
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 92-2479                             BEREND J.D. HAVINGA, ET AL.,                                Plaintiffs, Appellees,                                          v.                      CROWLEY TOWING AND TRANSPORTATION COMPANY,                                Defendant, Appellant.                                                                                      ____________________        No. 93-1073                             BEREND J.D. HAVINGA, ET AL.,                               Plaintiffs, Appellants,                                          v.                      CROWLEY TOWING AND TRANSPORTATION COMPANY,                                 Defendant, Appellee.                                                                                      ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                                                                      ____________________                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                                                                      ____________________                  J.  Ramon Rivera-Morales, with whom Manolo T. Rodriguez-Bird                  ________________________            ________________________        and Jimenez, Graffam  & Lausell  were on brief  for defendant  Crowley            ___________________________        Towing.             Eugene  F. Hestres, with  whom Bird, Bird  & Hestres  and Jose F.             __________________             _____________________      _______        Sarraga were on brief for plaintiffs Berend J.D. Havinga, et al.        _______                                                                                      ____________________                                     June 2, 1994                                                                                      ____________________                    CYR, Circuit Judge.  This admiralty action stems from a                    CYR, Circuit Judge.                         _____________          nighttime collision  approximately four  miles off the  island of          Culebra,  Puerto Rico, between the 65-foot  sailboat GLORIA and a          262-foot  barge  under tow  by  the tugboat  BORINQUEN,  owned by          defendant-appellant  Crowley Towing and  Transportation Co., Inc.          The five plaintiffs,  the captain  and crew of  the GLORIA,  were          forced  to  abandon her  moments  before the  collision  and were          rescued several hours later.                     Following a ten-day trial in the United States District          Court for the  District of  Puerto Rico, a  jury found  Crowley's          negligence the sole  cause of the collision,  and awarded damages          totalling $1,661,700.1   Judgment entered  on July 24, 1992.   On          August 7,  plaintiffs filed  a motion  to amend  the  judgment to          provide for attorney fees,  prejudgment interest, and  extraordi-          nary  costs.   As  the Rule  59(e)  motion was  not  served until          August 11, it was  summarily denied.  See Fed. R.  Civ. P. 59(e).                                                ___          Meanwhile, Crowley  had  renewed its  motion  for judgment  as  a          matter of law or for  new trial, which the district  court denied          on November 18.  See Fed. R. Civ. P. 50(b).   Crowley now appeals                           ___          both  the final  judgment and  the order  denying its  Rule 50(b)          motion  for new trial  or for judgment  as a matter of  law.  The          plaintiffs  cross-appeal  from the  denial  of  their Rule  59(e)          motion to amend the judgment.                                          ____________________               1At  the end of  plaintiffs' case and again  at the close of          the  evidence, Crowley  unsuccessfully  moved for  judgment as  a          matter of law, see Fed. R. Civ. P. 50(a), on the issue of compar-                         ___          ative fault.                                          2                                          I                                          I                                      DISCUSSION                                      DISCUSSION                                      __________          A.   THE CROWLEY APPEAL          A.   THE CROWLEY APPEAL               __________________               1.   Liability               1.   Liability                    _________                    On  appeal,  Crowley  contends,  inter alia,  that  the                                                     _____ ____          special  jury verdict on liability is contrary to the evidence on          comparative fault.                    a.   Standard of Review                    a.   Standard of Review                         __________________                    Absent a controlling error  of law, which we review  de                                                                         __          novo, see  Stauble v. Warrob,  Inc., 977 F.2d 690,  693 (1st Cir.          ____  ___  _______    _____________          1992), an  order denying a new trial will be reversed only if the          verdict was against the  clear weight of the evidence,  viewed in          the light most favorable to the prevailing party, or would work a          clear miscarriage  of justice, Phav  v. Trueblood, 915  F.2d 764,                                         ____     _________          766 (1st  Cir. 1990).   As  Crowley asserts no  error of  law, we          review only for abuse of discretion.  Id.                                                  ___                    A  federal court may not  set aside a  jury verdict and          direct  the entry of a contrary verdict unless no reasonable jury          could have returned a  verdict adverse to the moving  party.  See                                                                        ___          Acevedo-Diaz v. Aponte, 1 F.3d 62, 66 (1st Cir. 1993).  In making          ____________    ______          this determination,  we examine  the evidence  in the  light most          favorable to  the nonmoving party, drawing  all reasonable infer-          ences in its favor.  Cochrane v. Quattrocchi, 949 F.2d 11, 12 n.1                               ________    ___________          (1st Cir. 1991), cert. denied,       U.S.      , 112 S.  Ct. 2965                           ____  ______  _____      _____                                          3          (1992); Keisling v. Sea-Jobs for Progress, Inc.,     F.3d    ,                     ________    ___________________________  ___      ___   _          , No. 93-1406, 1994 WL 92055, at *3 (1st Cir. March 29, 1994).                     b.   Violation of COLREGS                    b.   Violation of COLREGS                         ____________________                    Appellant  Crowley  argues  that  the  failure  of  the          GLORIA's crew to take  appropriate evasive action or to  call the          captain in time to avoid the collision violated the International          Regulations for Preventing Collisions at Sea  (COLREGS).2  As the          evidence  supports the  special verdict  absolving plaintiffs  of          fault, we reject Crowley's challenge.                    Plaintiffs'  expert,  Captain Jose  Rivera  Tolinche, a          master mariner,  testified that  the GLORIA followed  proper col-          lision-avoidance  procedure.3   Captain  Rivera stated  that  the          GLORIA was placed "in extremis" through no fault of her own.  