, Cambridge  Plating            hired Patrick Hunt, in late 1986, to evaluate the system.  In            January 1987 Hunt gave Cambridge Plating his recommendations,            which suggested  operational changes but not  that the static            mixer  was either missing or  not working properly.   If Hunt            were  unqualified  to  examine  the  system,  then  Cambridge            Plating  might have  difficulty  arguing that  it was  acting            reasonably.  But  Hunt was an expert in  wastewater treatment            systems and competent to evaluate the system.                      Was  Hunt's failure  to  discover  that the  static            mixer was missing  reasonable?  See Cambridge  Plating I, 991                                            ___ ____________________            F.2d at 29-30.   We think the jury was  entitled to think so.            First, the absence of the static mixer was not something that            could be easily detected from  a physical observation of  the            system.  Indeed, other experts after Hunt who looked over the            system  were  also fooled.    Second, Napco  had  supplied to            Cambridge Plating drawings representing that the static mixer            had been  installed.   According to Cambridge  Plating, these            drawings were "as built"  drawings.  Napco disputes Cambridge            Plating's  characterization  of  the  drawings,  pointing  to            testimony  that   "as  built"   drawings,  as  the   term  is            technically  used, were  never prepared.   Yet  regardless of                                         -23-            whether the drawings technically  could be called "as built,"            Napco admitted supplying the drawings to Cambridge Plating in            the tech manual "[t]o show what was built."                      Perhaps,  given the  problems with the  system, the            accuracy  of  the  drawings  should  have  been  called  into            question  at this  time.   The  jury  was entitled  to  think            otherwise.  The system was extremely complex and the cause of            the  malfunction  could have  been  any  number of  problems,            including, as  Napco points  out, problems  of  design.   The            factfinder could reasonably conclude  on this record that the            probability the drawings were false was sufficiently low that            questioning  the accuracy  of the  drawings would  be low  on            Cambridge Plating's  (or Hunt's)  diagnostic checklist.   The            evidence was sufficient to support  a finding that the claims            were timely.   Nor was such  a finding against the  weight of            the evidence.                      2.  Special interrogatory.                      __  _____________________                      Napco  alternatively argues that a new trial should            be  granted  on  the  misrepresentation  counts  because  the            special interrogatory submitted to the jury on this point was            defectively  worded.    Over  Napco's  objection,  the  court            submitted interrogatory 1(b), which asked:  "Should plaintiff            Cambridge Plating reasonably have  known before June 22, 1987                                                                     ____            of defendant  Napco's failure  to install the  static mixer?"            (Emphasis in original.)                                         -24-                      Review  of  this  interrogatory  is  for  abuse  of            discretion.  See Frank Briscoe Co., Inc. v. Clark County, 857                         ___ _______________________    ____________            F.2d  606, 614 (9th Cir.  1988), cert. denied,  490 U.S. 1048                                             _____ ______            (1989).     Abuse   of  discretion  may   be  found   if  the            interrogatories are worded in such a way that they are likely            to  mislead or  confuse  the jury  or inaccurately  state the            issues.  Id.   Although Napco's argument has some  merit, the                     ___            district court did not abuse its discretion.                      Cambridge  Plating I  stated  that the  appropriate                      ____________________            test  for the  discovery rule  was whether  Cambridge Plating            "should  have known that  Napco might be  responsible for the            water  treatment system's  failing  performance."   Cambridge                                                                _________            Plating I, 991 F.2d at 29.  Napco points out that the opinion            _________            drew no specific distinction among the claims and argues that            it was improper to  direct the jury's focus onto  the failure            to  discover  the static  mixer  specifically.6   Napco  also            relies on  the  passage from  the opinion  stating that  "the            statute of limitations will  begin to run once the  plaintiff            has enough information to target the  defendant as a suspect,            though  not  necessarily  to  identify  the  defendant  as  a            culprit."  Id. at 29-30.  Under Napco's reading, all claims -                       ___            -  warranty,  negligence and  fraud  -- would  have  the same            trigger  date  under  the  discovery rule:    when  Cambridge                                            ____________________            6.  Napco  requested  an  interrogatory  that  asked  whether            plaintiff  "knew or should  have known of  its claims against            Napco before June 22, 1987."                                         -25-            Plating should  have thought  Napco might be  responsible for            the problems with the system.                      Cambridge Plating I did not  say that.  The opinion                      ___________________            does  not   address  the   question   specifically  of   what            information is needed to "target  the defendant as a suspect"            for  a breach  of  contract as  compared to  that information            needed to "target the defendant as a suspect" for fraud.  The            information needed to target the  defendant as a suspect  is,            in  fact,  different  for  each claim.    Although  Cambridge            Plating  may have had reason  to know that  Napco might be in            breach of its warranty when the  system did not perform up to            snuff  and Cambridge  Plating had  ruled out  operator error,            that  does not mean that Cambridge Plating had reason to know            that Napco  had deceived it.   Cf. Childers Oil Co.,  Inc. v.                            ________       ___ _______________________            Exxon Corp., 960 F.2d 1265, 1275 (4th Cir. 1992) (Luttig, J.,            ___________            dissenting) ("[A]lthough appellants knew or should have known            when  construction  of  the  station  began  that  Exxon  had            breached its contract, appellants did not have reason to know            of the possibility  of deception until  they learned in  1988            that  Exxon   had  always  intended  to   build  a  competing            station.").                      Under  Massachusetts  law, a  cause  of  action for            deceit accrues when  the plaintiff knew or  should have known            of  the misrepresentation.   See  Friedman v.  Jablonski, 358                                         ___  ________     _________            N.E.2d   994,  997   (Mass.  1976)   (cause  of   action  for                                         -26-            misrepresentation in the sale of real estate accrues when the            plaintiff  knew  or  reasonably  should  have  known  of  the            misrepresentation); see also Tagliente v. Himmer, 949 F.2d 1,                                ___ ____ _________    ______            5 (1st  Cir. 1991) ("The burden is  on the plaintiff to prove            that in  the exercise of  reasonable diligence she  could not            have  known of  the misrepresentation  within the  statute of            limitations.").7  In this  case, the misrepresentation was in            the  failure to disclose that  the static mixer  had not been            installed.    Thus, under  Massachusetts  law,  the cause  of            action for  misrepresentation did not  accrue until Cambridge            Plating  should have known that the static mixer had not been            installed.  The special interrogatory was not erroneous.8                      B.  Intentional Misrepresentation                      __  _____________________________                      Cambridge Plating  had the  burden of  proving that            Napco  had  engaged   in  an  intentional  misrepresentation.            Cambridge  Plating  alleged  in  its  complaint   that  Napco            fraudulently induced it to  purchase the wastewater system by            falsely  promising that  the  system would  contain a  static                                            ____________________            7.  Indeed, in accordance with that case law, Napco requested            an instruction  stating that the pertinent  issue was whether            "Cambridge Plating  knew or  should have known  of the  facts            giving rise  to its misrepresentation claims  more than three            years before it filed suit on June 22, 1990."             