Circuit Judge, dissenting:
I respectfully dissent, both from the court’s decision to rehear this appeal en banc,1 and from its ensuing en banc decision on the merits.
The decision to rehear this appeal en banc was in the first place an improvident one tested by principles that should, but did not here, constrain the court’s invocation of that extraordinary procedure.
The decision on the merits, displacing a panel decision which, whatever its merits, was based upon a detailed and fully articulated record review of purely discretionary trial court rulings, is, by contrast, best seen as a blunt, though unadmitted, exercise of the court’s supervisory jurisdiction. That appellate power is invoked here to condemn and deter by the most drastic possible means misconduct of counsel which, though concededly egregious when considered in mass and in isolation, is never demonstrated on any principled basis to have been the likely cause of any actual prejudice to the only party favored by the court’s en banc decision. The predictable result of this apparently intuitive exercise of raw supervisory power is a correspondingly indiscriminate remand for a new trial that in this multifaceted case introduces a new set of *914injustices, wholly ignored by the court, affecting parties who have had no real opportunity to suggest them to the en banc court.
On both points more is involved here than the ultimate result in this legally unexceptional diversity case. Each decision trenches upon matters of ongoing institutional concern for which, by these decisions, unfortunate appellate review practices in this court are encouraged and regrettable legal precedent may have been established.
Because of the broader implications of the decision, expression of a dissenting viewpoint on both decisions is warranted. I take the decision to rehear en banc and the decision on the merits in that order.
I
The standards by which courts of appeals are to decide whether to rehear an appeal en banc are concededly not subject to precise formulation and wholly consistent application. The controlling rule, Fed.R. App.P. 35(a), implementing the undergirding statutory grant of power, 28 U.S.C. § 46(c), tells us only that the procedure is “not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a question of exceptional importance.” There is enough flexibility built into the very text of this rule — in the word “ordinarily” and in the open-ended expression of “exceptional importance”— that it could not be claimed that the rule itself either compels or excludes rehearing en banc in any case.
But of course, we know — as the introductory “not favored” admonition directly tells us — that the procedure is intended by Congress and the Supreme Court to be used sparingly and with careful discrimination, and that some other standard than a purely subjective, eye-of-the-beholder perception of “exceptional importance” should constrain us in the matter. The Supreme Court, which wisely has deferred as a matter of deliberate policy to the courts of appeals’ discretion in invoking this procedure, see Western Pacific Railroad Corp. v. Western Pacific Railroad, 345 U.S. 247, 269, 73 S.Ct. 656, 667, 97 L.Ed. 986 (1953) (Frankfurter, J., concurring), has, however, adjured caution and circumspection upon us. So we have been reminded by the Court that “[e]n banc courts are the exception, not the rule”; that they should be “convened only when extraordinaiy circumstances exist that call for authoritative consideration and decision by those charged with the administration and development of the law of the circuit,” United States v. American-Foreign Steamship Corp., 363 U.S. 685, 689, 80 S.Ct. 1336, 1339, 4 L.Ed.2d 1491 (1960); and that the policy of the en banc rehearing statute is “ ‘that the active circuit judges shall determine the major doctrinal trends of the future for their court,’ ” id. at 690, 80 S.Ct. at 1339 (emphasis added). See also Church of Scientology v. Foley, 640 F.2d 1335, 1338-41 (D.C.Cir. 1981) (en banc) (Robinson, C.J., dissenting).
Notwithstanding these wise admonitions suggesting the existence of objective criteria by which we should discipline ourselves in this matter, it remains the fact that we are constrained only by that discipline. And it cannot be gainsaid that in practical terms the standard for invoking the en banc rehearing procedure remains — to paraphrase Chief Justice Hughes on the Constitution — whatever a sufficient majority of active circuit judges in a particular case considers it to be. For this reason, it is not possible to insist that there are any cases which are improper “as a matter of law” for en banc rehearing, and of course I make no such claim for this or any case. See United States v. Lynch, 690 F.2d 213, 215 n. 22 (D.C.Cir.1982) (Robinson, C.J.).
It is possible, however, to insist that there is a discernible scale of case-types in terms of probable fitness for en banc rehearing. We need periodically — if for no other reason than possibly to stem the tide of almost routine suggestions these days for rehearing en banc2 — to consider that scale as an *915aid to principled and sparing invocation of the procedure. This case provides a particularly appropriate occasion for the exercise because it involves the most flagrant disregard of the principles of restraint that the scale teaches.
