Full opinion text
IRVING R. KAUFMAN, Circuit Judge: We are presented in this case with cross-appeals from a final judgment entered April 14, 1970, premised upon a previous default judgment, in favor of plaintiff Trans World Airlines, Inc. (TWA) against defendants-appellants Hughes Tool Company and its chief financial officer, Raymond M. Holliday (Tooleo), which, the district court tells us, 312 F.Supp. 478, at 480, is some thirty times greater than the next highest monetary award ever entered. The extraordinary aspect of this complex litigation is in large measure attributable to the elusiveness of Howard R. Hughes, progenitor and sole owner of Tooleo, protagonist in its operations, in a sense the central character of this litigation as well, and yet not a party to this appeal because Hughes himself, although named as a defendant in TWA’s complaint, could not be located for service of process. I. Since the facts in this litigation have been set forth in detail in many prior reported decisions, see 214 F.Supp. 106 (S.D.N.Y.1963), 32 F.R.D. 604 (S.D.N.Y. 1963); 332 F.2d 602 (2d Cir. 1964); 38 F.R.D. 499 (S.D.N.Y.1965); 308 F.Supp. 679 (S.D.N.Y.1969); 312 F.Supp. 478 (S.D.N.Y.1970), in the interest of avoiding unconscionable length of this opinion, we will limit our own initial statement to a brief resume of the tortuous history of the case, sufficient to permit a meaningful statement of the issues raised. More than a decade ago, by a complaint dated June 30, 1961, TWA filed its complaint in this action charging Tooleo and Hughes with violations of the Clayton and Sherman Acts, 15 U.S.C. §§ 1, 2, 11, and 18, as well as with a claim, for which pendent jurisdiction was asserted, alleging malicious and willful injury to the business of TWA. Convoluted and protracted pre-trial maneuvers culminated in the failure of Tooleo to produce Hughes for a deposition scheduled by court order to be taken on February 11, 1963. As a result of Hughes’s confessed unwillingness to appear, as well as the nonproduction by Tooleo of certain papers and documents whose disclosure to plaintiff had also been required by court order, the Rule 2 judge assigned to the action (Rule 2, General Rules for the Southern and Eastern Districts of New York), Judge Metzner, on May 3,1963 filed two orders. One entered the default against Tooleo and granted TWA’s motion to increase the ad damnum clause of its complaint from $105,000,000 to $135,000,000, after trebling. In the second order Judge Metzner also found Tooleo in default with respect to five counterclaims that Tooleo had asserted .against TWA and several additional defendants. Judge Metzner dismissed these counterclaims and also granted TWA’s motion for summary judgment on a sixth counterclaim. We granted leave to take an interlocutory appeal from the former order, after Judge Metzner had certified that an appeal was appropriate under 28 U.S.C. § 1292(b). But we limited our review to considering whether the district court’s jurisdiction over the antitrust action was ousted because primary jurisdiction lay with the Civil Aeronautics Board, which had approved various steps by which Toolco gradually assumed virtually complete control of TWA, holding about 78% of its stock at the time the complaint was filed, and whether certain of the CAB orders associated with those grants of approval constituted a good defense to TWA’s action. The interlocutory appeal was consolidated with defendants’ parallel appeal as of right from Judge Metzner’s dismissal of the counterclaims. A panel of this court ultimately ruled that the district court did properly assert its jurisdiction and that the CAB orders did not constitute blanket approval of the claims in the complaint and hence were not a defense to TWA’s action. In the appeal on the counterclaims, the orders of the district court were affirmed with one exception, not relevant here (determining that the CAB had exclusive jurisdiction over one of the dismissed counterclaims). 332 F.2d 602, cert. granted, 379 U.S. 912, 85 S.Ct. 261, 265, 13 L.Ed.2d 184 (1964), cert. dismissed as improvidently granted, 380 U.S. 248, 249, 85 S.Ct. 934, 13 L.Ed.2d 817, 818 (1965). Judge Metzner’s ruling adjudging Toolco in default necessitated an extensive hearing to determine damages. Herbert Brownell, Esq., ****appointed Special Master for this purpose, conducted hearings between May 2, 1966, and April 9, 1968. On September 1, 1968, in a thorough report, the Master awarded TWA trebled damages of $137,611,435.95. Both sides filed objections. On December 23, 1969, Judge Metzner adopted Brownell’s report in all respects, 308 F. Supp. 679, and then in a subsequent opinion awarded attorneys fees of $7.5 million and assessed costs in the amount of $336,705.12. 312 F.Supp. 478. On April 14, 1970, the district court entered its final judgment, with 6% interest to run from that date, in the sum — impressive even by space age and inflationary standards — of $145,448,141.07. II. A. Toolco Appeal The first thrust of the Toolco appeal is directed at the default judgment itself and primarily concerns issues that were not the focus of the damage hearing before Special Master Brownell. The broad question pressed by Toolco is whether TWA is entitled to recover any amount whatever on the record before us, regardless of the adequacy of its proof of damages. Toolco contends (discussed in part III below) that the default judgment was improperly entered against it, in violation of its due process rights, and should be vacated; that (part IV) even if the default judgment is valid, the judgment does not justify assessing damages against Toolco for any antitrust violations, since in Toolco’s view the evidence in the record conclusively refutes the possibility that any such violations could have occurred; and that (part V) even if the default judgment establishes antitrust infractions, TWA has not proved that any damages it might have suffered as a result of acts of mismanagement alleged in the complaint arose from antitrust violations. On each of these questions, we affirm the judgment below in all respects. Toolco also contests Special Master Brownell’s calculations of the damages. It argues that (part VI), even if proximate causation was shown, the damages were in several respects wrongly computed. In each of these respects we also affirm the reasoning and conclusions of the Master and of Judge Metzner. Additionally, Toolco challenges under F.R.Civ.P. 54(c) Judge Metzner’s grant of TWA’s motion to increase the ad damnum at the same time he entered the default judgment (part VIII). It also argues that the award of attorney’s fees is excessive and unreasonable (part IX). We believe Judge Metzner properly permitted TWA to raise the ad dam-num and that the payment allowed for legal services was within the bounds of his discretion. B. TWA Appeal TWA takes issue with only one item of Brownell’s report, viz. certain interest charges credited in mitigation of damages (part X). We affirm the Master’s disposition of this issue. TWA also appeals from the denial by Judge Metzner of moratory interest as an element of the damages to be trebled under Section 4 of the Clayton Act, 15 U.S.C. § 15. It also questions Judge Metzner’s holding that interest on the judgment should run from the date of the district court’s judgment, rather than the date the Special Master filed his report, and contests the award of only 6% interest pursuant to New York