
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1044                       EASTERN MOUNTAIN PLATFORM TENNIS, INC.,                                Plaintiff, Appellant,                                          v.                         THE SHERWIN-WILLIAMS COMPANY, INC.,                                 Defendant, Appellee.                                 ____________________          No. 94-1045                       EASTERN MOUNTAIN PLATFORM TENNIS, INC.,                                 Plaintiff, Appellee,                                          v.                         THE SHERWIN-WILLIAMS COMPANY, INC.,                                Defendant, Appellant.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE               [Hon. Clarence C. Newcomer,* Senior U.S. District Judge]                                            __________________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                            and Carter,** District Judge.                                          ______________                                        ____________________          *    Of   the  Eastern  District  of  Pennsylvania,   sitting  by          designation.          **  Of the District of Maine, sitting by designation.                                _____________________               Ovide M.  Lamontagne with whom  George R. Moore  and Devine,               ____________________            _______________      _______          Millimet  & Branch, P.A.  were on brief  for The Sherwin-Williams          ________________________          Company.               Stephen S.  Ostrach, Patrick  W. Hanifin, Todd  S. Brilliant               ___________________  ___________________  __________________          and New England Legal  Foundation were on brief for  Business and              _____________________________          Industry Association of New Hampshire, amicus curiae.                                                 _____________               Kenneth G.  Bouchard with whom Paul B. Kleinman and Bouchard               ____________________           ________________     ________          &  Mallory, P.A.  were  on brief  for  Eastern Mountain  Platform          ________________          Tennis, Inc.                                 ____________________                                  November 28, 1994                                 ____________________                                         -2-                    CARTER, Chief  District Judge.  This  action arose from                            ______________________          the sale of a paint system recommended by Defendant, The Sherwin-          Williams  Company  ("Sherwin-Williams"),  to  Plaintiff,  Eastern          Mountain  Platform Tennis,  Inc. ("EMPT"),  for use  in producing          platform  tennis courts.   Sherwin-Williams' representative David          Shelley ("Shelley") recommended a paint system to EMPT after EMPT          informed Shelley that it would not change products unless the new          system met or exceeded the performance of the paint system it had          used previously.  The Sherwin-Williams  system did not perform as          well as the system it replaced.  In fact, the courts covered with          Sherwin-Williams paints  began to  show signs  of wear,  with the          coating peeling  away from the  aluminum panels  and the  courts'          surface becoming slick  due to loss  of aluminum oxide  aggregate          during the  first season of use.1   After a jury  trial, the jury          entered a verdict in  favor of EMPT in the  amount of $1,087,000.          The  special  verdict form  indicated  that the  jury  found that                                        ____________________          1  The painting of the tennis platform courts involves a six-step          process  and  two types  of paint.    First, aluminum  panels are          washed  with acid  to  eliminate  grease  and etch  the  surface.          Second,  the panels  are sanded  to increase  the profile  of the          surface.   Third,  a  layer of  primer  epoxy paint  is  applied.          Fourth, aluminum oxide aggregate is  pneumatically broadcast over          the wet epoxy  primer layer.  Fifth, a topcoat  of epoxy paint is          applied.    Sixth,  aluminum  oxide  aggregate  is  pneumatically          broadcast over the wet topcoat.             The  paint system  must  have  two important  characteristics.          First,  the primer  coat  must  adhere  to the  aluminum  through          extreme  changes  of  temperature  because  the  game  is  played          outdoors  on a year-round basis with a heater installed under the          platform to melt snow and ice.  Second, both the  primer coat and          the  topcoat  must  have  the  capacity  to  hold aluminum  oxide          aggregate  to insure a gritty nonslip surface for platform tennis          players.                                         -3-          Sherwin-Williams  had violated  an express  warranty, an  implied          warranty  of  fitness  for  a particular  purpose,  and  the  New          Hampshire Consumer  Protection Act ("CPA"  or "the  Act").   N.H.          Rev. Stat.  Ann.   358-A (1993).    In  addition, the jury  found          that  Sherwin-Williams  had  willfully  or  knowingly  engaged in          unfair or deceptive  practices.   Pursuant to section  10 of  the          CPA, the trial judge doubled  the jury verdict.  N.H.  Rev. Stat.          Ann.   358-A:10  (1993).   In addition,  the trial  judge awarded          prejudgment interest on  the amount of the  original jury verdict          up to the date of entry  of the final judgment.  N.H. Rev.  Stat.          Ann.   524:1-b (1993).                                   ISSUES ON APPEAL                                   ________________                    Sherwin-Williams raises a number  of issues on  appeal.          First, it challenges the trial judge's denial of summary judgment          on the CPA claim contending that the CPA does not apply to purely          commercial transactions (i.e.,  transactions that do not  involve                                   ____          sales  to ultimate consumers).   Second,  Sherwin-Williams argues          that, if the CPA does govern purely commercial transactions,  the          trial judge nevertheless erred in  denying its motion for summary          judgment  on the CPA claim  because the undisputed  facts did not          establish a violation of the Act.  Third, Sherwin-Williams argues          that the trial judge erred in denying its motion to set aside the          verdict  on the CPA claim because the  issue should not have been          presented  to the jury and because it was impossible to determine          what portion,  if any, of  the award  was the result  of the  CPA                                         -4-          violation.   Fourth,  Sherwin-Williams  contends  that the  judge          erred in  failing to give  the jury instructions  on "plaintiff's          misconduct" or comparative fault.   