
USCA1 Opinion

	




          April 11, 1994    UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                     ____________          No. 93-1431                              NEWELL PUERTO RICO, LTD.,                                 Plaintiff-Appellee,                                          v.                               RUBBERMAID INCORPORATED,                                 Defendant-Appellant.                                     ____________          No. 93-1451              93-1516                              NEWELL PUERTO RICO, LTD.,                                 Plaintiff-Appellant,                                          v.                               RUBBERMAID INCORPORATED,                                 Defendant-Appellee.                                     ____________                                     ERRATA SHEET               The  opinion  of this  Court issued  on  March 31,  1994, is          amended as follows:               Page 7, line  8, it should  read "Mr. Villamil's  testimony"          instead of "Mr. Newell's testimony."               Page 11,  first line,  insert after  "1991)" and before  the          period "(quoting Freeman v. Package Machinery Co., 865 F.2d 1331,                           _______    _____________________          1340 (1st Cir. 1988))."                             UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1431                              NEWELL PUERTO RICO, LTD.,                                 Plaintiff-Appellee,                                          v.                               RUBBERMAID INCORPORATED,                                 Defendant-Appellant.                                 ____________________          Nos. 93-1451               93-1516                              NEWELL PUERTO RICO, LTD.,                                 Plaintiff-Appellant,                                          v.                               RUBBERMAID INCORPORATED,                                 Defendant-Appellee.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                _____________________               Miguel  E. Bonilla-Sierra,  with  whom  Carlos T.  Gonz lez-               _________________________               ____________________          Contreras,  Maricarmen  Almod var-D az  and Gonz lez,  Bonilla  &          _________   __________________________      _____________________          Qui ones-Tridas, were on brief for Rubbermaid Incorporated.          _______________               Adri n Mercado, with whom  Mercado & Soto, was on  brief for               ______________             ______________          Newell Puerto Rico, Ltd.                                 ____________________                                    March 31, 1994                                 ____________________                                         -2-                    TORRUELLA, Circuit Judge.   Plaintiff-appellee,  Newell                               _____________          Puerto  Rico,  Ltd. ("Newell"),  brought  an  action for  damages          against  Rubbermaid  Incorporated  ("Rubbermaid"), alleging  that          Rubbermaid,  without  just  cause,  terminated  and impaired  the          exclusive  distribution  agreement  between  the  two  parties in          violation of the Puerto Rico Dealers' Act, commonly known as "Law          75."  P.R. Laws  Ann. tit. X,    278 et seq.  (1989 Supp.).   The                                               __ ____          action was tried  before a jury.  The jury  found that Rubbermaid          terminated  the distribution  agreement  without  just cause  and          awarded Newell $1,400,000  in damages.   Rubbermaid then filed  a          motion for a new  trial.  The district court  denied Rubbermaid's          motion and  entered judgment against Rubbermaid.   Rubbermaid now          appeals  the  court's  denial of  its  motion  for  a new  trial.          Specifically,  Rubbermaid argues  that  (1)  the  district  court          abused its  discretion in admitting  certain testimony by  one of          Newell's  expert  witnesses, and  (2) the  jury's finding  on the          issue of just cause was against the clear weight of the evidence.                    Newell  also filed  a motion  requesting pre  and post-          judgment  interest  and  attorneys'  fees.    The  court  granted          Newell's motion for post-judgment  interest but denied its motion          for pre-judgment  interest and  attorneys' fees.   Newell appeals          the court's denial of pre-judgment interest and attorneys' fees.                                       BACKGROUND                                      BACKGROUND                    We review the evidence and draw inferences therefrom in                                         -3-          the  light most  favorable to  the verdict  winner in  this case,          Newell.   International  Adhesive Coating  Co. v.  Bolton Emerson                    ____________________________________     ______________          Int'l, Inc., 851 F.2d 540, 542 (1st Cir. 1988).          ___________                    A.  The Distribution Agreement                    A.  