judgments law, instead of the 7%% currently set by the state Banking Board as the maximum allowable commercial rate. We discuss these issues in part XI and affirm the district court on the first two points, but hold that proper interest under current New York decisional authority is 7y2:%. TWA’s last assertion (part XII) is that it may recover $1.6 million compensation for fees paid to experts as a component of its “cost of suit,” 15 U.S.C. § 15. With this assertion we disagree. III. Toolco argues forcefully that Judge Metzner’s entry of a default judgment having such drastic consequences resulted in a denial of due process and was otherwise an abuse of discretion under F.R.Civ.P. 37(b) (2) (iii) and 37 (d). We are reminded not only of the severe nature of this particular default, but of the fundamental importance of the right to an adversary hearing prior to judicial determination of rights and liabilities. We are in full accord with the general proposition, for which Toolco cites the three leading cases of Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897), Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909), and Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958), that the totality of circumstances surrounding the failure to make discovery must be considered in determining what sanctions to apply under Rule 37. As we understand Toolco’s argument, those portions of the “totality of circumstances” it considers to control the invalidity of the default here are these: that TWA did not itself comply with Toolco’s efforts to pursue pre-trial discovery sufficiently to lay an adequate foundation for the attempt to depose Howard Hughes; that, to similar legal effect, Judge Metzner on January 10, 1963, improperly denied Tooleo’s request for a Rule 16 hearing and permitted TWA to delay answering interrogatories served on it by Tooleo in the fall of 1962 until after the Hughes deposition scheduled for February 11, 1963; that its own compliance with TWA’s requests for discovery was substantial and in good faith; and that TWA did not and indeed could never have shown a need to depose Hughes. In sum it argues that in the face of all this, the district court grossly abused its discretion in not resorting to a less drastic alternative remedy before putting an end to litigation on the merits with a default judgment. Although we agree with TWA that these arguments are unpersuasive, for the sake of clarity we pause to reject TWA’s alternative theory that we may not consider the merits of the default judgment because we are required by either res judicata or collateral estoppel to follow the affirmance by the earlier panel of this court of the default judgment entered against Tooleo on its counterclaims. Res judicata is singularly inappropriate in this context. As we have noted, leave to Tooleo to appeal from the default judgment entered on TWA’s antitrust complaint was narrowly confined and the panel expressly reserved the very question at issue here, “[t]he propriety of the court’s entering a default judgment against the defendants with respect to the complaint * * Prior to the judgment now appealed from, there had simply been no “final judgment” entered with respect to the merits of TWA’s cause of action against Tooleo, and thus we lack the fundamental prerequisite for applying res judicata. See Moore, Federal Practice jf 0.405 [1]. Nor will collateral estoppel avail TWA. The relevant issue “actually litigated and determined in the prior” appeal, Lawlor v. National Screen Service Corp., 349 U.S. 322, 326, 75 S.Ct. 865, 867, 99 L.Ed. 1122 (1955), was only that Judge Metzner properly entered the default on Toolco’s counterclaims. This is a sharply distinguishable issue from the propriety of a different default judgment in favor of Toolco’s adversary (this does not follow, as Tooleo suggests, because the latter default is more drastic, but simply because the two questions are not the same). The issue of the propriety of the default here is not a right, question, or fact determined on the previous appeal. We believe we can fairly assume that TWA would not attempt to invoke collateral estoppel if the counterclaim had been asserted in a separate action. Combining two claims for trial as permitted for convenience under the Federal Rules does not dissolve the separate identities of the two claims or the two default judgments. Collateral estoppel and res judicata take aim at redundant litigation of identical issues or causes of action; they are not intended to foreclose consideration of the legal merits by analogy — however persuasive the analogies may be. This is not to say that we will entirely disregard the obvious force of the prior determination on so closely related a question. This is foremost a matter of stare decisis and, of course, we are bound by collateral estoppel not to reopen subsidiary issues actually determined in the earlier appeal. We are persuaded that the most important considerations that prompted the earlier af-firmance of the default on Tooleo’s counterclaims compel the same result here. The essential details of the pre-trial proceedings that climaxed in the default are succinctly set out in Chief Judge Lumbard’s earlier opinion, 332 F.2d 602, and we will endeavor to avoid unnecessary repetition. Because the factors bearing on the two default judgments are not identical, however, and in view of Toolco’s attack on the district court’s conduct of the pretrial proceedings, we cannot entirely avoid a brief sketch of the history of the litigation prior to the default. One relatively minor justification put forward by the earlier panel in affirming the default judgment on the counterclaims related to Toolco’s noncompliance with two discovery orders entered upon motions made by certain defendants who had been joined in the litigation by Tool-co’s counterclaim. Tooleo now asserts that these production orders concerned matters irrelevant or at least of marginal importance to TWA’s complaint. However this may be — and it is virtually impossible, because of the default and the nonproduction of the documents to evaluate this claim — we agree that the failure to comply with orders granted in favor of the other litigants would most likely not in itself have warranted the severe remedy of a default judgment in favor of TWA on the principal action. But it is also apparent that these production orders are of trivial importance to the propriety of the default judgment in question here, in light of Howard Hughes’s deliberate, knowing, wilful, and plainly announced refusal to comply with an order requiring his appearance for the taking of his deposition on February 11, 1963, and which had been served long in advance of the return day. The reason that entry of the default was inevitable after Hughes’s nonappearance can only be understood against the background of TWA’s intensive efforts, first undertaken on the very day that it filed its complaint, to compel Hughes’s personal testimony, as a witness and “managing agent” of defendant Hughes Tool Co. under F.R.Civ.P. 37(b) (2). TWA has consistently maintained, and continues to do so, that quite aside from the fact that he was Toolco’s alter ego, Hughes’s pretrial testimony was absolutely essential for it adequately to frame the issues and prepare for trial because of Hughes’s extraordinary secretive methods of doing business. It was the indispensable nature of Hughes’s personal testimony, according