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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1985 <br> <br>                     ANANIAS GRAJALES-ROMERO, <br> <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                     AMERICAN AIRLINES, INC., <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>No. 98-2144 <br> <br>                     ANANIAS GRAJALES-ROMERO, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                     AMERICAN AIRLINES, INC., <br> <br>                       Defendant, Appellee. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF PUERTO RICO <br> <br>     [Hon. Carmen Consuelo Cerezo, Chief U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                   Lynch, Noonan,* and Lipez, <br>                         Circuit Judges. <br>                                 <br>                                 <br>                                 <br>                                 <br>                      <br>     *Of the Ninth Circuit, sitting by designation. <br> <br> <br>     Luis A. Oliver-Fraticelli, with whom Jay A. Garca-Gregory and <br>Fiddler, Gonzlez & Rodrguez were on brief for American Airlines, <br>Inc. <br>     Jos Luis Ubarri-Garca, with whom David W. Romn and Brown & <br>Ubarri were on brief for Ananas Grajales-Romero. <br> <br> <br> <br> <br> <br>October 26, 1999 <br> <br> <br> <br>                                 <br>                                 <br> <br>

  LIPEZ, Circuit Judge. American Airlines, Inc. appeals <br>from a judgment of $150,000 in favor of Ananas Grajales-Romero, <br>who was injured by a collapsing check-in counter sign at an airport <br>in St. Kitts.  American claims that the court erred in allowing the <br>case to go to the jury on the plaintiff's theory that American was <br>liable for the negligence of Executive Airlines, d/b/a/ American <br>Eagle, which American argues actually owned, operated, and <br>maintained the check-in counter.  American further claims that <br>there was insufficient evidence of negligence to sustain the jury <br>verdict in this case, and that the court erred by not vacating or <br>remitting the damages award, striking certain defense witnesses, <br>admitting some evidence offered by plaintiff, and refusing to give <br>several jury instructions proposed by American.  Grajales cross- <br>appeals, claiming that the court erred in not awarding attorney's <br>fees on the basis of the "obstinacy" of the defendants.  We affirm. <br>                               I. <br>Factual background <br>  We present the facts as a jury might have found them, <br>consistent with the record but in the light most favorable to the <br>verdict.  See Cumpiano v. Banco Santander Puerto Rico, 902 F.2d <br>148, 151 (1st Cir. 1990).  On July 29, 1994, Plaintiff Ananas <br>Grajales-Romero ("Grajales") was waiting in line at an American <br>Eagle check-in counter in the St. Kitts airport for a return <br>flight to San Juan, Puerto Rico.  His acquaintance Terry Connor had <br>accompanied him to the check-in counter.  Connor attempted to load <br>Grajales's luggage onto the weigh-in scale adjacent to the check-in <br>counter.  In doing so, he grabbed onto an ashtray built into the <br>countertop to gain some leverage in lifting the luggage.  The <br>countertop was attached by a hinge to the vertical front facing of <br>the counter.  When Connor pulled on the ashtray, the countertop <br>came loose, and pivoted forward on its hinge.  A metal signpost and <br>sign were attached to the countertop, and this signpost and sign <br>also pivoted forward with the countertop.  As this was happening, <br>plaintiff Grajales was looking down at his ticket.  The signpost <br>and/or sign struck Grajales on the top of his head, opening up a <br>two-inch long wound.  Although he did not lose consciousness or <br>fall to the floor, he was taken to the St. Kitts hospital, where he <br>received four stitches.  After the accident, Grajales experienced <br>neck pains, headaches, and forgetfulness.  He was diagnosed by a <br>neurologist as suffering from post-concussion syndrome and a <br>cervical sprain secondary to the accident.  <br>  Grajales filed a complaint against American, AMR Corp., <br>and AMR Eagle, Inc. in the federal district court for the District <br>of Puerto Rico on July 28, 1995. On February 11, 1997, the district <br>court dismissed the claims against co-defendants AMR Corp. and AMR <br>Eagle, Inc. for lack of personal jurisdiction.  