Fifth, Sherwin-Williams seeks          a new trial, or remittitur, on the basis that the damages awarded          were speculative.  Sixth, Sherwin-Williams asserts that the trial          judge's  conduct during the trial requires a new trial.  Finally,          Sherwin-Williams  challenges the  calculation  of  the  award  of          prejudgment  interest  on  the  grounds  that  such  interest  is          available only to  the date of  the jury verdict, rather  than to          the date of entry of final judgment.  It further contends that it          was error to  award prejudgment  interest on the  portion of  the          verdict which represented an award of future lost profits.                    On cross-appeal, EMPT argues that the trial judge erred          in  awarding  prejudgment  interest  only on  the  original  jury          verdict and not on  the entire amount of the  judgment, including          the doubled verdict under the CPA.                    We will address, in turn, each of these contentions.                                      DISCUSSION                                      __________          I.   Application of the New  Hampshire Consumer Protection Act to               the Purely Commercial Transaction.                                        ___________________________________________________________                    The  Appellant has  failed to  preserve this  point for          review on  appeal.  The  denial of a motion  for summary judgment                                   ______          does not merge into the final judgment.  Glaros v. H.H. Robertson                                                   ________________________          Co., 797 F.2d 1564, 1573  (Fed. Cir. 1986).  Such a denial, to be          ___          preserved for  review  of  a  legal conclusion  subsumed  in  the          ruling, must be  perfected by making a  motion for judgment  as a                                         -5-          matter of law  at the close  of the evidence.   Watson v.  Amedco                                                          _________________          Steel, Inc., 29  F.3d 274,  279 (7th Cir.  1994); Whalen v.  Unit          ___________                                       _______________          Rig,  Inc., 974 F.2d  1248, 1251  (10th Cir.  1992); see  Lama v.          __________                                           ___  _______          Borras,  16 F.3d 473 (1st Cir. 1994).   The denial of this latter          ______          motion  does  merge into  the judgment,  and  all rulings  of law          subsumed  within  it are  subject to  review  on appeal  from the          judgment.                    Here, Appellant failed to  make any motion for judgment          as  a   matter  of  law  at  the   close  of  all  the  evidence.          Accordingly,  the determination, as a matter of law, by the trial          judge  in  ruling on  the summary  judgment  motion that  the CPA          applied to  business transactions never merged  into the judgment          and is not available for review on this appeal.                    Even though the issue of statutory construction was not          preserved for  appeal, we  have nevertheless reviewed  the record          and are satisfied that,  in determining the legal question  as to          whether the CPA applied  to the type of transaction  disclosed by          the evidence in this case, the trial judge committed no "manifest          error."  The appeal on this  point raises a question of statutory          construction.     In  short,  Sherwin-Williams  argues  that  the          Consumer Protection Act was intended to redress the discrepancies          between  a knowledgeable commercial seller  and a consumer who is          placed  in the position of relying on the representations of that          seller.  The provisions of the Act, Sherwin-Williams argues, have          no  application  where, as  here, a  commercial buyer  acquires a          product  for use in the  manufacture of another  product in which                                         -6-          its expertise may easily be greater than that of the  seller.  On          amicus  brief,  the  Business  and Industry  Association  of  New          ______          Hampshire agrees.  Because the  issue raised is an issue of  law,          our review is de novo.                        __ ____                    We begin, and could  easily conclude, our assessment of          this  argument by considering the  plain meaning of  the words of          the statute.   Town of Wolfeboro  v. Smith, 556  A.2d 755, 756-57                         ___________________________          (N.H. 1989).   We must glean the intention of  the legislature as          to the scope of the Act "from its construction as a whole, not by          examining isolated words and phrases."  Petition of Jane Doe, 564                                                  ____________________          A.2d 433, 438  (N.H. 1989).   A  thorough reading  of the  entire          statute   provides  no   direct  support   for  Sherwin-Williams'          contention  that  the  Act  applies  only  to  transactions  with          ultimate consumers.          The unfair and deceptive  practices prohibited by the CPA  appear          to include  transactions between business competitors  as well as          those involving ultimate consumers.  N.H. Rev. Stat. Ann. 358-A:2          (1993).  There are no provisions which limit the Act's protection          to ultimate "consumers" alone.  Indeed, there is no definition of          a consumer, a consumer good,  or a consumer transaction, although          such definitions would be critical if the Act were intended to be          limited in the way that Sherwin-Williams suggests.  Moreover, the          statute  specifies "exempt  transactions"  and  does not  include          among them  the kind  of "commercial transactions"  the defendant          would  delete from the purview of the statutory provisions.  N.H.          Rev. Stat. Ann. 358-A:3 (1993).                                          -7-                    With this overview of  the statute, we now turn  to the          specific provisions  that  EMPT contends  make  Sherwin-Williams'          acts  unlawful, and provide  EMPT with a right  of action.  Here,          the  statute declares that "[i]t shall be unlawful for any person                                                                 __________          to  use any  unfair  method  of  competition  or  any  unfair  or          deceptive act or practice in the conduct of any trade or commerce                                                      _____________________          within  this  state."    N.H.  Rev.  Stat.  Ann.  358-A:2  (1993)          (emphasis  added).2  Section 10 of the statute provides a private          right of action as follows:                      I.  