The                             __ ________          in  extremis rule  provides that  "where one  ship has,  by wrong          __  ________          manoeuvres, placed  another ship in a position of extreme danger,                                        ____________________               2Crowley's allegations that the GLORIA  violated the COLREGS          implicate the admiralty causation presumption under the "Pennsyl-          vania Rule."  See The  Pennsylvania, 86 U.S. (19 Wall.)  125, 136                        ___ _________________          (1874).  Under  the Pennsylvania  Rule, a vessel  shown to be  in          actual violation of a  collision-prevention rule bears the burden          of  proving that  her fault  could not  have been  a contributing                                       _____ ___          cause of the accident.   See Capt'n Mark v. Sea Fever  Corp., 692                                   ___ ___________    ________________          F.2d 163, 167 (1st Cir. 1982).               3Since the sailboat GLORIA  was the "privileged" vessel, see                                                                        ___          COLREGS, Rule  18(a)(iv) (power-driven  vessel shall keep  out of          way of sailing  vessel), the "default passing  rule" required her          to  hold course  and speed,  id. Rule  17(a)(i), until  it became                                       ___          apparent  that  the BORINQUEN,  the  "burdened  vessel," was  not          taking appropriate action to  avoid collision, at which time  the          GLORIA was allowed  to manoeuvre  to avoid collision,  id.   Rule                                                                 ___          17(a)(ii).  At the point  at which the collision could no  longer          be avoided by unilateral action on the part of the BORINQUEN, the          GLORIA was required to take action to avoid a collision.  See id.                     ________                                       ___ ___          Rule 17(b).                                          4          that  other ship will not be held  to blame if she has done some-          thing wrong."  Puerto  Rico Ports Auth. v. M/V  Manhattan Prince,                         ________________________    _____________________          897 F.2d 1, 6 (1st Cir. 1990) (citations  omitted).4  Thus, there          was sufficient  evidence to  support the finding  that plaintiffs          did not fail to follow any collision-avoidance procedure required          under  the  COLREGS before the  GLORIA had been placed in extreme          danger, at which  point any  subsequent mistake on  her part  was          excused.  See id. ("the judgment  of a competent sailor in extre-                    ___ ___                                       __ ______          mis cannot be impugned").5            ___                                        ____________________               4Though  Crowley  does  not challenge  the  special  verdict                                 ____  ___ _________          finding  that the  BORINQUEN  placed the  GLORIA in  extremis, it                                                           __  ________          claims that the in  extremis doctrine does not apply  because the                          __  ________          GLORIA placed herself in extreme danger.  See Bucolo, Inc. v. S/V                                                    ___ ____________    ___          JAGUAR, 428 F.2d 394, 396 (1st Cir. 1970) (in extremis applicable          ______                                     __ ________          only  when party asserting it was free from fault until emergency          arose).  Crowley's argument is foreclosed on appeal, however,  by          Captain Rivera's  testimony, which  formed an adequate  basis for          the jury  finding that  "the tug  BORINQUEN place[d]  the GLORIA,          through no  fault of her own,  in a position of  extreme danger .          _______ __  _____ __ ___ ___          . . ."  (Emphasis added).               5Crowley now contends, for  the first time, that plaintiffs'          conceded failure  to establish  radio contact with  the BORINQUEN          violated COLREGS, Rule 2 (in  complying with COLREGS, due  regard          shall be had to  all dangers of navigation and  collision), since          the watch  aboard the GLORIA sighted  the BORINQUEN approximately          thirty-five minutes prior to the collision.  The failure to raise          this argument below effected  its waiver.  See Wells  Real Estate                                                     ___ __________________          v. Greater Lowell Bd. of Realtors,  850 F.2d 803, 810 (1st  Cir.)             ______________________________          ("We do not  reach the issue of the sufficiency  of the evidence,          however, because plaintiff's counsel failed to move for [judgment          as a matter  of law under Rule 50(a)] in the district court . . .          The motion must also be made with sufficient specificity to allow          ___ ______ ____ ____ __ ____ ____ __________ ___________ __ _____          the district judge  to understand precisely  why the evidence  is          ___ ________ _____  __ __________ _________  ___ ___ ________  __          insufficient.   Appellate  review  may be  obtained  only on  the          ____________    _________  ______  ___ __  ________  ____ __  ___          specific ground  stated in  the motion") (emphasis  added), cert.          ________ ______  ______ __  ___ ______                      _____          denied, 488 U.S. 995  (1988), (citing Pstragowski v. Metropolitan          ______                                ___________    ____________          Life Ins. Co., 553 F.2d 1, 3 (1st Cir. 1977)).           ____ ____ ___                                                     5                    c.   Failure to Use Reasonable Care                    c.   Failure to Use Reasonable Care                         ______________________________                    Crowley claims  that a finding of  negligence was "man-          dated" because some  plaintiffs lacked  seafaring experience  and          "did  not have  much time  to couple  together as  a crew."   The          plaintiffs testified to their  training and experience.6  Captain          Rivera  offered  the professional  opinion  that plaintiffs  were          qualified for their respective positions aboard the GLORIA, based          on  their  backgrounds and  experience.    Thus,  in addition  to          Crowley's failure to establish  a causal relationship between the          collision and any  alleged negligence  on the part  of the  crew,          there  was adequate  support for  a jury  finding that  the crew,          individually and collectively, possessed the requisite competence          and qualifications.                     d.   Unseaworthiness                    d.   Unseaworthiness                         _______________                    Crowley further claims that the GLORIA was unseaworthy,          as the evidence  established that her  engine failed to  function          when  plaintiffs attempted to  start it immediately  prior to the          collision.  Thus, Crowley argues, plaintiffs incurred contributo-          ry fault.  See Gertrude Parker, Inc. v. Abrams, 178 F.2d 259 (1st                     ___ _____________________    ______          Cir. 1949)  ("unseaworthiness" is ground for  liability in marine          casualty).    The  record nonetheless  substantiates  the special                                        ____________________               6Captain Havinga  is a  licensed deck  officer in  the Dutch          Merchant Marine, and  a Royal Dutch Navy officer.   