8.  Cambridge Plating  I was  concerned with the  question of                ____________________            whether  the  plaintiff had  acted  reasonably  diligently in            discovering the claim, rather than whether some theoretically            reasonable  investigation  would have  discovered  the claim.            Such a focus of inquiry does not require that distinctions be            drawn  among  the nature  of  the  claims  the plaintiff  has            asserted.                                         -27-            mixer.  At trial, however, the district court did not believe            that  Cambridge Plating had  presented sufficient evidence to            show  such fraudulent  inducement,  and did  not submit  that            theory  to  the  jury.   The  district  court,  nevertheless,            believed  that  Cambridge  Plating  had  presented sufficient            evidence to show  fraudulent nondisclosure9 and, accordingly,            charged  the  jury on  that  theory.   The  jury subsequently            found, as  framed in the special  interrogatories, that Napco            had  "intentionally conceal[ed]" its  failure to  install the            static mixer "while aware of the System's failure to meet the            applicable  discharge  limits"   and  was  thus   liable  for            intentional misrepresentation.                      Napco   raises  two  challenges  to  this  verdict.            First, it argues  that the evidence was  insufficient to show            fraudulent nondisclosure.  Second, it argues that, regardless            of  the evidence,  the intentional  misrepresentation verdict            was  tainted by a  defective jury  instruction.   It requests            that either judgment  be entered in its favor  or a new trial            granted.                      1.  Sufficiency of the evidence.                      __  ___________________________                      Napco argues  that there was  insufficient evidence            to support the  jury's finding  of fraudulent  nondisclosure.                                            ____________________            9.  The parties have used the terms  "wrongful nondisclosure"            and "intentional nondisclosure."   We use the term fraudulent            nondisclosure simply to distinguish the theory from negligent            nondisclosure.                                           -28-            To set aside a jury verdict and enter a  contrary verdict for            Napco, we  must  examine  the  evidence  in  the  light  most            favorable   to  Cambridge   Plating,  drawing   all  possible            inferences in its favor.   See Havinga v. Crowley  Towing and                                       ___ _______    ___________________            Transp.  Co., 24  F.3d 1480,  1483 (1st  Cir. 1994).   To set            ____________            aside  a  verdict and  remand for  a new  trial based  on the            evidence, Napco must  show that the  verdict was against  the            great  weight  of  the  evidence, viewed  in  the  light most            favorable  to  Cambridge  Plating,  or  would  work  a  clear            miscarriage  of justice.  See  id. at 1482-83.   Napco cannot                                      ___  ___            meet either standard.                       Napco's  sufficiency challenge  largely rests  on a            single  proposition:   that there  was insufficient  evidence            from  which a jury could conclude that Napco knew or believed            that  the static mixer was responsible  for the problems with            the system.10    In  Napco's words,  "every  piece  of  proof                                                  _____            bearing on the issue confirmed that Napco  never believed the                                                       _____            static mixer was necessary,  and in fact, believed the  mixer            might impair  system performance."   (Emphasis in  original.)                  ______            But  there was such evidence:   Napco designed  the system to            include  the  static  mixer.   It  knew  that  the mixer  was            originally included in the system to create the proper mixing            of the polymer solution,  without which flocculation would be                                            ____________________            10.  Napco  also argues  that the  materiality of  the static            mixer was not a  fact susceptible of actual knowledge.   That            argument is without merit.                                         -29-            hindered.   This  evidence, when  combined with  the evidence            that Napco knew the mixer had not been installed (so that the            omission  was not mere oversight) and that it knew the system            was  not  working, adequately  supports  the conclusion  that            Napco intentionally failed to tell Cambridge Plating that the            static mixer was missing, knowing it was responsible  for the            system's problems.                      Napco protests  that it  simply made a  "good faith            (and, at worst, negligent) professional judgment that a mixer            was  not material to the system."  After all, it argues, what            did it have to gain from omitting a $620 part from the system            or from hiding  a problem that could  be inexpensively cured.            Napco    relies   on   testimony   from   Triplett,   Napco's            subcontractor, Aliota,  Napco's  expert, and  Eason,  Napco's            manager of pollution abatement.  But Triplett's testimony and            Aliota's testimony  do not  much help  Napco.  Although  both            Triplett  and Aliota testified  that the use  of "elbows," or            pipe bends,  could create the necessary turbulence in lieu of            the  static mixer, Napco did not show that such "elbows" were            specifically  designed into the  system.  More  to the point,            Aliota, who  was not a  fact witness, did  not testify as  to            what the people  at Napco  were thinking in  leaving out  the            static  mixer,  and Triplett,  at  best,  had only  a  "vague            recollection"  of  "some discussion that  when the pumps came                                         -30-            on they hit the  two -- they hit a  90 and a T, and  that was            enough turbulence to mix with the polymer."                      And, unfortunately  for Napco, the  jury could have            found Eason's testimony  in a  number of respects  not to  be            credible.  His account of the events surrounding the decision            to omit  the static mixer  conflicted somewhat  with that  of            other Napco witnesses.  Triplett testified that the mixer was            never installed, while Eason said it was  installed but taken            out.   Eason's  testimony that  the static mixer  was omitted            because it was "minor" was damaged by his admission on cross-            examination that he  could not find even one  other component            depicted  on the drawings that  was "minor."   Napco does not            point to  other evidence presented to the  jury (for example,            contemporaneous memos showing that  Napco had made a judgment            that  the  mixer was  irrelevant)  that  corroborates Eason's            testimony.  In short,  the "professional judgment" theory was            largely  a  credibility  question.   In  light  of  the shaky            aspects  of  Eason's  testimony,  the jury  was  entitled  to            conclude that  Eason was  not believable and  that Triplett's            "vague   recollection"   was   not  enough   to   rebut   the            circumstantial  evidence  (particularly  the  drawings)  that            Napco knew the absence of the static mixer was the problem.                      Napco properly  makes  the point  that it  "strains            credulity" to suppose that Napco would expose itself  to such            drastic  liability  over a  $620 part  that  took one  day to                                         -31-            install.  Why Napco would do so is something of  a puzzle and            could  raise questions  about the  reliability of  the jury's            finding that Napco intentionally concealed the absence of the            mixer.   But Napco's behavior is not wholly inexplicable.  It            might  be explained in terms of the theory of "agency costs":            the  aberrant  conduct  occurred when  Napco's  interests  in            avoiding exposure to drastic liability diverged from those of            its  employees.   Cf.  AMPAT/Midwest, Inc.  v. Illinois  Tool                              ___  ___________________     ______________            Works, Inc., 896 F.2d 1035, 1043 (7th Cir. 1990) (Posner, J.)            ___________            (seemingly irrational  behavior on the part  of a corporation            may be  explained by  the "divergence of  objectives" between            the  corporation  and  its  employees).    For  example,  the            designer Eason  and the  project manager DeBisschop  may each            have  wished to avoid individual blame for the defects in the            system.                        