Without attempting to define in detail the categories of cases most fit for en banc rehearing,3 it is certain that lowest in the order is that general category wherein the suggestion is only of non-constitutional error leading to an arguably unjust or incorrect panel decision having no significant precedential implications. As to such cases, former Chief Judge Kaufman has expressed the general view that a “judge should [not] cast a vote for reconsideration by the entire court merely because he disagrees with the result reached by the panel ... Rule 35 was not adopted to provide that luxury.” Gilliard v. Oswald, 557 F.2d 359, 359 (2d Cir.1977). This bespeaks a general perception, with which I certainly agree, that it is not the intended function of the en banc procedure simply to provide in effect another intermediate appellate court to review for “mere” panel error. See Western Pacific Railroad, 345 U.S. at 275, 73 S.Ct. at 670 (Jackson, J., dissenting) (use of procedure for this purpose likened to “appeal from the three-judge court to a swollen circuit court”); Church of Scientology, 640 F.2d at 1341 (Robinson, C.J., dissenting); United States v. Robinson, 560 F.2d 507, 526 (2d Cir.1977) (Feinberg, J., dissenting). This case is obviously in that general category.
Within this general low-fitness category of mere error-correction cases, there is concededly the potential in any case that the decision suggested for en banc reconsideration not only involves prejudicial panel error, but affects “doctrinal trends” or involves matters of significant public interest as well, so that “exceptional importance” justifying en banc rehearing on the latter basis is present. Even within this category of “correction-plus” cases, however, further gradations of potential “importance” can be identified and should be kept in mind.-
At the highest level of potential importance in the general low-fitness category must be cases involving misapprehensions or misapplications of significant legal principle, even of non-constitutional dimensions. These principles may in some cases be of such precedential moment that en banc rehearing is justified, not “merely” to correct an arguably erroneous panel result, but to bring to bear the full court’s consideration of a major doctrinal problem having serious precedential implications for circuit, and possibly national, law. See, eg., Adams v. Proctor & Gamble Manufacturing Co., 697 F.2d 582 (4th Cir.1983) (en banc) (effect on individual Title VII claims of consent judgment in EEOC action). See generally Walters v. Moore-McCormack Lines, 312 F.2d 893, 894 (2d Cir.1963) (en banc) (Lumbard, C.J.).
Certainly at a distinct level below such “important legal precedent” cases are those wherein the dispositive issues are purely factual or discretionary ones and it is suggested only that the panel incorrectly upheld or rejected trial court fact findings or found or failed to find abuse of trial court discretion. In neither type case is a legal issue with significant precedential implications likely to be involved.
In fact-dispositive cases, even if the controlling legal principles are of the greatest significance, rehearing en banc simply to consider a suggestion of panel error in its review of trial court findings of predicate facts is not warranted under the procedure.4 *916See, e.g., United States v. Collins, 462 F.2d 792, 802 (2d Cir.1972) (en banc) (rehearing en banc improvidently granted where appeal turns solely upon validity of trial court factual determinations that controlled application of unchallenged Miranda principle).
At an even lower level — indeed by any reckoning at the very lowest level of potential importance — are those cases, such as the instant one, wherein the suggestion is only of panel error in affirming trial court discretionary rulings.5 Here the en banc court will simply be second-guessing a panel’s judgment call that was itself required to be greatly deferential to that first made at the trial court level. Such cases are not likely ever to provide a fit occasion for invoking the en banc procedure, no matter how egregiously “wrong” the panel’s judgment call affirming trial court discretion may appear even to a sizeable majority of the full court. No legal principle will emerge in clarified, altered, or corrected form from such an en banc decision.6 No general precedent of ongoing value in the exercises of trial court discretion or of appellate review of such exercises is likely to result, given the inevitably high fact-specificity of the trial court rulings.7 The only possible justification for rehearing such appeals en banc will be that found in the narrow, one-time-only “correction” of an “incorrect” or “unjust” panel decision affirming a trial court’s discretionary conduct of a particular trial whose exact dimensions will never be repeated.
Even if the possibility of justification in some discretion-review cases be admitted, the value of mere one-case “correction” in a particular case must always be weighed carefully in the balance against weighty conflicting considerations that underlie the basic admonition that the procedure is “not favored.” Those conflicting considerations are the obvious and simple ones identified by Justice Jackson in the course of pointing out why all rehearings en banc for merely one-case corrective purposes are disfavored:
[They] are not appropriate where the effect is simply to interpose another review by an enlarged Court of Appeals between decision by a conventional three-judge court and petition to [the Supreme] Court. Delay, cost, and uncertainty, which take their toll of both the successful and the unsuccessful, the just and the unjust litigant, are each increased by an additional appeal to a hybrid intermediate court.
Western Pacific Railroad, 345 U.S. at 273, 73 S.Ct. at 669 (Jackson, J., dissenting); see also Church of Scientology, 640 F.2d at 1341 (Robinson, C.J., dissenting) (“drains judicial resources [and] leads to multiplicity of opinions [resulting in] inability to offer authoritative guidance”).