The Distribution Agreement                    On May  31, 1968, Rubbermaid entered  into an agreement          with  Anchor  Hocking  Interamericana,  Ltd.  for  the  exclusive          distribution of  the Rubbermaid Houseware Product  Line in Puerto          Rico  and   the  United  States  Virgin   Islands  ("Distribution          Agreement").   On March 28, 1972,  Anchor Hocking Interamericana,          Ltd.  assigned and  transferred  its rights  in the  Distribution          Agreement to  Anchor Hocking Puerto Rico,  Ltd. ("Anchor P.R.").1          From July  2,  1972 to  July  1, 1987,  Anchor  P.R., became  the          exclusive  distributor of Rubbermaid Houseware Products in Puerto          Rico  and the Virgin  Islands.  On  July 2,  1987, Newell Company          acquired  Anchor   Hocking  Corporation  and   its  subsidiaries,          including Anchor  P.R. and thereafter continued  the distribution          of Rubbermaid products in Puerto Rico and the Virgin Islands.                    On October 31, 1991, Rubbermaid notified Newell that it          was terminating  the Distribution Agreement,  effective in ninety          days, because  Anchor P.R.  had been  unable to  achieve assigned          sales objectives  and because Newell manufactured and distributed          similar  products which  created a  conflict of  interest  in its          distribution of Rubbermaid products.   Rubbermaid then terminated                                        ____________________          1  Anchor Hocking Puerto Rico, Ltd. was a wholly owned subsidiary          of Anchor Hocking Corporation  which was incorporated in Delaware          on  March  27, 1972,  for the  purpose  of acquiring  and selling          products in Puerto Rico.                                         -4-          the Distribution  Agreement.   The effective date  of termination          was February 3,  1992.   Anchor P.R. changed  its name to  Newell          Puerto  Rico, Ltd.  In February 1992, Newell brought suit against          Rubbermaid,  claiming  that   Rubbermaid's  termination  of   the          Distribution Agreement was unjustified.                    B.  Expert Witness Testimony                    B.  Expert Witness Testimony                    During the course of  discovery, in June 1992, Newell's          expert witness on damages, Mr. Jos  Villamil, submitted a written          report estimating Newell's damages  under Law 75.  In  July 1992,          Rubbermaid's expert,  Dr. El as R. Guti rrez,  submitted a report          challenging the  accuracy of the valuation  estimate presented by          Mr. Villamil, and  questioning whether the  estimate was prepared          according to acceptable professional standards.  Doctor Guti rrez          concluded  that major flaws were  present in the  methods used by          Mr. Villamil to  estimate damages, and these flaws had the effect          of producing an upward bias in the estimated value of damages for          the Rubbermaid line of products.2                    During  his  first  deposition  on  August   11,  1992,          Mr. Villamil  acknowledged that  he  inadvertently  included  the          value of the Rubbermaid Commercial Products Line, which is not at          issue in this case,  in his valuation of damages.3   Accordingly,          Mr. Villamil agreed to  adjust his estimate and submit an amended                                        ____________________          2    Doctor Guti rrez  estimated  damages,  including a  goodwill          component, to be between $247,686 and $269,431.          3   The  Distribution  Agreement which  is  the subject  of  this          lawsuit  concerns the  Rubbermaid Houseware  Products Line.   The          Rubbermaid Commercial  Products Line  is a separate  and distinct          line of products not relevant to this case.                                         -5-          report reflecting his new  evaluation.  On August 13,  1992, four          days prior to  trial, Mr. Villamil submitted  an amended report.4          According  to  Rubbermaid,  this  amended   report  included  new          calculations   using  a   methodology  and   valuation  procedure          different from that used  in Mr. Villamil's previous report.   On          August  13, the court ordered  that both experts  be deposed anew          and that transcripts of  the depositions be filed not  later than          August  27, 1992.   The  Court further  determined that  it would          appoint  an economist to render  a neutral expert  report.  Trial          was rescheduled for December 21, 1992.                    Mr.  Villamil was  deposed  again on  August 20,  1992.          During  this deposition,  Mr.  Villamil again  acknowledged  that          corrections  should be made to  his calculations.   On August 27,          1992, Rubbermaid filed a "Motion to Disqualify Plaintiff's Expert          Witness, Exclude  Plaintiff's Expert Witness Reports  and Request          for Sanctions."  The court denied this motion.                    On December 8, 1992,  the court appointed expert, Ernst          &  Young,  rendered  a report  which  included  a  review of  the          different reports  filed by the expert witnesses  for the parties          and an independent calculation of a value or a range of values of          damages  for the distribution agreement under Law 75.  