Finally, Napco's current focus on plaintiff's proof            of scienter represents a shift  from its defense at  trial.11                                            ____________________            11.  At trial  Napco's principal defense was  that the system            worked  fine,  i.e.  that  there  never  was  any  breach  of                           ____            warranty.   Napco placed great reliance  on discharge reports            sent to the MWRA  from March 1985 to September  1985 (shortly            after the  system was  installed) indicating that  the system            was meeting  the discharge limits.   The importance  of these            reports  was hotly  contested.   Cambridge Plating  explained            away  these reports  by noting that  the materials  it plated            were  often  different,  using different  concentrations  and            types of  chemicals, and  that the  system could  handle some            jobs but not others.   Cambridge Plating also noted  that its            closed looping masked the inadequacies of the system, but did            not  solve them.  The finding that the system did not perform            as warranted is not challenged on appeal.                                         -32-            Its   defense  to  the  misrepresentation  count  principally            focussed  on whether the static mixer was in fact material to            the  problem.   Moreover, Napco's  defense to  the breach  of            warranty claim,  which rested in large part  on the assertion            that it  never had any  idea that Cambridge  Plating's system            was   not  meeting   the   effluent   requirements,  was   in            considerable   tension  with   any   defense   made  on   the            misrepresentation  claims  that,  once  it  heard  about  the            problems,  Napco made  a judgment  that the static  mixer was            unimportant.    Not  surprisingly,  then,  there  was  little            specific testimony that Napco seriously  considered Cambridge            Plating's complaints and then made a judgment that the static            mixer was the problem.   Napco principally chose to  take the            position at trial  that it did not know there  was a problem,            rather than that it thought there was a problem but the cause            was  something  else.   Since  there  was competent  evidence            showing that  Eason and  DeBisschop were contacted  about the                                                ____            problems with  the system on numerous occasions, and that the            system worked after the static mixer was installed, Napco was                          _____            vulnerable on the intentional misrepresentation count.                      Cambridge  Plating  needed   to  show   intentional            misrepresentation only by  a preponderance  of the  evidence.            See Compagnie De  Reassurance D'Ile De France  v. New England            ___ _________________________________________     ___________            Reinsurance  Corp., 57 F.3d 56, 72  (1st Cir.), cert. denied,            __________________                              _____ ______            116  S. Ct.  564  (1995).   Under  this standard,  there  was                                         -33-            sufficient  evidence of  fraudulent  nondisclosure,  and  the            district court was entitled to submit the theory to the jury.            The verdict was also  not against the weight of  the evidence            and a new trial is not warranted.                      2.  Instructional error.                      __  ___________________                      In   its  initial   charge,   the  district   court            instructed    the    jury     that    Napco's     intentional            misrepresentation  was  in its  "silence."12    It instructed            that  "[t]he question to  be decided  here is  whether .  . .            [the] defendant  willfully concealed from  the plaintiff  the            absence of  the  static mixer  when  it knew . . .  that  the            discharge limits were not being met and that the inclusion of            the static mixer would,  at least to some extent,  enable the            system  to  perform as  it  was  intended."   Following  this            initial charge, plaintiff's  counsel requested an instruction            specifying  that materiality  was to  be measured  against an            objective standard.  In response,the court gave the following            supplemental instruction:                                            ____________________            12.  The charge was:                                   The fraud  is  in the  silence, you  see,                      that  characterizes  the  conduct of  the                      defendant; that is, their failure to tell                      the  plaintiff  of  the  absence  of this                      static   mixer   while  aware   that  the                      discharge limits were not being met.  You                      see, that's  when the  duty arises.   And                      that's    when   the    concealment,   if                      intentional,    is     what    we    call                      "actionable,"  that  is,  a  basis  for a                      lawsuit.                                         -34-                      [I]n discussing the state of  mind of the                      defendant with regard  to the  importance                      of the static  mixer to the system .  . .                      the standard is objective.  It's not what                      the defendant did or did not subjectively                      think  about  it.    It's  what  would  a                      reasonable  manufacturer or  seller under                      the same circumstances have thought about                      it.            Napco argues  that this  instruction "conflated the  torts of            intentional   and   negligent   misrepresentation"  and   was            "manifestly  erroneous."13   In  Napco's view,  it cannot  be            held liable  unless it  actually knew  the  static mixer  was            material.                      The  standard under  which we review  this argument            depends upon whether Napco  properly preserved it.  Cambridge            Plating protests  that Napco has not  preserved this argument            because it failed to lodge a proper objection before the jury            retired to  consider its verdict.  Under  Fed. R. Civ. P. 51,            objections  must "stat[e] distinctly  the matter  objected to            and the grounds of  the objection."  Fed. R. Civ. P.  51.  An            objection  based on  one ground  does not  preserve appellate            review of a different ground.  See Wells Real Estate, Inc. v.                                           ___ _______________________            Greater Lowell Bd. of Realtors, 850 F.2d 803, 809 (1st Cir.),            ______________________________            cert. denied, 488 U.S. 955 (1988).            _____ ______                                            ____________________            13.  This  point is  important because  lost profits  are not            compensable    for    negligent    misrepresentation    under            Massachusetts  law,   see  Section  IV-D,  and  lost  profits                                  ___            represent   the   bulk  of   the   damages   in  this   case.            Additionally, Napco claims that this instruction tainted both            the  willful  breach of  warranty  verdict  and the  district            court's Chapter 93A decision.                                         -35-                      Napco states that  the instruction  was given  over            its "opposition."   But Napco's objection to the  charge only            identified three  problems with the instruction,  and not the            issue it now raises.  Napco complained that (1) the complaint            did  not fairly  disclose the  nondisclosure theory,  (2) the            theory was not supported  by the evidence, and (3)  there was            no obligation on  the part of the seller  to disclose.  Napco            did not object that the instruction was  incorrect because it            failed to make clear that actual knowledge of materiality was            required  for  liability,  nor  did  Napco  object  that  the            instruction     conflated    negligent     and    intentional            misrepresentation.      Thus,   Napco  failed   to   "state[]            distinctly"  the  argument  it  makes  now,  i.e.,  that  the                                                         ____            instruction imposed an incorrect scienter requirement.                      Napco urges  that colloquies occurring  days before            the charge satisfy Rule 51.  Without considering whether such            colloquies  may   be  used  to   determine  compliance,   the            colloquies Napco  directs us to  do not contain  any specific            statement that Napco needed to have "actual knowledge" of the            static mixer's materiality to  be liable.  Napco's contention            that this lack  of specificity should be  excused because the            fraudulent  nondisclosure theory  was "novel"  and came  as a            "surprise" to counsel is contrary to what the record shows.14                                            ____________________            14.  