During the course <br>of trial, held from May 20 to May 27, 1998, American claimed that <br>its witnesses Tomas del Valle and Fred Voltaggio were unavailable <br>because they had been transferred to other positions with American. <br>In their place, American offered the testimony of employees who now <br>held the posts vacated by del Valle and Voltaggio; however, the <br>court struck the replacement witnesses because they had not been <br>disclosed in the course of pre-trial discovery.  While Voltaggio <br>eventually testified, del Valle did not, and the court granted a <br>missing witness instruction telling the jurors that they could <br>infer that the testimony of del Valle would have been unfavorable <br>to American.  The court refused to give an instruction on the <br>doctrine of res ipsa loquitur requested by Grajales, and refused <br>several instructions offered by American.  The jury found American <br>liable in the amount of $150,000.  The court issued its judgment <br>accordingly, and refused Grajales' claim for attorney's fees under <br>Puerto Rican law.  Both parties appealed. <br>                              II. <br>Agency by Apparent Authority <br>  American argues that there was insufficient evidence to <br>support a finding that it was liable under agency principles for <br>any negligence by Executive Airlines.  It claims that the theories <br>advanced by Grajales to establish American's liability for the <br>accident   namely, agency by estoppel and agency by apparent <br>authority   were a subterfuge allowing Grajales to forum-shop into <br>federal court, where he was entitled to a jury trial.  See Marshall <br>v. Perez Arzuaga, 828 F.2d 845, 849 (1st Cir. 1987) ("Puerto Rico, <br>a civil law jurisdiction, never uses juries in civil cases").  We <br>will address only Grajales's "apparent authority" claim, which <br>provides an adequate basis for American's liability. <br>  Under Puerto Rico law, an apparent principal may be held <br>liable for the acts of its apparent agent where the apparent <br>principal's actions "led the plaintiffs to reasonably believe [in <br>its] representation" of authority and control over the apparent <br>agent, through the apparent principal's conduct, including its <br>"silence, evasive language and appearances."  Berros v. U.P.R., <br>116 D.P.R. 88, 16 P.R. Offic. Trans. 112, 122 (1985).  The Supreme <br>Court of Puerto Rico has applied the doctrine where "persons who <br>used the services of the [apparent agent] could not possibly know <br>or had no way of knowing that the entity they were dealing with was <br>not" the apparent principal or an agent thereof.  Id. at 122-23. <br>The Court has also applied the doctrine where the plaintiff <br>"trusted in good faith" in defendant's conduct, and where that <br>"trust could lead a reasonable person to believe that in fact there <br>was a principal-agent relationship."  Vega v. Medical Serv. Admin., <br>117 D.P.R. 138, 17 P.R. Offic. Trans. 163, 173 (1986). <br>  The evidence produced at trial was more than sufficient <br>to allow a reasonable jury to conclude that Grajales trusted in <br>good faith in conduct that "could lead a reasonable person to <br>believe that in fact there was a principal-agent relationship." <br>Specifically, the jury could have found that Grajales's ticket, <br>issued by American Airlines, identified the carrier as "AA," an <br>abbreviation for American Airlines.  The telephone information line <br>for American Eagle flights is the American Airlines telephone <br>information line.  The passenger check-in counters in both San Juan <br>and St. Kitts bore American Airlines logos as well as American <br>Eagle logos.  The in-flight magazines on Grajales's flight were the <br>American Airlines magazines "American Ways" and "Latitudes." The <br>personnel staffing the flights wore uniforms and nametags closely <br>resembling American Airlines uniforms and nametags.  American <br>Airlines' destination guide (a schedule of flight availability) <br>lists St. Kitts as a destination.  Grajales testified that he <br>relied on such information in choosing to fly with American Eagle, <br>and that he assumed it was part of American Airlines.  