Rodriguez v. Senor Frog's de la Isla, Inc. ( 2011 )

  •           United States Court of Appeals
                         For the First Circuit
    No. 09-2548
                            PALOMA RODRÍGUEZ,
                          Plaintiff, Appellee,
                     SEÑOR FROG'S DE LA ISLA, INC.,
                          Defendant, Appellant.
                     FOR THE DISTRICT OF PUERTO RICO
            [Hon. Aida M. Delgado-Colón, U.S. District Judge]
                     Torruella, Lipez, and Thompson,
                             Circuit Judges.
         Harry Anduze Montaño, with whom José Morales Boscio and Harry
    Anduze Montaño Law Office were on brief, for appellant.
         John Fitzpatrick Vannucci, with whom the Law Office of John
    Fitzpatrick Vannucci was on brief, for appellee.
                             April 12, 2011
               THOMPSON, Circuit Judge.    This is a diversity-based
    personal-injury case.    A jury returned a $450,000 verdict for
    Paloma Rodríguez against Señor Frog's de la Isla, Inc. ("Señor
    Frog," for short) in Puerto Rico's federal district court.     Señor
    Frog now appeals, challenging nearly every aspect of the district
    judge's performance.    Unable to find any reversible error in the
    judge's actions, we affirm.
                             How It All Began1
               San Juan, Puerto Rico, early in the pre-dawn morning of
    December 5, 2004.   Cruising in her Mazda 323 on the Muñoz Rivera
    Expressway, 21-year-old Rodríguez hit a pothole – a collision that
    cost her two tires and killed the engine.    But the worst was yet to
               Turning her hazards on, Rodríguez somehow got her car to
    the side of the road, completely out of the way of oncoming
    traffic.   A police officer patrolling that stretch of highway
    spotted her and pulled over. He left the cruiser's flashing lights
    on.   A tow-truck driver also showed up, parked his truck in front
    of Rodríguez's car, activated the truck's flashing lights, pointed
    a spotlight on the work area, and put out cones to caution drivers
    passing by.   As the truck driver lowered the truck's platform,
           We narrate the facts in the light most favorable to the
    jury's verdict. See, e.g., Bielunas v. F/V Misty Dawn, Inc., 
    621 F.3d 72
    , 74 (1st Cir. 2010).
    Rodríguez got back into the Mazda either to grab some personal
    items or to do something to help out with the towing process.
               That is when Carlos Estrada closed in, speeding in a
    Mitsubishi Mirage registered to Señor Frog.     His headlights were
    off.   He had a blood-alcohol level nearly double the legal limit in
    Puerto Rico.   And he smashed that Mitsubishi right into the rear of
    Rodríguez's Mazda.    Rodríguez was hurt, and apparently hurt badly.
    "She was thrown inside the vehicle," the officer later said.
    Covered in blood, she had no vital signs – "she appeared to be
    dead."   But she survived and sued Señor Frog in district court
    under diversity jurisdiction, see 28 U.S.C. § 1332, alleging
    negligence and negligent entrustment.     She sued other defendants
    too (including Estrada), but they were later dismissed for reasons
    that are not important here, so we skip them.
                         The Twists And Turns Of Trial
               We fast-forward to the trial, where hard-charging counsel
    pulled out all the stops.    For starters, Rodríguez's lawyer moved
    in limine to prevent Señor Frog from showing or arguing that
    Estrada had owned the Mitsubishi or that Rodríguez had drunk a beer
    or two hours before the crash.    The judge granted the motion.
               Also, Rodríguez's counsel told the jurors during his
    opening statement that the evidence would compel them to return a
    $450,000 verdict in his client's favor.    Señor Frog's lawyer asked
    for a mistrial but instead got a cautionary instruction telling
    jurors that they (not the lawyers) would decide the damage amount
    due Rodríguez (if any).
               The attorneys later sparred over whether the parties were
    of   diverse   citizenship,   and    the    judge   ruled    that    they   were,
    following an evidentiary hearing convened after Rodríguez had
    rested her case.      They also battled over the jury instructions.
    And the judge seemingly sided with Rodríguez when she apparently
    refused to instruct the jurors on contributory or comparative
    negligence.      We hedge with "seemingly" and "apparently" because
    Señor Frog failed to give us a transcript of the judge's final
    charge – a misstep that affects our analysis in several respects,
    as we discuss later in more detail.
               The fighting spilled over into closing arguments too.
    Rodríguez's counsel said that his client sought damages for lost
    wages, which he conceded were not much, given that she was a
    college   student/waitress    when     injured.        But   she    also    sought
    compensation for pain and suffering, which he put at "six figures."