Napco  characterizes  the  nondisclosure  theory  as  an            "eleventh-hour reformulation" which was "improvised literally            at the final hour -- at the end of the ninth day of trial and                                         -36-                      In  any  event, Napco  concedes  that  the district            court charged the  jury correctly on the scienter  element of                                    _________            intentional misrepresentation during its initial charge.   It            was only  after plaintiff objected to  the charge, suggesting            that  the court make clear that materiality be viewed from an            objective point of view, that the court gave the supplemental            instruction.  The supplemental instruction thus created a new                                                                      ___            issue,  independent  of   the  supposed  surprise  over   the            fraudulent nondisclosure theory.  Despite this,  Napco's only            objections to the supplemental charge related to the charging            of the fraudulent nondisclosure  theory generally, not to the            new  ambiguity the  instruction  created  over  the  scienter                                            ____________________            on  the eve  of closing  arguments" to  which counsel  had no            "foreshadowing."  But as early as  the third day of trial the            court  had   asked  counsel  to  research   the  question  of            nondisclosure.  The nondisclosure theory  was foreshadowed on            the   fifth   day  of   trial   where,   in  discussing   the            misrepresentation   count,   the   court  stated   that   the            plaintiff's theory was that "upon learning of  the absence of            the  static mixer,  it  became  defendant's  duty to  do  two            things:  first, to  install  it; and  secondly,  to tell  the            plaintiff that it  wasn't in."   On the eighth day  of trial,            which was a Friday, the district  court asked counsel whether            "the  lack of disclosure or  the absence of  the static mixer            [could] serve as  a basis of a misrepresentation  and fraud,"            and asked them to think about the issue over the weekend.  On            the  ninth day of trial, the  court announced its view that a            fraudulent  nondisclosure   theory  might  be  a   basis  for            liability.   After having a chance overnight  to consider the            objections  it  would  lodge  against  the  district  court's            theory, Napco  lodged basically the same  objections it later            gave  to  the supplemental  instruction.   In  light  of this            record, we do not agree that Napco's failure to object should            be excused because the  fraudulent nondisclosure theory was a            surprise.                                         -37-            requirement.   On  the question  of scienter,  Napco remained            silent.15                      Absent  a proper  objection,  review is  for  plain            error.  On  this record, the  plain error hurdle is  too high            for Napco to overcome.  "Plain error [ ] is a rare species in            civil litigation."  Gay  v. P.K. Lindsay Co., Inc.,  666 F.2d                                ___     ______________________            710,  712 n.1  (1st Cir.  1981), cert.  denied, 456  U.S. 975                                             _____  ______            (1982); see also Clausen  v. Sea-3, Inc., 21 F.3d  1181, 1196                    ___ ____ _______     ___________            (1st  Cir. 1994)  ("[T]he plain  error standard, high  in any            event,  . .  . is  near its  zenith in  the Rule  51 milieu."            (internal quotations omitted)).  "[I]t applies only where the            error results in a clear  miscarriage of justice or seriously            affects  the  fairness,  integrity or  public  reputation  of            judicial proceedings."   Clausen,  21 F.3d at  1196 (internal                                     _______            quotations omitted).  Napco cannot show on this record that a            miscarriage of  justice  will  result if  the  error  is  not            corrected.  There was sufficient evidence adduced at trial to            conclude  that  Napco  knew that  the  static  mixer  was the            problem  with the system.  Nor can  Napco show that the error            seriously affects the integrity  or impairs public confidence                                            ____________________            15.  Jerlyn  Yacht  Sales,  Inc.  v.  Wayne  R.  Roman  Yacht                 ___________________________      _______________________            Brokerage, 950 F.2d  60 (1st  Cir. 1991), a  case upon  which            _________            Napco  places great  reliance,  is inapplicable.   In  Jerlyn                                                                   ______            Yacht  Sales there was at  least some request  that the court            ____________                     ____            include  an  instruction  on  the specific  issue  raised  on            appeal.  Id. at 64.  There was no such request here.  Despite                     ___            Napco's  claims to  the contrary,  this  is a  garden variety            failure to object situation.                                         -38-            in   the   proceedings.     Under   the   circumstances,  the            supplemental  instruction  did  not  reach  the "pinnacle  of            fault" envisioned by the plain error standard.  See id.16                                                              ___ ___                      C.  Willful Breach Of Warranty                      __  __________________________                                            ____________________            16.  Because  Napco cannot satisfy the discretionary elements            of the plain error  standard, we need not decide  whether the            instruction was  "plainly" incorrect.   Cf. United  States v.                                                    ___ ______________            Olano, 507 U.S.  725, 734 (1993)  ("Plain is synonymous  with            _____            clear or,  equivalently, obvious";  the error must  be "clear            under  current  law"  (internal  quotation  marks  omitted)).            Napco argues  that Massachusetts law is  clear that knowledge            of  materiality  is  required.   According  to  Napco,  under            Massachusetts law,  "[a]bsent  a showing  that the  defendant            knew that his  statement was  false, and  intended to  induce            ____                                      ________            reliance,  the tort  of intentional  misrepresentation simply            does  not lie."  (Emphases  in original.)   Napco argues that            there must be an  "intent to deceive" to be liable for fraud.            But Massachusetts  fraud law does  not require an  "intent to            deceive."  Snyder v. Sperry & Hutchinson Co., 333 N.E.2d 421,                       ______    _______________________            428 (Mass. 1975).   Moreover, "knowledge  of falsity" in  the            sense that  Napco urges --  that defendant actually  know the            statement  is false -- is  also probably not  required.  This            court  has said that "[n]othing is clearer than the fact that            under Massachusetts  law, plaintiff need not  prove that [the            defendant] knew  his statement  to be false."   Nickerson  v.                                                            _________            Matco  Tools Corp., 813 F.2d 529, 530 (1st Cir. 1987) (citing            __________________            Powell  v.  Rasmussen,  243  N.E.2d  167,  168  (Mass.  1969)            ______      _________            (holding that  knowledge or reckless disregard  of falsity is            not required for an action of intentional  misrepresentation;            it is enough if  representation was false and susceptible  of            actual  knowledge)); see  also  VMark Software,  Inc. v.  EMC                                 ___  ____  _____________________     ___            Corp.,  642 N.E.2d 587, 593 n.9 (Mass. App. Ct. 1994) (same);            _____            Zimmerman  v. Kent, 575 N.E.2d  70, 74 (Mass.  App. Ct. 1991)            _________     ____            (same).   The case upon which Napco principally relies, Danca                                                                    _____            v. Taunton Savings  Bank, 429 N.E.2d 1129, 1133 (Mass. 1982),               _____________________            does list "knowledge  of falsity"  as an element.   But  this            does not  help Napco.  Either there is lack of clarity in the            Massachusetts case law, see In re Friedlander, 170 B.R.  472,                                    ___ _________________            476-78  (Bankr. D.  Mass.  1994) (noting  the confusion),  or            "knowledge of falsity" does  not mean what Napco urges.   See                                                                      ___            Roadmaster Indus., Inc.  v. Columbia Mfg.  Co., Inc., 893  F.            _______________________     ________________________            Supp.  1162, 1176  (D.  