
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-2108                          GLORIA BLINZLER, Individually and                           in her capacity as Wrongful Death                           Beneficiary of James A. Blinzler,                                Plaintiff, Appellant,                                          v.                            MARRIOTT INTERNATIONAL, INC.,                                 Defendant, Appellee.                              _________________________          No. 95-2199                                GLORIA BLINZLER, ETC.,                                 Plaintiff, Appellee,                                          v.                            MARRIOTT INTERNATIONAL, INC.,                                Defendant, Appellant.                              _________________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                              _________________________               John  P. Barylick, with whom  Wistow & Barylick  Inc. was on               _________________             _______________________          brief, for plaintiff.               Stephen B.  Lang, with whom Patrick B.  Landers and Higgins,               ________________            ___________________     ________          Cavanagh & Cooney were on brief, for defendant.          _________________                              _________________________                                    April 12, 1996                              _________________________                    SELYA, Circuit  Judge.  These cross-appeals  require us                    SELYA, Circuit  Judge.                           ______________          to  wend  our way  through a  maze  of unusual  facts  and subtly          nuanced legal issues.   After exploring a little-charted frontier          of  tort  law, we  reverse  the  district  court's  direction  of          judgment  notwithstanding the  verdict  and reinstate  the jury's          award  on  the  plaintiff's  claim for  negligent  infliction  of          emotional distress.  In all other respects, we affirm the rulings          of the lower court.          I.  BACKGROUND          I.  BACKGROUND                    This  litigation arises  out  of the  tragic demise  of          James Blinzler,  husband of the  plaintiff Gloria Blinzler.   The          course  of events  leading  to James  Blinzler's  death began  on          November 13, 1992,  when the Blinzlers  checked into a  Somerset,          New   Jersey,  hotel   operated   by   the   defendant   Marriott          International,  Inc. (Marriott).    Shortly after  8:30 p.m.  the          decedent,  relaxing  in  his   room,  experienced  difficulty  in          breathing.   Sensing  danger, he  ingested nitroglycerin  (he had          suffered heart  attacks before) while  his wife called  the hotel          PBX operator  and requested an ambulance.   The operator received          the SOS  no later  than 8:35 p.m.  and agreed  to honor it.   She          promptly told  the hotel's security  officer and  the manager  on          duty  about   the  medical  emergency.     Though  the  defendant          steadfastly maintains that the  operator also called an ambulance          then and there, the  record, read hospitably to the  verdict, see                                                                        ___          Cumpiano v. Banco  Santander P.R.,  902 F.2d 148,  151 (1st  Cir.          ________    _____________________          1990),  indicates that she did not place this critical call until                                          2          some fourteen  minutes after receiving the  plaintiff's entreaty.          The ambulance arrived at 9:02 p.m.  In the meantime the plaintiff          watched her husband's condition deteriorate:  he collapsed on the          bed, vomited  while  supine, and  apparently  stopped  breathing.          During  this horrific  hiatus,  the plaintiff  twice asked  hotel          personnel  whether  an  ambulance  had  been  summoned  when  the          emergency first arose.  She was  twice falsely reassured (whether          in honest error is not clear) that one had been called.                    When the  paramedics arrived  on the scene,  they could          not  locate a pulse and discovered that the decedent's airway was          blocked.  Resuscitative efforts  restored the decedent's heart to          a normal rhythm and  he was transported celeritously to  a nearby          hospital.   Doctors diagnosed the  heart attack as  a "very small          myocardial infarction."  Nevertheless, the brain damage resulting          from  a  prolonged  period of  asystole  without  cardiopulmonary          resuscitation led to James Blinzler's death three days later.          II.  PROCEEDINGS BELOW, ISSUES ON APPEAL, AND RULES OF DECISION          II.  PROCEEDINGS BELOW, ISSUES ON APPEAL, AND RULES OF DECISION                    Invoking  diversity  jurisdiction,  28  U.S.C.     1332          (1994),  the plaintiff  sued Marriott  in Rhode  Island's federal          district court for  wrongful death (count 1),  loss of consortium          (count 2), and negligent  infliction of emotional distress (count          3).  She alleged in substance that the hotel failed  to summon an          ambulance  in  a  timely   fashion  and  that  this  carelessness          proximately caused  both her own damages and her husband's death.          The jury  agreed, awarding  $200,000 for wrongful  death, $50,000          for  loss of  consortium,  and $200,000  for emotional  distress.                                          3          Addressing a  variety of  post-trial motions, the  district judge          upheld  the verdict on the first two counts, but granted judgment          for the defendant on the third count.  Both sides appeal.                    The cross-appeals raise several issues.  Two are in the          forefront.   The  centerpiece of  the defendant's  appeal is  the          assertion that the evidence  did not forge a causal  link between          the  failure  promptly to  summon  an ambulance  and  the ensuing          death.   In  contrast,  the  plaintiff's  appeal  hinges  on  the          district court's extirpation of the jury verdict on her claim for          negligent  infliction  of   emotional  distress.    Because   the          defendant's contention that  the plaintiff failed as  a matter of          law to prove causation  involves an across-the-board challenge to          the jury verdict as  a whole, we deal first with  that issue.  We          then  mull  the  plaintiff's  contention  that  the  lower  court          erroneously  forecast  emergent  New   Jersey  law  on  bystander          liability and therefore  erred in  setting aside  the verdict  on          count  3.     Finally,  we  address   the  defendant's  remaining          assignments of error.                    Under the principles of Erie R.R. Co. v. Tompkins,  304                                            _____________    ________          U.S. 64,  78 (1938),  state  law (here,  the law  of New  Jersey)          supplies  the substantive  rules  of decision  in this  diversity          case.   Since  New Jersey law  is less  than explicit  on one key          issue that concerns  us, we pause to comment  briefly on the role          of a  federal court  in adjudicating controversies  controlled by          state law.                    In  its barest  essence,  borrowing state  law  demands                                          4          nothing  more  than  interpreting   and  applying  the  rules  of          substantive  law  enunciated  by  the  state's  highest  judicial          authority, or,  on  questions  to  which that  tribunal  has  not          responded, making an informed prophecy of what the court would do          in the same situation.1  See  Moores v. Greenberg, 834 F.2d 1105,                                   ___  ______    _________          1112  (1st Cir. 1987).  In  the latter instance, we seek guidance          in analogous state court  decisions, persuasive adjudications  by          courts  of sister  states, learned  treatises, and  public policy          considerations identified in  state decisional law.   See Ryan v.                                                                ___ ____          Royal Ins. Co.,  916 F.2d 731, 734-35 (1st Cir. 1990); Kathios v.          ______________                                         _______          General Motors Corp., 862 F.2d 944, 949 (1st Cir. 1988).  As long          ____________________          as these signposts are legible, our task is to ascertain the rule          the state court would most likely follow under the circumstances,          even  if our independent  judgment on the  question might differ.          See Moores, 834 F.2d at 1107 n.3.          ___ ______          III.  CAUSATION          III.  CAUSATION                    The  defendant  challenges the  entire  verdict  on the          basis that  the  plaintiff provided  insufficient  evidence  from          which a  reasonable jury  could  conclude that  the belated  call          constituted  a proximate cause of  the ensuing death.   Under New          Jersey law the  plaintiff bears  the burden of  proving that  the          defendant's conduct comprised "a  substantial factor in producing          the  harm" of which the  plaintiff complains.   