A reasonable <br>jury could conclude from these facts that American's conduct led <br>Grajales reasonably to believe that there was in fact a principal- <br>agent relationship between American and Executive Airlines d/b/a/ <br>American Eagle, and thus American would be liable for any <br>negligence on the part of Executive. <br>                              III. <br>Sufficiency of the Evidence of Negligence <br>(a) Res Ipsa Loquitur <br>  American states that <br>    [p]laintiff produced no evidence   either through <br>  customary airline practices, past practices, or expert <br>  testimony   to establish a standard of care by which <br>  American should have operated. Further, plaintiff <br>  presented no evidence regarding the inspection, <br>  maintenance, and operation of the ticket counter, and <br>  made no attempt to explain in what manner any such <br>  conduct might have constituted negligence. <br> <br>From these assertions, and the fact that the court refused to give <br>the jurors Grajales's proposed res ipsa loquitur instruction, <br>American argues that "[n]o jury could reasonably conclude that <br>American exercised less than reasonable care from the unexplained <br>fact that an accident occurred."   <br>  We agree with American that Grajales did not produce <br>either direct or circumstantial evidence explaining how American <br>violated its duty of care.  Grajales offered no evidence, for <br>example, suggesting that the ticket counter had been improperly <br>designed, installed, maintained, or operated.  Instead, Grajales <br>relied on the fact of an unexpected occurrence, arguing that the <br>counter top would not have fallen over and struck him unless <br>American had violated its duty of care.  The Supreme Court of <br>Puerto Rico has ruled that the fact of an unexplained occurrence <br>cannot establish an inference of negligence unless the conditions <br>of res ipsa loquitur are satisfied: "(1) the accident must be of a <br>kind which ordinarily does not occur in the absence of someone's <br>negligence; (2) it must be caused by an agency or instrumentality <br>within the exclusive control of defendant; [and] (3) it must not be <br>due to any voluntary action on the part of plaintiff." See <br>Community Partnership v. Presbyterian Hosp., 88 P.R.R. 379, 386 <br>(1963).  Given the lack of direct or other circumstantial evidence <br>on American's violation of its duty of care, we must consider <br>whether the conditions of res ipsa loquitur were satisfied here. <br>  We conclude that they were.  Indeed, the first two <br>elements of res ipsa loquitur were easily established.  A <br>reasonable jury could have concluded that the accident was of a <br>kind which "ordinarily does not occur in the absence of someone's <br>negligence," and that the accident was "caused by an . . . <br>instrumentality within the exclusive control of [the] defendant."  <br>See Colmenares-Vivas v. Sun Alliance Ins. Co., 807 F.2d 1102, 1106 <br>(1st Cir. 1986) ("[R]es ipsa loquitur applies [if] . . .  the <br>defendant is responsible for the instrumentality") (applying Puerto <br>Rico law). <br>  The res ipsa loquitur requirement that the accident not <br>be caused by any "voluntary action" on the part of the plaintiff <br>posed a more difficult challenge for Grajales.  American argues <br>that a res ipsa loquitur inference was unreasonable because the <br>evidence indicates that plaintiff's acquaintance Connor took the <br>"voluntary action" of pulling on the counter-top.  Even if Connor's <br>actions could be attributed to Grajales, American's argument misses <br>its mark.  The test is not whether the plaintiff took any voluntary <br>action, but whether that voluntary action can be blamed for the <br>accident.  See De Leon Lopez v. Corporacion Insular de Seguros 931 <br>F.2d 116, 126 (1st Cir. 1991) (plaintiff must be "free of voluntary <br>responsibility for the occurrence") (applying Puerto Rico law).  <br>The evidence here was sufficient to support a finding that Grajales <br>and his colorable agent Connor were blameless, having done nothing <br>more than "attempt to [use the instrumentality] in the ordinary <br>manner," Colmenares-Vivas, 807 F.2d at 1107.  So long as the jurors <br>could have concluded from the evidence that Connor's use of the <br>counter for leverage constituted a normal usage of the counter by <br>a customer, the jury could have inferred American's negligence. <br>  While there was sufficient evidence on each of the <br>conditions of res ipsa loquitur, the district court did not provide <br>the jury with a res ipsa loquitur instruction, as Grajales had <br>requested.  