*917With these considerations in mind, the en banc decision in this case confirms every point that makes rehearing en banc in this type case, of all types, most inappropriate. Laying aside the question whether the decision may have “corrected” a sufficiently grave panel error to justify on that basis alone invoking the generally disfavored procedure — a matter addressed in Part II — the decision predictably serves none of the dominant institutional purposes of the procedure.
It obviously resolves no intra-circuit conflict of decisions. It neither announces, abandons, nor clarifies any legal principle that might bear upon general “doctrinal trends” in circuit law. It lays down no precedent likely to provide helpful guidance either to the district courts in exercising discretion or to this court in reviewing exercises of discretion in future cases of general comparability. It deals with no controversy of such general public importance, as opposed to public curiosity, that full-court imprimatur is desirable simply to encourage greater public confidence in the end result. It simply substitutes the judgment of a one-vote majority of the nine-member en banc court for that of a one-vote majority of a three-member panel on purely judgmental questions of trial court discretion not likely ever to recur in even generally comparable form. Raw power obviously exists in the larger majority to do this; the real question is the propriety of the power’s exercise in this or other cases of the general type.
If one looks to the opinion itself — principally to the panel dissent which, it is said, contains the basic rationale for the en banc decision — it is obvious that the “exceptional importance” of the case was thought to lie only in the special venality of counsel’s misconduct, the special degree of dereliction in the trial judge’s failure to curb or correct it, and the special degree of panel error in failing to set things right at the appellate level. It could be asserted, I suppose, that on the root matter — counsel misconduct— the decision does embody a sufficiently important general principle and set a sufficiently important and helpful precedent. The principle, presumably: that counsel misconduct sufficiently egregious will taint and require setting aside a verdict; the precedent: that repetitions of this particular degree will in this circuit have that result, even if it takes en banc rehearing to achieve it.8
The general principle is of course unquestionable. But it has never been in doubt and convening an en banc court simply to emphasize its continued vitality is not a provident use of heavily pressed judicial resources.
Just as the legal principle is too general to justify two levels of appellate review to insure its “correct” application in a particular case, so the only legal precedent that could result from the effort will necessarily *918be so narrowly fact-specific as to be positively mischievous rather than helpful (if taken at all seriously). I predict on that score that the surest consequence of this decision will be a spate of appeals, petitions for rehearing, and suggestions for rehearing en banc in which we are invited to liken or contrast in minute, fine-honed detail various examples of counsel misconduct with that in this case. The result of that, I further predict, will be that so far as its precedential effect is concerned, this decision will quickly either be regretted or disregarded — equally unfortunate consequences for the stability and predictability of our processes.
There remains a possibility that, in all fairness, should be considered. Even conceding the general unfitness of this type case for en banc rehearing, and conceding that in a particular case no justification exists beyond one-case error correction, the injustice of a particular panel decision might be so grave and so manifest that a court armed with the power to set it right en banc could not responsibly fail to do so. I concede the point. See United States v. Lynch, 690 F.2d at 215 n. 22.
Where this is to be the sole basis for rehearing en banc, however, a special discipline is compelled for making the collegial decision that grave and manifest injustice rather than merely arguable panel error is involved. Fortunately, one reliable means of discipline is readily available. It lies in the very cast of the court’s vote on the en banc rehearing question. In a case where every member of a court other than the majority of a divided panel votes to rehear en banc, the sheer vote balance suggests a collegial judgment that injustice going beyond mere error is not merely arguable but manifest, and the validity of individual perceptions to that effect as reflected in the individual votes is by the overall vote confirmed. If, on the other hand, a vote to rehear en banc in such a case is close — particularly, as here, a bare majority — a reconsideration of the propriety of en banc rehearing is suggested for a collegial court by the very closeness of the vote. The strong indication from such a closely divided corporate judgment is that whatever of panel error is arguably involved, it does not amount to injustice so grave that its correction by the full court’s consideration is both necessary to insure justice and essentially foreordained by the vote.
In such a case, and I suggest in this case, a court should yet step back. It is never too late to determine, on the basis of newly revealed aspects of a case, that an original vote to rehear en banc was improvident when considered in a new light shed by later developments. See, e.g., United States v. Collins, 462 F.2d at 802-03; see also Church of Scientology, 640 F.2d at 1344-45 (Robinson, C.J., dissenting). This is classically such a case, and even at this stage of the proceedings, I think we should, upon reconsideration, deny the suggestion for rehearing en banc and let stand as the court’s judgment the panel decision. See id.
Aside from insuring in the end a more principled administration of the disfavored en banc procedure in this case, this would also yield the proper result on the merits. For, as I believe will be shown in Part II, the most that could be said for the en banc decision is that it simply substitutes for any injustice in the panel decision at least equal, and arguably greater, injustices running in the opposite direction. Where this is the only consequence of an en banc rehearing of trial court discretionary rulings, it confirms the improvidence of the initial decision to rehear en banc. It also points up the wisdom of the rule that accords great appellate deference to trial court discretion in balancing the risks of relative injustices (the very essence of discretionary judicial action) in an attempt to achieve the most just solution possible. In such situations, the questionable ability of appellate courts in general to strike any better discretionary balance cautions doubly against the expense and investment of resources involved in two-tiered efforts to do so. See generally, Wright, The Doubtful Omniscience of Appellate Courts, 41 Minn.L.Rev. 751 (1957).