Francis v. United                                                          _______    ______                                        ____________________               1Indeed,  this  kind of  predictive  approach  is among  our          conceptions of law itself.   See Oliver Wendell Holmes,  The Path                                       ___                         ________          of the Law, 10 Harv. L.  Rev. 457, 461 (1897) ("The prophecies of          __________          what  the courts will do  in fact, and  nothing more pretentious,          are what I mean by law.").                                          5          Jersey Bank, 432 A.2d 814, 829 (N.J. 1981).  When the  questioned          ___________          conduct  is an omission    the defendant's failure  to act rather          than the defendant's maladroit  performance of an affirmative act             this  rule is  easier to  state than  to apply.   In  the last          analysis, it can rarely (if ever) be said with absolute certainty          that  harm  would not  have befallen  the  victim if  the omitted          action had been taken.                    One species of  omission that occurs from time  to time          involves the  generic charge  that, had  the defendant  done some          particular  act,  the plaintiff  (or,  as  here, the  plaintiff's          decedent) would have had  a better chance to ward  off threatened          harm.  In  these so-called "loss of chance"  cases New Jersey law          instructs  that the plaintiff can  carry her burden  by showing a          "substantial possibility"  that the harm would  have been averted          had  the  defendant acted  in a  non-negligent  manner.   Hake v.                                                                    ____          Manchester Township, 486 A.2d 836, 839 (N.J. 1985); see also Olah          ___________________                                 ___ ____ ____          v.  Slobodian,  574  A.2d  411, 417-19  (N.J.  1990)  (discussing              _________          Hake).2   Transposed to the  rescue context, this  rule renders a          ____          defendant's omission  actionable if  the plaintiff can  show that          the omission  "negated  a  substantial  possibility  that  prompt          rescue  efforts would have been  successful."  Hake,  486 A.2d at                                                         ____          839.                                        ____________________               2It is commonly  thought that the "substantial  possibility"          standard  is  more  lenient  than  a  standard  that  requires  a          plaintiff to prove it is more likely than  not that a defendant's          failure to act constituted a substantial factor in bringing about          the victim's injury or death.  See W. Page Keeton et al., Prosser                                         ___                        _______          & Keeton on Torts   41, at 44 (Supp. 1988).          _________________                                          6                    Under these  authorities, the question here  reduces to          whether the evidence, viewed  in the light most congenial  to the          plaintiff,  supports  a  finding  that  the  defendant's  failure          promptly to  call an ambulance negated  a substantial possibility          that  James Blinzler  would have  survived.   We think  that this          question warrants an affirmative answer.                    The plaintiff submitted evidence that she beseeched the          defendant to summon help at 8:35 p.m.; that an ambulance crew was          available  and free  to  respond  at  that  time;  and  that  the          defendant agreed to place the call  but then neglected to do  so.          The  defendant actually made the call at 8:49 p.m. (some fourteen          minutes later) and the  ambulance reached the scene at  9:02 p.m.          (an  elapsed time of thirteen  minutes).  The  jury heard opinion          evidence from  a renowned cardiologist that  serious brain damage          (and,  hence,   death)  would  have  been   forestalled  had  the          paramedics reached the  premises ten  minutes earlier.   On  this          record, we believe that a reasonable jury could conclude that the          defendant's  omission negated a  substantial possibility that the          rescue  efforts  would  have  succeeded.    Put  another  way,  a          reasonable jury could find (as this jury apparently did) that the          ambulance likely would have  arrived fourteen minutes earlier had          it been summoned  immediately; that the course of treatment would          have been accelerated by a like amount of time; and that, but for          Marriott's negligence James Blinzler would have survived.                    The defendant tries to  parry this thrust in  two ways.          One initiative involves  assembling a string of cases  (mostly of                                          7          hoary origin) in which courts have rejected plaintiffs' claims of          negligence for failure  to rescue.   See, e.g.,  Foss v.  Pacific                                               ___  ____   ____     _______          Tel.  & Tel. Co.,  173 P.2d 144,  149 (Wash.  1946); Whitehead v.          ________________                                     _________          Carolina  Tel. &  Tel.  Co.,  129  S.E.  602,  605  (N.C.  1925);          ___________________________          Volquardsen  v. Iowa  Tel. Co.,  126 N.W.  928, 930  (Iowa 1910);          ___________     ______________          Lebanon, L. & L. Tel. Co. v. Lanham Lumber Co., 115 S.W. 824, 826          _________________________    _________________          (Ky.  1909).   These cases    all  of  which involve  fire damage          coupled with some alleged  negligence on the part of  a telephone          company in  respect to a telephone call  meant to summon the fire          department    provide  little guidance.   In those  cases, unlike          here,  the plaintiffs did not proffer evidence that, had the call          gone through,  the rescuers (there, the  firefighters) could have          reached  the scene in time to prevent  the harm (there, the rapid          spread  of a conflagration that had already started).  See, e.g.,                                                                 ___  ____          Foss, 173  P.2d at 149;  Lebanon, 115 S.W.  at 826.   And perhaps          ____                     _______          more importantly, each  of those  cases draw on  Lebanon for  the                                                           _______          legal  standard of causation   a standard that differs materially          from  New  Jersey's  standard.   See  Lebanon,  115  S.W. at  826                                           ___  _______          (stating that "it must be established with certainty that but for                                                ______________          their  negligence  the fire  would  have  been confined"  as  the          plaintiff contends) (emphasis supplied).                    This second point is aptly illustrated by the one entry          in  Marriott's string citation  that does  not involve  a burning          building:  Hardy  v. Southwestern  Bell Tel. Co.,  910 P.2d  1024                     _____     ___________________________          (Okla. 1996).  To understand Hardy, it is necessary to note that,                                       _____          in McKellips v.  St. Francis  Hosp., Inc., 741  P.2d 467,  475-77             _________     ________________________                                          8          (Okla. 1987), the Oklahoma Supreme Court held that the  causation          standard  of the Restatement (Second) of Torts   323 (under which          a  plaintiff may prove  negligence in  a loss  of chance  case by          showing that  the defendant's omission "increase[d]  the risk" of          harm), applied in  medical malpractice cases.  Hardy    a case in                                                         _____          which  the  plaintiff   alleged  that  the   telephone  company's          negligent operation of a 911 service prevented him from summoning          rescue assistance and thereby proximately caused his wife's death             postdated  McKellips.     The  Oklahoma  Supreme  Court  there                        _________          considered extending the causation  standard of Restatement   323          to loss of chance claims outside the medical malpractice context.          See Hardy, 910  P.2d at 1025.  It declined to  do so.  See id. at          ___ _____                                              ___ ___          1030.                    Hardy,  fairly read,  confirms the  distinction between                    _____          proof  of causation in loss of chance cases under the traditional          test (to which  Oklahoma adheres in  cases not involving  medical          malpractice) and  under more modern standards  that focus instead          on whether  a  defendant's conduct  has  significantly  increased          particular   risks.     