concurring and dissenting:
The jury in this case was instructed by the district court that the jury is permitted to award punitive damages to punish and to deter when defendant’s conduct is “maliciously or wantonly or oppressively done.” J.A. 400. As to the amount, the complete instruction directed: “you may add to the award of actual damages such amount as you shall unanimously agree to be proper as punitive or exemplary damages.” Id. (emphasis added). No guidance as to the amount was provided. As is standard in instructing a jury, the jury was admonished that when deliberating it must fix the amount “with calm discretion and sound reason” and never out of “sympathy or bias or prejudice.” J.A. 402. The jury awarded $175,000 in punitive damages.
Without any standard given to the jury to guide it in fixing the amount of punitive damages, the trial judge could not conclude that the jury was wrong in making the award. If the trial judge felt that the award was an improper one, the only reason could be that his judgment about the award was different from that of the jury. Yet, when the award of punitive damages is committed to the jury, as it unquestionably is, see Defender Indus., Inc. v. Northwestern Mut. Life Ins. Co., 938 F.2d 502, 505 (4th Cir.1991) (en banc), a judge may not substitute his judgment for that of the jury. Accordingly, the district judge in this case had no basis on which to review the punitive damages award, and the award was left standing as the subjective will of the jury.
The scheme for awarding punitive damages in this case (which includes the instructions to the jury and the post-verdict review by the court) amounted to a direction to the jury to award what it thought was “proper,” without any standard by which to make the determination. Any award thus made, regardless of the amount, denied the defendant due process in violation of the Fifth Amendment. See Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir.1991) (South Carolina scheme leaving broad discretion to jury in awarding punitive damages denied defendant due process).
The majority opinion apparently agrees that the instructions given in this case, which faithfully followed Virginia law, and the review by the court under traditional Rule 59 jurisprudence constitute a scheme that falls afoul of the Fifth Amendment. It concludes, at page 1351, supra:
[W]e are therefore left inevitably to conclude that in order to comport with the due process requirements of the Fifth Amendment, post-trial and appellate review of punitive damage awards in the federal courts of the Fourth Circuit, based upon state statutes, can no longer be conducted under the “excessiveness” standard [of Shamblin’s Ready Mix, Inc. v. Eaton Corp., 873 F.2d 736 (4th Cir.1989) and Spell v. McDaniel, 824 F.2d 1380 (4th Cir.1987)] but must instead proceed under standards similar to those *1354enunciated by the Alabama courts in Hammond, Green Oil, and Central Alabama [as referred to by the Supreme Court in Pacific Mut. Life Ins. Co. v. Haslip, — U.S. -, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991)].
To cure the problem, however, the majority discards the existing Rule 59 jurisprudence and adopts “new review procedures” as used in Alabama to be used hereafter by federal courts in this Circuit, even while recognizing that the Alabama post-verdict review process is a de novo process that anticipates the court’s consideration of facts and matters not before the jury. That sweeping act disposes of two hundred years of jurisprudence in the federal courts for reviewing jury verdicts, see Mattison, 947 F.2d at 110-112, and directly conflicts with our recent en banc decision in Defender Indus., 938 F.2d at 505 (holding that a jury assessment of the amount of punitive damages “is an inherent and fundamental right” guaranteed by the Seventh Amendment). More importantly, the “new review procedures” that are advanced by the majority opinion violate the express limitations of the Seventh Amendment which must apply to every federal district court sitting in a diversity case. The Seventh Amendment demands that “no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” U.S. Const, amend. VII. And the common law incorporated into the Seventh Amendment does not permit a court to substitute its judgment for that of a jury in weighing the facts. Mattison, 947 F.2d at 111. Moreover, it does not permit, as Alabama apparently allows, a judge to consider facts and other matters not before the jury when reviewing a matter committed to the jury. Id.
For reasons that we develop more fully in Mattison, I would find that the law that was applied in this case for awarding punitive damages denied the defendant due process in violation of the Fifth Amendment, and therefore cannot stand.
I respectfully dissent from the majority opinion insofar as it affirms the award of punitive damages and concur with the remainder.