
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 97-1361                                YVONNE GIL-DE-REBOLLO,                                Plaintiff - Appellant,                                          v.                      THE MIAMI HEAT ASSOCIATIONS, INC., ET AL.,                               Defendants - Appellees.                                 ____________________          Nos. 97-1622               97-1830                                YVONNE GIL-DE-REBOLLO,                                Plaintiff - Appellee,                                          v.                      THE MIAMI HEAT ASSOCIATIONS, INC., ET AL.,                               Defendants - Appellants.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Lynch, Circuit Judge,                                       _____________                              Cyr, Senior Circuit Judge,                                   ____________________                         and DiClerico, Jr.,* District Judge.                                              ______________                                        ____________________          *  Of the District of New Hampshire, sitting by designation.                                _____________________               Kevin G. Little, Jr., with  whom David Efr n and Law Offices               ____________________             ___________     ___________          David Efr n were on brief for appellant.          ___________               Ricardo  F. Casellas, with whom  Rodr guez & Casellas was on               ____________________             ____________________          brief for appellees.                                 ____________________                                    March 5, 1998                                 ____________________                                         -2-                    DICLERICO,  District Judge.   The  plaintiff-appellant,                    DICLERICO,  District Judge.                                ______________          Yvonne Gil Bonar  de Rebollo, was injured  by defendant-appellee,          Wes Lockard, who  portrays "Burnie," the mascot  of co-defendant-          appellee, Miami Heat Limited Partnership.1  The plaintiff brought          a tort action  seeking damages.   In  the first  trial, the  jury          awarded the plaintiff $10,000 but  the trial court found that the          verdict was most likely  the result of bias or compromise and set          it aside.  After a  second trial, the jury awarded the  plaintiff          $50,000.  The  district court also  awarded the defendants  costs          which they incurred after an offer  of judgment had been made and          awarded costs  to the plaintiff  as a prevailing party.   In this          appeal, the plaintiff  contends that she should have been granted          a third trial because the  $50,000 damage award was  insufficient          and  the trial  judge  improperly excluded  evidence.   In  their          cross-appeal,  the defendants contend that (1) the district court          erred in granting  a second trial;  (2) given  the fact that  the          plaintiff ultimately received less than the amount the defendants          had  proposed in  an  offer  of judgment,  they  are entitled  to          attorney's fees incurred after the offer; and (3) the trial court          should not  have awarded the  plaintiff costs  incurred after  an          offer   of  judgment.    We   agree  with  the  district  court's                                        ____________________          1  Florida Basketball Associates, Inc. is also a defendant to the          action.  The record does  not make clear the relationship between          defendant Miami  Heat Limited  Partnership and  defendant Florida          Basketball   Associates,   Inc.,  but   the   parties  have   not          distinguished  between  them  on appeal.    Therefore,  the court          refers   to  the  Miami  Heat  Limited  Partnership  and  Florida          Basketball Associates,  Inc.  throughout the  remainder  of  this          opinion collectively as "the Heat."                                         -3-          disposition of the case in all respects with the exception of its          ruling awarding costs to the plaintiff incurred after an offer of          judgment.  Therefore, we affirm in part and reverse in part.                          Factual and Procedural Background2                          Factual and Procedural Background                          _________________________________                    On   October  21,  1994,   the  plaintiff  attended  an          exhibition basketball game between the Miami Heat and the Atlanta          Hawks at the Roberto  Clemente Coliseum.  She  was seated in  the          front  row as  part of  a group  that had  received complementary          tickets to  the game.   She had attended another  exhibition game          under similar circumstances the prior year.                    During  a  time-out,  defendant  Lockard,  dressed   as          Burnie, approached  the plaintiff and  grabbed her hand.   He had          selected her at random to participate  in a routine he planned to          perform as  entertainment during the time-out.  When he attempted          to pull her onto the floor, she  resisted and loudly told him no.          He persisted, however, grabbing her  left arm with both hands and          pulling, because in his experience people often were reluctant at          first  but  later changed  their  minds.   Unbeknownst  to either          party, the  plaintiff's purse strap  had fallen over the  back of          her seat  and was  providing additional  resistance to  Lockard's          efforts.  He pulled the  plaintiff with such force, however, that          her purse strap broke and as a result she surged forward, falling          to the  floor.  Lockard took the plaintiff's sudden movement as a                                        ____________________          2   Because the plaintiff  has challenged the sufficiency  of the          damages awarded by the second  jury, the court recounts the facts          relevant to damages  in the light most favorable  to the verdict.          See Molloy v. Blanchard, 115 F.3d 86, 88 (1st Cir. 1997).          ___ ______    _________                                         -4-          sign  that  she had  changed  her  mind about  participating  and          dragged her by the  arm to the center of the court.   When he saw          that the plaintiff still did not wish to participate, he  did not          further coerce her.   She stood up, composed  herself, and walked          off  the  court  while  he  completed the  routine  alone.    The          plaintiff was extremely  upset by the incident and  left the game          prior  to  its  conclusion.   She  felt  as though  she  had been          humiliated in front of the entire crowd.                    The plaintiff suffered both  physically and emotionally          as a result of  the incident.  