As  we   have  explained,   New  Jersey's          "substantial  possibility"  standard applies  to  loss of  chance          cases  in general,3  and it  is at  a minimum  as liberal  as the          "increased  risk"  standard  endorsed   by  section  323  of  the          Restatement.   See Olah, 574 A.2d at 419 (suggesting that whether                         ___ ____                                        ____________________               3Like  Oklahoma, New Jersey  has explicitly  adopted section          323 of the Restatement for use in loss of chance  cases involving          medical  malpractice.  See Scafidi  v. Seiler, 574  A.2d 398, 405                                 ___ _______     ______          (N.J. 1990); Evers v. Dollinger, 471 A.2d 405, 415 (N.J. 1984).                       _____    _________                                          9          the  plaintiff "has  a substantial  possibility of  avoiding harm          would ordinarily be subsumed  in the jury's determination whether          a defendant's  deviation increased  the risk of  harm") (internal          quotations omitted).   Since Hardy apparently would have stated a          claim had the Oklahoma court applied the  more lenient "increased          risk" standard,  see Hardy, 910 P.2d at 1030, Marriott's flagship                           ___ _____          case actually supports  a finding of  causation under New  Jersey          law.                    Marriott's  second attempt  to scuttle  the finding  of          causation features its  lament that the  plaintiff did not  prove          that the same traffic  conditions which were extant at  and after          8:49 p.m.  were also extant at  and after 8:35 p.m.   This lament          can  scarcely be taken seriously.  Juries  have the power to draw          reasonable inferences from established facts.  It  is well within          a jury's ordinary competence  to conclude that traffic conditions          for an emergency vehicle do not change dramatically in a fourteen          minute period that is well outside rush hour.                    The defendant's suggestion that a highway  accident, or          a diluvian tempest, or some other freak occurrence, later abated,          might have delayed the ambulance if it began its run at 8:35 p.m.          rather  than  at  8:49  p.m.  is  equally  jejune.    It  is  the          plaintiff's  burden to prove her  case by a  preponderance of the          evidence,  not beyond all conceivable  doubt.  In  the absence of          some  reason  to suspect  changed conditions     and there  is no          evidence  of any actual change  here   the  jury's inference that          the  ambulance would  have arrived  in  roughly the  same elapsed                                          10          portal-to-portal time  is unimpugnable.   See Levesque  v. Anchor                                                    ___ ________     ______          Motor  Freight,  Inc.,   832  F.2d  702,  704   (1st  Cir.  1987)          _____________________          (explaining  that  the "perhapses"  that  dot  a factbound  trial          record typically "are for factfinders to resolve   not for judges          imperiously to dictate"); see also W. Page Keeton et al., Prosser                                    ___ ____                        _______          & Keeton  on Torts    41, at  269 (5th ed.  1984) (noting  that a          __________________          plaintiff does not have  to negate entirely the  possibility that          the defendant's  conduct  was not  a  contributing cause  of  the          harm).                    Silhouetted against this  legal backdrop, the  evidence          of  record,  visualized  most  favorably to  the  plaintiff,  see                                                                        ___          Cumpiano, 902 F.2d at 151, suffices to ground a finding that, had          ________          the defendant hailed an ambulance immediately upon request, there          was  at least  a  significant possibility  that James  Blinzler's          death  could have  been prevented.   Accordingly,  we are  not at          liberty under New  Jersey law  to disturb  the jury's  conclusion          that Marriott's negligence  constituted a  substantial factor  in          the ensuing death.          IV.  BYSTANDER LIABILITY          IV.  BYSTANDER LIABILITY                    The  most  vexing  issue  in  this  case  involves  the          plaintiff's claim  of negligent infliction of emotional distress.          This  claim is  based on  the injury  that she  experienced while          watching her husband suffer as the beleaguered couple awaited the          ambulance's  overdue  arrival.   We  start  this  segment  of our          analysis with a discussion of the doctrine of bystander liability          as it has evolved in  New Jersey, then shift our attention  to an                                          11          open question that  the district court  found to be  dispositive,          and,  finally,  apply the  doctrine as  we  understand it  to the          idiosyncratic facts of this case.                    A.  General Principles of Bystander Liability.                    A.  General Principles of Bystander Liability.                        _________________________________________                    American courts first recognized bystander liability in          the landmark  case of Dillon  v. Legg, 441 P.2d  912 (Cal. 1968).                                ______     ____          Drawing  in part on precedents from English common law, the court          ruled  that a  mother could  recover  for emotional  and physical          injuries suffered "from witnessing  the [negligent] infliction of          death  or injury to her  child."  Id.  at 914.   The Dillon court                                            ___                ______          implicitly suggested that any bystander should be able to recover          for all objectively foreseeable injuries.  See id. at 920-21.  To                                                     ___ ___          help jurists navigate the reefs and shoals of foreseeability, the          court attempted to elucidate guidelines based on Dillon's factual                                                           ______          scenario.  See id. at 920.                     ___ ___                    Twelve  years  later,  New  Jersey  embraced  bystander          liability in  Portee v. Jaffee,  417 A.2d 521  (N.J. 1980).   The                        ______    ______          state  supreme court  did not  clasp Dillon  uncritically to  its                                               ______          bosom,   but,   rather,   abjured   a   tunnel-vision   focus  on          foreseeability,  fearing that it would open the door to claims of          emotional  distress advanced  on  behalf of  any onlooker  to any          negligently caused event.4   See id.  at 527 (cautioning  against                                       ___ ___                                        ____________________               4New Jersey is not alone in its reluctance blindly to follow          Dillon's lead.   See, e.g.,  D'Ambra v. United  States, 338  A.2d          ______           ___  ____   _______    ______________          524, 528  (R.I.  1975) (rejecting  rigid  foreseeability  focus).          Indeed, even  the  progenitor  of  the doctrine  has  had  second          thoughts.  See Thing v.  La Chusa, 771 P.2d 814, 826  (Cal. 1989)                     ___ _____     ________          (retreating from Dillon on this point).                           ______                                          12          institutionalizing   "an   unreasonably   excessive  measure   of          liability");  see also Carey v. Lovett, 622 A.2d 1279, 1286 (N.J.                        ___ ____ _____    ______          1993) (suggesting that treating foreseeability as a sole talisman          would render it difficult to differentiate between legitimate and          fraudulent  claims);  Prosser  &  Keeton,  supra,    54,  at  366                                                     _____          (warning  that  forcing  defendants  to pay  for  the  "lacerated          feelings" of  every bystander would be  "an entirely unreasonable          burden on human activity").                    In an effort to furnish  a condign remedy for deserving          injuries while at the same time avoiding "speculative results  or          punitive  liability,"  Portee,  417   A.2d  at  526,  New  Jersey                                 ______          transmogrified  the Dillon  guidelines  into prerequisites  of  a                              ______          cause of action  for bystander  liability, see id.  at 528.   The                                                     ___ ___          Portee  court  concluded that  a  bystander  plaintiff should  be          ______          permitted to recover under New Jersey law only if she could prove          (1)  the  death  or serious  injury  of  another  (caused by  the          defendant's  negligence); (2)  an intimate  familial relationship          with the victim; (3) her observation of the victim at the time of          the injury  or immediately  thereafter; and (4)  severe emotional          distress resulting  from the  observation.   See id.   