Any person  injured by another's use of                          __________                    any method, act or practice declared unlawful                    under  this chapter may  bring an  action for                                        ____________________          2    The  statute defines  a  "person"  and  "trade or  commerce"          broadly:               I.  "Person" shall  include, where applicable,  natural               persons,     corporations,     trusts,    partnerships,               incorporated  or  unincorporated associations,  and any               other legal entity.               II.   "Trade"   and   "commerce"  shall   include   the               advertising,  offering for sale,  sale, or distribution               of  any   services  and   any  property,  tangible   or               intangible, real,  personal  or mixed,  and  any  other               article, commodity, or thing of value wherever situate,               and  shall include  any trade  or commerce  directly or               indirectly affecting the people of this state.          N.H. Rev. Stat. Ann. 358-A:1 (1993).             Sherwin-Williams'  contention  that  the   "where  applicable"          language  in the  definition of  person creates  ambiguity  as to          whether   the  act   applies   to  commercial   transactions   is          unconvincing.  The language is  not surplusage because section  6          of the  Act provides different penalties for  natural persons and          all other persons.   The relevant portions of the statute in this          action specifically override any restriction on the term "person"          by  providing  that "any  person" may  be  guilty of  unlawful or                               ___          deceptive  practices under section 2, and that "any person" has a                                                          ___          private  right of action  for damages under  section 10 (emphasis          added).                                         -8-                    damages  and  for   such  equitable   relief,                    including an  injunction, as the  court deems                    necessary and proper.  If the court finds for                    the  plaintiff,  recovery  shall  be  in  the                    amount of  actual damages or  $200, whichever                    is  greater.  If the court finds that the use                    of the  method of  competition or the  act or                    practice was  a willful or  knowing violation                    of this chapter, it shall award as  much as 3                    times,  but  not  less  than  2  times,  such                    amount.  In  addition, a prevailing plaintiff                    shall be  awarded the  costs of the  suit and                    reasonable attorney's fees, as  determined by                    the court.  Any attempted waiver of the right                    to the  damages set  forth in  this paragraph                    shall be void and unenforceable.          N.H. Rev. Stat. Ann. 358-A:10 (1993) (emphasis added).  Defendant          points  to nothing in the statute that suggests that "any person"          in  either of these sections should be read to exclude commercial          purchasers.   Nor do they  point to language  that indicates that          "commerce or trade" is restricted  to commerce or trade involving          ultimate  consumers.   The plain meaning  of the  statute clearly          includes both retail and commercial transactions.                    This construction is supported  by the decisions of New          Hampshire  courts.  The New  Hampshire Supreme Court has recently          observed:                    [T]he   Consumer   Protection   Act   "is   a                    comprehensive  statute  designed to  regulate                    business practices for consumer protection by                    making  it unlawful  for  persons engaged  in                    trade  or commerce to  use various methods of                    unfair  competition  and  deceptive  business                    practices."   Chase v. Dorais,  122 N.H. 600,                                  _______________                    601,  448 A.2d  390,  391 (1982).   The  very                    words  contained in the statute indicate that                    the  act's proscriptions  are  to be  broadly                    applied.          Gilmore v. Bradgate Assoc.,  Inc., 604 A.2d 555, 557  (N.H. 1992)          _________________________________          (holding that although the  condominium industry was regulated by                                         -9-          a state authority, it was not exempt from the CPA under section 3          because,  given the  Act's expansive  language, "the  legislature          . . . could [not] have intended to exclude from the protection of          the  act  the large  number of  industries  which are  subject to          regulation  in  this State  simply  because  the legislature  has          provided  for  regulation of  that  industry  within a  statutory          framework."    Id.).    Since  Gilmore,   the  issue  of  whether                         ___             _______          nonconsumer plaintiffs have a  cause of action under the  CPA has          been  raised in two New  Hampshire courts and,  in each instance,          the Courts have  held that the plain  meaning of the  statute and          Gilmore do not require  a plaintiff to be a consumer.   Christian          _______                                                 _________          Mutual  Life  Ins.  Co.  v.  Kemper  Securities  Group,  91-C-190          ______________________________________________________          (Merrimack  County  Superior   Court,  Nov.  19,  1993);  A  &  B                                                                    _______          Electronics  Co. v.  Permagile Industries,  Inc.,  91-C-107 (Coos          ________________________________________________          County Superior Court  Jan. 15,  1993).3  While  these cases  are          not controlling, the  decisions of lower  state courts are  often                                        ____________________          3  Prior to  Gilmore, the three  courts which had considered  the                       _______          issue had not reached uniform  decisions.  Bowman Business Forms,                                                     ______________________          Inc. v. Bowman, 87-E-0022-D (Merrimack County Superior Court Aug.          ______________          11,  1988)(358-A  available to  nonconsumer  plaintiffs), contra,                                                                    ______          International Corp. v. IDG Communications/Peterborough, Inc., No.          ____________________________________________________________          90-E-247  (Hillsborough County  Superior Court August  27, 1990),          and  Thermal Dynamics  Corp.  v. McGrath,  No. 88-C-090  (Grafton               ___________________________________          County Superior Court May 4, 1989)(nonconsumer plaintiffs did not          have a cause  of action under the CPA.)   