UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1529
CHEFIK SIMO,
Plaintiff - Appellee,
versus
MITSUBISHI MOTORS NORTH AMERICA, INCORPORATED,
formerly known as Mitsubishi Motor Sales of
America, Incorporated; MITSUBISHI MOTORS
CORPORATION,
Defendants - Appellants.
No. 06-1570
CHEFIK SIMO,
Plaintiff - Appellant,
versus
MITSUBISHI MOTORS NORTH AMERICA, INCORPORATED,
formerly known as Mitsubishi Motor Sales of
America, Incorporated; MITSUBISHI MOTORS
CORPORATION,
Defendants - Appellees.
Appeals from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:04-cv-22302-HMH)
Argued: March 12, 2007 Decided: August 15, 2007
Before WILLIAMS, Chief Judge, and TRAXLER and SHEDD, Circuit
Judges.
Affirmed by unpublished opinion. Judge Traxler wrote the majority
opinion, in which Chief Judge Williams joined. Judge Shedd wrote
an opinion concurring in part and dissenting in part.
ARGUED: Earle Duncan Getchell, Jr., MCGUIREWOODS, L.L.P., Richmond,
Virginia, for Appellants/Cross-Appellees. Eric T. Stahl, FRANK L.
BRANSON LAW OFFICES, Dallas, Texas, for Appellee/Cross-Appellant.
ON BRIEF: Robert L. Hodges, K. Lorraine Lord, Erin M. Sine,
MCGUIREWOODS, L.L.P., Richmond, Virginia; Elbert S. Dorn, TURNER,
PADGET, GRAHAM & LANEY, P.A., Columbia, South Carolina, for
Appellants/Cross-Appellees. Kenneth C. Anthony, Jr., Spartanburg,
South Carolina, for Appellee/Cross-Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
TRAXLER, Circuit Judge:
Mitsubishi Motors Corporation and Mitsubishi Motors North
America, Inc. appeal a district court judgment in a products
liability action arising out of an accident involving a vehicle
rollover. Finding no error, we affirm.
I.
In the early morning hours of October 11, 2002, Chefik Simo
was a passenger in a 2000 Mitsubishi P45 Montero Sport that had
been designed, manufactured, and sold by Mitsubishi. He suffered
severe injuries when the vehicle rolled over on Interstate 85 near
Spartanburg, South Carolina, after the driver suddenly steered left
to avoid another vehicle and then attempted to correct his course
by quickly turning back to the right. While the vehicle was on its
side, it was struck by a Federal Express tractor trailer.
At the time of his accident, Simo was an 18-year-old freshman
on the varsity soccer team at Furman University in Greenville,
South Carolina. Simo presented testimony that he was the top
soccer recruit in the country the year he entered college and among
the best players on the United States’ “Under-20” national team.
By all accounts, he possessed outstanding speed, size, athleticism,
technical ability, instincts, and work ethic. In addition to these
qualities, his left-footedness and his experience at the left back
position placed him in extraordinarily high demand at the
3
professional level. Simo had intended to begin his professional
career in Europe following the conclusion of the soccer season at
Furman. Many European teams, including some at the top levels, had
expressed interest in signing Simo when he became available.
Simo’s injuries from the accident were severe. They included
a fractured shoulder blade and pelvis, dislocated shoulder,
ruptured small intestine, broken wrist and finger, a knee
dislocation in his left leg involving a “complete separation of the
thigh bone from the shin bone” and tearing of three of the four
major ligaments in the knee. Supp. J.A. 5. He suffered
irreparable damage to his peroneal nerve, resulting in a “drop
foot.” Id. at 6. As a result of these injuries, Simo underwent a
number of surgeries and incurred more than $277,000.00 in medical
bills. Although Simo undertook arduous rehabilitation efforts in
an attempt to resume his soccer career, when he returned to the
field he ended up overcompensating for his injuries to his left
side, leading to painful stress fractures that forced him to
terminate his comeback.
Simo instituted the present action in federal district court
on September 21, 2004, alleging claims of strict tort liability and
negligence against Mitsubishi Motors Corporation and Mitsubishi
Motors North American, Inc. (collectively “Mitsubishi”).1 As is
1
Simo also named Federal Express Corporation as a defendant;
however, Simo subsequently settled with Federal Express.