On January          19,  1993, due to additional  information provided by counsel for          Newell, Ernst &  Young supplemented  the December 8  report.   On                                        ____________________          4  In  his amended  report, Mr. Villamil  estimated damages,  not          including goodwill, to be between $1,620,000  and $2,941,000.  He          estimated goodwill  at $1,013,749 and therefore,  the total value          of the distribution of the Rubbermaid product line in Puerto Rico          at between $2,633,749 and $3,954,749.                                         -6-          February 2, 1993, Ernst & Young submitted a final report.5                    During trial,  the court  heard testimony from  Ernst &          Young  regarding its report.   Mr. Villamil then  testified as an          expert for Newell.   At trial, Rubbermaid expressly conceded that          Mr.  Villamil was qualified as an expert.  Mr. Villamil testified          that he believed his role was to evaluate Ernst & Young's report.          Rubbermaid objected to Mr. Villamil's testimony on the grounds of          surprise, arguing  that his  expressed views were  different from          and  inconsistent with the opinions rendered in his reports.  The          court  overruled  the objection  and  permitted  Mr. Villamil  to          testify.                            ADMISSION OF EXPERT TESTIMONY                            ADMISSION OF EXPERT TESTIMONY                    Rubbermaid  challenges  the   admission  at  trial   of          Mr. Villamil's testimony on grounds of surprise.  Federal Rule of          Civil Procedure 60(b)(1); P rez-P rez  v. Popular Leasing Rental,                                    ___________     _______________________          Inc., 993 F.2d 281, 283 (1st Cir. 1993).          ____                    At the time  of Mr. Villamil's testimony,  Rubbermaid's          counsel objected on  the ground that Mr.  Villamil was presenting          new computations to the jury not contained in his first or second          report.  The  court overruled Rubbermaid's  objection, indicating          that Mr. Villamil was  entitled to criticize constructively Ernst          & Young's  report.   When ruling  on Rubbermaid's objection,  the          district  court stated  that Rubbermaid  was entitled  to "cross-          examine him in light of not  only this analysis he is making here                                        ____________________          5  The court appointed expert estimated the present value of lost          pre-tax profits at $585,951.                                         -7-          today but in  relation to the analysis he  has made previously of          the reports you have rendered and which you have a copy and which          were the object of the deposition."                    Rubbermaid knew that  Mr. Villamil was  going to be  an          expert witness at trial.  Moreover, Rubbermaid  was very familiar          with the subject matter upon which he would render his testimony.          Rubbermaid had ample opportunity  to cross-examine Mr.  Villamil.          Even  if   Rubbermaid  had  been  surprised   by  Mr.  Villamil's          testimony,  the appropriate remedy would  have been to  ask for a          continuance to  allow Rubbermaid to prepare  for the presentation          of rebuttal testimony.  Szeliga v. General Motors Corp., 728 F.2d                                  _______    ____________________          566  (1st Cir. 1984) (the remedy for surprise in the introduction          of evidence is  not to  seek reversal after  an unfavorable  jury          verdict, but  a  request for  continuance  at the  time  surprise          occurs).   Rubbermaid did not request a continuance, a sidebar or          even a limiting  jury instruction.   See  Smith v.  Massachusetts                                               ___  _____     _____________          Institute of  Technology, 877  F.2d 1106 (1st  Cir. 1989),  cert.          ________________________                                    _____          denied, 493 U.S. 965 (1989) (courts look with disfavor on parties          ______          who claim  surprise but who do  not ask for a recess  so they may          attempt to counter the opponent testimony).                    Rubbermaid  also claims  that Mr.  Villamil's testimony          was inadmissible pursuant to Fed. R. Evid.  702, 703, 705 and 403          and  Fed. R. Civ.  P. 26(e).   We find Rubbermaid's  claims to be          without merit.                    The admissibility  of opinion evidence by  experts is a          matter   within  the  discretion  of  the  trial  court  and  its                                         -8-          determination of admissibility should be sustained unless clearly          erroneous.   International Adhesive Coating Company,  851 F.2d at                       ______________________________________          544.   Federal Rules  of Evidence 7026 and  7037 "allow an expert          to  present  scientific or  technical  testimony in  the  form of          opinion based  on facts or  data perceived  or made known  to the          expert  before or at trial."   