Subsequent                                                       ___ ___          decisions have cut plaintiffs  some slack (but not very  much) in          their  efforts to  fulfill this  quadrat of  requirements.   See,                                                                       ___          e.g., Dunphy v. Gregor, 642 A.2d 372, 377-78 (N.J. 1994) (holding          ____  ______    ______          that  unmarried  cohabitants  may  enjoy   an  intimate  familial          relationship); Frame v.  Kothari, 560 A.2d  675, 678 (N.J.  1989)                         _____     _______          (explaining that a plaintiff  may recover without actually seeing                                          13          the injury so  long as  it is "susceptible  to immediate  sensory          perception"  and the  plaintiff observes  the victim  immediately          after the injury is inflicted).                    These  four  elements  serve  a  critical  function  in          keeping  bystander liability  within  reasonable bounds.   First,          they furnish a set of guideposts that help to identify and define          a range of  claims that are  presumptively valid while  excluding          other claims that  society simply  cannot afford to  honor.   See                                                                        ___          Dunphy,  642 A.2d at 377  (noting that the  elements of bystander          ______          liability  "structure the kind of `particularized foreseeability'          that ensures  that the class is winnowed . . . and that limitless          liability is avoided").  Second   and relatedly   they combine to          define  narrowly the  emotional interest  that the  law protects.          See Carey, 622 A.2d at  1286; accord Thing v. La Chusa,  771 P.2d          ___ _____                     ______ _____    ________          814,   829 (Cal. 1989).   While "[t]he law should  find more than          pity for one who is stricken by seeing that a loved  one has been          critically injured  or  killed," Portee,  417  A.2d at  526,  the                                           ______          elements of  the bystander liability tort  frankly recognize that          it is not the law's province to shield people from all anxieties.          Since  the   ordinary  slings  and  arrows   of  human  existence          inevitably  produce stress  and strain,  "only the  most profound          emotional   interests  should   receive  vindication   for  their          negligent injury."  Id.                              ___                    The common thread that runs through these cases is that          emotional anguish  is  a natural,  perhaps omnipresent,  reaction          whenever one is forced to watch a loved one suffer, and therefore                                          14          should   not   be  compensable   in   the   absence  of   special          circumstances.  In  an effort  to hold the  line, New Jersey  law          decrees  that  bystanders  may  recover  in  tort  only  for  the          particularly  exquisite anguish that  occurs when they personally          observe trauma strike a loved one like a bolt from the blue.  See                                                                        ___          Frame, 560  A.2d at 679  (explaining that bystander  liability is          _____          supposed  to  remedy the  "harm of  seeing  a healthy  victim one          moment and a severely injured one the next"); Portee, 417 A.2d at                                                        ______          527  ("Discovering the  death or  serious injury  of an  intimate          family member will always be expected to threaten one's emotional          welfare.  Ordinarily, however, only a witness at the scene of the          accident causing death or serious injury will suffer  a traumatic          sense of loss that  may destroy his sense  of security and  cause          severe  emotional distress.").   Thus, there  can be  no recovery          unless  the  close relation's  helpless  watching  arises in  the          context of a sudden, unexpected, and accidental injury.                              B.  The Fork in the Road.                              B.  The Fork in the Road.                                  ____________________                    The issue before us is whether the plaintiff's asserted          injury  falls  within the  narrow  range  of bystander  liability          claims  that are actionable under  New Jersey law.   The district          court decided that  it did not.  The court  relied primarily on a          series of bystander liability/medical  malpractice cases in which          the  New Jersey  Supreme  Court placed  a  gloss on  its  earlier          decisions and  indicated that a plaintiff must witness the actual          act  of malpractice and appreciate  its effect on  the patient in          order  to bring herself within  the class of  persons entitled to                                          15          recover.  See Carey, 622 A.2d at 1288 (declaring that a plaintiff                    ___ _____          must "contemporaneously  observe the malpractice and  its effects          on the victim"); Frame, 560 A.2d at 681 ("In an appropriate case,                           _____          if  a  family  member  witnesses  the   physician's  malpractice,          observes  the  effect  of  the malpractice  on  the  patient, and          immediately connects the malpractice with the injury, that may be          sufficient to  allow recovery  for the family  member's emotional          distress.");  see also Gendek v. Poblete, 654 A.2d 970, 975 (N.J.                        ___ ____ ______    _______          1995) (rejecting a claim on the ground that the bystander did not          "immediately connect[] any act  of malpractice" with the victim's          death).                    Here,  concededly, Mrs.  Blinzler  cannot satisfy  this          added  requirement; she neither "witnessed" the negligence (which          comprised  the hotel  operator's failure  immediately to  call an          ambulance and  which occurred  six floors beneath  the Blinzlers'          room) nor fully appreciated  at the time that the  negligence was          hindering    needed    assistance   (indeed,    the   defendant's          misrepresentations, if  believed, concealed the very  fact of the          negligence).  Thus, to decide this case we must determine whether          the   Gendek-Carey-Frame   gloss   applies   only   to  bystander                __________________          liability/medical malpractice claims  (as the plaintiff contends)          or whether it applies  to all bystander liability claims  (as the          defendant contends and as the  lower court concluded).   Although          the answer  to the question  is by no  means free from  doubt, we          think that the district court took the wrong fork in the road.                    As  an initial matter, the New Jersey Supreme Court has                                          16          never imposed the added requirement that a plaintiff witness  the          negligent act and contemporaneously connect it to the injury of a          loved one  in any case  outside the medical  malpractice context,          and  the  malpractice cases  in  which the  requirement  has been          imposed  strongly suggest that  it is restricted  to that milieu.          See  Gendek,  654  A.2d at  974  (describing  the  requirement as          ___  ______          "added"  and "special"  in that  it is  "imposed to  establish an          indirect  claim  for  emotional  distress  arising  from  medical          malpractice"); Carey, 622 A.2d at 1286 ("With medical-malpractice                         _____                     ________________________          claims, we have required that claimants observe contemporaneously          ______          the  act of  malpractice  and the  resultant injury.")  (emphasis          supplied).   What is  more, crafting a  special set of  rules for          bystander liability/medical  malpractice cases is not  in any way          an  unprecedented flight  of fancy;  other courts  that recognize          bystander liability claims in general sometimes treat such claims          more restrictively  in the medical malpractice  setting, even, on          occasion, barring them  outright.  See, e.g., Maloney  v. Conroy,                                             ___  ____  _______     ______          545 A.2d 1059,  1063-64 (Conn.  1988); Wilson v.  Galt, 668  P.2d                                                 ______     ____          1104, 1110 (N.M. 1983).                    We note,  too, that  the added requirement  designed by          the New Jersey Supreme Court for use in connection with bystander          liability/medical  malpractice claims  is  grounded in  a set  of          policy  considerations  that  do  not  seem  to  apply  to  other          bystander liability  claims.  For one thing, the unique emotional          interest  that  fuels  the  doctrine of  bystander  liability  is          unaffected  in most  cases of  medical  malpractice for  the harm                                          17          caused  by, say,  misdiagnosis usually  does not  manifest itself          until  days, weeks, months, or years have elapsed, and even then,          the misdiagnosis  rarely culminates  in a single  spontaneous and          shocking event.  