*919This case should never have been wrung through this most dubious process to yield so dubious a substitution of pure judgment calls by so close a final call and with such new and unexplored injustices.
II
The en banc decision on the merits is, apparently, that largely because of the special risks of prejudice created by trial consolidation the misconduct of counsel took on such special color that the verdicts of all three plaintiffs against Eastern Airlines must be set aside and new trials on those claims ordered.9 The displaced panel decision rested on a contrary assessment that despite the conceded impropriety of much of the challenged conduct, a careful review of the record, undertaken with proper deference to trial court discretion, revealed that improper influence of the jury could not be assumed a probable consequence of the misconduct. Arnold v. Eastern Air Lines, 681 F.2d 186 (4th Cir.1982) (Arnold I), superseded, Arnold v. Eastern Air Lines, 712 F.2d 899 (4th Cir.1983) (en banc).
I stand on the panel majority’s assessment to that effect. Not only does it reach a more defensible result but, quite as significantly for our ongoing processes, it reflects a more principled process of review for this type case than is reflected in the en banc decision by the court. Because I think the en banc decision is flawed not only in its result but, just as critically, in its apparent process of review and correction, I add some thoughts here on the latter aspect.
A
The en banc decision is — so far as can be discerned from what is said in the two opinions — rested entirely upon a blunt perception that the misconduct of counsel here is so bad that review need not go beyond a simple recognition of its particular degree of impropriety — with remand for new trial dictated as a matter of course because of the degree perceived and the need to deter repetitions. No attempt is made to assess whether, under a careful record review, it must further be assumed that actual prejudice to Eastern probably resulted from the misconduct.10 I understand the court’s in*920stinctive first-blush dismay — even outrage — and have expressed my own.11 But I do not understand the court’s failure — as I read its opinion — to ponder more deeply the real issue that follows..
Review of trial court discretion in responding to party and counsel misconduct in jury trials is undoubtedly among the most difficult appellate tasks. See Arnold I, 681 F.2d at 194-95. The temptation in review is understandably great to make instinctive judgments that particular misconduct might improperly have influenced a jury because of its obvious capability to do so. But fair review requires a further effort on a principled basis to fathom whether it did in fact probably do so in the particular case.
The reason is obvious. We do not sit as general monitors of the professional conduct of lawyers in trial courts. In the overall scheme of things that important task is given over to others — to the organized profession in general and, in particular trials, to the broad discretion and equally broad final responsibility of trial judges. See Rosenberg, Judicial Discretion of the Trial Court, Viewed From Above, 22 Syracuse L.Rev. 635 (1971). Not only are we not given the task of general supervision, we are not equipped to do it fairly and consistently if we undertake it. Aside from other frailties and limitations that beset us as appellate judges in assessing the subtleties of both judicial and non-judicial influences on juries, the only effective sanction we have for correcting misconduct of counsel — ordering a new trial — is not available at all against losing counsel (surely equal culprits over the long haul and the run of cases) and, when invoked against prevailing counsel, is visited mainly upon their faultless clients.
That in the overall scheme it is not given to us to root out this particular evil whenever and however it comes to our attention in cases properly before us may be a matter of deep regret to different ones of us from time to time. But the temptation to range beyond our limited function of reviewing for judicial error should be resisted. The way systematically to resist it lies precisely in doing what I am satisfied was not done here: making pragmatic inquiry past the misconduct into whether improper influence upon the jury from that misconduct can be accepted as a probability, see City of Cleveland v. Peter Kiewit Sons’ Co., 624 F.2d 749, 756 (6th Cir.1980), being content to leave to other forces of correction — or to oblivion— any misconduct not found legally prejudicial as well as ethically opprobrious. That exhausts both our responsibility and our power to correct for legal error.
It is critical that such a tough-minded and disciplined inquiry into actual prejudice was not — so far as we are given to understand — considered necessary here. For, as the majority panel opinion demonstrated, such a review rather easily dispels the initial shock effect undoubtedly created, as intended, by appellate counsel’s adroit massing, and heavy-handed repetition, of the various discrete instances of counsel misconduct upon which Eastern’s appeal was primarily based.