    Señor   Frog's    lawyer   objected,       and   the   judge   sustained      the
    objection.     But she declined to tell the jury right then and there
    to disregard the value comment.        "I will instruct the jury at the
    end," she said, though we do not know if she did because, again,
    the record on appeal contains no transcript of the final charge.
    Rodríguez's attorney then mentioned a process that the jury could
    use to fix damages:    her pain was worth "$9.00 a day," he said, and
    she should live "55 more years," so she should get over $178,000.
    The judge sustained an objection to this statement, adding that the
    "jury   will    be    able       to   evaluate   what   compensation,       if   any,"
    Rodríguez is due.           Sparks flew too when Rodríguez's lawyer said
    that    his    client      had    found   herself    under    "attack"      at   trial
    (objection sustained) and that Estrada had been deported to Mexico
    as part of a plea agreement in a criminal case arising from the
    crash (objection overruled).
                  Finding Señor Frog liable, the jury awarded Rodríguez
    $450,000.      The verdict does not distinguish between the types of
    damages.      But the parties (who agree on little else) concur that
    the bulk of this represented pain and suffering.
                  In any event, Señor Frog timely moved for a new trial or
    remittitur.          The     new-trial     portion      of   its   motion    blasted
    Rodríguez's lawyer for his comments during opening or closing
    statements that suggested a specific damage number, accused the
    defense of attacking his client, and noted that authorities had
    shipped Estrada back to Mexico pursuant to a plea agreement.                      The
    remittitur section called the jury's award grossly excessive.
    Ultimately, the judge denied the motion in an unexplained order.
                  Having set the stage, we turn to the legal issues on
    appeal, noting further facts as needed.
                       The Diverse-Citizenship Issue
              The   diversity-jurisdiction   statute   empowers   federal
    courts to hear and decide suits between citizens of different
    states, provided the amount in controversy is more than $75,000.
    See 28 U.S.C. § 1332(a).   Puerto Rico is a state for diversity-
    jurisdiction purposes.   See id. § 1332(e).    And Señor Frog is a
    citizen of Puerto Rico, see id. § 1332(c)(1), so Rodríguez's suit
    is untenable if she was a Puerto Rico citizen when she filed her
    December 1, 2005 complaint, see, e.g., Hall v. Curran, 
    599 F.3d 70
    72 (1st Cir. 2010) (per curiam).   Señor Frog argues that she was,
    though it did not press this argument until after Rodríguez had
    rested her case.   Cf. generally Valentin v. Hospital Bella Vista,
    254 F.3d 358
    , 362 (1st Cir. 2001) (calling a pre-answer motion to
    dismiss under Fed. R. Civ. P. 12(b)(1) the "proper vehicle for
    challenging a court's subject-matter jurisdiction").    But after an
    evidentiary hearing, the judge deemed Rodríguez a citizen of
    California when she sued, and this conclusion survives clear-error
    review. See, e.g., Padilla-Mangual v. Pavía Hosp., 
    516 F.3d 29
    , 32
    (1st Cir. 2008) (noting that a district judge's determination in
    this area is "a mixed question of law and fact," which we review
    under the "clearly erroneous" rubric) (internal quotation marks
    omitted); Cantellops v. Alvaro-Chapel, 
    234 F.3d 741
    , 742 (1st Cir.
    2000) (similar).
              Citizenship   for   diversity   purposes   is   domicile,   and
    domicile is the place where one is present and intends to stay.
    See, e.g., Padilla-Mangual, 516 F.3d at 31 (explaining that "[a]
    person's domicile is the place where he has his true, fixed home
    and principal establishment, and to which, whenever he is absent,
    he has the intention of returning") (quoting Rodríguez-Díaz v.
    853 F.2d 1027
    , 1029 (1st Cir. 1988) (internal
    quotation marks omitted)); García Pérez v. Santaella, 
    364 F.3d 348
    350 (1st Cir. 2004) (similar); see also Hawes v. Club Ecuestre El
    598 F.2d 698
    , 701 (1st Cir. 1979) (adding that we
    require "no minimum period of residency").     As the party invoking
    diversity jurisdiction, Rodríguez had to prove domicile by a
    preponderance of the evidence, see, e.g., Padilla-Mangual, 516 F.3d
    at 31; García Pérez, 364 F.3d at 350 – and she did just that,
    presenting enough evidence to show that she was a domiciliary (and
    thus a citizen) of California.