to TWA, that prompted its diligent pursuit of Hughes from the inception of the litigation. TWA’s campaign to depose Hughes, which opened with a motion for leave to do so on the date it filed its complaint, was temporarily frustrated when the motion was denied and Toolco was granted priority in the taking of depositions. But TWA renewed its effort with a further unsuccessful motion and proposals to depose Hughes prior to Toolco’s depositions. In early January, 1962, TWA adopted a new tactic and repeatedly sought with equal lack of success, to discover Hughes’s whereabouts from Toolco. After further futile notices to depose Hughes served in January and February, 1962, TWA achieved a breakthrough when on June 4 the then Special Master rejected Toolco’s objections to interrogatories directed to both Hughes and Toolco to locate Hughes so that he might be deposed. Toolco was ordered to answer the interrogatories unless Hughes should authorize counsel to accept service of a subpoena on his behalf for his appearance at the deposition. On appeal the district court ordered that the interrogatories be answered as modified by it in an immaterial respect. Counsel for Toolco on July 27 informed the Master that Hughes had authorized counsel to accept service of a subpoena for Hughes to appear as a witness. An extended period of wrangling followed. Among other highlights of this period, Toolco refused a proposed stipulation and order to serve Hughes through Toolco’s counsel, on the ground that agreeing to the stipulation might prejudice its right to object to the propriety of the deposition. Finally, on September 6, 1962, the same day that TWA charged that a purported authorization for counsel to accept service for Hughes was apparently a forgery, counsel for Toolco informed Judge Metzner that another lawyer, Chester Davis, had in fact been served that day in California, pursuant to Hughes’s personal authorization. On September 13, as part of its indignant response to the forgery allegation, Toolco submitted to the court the notice of deposition, a subpoena to Hughes, an affidavit of Davis stating his authority to accept service for Hughes, and a second affidavit from a Los Angeles notary stating that Hughes had indeed appeared in person before him and had acknowledged Davis’s authority. Subsequently, the district court adopted a decision of Special Master Rankin that Toolco would bear responsibility for Hughes’s response to the subpoena, and stated that Hughes would be considered bound by this declaration unless he objected. No objections were ever made and there is, of course, no question that Toolco was responsible for the actions of the owner of all its stock. At Tool-co’s instance, the deposition date was twice postponed until by order of January 10, 1963, the court affirmed a final date set by Master Rankin requiring Hughes’s appearance on February 11, a schedule “to be adhered to in the absence of extraordinary circumstances.” Also on January 10, 1963, Judge Metzner denied an application for a Rule 16 pretrial hearing that had been presented to it by Toolco on September 25, 1962, at the initial suggestion not of Toolco but of the Master. The motion was denied “without prejudice to renew on papers before the Court 30 days after the completion of the deposition of Howard R. Hughes.” Judge Metzner also affirmed the denial by the Special Master of Tool-co’s motion to depose two financial institutions concerned primarily with issues raised by Toolco’s counterclaim, the Irving Trust Co. and Dillon, Reed, & Co., on the ground that to grant the motion would interfere with the scheduled deposition of Howard Hughes. Thus by mid-January Toolco had explored and exhausted myriad possible avenues for further delaying the day of reckoning. On February 8, 1963, the Friday prior to Hughes’s scheduled appearance the following Monday, Toolco announced a strategy decision. That day Tooleo’s counsel served on TWA and filed with the court a “notice of position” stating that in view of the court’s denial of its motion two days earlier to dismiss the complaint, the denial of a certification permitting review of that order under 28 U.S.C. § 1292(b), and because of “the enormous expenses which would be incurred by Toolco * * * in further pre-trial and trial proceedings and the belief of Toolco that such expenses would exceed the amount of damages provable by plaintiff under the complaint” (emphasis added) Toolco “elects, subject only to whatever judicial relief it may hereafter obtain, to rest on the merits of its positions as heretofore taken so that it may avoid the burdens and expenses involved in further pre-trial and trial proceedings prior to the time that an appellate court has the opportunity to rule upon the decisions and orders heretofore made herein” (emphasis added). At a hearing conducted February 8, 1963, Toolco’s counsel, Davis, whose signature appeared on the “notice of position,” admitted that “the subpoena on behalf of Mr. Hughes was valid, never was questioned.” He also read from the record that portion of a ruling by the Special Master on September 15, 1962, imposing responsibility for Hughes’s actions on Toolco, including the Master’s comment that “I am piercing the corporate veil as to the Hughes Tool Company, and I am bringing what I hope is .clear notice of very substantial sanctions” against Toolco “in case there should be at some later date a * * * failure to respond to the subpoena * * Davis commented that Toolco was “aware of these rulings” and had accepted the responsibility imposed on it by the Master. Davis further explained that he had described to Toolco the sanctions available in the event Hughes should not appear, with particular regard to F.R.Civ.P. 37 (d). Davis further explained that the basis of Toolco’s strategic judgment was that which had been expressed in the “notice”, a calculation that TWA could not prove damages equal to the expenses of further litigation. Finally, Davis candidly and clearly recognized, and attributed the same awareness to Toolco, “that by insisting on a right to obtain a review on the legal questions which have been decided to date, and should it develop that they are in error * * * as a consequence they may be deprived of further defending on the merits, other than on the question of damages” (emphasis added) . Davis described Toolco’s decision to stand on Hughes’s nonappearance as a “business decision” — the wisdom of which Davis himself pointedly would not vouch for — and responded affirmatively to the court’s query whether Tooleo’s position was that “the plaintiff may take whatever proceedings it is advised to take by way of sanctions under Rule 37.” Short of express consent to the entry of a default judgment, a clearer case for the necessity and propriety of such a judgment could hardly be imagined. On appeal, as we have said, the complaint was held sufficient to state an antitrust claim under several theories and after all that was said at the February 8 hearing Toolco could hardly have been shocked that it then found itself left with nothing to litigate but damages. The language of the panel on the previous appeal with respect to the Hughes nonappearanee is as relevant in this context as it was to the issue presented by the default with respect to the counterclaims : “When Hughes chose not to appear for this deposition — which action was taken deliberately and with full knowledge of the sanctions