See  Frame, 560 A.2d at 678-79  (explaining that                           ___  _____          in  the  typical  malpractice  case  "[g]rief  over  the  gradual          deterioration  of a loved one, as  profound as that grief may be,          often  does not arise from  a sudden injury,"  but, rather, under          circumstances in which the  family members have had the  "time to          make  an emotional adjustment").   It is largely  for this reason          that   bystander   liability   must   be  even   more   "narrowly          circumscribed in the context of a medical misdiagnosis or failure          to  act."   Gendek, 654  A.2d  at 975-76.   New  Jersey chose  to                      ______          accomplish this circumscription  by limiting bystander  liability          in the medical malpractice arena to those situations in which the          putative plaintiff observes both  the act of malpractice and  its          immediate effects,  and appreciates the interrelationship.   See,                                                                       ___          e.g., Frame, 560 A.2d at 681.  That rationale loses force outside          ____  _____          the medical malpractice context.                    For another thing, the added requirement applicable  to          bystander liability in  the medical malpractice  context reflects          societal  concerns about the impact of  expanded liability on the          delivery  of  health care.    See Gendek,  654 A.2d  at  975 ("In                                        ___ ______          considering the standards that govern an appropriate duty of care          and  limitations of  liability in  [the health care]  setting, we          must  be  especially mindful  of the  principles of  sound public          policy  that   are  informed  by  perceptions   of  fairness  and                                          18          balance."); Carey, 622 A.2d at 1286 (voicing uneasiness about the                      _____          "effects of the expansion of  liability on the medical profession          and  society,"  and   specifically  noting  sharp  increases   in          malpractice   insurance  premiums);  Frame,   560  A.2d   at  681                                               _____          (emphasizing that  the special refinement  of bystander liability          for  medical malpractice  cases is  at least  partly driven  by a          desire  to   avoid  "unreasonably   burdening  the  practice   of          medicine").  This group  of situation-specific policy concerns is          best addressed by "narrowly circumscrib[ing]" bystander liability          in the medical malpractice setting so as to minimize any "adverse          __________________________________          effect  on the  practice of  medicine or  on the  availability of          medical  services."  Frame,  560 A.2d at  681.  Once  again, this                               _____          reasoning loses force outside the medical malpractice context.                    The  language   of  the   New  Jersey  cases   and  the          distinctive nature of the policy considerations that underlie the          added requirement mark the  genesis of our belief that,  when the          opportunity arises, the New Jersey Supreme Court will not engraft          this health-care-specific requirement upon the body of cases that          lie beyond the medical malpractice arena.  New Jersey has already          expressed its view of general public policy concerns with respect          to expanded liability for run-of-the-mine accidents by conferring          a  right of recovery on  bystanders and defining  the elements of          the tort.   See Dunphy, 642 A.2d at 377; Portee, 417 A.2d at 528.                      ___ ______                   ______          We  think it  is  no accident  that  in superimposing  the  added          requirement on bystander liability/medical malpractice cases, the          state  supreme court has been scrupulously careful not to imply a                                          19          broader  sweep.   Because  we  believe that  this  specificity is          purposeful  rather than  serendipitous,  we hold  that the  added          requirement imposed  by the  Gendek-Carey-Frame line of  cases is                                       __________________          applicable  only  to causes  of  action that,  at  bottom, charge          health-care  providers with  malpractice.   The  district  court,          therefore, took the wrong fork in the road.                             C.  Applying the Principles.                             C.  Applying the Principles.                                 _______________________                    Once we put the added requirement to one side, the only          question  that remains open under this rubric is whether the jury          lacked  evidence  satisfactory  to  support a  finding  that  the          plaintiff's  injury  fell  within  the  standard   parameters  of          bystander  liability that  obtain in  New Jersey  vis-a-vis suits          arising outside the  medical malpractice context.   We think  the          evidence sufficed.   Intimate relationship and third-party injury          (i.e.,  a  spouse's death)  are not  in  dispute, and  the record          contains  adequate  proof  of  severe emotional  distress.    The          seminal New Jersey case suggests that, in addition to these three          elements, a  plaintiff need  only show  that she  "observ[ed] the          death . . . while  it occur[red]."  Portee, 417 A.2d at  527; see                                              ______                    ___          also supra p. 13 (recounting the four elements of the  tort under          ____ _____          New Jersey law).   This  last element    firsthand observation             corresponds to the distinct  emotional interest that is infringed          when  an individual witnesses  a "shocking  event" and  "see[s] a          healthy [family member] one moment and a severely injured one the          next."  Frame, 560 A.2d at 679.                  _____                    We appreciate that things are not always what they seem                                          20          and that  it may be overly  simplistic to say that  in New Jersey          firsthand observation of  a suddenly inflicted injury  to a loved          one  invariably gives rise to the  unique emotional interest that          underlies bystander liability.   Arguably, it  is not merely  the          observation  of  the  injury  but  the  perception   that  it  is          accidental or otherwise unwarranted that threatens a "plaintiff's          basic  emotional  security," Portee,  417 A.2d  at 521,  and thus                                       ______          paves the  way for bystander liability.   See id. at  528 (noting                                                    ___ ___          that  it is  the "shock  and fright"  attendant to  observing the          "accidental  death" of  an intimate  relation that  infringes the          narrowly defined  interest in  emotional security).   Frame makes                                                                _____          this point most clearly, albeit in dictum:                    Everyone is subject  to injury, disease,  and                    death.   Common  experience teaches  that the                    injury  or death  of one  member of  a family                    often produces severe  emotional distress  in                    another family  member.  A  threshold problem                    is separating  the  grief that  attends  that                    distress  when no  one is  at fault  from the                    added  stress attributable  to the  fact that                    the  injury  or  death  was produced  by  the                    negligent act of another.          Id. at  677.  And  while the  Portee elements have  not yet  been          ___                           ______          formally modified in this  respect,5 we think it is  not unlikely          that New Jersey will move in this direction.  Cf. Thing, 771 P.2d                                                        ___ _____          at 829 (tightening  the elements of a bystander  liability action                                        ____________________               5In Portee, the question was not raised squarely.  There the                   ______          plaintiff (the victim's  mother) arrived at  the scene after  her                                                                 _____          son became trapped in  an elevator.  She  did not witness  either          the  initial   entrapment  or  the  act   of  negligence  (faulty          maintenance)  that  caused the  accident.   It  was  quite clear,          however,  that  the  mother  knew immediately  that  her  child's          injuries had an  unnatural cause and stemmed from  the elevator's          accidental collapse.                                          21          under California law to require that the plaintiff be "present at          the scene of the injury-causing event" and be "then aware that it          is causing the injury to the victim").  