Da Silva v. American Brands, Inc.,                                         ________    _____________________          845 F.2d 356, 360 (1st Cir. 1988).  Once admitted,  Rules 703 and          7058 then "place the full burden  of exploration of the facts and          assumptions  underlying  the  testimony   of  an  expert  witness                                        ____________________          6  Federal Rule of Evidence 702 provides:                      If   scientific,   technical,  or   other                      specialized  knowledge  will  assist  the                      trier of fact to understand  the evidence                      or  to  determine  a  fact  in  issue,  a                      witness   qualified   as  an   expert  by                      knowledge,  skill, experience,  training,                      or  education, may testify thereto in the                      form of an opinion or otherwise.          7  Federal Rule of Evidence 703 provides:                      The facts or data in  the particular case                      upon which  an expert bases an opinion or                      inference  may be  those perceived  by or                      made known to the expert at or before the                      hearing.  If of a type reasonably  relied                      upon by  experts in the  particular field                      in  forming  opinions or  inferences upon                      the subject, the  facts or data need  not                      be admissible in evidence.          8  Federal Rule of Evidence 705 provides:                      The  expert  may  testify  in   terms  of                      opinion  or  inference  and give  reasons                      therefor without prior disclosure  of the                      underlying  facts  or  data,  unless  the                      court requires otherwise.  The expert may                      in any event be  required to disclose the                      underlying  facts  or   data  on   cross-                      examination.                                         -9-          squarely   on  the   shoulders  of   opposing  counsel's   cross-          examination."   International Adhesive Coating Company,  851 F.2d                          ______________________________________          at  544-45 (quoting Smith  v. Ford Motor Co.,  626 F.2d 784 (10th                              _____     ______________          Cir. 1980)).                      [I]f  in  arriving  at  his  opinion  the                      expert  has reasonably relied on facts or                      data  before  trial,  the basis  for  the                      opinion  need  not  be  disclosed   as  a                      condition  to  admitting testimony.   The                      burden  is  on  opposing counsel  through                      cross-examination  to explore  and expose                      any  weaknesses  in the  underpinnings of                      the expert's  opinion. .  . .   Moreover,                      the  fact that an  expert's testimony may                      be tentative or even speculative does not                      mean that the  testimony must be excluded                      so  long  as  opposing  counsel   has  an                      opportunity   to   attack  the   expert's                      credibility.        When   the    factual                      underpinning  of  an  expert  opinion  is                      weak, it is a matter affecting the weight                      and  credibility of  the  testimony --  a                      question to be resolved by the jury.          International  Adhesive   Coating  Company,   851  F.2d   at  544          __________________________________________          (citations omitted).                    The  district  court  has  broad discretion  to  decide          whether evidence  should be  excluded under  Rule 403.9   "[O]nly          rarely -- and in extraordinarily compelling circumstances -- will          we, from the vista of a cold appellate record, reverse a district                                        ____________________          9  Federal Rule of Evidence 403 provides:                      Although   relevant,   evidence  may   be                      excluded  if  its   probative  value   is                      substantially outweighed by the danger of                      unfair   prejudice,   confusion  of   the                      issues,  or  misleading the  jury,  or by                      considerations of undue  delay, waste  of                      time,   or   needless   presentation   of                      cumulative evidence.                                         -10-          court's  . .  .  judgment  concerning  the relative  weighing  of          probative value and unfair effect."  Pinkham v. Burgess, 933 F.2d                                               _______    _______          1066, 1071 (1st Cir. 1991) (quoting Freeman v.  Package Machinery                                              _______     _________________          Co., 865 F. 2d 1331, 1340 (1st Cir. 1988)).  The district court's          ___          refusal to exclude Mr. Villamil's  testimony under Rule 403  does          not present  such  an  extraordinary  circumstance.    