4
relevant here, Simo claimed that the Montero Sport was unreasonably
dangerous because its center of gravity was too high, causing it to
roll over in certain circumstances on flat, dry pavement (to roll
over “untripped”).
In this regard, Simo presented the expert testimony of David
Bilek, a person with experience in mechanical engineering, on the
subjects of vehicle stability and design. Bilek had run stability
tests and utilized data to evaluate vehicle dynamics for over 20
years in a litigation-consultant capacity. Bilek explained the
physics involved in vehicle rollovers and discussed stability tests
he performed on the Montero Sport, a testable prototype,2 and
various sport utility vehicles (“SUVs”) comparable to the Montero
Sport. Bilek opined that in the well-designed vehicles, lateral
force by a sudden turn would cause the vehicle’s tires to slide on
the pavement to the extent that they could not continue to grip the
road. On the other hand, he explained that a vehicle like the
Montero Sport that is unreasonably top-heavy can roll over
untripped when the lateral forces on the vehicle reach a certain
level. He also opined that, in light of information that had been
disseminated from other manufacturers, a reasonable manufacturer
would have performed testing on its vehicles to ensure that they
2
Bilek created the prototype by widening the Montero Sport six
inches and lowering its center of gravity by one and a half inches
for the purpose of showing how a lower and wider design could
improve stability.
5
would not rollover untripped. He opined that “handling” tests
performed by Mitsubishi, in which the drivers did not expose the
vehicles to forces strong enough to roll the vehicles over, were
not sufficient. J.A. 1839.
Also providing testimony for Simo was engineer Michael
Gilbert, who, like Bilek, testified that the Montero Sport rolled
over untripped under certain circumstances, whereas better designed
SUVs on the market did not. He further testified that designing a
stable SUV is not a difficult task and had the Montero Sport been
designed to have the stability of other SUVs, the accident at issue
here never would have occurred.
Simo further offered extensive testimony regarding earnings
that he lost as a result of the accident. In particular, Simo
offered the expert testimony of Patrick McCabe, a former collegiate
and professional soccer player, and then-current FIFA-licensed
soccer agent.3 McCabe testified that he performs scouting duties
for various North American and European soccer teams and that his
job requires him to identify soccer talent and determine its market
value. In light of Simo’s exceptional qualities--which McCabe
described in detail--and McCabe’s knowledge of how Simo was
regarded in the soccer world generally as well as by specific
European teams, McCabe testified that Simo “was destined to become
one of the top American players of his generation” before his
3
FIFA is the international governing body of soccer.
6
accident. Id. at 1058. Based on his specialized knowledge of the
market for professional soccer players in Europe, McCabe testified
concerning the increasing income that Simo would have likely earned
as his career progressed. Conservatively estimating that Simo
would play for 15 years in Europe, McCabe estimated that Simo’s
career earnings likely would have fallen within the range of $3
million to $10 million.
Finally, economist Ken McCoin provided expert testimony
concerning the concept of “present value,” and he calculated the
present value of the earnings that McCabe had projected Simo would
have enjoyed had the accident not occurred.
At the close of the evidence, Mitsubishi moved for judgment as
a matter of law on the negligence and strict liability claims. The
district court granted the motion as to Simo’s claim for negligent
failure to warn, and as to his request for punitive damages, but
otherwise denied the motion. Subsequently, the jury returned a
verdict in Simo’s favor for $7 million in compensatory damages.
Following the verdict, Mitsubishi moved for judgment as a
matter of law on the basis that Simo had failed to present
sufficient evidence that an alternative feasible design existed for
the Montero Sport on the date of its manufacture and sale that
would have prevented the accident here. Mitsubishi also moved for
a new trial on the grounds that the district court improperly
admitted testimony from Simo’s experts and that Simo’s counsel made
7
improper argument during trial and closing arguments, resulting in
prejudice to Mitsubishi. Mitsubishi finally moved for a new trial
nisi remittitur on the grounds that the verdict was excessive, that
Simo failed to offer sufficient evidence regarding an alternative
feasible design, and that Mitsubishi was entitled to a set-off in
the amounts Simo had received in settlement with other parties for
claims involving the accident. The district court granted
Mitsubishi’s motion for a set-off but otherwise denied its post-
trial motions, and entered final judgment against Mitsubishi for
$6,050,000.00.