She felt pain in  her left arm and          shoulder as well as pain to a lesser extent  throughout her body.          She also  suffered a  bruise on  her left  thigh.   She did  not,          however,  break  any  bones or  suffer  any  neurological damage.          After arriving  at home, the  plaintiff took pain  medication and          applied ointment to her body.  A few days later, she consulted an          orthopedist and  a physiatrist  in connection  with her  physical          injuries.     She  undertook  physical  therapy  which  had  been          prescribed   for  her.    Surgery  was  neither  recommended  nor          undertaken.                    The plaintiff  has been  diagnosed with  post-traumatic          tendonitis in her left shoulder,  the primary symptom of which is          pain.   She  continues  to experience  pain in  her left  arm and          shoulder,   which  affects  her  when  she  engages  in  everyday          activities.  The  plaintiff takes  pain medication  on a  regular          basis, and her condition is not expected to improve further.  The          plaintiff's condition has required her  to modify her behavior in                                         -5-          order  to avoid  tasks and  activities that  will exacerbate  the          pain,   particularly  heavy   lifting   and  certain   repetitive          movements.  However, she has a pre-existing condition in her back          that  also  periodically  causes  her  pain  for  which  she  had          previously sought treatment.  This pre-existing condition imposed          similar restrictions on her ability to perform certain activities          such as lifting heavy objects.                    The  plaintiff consulted  with a  psychiatrist  for her          emotional  distress.    She  feels  that  the  event  has  had  a          profoundly  negative effect  on her  mental  and emotional  well-          being,   which  she  attributes   in  part  to   her  traditional          conservative  upbringing.  The  plaintiff avoids large gatherings          and feels that  her privacy and dignity have been  injured by the          incident.   She now takes  anti-anxiety medications on  a regular          basis.    The  defendants' expert  testified  that  the emotional          difficulties experienced by the plaintiff were not permanent, but          instead  represented a normal  reaction to an  adverse situation.          Experts for  both parties  agree that  the plaintiff's  condition          does  not  rise  to  the  level  of  a  recognized  psychological          disorder.   In addition to  the distress caused by  the incident,          the  plaintiff  had pre-existing  emotional  stressors, including          marital difficulty, that could account for some of her dysphoria.                    Subsequent  to  the  incident,  the  plaintiff  brought          criminal charges against Lockard.   She felt the need to confront          the people  who she  felt  had wronged  her.   Lockard was  found          guilty of misdemeanor  battery.  The plaintiff  also brought this                                         -6-          civil  action  against  both  Lockard  and  the  Heat,  Lockard's          employer.   Her claim, brought pursuant  to the court's diversity          jurisdiction, alleged that Lockard had negligently injured her in          violation  of Puerto  Rico law  and that  the Heat,  as Lockard's          employer, was responsible for that injury.                    Prior to the  civil trial, the  trial court ruled  that          evidence   of  Lockard's  criminal  conviction  would  be  unduly          prejudicial and precluded the plaintiff  from introducing it.  On          October  30, 1996,  the plaintiff's  case went  to trial  for the          first  time.   After  approximately  one  and one-half  hours  of          deliberation, the  jury  returned  a  verdict in  the  amount  of          $100,000 in  favor of the plaintiff,  but it found  only the Heat          liable and  not Lockard.   The trial  judge rejected  the verdict          because  the plaintiff  had pursued  only a theory  of respondeat          superior liability against the Heat,  and thus the Heat could not          have been found  liable unless Lockard was  liable as well.   The          judge  reinstructed  the  jury  on the  issue  of  liability  and          directed it to continue deliberating.                    After another hour,  the jury sent a note  to the court          requesting  guidance  on  the  amount  of  damages  to which  the          plaintiff was entitled.   The trial judge instructed  the jury to          review  the instruction on  damages the court  had already given.          The  jury deliberated  for approximately  another  hour and  then          returned a  verdict that held  both Lockard and the  Heat liable.          However, the jury awarded the plaintiff only $10,000 in damages.                                         -7-                    The plaintiff  filed a motion  for a new trial  and for          relief from judgment on November 14, 1996.  On December 16, 1996,          the  district  court ruled  that  the  jury's  verdict  was  most          probably an impermissible verdict based on compromise or bias and          granted a  new trial.   See  Gil de  Rebollo v.  Miami Heat  Ltd.                                  ___  _______________     ________________          Partnership, 949  F. Supp.  62, 64-65 (D.P.R.  1996).   The trial          ___________          court  reasoned  that three  possibilities  explained the  jury's          reduction  of the  damage award  to one-tenth  the figure  it had          selected  initially:     (1)   the  jury   may  have   rationally          reconsidered its  decision on  damages when it  was sent  back to          deliberate  further;  (2)  the  jury  may  have  thought  Lockard          unaccountable for his  interaction with the plaintiff  but wanted          to compensate her anyway from the corporate deep pocket, and when          confronted with the requirements of respondeat superior, the jury          lowered the amount of damages  which Lockard might be required to          pay, reflecting an improper compromise;  or (3) the jury may have          thought  that the  plaintiff had  suffered  $100,000 damages  but          tried to shield Lockard from having to pay because of an improper          bias in  his  favor, and  when it  realized it  could not  shield          Lockard,  it  lowered the  amount  of  the  verdict so  that  his          liability would be  minimized.  See id.  at 64.  The  court found                                          ___ ___          that the latter two alternatives, both improper, were more likely          than the first, which was proper,  and granted a new trial.   See                                                                        ___          id. at 65.          ___                    The  second trial commenced  on February 10,  1997.  