available to the additional defendants under Rule 37— Judge Metzner was fully justified in entering judgments dismissing the counterclaims against TWA and the additional defendants. The sanction of judgment by default for failure to comply with discovery orders is the most severe sanction which the court may apply, and its use must be tempered by the careful exercise of judicial discretion to assure that its imposition is merited. However, where one party as acted in willful and deliberate disregard of reasonable and necessary court orders and the efficient administration of justice, the application of even so stringent a sanction is fully justified and should not be disturbed.” Chief Judge Lumbard further elucidated in words pertinent on this appeal: “beyond any question * * * the deposition of Hughes was necessary to all aspects of this litigation. * * * Hughes has at all times been sole owner of Toolco and the guiding light behind all the transactions between Toolco and TWA. Both TWA and the additional defendants had the right to depose Hughes. * * # * -X- -X- Hughes’ deposition was absolutely essential to the proper conduct of the litigation. Yet he and Toolco seized upon every opportunity to forestall this event. * * * Indeed, Hughes and Toolco seemed to look upon the entire discovery proceedings as some sort of a game, rather than as a means of securing the just and expeditious settlement of the important matters in dispute. It was only at the very eve of the Hughes deposition — after the other litigants had been put to much delay and expense — that the defendants made a ‘business decision’ to terminate discovery. Hughes’ conduct is particularly intolerable in a large and complex litigation such as this one. The protracted antitrust suit taxes the energies and resourcefulness of each party to the litigation; and it consumes much time of the court and the special masters it appoints. Tactics such as Hughes’ serve only to frustrate the implementation of the discovery machinery devised by the federal judiciary to expedite the handling of such complex litigation.” 332 F.2d at 614-615. Nor was that panel’s references to the necessity of Hughes’s deposition to “all aspects of this litigation” gratuitous. It was prompted by Toolco’s position on the earlier appeal that Hughes’s deposition was relevant only to the TWA action and not to the counterclaims. Even if we are not bound in a strict legal sense by the previous ruling that Hughes’s deposition was essential to TWA’s claim, that holding was manifestly correct. As will be seen, many of TWA’s asserted charges relied on interpretations of intent and of the significance of ambiguous projects quickly aborted, and of possible explanatory actions taken by Toolco that may or may not have been relevant to TWA’s several antitrust theories. The reality behind the charges could hardly be tested without the testimony of the one man who personally directed Toolco’s activities throughout the relevant period and whose singular penchant for secrecy was, after two years of frustrating delay in the conduct of the litigation, well known to the Master and the trial court. Clearly the court was entirely correct in concluding that the litigation would only continue its desultory course without the appearance on stage at the earliest possible moment of the hitherto unseen Prince of the drama. Thus, the court’s decisions to postpone all further discovery by Toolco — discovery of the sort which had not substantially advanced the litigation in the past — were not only within its discretion but quite obviously correct. Indeed, in light of TWA’s express reliance on Hughes himself to establish as much as 75% of its own case against Toolco, one would have expected that Toolco might have welcomed the opportunity to force TWA to play the card that it had proclaimed was so important to its case, in the expectation that a disappointing deposition would open the way for an early termination of the case favorable to Toolco. Toolco’s argument that TWA had not by February 8 laid a sufficient foundation for its case thus falls as well, because by failing to produce Hughes, Toolco deprived both TWA and itself of the opportunity to establish their respective positions. Finally, the suggestion that the court might have resorted to some sanction short of a default judgment after Toolco had announced a policy decision to take an action that would give it the right to take an immediate appeal — which only a final judgment on the merits would accomplish— and following the wilful refusal to produce a witness whom the court had rightly found central to the expeditious progress of the lawsuit, has such an air of unreality about it as to bear its own refutation. Contrast Rosenberg, Sanctions to Effectuate Pretrial Discovery, Colum.L.Rev. 480, 495 (1958) (giving party “second chance” desirable in appropriate case). Toolco intimates that throughout the litigation TWA sought in bad faith to win a fabricated ease by exploiting Hughes’s known craving for solitude. Nothing in the record would justify any such finding, and in any event the district court did offer to permit the deposition to be taken in as much privacy and under any other conditions that might suit Hughes’s aversion to public appearance. The cases relied on by Toolco are far afield and demonstrate by negative implication the inevitability of the default in this case. For example, in Gill v. Stolow, 240 F.2d 669 (2d Cir. 1957), the court reversed the entry of a default only upon a showing of a “real attempt to comply” with an order requiring the witness to travel from England to New York for the deposition, a trip the court found actually barred by his ill-health. There, the witness defied doctors’ orders to appear for the deposition within two months of the time scheduled for taking it. As far as we know, defendants have never in the eight years since the default judgment represented that Hughes was willing to be deposed were the default vacated. Von Der Heydt v. Rogers, 102 U.S.App.D.C. 114, 251 F.2d 17 (1958) (per curiam) reversed a default judgment only upon a conclusion that the district court had not adequately set forth its findings. Concurring separately, then Circuit Judge Burger commented that “if the information sought is material to the case and not privileged, and if appellant was able to produce it, failure to produce warrants dismissal.” Id. at 19. That is precisely the case here, except that the information sought was more than merely “material.” It was essential. It could prove to be the life or death of the action. In Independent Productions Corp. v. Loew’s, Inc., 283 F.2d 730 (2d Cir. 1960), we simply found full compliance with the only court order outstanding at the time of the default judgment and concluded that the default judgment was improperly entered merely because when the witness appeared for the deposition he raised a Fifth Amendment privilege. See also Bon Air Hotel, Inc. v. Time, Inc., 376 F.2d 118 (5th Cir. 1967), cert. denied, 393 U.S. 815, 89 S.Ct. 225, 21 L.Ed.2d 179 (1968) (petitioner’s failure to comply due to inability brought about neither by its own conduct nor by circumstances within its control did not warrant default judgment). Finally, Societe Internationale v. Rogers, 357 U.S. 197, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1957), as in Gill, reversed a default judgment only on the strength of findings by the Special