II.
Mitsubishi first argues that the district court erred in
denying its motion for judgment as a matter of law on the ground
that Simo failed to establish the existence of an alternative
feasible design that would have prevented or reduced Simo’s
injuries. We disagree.
Under South Carolina law, which the parties agree applies in
this diversity suit, “in order to find liability under any products
liability theory, a plaintiff must show: (1) he was injured by the
product; (2) the injury occurred because the product was in a
defective condition, unreasonably dangerous to the user; and (3)
that the product at the time of the accident was in essentially the
same condition as when it left the hands of the defendant.” Bragg
8
v. Hi-Ranger, Inc., 462 S.E.2d 321, 326 (S.C. Ct. App. 1995).
Proving the existence of an alternative feasible design is a
“crucial aspect” of this required showing. Little v. Brown &
Williamson Tobacco Corp., 243 F. Supp. 2d 480, 495 (D.S.C. 2001).
We review de novo a district court’s denial of a Rule 50(b)
judgment as a matter of law, viewing the evidence in the light most
favorable to the prevailing party and drawing all reasonable
inferences in his favor. See Konkel v. Bob Evans Farms Inc., 165
F.3d 275, 279 (4th Cir. 1999).
Here, Simo presented expert testimony that designing an SUV
that will not rollover untripped is not difficult so long as the
issue is addressed early in the design process. See Restatement
(Third) of Torts: Prod. Liability § 2 cmt. f (1998) (explaining
that qualified expert testimony may establish that an alternative
feasible design existed “if it reasonably supports the conclusion
that [such a] design could have been practically adopted at the
time of sale”). Indeed, Simo presented evidence that, at the time
Mitsubishi sold the Montero Sport at issue here, several other SUVs
already on the market had centers of gravity sufficiently low that
the vehicles would not roll over untripped. Thus, the district
court correctly denied Mitsubishi’s motion. See id. (“[O]ther
products already available on the market . . . may serve as
reasonable alternatives to the product in question.”).
9
III.
Mitsubishi also contends that the district court erred in
admitting expert testimony from David Bilek. We disagree.
The admissibility of expert testimony is governed by Federal
Rule of Evidence 702, which provides:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based
upon sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the
witness has applied the principles and methods reliably
to the facts of the case.
Fed. R. Evid. 702. We review a decision to admit or exclude expert
testimony for abuse of discretion. See Gen. Elec. Co. v. Joiner,
522 U.S. 136, 141 (1997); Cooper v. Smith & Nephew, Inc., 259 F.3d
194, 200 (4th Cir. 2001).
Bilek was experienced in applying mechanical engineering
principles. After obtaining his bachelor of science degree in
mechanical engineering technology, Bilek received training in
vehicle stability issues for several years from Dr. Michael Kaplan,
who possesses a Ph.D. in mechanical engineering as well. In doing
“litigation consulting-type work,” Bilek gained extensive
experience and knowledge over twenty years concerning how to
perform stability testing on vehicles. J.A. 1732. He has
performed “hundreds and hundreds of tests associated with vehicle
stability [and] vehicle rollover resistance.” Id. at 1734. As a
10
result, he has specialized knowledge concerning the tests that
manufacturers employ and experience in evaluating the effectiveness
of different design modifications in protecting against rollovers.
Bilek also has “reviewed thousands of pages of internal documents,
test data, test reports, test video tapes, deposition testimony of
in-house engineers and other materials related to the design and
development of various vehicles,” most of which have been written
by and for engineers. Id. at 937. He has also reviewed many
documents authored by the National Highway Traffic Safety
Administration, as well as publications from the Society of
Automotive Engineers, and many others relating to vehicle design
and rollovers.
All of this training qualified Bilek to testify, as he did,
regarding the physics involved in rollovers, his testing of the
various vehicles to determine whether they roll over untripped, and
the state of knowledge of the risk of SUV rollovers. See Clay v.