On          February 14, 1997, the jury returned  a verdict for the plaintiff                                         -8-          in the  amount of $50,000, finding that both Lockard and the Heat          were liable.  The plaintiff again filed a motion for a new trial,          asserting that the damages were insufficient, but the trial court          denied the motion.                    During the course  of the litigation, the  parties made          several attempts  to settle their  dispute without a trial.   The          plaintiff's initial  demand in the  case was for $1,000,000.   On          October 7, 1996, the defendants  made a written offer of judgment          under  Federal Rule  of Civil  Procedure 68  ("Rule 68")  to have          judgment  entered against  them in  the amount  of $80,000.   The          plaintiff  rejected the  offer  and countered  with  a demand  of          $600,000  and a  public apology.   The  defendants  rejected this          proposal and the first trial began on October 30, 1996.                    After the  first trial,  the defendants  made a  second          offer of judgment  on January 14, 1997, in the amount of $70,000.          The plaintiff rejected  the offer and countered with  a demand of          $250,000, which  the defendants rejected.   On January  23, 1997,          the defendants made a  third offer of judgment  in the amount  of          $100,000.   The  plaintiff also  rejected  that offer,  demanding          $180,000.  The  $50,000 verdict obtained by the  plaintiff in the          second trial was less than all three offers of judgment.                    After  the second trial, the district court awarded the          defendants  $8,271.71 for  costs  incurred  after  the  offer  of          judgment pursuant to Rule 68.   It denied the defendants' request          for attorney's  fees under  Puerto Rico Rule  of Civil  Procedure          44.1 ("Rule 44.1"), finding that  the plaintiff had not conducted                                         -9-          her case with temerity.  The court awarded the plaintiff costs as          a prevailing  party under Federal  Rule of Civil Procedure  54 in          the amount of $7,894.84.                    At  the  conclusion   of  this  legal  imbroglio,   the          plaintiff filed  a timely  appeal.   The  defendants have  raised          several issues on cross-appeal.                                      Discussion                                      Discussion                                      __________                    The parties raise the following  issues on appeal:  (1)          the defendants  claim that the trial court  abused its discretion          by  setting aside  the $10,000  verdict  in the  first trial  and          granting a new  trial; (2) the plaintiff asserts  that the jury's          verdict  of $50,000 damages in  the second trial was insufficient          and the trial court therefore abused its discretion by failing to          grant her motion for a third trial; (3) the plaintiff claims that          the  trial  court  impermissibly excluded  evidence  of Lockard's          criminal misdemeanor  conviction; and  (4) the  defendants assert          that the  trial court  erred in  its award  of costs  and in  its          failure  to award  attorney's  fees.    We discuss  these  claims          seriatim.          ________                    I.  Grant of the Second Trial                        _________________________                    The  trial court granted  the plaintiff's motion  for a          second trial  after it  found that the  jury possibly  could have          properly reconsidered  the amount of  damages to be  awarded, but          more likely  had acted  for an improper  reason.   The defendants          argue that  the  trial court  should  have accepted  the  $10,000          verdict and  erred by granting  the plaintiff's motion for  a new                                         -10-          trial.   The  court, they  urge,  should not  have endeavored  to          choose among the  possible explanations for the  jury's behavior.          As  long as  there was  a  plausible explanation  for the  jury's          conduct that was  permissible, the defendants contend,  the trial          court should not have granted a new trial.                    This  argument is unpersuasive.  See Phav v. Trueblood,                                                     ___ ____    __________          Inc., 915  F.2d 764,  766 (1st  Cir. 1990)  (denial of new  trial          ____          reviewed  only  for abuse  of  discretion).   As  the  defendants          acknowledge, First Circuit precedent  distinguishes between cases          where a jury's verdict is challenged  as improper based only on a          damage  award that allegedly fails to  bear any rational relation          to the  evidence of  the damages presented  at trial,  see, e.g.,                                                                 ___  ____          Correa v. Hospital San Francisco, 69 F.3d 1184, 1197-98 (1st Cir.          ______    ______________________          1995) (verdict  alleged to  be excessive),  cert. denied,  116 S.                                                      ____________          Ct. 1423 (1996); Milone  v. Moceri Family, Inc., 847  F.2d 35, 37                           ______     ___________________          (1st Cir. 1988)  (verdict alleged to be insufficient),  and cases          where  there is  some evidence  of an  improper verdict  based on          factors other  than the  amount of the  damage award,  see, e.g.,                                                                 ___  ____          Skinner v. Total Petroleum, Inc.,  859 F.2d 1439, 1446 (10th Cir.          _______    _____________________          1988), cited with approval  in Phav, 915 F.2d at  768; Mekdici ex                 _______________________ ____                    __________          rel. Mekdici  v. Merrell  Nat'l Lab., 711  F.2d 1510,  1514 (11th          ____________     ___________________          Cir. 1983) (same).   Where the allegation of  an improper verdict          is  based  solely  on  the   amount  of  the  damage  award,  the          circumstances under which  a trial court  may overturn a  verdict          are  more limited.   See,  e.g., CIGNA  Fire Underwriters  Co. v.                               ___   ____  _____________________________          MacDonald &  Johnson, Inc.,  86 F.3d 1260,  1267 (1st  Cir. 1996)          __________________________                                         -11-          (grant  of a  new  trial appropriate  where  damages were  easily          calculable and  damage award  exceeded maximum  value of  damages          claimed and did not take into account offset to damages); Torres-                                                                    _______          Troche v.  