We must therefore consider an argument implicit in <br>American's challenge to the sufficiency of the evidence of <br>negligence  that a jury verdict cannot be justified on the basis <br>of res ipsa loquitur when the jurors were never instructed on the <br>doctrine. <br>  Puerto Rico's statement of the three elements of res ipsa <br>loquitur is derived from the first edition of a well-known treatise <br>on evidence, 4 Wigmore, Evidence  2509 (1st ed. 1905). See W. Page <br>Keeton et al., Prosser and Keeton on Torts 244 (Lawyer's 5th ed. <br>1984).  That origin confirms that a res ipsa loquitur instruction <br>explains to the jury a specific form of permissible inference from <br>circumstantial evidence of negligence.   Given this purpose, jurors <br>who can draw the inference of negligence even without a res ipsa <br>loquitur instruction should be permitted to do so.  Justice Traynor <br>came to the same conclusion: <br>          The doctrine of res ipsa loquitur concerns a <br>          type of circumstantial evidence upon which <br>          plaintiff may rely to discharge his burden of <br>          proving defendant's negligence. . . .  There <br>          is no reason why the jury may not draw that <br>          inference without, as well as with, a specific <br>          instruction authorizing them to do so.  <br>           <br>See Rose v. Melody Lane, 247 P.2d 335, 339 (Cal. 1952).  In this <br>case, the jurors were adequately instructed on inference and <br>circumstantial evidence, and Grajales made the specific inference <br>contemplated by a res ipsa loquitur instruction the linchpin of his <br>theory of the case.  Given that there was sufficient evidence on <br>each of the res ipsa loquitur requirements, the jurors were <br>entitled to make the res ipsa loquitur inference even in the <br>absence of a specific instruction.    <br>(b) Proximate Cause <br>  American protests that there was insufficient evidence to <br>allow the jury to find that its negligence was the proximate cause <br>of Grajales's injuries.  The res ipsa loquitur doctrine only <br>permits an inference that the defendant engaged in negligent <br>conduct. See Colmenares-Vivas, 807 F.2d at 1104.  The plaintiff <br>still must prove that the negligent conduct was the proximate cause <br>of the accident.  cf. Donnelly v. National R.R. Passenger Corp. <br>(Amtrak), 16 F.3d 941, 946 (8th Cir. 1994) ("res ipsa loquitur has <br>no application to proximate cause") (North Dakota law); Daniels v. <br>Twin Oaks Nursing Home, 692 F.2d 1321, 1328 (11th Cir. 1982) (same) <br>(Alabama law).   <br>  In Puerto Rico, to establish proximate cause, the <br>plaintiff must prove that an accident was foreseeable and could <br>have been avoided if the defendant had not breached its duty of <br>care.  See Coyne v. Taber Partners I, 53 F.3d 454, 459 (1st Cir. <br>1995); Marshall v. Perez Arzuaga, 828 F.2d 845, 847 (1st Cir. <br>1987).  The defendant can defeat proximate causation by proving the <br>occurrence of an "intervening cause" that was not foreseeable.  See <br>Malave-Felix v. Volvo Car Corp., 946 F.2d 967, 972 (1st Cir. 1991). <br>  A reasonable jury could easily have found that Grajales <br>satisfied his proximate causation burden.  See Coyne 53 F.3d at 460 <br>("[S]uch questions ordinarily are grist for the factfinder's <br>mill.").  There was ample evidence produced at trial that <br>American's negligence   its failure to secure the countertop <br>properly   created a foreseeable risk of an accident of the general <br>type involved in this case.  See Malave-Felix 946 F.2d at 972 <br>("precise risk" or "exact result" need not be foreseeable).  <br>Moreover, American did not offer sufficient evidence of an <br>unforeseeable intervening cause to compel us to reverse.  As we <br>noted in our discussion of res ipsa loquitur, a reasonable jury <br>could have concluded that Connor's actions were blameless.  For the <br>same reasons, a jury could have concluded that a customer's use of <br>the counter for leverage was not the type of unforeseeable event <br>that creates an "intervening cause" and clears American of causal <br>responsibility.   <br>                              IV. <br>American's miscellaneous objections <br>(a) Exclusion of substitute witnesses <br>  In response to Grajales's interrogatories (and also in an <br>initial scheduling memorandum), American indicated that its trial <br>witnesses would include Tomas del Valle, who was president of <br>Executive Airlines at the time of the accident, and Fred Voltaggio, <br>who was Manager for Support Services for American Airlines at that <br>time.  