              Rodríguez was the only witness at the hearing on the
    diversity issue – Señor Frog called no one.      Rodríguez testified
    that she had moved from Puerto Rico to California in September
    2005, roughly three months before she filed this suit.          She was
    pregnant, and she and her boyfriend Adrian Peralta wanted to start
    their lives together in the Golden State.        Since they had very
    little money, the couple lived in a San Francisco Bay area home
    owned by Peralta's grandmother.     And by the time she sued Señor
    Frog, she had fully relocated from Puerto Rico to California:   she
    was physically present in California (with her clothes, books,
    furniture, household items, etc.), had opened up a California bank
    account (she had no money in any Puerto Rico banks), had gotten a
    California driver's license and job, and had hired a California
    lawyer to fight on her behalf.   And though she had not registered
    to vote in California (actually, she was not registered to vote
    anywhere) and did not attend church there, she had settled on
    living in the Golden State permanently.   Cf. Bank One, Texas, N.A.
    v. Montle, 
    964 F.2d 48
    , 50 (1st Cir. 1992) (holding that factors
    that can help an inquiring court determine a party's intent include
    where the party exercises civil and political rights, pays taxes,
    has real and personal property, has a driver's or other license,
    has bank accounts, has a job or owns a business, attends church,
    and has club memberships – for simplicity we call these the "Bank
    One factors").
               Post-complaint events cast no doubt on the earnestness of
    Rodríguez's intent either. See generally García Pérez, 364 F.3d at
    351 (holding that, even though they "are not part of the primary
    calculus," post-suit happenings "may bear on the sincerity of a
    professed intention to remain"). Rodríguez told the judge that she
    gave birth to a baby boy in California, turned to a California
    pediatrician to treat him, and put him in a California daycare for
    a spell.   She also enrolled in three California community college
    courses and got a cell phone with a California area code (she may
    have acquired the cell phone pre-complaint, but we cannot tell for
    certain).     True,     starting    in   2007,    Rodríguez     spent   several
    semesters at the InterAmerican University in Puerto Rico (she could
    get her bachelor's degree faster if she studied there, she said),
    and she was still taking classes there at the time of trial.                But
    she made clear that she returned to California whenever school was
    not in session (during winter, spring, and summer breaks, for
    example), and she provided copies of plane tickets to prove that
    point. She also reaffirmed that she intended to live in California
    for the rest of her life (she hoped to land a teaching job there
    once she got her degree).
                Having    the   exclusive    ability       to   assess   Rodríguez's
    demeanor and tone, the district judge was best positioned to
    separate true from false testimony.            See, e.g., Padilla-Mangual,
    516 F.3d at 33-34.      The judge found Rodríguez credible, and after
    carefully   canvassing      the   testimony,     she    meticulously    detailed
    findings of fact, which she supported with specific references to
    the evidence.        Because we cannot say that these findings were
    clearly erroneous, her ruling that there was diverse citizenship
    must stand.
                Undaunted, Señor Frog insists that the district judge
    botched her ruling in several respects.                For openers, Señor Frog
    protests that Rodríguez did not have enough Bank One factors on her
    side, given that she had not registered to vote in California and
    had no religious affiliation there.    Also, Rodríguez produced no
    documentary evidence – no bank statements, driving records, college
    transcripts, etc. – to support key claims, and, given the best-
    evidence rule, see Fed. R. Evid. 1002, the judge had no business
    accepting her "self-serving" comments about her intent to stay in
    California indefinitely.   Searching for a "gotcha!" moment, Señor
    Frog notes too that Rodríguez said at trial that she "lived in
    Mayaguez," Puerto Rico, "all my life" – testimony it says should
    have caused the judge to dismiss the case for lack of diversity
    jurisdiction straightaway, without bothering with an evidentiary
                We cannot buy into these arguments.   For one thing, a
    party need not check off every Bank One factor to satisfy her
    burden, see, e.g., Padilla-Mangual, 516 F.3d at 33, and, in any
    event, Rodríguez checked off more than enough of them – the
    California bank account, driver's license, job, and personal-
    property location sync up nicely with key Bank One factors.
                For another thing, the district judge did not blindly
    accept Rodríguez's statement that she intended to make California
    her home.   Rather, the judge sifted the testimony and grounded her
    ruling in facts that confirmed Rodríguez's intent claim. And Señor
    Frog's best-evidence theory changes nothing.   With exceptions not
    relevant here, the best-evidence rule requires a party trying to
    prove the "content" of a written document to introduce the document
    itself.    See Fed. R. Evid. 1002.      Think of a will contest where the
    will is not in evidence and            a witness tries to discuss the
    document's words from memory – that is the sort of situation that
    the rule was designed to address.           See generally United States v.
