dissenting.
The proper functioning of our judicial system requires that we recognize consistently the appropriate relationship between our court and the district courts whose judgments we are required to review. If I had been the district judge, I might have reached, on this record, the conclusion reached by my brothers today. However, as an appellate judge, I cannot say that the district court committed reversible error when it determined that, despite the stipulation and the pretrial order, the wilfullness of the violation was tried by consent of the parties after the defendants had obtained new counsel. Luria Bros. & Co. v. Alliance Assur. Co., 780 F.2d 1082, 1089 (2d Cir.1986); Miller v. Safeco Title Ins. Co., 758 F.2d 364, 368 (9th Cir.1985). Nor am I willing to substitute my own judgment for that of the trial judge on crucial matters of credibility — especially where those credibility determinations are so explicitly detailed. See Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985). Accordingly, I would affirm the judgment of the district court.