Hagemann is a          German-certified  able  seafarer,  whose  ten  years  of  sailing          experience included many  voyages as  a crewman, and  one or  two          trips as  the skipper of a  vessel similar to the  GLORIA.  Stach          and Van der Ark had taken courses in basic seamanship.  Paschedag          had  served as  a  crewmember on  at  least three  prior  sailing          voyages in Europe  and the Caribbean, including a  two-week stint          in the Aegean Sea.                                            6          verdict on comparative fault.  Hagemann, an experienced mechanic,          testified  to  proper  maintenance  and  repair  of  the  engine.          Captain  Rivera provided  expert  testimony that  the GLORIA  was          seaworthy.  As Crowley has neither shown that the special verdict          on comparative fault  was against  the clear weight  of the  evi-          dence,  nor that  the district  court erred  in denying  the Rule          50(b)  motion  for judgment  as a  matter  of law,  the liability          judgment against Crowley must stand.                2.   Damages               2.   Damages                    _______                    Crowley challenges  the amount  of damages awarded  for          economic loss, pain and suffering, and loss of enjoyment of life,          as well  as the district court  order denying its  motion for new          trial on  damages or for a  remittitur.  Crowley argues  that the          damages awarded for economic  loss exceed any rational evaluation          of the evidence,  see Kolb v. Goldring,  Inc., 694 F.2d  869, 871                            ___ ____    _______________          (1st Cir. 1982), and that the awards for noneconomic injuries are          so  grossly excessive as to  "shock the conscience," see McDonald                                                               ___ ________          v. Federal Labs., Inc., 724 F.2d 243, 246 (1st Cir. 1984) (citing             ___________________          Gruenthal v. Long Island R.R. Co., 393 U.S. 156, 159 (1968)).            _________    ____________________                    a.   Standard of Review                    a.   Standard of Review                         __________________                    Though notoriously difficult to quantify, see Rivera v.                                                              ___ ______          Rederi  A/B Nordstjernan, 456 F.2d 970, 975 n.8 (1st Cir.), cert.          ________________________                                    _____          denied, 409 U.S.  876 (1972), noneconomic  damages, such as  pain          ______          and suffering and loss of enjoyment of life, "are not immune from          appellate review," Anthony v. G.M.D. Airline Servs., 17 F.3d 490,                             _______    _____________________                                          7          494 (1st Cir. 1994) (citations omitted).  But appellant bears the                                          8          heavy burden of establishing that an award 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."          McDonald,  724  F.2d at  246 (citations  omitted).   We  will not          ________          disturb an  award  of damages  merely  because it  is  "extremely          generous,  or [because] had we been deciding, we would have found          the damages to be considerably less," Williams v. Martin Marietta                                                ________    _______________          Alumina, Inc., 817 F.2d 1030, 1038 (3d Cir.) (citations omitted),          _____________          cert.  denied, 484 U.S. 913 (1987), cited with approval in Antho-          _____  ______                       ______________________ ______          ny,  17 F.3d at 494.  Rather, we will reverse an award only if it          __          is so grossly  disproportionate to any injury  established by the                         ________________ __ ___ ______  ___________ __ ___          evidence as to be unconscionable as  a matter of law.  See Milone          ________                                               ___ ______          v. Moceri Family, Inc., 847 F.2d 35, 37 (1st Cir. 1988); Marchant             ___________________                                   ________          v. Dayton Tire & Rubber  Co., 836 F.2d 695, 704 (1st  Cir. 1988);             _________________________          Wagenmann v. Adams, 829 F.2d 196, 200-01 (1st Cir. 1987); Bonn v.          _________    _____                                        ____          Puerto  Rico  Int'l Airlines,  Inc., 518  F.2d  89, 94  (1st Cir.          ___________________________________          1975).                    b.   Pain and Suffering and Loss of                    b.   Pain and Suffering and Loss of                         Capacity for Enjoyment of Life                         Capacity for Enjoyment of Life                         ______________________________                    The lion's share (97%) of the challenged awards was for          "pain, suffering and  loss of capacity  for enjoyment of  life."7                                        ____________________               7The individual awards were as follows:                         Pain/                         Pain/                         Suffering,                          Suffering,                          Lost           Personal       Medical        Lost                          Lost           Personal       Medical        Lost                          Enjoyment      Effects        Expenses    Earnings                         Enjoyment      Effects        Expenses    Earnings                         _________      _______        ________    ________          Havinga:       $450,000       $27,000        $2,500         0          Havinga:          _______          Stach:         $400,000       $32,400        $1,500         0          Stach:          _____                                          9          See  Room v.  Caribe Hilton Hotel,  659 F.2d  5, 8  n.3 (1st Cir.          ___  ____     ___________________          1981) (pain and suffering); Gutierrez-Rodriguez v. Cartagena, 882                                      ___________________    _________          F.2d 553, 580  (1st Cir. 1989) (loss of enjoyment  of life).  The          special  verdict forms  did not  differentiate between  "pain and          suffering" and "loss of  enjoyment of life."  Further,  there was          no objection to the  jury charge, which lumped all  alleged forms          of noneconomic injury:  "If you find . . . for the plaintiffs you          should  compensate them for any bodily injury, any resulting pain          or  suffering, mental anguish and loss of capacity for the enjoy-          ment of life experiences in the past, and which you find from the          evidence  that they  are reasonably  certain to  suffer [i]n  the          future from the injury  in question."  Further, in  closing argu-          ment,  plaintiffs'  counsel  appealed  to the  jury  as  follows,          without objection:  "You have the opportunity to compensate these          five  plaintiffs for  the  loss of  the  quality of  their  life.          Something was taken  from them on April 12, 1989,  and you cannot          return that .  . .   But  you can  try to  compensate fairly  and          justly for  all their losses, for  all their pain,  for all their          suffering, for  the loss of  the quality  of life, for  the three          years that they have had to wait until they finally came here . .          . ."                                         ____________________          Van der Ark:   $200,000       $ 2,300           0           0          Van der Ark:          ___________          Hagemann:      $300,000       $ 9,400        $7,000         0          Hagemann:          ________          Paschedag:     $200,000       $15,600        $7,000      $7,000          Paschedag:          _________          No  award was made for  future medical expenses.   See infra note                                                             ___ _____          15.                                          10                    Viewed in  the light  most favorable to  the challenged          awards, see Toucet  v. Maritime  Overseas Corp., 991  F.2d 5,  11                  ___ ______     ________________________          (1st           Cir.  1993), the  evidence relating  to damages  was  as follows.          Plaintiffs Hagemann and Paschedag, who were standing watch aboard          the GLORIA,  first saw the BORINQUEN's running lights at approxi-          mately 2:55 a.m.  As  the BORINQUEN changed course at  3:24 a.m.,          Hagemann anticipated  that she  would pass on  the GLORIA's  port          side  in accordance with the COLREGS.  As Hagemann soon realized,          however, the  BORINQUEN instead  was assuming a  collision course          with the GLORIA,  so he attempted  to bring  the GLORIA to  star-          board.  Unable to steer the GLORIA clear of the BORINQUEN without          motor power,  Hagemann tried unsuccessfully to  start her engine.          Paschedag frantically  attempted to signal the  BORINQUEN with an          air horn and  a marine light, to no avail.   Hagemann then yelled          for  Captain Havinga  and the  two other  crew members,  who were          asleep below.  Although Havinga quickly came on deck, by the time          he could take the  helm and attempt evasive maneuvers  the BORIN-          QUEN was within 60 feet and coming on "very fast."8                                          ____________________               8The parties stipulated that the BORINQUEN changed course at          3:24 a.m.  There was testimony that this course change placed the          GLORIA in extremis.  The helmsman of the BORINQUEN testified that                 __ ________          the course change took "about five minutes," "more or less."   At          some point between  3:24 and 3:30,  Hagemann recognized that  the          tug  was  assuming  a collision  course,  placing  the  GLORIA in                                                                         __          extremis.  Thus,  as approximately one minute  passed between the          ________          narrow  miss by the  BORINQUEN and the first  impact with the tow          barge  (at 3:30), the jury  reasonably could have  found that the          GLORIA  had no  more than  two to three  minutes within  which to          attempt to avoid the collision.                                            11                    The BORINQUEN  herself narrowly missed the  GLORIA.  As          the vessels passed, however, a 200-meter steel tow cable connect-          ing the BORINQUEN with  its 262-foot tow barge scraped  along the          deck of  the GLORIA, crushing objects  in its path.   As the huge          barge bore  down  on the  65-foot GLORIA,  plaintiffs could  only          await  the  impending  collision  in helpless  panic.9    Moments          before the initial impact at 3:30 a.m., Havinga, fearing that the          GLORIA would be dragged  under the barge, ordered the  crew over-          board.   Before the men could respond, however, they were knocked          off  their feet  by the  force of  the first of  three collisions          between the barge and  the GLORIA.  The GLORIA swayed  90 degrees          to  the horizontal  several  times before  righting herself,  and          rapidly  drifted away.   The  plaintiffs could  see  the helmsman          aboard the BORINQUEN as the  barge passed them in the water,  but          were unable to attract attention aboard the BORINQUEN.                    Eventually  the  five plaintiffs  made  it  to a  small          rubber dinghy which Stach  had managed to throw from  the GLORIA,          her life  boat having been lost  in the collision.   Due to their          confusion and panic, as well as  the darkness and rough seas, the          crew  had great  difficulty reaching  the dinghy,  and Stach  and          Paschedag nearly drowned.   The dinghy was large enough  for only          two or three  persons, and  the five plaintiffs  were piled  two-          deep.   Havinga, Van der Ark, and Stach had lost all their cloth-          ing, and shared  the little  clothing worn by  Hagemann and  Pas-                                        ____________________               9Approximately sixty seconds elapsed  between the passing of          the BORINQUEN  itself and  the GLORIA's initial  impact with  the          trailing barge.  See supra note 8.                           ___ _____                                          12          chedag.   The men  shivered uncontrollably, their  situation made          more  miserable  by Havinga's  incontinence  and  the sea  swells          washing over the sides of the dinghy.                    At trial,  each plaintiff testified to  his own experi-          ence  and  emotional  state,  including  shock,  hysteria, panic,          desperation, and fear of death.  All were concerned about sharks.          Due  to his  merchant  marine experience,  Havinga realized  (and          advised  Hagemann) that  sharks often  follow  barges to  feed on          scraps  lost overboard.  Their fears were reinforced when Van der          Ark and others  observed fins around and beneath the dinghy.  The          men  knew that  even  a glancing  contact  with a  shark's  rough          exterior could puncture and sink the rubber dinghy.  At the first          appearance of sharks, therefore,  further efforts at paddling the          dinghy were abandoned.  While  awaiting rescue, on several  occa-          sions plaintiffs  experienced elation upon seeing  an approaching          vessel (one within 300 yards), only to have their hopes dashed as          each  vessel passed in the darkness.  Approximately four and one-          half hours  after the collision,  plaintiffs were rescued  by the          tug FAJARDO.                    The individual plaintiffs  testified to their  pain and          suffering  and loss of enjoyment of  life following the accident.          Dr. Jose Fumero,  plaintiffs' examining psychiatrist,  testified,          without objection,  that the  plaintiffs all suffered  from acute          post-traumatic stress  disorder (PTSD),10 a direct  result of the                                        ____________________               10Dr. Fumero testified that  PTSD is an acknowledged anxiety          disorder, see American Psychiatric Assoc., Diagnostic and Statis-                    ___                              ______________________          tical Manual of Mental  Disorders, Third Edition, Revised, 247-49          _________________________________________________________                                          13          accident.  