    625 F.3d 1198
    , 1201-02 (9th Cir. 2010) (quoting leading
    treatises on the subject).         But that is not our case.         Rodríguez
    never tried to give the exact terms of her California bank account,
    driver's license, or college transcripts.              She simply tried to
    prove, through her own direct testimony, certain facts that she had
    direct knowledge of – that she had opened a California bank
    account,    acquired     a    California    license,   and   taken     several
    California community-college courses pre-complaint. Consequently,
    this case falls outside the compass of the best-evidence rule. See
    R & R Assocs., Inc. v. Visual Scene, Inc., 
    726 F.2d 36
    , 38 (1st
    Cir. 1984) (commenting that "[n]o evidentiary rule . . . prohibits
    a witness from testifying to a fact simply because the fact can be
    supported by written documentation"); see also Simas v. First
    Citizens' Fed. Credit Union, 
    170 F.3d 37
    , 51 (1st Cir. 1999);
    United States v. Grossman, 
    614 F.2d 295
    , 298 n.1 (1st Cir. 1980).
                Last but not least, Rodríguez's trial testimony in no way
    short-circuited    her       diverse-citizenship   claim.     Consider    the
    context.    Thrilled beyond words that his daughter had survived the
    collision, Rodríguez's father hosted a Christmas Day party at his
    Mayaguez home in 2004 – roughly three weeks after Estrada had rear-
    ended   Rodríguez   and     one    year   before      she    filed    this    action.
    Rodríguez was deeply depressed, he said, and he thought a small
    soirée with family and friends might lift her spirits.                   At trial,
    Rodríguez's counsel asked her whether any party-goers had come from
    San Juan (we are not sure why this mattered).                 "No," she replied,
    "I lived in Mayaguez all my life, so most of my friends are from
    Mayaguez." Señor Frog makes much of this language, suggesting that
    it proved her California-domicile claim was a lie – so, the
    argument goes, the judge should have kicked her case to the curb
    without   further    ado.         We   think   not.         Again,   diversity    of
    citizenship is determined as of the time of suit.                   See, e.g., Bank
    One, 964 F.2d at 49.       And, fairly read, Rodríguez's testimony went
    to her pre-suit living situation, which means that her statement
    could not and did not sabotage diversity jurisdiction.
               That ends this phase of the case.                 Standing by what we
    said moments ago – that we cannot call the judge's diverse-
    citizenship conclusion clearly wrong – we move, finally, to the
    other issues before us.
                               The Evidentiary Issues
               Señor    Frog    criticizes     the     judge's     in    limine   ruling
    barring evidence that Estrada had owned the Mitsubishi and that
    Rodríguez had downed a couple of beers hours before the crash.                    We
    are unpersuaded.
               We need not delve too deeply into the car-ownership issue
    because, just before Rodríguez rested, Señor Frog stipulated that
    it owned the Mitsubishi Mirage at the time of the collision.              And
    the judge read the stipulation to the jury. Fact stipulations like
    this speed up the trial process by eliminating "'the need for
    proving   essentially    uncontested       facts,'"   which   helps   preserve
    precious judicial resources. Caban Hernandez v. Philip Morris USA,
    486 F.3d 1
    , 5 (1st Cir. 2007) (quoting Gomez v. Rivera
    344 F.3d 103
    , 120 (1st Cir. 2003)).                So, obviously,
    stipulations of this sort are valued by litigants and judges alike,
    and once freely-made they bind the parties, the trial court, and
    the appellate court too.       See, e.g., H. Hackfeld & Co. v. United
    197 U.S. 442
    , 446 (1905); United States ex rel. Miller v.
    Bill Harbert Int'l Constr., Inc., 
    608 F.3d 871
    , 889 (D.C. Cir.
    2010); Am. Title Ins. Co. v. Lacelaw Corp., 
    861 F.2d 224
    , 226 (9th
    Cir. 1988); Fisher v. First Stamford Bank and Trust Co., 
    751 F.2d 519
    , 523 (2d Cir. 1984).       Consistent with these principles, Señor
    Frog's stipulation undercuts the line of reasoning that it seeks to
    pursue here – in other words, having freely stipulated to a key
    fact,   Señor   Frog   must   now   live    with   the   consequences.     See
    generally Miller, 608 F.3d at 889 (explaining that "one party" to
    a stipulation "need offer no evidence to prove it and the other is
    not allowed to disprove it") (internal quotation marks omitted).
              Nor is Señor Frog's argument about the beer evidence
    particularly promising.   As we see things, its proffer reduced to
    this:   from Rodríguez's drinking a beer or two hours before the
    collision, a jury could infer that (a) she drove impaired, which
    (b) caused her to hit a pothole that blew out her tires (she would
    not have hit it otherwise, apparently) and required her to pull
    over, which (c) put her in line to be rear-ended by Estrada as she
    sat in a parked car along the shoulder of the road, which,
    ultimately, (d) put her partly at fault for her injuries.     Señor
    Frog's proffered evidence did not show that Rodríguez had been
    impaired, her lawyer argued, or that she had any role in Estrada's
    slamming into her while she was parked by the side of the road,
    totally out of the travel lane.   The evidence, he added, had one
    purpose – to convince the jury that she was a "bad person" for
    having a beer or two.