Mass. 1995)  ("knowledge of  falsity"            under Danca  does not  require that defendant  "actually knew                  _____            its statement was false").                                         -39-                      Napco's    warranty    excludes    liability    for            consequential damages.  By its terms, this damages limitation            provision    bars    Cambridge   Plating    from   recovering            consequential damages and,  under usual circumstances,  would            be  enforceable.   See  Mass. Gen.  L.  ch. 106,    2-719(3);                               ___            Deerskin  Trading  Post, Inc.  v.  Spencer  Press, Inc.,  495            _____________________________      ____________________            N.E.2d 303,  306 (Mass.  1986).  Massachusetts  law provides,            however,  that  the  damages  limitation   provision  is  not            enforceable  if  Napco  either  willfully  repudiated or  was            willfully  dilatory in  performing its  warranty obligations.            Cf. Canal Elec.  Co. v. Westinghouse Elec. Corp.,  548 N.E.2d            ___ ________________    ________________________            182,  186  (Mass.  1990).   The  jury  concluded  that  Napco            willfully  repudiated  or  was  dilatory  in  performing  its            warranty  obligations.   Napco  claims this  finding was  not            supported  by the  evidence  and, in  any event,  was fatally            tainted by the district  court's "state of mind" supplemental            instruction.                      These  arguments  are  worth  only  brief  comment.            Napco  concedes that evidence it knew the static mixer was to            blame "might  well amount  to 'willful repudiation.'"   Since            Cambridge Plating  adduced sufficient evidence of  this fact,            the willful  breach of  warranty  verdict stands.17   As  for                                            ____________________            17.  Other  evidence is  also relevant  to this  count.   For            example,  once Cambridge Plating  discovered that  the static            mixer was  missing, its attorney wrote  to Napco's president,            Herbert Fishman,  asking for  "an amicable resolution"  and a            "meeting" to  "explore the  prospects of such  a resolution."                                         -40-            Napco's  claim  of  instructional  error,  Napco's  challenge            suffers  the  same   fate  as  it  did  on   the  intentional            misrepresentation count:  there was no objection and no plain            error.                      D.  Chapter 93A                      __  ___________                      Upon making independent  findings of fact following            the  jury verdict,  the district  court held  that  Napco had            violated  Chapter  93A   and  that   punitive  damages   were            warranted.   Napco  challenges both  aspects of  the district            court's decision.  Review of the district court's findings of            fact is for clear error, see Fed. R. Civ. P. 52(a); review of                                     ___            its  conclusions of  law  is de  novo.   Pullman-Standard  v.                                         __  ____    ________________            Swint, 456 U.S. 273, 287 (1982).            _____                      1.  Chapter 93A liability.                      __  _____________________                                            ____________________            Napco ignored the letter and a meeting was never held.  Napco            disparages this evidence as a "red herring[]" saying that any            inference that Napco refused to meet "misreads" the testimony            Fishman gave about  the letter  and that, in  any event,  the            letter was  turned over  to lawyers  and  therefore sheds  no            light on  whether Napco  willfully  repudiated its  warranty.            Fishman's testimony on this point, however, is hardly helpful            to  Napco.  Fishman testified that  he personally ignored the            letter because it raised only a "minor" issue.  By "minor" he            meant  that there  wasn't enough  money involved  to  get his            attention.    At  the  time,  Fishman  apparently  had  other            problems with a "dollar volume  [that] was much greater  than            what this was here" and "people were supposedly handling this            for [him]."   Napco does not seriously dispute that, whatever            Fishman thought about the  problem, his "people" did nothing.            Napco's awareness  of the  problem, its consideration  of its            scope  as "minor,"  and  its failure  to respond,  support at            least to some degree an inference of willful repudiation.                                                             -41-                      Section  2  of Chapter  93A  makes  it unlawful  to            engage  in  "unfair  methods  of competition  and  unfair  or            deceptive acts or practices."   Mass. Gen. L. ch.  93A,    2,            11  (section 11  makes section  2 applicable  to businesses).            Perhaps by  design, the  dimensions of Chapter  93A liability            are difficult  to discern  with precision.   Neither "unfair"            nor "deceptive"  is specifically defined in  the statute; nor            has  the case law supplied  precise definitions.   There is a            rubric:   "The objectionable conduct  must attain a  level of            rascality that would  raise an eyebrow  of someone inured  to            the rough and  tumble of the world of commerce."   Levings v.                                                               _______            Forbes & Wallace, Inc.,  396 N.E.2d 149, 153 (Mass.  App. Ct.            ______________________            1979); see also  Quaker State Oil  Refining Corp. v.  Garrity                   ________  ________________________________     _______            Oil Co., Inc., 884  F.2d 1510, 1513 (1st Cir.  1989) (quoting            _____________            Levings).   But, as the  Supreme Judicial Court  has recently            _______            observed,  the  rhetoric of  "rascality"  is "uninstructive."            Massachusetts Employers Ins. Exch. v. Propac-Mass, Inc.,  648            __________________________________    _________________            N.E.2d 435, 438 (Mass. 1995).                      Chapter 93A  liability may exist if the defendant's            conduct falls "within  at least the penumbra of  some common-            law, statutory,  or other established concept  of unfairness"            or is "immoral, unethical,  oppressive or unscrupulous."  PMP                                                                      ___            Assoc.,  Inc. v.  Globe Newspaper  Co., 321  N.E.2d 915,  917            _____________     ____________________            (Mass. 1975).   Thus, proof of  a common law  tort, while not            necessary   for  liability,  see  Massachusetts  Farm  Bureau                                         ___  ___________________________                                         -42-            Federation, Inc.  v. Blue  Cross of Massachusetts,  Inc., 532            ________________     ___________________________________            N.E.2d 660, 664 (Mass. 1989)  ("a violation of G.L. c. 93A,              11, need not  be premised  on a violation  of an  independent            common  law  or statutory  duty"),  may be  sufficient.   See                                                                      ___            Anthony's  Pier Four, Inc. v. HBC Assoc., 583 N.E.2d 806, 822            __________________________    __________            (Mass.  1991) (breach  of  implied contractual  duty of  good            faith  and fair dealing gave  rise to Chapter 93A liability);            VMark Software, Inc. v. EMC Corp., 642 N.E.2d 587, 594 (Mass.            ____________________    _________            App. Ct. 1994)  (intentional misrepresentation provided basis            for Chapter 93A liability).                      Under  this  precedent,  Napco's   liability  under            Chapter  93A follows  almost  as a  matter  of course.    The            district court appropriately found that:                      NAPCO,  which  knew  throughout that  the                      static mixer was  not installed,  learned                      that  the system  was  not performing  as                      warranted and nevertheless  1) failed  to                      reveal  knowledge  within its  possession                      which  would  have  stemmed the  tide  of                      damages   being   caused   by   its   own                      misconduct and 2) misdirected plaintiff's                      attention to operator error as the source                      of the System's shortcomings.            Cambridge Plating II,  876 F.  Supp. at 337.   This  finding,            ____________________            which was not clearly erroneous, supports the conclusion that            Napco behaved both "deceptively" and "unfairly" under Chapter            93A.18                                            ____________________            18.  Because the  Chapter 93A claim is  predicated on conduct            amounting  to an  intentional  misrepresentation and  willful            breach of  warranty, Napco's limitation  of damages provision            does  not bar consequential damages on this count.  