Dr. Fumero  described the emotional injuries sustained          by  each plaintiff,  and  testified to  a  "Global Assessment  of          Function" (GAF)  for each  plaintiff, ranging from  zero (virtual          vegetative state) to ninety (high function).11                    The  district court  instructed  the jury  to  consider          plaintiffs' pain and suffering, as well as any loss of "enjoyment          of life  experiences in  the past,  and which you  find from  the                                       ____          evidence  that they  are reasonably  certain  to suffer  [i]n the          future." (Emphasis  added).  See, e.g.,  Gutierrez-Rodriguez, 882          ______                       ___  ____   ___________________          F.2d at 580 (upholding  damages awarded for loss of  enjoyment of          life;   1983 action); Downie v. U.S. Lines Co., 359 F.2d 344, 348                                ______    ______________          (3d  Cir.) (same; admiralty), cert. denied,  385 U.S. 897 (1966).                                        _____ ______          In  argument,  plaintiffs' counsel  focused  particularly on  Dr.          Fumero's uncontroverted testimony relating to plaintiffs' loss of          emotional function  since the accident, and on the adverse impact          this  would continue  to have  on the  quality of  their lives.12                                        ____________________          (1987),  caused by trauma beyond the range of normal human exper-          ience  which  results  in  such symptoms  as  reexperiencing  the          traumatic event; a tendency to avoid stimuli  associated with the          trauma; numbing of general responsiveness; and increased  arousal          (i.e., difficulty  falling or  remaining asleep;  irritability or           ____          outbursts  of  anger;  difficulty concentrating;  hypervigilance;          exaggerated startle response;  physiologic reactivity upon  expo-          sure to events reminiscent of the event (e.g., a woman previously                                                   ____          raped in an  elevator begins to perspire profusely  upon entering          an elevator)).  See id. at 250.                          ___ ___               11According to Dr. Fumero, the GAF assesses  and compares an          individual's current  level of  emotional function with  his pre-          accident level of function.               12With respect to the severity of their injuries, Dr. Fumero          testified to  the diminishment  in each  plaintiff's pre-accident          emotional function as a result of the accident:  Havinga (from 90          to 65); Stach (75 to 50); Van der Ark (85 to 60); Hagemann (90 to                                          14          Thus, the evidence, argument, and the unchallenged charge allowed          the jury considerable latitude to  award substantial sums as non-          economic damages to compensate plaintiffs not only for their loss          of enjoyment of life during the three years immediately after the          accident, but  into the indefinite future.   See Gutierrez-Rodri-                                                       ___ ________________          guez, 882 F.2d at 580; Kokesh v. American Steamship Co., 747 F.2d          ____                   ______    ______________________          1092, 1095 (6th Cir.  1984) (substantial award "may  also reflect          the evidence that  [plaintiff's] . . . ability to  enjoy life has          been impaired") (admiralty case).                     Contrary to Crowley's attempt on appeal to characterize          these  awards almost  exclusively  as compensation  for pain  and          suffering experienced at and  immediately after the accident, the          noneconomic  damages are  largely supportable  simply on  the un-          controverted  trial evidence  that  each  plaintiff  had  already          experienced substantial  deficits in emotional function  and loss          of enjoyment of life which could be expected to continue into the          indefinite future.   Viewed in  the light most  favorable to  the          verdicts, Fumero's testimony reasonably  enabled the jury to find          that none  of the plaintiffs had regained  normal emotional func-               ____          tion by the time of trial and that though Havinga, Stach, and Van          der Ark may  continue to  improve, it is  uncertain whether  they                                        ____________________          60); Paschedag (85 to 55).   Dr. Fumero described a GAF of 65  as          "very, very low."  Crowley argues that the amounts awarded to the          individual plaintiffs  were disproportionate to  their respective          GAFs.   Dr. Fumero explained,  however, that it  is misleading to          compare  GAFs  between individuals.   The  GAF compares  an indi-          vidual's current emotional function to his pre-accident capacity.          Moreover,  the jury  was entitled  to weigh  all the  evidence in                                                       ___          assessing the individual awards, not merely the GAFs.                                           15          will ever  recover their  pre-accident levels of  emotional func-          tion.   The uncontroverted  evidence also revealed  that Hagemann          and  Paschedag  "had stabilized"  well  below  their pre-accident          levels  of emotional function and  could expect no further "bene-          fits of  improvement."13   Crowley  chose  to present  no  expert          testimony  on loss  of emotional  function, loss of  enjoyment of          life,  or pain  and  suffering, nor  did  it challenge  the  jury          instruction on these noneconomic damages.                     After  a  careful review  of  the  record, see  Coy  v.                                                               ___  ___          Simpson Marine Safety  Equip., Inc.,  787 F.2d 19,  27 (1st  Cir.          ___________________________________          1986),  we are  unable  to say  that  these noneconomic  damages,          though  generous to  be  sure, were  so  disproportionate to  the          uncontroverted evidence of "pain and suffering," severe emotional          injuries,  and loss of  enjoyment of life,  as to  shock the con-          science.   See, e.g., Joia  v. Jo-Ja Serv.  Corp., 817 F.2d  908,                     ___  ____  ____     __________________          918-19  (1st Cir.  1987) (while  $250,000 award,  exclusively for          "pain  and  suffering," was  "very  high,"  it  was supported  by          sufficient evidence  so as  not to  shock the  conscience), cert.                                                                      _____          denied, 484 U.S.  1008 (1988).   The evidence  was sufficient  to          ______          establish  that plaintiffs' emotional  and psychological injuries                                        ____________________               13Crowley  suggests  that  the jury  acted  irrationally  by          returning the two smallest noneconomic damages awards to Hagemann          and Paschedag, the two plaintiffs with the greatest GAF differen-          tial at the time of trial.  However, GAF differential was not the          only evidence going to  noneconomic damages.  The jury  heard Dr.          Fumero's detailed  clinical descriptions of the individual plain-          tiffs' mental health, as well as each plaintiff's testimony about          his own  emotional response.  And, of  course, the jury was enti-          tled  to weigh all the  evidence going to  each component of non-          economic damages.                                            16          were severe, "significantly affected" the quality of their lives,          and  caused each to avoid  activities in which  he had engaged.14          Cf.  