Full recapitulation of the panel majority’s review on that score is not appropriate here. It suffices to refer to some of the more obvious perceptions opened by that review and apparently considered inconsequential by the en banc majority: the significance of the extended period of time over which the instances of misconduct massed in appellant’s brief actually occurred, see Arnold I, 681 F.2d at 195,200; the numerous, carefully phrased cautionary instructions given by the trial judge designed to screen the jury from improper influences flowing from improper or questionable conduct by counsel *921for all parties, see id. at 198-99 & nn. 11-13; the fact that the dominant issue in the case was the degree, conceded to be at least “ordinary” negligence, of Eastern’s culpability, see id. at 197-99; and, most critically, the failure of Eastern’s counsel to have made any contemporaneous or other objection at trial to any but a very few12 of the numerous instances of conduct carefully massed for challenge on appeal, see id. at 200.
Because I remain persuaded that on a fair and properly deferential review of the record no prejudicial error resulting from counsel misconduct is shown, I would affirm the Arnold and Mihalek personal injury judgments and otherwise hold with the panel decision.
B
There remains a possibility that should be considered. It is that the en banc decision can be viewed and justified as a valid exercise of the court’s supervisory jurisdiction over proceedings in the district courts even if actual prejudice were not demonstrable. As indicated at the outset of this opinion I think this is the most forthright way to view the decision. Because I dissent from the result, however it may be grounded, I address this possibility.
Though the contours of this residual appellate power are understandably vague, it is undoubtedly drawn upon by federal courts from time to time in situations where justice, or the appearance of justice, has been thought to require corrective intervention even though actual prejudice to aggrieved parties cannot be demonstrated or is concededly absent. See, e.g., Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946) (tort defendant’s verdict set aside for misconduct of jury commission and clerk of court in excluding daily wage earners from jury lists; “unnecessary to determine” actual prejudice to plaintiff); Young & Simon, Inc. v. Merritt Savings & Loan, 672 F.2d 401 (4th Cir.1982) (new trial because of two-week interruption, over objection of counsel, of plaintiff’s presentation of complicated case; no assessment of actual prejudice). It is arguable that within this general usage of the power, a court may properly intervene to correct and deter sufficiently opprobrious misconduct by trial counsel — officers of the court — even though no actual prejudice stemming from the misconduct can fairly be demonstrated under ordinary standards for reviewing the trial court’s discretionary handling of the misconduct. Though the en banc majority does not say that this is the basis of its decision here, it seems to me implicit in what is said in the opinions giving the court’s formal rationale. See supra note 10.
Reserving the question whether the misconduct of private counsel for prevailing parties should ever be an occasion for invoking supervisory corrective powers — a point on which I have grave doubt13 — I am satisfied that in this case the misconduct does not. For two basic reasons.
In the first place, as developed in Part I, the existence of a sufficient degree of manifest injustice to justify an exercise of this *922extraordinary power is simply belied by the closely divided corporate judgment of the court on the en banc rehearing question and now, on the merits. Beyond this the remedy used to correct and deter the perceived injustice is itself afflicted with injustice in the overall perspective of this case.
The danger of giving an unjustly indiscriminate remedy is present in all exercises of supervisory jurisdiction. By definition, such exercises of judicial power are not focused upon the correction of specifically demonstrated prejudice to identified parties but upon the general regulation of conduct. That danger was present with a vengeance here and has been realized. A brief recapitulation of critical elements in the procedural development of the case illustrates this.
At the trial of these cases, the three plaintiffs had live, powerful claims for both compensatory and punitive damages arising from an almost incredible act of negligence on the part of Eastern’s pilots. So powerful were these claims and so overwhelming the available proof of negligence that — in what must surely be a relatively rare occurrence — this major commercial airline had conceded ordinary negligence entitling the plaintiffs to compensatory damages, leaving for trial on their claims only the amount of compensatory damages and the existence and amount of any punitive liability. Following three weeks of trial and seventeen hours of deliberation, a jury gave substantial compensatory awards to the plaintiffs, but denied them punitive damages.
The effect of the en banc decision is not only to strip these plaintiffs of their compensatory damage awards, but to send them back stripped as well of any opportunity to establish before the jury that reconsiders their compensatory awards their possible entitlement as well to punitive damages. This misfortune cannot be chalked up simply to the normal hazards of litigation and the inscrutability of jury processes. It stems rather from a circumstance that calls for relief if retrial of all the compensatory awards is to be the result of this appeal.
The compensatory awards are stripped because of the misconduct of counsel for these plaintiffs. But the loss of opportunity to attempt new proof of punitive liability results from a bizarre procedural twist in post-verdict proceedings when both Eastern’s motion for new trial on the compensatory awards and the plaintiffs’ motions for new trial on the punitive damage issue were being considered. That twist is not fairly chargeable either to plaintiffs or to their counsel and it may well have led to the crudest injustice experienced so far by any parties to this action — in this matter, the plaintiffs. It came about in this way.