Municipality of  Yauco, 873 F.2d  499, 501 &  n.6 (1st          ______     ______________________          Cir.  1989) (suggestion that allegedly low damage award indicated          compromise  verdict was speculation  not meeting heavy  burden of          showing entitlement to new trial).  However, where evidence of an          improper verdict exists other than  the amount of the jury award,          such as when a jury  answers special questions in an inconsistent          manner,  the trial  court's discretion  to grant  a new  trial is          broader.   In  such  cases the  court  can  consider all  of  the          circumstances  surrounding  the  jury's  verdict,  including  the          amount of  the damage  award, in determining  whether or  not the          jury reached an improper verdict.  See Phav, 915 F.2d at 768-69.3                                             ___ ____                    The  defendants  acknowledge  the  distinction  between          cases  where the  only evidence  of  a compromise  verdict is  an          allegedly insufficient  damage award  and cases  where additional          evidence indicates a  compromise, but they  attempt to cast  this          case as falling into the  former rather than the latter category.          However, in  this case the  trial court's  determination did  not          turn solely on the amount of the verdict that the jury ultimately          returned.   Rather,  the ten-fold  reduction by  the jury  of its          initial  award of damages  and the circumstances  surrounding its                                        ____________________          3    Prior First  Circuit  cases,  however,  do not  endorse  the          proposition  propounded  by  the  defendants that  an  inadequate          damage award is an indispensable element of a compromise verdict.          See Phav,  915 F.2d at  768-69 (inadequate damages  are potential          ___ ____          evidence of compromise verdict, as are additional factors).                                         -12-          determination of Lockard's liability  provided the primary  basis          for  the trial court's determination that  the verdict as finally          returned was motivated  by compromise or  sympathy.  The  verdict          form ultimately  completed by the  jury was free of  any internal          inconsistency  because it  held Lockard  and the Heat  liable for          $10,000 damages suffered by the plaintiff.  However, the sequence          of events preceding  that verdict was properly considered  by the          trial court  as an indication  that the jury reached  the verdict          based on compromise or  bias.  See id. at 768  (odd chronology of                                         ___ ___          jury  deliberations one "telltale sign of a compromise verdict").          Therefore,  the trial  court had  more latitude  in this  case in          exercising its discretion  to overturn the jury's verdict than it          would have had in a case where the only basis  for the grant of a          new trial  was the alleged insufficiency of  a damage award.  See                                                                        ___          Mekdici, 711 F.2d  at 1513, cited with approval in Phav, 915 F.2d          _______                     ______________________ ____          at 768.                    The  trial court determined that the sequence of events          leading up to the  jury's final verdict in  the first trial  most          likely   indicated  that  the   jury  had  reached   its  verdict          improperly.  The jury initially had assessed $100,000  in damages          against the Heat but  did not find Lockard liable.   A short time          after  being told to deliberate further and requesting additional          guidance the  jury determined that Lockard was liable but reduced          the amount of damages to $10,000.   Based on the jury's behavior,          it  was logical  for the trial  court to  conclude that  the jury          wanted to  give the  plaintiff something but  it did not  want to                                         -13-          hold Lockard personally liable for a $100,000 award.  There is no          indication  that the  trial  judge, who  observed the  trial, the          timing of the  questions, and the  results of the  deliberations,          abused  his discretion in  arriving at this  determination.4  See                                                                        ___          Phav, 915 F.2d  at 766.   We  therefore decline  to overturn  the          ____          trial court and to reinstate the initial $10,000 verdict.                    II.  Insufficiency of the Jury Verdict                         _________________________________                    The plaintiff's main  contention on appeal is  that the          trial court erred by failing to grant  her motion for a new trial          following  the second  verdict, on  the grounds  that the  damage          award  of  $50,000  is  insufficient.   As  noted  above,  it  is          comparatively more  difficult  to justify  overturning  a  jury's          verdict where the  only evidence that something has  gone awry is          an allegedly  insufficient damages award.   Indeed, the  jury "is          free to run the whole gamut  of euphonious notes -- to  harmonize          the verdict at the highest or lowest points for which there  is a          sound evidentiary predicate, or anywhere in between -- so long as          the end result 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.   "At                                              ______          best,  plaintiff's  verdicts  in personal  injury  cases  are not          models  of  mathematical  exactitude.    Thus,  the fact  that  a          particular award  is a few dollars long or short would rarely (if          ever) translate into a manifest  miscarriage of justice."  Id. at                                                                     ___                                        ____________________          4    In  reaching  this  decision we  intend  no  comment  on the          sufficiency of the $10,000 damage award.                                         -14-          41 n.7.  We  view the evidence in the light most favorable to the          jury's verdict,  see Molloy  v. Blanchard, 115  F.3d 86,  88 (1st                           ___ ______     _________          Cir. 1997), and will only overturn the jury's award and the trial          judge's  ensuing  refusal to  grant  a  new  trial for  abuse  of          discretion, see Correa, 69 F.3d at 1197.                      ___ ______                    The  record  demonstrates  that  most  of  the  damages          suffered by the plaintiff were intangible.  "An appellate court's          normal  disinclination to second-guess a jury's evaluation of the          proper amount of damages is magnified where, as here, the damages          entail a monetary  valuation of intangible losses,  and the trial          judge, having seen and heard the witnesses at first hand, accepts          the  jury's  appraisal."   