American then attempted, in its proposed pretrial order, to <br>substitute Jos Machado, current Vice President of Flight <br>Operations for Executive Airlines, for del Valle, who had left <br>Executive Airlines to become the Managing Director for American's <br>operations at Los Angeles International Airport.  American also <br>attempted to substitute Ernesto Quidgley, Manager for Support <br>Services for American Airlines, for Voltaggio, who had become <br>regional manager for American Airlines' Carribean cargo sales by <br>the time of trial.  <br>  Grajales filed a motion before a magistrate judge  <br>opposing the witness substitutions on the grounds that the new <br>witnesses had not been properly disclosed during the course of <br>discovery.  The magistrate judge granted that motion on May 14, <br>1998.  Four days later, American filed a motion before the trial <br>court seeking reconsideration of the magistrate judge's ruling.  <br>The trial court agreed to reconsider the matter but, in an oral <br>order on May 20, 1998, it reaffirmed the magistrate judge's ruling <br>and excluded the substitute witnesses as a discovery sanction for <br>American's failure to disclose them in the appropriate pretrial <br>disclosures as required by Fed. R. Civ. P. 37(c)(1).  <br>  Rule 37(c)(1) provides an exclusionary sanction for <br>failures to disclose witnesses as required by Fed. R. Civ. P. 26: <br>"A party that without substantial justification fails to disclose <br>information required by Rule 26(a) or 26(e)(1) shall not, unless <br>such failure is harmless, be permitted to use as evidence at trial <br>. . . any witness . . . not so disclosed."  A district court's Rule <br>37 sanctions decision is reviewed for abuse of discretion.  See <br>Barreto v. Citibank, 907 F.2d 15, 16 (1st Cir. 1990) (per curiam). <br>Here, it is undisputed that Machado and Quidgley were not disclosed <br>in response to plaintiff's interrogatories, as required by Rule 26.  <br>American offered no excuse for failing to disclose Machado and <br>Quidgley while discovery was open, stating only that it was now <br>"forced" to call upon unannounced witnesses since del Valle and <br>Voltaggio, its originally designated witnesses, no longer occupied <br>the same positions they held at the time of the accident.  The <br>court noted, however, that del Valle and Voltaggio, regardless of <br>any change in position, were currently employees of American, <br>subject to its control and available to testify.  On these facts, <br>we find no abuse of discretion in the court's refusal to allow <br>unannounced witnesses to testify.  <br>(b) "Missing Witness" Instruction <br>  Voltaggio testified at trial; however, del Valle, while <br>present during some of the trial, failed to appear on the day the <br>court expected him to testify.  Upon Grajales' request, the court <br>gave a missing witness instruction. <br>  A "missing witness" instruction is permissible when a <br>party fails to call a witness who is either (1) "favorably <br>disposed" to testify for that party, by virtue of status or <br>relationship with the party or (2) "peculiarly available" to that <br>party, such as being within the party's "exclusive control."  <br>United States v. DeLuca, 137 F.3d 24, 38 (1st Cir. 1998).   We <br>review the grant and denial of missing witness instructions for <br>abuse of discretion.  See id.   <br>  Del Valle had appeared in court during part of the trial <br>but then failed to reappear when his testimony was postponed until <br>the next business day.  The court found that del Valle, an employee <br>of American, was under its control, and that American had offered <br>no acceptable justification for del Valle's absence.  Thus there <br>was ample evidence that del Valle's status left him "favorably <br>disposed" to American and that he was "peculiarly available" to the <br>airline.  Id.  Either one of these grounds is sufficient to justify <br>a missing witness instruction.  Moreover, the court suggested that <br>American had tactical reasons for not producing del Valle.  <br>Specifically, del Valle's move from American Eagle to American <br>Airlines undercut American's efforts to emphasize the minimal <br>nature of the connection between the airlines.  