Ford Motor Co., 215 F.3d 663, 668-69 (6th Cir. 2000) (holding that
district court did not abuse its discretion in admitting testimony
of engineer, who had never worked in the automotive industry and
never tested a two-wheel drive Bronco II before the suit in
question, that the instability of that vehicle rendered it
defective). Mitsubishi appears to argue, however, that Bilek was
not qualified to offer expert testimony concerning whether his
notion of designing the Montero Sport to be lower and wider could
11
be feasibly implemented. Even assuming that Bilek was not
qualified to offer testimony concerning the feasibility of his own
design--the prototype--he did not purport to do so. As we have
explained, there was no need for Bilek to theorize about whether
Mitsubishi could design an SUV with utility equal to the Montero
Sport that would not roll over untripped because Simo presented
testimony that several such vehicles were already on the market.
IV.
Mitsubishi next maintains that the district court erred in
admitting the expert testimony of Patrick McCabe. Mitsubishi
argues that the testimony violated the standard of admissibility
established in Federal Rule of Evidence 702 and in Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Mitsubishi
also argues that the district court erred in admitting Ken McCoin’s
testimony regarding Simo’s future earnings because his testimony
relied on McCabe’s testimony. We conclude that the district court
was within its discretion in admitting McCabe’s and McCoin’s
testimony.
A district court determining the admissibility of expert
testimony has a gate-keeping responsibility to “ensur[e] that an
expert’s testimony both rests on a reliable foundation and is
relevant to the task at hand.” Kumho Tire Co. v. Carmichael, 526
U.S. 137, 141 (1999) (internal quotation marks omitted). McCabe
12
testified that an important part of a job as a sports agent was
evaluating the worth of soccer players on the market. In
estimating the income that Simo could have been expected to earn
absent the injury, McCabe drew on his own evaluation of Simo’s
abilities as well as those of others involved with the sport who
believed that Simo “was destined to become one of the top American
players of his generation” before his accident. J.A. 1058. Based
on this evaluation, as well as his awareness of the fact that Simo
had wanted to pursue his soccer career in Europe, McCabe utilized
his specialized knowledge of the earnings opportunities Simo would
likely have had in his career. In so doing, he noted as a point of
comparison the salaries of eight then-current or former left-footed
players from the American Senior National Team. Cf. Drews Co. v.
Ledwith-Wolfe Assocs., Inc., 371 S.E.2d 532, 536 (S.C. 1988)
(noting with approval the “yardstick” method of proving future lost
profits by comparing business to one of similar size, nature, and
location).
Mitsubishi challenges the district court’s conclusion that
McCabe’s methodology was sufficiently reliable. It argues that
McCabe “made no reference to objective sources or outside
information to explain how he determined [Simo’s] supposed career
path playing professional soccer” and that Simo’s prospects for
future success were “simply unknown and unknowable.” Appellants’
Cross Br. at 43, 46. It further maintains that the district court
13
did not specifically consider the non-exclusive list of factors set
out in Daubert for judging the reliability of methodologies
underlying expert opinions. We find no fault with the district
court’s admission of McCabe’s testimony. The factors identified in
Daubert “do not constitute a definitive checklist or test.” Kumho
Tire, 526 U.S. at 150 (internal quotation marks omitted). Rather,
the inquiry into the reliability of an expert’s methodology must be
flexible and case-specific. See Maryland Cas. Co. v. Therm-O-Disc,
Inc., 137 F.3d 780, 784-85 (4th Cir. 1998). Here, the district
court reasonably accepted that a soccer player’s value can be
reliably estimated by the personal observations and experience of
a person whose job requires him to evaluate players’ abilities and
determine their value.4 Cf. Kumho Tire, 526 U.S. at 150
(recognizing that “the relevant reliability concerns may focus upon
personal knowledge or experience” because “there are many different
kinds of experts”).
4
Mitsubishi takes issue with the players that McCabe
identified in his report as illustrating the demand for top left-
footed players, arguing that McCabe did not explain what specific
characteristics Simo shared with these players. However, clearly
what McCabe believed they had in common was that they were among
the very best soccer players in the country and had correspondingly
high earning potential. Discussion of the specific characteristics
of these players that put them in such high demand, such as their
speed or technical skill, was unnecessary, although it was
certainly a fair topic for cross-examination. See Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (“Vigorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.”).