Master, adopted by the district court, and approved by the court of appeals, that the party had made good faith and diligent efforts to execute a production order where compliance would have violated Swiss law. Indeed, the circumstances mandating entry of a default judgment here are stronger than in Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909), where the party against whom a default judgment was entered claimed a privilege that it urged justified its noncompliance. Despite this, the Court ruled that because the Hammond Co. “absolutely declined to obey the order,” which required production of evidence that the court could only “assume was material,” in view of the non-compliance, the default judgment was proper. As in this ease, Hammond too relied on the denial of pretrial motions by the defaulting party that would have postponed compliance with or modified the order. The Court found no abuse of the district court’s broad discretion to control pretrial procedures. In light of the foregoing, it would appear that were less at stake in this litigation, the propriety of the default judgment would not have deserved the full discussion we have afforded it. The entry of the default judgment was inescapable and virtually invited by Toolco. IV. Toolco, assuming arguendo that we would hold that the default judgment was properly entered against it on TWA’s complaint, seeks nevertheless to avoid any liability for the antitrust violations alleged by TWA on the ground that we are required to find as a matter of law that facts essential to establish any such violations, although alleged in the complaint, are in fact untrue and could not have been proved by TWA at a trial. To the extent that the allegations of antitrust infringements are not conclusively disproved, so Toolco asserts, the allegations themselves are either too vague or conclusory or otherwise insufficient to support any recovery whatever. We disagree. Despite inevitable sharp contrasts of tone and emphasis in the voluminous briefs, the parties do not seem to disagree that Judge Metzner, in preliminary rulings prior to the damage hearing and again in his decision adopting the report of the Master, applied an entirely correct standard in defining the legal effect of a default judgment. We too find Judge Metzner’s discussions of the law in this complicated area unexceptionable. Extracting justiciable standards from the venerable but still definitive case, Thomson v. Wooster, 114 U.S. 104, 5 S.Ct. 788, 29 L.Ed. 105 (1885), Judge Metzner ruled that by its default Toolco admitted every “well pleaded allegation” of the complaint, a term of art which Judge Metzner interpreted to permit finding an allegation not to be “well pleaded” only “in very narrow, exceptional circumstances:” “For example, an allegation made indefinite or erroneous by other allegations in the same complaint is not a well-pleaded allegation. Other examples * * * are allegations which are contrary to facts of which the court will take judicial notice, or which are not susceptible of proof by legitimate evidence, or which are contrary to un-controverted material in the file of the case.” 308 F.Supp. at 683. Judge Metzner then discussed the meaning that the much-mooted phrase “judicial notice” should take in the present context, as distinguished from the much different circumstance of a full trial, and summarized his previous discussion as implying that “only indisputable facts” — facts which could not possibly be rebutted if the non-defaulting party were permitted a trial — may be judicially “noticed” to rebut factual material otherwise admitted by a default. Toolco now attempts to hoist Judge Metzner by his own petard in directing our attention away from the “judicial notice” standard to certain “material in the file of the case” introduced by Toolco during the hearing on damages which according to Toolco has not been “controverted” by TWA. But this argument stands the matter on its head and implies that it was TWA’s responsibility to defend the allegations of its complaint by rebutting adverse matter introduced by Toolco in the damage hearing. TWA had no obligation to introduce any evidence whatever in support of the allegations of its complaint. Matter introduced by Toolco to disprove or mitigate damages which only tends to contradict the allegations of the complaint has no legal effect except as it bears on the question of damages unless it could not conceivably have been refuted and disproved by TWA had there been a trial and thus is “indisputable.” It would usher in a new era in the dynamics of litigation if a party could suffer a default judgment to be entered against it and then go about its business as if the judgment did not exist and as though, despite the opportunities to comply with the court’s orders and to defend on the merits which had been ignored, the slate was wiped clean and a new day had dawned. To state the proposition is to expose the folly of it. The applicable principles are clearly implied from Thomson v. Wooster, supra, where the court held that defendants who had defaulted in a patent infringement suit would not be permitted to show that the patent sued upon was invalid. Defendants had sought to introduce the original patent to show it differed from a reissued patent, which was the patent the plaintiffs sought to enforce. The court ruled that neither this proof nor evidence that defendants had delayed 14 years in seeking reissue were sufficient to defeat the contrary allegation of the validity of the patent contained in the complaint because, inter alia, the delay “might possibly have been explained, and the court could not say as a matter of law, * * * it was insusceptible of explanation. * * * ” We are instructed by Wooster that so long as the facts as painted by the complaint “might * * “ have been the case” they may not now be successfully controverted by Toolco. There was a time for that and Toolco cannot elect to default and then defend on the merits. It cannot have its cake and eat it too. Toolco’s adversión to TWA’s alleged failure to buttress its allegations in effect seeks to have us review the evidence presently in the record as though we were passing on a motion by Toolco for summary judgment supported by appropriate affidavits following normal discovery proceedings and prior to entry of any final judgment. In such a case, we would grant the motion unless TWA “set forth specific facts showing that there is a genuine issue for trial.” F.R.Civ.P. 56(e). But TWA need not introduce any facts whatever in support of its complaint. Judgment has already been entered in its favor on a complaint held on the earlier appeal to this court to state a sufficient claim. Only damages remained to be determined. As Judge Metzner ruled “[w]here file material is involved, if the plaintiff did not have full opportunity to meet or controvert such material, then it should not be used to nullify the allegation.” This conclusion is the clear implication of the Court’s refusal to permit the admission of the prior patent in Thomson. We have, nevertheless, reviewed all the evidence introduced and relied on by Toolco in its attempt to negative its liability and conclude that Toolco has shown nothing that renders inconceivable the likelihood that TWA could have proved at trial that actions by Toolco which formed the basis for the award of damages were in fact, as alleged in the complaint, violations of the antitrust laws. Although we have found it desirable to set forth and affirm the propositions of law relied upon by the district court and by both Masters involved, it would serve no useful purpose to rehash in detail the arguments which defendants have repeatedly urged to show that the exacting test of Thomson v. Wooster has been met and which incidentally have been rejected both by Judge Metzner and Special Master Brownell in thorough and well-reasoned opinions. Briefly, as we said on the earlier appeal, the allegations of the complaint “state the outlines of a tying arrangement, an economic boycott of the defendants’ competitors, and an attempt to monopolize commerce, all unlawful under the antitrust statutes.” 