Despite the trial judge’s finding, as trier-of-fact on a related, essentially congruent, non-jury issue, that “[Eastern’s] crew were not simply inadvertent but rather were grossly negligent,” see Arnold I, 681 F.2d at 190 n. 1, 194 n. 8, the judge declined to set aside as against the weight of the same evidence the jury’s verdict against plaintiffs on their claims for punitive damages based on the alleged gross negligence of that crew.
Though it is, of course, difficult to be certain of the reasons for this apparent anomaly in the judge’s rulings, it seems almost certain that they represent a practical assessment that the high-side compensatory awards on the one hand and the rejection of any punitive damage awards on the other reflected a jury “compromise.” This is indicated both by the judge’s reference to the possibility, see id. at 204 n. 16, and by the next sad twist in the ironic spiral into procedural disaster now underway for these completely faultless plaintiffs. Of course, if the assessment was of compromise verdicts, the proper technical response was to set both aside and order new trials on both compensatory and punitive damages. But in what now appears an effort to solidify the jury “compromise” as essentially a just one, the trial judge next admonished Eastern’s attorneys on the record that if they successfully appealed the compensatory awards they would face on any new trial they won not only the compensatory damage claims but the punitive damage claims as well. See id. at 206 n. 22. Although conditionally ordering such a consequence *923while declining to set aside the verdict did not lie within the judge’s power, see id., it is understandable that counsel for plaintiffs may reasonably and responsibly have assumed that he did have the power. Presumably acting on that assumption, counsel failed to take a cross-appeal, and the unfolding of plaintiffs’ procedural misfortunes continued. Technically, of course, the absence of a cross-appeal precluded review of the judge’s refusal to set aside the verdict denying punitive damages, and the panel so noted in affirming the two personal injury awards and remanding the Weston wrongful death claim. See id.
That technical impediment to cross-relief still exists of course. But it would be a singularly unjust withholding of the court’s supervisory power not to grant that cross-relief now as an adjunct to the substantial relief given Eastern in the process of eradicating the perceived injustice stemming from counsel’s misconduct. The improvidence of the trial judge’s ruling, with its inevitable lulling effect on plaintiffs’ counsel, should not be charged to those plaintiffs even if the misconduct of their counsel is now to be. Ample precedent exists for giving this relief, notwithstanding the technical barrier, in an exercise of the same supervisory jurisdiction that is arguably the most defensible basis of the court’s decision to benefit Eastern so handsomely for the dereliction of opposing counsel. See, e.g., Tug Raven v. Trexler, 419 F.2d 536, 548 (4th Cir.1969); National Association of Broadcasters v. FCC, 554 F.2d 1118,1127 & n. 24 (D.C.Cir.1976).
For this reason, I would at the least, if the compensatory damage awards are to be set aside, exercise this court’s residual power to make a more just overall disposition in this tangled web of procedural misfortune. As a part of the remand, I would direct the trial judge to reconsider, on the record already made, the plaintiffs’ motion to set aside the jury verdict finding Eastern not liable for punitive damages. The judge’s initial ruling on that motion was so obviously skewed by understandable concern to salvage verdicts possibly reflecting compromise, and his follow-up attempt to nail down the compromise so obviously misled counsel to plaintiffs’ detriment, that this result seems to me compelled by the same considerations of justice that the en banc majority has concluded require setting aside the compensatory awards.
A final injustice involved in the remand for a new trial so handsomely and solely to Eastern’s benefit should be noted. It further illustrates the improvidence of the specific decision to rehear en banc in these consolidated cases. And it underscores the unevenness that is likely to result from exercises of supervisory jurisdiction in multi-party, multi-claim cases where the effects of corrective action on all affected parties either are not, or cannot, be taken into account in shaping the remand.
This concerns the ironic plight of Eastern’s insurers (Aetna) in the final denouement. In their consolidated appeals Aetna heavily relied, as did Eastern, on the prejudice allegedly caused it by misconduct of opposing counsel. See Arnold I, 681 F.2d at 192-94. Aetna’s challenge on this score was rejected by the panel, as was Eastern’s, but in the case of Aetna, the rejection was by unanimous decision of the panel. On Aetna’s and Eastern’s ensuing petitions for rehearing and suggestions for rehearing en banc, Eastern’s suggestion for rehearing en banc of course carried by the narrowest of margins. At the same time, Aetna’s petition for rehearing was being denied unanimously by the panel, and its suggestion for rehearing en banc failed when it prompted no request for consideration by any member of the court. Now Eastern, because of counsel misconduct, has secured a new trial limited to the determination of compensatory damages and has been freed of the potential for punitive liability, while Aetna’s appeal based primarily on the same ground has ended in apparent failure, with the Supreme Court’s recent denial of Aetna’s petition for certiorari following our denial of its petition for rehearing. Aetna Casualty and Surety Co. v. United States, cert. denied,-U.S.-, 103 S.Ct. 1801, 76 L.Ed.2d 366 (1983).