International Corp. was                                                    ___________________          decided by Justice Kathleen McGuire who, in light of Gilmore, has                                                               _______          since held  that the CPA's  provisions extend to  actions between          businesses in Christian Mutual Life, supra.                        _____________________  _____             Federal  judges  considering  the  same issue  have  uniformly          concluded the New Hampshire Supreme  Court would construe the Act          as  applying  to commercial  transactions.    See, e.g.,  Nault's                                                        ___  _____  _______          Automobile Sales,  Inc. v. America  Honda Motor  Co., Acura  Auto          _________________________________________________________________          Div., 148 F.R.D.  25, 48 (D.N.H. 1993); Globe  Distributors, Inc.          ____                                    _________________________          v. Adolph Coors Co., 111 B.R. 377 (Bankr. D.N.H. 1990).          ___________________                                         -10-          the best indicator  of how the high court  will resolve an issue.          Commissioner v. Estate of  Bosch, 387 U.S. 456, 465 (1967); In re          ________________________________                            _____          Brooklyn Navy  Yard Asbestos Litigation,  971 F.2d  831, 850  (2d          _______________________________________          Cir.  1992).  Despite the  plain language of  the statute and the          dearth  of case  law  to support  its  proposition that  the  New          Hampshire courts would adopt this narrow construction of the Act,          Sherwin-Williams makes  several other arguments in  favor of this          construction.  We will address these arguments briefly.                    Sherwin-Williams  first argues  that the  New Hampshire          Supreme Court's decision in  Chase v. Dorais, 448 A.2d  390 (N.H.                                       _______________          1982), supports  its contention that the  Consumer Protection Act          is  not as  broad as  it appears.   In  Chase, the  New Hampshire                                                  _____          Supreme  Court held that no  cause of action  was available under          chapter 358-A when an individual, who was not  in the business of          selling used cars, sold a used car to another private individual.          Id. at 391-92.   This transaction was characterized by  the Court          ___          as "strictly private in nature."   Id. at 392.  Because  the sale                                             ___          in Chase did  not take place in a "trade  or business context" it             _____          was  not in  the course  of "commerce  or trade"  as required  by          section  2  of  the  CPA.    Id.    Therefore,  the  CPA  had  no                                       ___          application.  The decision in Chase  did not turn on whether  the                                        _____          transaction  was  a  "consumer   transaction"  or  a  "commercial          transaction" but on whether  it was a "private transaction"  or a          "commercial  transaction."     Because  the  transaction  between          Sherwin-Williams and EMPT  took place in  the "trade or  business          context," Chase  has no relevance  to the issue  at hand in  this                    _____                                         -11-          case.                    Sherwin-Williams  next argues  that  the  CPA does  not          apply to  purely commercial transactions because  it is analogous          to  the Massachusetts Consumer Protection  Act (Mass. Gen. L. ch.          93A, "chapter  93A"),  but, unlike  chapter 93A,  has never  been          expressly amended to provide  a cause of action for  transactions          between businesses.  This argument  is based on a myopic  view of          the history of the two acts.   It is true that the  New Hampshire          Act  is analogous in many  regards to the  Massachusetts Act, and          that New  Hampshire courts refer to Massachusetts  case law where          appropriate in construing the  Act.  See Chase, 448 A.2d  at 391.                                               ___ _____          However, Massachusetts authorities lose relevance when, as  here,          the New Hampshire legislature opted to enact different provisions          from those set out in  chapter 93A.  The New Hampshire  Act never          included any counterpart to section 9 of chapter 93A which, prior          to 1979, restricted the availability of a private right of action          "to any  person  who  purchases  or  leases  goods,  services  or          property  . . .  primarily  for  personal,  family  or  household                                           ________________________________          purposes."   The New  Hampshire  legislature did  not adopt  this          ________          restriction,  opting  instead  for  broad  applicability  in  all          commerce  and trade.   Therefore,  New Hampshire  had no  need to          adopt an express provision to cover commercial transactions.                    Because we find no ambiguity  in the plain language  of          the  statute,  we  need not  consider  the  title of  the  Act in          determining  the  correct construction.    See  2A Sutherland  on                                                     ___     ______________          Statutory Construction    47.03 (5th  ed. 1992) (the  title of  a          ______________________                                         -12-          statute should be considered only when the language of the law is          ambiguous).   Even  so,  reference to  the  title "Regulation  of          Business Transactions for  Consumer Protection"  does nothing  to          shed doubt  on  our  conclusion.   The  Act  regulates  "Business          Transactions."   It is clear from  the facts of the  case at hand          that deceptive practices in the sale of inputs between a producer          and  a  manufacturer  can  have significant  impact  on  consumer          welfare.      This  is   particularly   true   where,  as   here,          misrepresentations about such matters are likely to be discovered          only  after the final product begins to fail, creating costly and          potentially dangerous situations for end-line consumers.                    Because the  plain language of  the statute encompasses          the transaction  at issue  and Defendant  points to no  authority          which  would  require  this  Court's  deviation  from  the  plain          language  of  the statute,  there is  ample  basis for  the trial          judge's  determination  to stand  that the  sale of  the Sherwin-          Williams  paint system to EMPT  was covered by  the New Hampshire          Consumer Protection Act.          II.  