              The judge agreed with Rodríguez's lawyer.   Rodríguez was
    not driving when Estrada "smash[ed]" into her – she was simply
    sitting there in the front seat of her parked car as the tow-truck
    driver worked on getting her auto towed. Rodríguez's supposed beer
    drinking had no causal role, the judge ruled, so "[a]bsent any
    other evidence to establish the alleged facts," the proffered
    evidence was excludable as more prejudicial than probative.    See
    Fed. R. Evid. 403.
              Before taking up this issue we must iron out a wrinkle
    concerning our standard of review. If an in limine ruling excludes
    evidence unconditionally, the adversely-affected party need take no
    additional steps to preserve the issue for appeal, which means
    abuse-of-discretion review will control.      See, e.g., Crowe v.
    334 F.3d 124
    , 133 (1st Cir. 2003).    But if the ruling is
    merely tentative and "clear[ly] invit[es]" the party "to offer the
    evidence at trial" under the ruling's terms, that party must follow
    up on the invitation or else plain-error review will hold sway.
    See id. (adding that counsel must "clarify whether the in limine
    ruling was final or not" if there is any doubt).       The judge's
    ruling here – excluding the beer evidence unless circumstances at
    trial changed so that Señor Frog had to offer it again – was final
    enough, see id. at 134, which makes abuse of discretion the proper
              Rule 403 says that district judges may exclude relevant
    evidence if its probative value is substantially outweighed by
    other considerations, including unfair prejudice. Because they are
    on the front lines, district judges are better positioned than we
    to strike this balance, so they get a special degree of deference:
    only in extreme circumstances will we reverse their on-the-spot
    judgment calls. See, e.g., United States v. Tierney, 
    760 F.2d 382
    388 (1st Cir. 1985).   Having thoroughly considered this matter, we
    see no reason to second-guess the judge's ruling here.              We explain
                Sitting   as   a   diversity     court,    we    must   apply    the
    substantive law of Puerto Rico. See, e.g., Borges ex rel. S.M.B.W.
    v. Serrano-Isern, 
    605 F.3d 1
    , 6 (1st Cir. 2010) (citing, among
    other cases, Erie R.R. Co. v. Tompkins, 
    304 U.S. 64
    , 78 (1938)).
    Tort liability under Puerto Rico law requires both "'fault,'"
    Marshall v. Perez Arzuaga, 
    828 F.2d 845
    , 847 (1st Cir. 1987)
    (quoting Jimenez v. Pelegrina, 
    112 P.R.R. 881
    , 885 (1982)), and the
    requisite causal connection between the wrongdoing and the damages
    sustained, which is just another way of saying proximate cause, see
    Vázquez-Filippetti v. Banco Popular de Puerto Rico, 
    504 F.3d 43
    , 49
    (1st Cir. 2007).      The proximate-cause concept "limits a party's
    liability for hazards flowing from its negligence to those hazards
    that could be '"anticipated by a prudent person."'"             Marshall, 828
    F.2d at 847 (quoting Pacheco v. Puerto Rico Water Res. Auth., 
    112 P.R. Offic. Trans. 369
    , 372 (1982) (quoting Hernandez v. The
    Capital, 81 P.R. 998, 1005 (1960))). Foreseeability holds the key:
    a person is liable if the consequences of her wrongdoing were
    immediate   and   foreseeable,    not   if   they     were   more   remote   and
    unlikely.    See, e.g., Irvine v. Murad Skin Research Labs., Inc.,
    194 F.3d 313
    , 321-22 (1st Cir. 1999) (applying Puerto Rico law);
    Malave-Felix v. Volvo Car Corp., 
    946 F.2d 967
    , 971-72 (1st Cir.
    1991) (applying Puerto Rico law).
                Clearly, then, speculation or conjecture will not cut it
    when it comes to proximate cause.                See, e.g., Malave-Felix, 946
    F.2d at 972 (citing Widow of Delgado v. Boston Insur. Co., 
    99 P.R.R. 693
    , 703 (1971), and Saez v. Municipality, 
    84 P.R.R. 515
    523 (1962)).       And this is where Señor Frog falters:          the proffered
    evidence (which we painstakingly portrayed five paragraphs ago)
    depends on a chain of inferences far too strained and uncertain to
    have   much       probative     worth,     and    certainly    not    enough   to
    counterbalance       its      high   potential         for   unfair   prejudice.