*924It is arguable, and indeed I have always believed, see Arnold I, 681 F.2d at 204, that Aetna’s claim of prejudice from counsel misconduct was even less supportable on a careful record review than was Eastern’s. But that was on the basis that, as Judge Bryan and I believed, neither was supportable. It is frankly inconceivable to me — and I am sure to Aetna — that if Eastern’s claim to relief on that score has sufficient merit to justify en banc corrective action, Aetna’s had not enough to merit the same.14 The record simply will not support the drawing of that fine a line between the relative positions of these parties on that matter.
On the overall record of these proceedings, Aetna could be excused if it wondered whether somehow its claim for appellate relief simply fell through the cracks of the en banc procedures in this court.15 And any fair legal analyst would have to conclude that either this court’s decision to rehear Eastern’s appeal en banc or its failure to rehear Aetna’s based upon the same ground was improvident. I have, of course, already indicated which of these I think was improvident. But one surely must have been.
Whatever its other consequences, this case reveals the special perils of indiscriminate decisions to rehear en banc and consequent indiscriminate remands in multiclaim, multi-party cases of this procedural complexity. The trial court’s discretionary resolution of the admitted dilemmas created by trial developments remains the more defensible one, as the panel long ago concluded.
I am authorized to say that Judge SPROUSE joins in this opinion.
. Cf. Western Pac. R.R., 345 U.S. at 270, 73 S.Ct. at 667 (Frankfurter, J., concurring) (not*915ing in 1952 “a growth in the tendency to file petitions for rehearing in the courts of appeals”).
. The rule itself specifically identifies only the most obvious type, that wherein the panel decision conflicts with another, thereby threatening the “uniformity of [the circuit’s] decisions.” Fed.R.App.P. 35(a)(1). Certainly also high in any reckoning of “special importance” must be cases presenting difficult or novel constitutional issues having potentially wide application. Beyond these, “special importance” becomes less manifest. See generally Church of Scientology, 640 F.2d at 1341-42 (Robinson, C.J., dissenting).
. It is of course possible that in a “fact-review” case the real question is not simply one of panel judgment in applying the agreed stan*916dard for fact-finding review, but is of the proper standard to be applied. This is itself a matter of legal principle, and a court might properly consider it necessary to address that significant legal principle en banc. Such an issue was, for example, recently the dispositive one in Pullman-Standard v. Swint, 456 U.S. 273, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982) (appropriate standard for review of ultimate finding of employer motivation under Title VII).
. Cases wherein panel decisions have affirmed trial court discretion are generally even less appropriate for en banc rehearing than are those in which panel decisions have found abuse of discretion. The latter are at least likely to have established “as a matter of law” a per se limit on trial court discretion that could have important precedential effects. Affirmances, however, will typically avoid defining the specific limits, holding merely that the challenged action lies within undefined, permissible bounds, and will therefore have no effect beyond the immediate case. Additionally there is the fact that en banc reconsideration of panel affirmances threatens the joint view of two “lower” judicial levels rather than one of two opposing views. Cf. generally 11 C. Wright & A. Miller, Federal Practice and Procedure § 2819 (1973) (pointing up greater appellate deference owed trial judge discretionary denials than grants of new trials for claimed jury error in assessing evidence).
. Unless, perchance, the appropriate standard of review of the ruling — a legal principle — is itself drawn in issue. See United States v. Robinson, 560 F.2d at 518-19 (Oakes, J., dissenting).
. Unless, perchance, a narrow per se rule of abuse of discretion has been applied by the panel and is challenged in the suggestion for rehearing en banc. But see supra note 5.
. Achieving the narrow precedential effect of deterring comparable counsel misconduct by failing to reward that here is in fact given as a specific justification for the en banc decision. In the incorporated panel dissent it is suggested that the “[panel] majority’s opinion [is] an open invitation to outrageous misbehavior by trial lawyers.”
As a colorful means of giving weight to a strongly felt dissenting opinion, this dire prediction is an unexceptionable exercise of the judicial prerogative. But of course it overstates. Countless appellate decisions declining to order new trials for clear counsel misconduct have gone on the books without causing the general ruin this suggests.
Every decision rejecting challenges to marginal ethical conduct or questionable trial tactics of counsel contains some risk of condonation, but cases have to be decided up or down. It would be quite as reasonable now to suggest that the en banc decision necessarily condones trial court sandbagging tactics. Certainly a signal of some sort is given that trial counsel may with impunity raise no objection on trial to opposing counsel’s conduct and take their chances on a favorable verdict, secure in the knowledge that if the verdict is unfavorable this court will nevertheless entertain their belated perception of prejudice (particularly if presented by different appellate counsel), paying no attention to what is probably the clearest on-the-scene indication of the degree of prejudice actually involved. See Arnold v. Eastern Air Lines, 681 F.2d 186, 195, 200 § n. 15 (4th Cir.1982) (Arnold I), superseded, Arnold v. Eastern Air Lines, 712 F.2d 899 (4th Cir.1983) (en banc).