But there are two reasons          why we need not cross this bridge today.                    1.   The  evidence  here clearly  satisfies the  Portee                                                                     ______          requirements simpliciter.   The plaintiff witnessed  a sudden and          shocking event when  she watched her  husband of forty-two  years          undergo  excruciating chest  pain, vomit,  struggle to  catch his          breath,  asphyxiate,  lose  consciousness,  and  ultimately  die.          Because  she  "witness[ed]  the  victim  when  the  injury  [was]          inflicted,"  Frame,   560  A.2d  at  678,   recovery  would  seem                       _____          appropriate under a formal incantation of the Portee elements.                                                        ______                    2.    The law  of  the  case  doctrine  eliminates  any          potential problem as  to the  precise dimensions of  Portee.   At                                                               ______          trial's  end,  the  district court  charged  the  jury  that "the          plaintiff must be present at the scene of the event  and be aware          that the  victim  is being  injured."   The  defendant's  counsel          objected generally to  the court's decision to  instruct the jury          at all on count 3 (asseverating  that New Jersey law requires the          plaintiff actually to witness  the negligent act) but he  did not          object in  any  other,  more  specific respect  to  the  district          court's formulation of  the basic  elements of the  tort.   Thus,          even  if  New Jersey  might in  an  appropriate case  impose some          intermediate limitation going beyond Portee but stopping short of                                               ______          mandating  that  the plaintiff  witness  the  negligent act,  the          defense  formulated no  such intermediate  position at  the jury-                                          22          instruction  stage.     In  other  words,  the   content  of  the          instruction stands as  the law  of the case  with respect to  the          unembellished  contours  of  a  cause  of  action  for  bystander          liability.  See Quinones-Pacheco  v. American Airlines, Inc., 979                      ___ ________________     _______________________          F.2d 1, 4 n.3 (1st Cir. 1992); Milone v. Moceri Family, Inc., 847                                         ______    ___________________          F.2d 35, 38-39  (1st Cir. 1988).  And as  we have already pointed          out, the plaintiff's proof, measured against  the language of the          trial court's instruction, suffices to create a jury question.                     Even if we assume arguendo  that the New Jersey Supreme                                      ________          Court  would  augment the  elements of  a non-medical-malpractice          cause  of   action  for  bystander  liability   along  the  lines          exemplified  by Thing,  the  verdict might  well be  sustainable.                          _____          From the  evidence adduced  at trial,  the jury rationally  could          find  that during the  incident proper the  plaintiff twice asked                                                                _____          the  manager whether the ambulance  had been called.   Though she          was (erroneously) assured that the call had been made punctually,          she  asked the manager yet  again at the  hospital (receiving the          same misinformation), and then checked  with the hotel three days          later  (after her husband had  perished).  This  type of evidence          arguably could  support an illation that  the plaintiff suspected          all  along that a delay attributable to the defendant was causing          injury  to her husband.  Watching the event while suspecting that          her  husband's suffering  was being  unnecessarily prolonged  and          worrying  that prospects  for his  rescue were  diminishing would          appear  to be  the  kind of  distinct  emotional harm  for  which          bystander liability would lie  under the premise of Thing.   See,                                                              _____    ___                                          23          e.g., Bloom v. Dubois Regional Med. Ctr., 597 A.2d 671, 683  (Pa.          ____  _____    _________________________          Sup. Ct. 1991).          V.  OTHER ISSUES          V.  OTHER ISSUES                    The defendant  raises a  salmagundi of other  issues in          connection  with  its  appeal.    None  of its  asseverations  is          persuasive.  Only three warrant discussion.                             A.  The Evidentiary Rulings.                             A.  The Evidentiary Rulings.                                 _______________________                    The defendant argues that it is entitled to a new trial          because the district court  erred in certain evidentiary rulings.          Its chief  complaint concerns the admission  of evidence relating          to  the destruction of the so-called Xeta report (a printout that          catalogues all outgoing calls from the hotel's PBX  operator) for          November 13, 1992.   The defendant  destroyed this telephone  log          approximately  thirty days after  the incident.   Had  the report          been preserved, it would have pinpointed the very moment that the          operator first placed the call for emergency assistance.                    During the trial, the plaintiff sought to show that the          defendant had  destroyed this evidence.   The defendant objected,          contending that  it discarded  the  Xeta report  in the  ordinary          course of business, pursuant to  established practice, and not as          part  of an effort to  inter unfavorable evidence.   The district          court  overruled the  objection  and permitted  the plaintiff  to          introduce  evidence  at trial  of  the  existence and  subsequent          destruction  of  the   Xeta  report,   leaving  the   defendant's          explanation  to the jury.  We review the district court's rulings          admitting or  excluding evidence  for abuse of  discretion.   See                                                                        ___                                          24          Veranda Beach Club Ltd. Partnership v. Western Sur. Co., 936 F.2d          ___________________________________    ________________          1364,  1373 (1st Cir. 1991);  United States v.  Nazzaro, 889 F.2d                                        _____________     _______          1158, 1168 (1st Cir. 1989).  We see none in this instance.                    When  a  document relevant  to an  issue  in a  case is          destroyed, the trier of  fact sometimes may infer that  the party          who obliterated it did so out of a realization  that the contents          were unfavorable.   See Nation-Wide Check  Corp. v. Forest  Hills                              ___ ________________________    _____________          Distributors, Inc., 692 F.2d 214, 217 (1st Cir. 1982); see also 2          __________________                                     ___ ____          Wigmore on Evidence    285, at  192 (James H. Chadbourn  rev. ed.          ___________________          1979).   Before such an inference  may be drawn, there  must be a          sufficient foundational showing that  the party who destroyed the          document  had notice  both  of the  potential  claim and  of  the          document's  potential relevance.   See  Nation-Wide, 692  F.2d at                                             ___  ___________          218.    Even  then,  the  adverse  inference is  permissive,  not          mandatory.   If,  for example,  the factfinder believes  that the          documents were destroyed accidentally  or for an innocent reason,          then the factfinder is free to reject the inference.  See , e.g.,                                                                ___   ____          Jackson v. Harvard  Univ., 900  F.2d 464, 469  (1st Cir.),  cert.          _______    ______________                                   _____          denied,  498 U.S. 848 (1990); Anderson v. Cryovac, Inc., 862 F.2d          ______                        ________    _____________          910, 925-26 (1st Cir. 1988).                    In this case, the defendant contends that there  was no          direct evidence to show that it discarded the Xeta report for any          ulterior reason.   This is true as  far as it goes    but it does          not go very far.  The proponent of a "missing document" inference          need not offer direct evidence of a coverup to set  the stage for          the  adverse inference.    Circumstantial evidence  will suffice.                                          25          See, e.g., Brown & Williamson Tobacco Corp. v. Jacobson, 827 F.2d          ___  ____  ________________________________    ________          1119, 1134 (7th Cir. 1987), cert. denied, 485 U.S. 993 (1988).                                      _____ ______                    We do  not believe that  the district court  abused its          considerable  discretion in  deciding  that the  totality of  the          circumstances  here  rendered such  an  inference  plausible.   