    Consequently, we cannot conclude that the judge's decision was so
    off the mark as to be an abuse of discretion.                     See generally
    Lussier v. Runyon, 
    50 F.3d 1103
    , 1111 (1st Cir. 1995) (noting that,
    "[i]n general, the abuse of discretion framework is not appellant-
    friendly"); Dopp v. Pritzker, 
    38 F.3d 1239
    , 1253 (1st Cir. 1994)
    (stressing that most "appellants who consider themselves aggrieved
    by discretionary decisions of the district court . . . are destined
    to leave this court empty-handed").
                                  The Instruction Issue
                Señor Frog criticizes the judge for refusing to give a
    contributory- or comparative-negligence instruction.                    We review
    that issue de novo if properly preserved, see, e.g., Gray v.
    Genlyte Group, Inc., 
    289 F.3d 128
    , 133 (1st Cir. 2002), reversing
    only   if   the    rejected     instruction      was    substantively    correct,
    essential to an important issue in the case, and not substantially
    covered in the charge given, see, e.g., Seahorse Marine Supplies,
    Inc. v. P.R. Sun Oil Co., 
    295 F.3d 68
    , 76 (1st Cir. 2002).                At the
    pre-charge conference Señor Frog's lawyer objected with reasons
    when the judge said that she would not give either instruction,
    which means that counsel did enough to preserve the point for
    appellate review.   See, e.g., Fed. R. Civ. P. 51(c) & (d); Booker
    v. Mass. Dep't of Pub. Health, 
    612 F.3d 34
    , 40-42 (1st Cir. 2010).
    But regardless, Señor Frog's arguments have no traction.
              Puerto Rico is a comparative-negligence jurisdiction, see
    P.R. Laws Ann. tit. 31, § 5141 (2008) – hence, a contributory-
    negligence charge had no place here.          On top of that, we cannot
    tell whether the judge carried through her intention not to offer
    either instruction – and that is because Señor Frog failed to give
    us a transcript of the instructions as read to the jury.                    The
    transcript it has provided ends with this:         "AT WHICH TIME THE JURY
    INSTRUCTION [sic] WERE GIVEN."        Parties pursuing appellate review
    must supply us with enough raw material so that we can do our job.
    See, e.g., Campos-Orrego v. Rivera, 
    175 F.3d 89
    , 93 (1st Cir.
    1999); Moore v. Murphy, 
    47 F.3d 8
    , 10-12 (1st Cir. 1995).             Because
    Señor Frog did not meet that most basic requirement, it cannot
    prevail on this issue.       See, e.g., Campos-Orrego, 175 F.3d at 94;
    Moore, 47 F.3d at 10-12.
              We   hasten   to    add   that   even   if   it   had   given    us   a
    transcript that left no doubt about what the judge actually said in
    her final charge, Señor Frog would still lose. Señor Frog's thesis
    is simple: had the judge not wrongly granted Rodríguez's in limine
    motion on the beer issue, the record evidence would have obliged
    her to deliver the requested instruction. Having already concluded
    that the judge did not gaffe the in limine ruling, we easily reject
    this thesis – after all, a trial judge cannot give an instruction
    if there is no evidence in the record to support it, see, e.g.,
    Kelliher v. Gen. Transp. Serv. Inc., 
    29 F.3d 750
    , 754 (1st Cir.
    1994); Sexton v. Gulf Oil Corp., 
    809 F.2d 167
    , 169 (1st Cir 1987),
    and that is the case here.
                           The New-Trial Issue
              Señor Frog tells us that the judge also stumbled in
    denying its new-trial motion.2    District judges, of course, do not
    have carte blanche to ignore "the considered verdict of a properly
    instructed jury" simply because they might have reached a different
    result in a bench trial, Quinones-Pacheco v. Am. Airlines, Inc.,
    979 F.2d 1
    , 3 (1st Cir. 1992) (emphasis added) – the underscored
    phrase is critical for reasons that we get to shortly.      Rather,
    judges may grant a new trial "'only if the verdict is against the
    law, against the weight of the credible evidence, or tantamount to
    a miscarriage of justice.'"      Crowe v. Marchand, 
    506 F.3d 13
    , 19
           As we said, the judge denied the motion without a written
    explanation. But we can take on Señor Frog's issues anyway. See
    Bielunas, 621 F.3d at 77-78 (explaining when the court can take
    that tack).
    (1st Cir. 2007) (discussing Fed. R. Civ. P. 59(a) and quoting
    Casillas-Díaz v. Palau, 
    463 F.3d 77
    , 81 (1st Cir. 2006)).               And we
    review   the    denial    of    a   new-trial   motion   under   the   highly-
    deferential abuse-of-discretion standard.           See, e.g., id.