Cf. Canal                                                                ___ _____                                         -43-                      Moreover,  Napco's argument  --  that  Chapter  93A            liability is  inappropriate because its decision  to omit the            static mixer was simply a professional judgment -- misses the            mark.  Even  if at  the time of  installation Napco  believed            that the  probability was small  that the static  mixer would            make   a  difference   to  the   system's  performance,   the            probability was  large enough  that it  should not have  been            ignored once Napco learned  that Cambridge Plating was having            problems.   Yet even  after Cambridge Plating  had complained            about  the  system's   performance,  Napco  never   seriously            reconsidered its professed  judgment about the  static mixer.            Napco  also knew  all along  that it  had provided  Cambridge            Plating with inaccurate  drawings.  So  Napco also knew  that            Cambridge Plating  would be  handicapped in reaching  its own            conclusion  on the matter.   Where Napco knew  the system was            not performing as warranted, Napco was not free to ignore the            fact that  Cambridge Plating might benefit  from knowing that            the  mixer   had  been  omitted.     Napco's  silence  became            sufficiently "unscrupulous" to fall within a  "penumbra . . .            of  [an] established concept of unfairness."  PMP Assoc., 321                                                          __________            N.E.2d  at 917.   We  therefore affirm  the district  court's            judgment of liability for single damages under Chapter 93A.                      2.  Punitive damages.                      __  ________________                                            ____________________            Elec., 548 N.E.2d at 186.            _____                                         -44-                      We  part company  with  the district  court on  the            question of  punitive damages.  Punitive  damages are awarded            only  for "willful  or knowing"  violations of  section 2  of            Chapter 93A.   Mass. Gen. L. ch. 93A,    11 (providing for up            to three, but  not less  than two, times  actual damages  for            willful  or knowing  violations  of section  2).   Here,  the            district court  imposed double  damages based  on essentially            the same finding upon  which it imposed substantive liability            under Chapter 93A:   that  Napco failed to  disclose what  it            knew  about  the  static  mixer  while knowing  that  it  was            material  to the problem.   See Cambridge Plating  II, 876 F.                                        ___ _____________________            Supp.  at  346.   At first  blush,  this conclusion  may seem            sound,  given  the  "willful  or  knowing"  language  of  the            statute.  Napco's conduct,  which also amounts to intentional            misrepresentation (and  willful breach of  warranty), clearly            involves a certain level of deliberateness.                        But shades of culpability are supposed to  matter            in applying  the punitive  damages provision of  the statute.            See Kansallis Fin. Ltd.  v. Fern, 659 N.E.2d 731,  738 (Mass.            ___ ___________________     ____            1996)  ("[T]he Legislature  envisaged multiple  damage awards            against those defendants with  a higher degree of culpability            than that sufficient to ground simple liability."); Heller v.                                                                ______            Silverbranch Constr.  Corp.,  382 N.E.2d  1065,  1070  (Mass.            ___________________________            1978)  (only  "callous   and  intentional  violations"  merit            multiple damages);  VMark Software, 642 N.E.2d  at 596 (court                                ______________                                         -45-            refused  to multiply damages in intentional misrepresentation            case  stating  that  section   11  multiple  damages  are  an            "extraordinary remedy"  not applicable  to a case  of "dogged            bumbling");  cf. International  Fidelity Ins. Co.  v. Wilson,                         ___ ________________________________     ______            443  N.E.2d  1308,  1317  (Mass.  1983)  ("The  Massachusetts            legislature  consciously enacted  a rule  whereby defendant's            [Chapter  93A] liability  is measured  by the  degree  of his            culpability.").                      Liability under  Chapter 93A for  conduct amounting            to intentional misrepresentation (or breach of warranty  like            that here) does  not automatically trigger  punitive damages.            There must be something more.  See VMark Software, 642 N.E.2d                                           ___ ______________            at 595 (liability for intentional misrepresentation supported            Chapter 93A liability, but  misrepresentations were not "made            so 'knowingly' as to warrant the punitive sanctions of double            damages under Chapter  93A"); International Totalizing  Sys.,                                          _______________________________            Inc.  v. Pepsico, Inc., 560  N.E.2d 749, 757  (Mass. App. Ct.            ____     _____________            1990) (defendant  liable for "knowing"  misrepresentation and            failure to disclose  also violated Chapter  93A, but was  not            liable  for  multiple  damages  because  of  the  absence  of            "willful  or  intentional  conduct   within  the  purview  of            [Chapter 93A]" (internal quotation omitted)).                      The district court  appropriately recognized  these            principles.  See Cambridge  Plating II, 876 F. Supp.  at 346.                         ___ _____________________            It   believed,  however,  that  its  findings  supported  the                                         -46-            conclusion that Napco's conduct was sufficiently egregious to            warrant a punitive sanction.  We do not think so.  If Napco's            conduct was fraud  and a willful repudiation  of warranty, it            was only marginally  so.   Napco had reason  to believe  that            operator error was the cause of Cambridge Plating's problems.            The system, after all, had worked for  a period of time after            its  installation.   Indeed,  Cambridge  Plating itself  took            nearly a  year and a half to install the static mixer once it            found it was  missing.  Napco did not stand  to profit by its            actions,  and   there  was  no  evidence   that  Napco  acted            maliciously towards Cambridge  Plating or remained  silent so            that  it  could watch  Cambridge  Plating  go into  distress.            Rather,  as the district court  noted, this was  a case where            Napco simply ignored the problem hoping that it would somehow            resolve itself.  Id.;  cf. VMark Software, 642 N.E.2d  at 596                             ___   ___ ______________            ("The inept blend of  hopeful dissembling and dogged bumbling            displayed by  VMark does  not, however, reflect  the culpable            state of mind required for imposition of   11's extraordinary            damage penalty." (internal quotation omitted)). This evidence            does not rise to the level of callousness or meretriciousness            that  would justify  multiple  damages.19   See Wasserman  v.                                                        ___ _________                                            ____________________            19.  That Napco  raises a legitimate argument  that it should            not be  liable for  multiple damages  does  not undercut  the            finding  of   liability  for  intentional  misconduct.    The            considerations discussed above mitigate  Napco's culpability;            they do not excuse Napco.  See VMark Software, 642  N.E.2d at                                       ___ ______________            596   (intentional   misrepresentation   "is  surely   market            disruptive  to  the  same  extent  whether  the  promisor  is                                         -47-            Agnastopoulos, 497 N.E.2d 19, 24-25 (Mass. App. Ct.) (setting            _____________            aside award of multiple damages because facts as found by the            trial  court  did  not  rise  to  the  "purposeful  level  of            culpability" contemplated  by the  statute),  rev. den.,  499                                                          ____ ____            N.E.2d 298 (Mass. 1986).                                     IV.  Damages                      The  district  court   awarded  Cambridge   Plating            $3,363,120  in  compensatory  damages  for  the  Chapter  93A            violation.  The district  court then remitted the $12,183,120            jury award on the common law counts to $4,344,120,  reasoning            that no  rational jury  could award  more than  $4,161,000 in            lost profits.20  See  Cambridge Plating III, 890 F.  