Anthony, 17  F.3d  at 494  ($566,765 award,  exclusively for          ___  _______                                      ___________          "pain  and suffering,"  held  grossly  disproportionate,  absent,          inter alia, any "evidence  [that plaintiff's] injury has rendered          _____ ____       ________          him unable to perform  any particular functions or engage  in any          particular activities  [or] otherwise interfered with his profes-          sional,  recreational,  or  personal  life")   (emphasis  added);          Marchant, 836 F.2d  at 703-04 ($550,000 pain  and suffering award          ________          unconscionable when,  inter alia, injury did  not cause plaintiff                                _____ ____          significant  financial losses).    Further, the  jury could  have          found  that  plaintiffs'  post-traumatic  stress  disorders  were          permanent  and chronic.15   Cf.  Anthony, 17  F.3d at  494 ("pain                                      ___  _______                                        ____________________               14Dr. Fumero  also testified  that the plaintiffs'  PTSD was          "directly  related" to  the accident  involving the GLORIA.   Cf.                                                                        ___          Bonn,  518 F.2d  at 93-94.   In  Bonn, the plaintiffs  were three          ____                             ____          children whose  parents had  been killed  in a  plane crash.   We          found that a $1,045,000  "pain and suffering" award to  the chil-          dren  was  "unconscionable," in  significant  part  because their          emotional injuries  were not  directly related to  their parents'          death.  Id. at 94  ("[t]estimony and pre-accident reports conclu-                  ___                                               _______          sively  establish  that  the  children exhibited  many  of  their          ______          present emotional problems before their parents' death."  (Empha-          sis added)).                There was  evidence that  all these plaintiffs  have greater          fear  of the sea; Havinga  and Stach now  avoid stressful profes-          sional  and  personal  situations; Hagemann  suffered  financial,          personal,  and sexual  problems; Van  Der  Ark has  experienced a          lessening of academic interest;  and Paschedag, who sustained the          greatest  loss of  emotional  function, was  unable  to work  for          approximately five months.               15Crowley argues that since no plaintiff was awarded damages          for future medical expenses, and each received only a small award              ______ _______ ________          for past medical expenses, there was  no evidence of "substantial          long term injuries"  sufficient to  justify the awards.   On  the          contrary,  the jury  reasonably  could have  awarded  noneconomic                                                                ___________          damages  for past "pain and  suffering" and emotional injury, and          _______                                          17          and suffering"  award vacated because, inter alia,  there was "no                                                 _____ ____          testimony or other evidence  that [plaintiff's] current condition          is permanent").                    Although Crowley  now  challenges its  weight, Dr.  Fu-                                                           ______          mero's expert testimony as  to each plaintiff's PTSD and  loss of          emotional  function  was  admitted  without  objection  and  went          uncontroverted at trial.   Thus, the jury was entitled  to credit          ______________          this  testimony  fully.   Gutierrez-Rodriguez,  882  F.2d at  579                                    ___________________          ("Against  [the plaintiff's  expert's]  evidence, the  defendants          offered no contradictory  testimony.  The . . . facts were uncon-          troverted and the jury was entitled to accept all of them").  See                                                                        ___          also Fed. R. Civ.  P. 35(a) (permitting,  on motion and for  good          ____          cause, psychological  examination of  party when mental  state in          controversy).   Crowley merely  argues that  the awards  for non-          economic injuries are so  disproportionate to the damages compen-          sating plaintiffs for  their medical  expenses as  to render  the          awards grossly  excessive, citing Betancourt v.  J.C. Penney Co.,                                            __________     _______________          554  F.2d 1206, 1209 (1st  Cir. 1977) (vacating  jury award where          noneconomic damages were 120  times greater than economic damages                                        ____________________          for permanent "loss of  capacity for enjoyment of  life," without          concluding  that future  medical treatment  was indicated.   See,                                                                       ___          e.g., Dunn v. Penrod Drilling Co., 660 F. Supp. 757, 770-71 (S.D.          ____  ____    ___________________          Tex. 1987)  (awarding  $110,000  for past  and  future  pain  and          suffering, but  declining to award damages  for medical expenses)          (admiralty case).                 Crowley  also  maintains  that  the  awards  were  excessive          because each plaintiff showed  improvement by the time of  trial.          Of  course, improvement would not preclude an award for "pain and          suffering," loss of emotional function, and  loss of enjoyment of          life  already experienced  during the  three years  following the                        ___________          accident.  Nor would  it preclude an award for  loss of emotional          function and enjoyment of life in the future.                                            18          because  award "simply  makes  no sense")  (applying Puerto  Rico          law).  While the relationship among its various components may be          considered in  evaluating the total  award, see id.,  the primary                                                      ___ ___          teaching in our cases  is that damages not be  grossly dispropor-          tionate to  the injury.  See Laaperi v. Sears, Roebuck & Co., 787                          ______   ___ _______    ____________________          F.2d 726, 735 (1st Cir. 1986).  In this  case, the uncontroverted          evidence  of severe  PTSD,  accompanied by  substantial pain  and          suffering  and loss of enjoyment of life brought on by diminished          emotional function,  which may  well prove permanent,  takes this          case out of the Betancourt mode.16                           __________                    Finally,  Crowley  claims  these  awards   are  grossly          excessive compared  to awards  in other cases.   As  we have  ex-          plained, "the paramount focus in reviewing a damage award must be          the  evidence presented at trial  . . . .  Absent  a most unusual          ________________________________          case  . . . we cannot imagine  overturning a jury  award that has          substantial  basis in  the evidence."   Gutierrez-Rodriguez,  882                                                  ___________________          F.2d at 579 (citations omitted) (emphasis added).  An examination          of other awards  upheld in  our case law  suggests no  sufficient          basis  for upsetting  the  present awards.    