Sherwin-Williams' Motion for  Summary Judgment on  the Basis               of Failure to Show  "Rascality" as a Necessary  Predicate to               Liability Under the Consumer Protection Act Claim.                         ____________________________________________________________                    We  need  not address  the  merits  of this  preverdict          challenge  to the sufficiency of  the evidence on  the motion for          summary  judgment.  Such an  attack on the  denial of defendant's          motion  for summary  judgment "has  been overtaken  by subsequent          events,  namely, a full-dress trial and an adverse jury verdict."                                         -13-          Lama v.  Borras, 16 F.3d at  476 n.5.  In  such circumstances, we          _______________          will  not address the propriety of the denial of summary judgment          where  challenge is  made on  the basis  of the  insufficiency of          evidence to  support the denial  in the motion  record.  Id.  and                                                                   __          cases  there collected.   The  rationale for  this rule  has been          based  on the  procedural  fact that  a  denial of  a motion  for          summary judgment "is merely  a judge's determination that genuine          issues of  material fact exist.   It is not a  judgment, and does          not  foreclose trial  on  issues on  which  summary judgment  was          sought."  Glaros v. H.H. Robertson Co., 797 F.2d at 1573.  Hence,                    ____________________________          a challenge to  the sufficiency  of the evidence  adduced on  the          motion to  support the  district court's conclusion  that genuine          issues of material fact exist will not lie on appeal.                    We have reviewed the record with respect  to the merits          of this  aspect of  the Plaintiff's  proposed  challenge and  are          satisfied that no manifest error exists.          III. Defendant's  Motion to  Set Aside  the Jury  Verdict on  the               Consumer Protection Act Claim.                                             ____________________________________________________________                    In  Sherwin-Williams'  motion  to set  aside  the  jury          verdict,  it contended that the judge erred in submitting the CPA          claim  to the jury for two reasons: (1) because the determination          of violations  of the  Act was  a matter for  the judge,  not the          jury;  and, (2)  because  it  was  impossible to  ascertain  what          portion,  if  any,  of  the damages  represented  actual  damages          flowing  from  the  CPA  violation.    The  judge reviewed  these          contentions  to  determine whether  the  verdict  was so  clearly                                         -14-          against  the weight of the  evidence as to  constitute a manifest          miscarriage of  justice.   Kearns v.  Keystone Shipping  Co., 863                                     _________________________________          F.2d 177, 181 (1st Cir. 1988).  Finding that the "clear and great          weight  of evidence" supported the  jury verdict the judge denied          the  motion.  Having reviewed  the record, we  find that Sherwin-          Williams has waived these claims.                    As for the argument that claims of violations under the          CPA are for the judge alone  to try, the district judge concluded          that by failing  to object to the submission of  the CPA claim to          the jury, Sherwin-Williams had waived any objection.4  The  judge          further noted  that it  was not  inappropriate to  submit factual          issues  to the jury, reserving the equitable issues under the CPA          for the Court's  determination.  Memorandum, dated June 19, 1993,                                           __________          at 5.  Because the  objection to submitting the CPA claim  to the          jury  was not raised below, and was not argued before this Court,          we conclude that this objection was waived.5                    As for the contention that the jury verdict must be set          aside because it is  impossible to ascertain what portion  of the          verdict represents  damages flowing from the  CPA violation, this                                        ____________________          4  In fact, Sherwin-Williams submitted proposed jury instructions          and special verdict forms which covered the claims under the CPA.          5  On appeal  Sherwin-Williams argues that the matter  should not          have gone to the jury because a jury verdict was precluded by the          judge's  findings on the motion for summary judgment on the fraud          and bad faith claims.  This point was not argued in the motion to          set  aside  the  verdict,  nor did  Sherwin-Williams  raise  this          objection or seek a directed verdict on this basis.  Accordingly,          this  argument was waived.  Furthermore,  as discussed in section          two  above, a CPA violation  may be established  where express or          implied warranties are breached.                                         -15-          ambiguity  was  the result  of  special jury  questions  to which          Sherwin-Williams made no timely objection.  Under Federal Rule of          Civil Procedure 49(a), the parties agree to let the court resolve          issues of fact not covered by special jury interrogatories unless          an  objection  is raised  before the  jury  retires.   Rule 49(a)          "ensures  that, if  submitted questions  omit material  issues of          fact  and no timely objection  is lodged, the  district court may          itself  make  the  findings  which  are  necessary  to  cure  the          omission.  . . .   Curative findings  are implied  even when  not          expressly made."  Peckham  v. Continental Casualty Insurance Co.,                            ______________________________________________          895 F.2d 830, 836 (1st Cir. 1990) (citation omitted).  By failing          to  object to the damages interrogatory  before the jury retired,          Sherwin-Williams agreed  to let  the court determine  this issue.          Sherwin-Williams has  not challenged  the district court  judge's          determination that  all damages flowed from the CPA violation, an          implicit finding based  on the court's  doubling of the  damages.          Therefore, the issue was waived.          IV.  Plaintiff Misconduct as Defense to Warranty Claims.               ___________________________________________________                    Defendant's  next  assignment  of  error  is  that  the          district  court judge erred in  refusing to instruct  the jury on          "plaintiff misconduct"  or comparative  fault due  to Plaintiff's          alleged failure to use the vinyl wash primer or to test the paint          system adequately before going into full production with Sherwin-          Williams  products.    