We find no abuse <br>of discretion in the court's issuance of a missing witness <br>instruction. <br>(c) Admission of testimony about a non-testifying defense expert's <br>report <br>  Grajales submitted to a medical examination performed by <br>Dr. Juan J. Fumero-Prez ("Fumero"), an expert witness hired by <br>American.  American provided Dr. Fumero's report to Grajales, as <br>required under Fed. R. Civ. P. 35(b).  In this report, Dr. Fumero <br>concluded that Grajales was suffering from a post-concussion <br>syndrome.  Apparently unhappy with this news, American notified <br>Grajales that it was designating Fumero a non-testifying expert <br>witness under Fed. R. Civ. P. 26(b)(4)(B).  At trial, the court <br>allowed Grajales to extract a brief mention of Fumero's conclusions <br>from both American's medical expert and two medical experts hired <br>by Grajales, Dr. Boris Rojas-Rodriguez  and  Dr. Maria T. Margarida <br>Julia.  The court also allowed Grajales to introduce evidence that <br>American had initially hired Fumero. American argues that the <br>references to the Fumero report were inadmissible hearsay and <br>violated Fed. R. Civ. P. 26(b)(4)(B).   American also argues that <br>evidence of the fact that it hired Fumero was unduly prejudicial <br>under Fed. R. Evid. 403. <br>  We decline to consider American's hearsay challenge to <br>this evidence because it was not presented below.  Assuming <br>arguendo that American's other objections were valid, we find that <br>any error in the admission of this evidence was harmless.  See Fed. <br>R. Civ. P. 61.  Grajales invoked only brief references to the <br>Fumero report from the three experts, and Fumero's conclusions were <br>cumulative of evidence presented convincingly and at great length <br>by Grajales's experts.  American's "substantial rights" were thus <br>unaffected.  Id. <br>(d) American's proposed instructions <br>  American objects to the court's refusal to give three <br>proposed jury instructions. "The function of the appellate court <br>with respect to jury instructions is to satisfy itself that the <br>instructions show no tendency to confuse or mislead the jury with <br>respect to the applicable principles of law."  Harrington v. United <br>States, 504 F.2d 1306, 1317 (1st Cir. 1974). "Beyond that, the <br>district court's choice of jury instructions is a matter of <br>discretion."  Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 564 <br>(1st Cir. 1986); see also Kelley v. Airborne Freight Corp., 140 F.3d <br>335, 355 (1st Cir. 1998) (reviewing refusal of instruction for abuse <br>of discretion). <br>(1). Use of trademark as evidence of apparent authority <br>  The court refused to give American's proposed final <br>instruction #25, which stated in relevant part that "[t]he mere use <br>of the trademark name, logo and color scheme by a third party is not <br>a legal indication that the owner of the name or logo has actual or <br>apparent control" over the apparent agent.  The court did give a <br>broader instruction on apparent authority, not challenged on appeal, <br>which closely tracked the Puerto Rico Supreme Court's articulation <br>of the doctrine in Berros. The failure to include a more detailed, <br>supplemental instruction, even if accurate, is not error. See <br>Marbucco Corp. v. Suffolk Constr. Co., 165 F.3d 103, 106 (1st Cir <br>1999).  <br>(2). Failure to maintain proper medical records  <br>  Dr. Rojas, a neurologist, examined Grajales and testified <br>on his behalf as an expert witness.  He was not, however, Grajales' <br>treating physician and the medical examination was performed solely <br>to assist Dr. Rojas in the preparation of his testimony.  Dr. Rojas <br>testified that he prepared his report on Grajales from handwritten <br>rough notes and then discarded the notes.  American requested an <br>instruction stating that a doctor's failure to "properly maintain <br>his medical records . . . diminishes the effectiveness of the <br>records as a reference tool for evaluation of the treatment, <br>attention and care the doctor gave the patient" and "should be <br>considered when evaluating the credibility of the doctor regarding <br>the treatment he gave the patient."  The court refused to give this <br>instruction, ruling that the stated authority therefor, Sharon Riley <br>v. Rodrguez de Pacheco, 119 D.P.R. 762, 780 (1987), was <br>distinguishable as a case where a physician was evaluating a patient <br>for the purposes of treatment and not solely for litigation <br>purposes. That distinction is obvious from the wording of the <br>instruction.  