332 F.2d 602, 611. Specifically, in the first of three claims set forth in the complaint — the only claim upon which TWA introduced evidence of damages — TWA contended that Toolco, 100% owned by Hughes throughout the relevant period, acquired control of TWA and made it a “captive market” for Toolco “with the primary purpose of restraining and monopolizing the trade and commerce” of TWA, which was alleged to constitute a substantial proportion of various defined markets for airplanes, including jets, and related equipment. TWA further alleged that defendants intended that Toolco would become the sole source of supply of jet-powered aircraft to TWA (thus by implication intending to monopolize a substantial portion of a defined market) and a dominant source of supply of jets to air carriers generally; that suppliers to TWA other than Toolco would be boycotted ; and that defendants would cause Toolco to supply TWA with aircraft only upon condition that TWA would accept financing dictated by Toolco. Quite apart from proof of intent, paragraph 9 of the complaint alleged that defendants conspired to restrain trade in violation of Section 1 of the Sherman Act; provided financing to TWA only on the condition that plaintiff buy all aircraft needed for its operations from Toolco; required TWA to boycott all suppliers of aircraft except Toolco; conspired to monopolize the TWA market in violation of Section 2 ■ of the Sherman Act; attempted to monopolize the TWA market, also in violation of Section 2 of the Sherman Act; and sold and leased jets to TWA on the condition that TWA not buy or lease the goods of a competitor of Toolco, in violation of Section 3 of the Clayton Act. Paragraphs 11 through 29 of the complaint set forth in detail specific acts performed in furtherance of the offenses charged and for the improper purposes alleged, as outlined above. Thus, according to the complaint, Toolco first acquired TWA with the intent to make it its own market for supplying aircraft, an intention which was carried through into the advent of the commercial jet age during the years 1955-56. In 1956, according to these allegations, Toolco ordered a total of 33 Boeing jets and 30 additional Model 880 jets manufactured by General Dynamics Corporation (“Con-vair”). At the same time, defendants prohibited TWA from “making any arrangements for the acquisition, by sale, lease, or otherwise, of any jet-powered aircraft.” The complaint goes on to say that throughout 1956-60, Toolco refused to assign to TWA the rights to acquire the jets on order from Convair and Boeing, despite TWA’s requests that it do so and despite provisions in Toolco’s contracts with Boeing and Convair that permitted it to do so. Jets leased to TWA by Toolco on a day-to-day basis in 1959-60 were the only jets made available to TWA during the years 1955 to 1960 and were inadequate to TWA’s needs, it was charged. Each lease was conditioned on TWA’s agreement and understanding that it would not purchase or lease aircraft from any other supplier. In 1960 six of the Convair 880’s Toolco had ordered in 1956 were leased to Northeast Airlines, including three previously assigned to TWA. Similarly, in June, 1959, six of the Boeing jets ordered in 1956 were “diverted to the principal transatlantic competitor of TWA” (Pan Am). While thus restricting TWA’s purchases of jets, the complaint alleged that Toolco also inhibited TWA’s ability to obtain equity financing and caused TWA to rely chiefly on debt financing, thus rendering TWA unable to finance needed aircraft acquisitions except upon Toolco’s approval. Toolco intended by this restriction to increase TWA’s dependence on Toolco in furtherance of its unlawful purposes. From 1955-60 defendants prohibited TWA from obtaining financing for the acquisition of jets required for TWA’s needs. The damages which Brownell ultimately awarded to TWA consisted primarily of profits lost as a result of (1) diversion of the six Convairs to Northeast; (2) temporary retention by Toolco of four additional of the ordered Convairs and the ultimate lease of those jets to Northeast; (3) diversion of the six Boeings to Pan Am; (4) the lease, instead of outright sale, of jets in 1959-60; and (5) late delivery of 47 of the 63 jets ordered in 1956, which would have been avoided if, by the allegations of the complaint, Toolco had not unlawfully constricted TWA’s financing and acquisition of its own jet fleet. Although TWA also attempted to prove other damages resulting from Toolco’s manipulation of its financing, and further damage arising from delayed sales of obsolete prop aircraft, Brownell found TWA’s proof in these respects insufficient and TWA does not appeal from either determination. No damages were sought to be proved for alleged continuing antitrust violations by Toolco subsequent to December 15, 1960, when Toolco put all its TWA stock in a voting trust controlled by three voting trustees (including Holliday), thus relinquishing control of TWA, an action required as a condition of loans to TWA advanced by various banks and insurance companies to permit the purchase of new jets. As it did before Brownell and Judge Metzner, Toolco now seeks to discredit primarily one part of paragraph three of TWA’s complaint, in which TWA alleged that Toolco had been engaged since 1939 “in the development, manufacture and acquisition of aircraft and related equipment” and its “sale and lease” to air carriers, and to demonstrate the inadequacy of one antitrust theory that, according to Toolco, collapses if the allegations of paragraph three are untenable. Toolco thus would have us find United States v. Yellow Cab Co., 332 U.S. 218, 67 S.Ct. 1560, 91 L.Ed. 2010 (1947), to be the linchpin of TWA’s complaint, without which the remainder cannot hold together. In Yellow Cab, the Court reversed the grant of a motion to dismiss a complaint which had alleged that a company engaged in the business of manufacturing taxis had established control of a substantial segment of cab operations in four cities and had exploited its control by extracting exclusive purchasing agreements from its owned cabs and taxi companies, thus excluding other manufacturers from the affected market with the ultimate effect, as the Court said, that “the appellees effectively limit the outlets through which cabs may be sold in interstate commerce.” Id. at 226, 67 S.Ct. at 1565. This argument fails at each of three points. Tool-co has not established to our satisfaction that TWA could not possibly have proven violations analogous to those alleged in Yellow Cab. Even if it had, additional specific allegations of antitrust violations in the complaint other than the one which rests on the holding in Yellow Cab are not