Defendant  contends  that   principles  of          comparative fault apply  under New Hampshire law to  claims based                                         -16-          on  breach  of  warranty.6    In  support  of  this  proposition,          Sherwin-Williams relies on Thibault v.  Sears, Roebuck & Co., 395                                     _________________________________          A.2d  843  (N.H. 1978).   In  Thibault,  the Court  gave judicial                                        ________          recognition to  comparative fault in personal  injury cases based          on   strict  liability   and  breach   of  implied   warranty  of          merchantability.  Id. at 850.  Plaintiff argued, and the district                            ___          court  agreed, that Thibault does not apply to all warranty cases                              ________          but  is limited  to personal  injury  cases.   Memorandum denying          Sherwin-Williams'  motion for a new trial, dated June 1, 1993, at          6.   The district court judge  further held that, even  if he had          erred  in   failing  to   give  an  instruction   on  Plaintiff's          misconduct, the  error was harmless  because, in order  to render          its  verdict, the jury had  to determine that  EMPT's reliance on          Sherwin-Williams'  recommendations  was  reasonable.   Memorandum                                                                 __________          dated June 1, 1993,  at 7.  For the reasons that  follow, we find          that  the district  judge  did not  err in  refusing  to give  an          instruction based on "plaintiff's misconduct."                    First, we agree  that the holding in  Thibault does not                                                          ________          presage the general extension of notions of comparative fault  to                                        ____________________          6   On appeal, Sherwin-Williams  also argues  that a  comparative          fault  instruction should have been given with regard to the CPA.          However,  Sherwin-Williams  never articulated  the  position that          comparative fault was relevant to the CPA claim.   Rather, in its          motion for a new trial Sherwin-Williams' assignment  of error was          addressed only to  the Court's  refusal "to charge  the jury  and          submit  special  interrogatories  on  the issue  of  'plaintiff's          conduct' (i.e. assumption of the risk) with respect to its breach                    ____                         __________________________          of  warranty  claims."   Defendant's Motion  for  a New  Trial on          ____________________          Liability  and Damages,    3 (emphasis  added).  Accordingly,  we          find  that   Sherwin-Williams  has   waived  the  issue   of  the          application of comparative fault principles under the CPA.                                         -17-          all  breach of  warranty cases.   Thibault  was decided  to bring                                            ________          recovery  rules in cases based  on strict liability  in tort into          line with statutory recovery rules governing tort cases  based on          negligence.  Id.   Sherwin-Williams  has not cited,  nor have  we                       ___          found, any New Hampshire case which applies  comparative fault in          warranty cases  except in  personal injury  cases  based on  dual          theories of strict liability in tort and breach of an the implied          warranty of  merchantability.   N.H. Rev. Stat.  Ann. 382-A:2-314          (1993).                    Thibault does  not address  the availability of  such a                    ________          defense  to override  either an  express warranty  or an  implied          warranty  of  fitness  for  a  specific  purpose  under  the  New          Hampshire  Uniform Commercial  Code ("NHUCC").   N.H.  Rev. Stat.          Ann.    382-A:2-313, 2-315.  These provisions govern the creation          of  specific warranties  between the  buyer and seller  of goods.          Under NHUCC, such warranties may be excluded or modified only (a)          in  writing, or  (b) under  specific  circumstances.7   N.H. Rev.                                        ____________________          7  One such circumstance which has the effect of limiting implied          warranties  is when a buyer  examines, or has  the opportunity to          examine, a product and, despite defects that the buyer discovered          or should  have discovered,  enters into  a contract  to purchase          goods.    See  N.H.  Rev. Stat.  Ann.  382-A:2-316(3)(b)  (1993).                    ___          However,  the buyer  is  not responsible  for discovering  latent          defects.   Id.  Here, it  is undisputed that early  inspection of                     ___          the first  deck painted  using Sherwin-Williams products  did not          reveal the defects which  caused the failure of the  paint system          within the first season in use.               More  important, inspection  and  testing does  not negate  an          express  warranty.   See General  Electric Co.  v. United  States                               ___ ________________________________________          Dynamics, Inc., 403  F.2d 933, 935  (1st Cir. 1968)(holding  that          ______________          under   identical  provisions   of   the  Massachusetts   Uniform          Commercial Code "inspection [under section 2-316(3)(b)] could not          offset express warranties").                                         -18-          Stat. Ann. 382-A:2-316 (1993).   We do  not believe that the  New          Hampshire Supreme Court, in crafting  a judicial rule of recovery          governing strict  liability in tort  cases, had any  intention of          altering the  comprehensive  statutory provisions  of  the  NHUCC          governing sales contracts.                    Furthermore, even if  the concept of  comparative fault          were  available as  a  defense  to a  claim  based on  breach  of          warranty  in a  contract case,  Sherwin-Williams has  not alleged          anything amounting to "plaintiff misconduct" on EMPT's part.  The          New Hampshire Supreme Court has  defined "plaintiff's misconduct"          as  "product misuse  or abnormal  use, as  well as  embodying the          'negligence' or  'assumption of the  risk' concepts in  our prior          cases of  voluntarily and unreasonably proceeding  to encounter a          known  danger."  Thibault,  395 A.2d at  849.   Defendant has not                           ________          alleged   that  Plaintiff   either   misused   the  products   or          "voluntarily and  unreasonably proceed[ed]  to encounter  a known          danger."   The uncontroverted evidence at  trial established that          EMPT  used  the  products  in  accordance with  Sherwin-Williams'          recommendations and that  such use was  supervised by a  Sherwin-          Williams  representative   who  observed   each   phase  of   the          application  process.  