Supp. at                             ___  _____________________                                            ____________________            genuinely  hopeful   of  fulfilling  his   contract,  or   is            deliberately  deceptive  and  entirely  disdainful  of  [its]            commitments."); accord  AMPAT/Midwest, Inc. v.  Illinois Tool                            ______  ___________________     _____________            Works,  Inc., 896 F.2d  1035, 1044 (7th  Cir. 1990) (punitive            ____________            damages  not awarded,  but  failure to  disclose defects  was            deemed  to  be fraud,  even  though  the court  indulged  the            assumption  that (1) there was some reason to believe that it            was  the plaintiff's  installation,  rather than  the defect,            that was responsible for  the problem, and (2) the  defendant            honestly believed  that the  plaintiff was to  blame; "[e]ven            deep  conviction  of the  rightness of  one's cause  does not            justify fraud").            20.  The  $183,120  difference  between the  amount  of  lost            profits awarded  and the  total damages  awarded on  the jury            counts  represents   the  MWRA  fine,  the   attorneys'  fees            Cambridge Plating  incurred in connection with  the fine, and            the cost of  the static  mixer.  Also,  the district  court's            lost profits award for  the 93A count was $981,000  less than            the lost profits  awarded after  the remittitur  of the  jury            award because  the court believed  that the $981,000  in lost            profits  was   an  amount  over  which   fact  finders  might            reasonably differ.   Cambridge Plating III,  890 F. Supp.  at                                 _____________________                                         -48-            59.   Napco  argues  that the  award  of lost  profits  still            "exceeds any  rational appraisal  or estimate of  the damages            that could be based upon the evidence."  See Eastern Mountain                                                     ___ ________________            Platform Tennis, Inc. v.  Sherwin-Williams Co., Inc., 40 F.3d            _____________________     __________________________            492,  502  (1st Cir.  1994),  cert. denied,  115 S.  Ct. 2247                                          _____ ______            (1995).  Napco argues  that the entire award of  lost profits            should be set  aside or  be further remitted  to reflect  (1)            Cambridge  Plating's  failure  to  mitigate  damages and  (2)            Cambridge Plating's failure to  account for selling,  general            and administrative ("SG&A") expenses associated with the lost            profits.   Napco  separately  argues that  the award  of lost            profits for the negligent misrepresentation count must be set            aside  because   such  damages   are  not   cognizable  under            Massachusetts law.                      A.  Sufficiency Of The Evidence On Lost Profits                      __  ___________________________________________                      Cambridge  Plating had  the burden  of providing  a            reasonably  certain  basis to  believe that  Napco's wrongful            conduct caused  the loss  of anticipated profits,  cf. Augat,                                                               ___ ______            Inc. v. Aegis,  Inc. (Augat  I), 565 N.E.2d  415, 421  (Mass.            ____    _______________________            1991) (plaintiff  must prove  losses would not  have occurred            but for  the wrongful  conduct), and proving  with sufficient            certainty  the amount  of  those anticipated  profits.   "The            nature of the business  or venture upon which the anticipated            profits are claimed must  be such as to support  an inference                                            ____________________            59.                                         -49-            of definite profits grounded upon  a reasonably sure basis of            facts."   Augat, Inc.  v. Aegis, Inc. (Augat  II), 631 N.E.2d                      ___________     _______________________            995, 998 (Mass. 1994) (internal quotations omitted).  Because            every  calculation  of  lost  profits  has  some  element  of            uncertainty, a plaintiff need not calculate lost profits with            "mathematical exactness."  Id.   But they cannot  be "remote,                                       ___            speculative  [or]  hypothetical."   Id.    Napco argues  that                                                ___            Cambridge Plating failed to establish the critical connection            between  the   defective  wastewater  treatment   system  and            Cambridge Plating's inability  to do plating  work.  On  this            point Napco is wrong.                      Cambridge Plating  provided evidence  of  causation            principally through  three witnesses  -- Mssrs.  Tosi, Moleux            and Joseph  Finn, Cambridge  Plating's damages expert.   Tosi            testified that, in the  plating business, customers insist on            quick  turn-around time.  He  also testified that because the            wastewater   treatment  system   was  not   working  properly            Cambridge Plating had to  employ closed looping, which slowed            down  the  amount  of  wastewater  fed  through  the  system,            consequently  slowing  down  the  plating  process.    Moleux            confirmed that closed looping  "required Cambridge Plating to            either partially  or totally shut down."   Additionally, Tosi            testified that the zinc  plating operation closed because the            system was  unable to remove  sufficiently the  contaminants.                                         -50-            Further,  Debisschop directly linked the wastewater treatment            system to a plating operation's profitability.                      Finally, Finn testified that until 1985, the  first            full  year the  wastewater treatment system  was operational,            Cambridge Plating  had generally  experienced an increase  in            sales.   He also  testified that for the  years following the            installation  of the  system,  Cambridge  Plating's  revenues            decreased  from approximately  $6.2 million  in 1985  to $4.8            million in  1989, and net income  declined from approximately            $284,000 in 1985 to  a net loss of approximately  $131,000 in            1989.  During  this time  period, the plating  industry as  a            whole averaged modest growth.                      Cambridge  Plating  provided  a simple  before-and-            after financial picture  of an established company.   It also            provided  testimony  from people  expert  in  plating and  in            wastewater treatment  that the difference in  profits was due            to  a slowdown  in production  and failure  to meet  effluent            limitations,  both  of  which  could be  traced  back  to the            malfunctioning wastewater  treatment system.  Napco chose not            to  present  an expert  of  its own  to break  the connection            between the financial decline  and the malfunctioning system.            Instead,  Napco was content to try to poke holes in Cambridge            Plating's damages  testimony.  "This [was]  a risky strategy,            and it  failed."  AMPAT/Midwest,  896 F.2d at  1046 (internal                              _____________                                         -51-            citation  omitted).     There  was  sufficient   evidence  of            causation to support an award of lost profits.                      B.  Mitigation                      __  __________                      "The general principle is well settled that a party            cannot recover for harms  that its own reasonable precautions            would have avoided."  Knapp Shoes, Inc. v. Sylvania Shoe Mfg.                                  _________________    __________________            Corp.,  72 F.3d  190, 204-05  (1st  Cir. 1995),  petition for            _____                                            ________ ___            cert.  filed, 64 U.S.L.W. 3709 (U.S. April 11, 1996) (No. 95-            _____  _____            1650).   Cambridge Plating did  not install the  static mixer            until 15 months after it knew in February 1989 that the mixer            was  missing.    Installation  took one  day.    This was  an            inexcusable failure to mitigate damages.                      The  district  court   recognized  that   Cambridge            Plating had  failed to mitigate  its damages.   See Cambridge                                                            ___ _________            Plating  II, 876  F.  Supp.  at 345  ("Once  Moleux  informed            ___________            Cambridge  Plating that the System was missing a vital part .            . . . [t]he obvious next step was to buy and install a  mixer            immediately.").   Nevertheless, in its Chapter  93A decision,            the district court awarded damages for both 1990 and 1991 and            then discounted them.  It also did  not adjust the jury award            in  its  remittitur  to  take  account  of  this  failure  to            mitigate.  