A          reasonable factfinder could easily  conclude that Marriott was on          notice all along that the  Xeta report for November 13,  1992 was          relevant to likely  litigation.   Although no suit  had yet  been          begun  when the defendant destroyed the document, it knew of both          James Blinzler's death and  the plaintiff's persistent attempts            including  at least one attempt after Blinzler died   to discover          when the call for emergency aid had been placed.  This  knowledge          gave  the  defendant ample  reason  to  preserve  the  report  in          anticipation of a legal action.  When the evidence indicates that          a party is aware of circumstances that are likely to give rise to          future litigation  and yet destroys potentially  relevant records          without particularized inquiry, a factfinder may reasonably infer          that the party probably did so because the records would harm its          case.   See Vodusek v.  Bayliner Marine  Corp., 71 F.3d  148, 156                  ___ _______     ______________________          (4th Cir. 1995);  Partington v. Broyhill Furn.  Indus., Inc., 999                            __________    ____________________________          F.2d 269, 272 (7th Cir. 1993);  Nation-Wide, 692 F.2d at 219.  In                                          ___________          the circumstances  at  bar,  the trial  court  acted  within  its          discretion in admitting the Xeta report.                    The defendant also  chastises the  court for  admitting          evidence of another missing  record.  The security  officer's log          for  November  13,  1992 could  not  be  located,  and the  judge                                          26          permitted  evidence of that fact to go  to the jury.  Once again,          the  ruling cannot  be  faulted.    The  defendant  had  no  good          explanation for the  missing log,  and the jury  was entitled  to          infer that the defendant destroyed it in bad faith.                    To  cinch matters, these  two pieces of  evidence had a          synergistic effect.  We think it would be proper for a reasonable          factfinder to  conclude that the unavailability  of two important                                                              ___          documents, both  of which bore  upon the  timing of the  call for          emergency assistance, was something more than a coincidence.  The          veteran district  judge, after  hearing all the  evidence limning          these mysterious disappearances, put it  bluntly in the course of          ruling on post-trial motions:                    I  will tell  you  now that  the Xeta  Report                    raises a compelling inference in my mind that                    personnel  at the Marriott  Hotel did destroy                    that   record   willfully,  along   with  the                    security  officer's daily  log of  that date.                    The inference is compelling that the Marriott                    Hotel was  hiding the delay of  the telephone                    operator in making this telephone call.          This  is a  harsh assessment    but  it is  based on  a firsthand          appraisal of the  testimony and  it is one  that a rational  jury          easily could draw on the record.                              B.  The Motion to Reopen.                              B.  The Motion to Reopen.                                  ____________________                    After the  plaintiff rested, the defendant  moved for a          directed  verdict under  Fed. R.  Civ. P.  50(a).   After hearing          arguments, the  district court permitted the  plaintiff to reopen          her case in  order to  offer certain additional  evidence on  the                                          27          issue  of  causation.6    The  defendant  assigns  error  to this          ruling.  There is none.                    The Federal  Rules of Evidence give  the district court          broad discretion in ordering  the proof.  See Fed.  R. Evid. 611.                                                    ___          This discretion extends to granting or denying motions to reopen,          see Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321,          ___ __________________    ________________________          331-32 (1971); Rivera-Flores  v. Puerto  Rico Tel.  Co., 64  F.3d                         _____________     ______________________          742, 746 (1st  Cir. 1995); Lussier v. Runyon, 50  F.3d 1103, 1113                                     _______    ______          (1st Cir.), cert. denied, 116 S. Ct. 69 (1995), and  such rulings                      _____ ______          are reviewed principally for abuse of that discretion.                    A  trial court's  decision to  reopen is  premised upon          criteria that are flexible and fact-specific, but fairness is the          key criterion.  See Rivera-Flores, 64 F.3d at 746; Capital Marine                          ___ _____________                  ______________          Supply, Inc. v. Thomas, 719  F.2d 104, 107 (5th Cir. 1983).   The          ____________    ______          specific factors  to be assessed  include the probative  value of          the evidence sought to be introduced, the proponent's explanation          for  failing to offer the evidence earlier, and the likelihood of          undue  prejudice.  See Rivera-Flores,  64 F.3d at  746; Joseph v.                             ___ _____________                    ______          Terminix Int'l Co., 17 F.3d 1282, 1285 (10th Cir. 1994); see also          __________________                                       ___ ____          6A James W. Moore, Moore's Federal Practice   59.04[13], at 59-33                             ________________________          (2d  ed. 1993).   The  prospect of  prolonging the trial  is also          material.  If the additional evidence is immediately available or                                        ____________________               6The supplemental evidence  consisted of testimony  from two          witnesses.    The  first,  plaintiff's   medical  expert,  simply          clarified and confirmed his earlier testimony that James Blinzler          would  have  survived  had  the  ambulance  arrived  ten  minutes          earlier.   The  second  witness  (an employee  of  the  ambulance          service) testified that  the ambulance service had a  unit ready,          available, and on call at 8:35 p.m. on November 13, 1992.                                          28          nearly  so,  the trial  court will  have  a greater  incentive to          permit the case  to be  reopened.  Conversely,  if gathering  the          additional evidence  portends a  significant delay in  the trial,          the  court ordinarily will have a greater reluctance to grant the          motion.  See Moore, supra,   59.04[13], at 59-33.                   ___        _____                    Here, the additional evidence that the plaintiff sought          to introduce  was non-cumulative.   It had  significant probative          value on an essential element in the plaintiff's case, helping to          connect the defendant's negligence to  the injuries claimed.  See                                                                        ___          supra  note 6.  There is no  sign that the plaintiff withheld the          _____          proof as a strategic  matter.  To the contrary, the  record shows          quite  clearly that she attempted to streamline her case in chief          and  offered  the  incremental  evidence  only  after  the  judge          expressed  reservations about the state of the proof on the issue          of causation.7                    Notwithstanding  these   circumstances,  the  defendant          insists   that   permitting  the   plaintiff  to   reopen  worked          substantial prejudice  because the  defense hoped all  along that          the  plaintiff  would   fail  to  prove   causation.    This   is                                        ____________________               7This  is consistent  with  the method  of the  Civil Rules.          Rule  50(a) exists  in part  to afford  the responding  party "an          opportunity to cure any deficiency in that party's proof that may          have been overlooked until  called to the party's attention  by a          late  motion for  judgment."    Fed.  R.  Civ.  P.  50,  advisory          committee's note (1991  amendment).  In  other words, Rule  50(a)          should be construed "to  avoid tactical victories at the  expense          of substantive interests."  Moore, supra,   50.08, at 50-89   The                                             _____          district court echoed this  sentiment when it granted  the motion          to reopen,  stating:  "I allow the  plaintiff to reopen because I          want  the truth.   I want  the facts.   I want to  achieve a just          result in this case . . . ."                                          29          disappointment rather  than cognizable  prejudice.   The evidence          taken after reopening consisted of only two witnesses and created          no unfair surprise.   