After the first  deck was completed, there          was  no indication  that the  paint system  was not  suitable for          EMPT's purpose.  Thus,  there is no evidence that  EMPT "misused"          the paints, put the  paints to abnormal use, or that it knowingly          and   unreasonably  proceeded  to   encounter  a   known  danger.                                                             _____________          Accordingly, Sherwin-Williams was not entitled to an  instruction                                         -19-          on Plaintiff's misconduct.          V.   Denial of Motion for New Trial on Damages and Remittitur.               _________________________________________________________                    The  trial judge denied  Sherwin-Williams' motion for a          new trial or remittitur, concluding that the damages awarded were          based on  a rational appraisal  of the damages.   In reviewing an          award of damages,  the district  court is obliged  to review  the          evidence  in the light most favorable to the prevailing party and          to grant remittitur or a new trial on damages only when the award          "exceeds any  rational appraisal or estimate of  the damages that          could be based upon  the evidence before it."  Kolb  v. Goldring,                                                         __________________          Inc., 694 F.2d 869, 872 (1st Cir. 1982).  Under New Hampshire law          ____          a  jury  award  of  damages  may  be  set  aside  only  if it  is          "conclusively against  the  weight of  the evidence."   Panas  v.                                                                  _________          Harakis, 529 A.2d 976, 983 (N.H. 1987).  This standard "should be          _______          interpreted to mean that  the verdict was one no  reasonable jury          could return."  Id.  Where an award  of future lost profits is at                          ___          issue, the  verdict will be upheld if there is sufficient data to          indicate that profits were reasonably certain to result.  Petrie-                                                                    _______          Clemons v. Butterfield, 441 A.2d 1167, 1171 (N.H. 1982).  This is          ______________________          so even if  a business posted losses every year that it operated.          Restaurant Operators,  Inc. v.  Jenney, 519  A.2d 256, 260  (N.H.          ______________________________________          1986)  (upholding   award  of   future  lost  profits   based  on          uncontradicted evidence that business "had reached the break-even          point and gave every prospect of continued growth.").                      In this case, the  record indicates that EMPT was  at a                                         -20-          break-even  point and  had  shown  strong  growth for  six  years          preceding the paint failure.   There was testimony that  the cost          of repairing the decks  covered with Sherwin-Williams paint would          be approximately $267,000.   Lost  profits to the  date of  trial          were $383,000  based on Plaintiff's expert's  testimony that EMPT          had  shown an approximate growth rate  of 15% and a profit margin          of 23% on each deck.  EMPT had recently constructed a new factory          and hired  additional employees and, therefore,  had the capacity          to maintain this growth rate into the future.  There  was further          testimony that it would take Mr. Rogers approximately three years          to  rebuild  the business.    The jury  awarded EMPT  a  total of          $1,087,000, an  award that  apparently includes $437,000  in lost          future profits.8                      In  its motion,  Sherwin-Williams contended  that there          was  no evidence to support  the award of  lost profits and that,          therefore, the jury award  is speculative.  The trial  judge, who                                        ____________________          8   The instruction on lost profits covered both past profits and          future lost profits as follows:               Loss  of  profits  may be  recovered  as  consequential               damages  if  the  plaintiff  proves that  it  was  more               probable than  not that the business  profits sought to               be  recovered   were  reasonably  foreseeable   by  the               defendant when  the  contract was  entered,  reasonably               ascertainable,  and were  reasonably certain  to result               based  upon  the  relevant  data presented  to  you  as               evidence in this case.                    Future lost  profits do not have to be proven with               absolute  certainty  but  the  plaintiff  must  produce               sufficient  evidence to  demonstrate some  profits were               otherwise  reasonably certain  to  result.   As  stated               above,  you  may  not  award damages  that  are  merely               speculative.                                         -21-          had  the benefit  of  hearing  the  testimony and  observing  the          witnesses, denied  this motion, finding that  "the jury's verdict          is well supported  up to the point that it  awarded $650,000"  in          repair costs and  past lost  profits.  The  district court  found          that an  award of  future lost  profits was  also supported  by a          rational appraisal of the evidence.                    The  jury could  also award  a  higher figure                    because there was sufficient evidence for the                    jury to determine future lost  profits. . . .                    The evidence produced concerning  future lost                    profits   was  not   precise,   but  it   was                    sufficient  to enable the jury to project and                    calculate  beyond the  $650,000 amount.   For                    example,   Plaintiff's  expert,   Mr.  Hughes                    testified that the business had gotten to the                    stage where  the fixed costs were  covered so                    that every additional sale went to the bottom                    line; therefore, the profits  from additional                    sales go directly to net profit.  In addition                    to this, Mr.  Rogers testified that it  would                    take three  years  to rebuild  the  business,                    . . . and Messrs.  Rogers, Hughes,  Crabtree,                    and Liddy all testified that the business was                    generally not affected by the fluctuations in                    the economy and  that the business  continued                    to grow on a yearly basis.  The evidence was,                    therefore, sufficient to support an  award of                    future   lost  profits   in  the   amount  of                    $437,000.          