Id.   Even  accepting  the plaintiff's                                     ___          complaints uncritically, which the jury  was not required to  do,          her  primary claims  for damages  are that  (1) she  suffers from          pain; (2) the quality of her life has been reduced because of her          pain and because of the measures she must take to avoid pain; and          (3) her  dignity, self-image, and  sense of well-being  have been          adversely affected by the incident.                    In addition to the intangible nature of the plaintiff's          injuries, the  evidence in this  case permitted the jury  to find          that her injuries  were not as severe  as she claimed.   The jury          could also have found that  most of the plaintiff's physical pain          was caused not by the incident in question but by the plaintiff's          failure to  obey her doctor's  orders not to move  heavy objects,          which  orders were given in connection with her pre-existing back          injury.    The jury  was  free  to  disbelieve  as  much  of  the                                         -15-          plaintiff's expert and lay testimony as it wished.  In short, the          plaintiff has  provided no support  for the proposition  that the          jury's $50,000 verdict was so  far beyond the range of acceptable          verdicts, based  on  the evidence  presented  at trial,  that  it          constituted  a manifest  miscarriage of  justice.   The  district          court did not abuse  its discretion by  denying her motion for  a          new trial.                    III.  Failure to Admit Evidence of Lockard's Conviction                          _________________________________________________                    The  trial  court  ruled  that  evidence  of  Lockard's          criminal  misdemeanor  conviction  was inadmissible  because  its          prejudicial effect substantially outweighed its probative  value.          See Fed.  R. Evid. 403.   The plaintiff asserts  that this ruling          ___          was error.  We review the district court's determination that the          evidence  of Lockard's conviction  should have been  excluded for          abuse of discretion.   See Kowalski v.  Gagne, 914 F.2d  299, 306                                 ___ ________     _____          (1st Cir. 1990).                    The plaintiff places undue reliance on Kowalski, a case                                                           ________          which stands  for the  proposition  that the  district court  has          discretion  to admit evidence  such as this.   See  id.  However,                                                         ___  ___          Kowalski  does not  support  the notion  that the  district court          ________          abused  its discretion  in this  case  by failing  to admit  this          evidence.  Indeed, as Kowalski makes clear,  the district court's                                ________          decision  that the  evidence was  substantially more  prejudicial          than probative was well within its discretion.  See id.                                                          ___ ___                    Here,  the   jurors  were  presented   with  sufficient          evidence to gauge the seriousness  of Lockard's actions and their                                         -16-          effect  on the  plaintiff.  In  addition to the  testimony of the          plaintiff  and other  witnesses,  the episode  was recorded  by a          television camera and the tape was made available for the jury to          watch.   The parties  stipulated that Lockard  was portraying the          mascot Burnie  throughout the  incident.  The  jury did  not need          evidence of Lockard's criminal  conviction to assess his  role in          the  incident.  Under  the circumstances, admission  of Lockard's          criminal conviction would have allowed the jury to substitute the          judgment reached in the criminal proceeding for its own.                    Furthermore, even assuming  arguendo that the exclusion                                                ________          of the evidence was error, the error had no effect on the outcome          of the  case.  The only  issue on which  Lockard's conviction was          probative was  the  issue of  his liability  for the  plaintiff's          injury.   Both  juries found  Lockard liable for  the plaintiff's          injuries.   Lockard's  conviction had  relevance  neither to  the          issue of  the plaintiff's injuries  nor to the amount  of damages          necessary to compensate her for those injuries.                    The   plaintiff's   reliance   on   Kowalski  for   the                                                        ________          proposition that a criminal conviction is, as a matter of course,          relevant to  the issue of  damages in an  ensuing civil trial  is          also misplaced.   Kowalski  dealt with  a Massachusetts  wrongful                            ________          death statute  which provides  that damages  should be  "assessed          with reference to  the degree of [the  defendant's] culpability."          914 F.2d at 306.  For  that reason, the defendant's conviction of          the crime of  second degree murder  was relevant to the  issue of          culpability,  and  thus the  issue  of  damages.   See  id.   The                                                             ___  ___                                         -17-          plaintiff's cause of  action here was for negligence  and she was          entitled only  to compensatory damages.   For these  reasons, the          district court did  not abuse its discretion by  failing to admit          evidence  of Lockard's  conviction,  and  the  plaintiff  is  not          entitled to a new trial.                    IV.  The Award of  Costs & Failure to  Award Attorney's                         __________________________________________________                         Fees                         ____                    The trial court  awarded the defendants costs  incurred          after their  first offer  of judgment but  declined to  award the          defendants their  attorney's fees.   It found that  the plaintiff          had  not  been obstinate  at any  point in  the proceedings.   In          addition, it awarded  the plaintiff costs as a  prevailing party.          The  defendants contend  that  (1) the  district  court erred  by          failing to  award attorney's  fees  incurred after  the offer  of          judgment; (2) the  court erred in finding that  the plaintiff was          not obstinate  under Rule 44.1; and  (3) the court erred  when it          awarded  the  plaintiff  costs  incurred  after  their  offer  of          judgment.  We discuss these claims seriatim.                                             ________          A.  Attorney's Fees Incurred After the Offer of Judgment          ________________________________________________________                    The trial  court declined the defendants'  request that          they  be awarded attorney's  fees that were  incurred after their          offer of judgment.  The defendants assert that it was error to do          so.  Resolution of this  issue requires that we carefully analyze          the  relationship between two  rules of civil  procedure, Federal          Rule  68 and  Puerto Rico  Rule  35.1, both  of which  ostensibly          govern the situation at hand.                                         -18-                    In  Erie Railroad  Co. v.  Tompkins,  the United  State                        __________________     ________          Supreme Court  set forth the  general doctrine  by which  federal          courts in diversity  cases determine whether state or federal law          will apply to a controversy.   See 304 U.S. 64 (1938).   In Hanna                                         ___                          _____          v. Plumer, the  Supreme Court set forth the  test for determining             ______          how a court should choose between a federal procedural rule and a          conflicting  state  substantive rule.    See  380  U.S. 460,  471                                                   ___          (1965).  Where  a Federal Rule is "sufficiently  broad to control          the  issue" but conflicts with a state law, the court applies the          Federal  Rule unless  it  transgresses the  limits  of the  Rules          Enabling Act, 28 U.S.C.   2072, or the Constitution.  Id. at 471-                                                                ___          72; see  also Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29-              _________ __________________    ___________          31 (1988).5   In most cases where a conflict  exists, the Federal                                        ____________________          5   Since the Hanna decision, the Supreme Court has clarified the                        _____          focus of the  inquiry for determining whether  a state law  and a          Federal Rule conflict.  Early cases indicated the necessity for a          "direct collision."  See, e.g.,  Walker v. Armco Steel Corp., 446                               ___  ____   ______    _________________          U.S.  740, 749-51  (1980); Hanna,  380 U.S.  at 472.   Subsequent                                     _____          cases make clear,  however, that the "direct  collision" analysis          does not involve the narrowest  possible reading of the  relevant          Federal Rule.  See Stewart, 487 U.S.  at 26 n.4; Walker, 446 U.S.                         ___ _______                       ______          at  751  &  n.9.    In Stewart,  the  Supreme  Court  stated  the                                 _______          following:                      Our  cases at  times  have referred  to the                    question  at this stage of the analysis as an                    inquiry  into  whether  there  is  a  "direct                    collision"  between  state and  federal  law.                    Logic  indicates,  however,   and  a  careful                    reading  of the  relevant passages  confirms,                    that this  language is  not meant  to mandate                    that federal  law and state  law be perfectly                    coextensive  and  equally applicable  to  the                    issue at hand; rather, the "direct collision"                    language, at least where the applicability of                    a federal  statute is at issue, expresses the                    requirement  that  the   federal  statute  be                    sufficiently  broad  to  cover the  point  in                                         -19-          Rule will be applied because  the Federal Rules are presumptively          valid.  See Burlington N. R.R. v. Woods, 480 U.S. 1, 5 (1987); 17                  ___ __________________    _____          James Wm. Moore  et al., Moore's Federal Practice   124.03[1] (3d                                   ________________________          ed. 1997).                    Rule 35.1 of the  Puerto Rico Rules of Civil  Procedure          ("Rule  35.1")  addresses offers  of judgment.   It  provides, in          pertinent part, as follows:                      At  least ten  (10) days  before  the trial                    begins, a party defending against a claim may                    serve  upon the  adverse  party  an offer  to                    allow judgment  to be taken  against him  for                    the  money  or  property  or  to  the  effect                    specified  in  his  offer,  with  costs  then                    accrued.  . . .   If  [the offer  is rejected                    and]  the judgment  finally  obtained by  the                    offeree is not more favorable than the offer,                    the offeree must pay  the costs, expenses and                    attorney's fees incurred  after the making of                    the offer.           P.R. Laws Ann. tit. 32, App. III, Rule 35.1 (1983).   The Supreme          Court of  Puerto Rico has  held that  this rule applies  not only          when  the plaintiff/offeree  prevails  at  trial  and  attains  a          verdict that is less than the offer of judgment but also when the          plaintiff/offeree loses the suit in its entirety.  See Ganapolsky                                                             ___ __________          v.  Keltron Corp.,  823 F.2d  700,  701 (1st  Cir. 1987)  (citing              _____________                                        ____________________                    dispute.   It  would make  no  sense for  the                    supremacy  of federal  law to  wane precisely                    because there  is  no state  law directly  on                    point.          487 U.S. at 26 n.4 (citations omitted).  Subsequent First Circuit          cases   confirm  that  the  relevant  inquiry  for  evaluating  a          potential conflict is  whether the Federal Rule  is "sufficiently          broad  to control the issue."   See Commercial  Union Ins. Co. v.                                          ___ __________________________          Walbrook Ins. Co.,  41 F.3d 764, 772  (1st Cir. 1994);  Daigle v.          _________________                                       ______          Maine Med. Ctr., Inc., 14 F.3d 684, 689 (1st Cir. 1994).          _____________________                                         -20-          Hermandad Unida  de Carpinteros y Ebanistas de America v. V. & E.          ______________________________________________________    _______          Eng'g Constr. Co., 115 D.P.R. 711 (1984)).          _________________                    Rule 68 provides, in pertinent part, as follows:                      At  any time more  than 10 days  before the                    trial  begins,  a party  defending  against a                    claim may  serve  upon the  adverse party  an                    offer to  allow judgment to be  taken against                    the defending party for the money or property                    or to the effect specified in the offer, with                    costs then accrued.  . . .  If [the  offer is                    rejected and]  the judgment  finally obtained                    by the offeree is not more favorable than the                    offer,  the   offeree  must  pay   the  costs                    incurred after the making of the offer.          Fed. R. Civ.  P. 68.  Rule 68 does not itself supply a definition          of  "costs."  Instead, it incorporates  the definition of "costs"          found in  the relevant  substantive statute  of the  jurisdiction          whose substantive law  applies to the case.   Therefore, when the          definition   of  "costs"  in  the  relevant  substantive  statute          includes  attorney's  fees,  attorney's fees  incurred  after the          offer of  judgment must  be paid by  the offeree.   See  Marek v.                                                              ___  _____          Chesny, 473 U.S.  1, 9 (1985).  In addition, Rule 68 applies only          ______          when a plaintiff/offeree  obtains an award that is  less than the          offer of judgment,  and not when the  plaintiff/offeree loses the          suit in its entirety.  See  Delta Air Lines, Inc. v. August,  450                                 ___  _____________________    ______          U.S. 346, 352 (1981); Ganapolsky, 823 F.2d at 701-02.                                __________                    Rule  68  would  not allow  the  defendants  to recover          attorney's  fees in this  case unless the  underlying substantive          law defines attorney's fees  as a part of costs.   See Marek, 473                                                             ___ _____          U.S. at 9.  The substantive law underlying this action  is Puerto          Rico's law of negligence.  See P.R. Laws Ann. tit. 31,   5141 ("A                                     ___                                         -21-          person who by an act or omission causes damage to another through          fault  or negligence  shall be  obliged to  repair the  damage so          done.").  Puerto  Rico law makes  no provision for  the award  of          attorney's fees as  any part of "costs"  in such cases.   Compare                                                                    _______          Rule 44.1(a)  ("Costs shall be  allowed to the  prevailing party,          except  when otherwise directed  by law or  by these rules.   The          costs  which may  be  allowed  by the  court  are those  expenses          necessarily  incurred in  prosecuting  an  action  or  proceeding          which, according to law or to the discretion of the court, one of          the parties should  reimburse to the other."),  with Rule 44.1(d)                                                          ____          ("In  the event any party or  its lawyer has acted obstinately or          frivolously, the  court shall,  in its  judgment, impose on  such          person the payment  of a sum for attorney's fees  which the court          decides corresponds to such conduct.").                      The only other  source of  Puerto Rico  law that  might          supply a  definition of  costs that includes  attorney's fees  is          Rule 35.1 itself.6   However, Rule 35.1  allows for the award  of          "costs, expenses and  attorney's fees."  P.R. Laws  Ann. tit. 32,          App. III,  Rule 35.1 (1983).  On its  face, the rule treats costs          and  attorney's  fees  as  separate  items;  it  does not  define          attorney's  fees as  part of  costs.   See id.;  see also,  e.g.,                                                 ___ ___   ________   ____          Knight v. Snap-On Tools Corp., 3 F.3d 1398, 1405 (10th Cir. 1993)          ______    ___________________                                        ____________________          6   We  accept, arguendo,  the proposition  that the  Puerto Rico                          ________          Rules of Civil  Procedure may supply substantive  legal standards          in some  circumstances.   See Ganapolsky, 823  F.2d at  702 (Rule                                    ___ __________          35.1); V lez v. Crown Life Ins. Co., 599 F.2d 471, 474  (1st Cir.                 _____    ___________________          1979) (earlier  enactment of  current Rule  44.1); Pan Am.  World                                                             ______________          Airways  v. Ramos,  357 F.2d  341, 342  (1st Cir.  1966) (earlier          _______     _____          enactment of current Rule 44.1).                                         -22-          ("[T]he fee-shifting provision clearly identifies attorney's fees          separately from  costs."); Oates v.  Oates, 866 F.2d  203, 206-07                                     _____     _____          (6th Cir. 1989).  Therefore,  the "costs" to which the defendants          would be entitled under Rule 68  are those detailed in 28  U.S.C.            1920, which do not include attorney's fees.                    Rule 35.1 and  Rule 68  both ostensibly  apply to  this          case and  would result in a different award.7   The two rules are          in  "direct  collision"  despite  the  fact  that  they  are  not          "perfectly coextensive" because Rule 68 is "sufficiently broad to          cover the point  in dispute."  See  Stewart, 487 U.S. at  26 n.4;                                         ___  _______          Burlington, 480  U.S. at  4-5.  Compare  Aceves v.  Allstate Ins.          __________                      _______  ______     _____________          Co., 68 F.3d 1160, 1167-68  (9th Cir. 1995) (Rule 68  and federal          ___          law on expert witness fee compensation controlled despite similar          California offer  of  judgment  law  and  conflicting  California          expert  witness  law), with  S.A. Healy  Co. v.  Milwaukee Metro.                                 ____  _______________     ________________          Sewerage Dist., 60 F.3d 305, 310 (7th Cir. 1995) (Rule 68  not in          ______________          direct  conflict   with  Wisconsin  statute   governing  rejected          settlement  offers  by  plaintiffs), and  Tanker  Mgm't,  Inc. v.                                               ___  ____________________          Brunson,  918 F.2d 1524,  1528 (11th Cir.  1990) (Rule  68 not in          _______                                        ____________________          7  The defendants urge, based on our decision in Ganapolsky, that                                                           __________          the district  court should have  applied Rule 35.1 to  award them          attorney's fees.  See 823 F.2d at 702.   