14
While neither McCabe nor anyone else could predict with
certainty what the future would have held for Simo, South Carolina
damages law did not require such certainty. See South Carolina
Fin. Corp. of Anderson v. W. Side Fin. Co., 113 S.E.2d 329, 336
(S.C. 1960) (“The law does not require absolute certainty of data
upon which lost profits are to be estimated, but all that is
required is such reasonable certainty that damages may not be based
wholly upon speculation and conjecture, and it is sufficient if
there is a certain standard or fixed method by which profits sought
to be recovered may be estimated and determined with a fair degree
of accuracy.” (internal quotation marks omitted)). McCabe
explained that his projections encompassed “a range of averages,”
rather than a precise prediction of Simo’s future. J.A. 2025.
And, it is noteworthy that even Mitsubishi’s expert testified that
he was sufficiently informed to offer a “probable career path” for
Simo. Id. at 1092; cf. Correa v. Cruisers, 298 F.3d 13, 26 (1st
Cir. 2002) (“Acceptance of the methodology by the other party’s
expert may give additional credence to the reliability of the
proffered testimony.”).5
5
Mitsubishi also argues that the district court erred in
denying its motion for mistrial based on what Mitsubishi
characterizes as “personal attacks” directed by Simo’s counsel
against Mitsubishi’s counsel, expert, and corporate representative.
Appellants’ Cross Br. at 50. Having reviewed the statements in
question, we conclude that none of these statements, considered
separately or together, approached the level necessary to warrant
the grant of a new trial.
15
V.
On cross-appeal, Simo argues that the district court erred in
granting Mitsubishi’s motion for judgment as a matter of law on the
issue of punitive damages. However, Simo requests that his case be
remanded for a trial on punitive damages “if and only if the issue
of punitive damages can be tried without disturbing [his] award of
actual damages.” Appellee’s Br. at 77. Because we determine that
the issue of punitive damages could not be tried without disturbing
the compensatory damage award, we need not decide whether the
district court erred in granting judgment as a matter of law to
Mitsubishi on the punitive damages issue.
Although the propriety of granting a new trial on fewer than
all issues of fact is well established, we should not order a new
trial on the sole issue of punitive damages if “the evidence
relating to wilful misconduct is so inextricably tied up with that
relating to primary negligence that a fair trial upon either issue
requires a trial of both issues together.” Atl. Coast Line R.R.
Co. v. Bennett, 251 F.2d 934, 939 (4th Cir. 1958). In Bennett, the
plaintiffs recovered compensatory and punitive damages in an action
involving an accident which occurred when a freight train engineer
failed to slow the train to an appropriate speed. See id. at 936.
We held that the punitive damage award could not stand because it
was based on an improper jury instruction. See id. at 938.
Nevertheless, we refused to grant a new trial on punitive damages
16
only, reasoning that the amount, if any, of punitive damages to be
awarded could be intelligently determined only in connection with
the jury’s consideration of the entire case. See id. at 938-39.
As in Bennett, the evidence that Simo relies on here to
support his punitive damages claim is largely the same evidence on
which he relies to establish the defectiveness of Mitsubishi’s
vehicle. His argument for punitive damages boils down in large
part to the proposition that not only was the vehicle defective,
but it was so obviously defective that Mitsubishi’s failure to
remedy the defect amounted to at least recklessness. We therefore
conclude that remand for a trial on punitive damages only would not
be appropriate. See id.; but cf. Atlas Food Sys. & Servs., Inc. v.
Crane Nat’l Vendors, Inc., 99 F.3d 587, 599-600 (4th Cir. 1996)
(holding that the district court’s grant of new trial on sole issue
of punitive damages did not amount to an abuse of discretion).
VI.
In sum, we affirm the judgment of the district court.
AFFIRMED
17
SHEDD, Circuit Judge, concurring in part and dissenting in part:
I concur in Parts I-IV of the majority opinion, affirming the
jury’s verdict on liability and compensatory damages. However, I
believe the district court erred in excluding Simo’s claim for
punitive damages from the jury’s consideration. In addition, I
believe it is entirely appropriate to remand this case for a trial
solely on punitive damages. Accordingly, I dissent from Parts V
and VI of the majority opinion.