Memorandum,  dated June 1, 1993,  at 10-11.   Having reviewed the          __________          record, we cannot say that the district court erred in concluding          that the jury's damage award was supported by the evidence.                                         -22-          VI.  The Judge's Conduct During Trial.               _________________________________                    In its brief, Sherwin-Williams points to two statements          made by  the  judge during  the  course of  the trial  which,  it          contends,  irreversibly  prejudiced the  process  and constituted          judicial misconduct.  In order to sustain this charge, this court          must find  that "a party  was so  seriously prejudiced  as to  be          deprived  of a  fair  trial  .  . . .  in  light  of  the  entire          transcript."   Aggarwal v. Ponce School of Medicine, 837 F.2d 17,                         ____________________________________          22 (1st Cir.  1988) (citing Crowe v. Di Manno,  225 F.2d 652, 659                                      _________________          (1st  Cir. 1955);  Glasser  v. United  States,  315 U.S.  60,  83                             __________________________          (1942)).                    Here,  Defendant contends  that  two statements  by the          judge to the effect that the "only issue" or "sole  issue" in the          case was whether or not the Sherwin-Williams paint had failed had          prejudiced Sherwin-Williams  to the extent  of depriving it  of a          fair  trial.    Taken  out  of  context,  the  statements  appear          improper.   However,  viewed in  context, the  statements related          only to  the relevancy  of comparisons of  product specifications          which were  both confusing  and  cumulative.   Moreover, in  both          instances, the  judge  permitted  the  Defendant's  attorneys  to          proceed with  their questions  relating to these  specifications.          In light of the  jury instructions at the beginning of  the trial          explaining   the  proper  role   of  judge  and   jury,  and  the          instructions at the end  of the trial outlining the  many factual          issues to  be  decided by  the  jury,  we do  not  believe  these          isolated  statements had the  effect of removing  issues from the                                         -23-          jury and depriving Sherwin-Williams of a fair trial.                     VII. Sherwin-Williams' Objections to the Award of                Prejudgment Interest.                                      ____________________________________________                    Sherwin-Williams  is correct  in its  challenge to  the          award of prejudgment interest  from the date of the  jury verdict          to that of the final judgment.  The New Hampshire legislature has          provided for prejudgment interest in cases "in which a verdict is          rendered or a finding is made for pecuniary  damages to any party          . . . from the date of the writ or the filing of  the petition to                                                                         __          the  date of  such verdict  or finding."   N.H.  Rev. Stat.  Ann.          ______________________________________            524:1-b (1993).   The plain language  of the statute  indicates          that the award of  prejudgment interest should be granted  to the          date of the verdict or finding.  Although Plaintiffs contend that          the  word  "finding"  should  be  interpreted  to  mean  a "final          judgment," there  can be no doubt, in light of the history of the          statute,  that this  was  not the  legislature's intention.   The          history  of the statute reveals  that in 1969,  the provision was          rephrased and the words "verdict or finding" were substituted for          "entry of  final judgment."   Accordingly, we conclude  that EMPT          was entitled to prejudgment interest only up to January 12, 1993,          the date  of  the verdict  in  this case,  and  we remand  for  a          recalculation of prejudgment interest and entry of final judgment          in accordance therewith.                    Defendant's   second  argument,   that  the   award  of          prejudgment  interest on  future lost  profits was  improper, has          been  waived.    Sherwin-Williams   never  raised  the  issue  of                                         -24-          prejudgment interest on future lost profits -- objecting only  to          the  award  of such  interest on  the  "punitive" portion  of the          judgment.9  Moreover,  Sherwin-Williams' request  for relief  was          for the district  court to "calculate  the award of  pre-judgment          interest   based  on  the   amount  of  the   jury's  verdict  of          $1,087,000."  Defendants' Objection to Plaintiff's Amended Motion          for  Pre-Judgment  Interest.   Accordingly,  Sherwin-Williams has          waived  any objection  to the  award  of prejudgment  interest on          future lost profits.          VIII.   EMPT's Objection to the Award of Prejudgment Interest.                  ______________________________________________________                    EMPT cross-appeals claiming that the trial judge  erred          in  denying  its request  for  prejudgment interest  on  the full          amount of the  judgment after  the judge doubled  the jury  award          pursuant  to section  10 of  the CPA.   The district  court judge          denied the request for prejudgment interest  based on the purpose          of section 524:1-b, which is to compensate the plaintiff for loss          of use of the money it should have had.  See Lakin v. Daniel Marr                                                   ___ ____________________          & Son,  Co., 732  F.2d  233, 238  (1st Cir.  1984).   Noting,  in          ___________          particular, that the statute provides for prejudgment interest on          "pecuniary  damages,"  we agree  that the  judge  did not  err in          refusing to award prejudgment interest on the doubled award.                                        ____________________          9    The  jury was  instructed  that  damages  were available  to          compensate  plaintiff for (a) the  cost of repairs,  and (b) lost          profits.  We are satisfied that, based on these instructions, the          jury verdict included only pecuniary damages.                                         -25-                                      CONCLUSION                                      __________                    The  decision below  is remanded  for recalculation  of                                            ________          prejudgment interest from the date  of filing to the date of  the          jury  verdict.  In all other regards, the district courts rulings          and judgment are affirmed.                           ________                                         -26-