In any event, the jury could have drawn the inference <br>described without instruction if they found that the facts merited <br>it.  We find no abuse of discretion in the court's refusal to give <br>this instruction. <br>(3). Definition of inference <br>  American submitted two supplemental instructions on the <br>definition of inference a few hours before the jury was to be <br>instructed.  The court refused to consider these new supplemental <br>instructions because they had been offered after the court's <br>announced deadline for such instructions.  The refusal to consider <br>these instructions as untimely was not an abuse of discretion. See <br>Senra v. Cunningham, 9 F.3d 168, 171 (1st Cir. 1993). <br>                                V. <br>Reasonableness of the Damages Award <br>  American argues that there was insufficient evidence to <br>support the award of $150,000.  Pursuant to the federal rule, "[a] <br>verdict should stand unless it is 'grossly excessive,' 'inordinate,' <br>'shocking to the conscience of the court,' or 'so high that it would <br>be a denial of justice to permit it to stand.'" Segal v. Gilbert <br>Color Sys., Inc., 746 F.2d 78, 80-81 (1st Cir. 1984).  Although the <br>defendant faces a heavy burden in meeting this standard, excessive <br>damage awards are not immune from review.  See,e.g., Koster v. Trans <br>World Airlines, Inc., 181 F.3d 24, 35-36 (1st Cir. 1999) (finding <br>$716,000 award for emotional distress caused by age discrimination <br>to be excessive, and limiting recovery to $250,000).  A reasonable <br>jury, crediting the testimony of Grajales' medical experts, could <br>have found that Grajales continued to suffer from both chronic neck <br>pain and a loss of cognitive functions, including concentration and <br>memory.  An award of $150,000 for such damages was not excessive. <br>  American also argues that the Supreme Court of Puerto <br>Rico reviews awards for consistency with other awards in similar <br>cases; that the district court should have similarly reviewed the <br>jury's award here, in accordance with the United States Supreme <br>Court's pronouncement in Gasperini v. Center for Humanities, Inc., <br>518 U.S. 415 (1996), that a substantive state law standard for <br>review of jury awards must be applied by federal district courts <br>hearing cases under diversity jurisdiction; and that the award in <br>this case is excessive because it is inconsistent with awards <br>approved by the Supreme Court of Puerto Rico in similar cases.  In <br>a recent case we expressly rejected this Gasperini argument, based <br>on our reading of Puerto Rico case law: "If local law placed a <br>substantive cap on . . . damages, it would control, [citing <br>Gasperini], but Puerto Rico case law suggests no such departure from <br>[the] ordinary practice" of reviewing awards under the federal <br>standards for judging excessiveness, outlined above.  Mejias Quiros <br>v. Maxxam Property Corp., 108 F.3d 425, 427 n.1 (1st Cir. 1997).  <br>We therefore find no reason to vacate or modify the jury's award of <br>damages. <br>                              VI. <br>Grajales' Cross-Appeal: Attorney's Fees <br>  Plaintiff-cross appellant Grajales claims that under <br>Puerto Rico law, Fernndez v. San Juan Cement Inc., 118 D.P.R. 713,  <br>18 P.R. Offic. Trans. 823, 830 (1987), a party engages in obstinacy <br>when it merely answers a complaint and denies responsibility for a <br>plaintiff's damages, even if it accepts that responsibility later.  <br>Puerto Rico's Rules of Civil Procedure 44.1(d) and 44.3(b) permit <br>respectively the award of attorney's fees and prejudgment interest <br>when a party has been, in the court's judgment, obstinate.  See 32 <br>L.P.R.A. App. III, R. 44.1(d), 44.3(b).  When Puerto Rico law <br>supplies the basis for decision in a diversity case, federal courts <br>must apply Rule 44.1(d), Quiones Pacheco v. American Airlines, <br>Inc., 979 F.2d 1, 7 n.8 (1st Cir. 1992), and application of Rule <br>44.3(b) would seem to follow. However, as Grajales concedes, a <br>previous panel of this court, in Mejias Quiros v. Maxxam Property <br>Corp., 108 F.3d 425, 429 (1st Cir. 1997), rejected (years after the <br>Fernndez decision) the very same claim of obstinacy that Grajales <br>raises here.  We agree with the Mejias panel that this argument <br>"cannot [be] seriously intended." Id.  <br>  Affirmed.</pre>

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