Rubbermaid          suggests  that  Mr.  Villamil's   testimony  had  the  effect  of          confusing and misleading  the jury and should have  been excluded          under Rule 403.   We disagree.   Mr. Villamil  was Newell's  only          expert as to damages.   Newell was entitled to  present witnesses          on  the  issue of  damages.   At  trial, Rubbermaid  conceded Mr.          Villamil's  qualifications as an expert in this area.  Juries are          often  asked to determine complex  issues of fact after listening          to expert testimony.  Rubbermaid  was able to cross-examine  both          Mr. Villamil and the Ernst  & Young expert as to  their testimony          and to present  testimony by its own expert witness  on the issue          of  damages.  In  light of these  factors, we do  not believe the          district  court abused  its  discretion in  determining that  Mr.          Villamil's testimony had substantial probative value that was not          outweighed by unfair  prejudice and should not  be excluded under          Rule 403.                    Rubbermaid's argument that Mr. Villamil's testimony was          inadmissible pursuant  to  Fed. R.  Civ.  P. 26(e)10  is  equally                                        ____________________          10  Federal Rule of Civil Procedure 26(e) states:                      Supplementation  of  Responses.   A party                      ______________________________                      who  has  responded  to  a   request  for                      discovery  with  a   response  that   was                                         -11-          without merit.  In essence, Rubbermaid argues that Mr. Villamil's          opinion testimony  proffered during trial was  different from the          opinions  he rendered  during  the pretrial  litigation and  that          Newell failed to  supplement and amend its discovery responses as          required by Rule 26(e) to reflect those differences.                    "[I]n  reviewing  a contention  that  answers were  not          properly  supplemented within  the  strictures of  Rule 26(e),  a          court should look to the conduct  of the trial, the importance of          the evidence to its  proponent, and the ability of  the [opposing                                        ____________________                      complete when  made is  under no duty  to                      supplement   the   response  to   include                      information  thereafter  acquired, except                      as follows:                      (1)   A party is under  a duty seasonably                      to supplement the  response with  respect                      to any question directly addressed to (A)                      the  identity  and  location  of  persons                      having knowledge of discoverable matters,                      and  (B)  the  identity  of  each  person                      expected   to  be  called  as  an  expert                      witness at  trial, the subject  matter on                      which the person is expected  to testify,                      and   the   substance  of   the  person's                      testimony.                      (2)   A party is under  a duty seasonably                      to amend  a prior  response if  the party                      obtains  information  upon  the basis  of                      which   (A)  the  party  knows  that  the                      response was incorrect  when made, or (B)                      the party knows that the  response though                      correct when  made is no longer  true and                      the circumstances are such that a failure                      to amend  the response is in  substance a                      knowing concealment.                      (3)  A duty  to supplement responses  may                      be  imposed  by   order  of  the   court,                      agreement of the parties,  or at any time                      prior  to trial through  new requests for                      supplementation of prior responses.                                         -12-          party] to formulate a response."  Thibeault v. Square D Co.,  960                                            _________    ____________          F.2d 239, 244  (1st Cir. 1992) (internal  citation and quotations          omitted).  It is not unusual for experts to make changes in their          opinions  and revise  their  analyses and  reports frequently  in          preparation  for, and  sometimes even  during, a  trial.   In the          present  case, the  parties  did not  stipulate  that they  would          accept  without question the findings of Ernst & Young, the court          appointed  expert.   Newell was  therefore  entitled to  have its          expert,  Mr. Villamil,  criticize the  Ernst &  Young report  and          testimony in  an attempt to discredit that  report and testimony.          Mr.  Villamil was  Newell's only  expert on  damages, hence,  Mr.          Villamil's testimony was a very important part of  Newell's case.          If counsel for Rubbermaid  felt ill-prepared to cross-examine Mr.          