. In its written brief Eastern apparently, though imprecisely, contended both that the damage awards were excessive per se, and that counsel misconduct had improperly inflated them, whether or not they were excessive per se. The panel opinion considered and rejected both arguments. See Arnold I, 681 F.2d at 200-04. During oral argument on the rehearing en banc, Eastern’s counsel confined argument to counsel misconduct as an impermissibly inflating factor, correctly pointing out in response to a question from the bench that it was not necessary to prove an award “outrageous” in amount under the test of Grunenthal v. Long Island R.R., 393 U.S. 156, 89 S.Ct. 331, 21 L.Ed.2d 309 (1968), to show that it was improperly inflated by counsel’s misconduct. This implicit concession that excessiveness per se is not now challenged is apparently reflected as well in the en banc court’s opinion which is essentially confined to identifying counsel misconduct as the sole basis for setting aside the verdicts.
. The en banc court’s decision rejecting the conclusion drawn by the panel majority from the latter’s detailed review cannot fairly be taken as, by implication, a comparable review that simply has led to a contrary conclusion. The gist of the en banc court’s basis for decision is fairly found in the panel dissent, which in fact is said largely to contain the en banc decision’s rationale. Arnold v. Eastern Air Lines, 712 F.2d 899, 905 (4th Cir.1983) (en banc). The unmistakable impression from the panel dissent is that misconduct so egregious is so necessarily prejudicial that this ends the matter and makes detailed review to assess the probability of actual prejudice unnecessary.
The nearest that the en banc majority comes to identifying specifically prejudicial trial court error is in the incorporated panel dissent’s conclusion that the trial judge’s handling of the case caused him to “lose control of the situation.” Arnold I, 681 F.2d at 211 (Mumaghan, J., dissenting). This conclusion is rested in turn on the stated perception that when the trial judge announced before trial an intention that there should be but “ ‘one more trial on all the fact issues in these cases,’ ” this signalled to plaintiffs’ counsel that under no circumstances would the judge declare a mistrial. Id. at 211 & n. 3. From this it is said, counsel were encouraged to engage in outrageous behavior, and the judge, locked in by his pre-trial announcement, was made impotent to control it by the ultimate sanction. Id. at 211.
With all respect, this analysis simply will not bear record scrutiny in any of its critical ele*920ments, starting with the critical meaning ascribed to the “one trial” announcement. Of course the judge was not by this committing himself against mistrial for whatever cause; his meaning was completely different and could not have been interpreted in the critical way the panel dissent has done in retrospective assessment. The whole record in fact belies the serious indictment that — whatever may have transpired — this experienced trial judge ever “lost control” of the case in the way now thought by the majority to require a new trial.
. Arnold I, 681 F.2d at 195.
. The exact number is not clear, but the total is infinitesimal in relation to the instances massed for appellate review. Most significantly, no objection was made at trial to either of the most obvious technical improprieties: the Golden Rule allusion in opening statement and the appeal for sympathy in closing argument. No motion for mistrial was made before the conclusion of jury argument. A motion for mistrial was made following jury argument, but it was confined to the effect of the “no-settlement-offer” argument, which was then made the subject of a strong curative instruction and other corrective measures. Of the numerous instances of improper jury argument relied upon by Eastern and the en banc majority, none was made the subject of contemporaneous objection by trial counsel. Perhaps significantly, however, three objections that were made by trial counsel are not specifically brought forward by appellate counsel.
. Because, in the absence of a determination that actual prejudice to a party probably resulted, this casts appellate courts in a professional conduct monitoring role for which, as earlier indicated, they simply are not equipped — either in fact-finding capability or in the limited range of sanctions available in appellate review of particular cases.
. Though Aetna is not before us on this rehearing en banc, the en banc majority, apparently recognizing the irony of the situation, has oddly resurrected, at the end of its opinion, that party’s rejected appellate claim just long enough to declare summarily that, in contrast to Eastern’s, it has no merit. Arnold v. Eastern Air Lines, 712 F.2d 899, 907 (4th Cir.1983) (en banc). The suggestion is made that the revelation of insurance coverage could only have prejudiced Eastern. But that is not the prejudice claimed by Aetna. See Arnold I, 681 F.2d at 192.
. The crack is probably visible in the different views taken by the panel dissent and the en banc majority on the independent significance of the trial judge’s consolidation ruling. The panel dissent thought that no prejudice to either Eastern or Aetna could be assigned independently to that ruling. The decision to rehear Eastern’s appeal en banc and the contemporaneous decision not to rehear Aetna’s presumably reflected that viewpoint. But that viewpoint has now been rejected by the en banc majority — too late to benefit Aetna.