We agree with  Napco that both the Chapter 93A and            the remittitur rulings were in error.                      Cambridge Plating argues that it should be absolved            for its failure to mitigate after February 1989 because there                                         -52-            would have, in any  event, been recovery time.   The recovery            time,  it  says, was  needed  in order  to offset  the damage            resulting from its new  reputation as a polluter, and  to get            word  out to customers  that it could fill  their needs while            complying  with the  environmental  regulations.   This is  a            plausible theory.  But Cambridge Plating did  not provide the            type or  quantity of proof that Massachusetts law requires to            support damages for this "reputational"  injury sufficient to            overcome its failure to mitigate.                      Cambridge   Plating  points  to  no  evidence  from            customers  that it  would  not  have  been  able  to  recover            business  because of its  reputation as a polluter.   The one            customer who  testified, Alfred Jacques  of General Electric,            did  not  support  Cambridge  Plating's  reputational  injury            theory.  The   evidence  Cambridge Plating relies  upon --  a            statement from DeBisschop agreeing  that companies "tend"  to            lose  business when they  are found  to be  polluters, Tosi's            testimony   that  Cambridge   Plating  became  "known   as  a            polluter,"   and  an  advertisement  from  Cambridge  Plating            touting  its  system  --   provides  scant  support  for  the            proposition  that  there was  any  reputational  harm.   This            evidence  of  reputational injury  is  also  in tension  with            Finn's  testimony that  if  Cambridge Plating  had a  working            wastewater treatment  system,  it  could  have  replaced  its            business "almost immediately."  Even Cambridge Plating states                                         -53-            in its brief  that "demand  for plating  and metal  finishing            services  such as  those  provided by  Cambridge Plating  was            strong  throughout  the  late   1980s  and  to  the  time  of            trial."21                      On  this  record,  Cambridge  Plating's  theory  of            reputational  injury is,  to  say  the least,  "speculative."            Augat II,  631 N.E.2d at 998.  Cambridge  Plating can find no            ________            comfort in the case  law that allows for some  uncertainty in            proving damages  in tort  cases.   See,  e.g., Computer  Sys.                                               ___   ____  ______________            Eng., Inc. v. Qantel Corp., 740 F.2d 59, 67 (1st Cir.  1984).            __________    ____________            Those cases  reason that some uncertainty  is allowed because            it has been created by the defendant's wrongful conduct.  Id.                                                                      ___            Here,  however,  the  uncertainty  for the  period  following            February 1989  was largely caused by  Cambridge Plating's own            wrongful conduct in failing to mitigate.                       Still, Napco has conceded  that the period  through            November 1989, or nine  months after Cambridge Plating should            have  installed the  static mixer,  is a  reasonable recovery            period.  In the absence of evidence showing Cambridge Plating            mitigated  its damages, the  outer limit for  such damages on            the record before  the trial  court was November  1989.   Cf.                                                                      ___                                            ____________________            21.  Although  Cambridge  notes that  its sales  continued to            decline after May  1990, the booming economic  times had come            to an end by then.  Indeed, the declining sales following the            installation of the static mixer might even suggest  that the            missing  static  mixer  had  nothing  to  do  with  Cambridge            Plating's financial problems.                                         -54-            Augat II, 631 N.E.2d at 1000 (reducing period of lost profits            ________            to six months).                      We also  believe that both the  Chapter 93A damages            and the  remittitur should equally take  account of Cambridge            Plating's  failure  to mitigate.    We  therefore vacate  the            district  court's award of Chapter 93A  damages and remand to            eliminate all damages occurring  after November 1989; we also            vacate  the order  of remittitur  and remand  with directions            that  the  district  court  grant  a  further  remittitur  to            eliminate  damages occurring  after  November 1989.   See  28                                                                  ___            U.S.C.   2106  (appellate court  may vacate any  judgment and            remand to require  such further proceedings as  may be just);            Anthony v. G.M.D. Airline Servs., Inc., 17 F.3d 490, 495 (1st            _______    ___________________________            Cir. 1994)  (remanding with  directions to district  court to            grant  a remittitur).22  Of course,  plaintiff has the option            to seek a new trial on damages in lieu of the remittitur.                      C.  SG&A Expenses                      __  _____________                      Cambridge  Plating  had to  prove  lost profits  in            terms of net profits,  not gross profits.  Jet  Spray Cooler,                                                       __________________            Inc.  v. Crampton, 385  N.E.2d 1349, 1359  n.15 (Mass. 1979).            ____     ________            Generally, this  requires that gross profits  be adjusted for            SG&A  expenses.   In  this case,  however, Cambridge  Plating                                            ____________________            22.  Because we believe both the district court damages award            and  the jury award  must be adjusted in  the same manner, we            need  not address  Napco's argument  that the  district court            erred in allowing damages on the jury award that exceeded the            damages under Chapter 93A.                                         -55-            argued that SG&A  expenses would  not have  increased as  its            sales increased and thus the anticipated gross profits should            not be reduced by SG&A expenses.  The district court accepted            Cambridge Plating's argument, as do we.                      Cambridge Plating relies  on the testimony of  Finn            that "lost  gross profit for  Cambridge Plating is  the exact            same  number  as  the  lost  net  profit  for  the  years  in            question."   Although, as Napco points  out, the consolidated            financial  statements  from  1980  to  1985  show  a  general            increase in both sales and SG&A expenses, Finn testified that            SG&A expenses  increased only 10%-11% as  sales increased 30%            for  the  period  1982  to 1984.    Moreover,  in 1984,  SG&A            expenses decreased  slightly as  sales increased.   From this            evidence,  Finn   believed  that  there   was  "no  dependent            relationship  between  S G  and  A and  sales" and  that SG&A            expenses  would  not  have  necessarily  increased  as  gross            profits  increased.    Although  these  inferences  from  the            evidence are weak, they are sufficiently plausible to survive            Napco's challenge on appeal.                      D.  Negligent Misrepresentation                      __  ___________________________                      Lost  profits of  $4,161,000  were  awarded on  the            negligent   misrepresentation   count.     This   was  error.            Massachusetts  law does  not allow  "benefit of  the bargain"            damages for  negligent misrepresentation.   Danca v.  Taunton                                                        _____     _______            Sav. Bank, 429 N.E.2d 1129, 1134 (Mass. 1982).  Lost profits,            _________                                         -56-            which  are a species  of benefit of the  bargain damages, are            therefore prohibited.  See also Redstone v. Goldman, Sachs  &                                   ___ ____ ________    _________________            Co., 583 F. Supp. 74, 76-77 (D. Mass. 1984) (lost profits not            ___            available for  negligent  misrepresentation).   The award  of            lost  profits  on  the negligent  misrepresentation  count is            reversed.                                                 V. Conclusion                       For the foregoing reasons,  we affirm on  liability            (save for 93A  multiple damages), but  vacate and remand  the            Chapter  93A  single  and  multiple  damages  award  and  the            remittitur  for  further  proceedings  consistent  with  this            opinion.  Parties to bear their own costs.  It is so ordered.                                                        ________________                                         -57-