Under South Carolina law, “punitive damages may be awarded to
punish only those tortfeasors who have acted in a reckless, willful
or wanton manner.” Jimenez v. Daimler Chrysler Corp., 269 F.3d
439, 449-50 (4th Cir. 2001) (internal punctuation omitted). In
meeting this standard, a plaintiff need not show that a tortfeasor
had actual knowledge of the danger his tortious behavior posed to
another. Rather, a plaintiff can recover punitive damages “even
when the wrongdoer does not actually realize that he is invading
the rights of another, provided the act is committed in such a
manner that a person of ordinary prudence would say that it was a
reckless disregard of another's rights.” Atlas Food Systems &
Services, Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 599 (4th
Cir. 1996).
Simo produced evidence which indicates that Mitsubishi (1)
knew or should have known of the risk that its Montero Sport would
roll over because it could not sustain the tire forces which come
18
into play following an emergency swerve and (2) recklessly
disregarded those risks.* More specifically, as to the risk of an
accident and Mitsubishi’s knowledge thereof, Simo’s evidence shows:
that drivers of Mitsubishi’s vehicles would, from time to time,
have to undertake accident avoidance maneuvers; that such maneuvers
could expose the vehicles to “limit tire forces”; that vehicles
whose static stability factor is as low as 1.06 are likely to roll
over, untripped in such circumstances; that the consequence of a
rollover would be severe, inasmuch as rollovers are one of the
deadliest accident scenarios; that Mitsubishi conceded it was on
notice that its vehicles had been involved in roll overs; and that
any reasonable manufacturer would have known of the risk based on
the testing, research, and literature available in 2000. As to
Mitsubishi’s disregard of these risks, Simo introduced evidence
demonstrating: that Mitsubishi did not perform “limits” testing to
determine whether the Montero Sport would remain stable in limit
tire force conditions; that it knew how to perform such testing
(and had done so for other vehicles); that it knew or should have
known that only limits testing would allow it to evaluate whether
the Montero Sport posed unnecessary risks of untripped rollovers;
*
In assessing the district court’s grant of judgment as a
matter of law on Simo’s punitive damages claim, we must view the
evidence -- and I recite it here -- in a light most favorable to
Simo. Atlas Food Systems, 99 F.3d at 597.
19
that it did not alter the design of the Montero Sport; and that it
sold the Montero Sport despite these failures.
Mitsubishi, of course, vigorously contested Simo’s allegations
and his evidence both in its case-in-chief and on cross-
examination. Nonetheless, it was for the jury to determine whether
to accept Simo’s evidence and credit his witnesses or to side with
Mitsubishi instead. Because Simo’s evidence, if credited, supports
a claim for punitive damages, the district court erred in excluding
it from the jury’s consideration. See Atlas Food Systems, 99 F.3d
at 597 (holding that a district court should not grant judgment as
a matter of law “unless there was no evidence presented in the case
that would authorize the jury's verdict”) (emphasis added).
The majority does not consider whether Simo presented a viable
claim for punitive damages because it concludes that a trial
limited to that issue would be “inappropriate.” In reaching this
conclusion, the majority relies on Atl. Coast Line R. Co. v.
Bennett, 251 F.2d 934, 938 (4th Cir. 1958), in which we applied the
established principle that a partial new trial should not be
ordered unless the issue to be retried is separate and distinct
from the remainder of the case such that “the trial of it alone may
be had without injustice” to bar a new trial limited to punitive
damages. The Bennett court based its holding on its observation
that “the evidence relating to wilful misconduct is . . .
inextricably tied up with that relating to primary negligence.”
20
Id. at 939. I do not believe, however, that Bennett established a
firm rule that a new trial on punitive damages is inappropriate as
a matter of law where a plaintiff relies on overlapping evidence to
support his claims for compensatory and punitive damages. In fact,
we implicitly rejected this interpretation of Bennett in Atlas Food
Systems. There, we concluded that a district court did not abuse
its discretion when it ordered a new trial on punitive damages
because “[a]ll of the evidence relating to [the defendants’]
willful or wanton conduct was before the second jury, enabling it
to render a proper verdict on both the liability for and amount of
punitive damages.” Atlas Food Systems, 99 F.3d at 599-600.
Similarly, in this case, if a new trial on punitive damages were
granted, a jury would be able to consider in full the evidence
relating to Mitsubishi’s alleged willfulness and recklessness.
Therefore, I would reverse the district court’s grant of judgment
as a matter of law on Simo’s punitive damages claim and would
remand for a new trial on that claim.
21