Villamil  when  faced  with  his testimony  at  trial,  counsel's          solution was to request  a continuance.  Rubbermaid's failure  to          do so will not now result in a new trial.                             JURY'S FINDING OF JUST CAUSE                             JURY'S FINDING OF JUST CAUSE                    A  federal judge may grant a new trial where the jury's          verdict is against  the clear weight of the evidence.   Kearns v.                                                                  ______          Keystone  Shipping Co., 863 F.2d 177, 181 (1st Cir. 1988) (citing          ______________________          11 C. Wright & A. Miller,  Federal Practice and Procedure    2806                                     ______________________________          (1973)).   A trial court should set  aside a jury verdict only to          prevent a miscarriage of justice.   Kearns, 863 F.2d at 181.   We                                              ______          review the district court's  refusal to grant Rubbermaid's motion          for a new trial for an abuse of discretion.   Id. at 179; Fed. R.                                                        ___          Civ. P.  59(a).  So  long as  a reasonable basis  exists for  the                                         -13-          jury's verdict,  we will not disturb the  district court's ruling          on appeal.  Grenada Steel Industries, Inc. v. Alabama Oxygen Co.,                      ______________________________    __________________          695 F.2d 883 (5th Cir. 1983).  Mere disagreement with the verdict          will not justify the granting of a new trial.   Keeler v. Hewitt,                                                          ______    ______          697 F.2d  8, 11 (1st Cir.  1982).  After carefully  reviewing the          record  below, we  find no  abuse of  discretion in  the district          court's  decision   not  to  disturb  the   jury's  finding  that          Rubbermaid  failed to  establish just  cause for  terminating its          contract with Newell.                    In  its complaint,  Newell  alleged  that  Rubbermaid's          termination of the Distribution Agreement was without just cause.          Newell  further  alleged  that  actions taken  by  Rubbermaid  in          violation  of  the Distribution  Agreement  caused  a decline  in          Newell's  annual  sales of  Rubbermaid  products.   According  to          Newell,  Rubbermaid took  actions which  were detrimental  to the          established  relationship and  which  violated  the  Distribution          Agreement by:                    1.  making direct sales to retailers;                    2.  imposing unreasonable sales quotas on Newell;                    3.   reclassifying some  of its housewares  products to          take          them out of the Distribution Agreement; and                    4.   delaying and refusing  to service orders placed by                        Newell.                    The Puerto  Rico Dealer's Contract Act,  P.R. Laws Ann.          tit.  10,     278-278d  (1976), known  as  "Law 75,"  prohibits a          supplier  from unilaterally terminating  a distribution agreement                                         -14-          with a dealer or  refusing to renew  it on its normal  expiration          except for "just cause."   10 L.P.R.A. 278a.  Law 75  was enacted          to prevent suppliers from terminating dealers in Puerto Rico once          these  dealers had invested in the business to create and build a          profitable  market for  the suppliers'  products.   L neas A reas                                                              _____________          Costarricenses, S.A. v. Caribbean General, Inc., 682 F. Supp. 117          ____________________    _______________________          (D. P.R. 1988) (citing  Warner Lambert v. Tribunal  Superior, 101                                  ______________    __________________          D.P.R. 378, 101 P.R.R. 527 (1973)).                    As  noted, Law  75 permits  a supplier  to terminate  a          distribution agreement for just cause.  Section 278(d) of the Act          defines "just cause" as follows:                      nonperformance  of  any of  the essential                      obligations of the  dealer's contract  on                      the part of the  dealer, or any action or                      omission on  his part that  adversely and                      substantially affects the interest of the                      principal  or  grantor  in promoting  the                      marketing   or    distribution   of   the                      merchandise or service.                    By   its  terms,  Law  75  sets   forth  a  variety  of          circumstances  under  which, once  a  dealer has  shown  that the          supplier terminated  its contract, the supplier  bears the burden          of showing just cause for the termination.  Section 278a-1 of the          Act,  which  bears  the  heading,  Just  cause  for  termination;                                             ______________________________          exceptions;  presumptions, sheds  light on  the mechanics  of the          _________________________          just cause exception.   