conclusively disproved by Toolco’s evidence. Nor has Toolco demonstrated that TWA’s postulates for recovery are in any other manner not “well pleaded.” To disprove the allegation of paragraph 3 that Toolco was a “manufacturer” of commercial airplanes, Tool-co relies primarily on (1) CAB opinions and orders dating from 1944-50 that concluded Toolco was not then engaged in or planning the manufacture of airplanes for commercial use, (2) schedules to CAB Form 41 Reports filed by domestic trunk airlines pursuant to 49 U.S.C. § 1377 indicating that between 1950 and 1966 none of these airlines purchased or leased a Tooleo-made airplane, and (3) the fact that no TWA annual report ever mentioned the manufacture of a “Hughes plane.” These documents, Toolco asserts, conclusively establish that Toolco was never a manufacturer of commercial aircraft and certainly not a competitor with the giant manufacturers — Boeing, Douglas, and Convair — and thus the exclusive dealing arrangements alleged in the complaint are entirely innocuous and incapable of producing the kind of market foreclosure alleged in Yellow Cab. Tool-co similarly sets out to undermine the allegation that it was a “dealer” in aircraft, again directing attention to CAB opinions and orders dated no later than 1950 finding no sales or leases of planes by Toolco to any airline but TWA; and again introducing the Form 41 Reports to the same effect but extending to 1961. The thrust of its argument is that under no view of the complaint, given the facts established by these documents, could TWA conceivably have proved more than that Toolco as a parent of TWA engaged in good-faith efforts to rescue it from financial crisis and to operate it as a successful business enterprise. Even if TWA could prove mismanagement by Toolco, that is insufficient, in Toolco’s view, to intimate any possible foreclosure of competition — since Toolco was a mere manager or conduit and had no independent competitive significance — and accordingly TWA’s theories must be found barren, since danger to free competition is the raison d’etre of the antitrust laws and some showing of such a danger in every case is a sine qua non of proving their infringement. Both Judge Metzner and Master Brownell met Toolco’s argument in this respect head-on, holding that courts could not consider as conclusively proven facts merely recited in CAB orders and opinions and in airline reports that are the product of no adversary proceedings, distinguishing between the existence of such documents, of which courts might in an appropriate case take judicial notice, and the truthfulness of their contents, which would be subject to contrary proof had the trial precluded by Toolco’s default actually been conducted. We agree with the reasoning of both opinions and find the authorities there relied on to be in point and sound. See Stasiukevich v. Nicolls, 168 F.2d 474, 479 (1st Cir. 1958); McCormick on Evidence § 328 at 704, § 330 at 709 (1954); Morgan, The Law of Evidence, 1941-45, 59 Harv.L.Rev. 481, 482-87 (1946); McNaughton, Judicial Notice, 14 Vand.L. Rev. 779 (1961). Moreover the documents described above, while (if their contents were accepted as true) showing that Toolco was not a major force as a supplier of aircraft other than to TWA, hardly negative the possibility that Tool-co possessed independent economic significance, apart from its role as supplier to TWA, sufficient to support proof of any or all the antitrust theories limned by TWA’s complaint. There is evidence in the record of activities by Toolco or Hughes that suggest significant movement by Toolco and Hughes toward actual or potential commercial manufacturer or dealership in airplanes, especially jets, and their parts. We cannot say that proof at a trial — prevented by Toolco’s conduct — that Toolco was more than a conduit for TWA but rather possessed independent competitive significance with respect to the commercial aircraft market, would be insufficient, if combined with appropriate related proof of the intent, attempt, collusion, tying arrangements, boycotts, and monopolization alleged in the complaint, to support an antitrust judgment for TWA. The evidence that Toolco’s interests and ambitions in commercial air flights may have extended beyond mere management of TWA begins with Toolco’s admitted role, initiated in World War II and continuing to the present day, as a substantial manufacturer of helicopters and aircraft parts for military purposes (and now of aerospace materials as well). Although Toolco stresses the non-commercial nature of this activity, it is clear that Toolco throughout the relevant period had the technical capability and sophisticated “know-how,” to enter the commercial market without untoward delay if it had so chosen. Early in its history, Toolco acquired the rights to the first forty Constellation aircraft developed in cooperation with Lockheed in the early 1940’s. Twenty-five of these were intended by Toolco for sale to airlines other than TWA. 6 CAB 153, 155 (1944). During and after the war, Hughes actively engaged in the development (ultimately unsuccessful) of a plan worthy of Jules Verne, for a 700-passenger plywood flying boat for commercial development. Manufacture by Toolco of aircraft in association with AVRO of Canada, and of Caravelles as a licensee of Sud Aviación of France, were considered during the middle 1950’s. In 1956, Toolco ordered at least 300 Pratt & Whitney jet engines, later sold primarily to Boeing and Pan Am at a substantial profit. The engines could well have been intended for installation in the planned Toolco jets and in any event constituted Toolco as a competitor with other sellers of jet engines. Also in 1956, secret discussions were commenced within the inner circles of Toolco and TWA for Toolco to manufacture commercial jets, a plan scuttled before the end of that year by the initiation of a CAB investigation into the matter which followed a TWA motion to the Board for approval to purchase up to 25 Toolco-manufaetured commercial jets. Through most of 1955, Toolco was engaged with Convair in the development of a jet which again proved unfeasible. Evidence of these last mentioned aborted forays is consistent with allegations in paragraphs 14 and 15 of the complaint that defendants arranged with Convair to develop “a jet-powered aircraft to be manufactured by Convair and to be supplied by the defendants to air carriers” and that “defendants also entered into a plan under which Toolco would itself” manufacture jets to be furnished “both to TWA and to other air carriers.” Additionally, there was testimony that Toolco ordered seven Convair 880's manufactured to the specifications of Capital Airlines and thirteen Convair 990’s built for American Airlines’ requirements. Finally, Toolco’s activities with respect to the 63-plane fleet ordered in 1956, only part of which was ever delivered to TWA, further support an inference that Toolco contemplated that it was or might become more than a manager for TWA. Thus, Toolco conditioned its order for the Convair 880’s on a stipulation that the price to it would be reduced progressively as Convair was successful in selling more of the planes beyond the initial orders by Toolco and by Delta Airlines, Inc., a condition consistent with possible Toolco participation in marketing the 880. Nonassignment provisions in the purchase agreements do not conclusively negate the capacity of Toolco