Ganapolsky, however, did                            ___                    __________          not involve  an actual  conflict between Rule  68 and  Rule 35.1.          The  defendant in  Ganapolsky prevailed  because the  plaintiff's                             __________          case was dismissed  as a sanction.   See id. at 701.   Therefore,                                               ___ ___          Rule 68  did not apply.   See Delta  Air Lines, 450  U.S. at 352;                                    ___ ________________          Ganapolsky,  823 F.2d at  701-02.  Rule 35.1,  on the other hand,          __________          did apply.  See id. at 701 (citing Hermandad).  This case differs                      ___ ___                _________          from  Ganapolsky, because here  the plaintiff received  a verdict                __________          less favorable  than the defendants'  offer of judgment  and thus          Rule 68 applies.                                         -23-          "direct  collision"  with  Florida statute  governing  attorney's          fees, offers  of judgment, and  settlement offers).   The parties          have not suggested and the  court cannot discern any infirmity in          Rule 68  sufficient  to defeat  the presumption  of validity  and          constitutionality mandated  by Burlington Northern  Railroad, 480                                         _____________________________          U.S. at 5.  See  S.A. Healy Co., 60 F.3d at 312  ("[T]here cannot                      ___  ______________          be  any doubt  that Rule  68  is within  the scope  of  the Rules          Enabling  Act.").   Therefore, Rule  68, rather  than Rule  35.1,          applies  in this  case and  the defendants  are entitled  only to          costs.   The district court did not err  in refusing to award the          defendants their attorney's fees as part of costs.          B.  Obstinacy          _____________                    The district  court found  that the  plaintiff was  not          obstinate under  Rule 44.1(d)  and declined  to award  attorney's          fees.8    A  finding  of  obstinacy  is  reviewed  for  abuse  of          discretion.  See De Le n L pez v. Corporaci n Insular de Seguros,                       ___ _____________    ______________________________          931 F.2d 116,  126-27 (1st Cir. 1991).   The defendants urge that          the  plaintiff's conduct  was obstinate  because  she refused  to                                        ____________________          8  Rule 44.1(d) provides that:                      In  the event any  party or its  lawyer has                    acted obstinately  or frivolously,  the court                    shall, in its judgment, impose on such person                    the  payment  of a  sum  for attorney's  fees                    which the  court decides corresponds  to such                    conduct.          P.R. Laws Ann. tit. 32, App. III, Rule 44.1(d) (Supp. 1992).                                         -24-          accept  multiple  offers  of  judgment  which  they  assert  were          reasonable.9  The fact that the plaintiff was  eventually awarded          less than  the amount of  the offers, the defendants  contend, is          evidence  of their reasonableness.   The  defendants ask  that we          adopt a rule  that failure to accept  an offer of judgment,  when          the verdict at  trial turns  out to  be less than  the offer,  be          considered obstinate per se.                                 ______                    The  presumption  requested  by  the  defendants  lacks          support in Puerto  Rico law,  and we  decline to adopt  it.   The          district  court judge,  who  observed  the  proceedings  as  they          unfolded, made  a finding that  the plaintiff was  not obstinate.          Because  we find  no evidence  that  the trial  judge abused  his          discretion  in that  determination, we  decline  to overturn  the          district court on this issue.          C.  Plaintiff's Expert Fees Incurred After the Offer of Judgment          ________________________________________________________________                    The  defendants finally contend that the court erred by          awarding the  plaintiff expert fees  incurred after the  offer of          judgment.  Such an award  expressly contravenes the terms of Rule          68, which provides that, if an offer of  judgment is rejected and          "the  judgment  finally  obtained  by  the  offeree  is not  more          favorable than the offer, the offeree must pay the costs incurred          after  the making  of the  offer."   Fed.  R.  Civ. P.  68.   The          district  court  erred  in  making  this  award.    Although  the                                        ____________________          9   The defendants argue  that the plaintiff was  obstinate under          the standards of either Rule 44.1 or Rule 35.1.  However, because          we  have determined that Rule  35.1 does not  apply in this case,          see section  IV.A supra,  we consider  here only  the defendants'          ___               _____          argument with respect to Rule 44.1.                                         -25-          plaintiff did  not distinguish  between costs  incurred pre-  and          post-offer,  the  defendants  have only  contested  the  award of          $3,950 paid  for the testimony of two  experts at the two trials.          Because  such amounts were  clearly incurred  after the  offer of          judgment  and  the  defendants  have  not  challenged  the  other          components of the trial court's initial award of costs, we reduce          the plaintiff's award of costs by that amount.                                      Conclusion                                      Conclusion                                      __________                    To conclude,  we find the parties'  remaining arguments          and claimed errors  to be without merit and  unworthy of extended          discussion.   For the reasons  stated above, the judgment  of the          district court is affirmed as  to the grant of the  second trial,                            affirmed                            ________          the exclusion of evidence of Lockard's conviction, the refusal to          grant a third trial, and the refusal to grant attorney's  fees as          part of costs  incurred after the first  offer of judgment.   The          district court's award  to the plaintiff of costs  incurred after          the offer of judgment  in the amount  of $3,950 is reversed,  and                                                             reversed                                                             ________          the plaintiff's award  of costs shall be reduced  by that amount.          Because the plaintiff's appeal was wholly without merit, costs of          the appeal are awarded to the defendants.                                         -26-
