(dissenting):
In Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931), the Court laid down the general rule that a partial new trial should not be ordered unless “the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice.” The Court then held that because the question of damages in that case was so interwoven with that of liability, the damage issue could not be retried alone “without confusion and uncertainty, which would amount to a denial of a fair trial.” Id.
This rule has, of course, been followed in the lower federal courts, including our own. See, e. g., Richardson v. Communication Workers of America, 530 F.2d 126, 130 (8th Cir.), cert. denied, 429 U.S. 824, 97 S.Ct. 77, 50 L.Ed.2d 86 (1976); Camalier & Buckley-Madison, Inc. v. Madison Hotel, Inc., 513 F.2d 407, 419-22 (D.C.Cir.1975); Caskey v. Village of Wayland, 375 F.2d 1004, 1009-10 (2d Cir. 1967); United Airlines, Inc. v. Wiener, 286 F.2d 302, 306 (9th Cir.), cert. denied, 366 U.S. 924, 81 S.Ct. 1352, 6 L.Ed.2d 384 (1961); Atlantic Coast Line R.R. v. Bennett, 251 F.2d 934, 938-39 (4th Cir. 1958); Smyth Sales Inc. v. Petroleum Heat & Power Co., 141 F.2d 41, 44-45 (3d Cir. 1944). Because I believe that the majority have departed from it, I respectfully dissent.
This is not a case in which the issues of liability and damages are distinct and separate. The proof upon which the finding of liability rests is also the foundation for the award of damages. There is no way in which the jury on retrial can fairly weigh plaintiff’s claim of injuries without reexamining the force which gave rise to liability in the first instance.
The majority say that on the issue of damages the defendants “may repeat their denials that they engaged in the use of force.” If the defendants do this, their testimony promptly will be branded with the lie by the court’s instructions that the jury must find that the defendants had used force.
Should the jury inquire of the judge what force they must find that the defendants used, the judge will only be able to tell them that he doesn’t know. Nonetheless, the jury will have to commence its deliberations by accepting as a fact this indefinable finding of another jury that some force was used. Although the first jury’s definition of “some force” may be completely different from the definition that the second jury attributes to it, the second jury’s assumption as to what the first jury found will be as binding on the defendants as if the second jury itself had made the finding. This is no way to try a law suit. See Franchi Construction Co. v. Combined Insurance Co., 580 F.2d 1, 6-8 (1st Cir. 1978).
There is another reason why the retrial should not be limited to the issue of damages. The $1.00 award, which the majority find to be at complete variance to the proof, indicates either misunderstanding or impropriety on the part of the jury. See Ajax Hardware Manufacturing Corp. v. Industri*869al Plants Corp., 569 F.2d 181, 184-85 (2d Cir. 1977); Hatfield v. Seaboard Air Line R.R., 396 F.2d 721, 723-24 (5th Cir. 1968). Because the issues of liability and damages are so intertwined, the bifurcation of the trial cannot be said to have preserved the liability issue from taint. See Vizzini v. Ford Motor Co., 569 F.2d 754, 759-62 (3d Cir. 1977); Feinberg v. Mathai, 60 F.R.D. 69, 70-71 (E.D.Pa.1973). See also Hatfield v. Seaboard Air Line R.R., supra, 396 F.2d 721 (award of $1.00 led to a new trial on all issues although the liability award was supported by special interrogatories). Where, as here, “the irrationality of the jury’s award ... is such that even speculation as to why it acted as it did is unrewarding, the proper course is to have a new trial on all issues, rather than one limited to the question of damages.” Lester v. Dunn, 475 F.2d 983, 987 (D.C.Cir.1973).
Neither side challenges the award of $800.00 for appellant’s unlawful arrest.1 There is no need therefore to retry this issue. However, I believe that defendants will be severely prejudiced if the issue of unlawful force is not retried in its entirety so that a new jury may determine, on the basis of the evidence before it, how much force, if any, was used by each of the defendants and what injuries, if any, resulted. This Court has the authority to so condition the grant of appellant’s motion for a new trial on the issue of damages. Id. I believe that is what should be done.
. The apparent adequacy of the award for unlawful arrest raises a question about the majority’s assertion that the jury was unwilling to give money to an admitted heroin addict and thief.