                Señor Frog attacks the judge's new-trial order on three
    primary fronts.          First, it argues that Rodríguez's counsel's
    mention of either a lump sum or formula for computing pain-and-
    suffering damages during opening and closing statements constituted
    reversible     error.      We   have   outlawed   both   practices     in   this
    circuit.3    See Bielunas, 621 F.3d at 78-79.            But that gets Señor
           On this issue – which is a matter of procedure and thus
    governed by federal law, see Davis v. Browning-Ferris Indus., Inc.,
    898 F.2d 836
    , 837 (1st Cir. 1990) – our outright ban is clearly out
    of step with the prevailing federal practice. The Second, Fourth,
    Fifth, Sixth, Seventh, Eighth, and Tenth Circuits leave it to
    district judges to decide whether and how lawyers may discuss pain-
    and-suffering damages with juries. See, e.g., Lightfoot v. Union
    Carbide Corp., 
    110 F.3d 898
    , 912 (2d Cir. 1997) (noting that
    district judges have the discretion either to "prohibit counsel
    from mentioning specific figures" or to allow it with certain
    safeguards, "including cautionary jury instructions"); Murphy v.
    Nat'l R.R. Passenger Corp., 
    547 F.2d 816
    , 818 (4th Cir. 1977)
    (stating that if the trial court, "in its discretion, concludes
    that the summation would not have an unduly prejudicial effect, it
    may permit counsel to suggest a monetary figure for the award or to
    illustrate damages for a unit of time multiplied by the expected
    duration of suffering"); Baron Tube Co. v. Transp. Ins. Co., 
    365 F.2d 858
    , 861, 864-65 (5th Cir. 1966) (en banc) (holding that
    counsel can argue "for damages for pain and suffering on a so-
    called 'unit of time' formula," provided there are safeguards in
    place, e.g., cautionary instructions, though "whether to allow such
    an argument and the protective features to be employed are matters
    vested, in the end, in the sound discretion of the trial court");
    Pa. R.R. Co. v. McKinley, 
    288 F.2d 262
    , 266 (6th Cir. 1961)
    (refusing to reverse where counsel "suggested a per diem figure for
    pain suffered at various periods of time," concluding that district
    judges possess substantial discretion to control "the style and
    Frog only so far.        To succeed, Señor Frog must also show that the
    error was harmful – i.e., that the error affected its "substantial
    rights," which in turn depends on whether the error "substantially
    swayed" the jury's verdict.        See Nieves-Villanueva v. Soto-Rivera,
    133 F.3d 92
    ,   102    (1st   Cir.    1997)    (internal   quotation   marks
    omitted); see also Seahorse Marine Supplies, Inc., 295 F.3d at 82.
    Certainly the fact that the jury gave Rodríguez exactly what her
    lawyer asked for suggests prejudice.             But that does not tell us all
    we need to know.     The key here lies in the jury instructions.            Did
    the judge tell the jury to disregard the lawyer's suggested numbers
    as she had promised?       If yes, were her words strong enough to draw
    all the sting from counsel's comments?              See Bielunas, 621 F.3d at
    79 (noting that such an instruction might be a sufficient salve in
    content of counsel's argument"); Waldron v. Hardwick, 
    406 F.2d 86
    89 (7th Cir. 1969) (concluding "that an inflexible rule treating
    per diem argument as reversible error is not advisable," adding
    that "the question should be left largely to the discretion of the
    trial judge as are other matters dealing with the style and content
    of argument"); Vanskike v. ACF Indus., Inc., 
    665 F.2d 188
    , 211 (8th
    Cir. 1981) (stressing that "limitation of counsel's argument to the
    jury on computation of damages is within the discretion of the
    district judge," adding that "[a]lthough we continue to condemn
    [jury] instructions requiring per diem mathematical calculations,
    we do not disapprove of per diem closing arguments [provided] such
    arguments are carefully controlled by the district court");
    McDonald v. United Airlines, Inc., 
    365 F.2d 593
    , 595 (10th Cir.
    1966) (indicating that whether to permit "a per diem damages
    argument . . . by counsel to the jury" is a "matter[] within the
    discretion of the trial judge"). As far as we can tell, only the
    Third Circuit stands with us. See, e.g., Waldorf v. Shuta, 
    896 F.2d 723
    , 744 (3d Cir. 1990) (holding that lawyers may not "request
    a specific dollar amount for pain and suffering in [their] closing
    certain situations); Río Mar Assoc., LP, SE v. UHS of P.R., Inc.,
    522 F.3d 159
    , 163 (1st Cir. 2008) (noting the presumption that
    jurors follow the district judge's clear instructions). Also, what
    did the judge tell the jury about pain-and-suffering damages under
    Puerto Rico law?     And viewing the record through that legal lens,
    was the pain-and-suffering evidence so overwhelming that counsel's
    remarks mattered not in the grand scheme of things?                We can answer
    none of these questions, however, because Señor Frog has not
    presented us with a transcript of the judge's final charge, which
    means Señor Frog loses this aspect of its new-trial bid.                       See,
    e.g., Campos-Orrego, 175 F.3d at 94; Moore, 47 F.3d at 10-12.