Section 278a-1(a) of  the Act establishes          that certain  violations or  nonperformance  by a  dealer of  any          provision  included  in  the  dealer's  contract  "shall  not  be          considered as  being just cause  unless the principal  or grantor                                           ________________________________          shows  that  such nonperformance  may  affect, or  has  truly and          _____                                         -15-          effectively affected  the interests of such  principal or grantor          in an adverse  or substantial  manner in the  development of  the          market, distribution of the merchandise or rendering of services"          (emphasis  added).  Hence, under  this section, in  order to show          just cause, the  supplier bears  the burden of  showing that  the          dealer's violations or  nonperformance of the  contract adversely          affected the suppliers interests.                    It   is   uncontested   that  Rubbermaid   unilaterally          terminated the Distribution Agreement.  Rubbermaid sought to show          just cause under Law 75 by arguing that termination was justified          because Newell  failed to  achieve assigned sales  objectives and          experienced  a decline in sales of  Rubbermaid products, and that          Newell's sale of  other product lines, not related to Rubbermaid,          created a  conflict of  interest detrimental to  the Distribution          Agreement between Newell and  Rubbermaid and therefore, adversely          affected Rubbermaid's  interests.   Newell presented  evidence to          counter these  allegations from  which the jury  could reasonably          conclude that Rubbermaid did not have just cause to terminate the          Distribution Agreement.  Newell's evidence included testimony  to          the effect that  any decline  in Rubbermaid sales  by Newell  was          caused  by   Rubbermaid's  own   actions  in  violation   of  the          Distribution Agreement.  In particular, Newell presented evidence          indicating  that  Rubbermaid  was selling  products  directly  to          Pitusa (a retail store in Puerto  Rico) at the same price it sold          to Newell, undercutting the  ability of Newell to compete  on the          Puerto Rican  market for  sales of Rubbermaid  products.   Newell                                         -16-          also  presented  evidence   indicating  that  plastic   houseware          products manufactured  by Newell which, according  to Rubbermaid,          created a conflict of interest with Rubbermaid products, had been          manufactured  by  Anchor  P.R.   since  1968  and  competed  with          Rubbermaid  products  for  the   entire  span  of  the  contract.          Newell's  evidence indicated  that there  was no  new competition          introduced  by the Newell acquisition of Anchor P.R. or any other          conflict  in  interest  that  would justify  termination  of  the          Distribution Agreement.                    Newell also  presented evidence to the  effect that its          assigned  sales objectives did not adjust to the realities of the          Puerto Rican  market.  This  evidence included  testimony to  the          effect that the  sales objectives were unreasonable.  Newell also          presented evidence  to the jury in the form of an analysis of its          sales  activities from 1986 to  1990.  The  analysis purported to          show  that  Newell's sales  were  adversely  affected by  several          factors, including Hurricane Hugo and direct sales by Rubbermaid,          but that overall, the company was successfully selling Rubbermaid          products.                    Section  278a-1(c)  establishes  that  where  a  dealer          violates  a provision in the agreement fixing rules of conduct or          setting  distribution quotas or goals  because it does not adjust          to the  realities of  the Puerto Rican  market at  the time,  the          violation  will not  be deemed  just cause  and "[t]he  burden of          proof to show the reasonableness of the rule of conduct or of the          quota  or goal  fixed shall  rest on  the principal  or grantor."                                         -17-          Under this  section, once Newell presented  evidence showing that          the  assigned sales objectives did not adjust to the realities of          the Puerto Rican market,  it was Rubbermaid's burden to  show the          reasonableness  of  the sales  objectives.    In finding  against          Rubbermaid, the jury concluded that  Rubbermaid did not meet  its          burden.   Judging the credibility  of the witnesses  and weighing          the  evidence  are within  the  exclusive province  of  the jury.          United  States  v. Garc a,  995 F.2d  556,  561 (5th  Cir. 1993);          ______________     ______          Lessee  of Ewing  v. Burnet,  36  U.S. 41  (1837).   We will  not          ________________     ______          substitute our judgment for  that of the jury in  its evidentiary          findings.   After  reviewing  the record,  we  conclude that  the          jury's verdict is not against the clear weight of the evidence.                       