See id.  at  579-80                                                        ___ ___          (explaining  that a  jury award  will not  be overturned  "merely          because  the amount  of the  award is  somewhat out of  line with          other cases  of  similar  nature.")   Indeed,  our  research  has                                        ____________________               16For example, there was evidence in Betancourt that if  the                                                    __________          plaintiff had been willing to undergo treatment for a three-month          period,  "she  would feel  'just  about  completely well  in  her          initial  condition . . . [and] will  heal and live  a normal life          almost free of  pain.'"  554 F.2d at 1208.   Not only is there no          such evidence  here, but  the modest injuries  sustained in  Bet-                                                                       ____          ancourt were exclusively physical.          _______                                          19          disclosed  no sufficiently  similar  case to  suggest, let  alone          persuade,  that  these  awards  for noneconomic  damages  are  so          excessive as to require retrial or remittitur.17                    c.   Economic Damages                    c.   Economic Damages                         ________________                    We must  now determine whether the  damages awarded for          economic  loss have  "adequate  evidentiary support."   Segal  v.                                                                  _____          Gilbert Color  Sys., Inc., 746 F.2d 78, 81 (1st Cir. 1984) (cita-          _________________________          tion omitted).  We will uphold an award for economic loss provid-          ed it does  not "violate the  conscience of the  court or  strike          such  a dissonant  chord that  justice would  be denied  were the          judgment  permitted to  stand," Milone,  847 F.2d  at 37.   Under                                          ______          these  standards, we  examine  the evidence  in detail,  see Gru-                                                                   ___ ____          nenthal, 393  U.S. at  159 (appellate  court must make  "detailed          _______          appraisal  of the evidence bearing on damages"), and in the light          most favorable to plaintiffs, Toucet, 991 F.2d at 11.                                         ______                    Crowley challenges the awards  for past medical expens-          es, loss of personal  effects, and lost earnings, see  supra note                                                            ___  _____          7, as unsupported by the evidence.  We agree in part.  The awards                                        ____________________               17For example,  Crowley cites cases in  which lesser amounts          were awarded for  "pain and suffering" experienced  by seamen who          perished at sea.  See, e.g., Brown v. United States, 615 F. Supp.                            ___  ____  _____    _____________          391  (D.Mass. 1985), rev'd. on  other grounds, 790  F.2d 199 (1st                               ________________________          Cir. 1986), cert. denied, 479 U.S. 1058 (1987); Bergen v. F/V St.                      ____  ______                        ______    _______          Patrick, 816 F.2d  1345 (9th  Cir.), cert. denied,  493 U.S.  871          _______                              ____  ______          (1987).   This anomaly is  due, in  large part,  to the  presumed          brevity of  the  pain and  suffering experienced  before the  de-          cedent's  demise, which is separate  and apart from  an award for          wrongful  death.   Moreover,  as explained  above,  see supra  at                                                              ___ _____          pp.14-15, the noneconomic  damages in this case  were not limited          to "pain and  suffering" at and  immediately after the  accident,          but  included sustained  emotional injuries,  including PTSD  and          plaintiffs' sustained  and/or permanent loss  of emotional  func-          tion.                                            20          for past  medical expenses and lost earnings  are well documented          in the record.  On the other hand, the individual awards for loss          of personal effects (except for the Van der Ark award) exceed the          amounts to which  plaintiffs testified at trial:  Havinga ($5,500          loss, awarded  $27,000); Stach ($17,600  loss, awarded  $32,400);          Hagemann ($5,600 loss,  awarded $9,400); Paschedag  ($7,000 loss,          awarded $15,600).  As there was no other relevant evidence, these          awards  must be pared.18   See Kolb,  694 F.2d at  871 (award for                                     ___ ____          purely  economic damages  is  excessive as  a  matter of  law  if          unsupportable on  any rational view of the  evidence); Segal, 746                                                                 _____          F.2d at 81 (same).                    Therefore, absent  a remittitur,  we must remand  for a          new  trial on damages relating to loss  of personal effects.  See                                                                        ___          Anthony, 17 F.3d at 495.  Since the trial record clearly disclos-          _______          es the maximum amount of damages recoverable for loss of personal          effects,  however, we  can  calculate  the remittitur  ourselves.          Id.; Kolb,  694 F.2d at  875 (as  defects in  award "are  readily          ___  ____                                        ____________________               18Plaintiffs  argue that  a  chart attached  to their  brief          supports the awards.   The chart merely lists the  total economic          damages claimed by  each plaintiff, with  no hint  as to how  the          total  figure was derived.  Plaintiffs concede that the chart was          not  admitted in evidence.   Thus, it  merely served as  a visual          aid.  See Jack B.  Weinstein & Margaret A. Berger,  5 Weinstein's                ___                                             ___________          Evidence   1006[7] (Sept. 1983) (chart itself not evidence unless          ________          admitted  under Fed.  R. Evid.  1006).   Consequently, the  chart          could provide no  evidentiary support for  the awards.   Finally,          plaintiffs neither  point  to,  nor  have we  found,  any  record          support for these awards for loss of personal effects, other than          plaintiffs' testimony.                                            21          identified and  measured," remittitur  more appropriate  than new          trial).19   We therefore order a new  trial on damages claimed by          plaintiffs Havinga,  Stach, Hagemann, and Paschedag  for the loss          of  their personal  effects and  belongings, unless  these plain-          tiffs, respectively, remit $21,500, $14,800, $3,800, and  $8,600,          in which  event their judgments shall stand affirmed as modified.          See id.; 11 Charles A.  Wright & Arthur R. Miller,  Federal Prac-          ___ ___                                             _____________          tice and Procedure   2820, at 133-134 (1973 & Supp. 1993).          __________________          B.   THE CROSS-APPEAL          B.   