The added testimony simply fleshed  out the          plaintiff's  basic theory of liability   that the time saved by a          prompt  call might well  have led  to James  Blinzler's survival.          Moreover, allowing  the plaintiff  to reopen did  not perceptibly          delay  the trial  and did  not occasion  any interruption  of the          defense case.  In any event, the district court prudently offered          the defendant a continuance  so that it might regroup  and better          rebut the  additional evidence.  By declining  the court's offer,          the defendant  confirmed the  absence of  unfair prejudice.   See                                                                        ___          United  States v.  Diaz-Villafane,  874 F.2d  43, 47  (1st Cir.),          ______________     ______________          cert. denied, 493  U.S. 862 (1989).   Under these  circumstances,          _____ ______          the granting  of  the plaintiff's  motion  to reopen  comes  well          within  the  heartland  of the  trial  court's  discretion.   See                                                                        ___          Rivera-Flores, 64 F.3d at 749.          _____________                          C.  The Emotional Distress Award.                          C.  The Emotional Distress Award.                              ____________________________                    Where, as  here, a  federal court  sets aside  a jury's          verdict and directs the entry of judgment as a matter of law, the          court must also rule conditionally  on any concomitant motion for          a  new trial.  See  Fed. R. Civ. P. 50(c).   In this instance the                         ___          district court held that, if it had erred in granting judgment as          a matter of  law on count 3, then the jury's award of damages for          emotional  distress should  stand.   The  defendant assails  this          contingent  ruling and  argues  for  either  a  new  trial  or  a          remittitur on count 3.   In its most cogent  aspect, the argument                                          30          is  based  on  the  premise  that  the  scanty  physical symptoms          exhibited  by the  plaintiff simply  do not  justify an  award of          $200,000 in damages.                    Federal law  governs the question of  whether the trial          court should order a remittitur in a diversity case.  See Donovan                                                                ___ _______          v. Penn Shipping Co., 429 U.S. 648, 649 (1977).  Under applicable             _________________          federal  standards, appellate  review is  limited to  whether the          district court abused  its discretion in deciding to  endorse the          jury  award rather  than trim it  or set  it aside  as excessive.          See, e.g., Ruiz  v. Gonzalez Caraballo, 929 F.2d 31, 34 (1st Cir.          ___  ____  ____     __________________          1991); Wagenmann v. Adams, 829 F.2d 196, 215 (1st Cir. 1987).                 _________    _____                    An  award of  damages will  not be  deemed unreasonably          high or low as  long as it comports with some "rational appraisal          or  estimate of the  damages that could be  based on the evidence          before the jury."  Milone, 847 F.2d at 37 (citation omitted).  On                             ______          the  high side,  a damage  determination will  withstand scrutiny          unless  it is  "grossly  excessive, inordinate,  shocking to  the          conscience of the court, or  so high that it would be a denial of          justice  to  permit  it  to  stand."    Correa  v.  Hospital  San                                                  ______      _____________          Francisco, 69 F.3d 1184, 1197 (1st Cir. 1995) (quoting Grunenthal          _________                                              __________          v.  Long  Island R.R.  Co.,  393  U.S. 156,  159  & n.4  (1968)),              ______________________          petition  for  cert. filed,  64  U.S.L.W. 3605  (Feb.  26, 1996).          ________  ___  _____ _____          Moreover, "an appellate court's  normal disinclination to second-          guess  a jury's  evaluation of  the proper  amount of  damages is          magnified where . . . the damages entail  a monetary valuation of          intangible losses, and the trial judge, having seen and heard the                                          31          witnesses at first hand, accepts the jury's appraisal."  Id.                                                                   ___                    Here, viewing the evidence of damages in the light most          amiable to the plaintiff, see Toucet v. Maritime  Overseas Corp.,                                    ___ ______    ________________________          991 F.2d 5, 11  (1st Cir. 1993); Ruiz,  929 F.2d at 34,  we think                                           ____          that  the award, though  perhaps generous, passes  muster.  Under          New Jersey law, no particular level of physical symptomatology is          necessary  to  support  damages  for  emotional  distress.    See                                                                        ___          Strachan v. John  F. Kennedy Mem. Hosp., 538 A.2d  346, 353 (N.J.          ________    ___________________________          1988).8    The  testimony  in  this  record  indicates  that  the          plaintiff watched helplessly  as her husband collapsed,  vomited,          passed  out,  and became  cyanotic.   She was  still in  the room          nearly fifteen minutes later when an oxygen mask was being placed          over  her unconscious husband's mouth and nose.  In the aftermath          of her husband's death, she experienced daily  flashbacks to that          time  of  torment.   She  still  suffers  from  insomnia, cardiac          palpitations, and shortness  of breath.   Coupled  with proof  of          negligent   infliction  of  emotional   distress,  this  evidence          justifies substantial compensation under New Jersey law.                    Of course,  the task  of valuing noneconomic  losses in          tort cases is an imprecise exercise.   There is no one  "correct"                                        ____________________               8At  one  time  New  Jersey  courts  did  require  proof  of          "substantial bodily injury or sickness" in all emotional distress          cases.  See, e.g., Caputzal v. The Lindsay Co., 222 A.2d 513, 515                  ___  ____  ________    _______________          (N.J.  1966);  Falzone v.  Busch, 214  A.2d  12, 17  (N.J. 1965).                         _______     _____          Portee  changed  this rule  in  respect  to bystander  liability,          ______          permitting recovery  in the absence  of physical symptoms  if the          circumstances are such that  severe emotional distress can easily          be inferred.  See Portee, 417 A.3d at 527-28.                        ___ ______                                          32          sum,  but, rather,  a  range  of  acceptable  awards.    In  many          instances  the spread between the high and  low ends of the range          will be great.  The choice within the range   which by its nature          requires the decisionmaker to translate intangibles (such as pain          and  suffering) into quantifiable dollars and cents   is a choice          largely within  the jury's ken.   See  Correa, 69  F.3d at  1197.                                            ___  ______          Since we are unable to conclude on this record that $200,000 is a          figure beyond  the wide  universe of acceptable  awards, we  must          uphold  the  district court's  finding  that  the figure  is  not          excessive.  See Ruiz, 929 F.2d  at 34 (explaining that the  court                      ___ ____          of  appeals "cannot,  and  will not,  without substantial  cause,          overrule a  trial judge's considered  refusal to tamper  with the          damages assessed by a jury").          VI.  CONCLUSION          VI.  CONCLUSION                    We need  go no further.  The record adequately supports          the jury's conclusion that  the defendant's inexplicable delay in          calling  an  ambulance constituted  a  proximate  cause of  James          Blinzler's  death   and  negligently  inflicted   both  emotional          distress and  a loss of consortium  on his wife (now  his widow).          Finding,  as  we do,  that  the law  of  New Jersey  permits this          multifaceted  conclusion  to  remain   fully  intact,  that   the          defendant's several challenges to evidentiary and case-management          rulings are  meritless,  and that  the  damages awarded  are  not          grossly excessive, we reinstate the jury verdict in its entirety.          As a necessary corollary, we vacate the district court's entry of          judgment for the defendant on count 3.                                          33          Affirmed in part  and reversed in  part.  Costs  in favor of  the          Affirmed in part  and reversed in  part.  Costs  in favor of  the          _______________________________________   _______________________          plaintiff.          plaintiff.          _________                                          34