               Next, Señor Frog says that Rodríguez's counsel's closing-
    argument comment that his client had come under "attack" in court
    requires a new trial.    Not so.      Assuming purely for argument's sake
    that counsel's statement crossed a line (which we in no way
    intimate), Señor Frog has not shown any prejudice.                       See, e.g.,
    Gonzalez-Marin v. Equitable Life Assurance Soc'y, 
    845 F.2d 1140
    1147   (1st   Cir.    1988)     (noting       that    district      judges     have
    "considerable     discretion"   when    it    comes    to    policing      lawyers'
    closing-argument comments, stressing that "[w]e will reverse only
    upon a showing of prejudice").          Counsel's "attack" comment was a
    small and unrepeated part of a fairly lengthy summation.                    And the
    judge sustained Señor Frog's objection right away.                       The judge
    probably   also   instructed    the    jury    in    the    end   that    counsels'
    statements in closing argument are not evidence, an instruction
    that can often lessen any potential harm. See, e.g., Bielunas, 621
    F.3d at 79.      But we cannot double-check our hunch against the
    transcript because Señor Frog did not give us what we need to carry
    out our review function.         Given all of the circumstances, Señor
    Frog's complaint goes nowhere.           See, e.g., Campos-Orrego, 175 F.3d
    at 94; Moore, 47 F.3d at 10-11.
                Finally, Señor Frog cries foul over Rodríguez's counsel's
    remark in closing that Estrada had been deported back to Mexico
    under the terms of a plea agreement – a statement that supposedly
    turned the jury against Estrada.          Even if we assume for the sake of
    discussion that Rodríguez's lawyer exceeded the bounds of fair
    argument, we cannot see how this fleeting comment could have
    unfairly prejudiced Señor Frog, see Gonzalez-Marin, 845 F.2d at
    1147 – and, critically, Señor Frog spends no time explaining how it
    could   have,   see    Casillas-Díaz,      463   F.3d   at   83   (holding   that
    litigants   have      "an   unflagging    obligation    to   spell   out     their
    contentions 'squarely and distinctly, or else forever hold [their]
    peace,'" adding that a cursory mention of a possible argument will
    not suffice) (quoting United States v. Zannino, 
    895 F.2d 1
    , 17 (1st
    Cir. 1990)).    Ultimately, then, this new-trial argument, like the
    others, cannot succeed.
                           The Remittitur Issue
              Saying that most if not all of the $450,000 damage award
    represented compensation for pain and suffering, Señor Frog calls
    the figure conscience-shocking and asks us to reverse the judge's
    decision not to grant a remittitur.    That is a very tall order.
    "Only rarely and in extraordinary circumstances" will we nix a
    jury's non-economic damages award. Bielunas, 621 F.3d at 80. That
    is especially true where, as here, the judge, "who saw and heard
    the evidence play out," has endorsed the award.      Id.   "Stepping
    lightly," we only look to see if the judge abused her discretion in
    not trimming the award – mindful, of course, that the defendant
    must prove that the "award is 'grossly excessive, inordinate,
    shocking to the conscience of the court, or so high that it would
    be a denial of justice to permit it to stand.'"        Id. (quoting
    Casillas-Díaz, 463 F.3d at 83).
              Another obstacle looms large, however – one we have
    mentioned already, namely, the absence of a full record.         Our
    review of the remittitur question is "inescapably 'fact-bound,'"
    id. (quoting Casillas-Díaz, 463 F.3d at 83), and we must analyze
    the facts "under the legal criteria" established by the jury
    charge, id. at 80-81; see also Casillas-Díaz, 463 F.3d at 83; Smith
    v. Kmart Corp., 
    177 F.3d 19
    , 30 (1st Cir. 1999).   But because Señor
    Frog failed to furnish a transcript of the final charge, we cannot
    reach a reasoned decision on the remittitur issue.    Consequently,
    Señor Frog's remittitur challenge collapses.   See, e.g., Campos-
    Orrego, 175 F.3d at 94; Moore, 47 F.3d at 10-12.
                             What This All Means
              For the reasons recited above, we affirm the judgment
    below in all respects.   Costs to Rodríguez.
              So Ordered.