THE CROSS-APPEAL               ________________                    The plaintiffs  cross-appeal from  the denial of  their          motion  for attorney  fees and  extraordinary costs,20  and their          Rule 59(e) motion for prejudgment interest.  Their claims are un-          availing.21                                         ____________________               19Under the  "maximum recovery" rule, we may condition a new          trial  on the  acceptance of  a remittitur  based on  the highest          award supported  by the evidence.   See Liberty Mut. Ins.  Co. v.                                              ___ ______________________          Continental  Cas. Co., 771 F.2d  579 588-89 (1st  Cir. 1985); see          _____________________                                         ___          also Marchant,  836  F.2d at  704  (noting adoption  of  "maximum          ____ ________          recovery" rule).                20Plaintiffs requested attorney  fees, extraordinary  costs,          and prejudgment interest in  their Rule 59(e) motion to  alter or          amend judgment.  Motions  for attorney fees are governed  by Fed.          R. Civ. P.  54(d)(2), see also  White v. New  Hampshire Dept.  of                                ___ ____  _____    ________________________          Emp. Secur., 455 U.S. 445 (1982)  (pre-Rule 54(d)(2) case holding          ___________          motion for  attorney fees  under 28 U.S.C.    1988 not  barred by          Rule 59(e) time limits), as are costs, see Buchanan v. Stanships,                                                 ___ ________    __________          Inc.,  485 U.S.  265, 267  (1988) (per  curiam)  (application for          ____          costs  properly viewed as Rule 54(d) motion).  These requests for          fees and costs were timely  under Rule 54(d)(2)(B).  See id.   On                                                               ___ ___          the other hand, the claim for prejudgment interest is governed by          Rule 59(e).  See Osterneck v.  Ernst & Whinney, 489 U.S. 169, 175                       ___ _________     _______________          (1989).                 21Crowley  argues that  the cross-appeal  is untimely.   See                                                                        ___          Fed. R. App. P. 4(a)(3) (cross-appeal may be taken within 14 days          after a timely notice of appeal, or as otherwise provided by Rule                                           __                                          22                    Though plaintiffs  claim on  appeal that  attorney fees          were warranted on  the ground that Crowley  engaged in litigation          tactics born  of "premeditated bad  faith," they adduced  no sup-          porting evidence below.   The record would not support  a finding          of bad faith or fraudulent litigation tactics such as the Supreme          Court has found sufficient  to warrant an award of  attorney fees          as  a sanction  under the  "inherent power"  of  the court.   See                                                                        ___          Chambers v.  NASCO, Inc., 501 U.S. 32, ___, 111 S. Ct. 2123, 2140          ________     ___________          (1991).  We therefore find no  abuse of discretion.  See Papas v.                                                               ___ _____          Hanlon, 849 F.2d  702, 703 (1st Cir. 1988); FDIC V. Sumner Finan-          ______                                      ____    _____________          cial Corp., 602 F.2d 670, 683 (5th Cir. 1979) (holding that where          __________          bad faith is not "directly inferable from record," district court          did  not abuse  discretion  in denying  motion for  extraordinary          costs and attorney fees).                      Lastly, plaintiffs  filed their  Rule 59(e)  motion for          prejudgment interest with the  district court on August  7, 1992,          but did not mail it to Crowley until  August 11, see Fed. R. Civ.                                                           ___          P. 5(b) ("[s]ervice by mail is complete upon mailing"), more than          ten days  (excluding intermediate weekends and the  date on which          the order  was entered, Fed. R. Civ.  P. 6(a)) after the judgment          had been  entered on July  24.  Since  the Rule 59(e)  motion was                                        ____________________          4(a)).  Crowley filed its notice of appeal on  December 11, 1992.          On December 31, plaintiffs asked the district court to extend the          time for filing  their cross-appeal, alleging  that they had  not          been  properly served with the Crowley notice of appeal, and that          no  party would  be prejudiced  by the  late filing.   By  margin          order, the court granted the extension.  Fed.  R. App. P. 4(a)(5)          provides  that the district court may extend the appeal period on          motion filed within thirty days of the expiration of the original          appeal period.                                            23          untimely, we lack jurisdiction to entertain the cross-appeal from          the district court  order denying  the Rule 59(e)  motion for  an          allowance of  prejudgment interest.  The  ten-day time limitation          under Rule 59(e) is jurisdictional.  Feinstein v. Moses, 951 F.2d                                               _________    _____          16, 19 (1st Cir. 1991).22                     The judgment in favor of plaintiff-appellee Van der Ark                    ___ ________ __ _____ __ __________________ ___ ___ ___          is affirmed.  The judgment in favor of any plaintiff-appellee who          __ ________   ___ ________ __ _____ __ ___ __________________ ___          fails  to  remit damages  as  follows:    Havinga $21,500;  Stach          _____  __  _____ _______  __  _______     _______ _______   _____          $14,800;  Hagemann $3,800;  and Paschedag  $8,600, within  thirty          _______   ________ ______   ___ _________  ______  ______  ______          days of entry of mandate, shall be vacated.  The case is remanded          ____ __ _____ __ _______  _____ __ _______   ___ ____ __ ________          for a new trial on economic damages  for loss of personal effects          ___ _ ___ _____ __ ________ _______  ___ ____ __ ________ _______          and  belongings or for the  entry of judgments  reduced in accor-          ___  __________ __ ___ ___  _____ __ _________  _______ __ ______          dance herewith.  Costs are allowed to plaintiffs-appellees in No.          _____ ________   _____ ___ _______ __ ____________________ __ ___          92-2479 and to defendant-appellee in No. 93-1073.          _______ ___ __ __________________ __ ___________                                        ____________________               22Under settled admiralty law, moreover, plaintiffs' failure          to  request a  jury  instruction on  prejudgment interest  barred          recovery.  See Scola v. Boat  Frances R., Inc., 618 F.2d 147, 150                     ___ _____    ______________________          (1st  Cir.  1980)  (prejudgment  interest  is  "discretionary  in          maritime  personal  injury  cases,  and the  discretion  must  be          exercised by the jury").               Plaintiffs also  request appellate  costs and damages  under          Fed. R. App.  P. 38, characterizing  Crowley's appeal as  "frivo-          lous."  We disagree.  Crowley not only prevailed in part but even          its unsuccessful appellate claims are not fairly characterized as          "frivolous."                                           24