ATTORNEYS' FEES & PRE-JUDGMENT INTEREST                       ATTORNEYS' FEES & PRE-JUDGMENT INTEREST                    Newell  appeals the  district  court's  denial  of  its          motion  for attorneys'  fees and  pre-judgment interest.   Puerto          Rico Rule 44.1(d) on attorneys' fees  and 44.3(b) on pre-judgment          interest  are rules  of decision  that should  be applied  by the          Federal Court sitting in diversity.  De Le n L pez v. Corporaci n                                               _____________    ___________          Insular  de Seguros,  931 F.2d  116, 126  (1st Cir.  1991);   Pan          ___________________                                           ___          American World Airways,  Inc. v.  Ramos, 357 F.2d  341, 342  (1st          _____________________________     _____          Cir.  1966) (Puerto  Rico  Rules of  Civil Procedure  44.1(d) and          44.3(b) are a  matter of  substantive law  to be  applied by  the          federal  court sitting in diversity).  The decision to award such          fees  is within the discretion of the  district court and we will          only  disturb its ruling  where there has  been an  abuse of that          discretion.  De Le n L pez, 931 F.2d at 126-27.                       _____________                                         -18-                    Under Rule 44.3(b) and 44.1(d) of the Puerto Rico Rules          of  Civil  Procedure,  imposition of  pre-judgment  interest  and          attorney's fees  on the  non-prevailing party is  mandatory where          the  party was obstinate and  stubbornly litigious.  Rule 44.3(b)          on pre-judgment interest provides:                      (b)   Except when  the  defendant is  the                      Commonwealth   of    Puerto   Rico,   its                      municipalities,                 agencies,                      instrumentalities  or officers  acting in                      their official capacity,  the court  will                      also impose  on the party  that has acted                      rashly  the payment  of  interest at  the                      rate fixed by the  Board by virtue of the                      previous subsection which is in effect at                      the  moment  the judgment  is pronounced,                      from the time the cause of  action arises                      in every case of  collection of money and                      from  the  time  the  claim  is  filed in                      actions  for  damages   until  the   date                      judgment is pronounced, to be computed on                      the amount of the judgment.  The interest                      rate shall be stated in the judgment.          P.R. Laws Ann. tit. 32, App. III, Rule 44.3(b) (1989 Supp.).                    Rule 44.1(d) on attorney's fees states:                      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) (1989 Supp.).                    A party is  obstinate under Rule 44.1(d) if  it engages          in actions which  (a) make necessary litigation  which could have          been avoided,  (b) prolongs the litigation  unnecessarily, or (c)          requires  the other  party to  incur expenses  in the  pursuit of          avoidable tasks.  Fern ndez  Mari o v. San Juan Cement  Co. Inc.,                            _________________    _________________________          118 D.P.R. 713, 718-19 (1987); De Le n L pez, 931 F.2d at 126.                                         _____________                                         -19-                    In ruling  on Rubbermaid's  motion for  attorneys' fees          and pre-judgment interest the district court stated:                      We are not  convinced that the defendant,                      Rubbermaid,   Inc.,   acted   rashly   or                      contumaciously in defending from this Law                      75  Dealer's  Act  suit.    A  reasonable                      reviewer of this record may conclude that                      the defendant's  case presented plausible                      positions    that     merited    contract                      termination.    The  fact  that  the jury                      elected  otherwise  is not  indicative of                      contumacious conduct  on the part  of the                      defendant.                     After reviewing the record, we agree with the district          court in its  conclusion that  Rubbermaid did not  act rashly  or          contumaciously in  defending  this suit.    Rubbermaid  presented          evidence  in  support  of  its defense,  indicating  that  Newell          experienced a decline  in sales of Rubbermaid products and failed          to  meet assigned  sales objectives.   Rubbermaid  also presented          evidence to the effect  that Newell's policies as to  the pricing          of Rubbermaid  products and  Newell's sale of  houseware plastics          that  were  not  manufactured  by Rubbermaid  adversely  affected          Rubbermaid's interests.     The district court did not  abuse its          discretion  in denying  Newell's motion  for attorneys'  fees and          pre-judgment interest.                    Affirmed.                    ________                                         -20-