to have dealt in its Boeing and Convair contracts and priority rights with airlines other than TWA — and of course Toolco did not in fact exercise its right to assign the contracts to TWA. Ultimately, of course, as alleged in the complaint and demonstrated at the damages hearing, defendants did sell or lease 16 planes of the ordered 63-plane fleet to Pan Am and Northeast. As Master Brownell observed, the ability of Toolco to deliver these jets immediately may have given Toolco a significant competitive advantage over their own manufacturers. Late in 1959, Hughes negotiated with Lockheed for purchase of Electras at a time when Toolco’s own actions indicated TWA was fully stocked with jets. Toolco’s response to most of these considerations is that each is consistent with a sole intent on its part to deal in aircraft and aircraft parts solely for the benefit of TWA. However, the allegation in the complaint that Toolco refused to assign the rights to the ordered fleet to TWA although it was empowered to do so under the contracts of sale, is consistent with a contrary inference. In any event, the question is not whether one inference or another is the stronger but whether Toolco’s evidence- — -in light of its default and thus the absence of a trial — absolutely forecloses the possibility that Toolco enjoyed actual or potential independent competitive significance in the commercial aircraft market sufficient to support a finding of an antitrust violation under any of the several hypotheses put forward in the complaint, including, in addition to the Yellow Cab theory, (1) unlawful intent to monopolize a substantial portion of the commercial aircraft market in restraint of trade; (2) unlawful conspiracy to do so, see Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 284 F.2d 1 (9th Cir. 1960), rev’d on other grounds, 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d 305 (1962); Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962); Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968); Albrecht v. Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed.2d 998 (1968) ; Simpson v. Union Oil Co., 377 U.S. 13, 84 S.Ct. 1051, 12 L.Ed.2d 98 (1964); (3) enforcement of an illegal boycott, see Fashion Originators’ Guild v. Federal Trade Commission, 312 U.S. 457, 61 S.Ct. 703, 85 L.Ed. 949 (1941); United States v. New York Great Atlantic & Pacific Tea Co., 173 F.2d 79 (7th Cir. 1949); Klor’s Inc. v. Broadway-Hale Stores, 359 U.S. 207, 79 S.Ct. 705, 3 L.Ed.2d 741 (1959); (4) tying adequate financing of TWA to its purchase or lease of jets from Toolco, and vice-versa, see Fortner Enterprises, Inc. v. United States Steel Corp., 394 U.S. 495, 502-503, 89 S.Ct. 1252, 22 L.Ed.2d 495 (1969) ; and (5) the lease of aircraft to TWA on the condition that TWA not purchase or lease aircraft from other suppliers, see International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947); Standard Oil Co. of California and Standard Stations v. United States, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371 (1949). Toolco’s reply brief argues that the allegations of unlawful intent are unduly vague but this is unsupported by the cases it relies on, Glenn Coal Co. v. Dickinson Fuel Co., 72 F.2d 885, 888 (4th Cir. 1934); SCM Corp. v. Radio Corp. of America, 407 F.2d 166 (2d Cir.), cert. denied, 395 U.S. 943, 89 S.Ct. 2014, 23 L.Ed.2d 461 (1969) (mere conelusory and vague allegations and nothing more, of unlawful attempt or conspiracy to monopolize or to restrain trade, or, simply, to violate the antitrust laws, were held insufficient). By contrast, TWA’s complaint alleges specific acts by defendants allegedly pursuant to an intent to monopolize specified markets by means which are described in detail in the complaint. These allegations are both adequate as a matter of proper pleading and sufficiently definite to support an award of damages entered on the default judgment. Toolco’s argument that a conspiracy among Holliday and Hughes, as officers and shareholders of Toolco, with Toolco itself, is as a matter of antitrust law unprovable, is an illustration of the thrust of Toolco’s approach to the question whether the decisive allegations in the complaint are “well-pleaded.” Whether TWA might have proven such a conspiracy would have turned on the nature and weight of technical and secretive evidence bearing on the independent economic significance of each of the parties and also on subjective questions of intent and attempt. Toolco’s conduct barred even initial exploration of these crucial factual issues. We are reminded that even summary judgment “should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof 'is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.” Poller v. Columbia Broadcasting System, Inc., supra, 368 U.S. at 473, 82 S.Ct. at 491. See also White Motor Co. v. United States, 372 U.S. 253, 259-260, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963). We should be far more reluctant to grant summary judgment for Toolco following entry of judgment for TWA, as it now in effect requests us to do, when its own default barred even initial exploration of the crucial factual issues. V. The opinions below and the briefs submitted to us on this appeal reveal some confusion as to the proper scope of the hearing on damages. As the authorities cited above illustrate, a default judgment entered on well-pleaded allegations in a complaint establishes a defendant’s liability. Also, at the hearing before Special Master Brownell it was incumbent upon TWA to introduce evidence showing the extent of the damages which resulted from the antitrust violations established by the default judgment. The difficulty arises as to a question that Toolco refers to in part II of its main brief as one of “proximate cause.” To what extent did the default judgment dispense with a plaintiff’s normal obligation to show that damages alleged were proximately caused by Tool-co’s illegal actions? The answer seems to us inherent in the question. The default had the effect of admitting or establishing that the acts pleaded in the complaint violated the antitrust laws and that those acts caused injury to TWA in the respects there alleged. Because, however, the damages were unliquidated and uncertain, F.R. Civ.P. 55(b), it was necessary for TWA at the hearing to establish the extent of the injuries established by the default. The outer bounds of the recovery allowable are of course measured by the principle of proximate cause. The default judgment did not give TWA a blank check to recover from Toolco any losses it had ever suffered from whatever source. It could only recover those damages arising from the acts and injuries pleaded and in this sense it was TWA’s burden to show “proximate cause.” On the other hand, there was no burden on TWA to show that any of Toolco’s acts pleaded in the complaint violated the antitrust laws nor to show that those acts caused the well-pleaded injuries, except as we have indicated that it had to for the purpose of establishing the extent of the injury caused TWA, in dollars and cents. Thus, in Sunkist Growers, Inc. v. Winckler & Smith Citrus Products Co., 284 F.2d 1 (9th Cir. 1960), rev’d on other grounds, 370 U.S. 19, 82 S.Ct. 1130, 8 L.Ed.2d 305 (1962), cited by Toolco, the court held that an antitrust plaintiff could not recover for losses attributable to a watered-down product rather than to defendant’s acts. To the same effect are the oth