dissenting:
Today, the court commits two fundamental errors. In the first appellate decision interpreting and applying the Virginia statute, the court allows liability to be vicariously imposed on a business because of its proprietor’s status as a racist without proving the plainly required elements necessary for liability under the statute. Liability under the statute is not imposed for being a racist, but rather for subjecting others to “acts of (i) intimidation or harassment ... motivated by racial ... animosity.” Second, the court, without cause, overturns *1433the at least two-centuries old common law method of awarding punitive damages, as properly applied in Virginia. In its stead, the court substitutes a methodology which requires application of a different punitive damages law in Virginia federal district courts than that applied in Virginia state courts in contravention of Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). I, therefore, respectfully dissent.
On appeal, Hugo’s raises four issues, which are addressed in turn: (1) Was there sufficient evidence to find Hugo’s liable for racially motivated harassment or intimidation under Va.Code § 8.01-42.1? (2) Did the district court err in admitting into evidence an 11-year old consent decree between the Justice Department and Hugo’s concerning public access for all persons regardless of race? (3) Did the district court err in not granting a new trial because the damages awarded against Hugo’s were excessive? and (4) Did the award of punitive damages violate due process?
I
Hugo’s argues on appeal that the jury’s verdict against it on the racial harassment claim, Va.Code Ann. § 8.01-42.1(A), the only claim upon which plaintiff prevailed against it,1 is not supported by substantial evidence and should be overturned. I agree. The majority acknowledges that the liability question is “close.” Maj. op. at 1412. While our review on this issue is narrow, Foster v. Tandy Corp., 828 F.2d 1052, 1055 (4th Cir.1987), we may reverse the jury’s verdict where there is, in fact, only a “scintilla of evidence” in support of the decision. Austin v. Torrington Co., 810 F.2d 416, 420 (4th Cir.1987), cert. denied, 484 U.S. 977, 108 S.Ct. 489, 98 L.Ed.2d 487 (1987). Such is the situation in this case.
The Virginia statute under which Hugo’s was found liable to plaintiff states in relevant part:
Civil action for racial, religious, or ethnic harassment, violence, or vandalism. — A. An action for injunctive relief or civil damages, or both, shall lie for any person who is subjected to acts of (i) intimidation or harassment or (ii) violence directed against his person; or (iii) vandalism directed against his real or personal property, where such acts are motivated by racial, religious, or ethnic animosity.
B. Any aggrieved party who initiates and prevails in an action authorized by this section shall be entitled to damages, including punitive damages....
Va.Code Ann. § 8.01-42.1 (Michie 1991 Supp.) (emphasis added). The statute, by its express terms, contains two necessary elements of proof as applied in this case. Johnson bore the burden of proving that Hugo’s (1) committed acts of intimidation or harassment; and (2) such acts were motivated by racism. Johnson proved neither.
A
First, addressing the second element, racial motivation, there is more than substantial evidence that Edith Stribling, one of the owners of Hugo’s, is racist in her personal views.2 As noted by the majority, there was testimony given by a former employee of Hugo’s indicating Stribling’s personal bias against blacks. There was also testimony concerning racial epithets about blacks employed by Stribling in discussions with the office staff at Hugo’s on occasions other than the one at issue in this *1434case. Finally, the district court admitted evidence of Hugo’s non-compliance with a 1979 consent decree, discussed more fully in Part II, infra, for the purpose of demonstrating racial motive.
The testimony was equally clear, however, and much, if not all, was provided by plaintiff and plaintiffs own witnesses, that whatever Stribling’s private attitudes were with respect to blacks, there was no occasion to which any witness could testify where any person had ever been denied admission to the rink because of race or where the rules of the rink had ever been applied in a racially discriminatory manner. See, e.g., Joint Appendix (J.A.), p. 147 (testimony of plaintiff); 195 (testimony of Steele); 227 (testimony of Lane); 317-18, 326 (testimony of S. Crawford); 332 (testimony of C. Crawford). Far from demonstrating any sinister intent as set forth by the majority, Maj. op. at 1412-1413, there was also undisputed documentation in the form of ejection slips for rules violations which showed that both white and black patrons had been ejected for violating the rules. The uncontradicted testimony showed that Stribling had called the sheriff’s department on a number of prior occasions to expel both white and black patrons. Sharon Crawford, a witness for the plaintiff, and a former employee of Hugo’s Who had been fired, noted that none of these ejections were racially motivated:
Q. You’ve seen the Striblings eject white patrons and call the sheriff on white patrons, haven’t you?
A. Yes.
Q. You’ve seen the Striblings call the sheriff and eject black patrons too, haven’t you?
A. Yes.
Q. Weren’t the reasons for their behavior rather than for their race?
A. Yes. But I know the things that were said.
Q. But the answer is yes, isn’t it?
A. Yes.
J.A. 317-18. The most compelling testimony on this point was provided by this witness who stated, “I have seen them [blacks] treated like the whites in there to their face. But I know what they [the management] say behind their backs.” J.A. 326. The evidence is clear that whatever Stribling may have said or believed about blacks, and the evidence is clear that her statements were vulgar and her attitudes racist, Hugo’s served all and ejected patrons without regard to race.
The only evidence even remotely suggesting that Johnson received disparate treatment from Hugo’s concerns warnings given before the police were called. There was testimony that Hugo’s normally gave two to three personal verbal warnings to patrons prior to ejecting them. J.A. 45, 218-19, 329. The only personal warning Johnson received was the conversation with assistant manager Wright. Nonetheless, either one or two generalized announcements/warnings were given over the public address system prior to the meeting with Wright. Johnson testified that he and his companions understood that the announcements were directed at them even though the specific content of the warnings was obscured by the loud music in the rink. J.A. 205. The majority notes that Stribling made no personal effort to leave the office and go into the noisy skating area to speak with plaintiff. There was no evidence that she ever left the office to personally warn a patron, white or black, prior to calling the police to handle a problem involving that patron. The evidence indicates that all warnings respecting skating were delivered through the floor guards and their supervisor. This evidence is simply too slim a reed upon which to impose liability under the Virginia statute and amounts to no more than the inadequate “scintilla of evidence” that cannot sustain the jury’s verdict.
Johnson produced no evidence tending to show that Stribling’s status as a racist in any way caused her, and vicariously Hugo’s, to treat blacks differently in their use and enjoyment of the skating rink. The Virginia statute does not reprobate a deplorable state of mind, but rather liability is imposed for racially motivated acts. No person testified that any employee of Hugo’s ever directed a racial epithet at plaintiff or referred to plaintiff in a racially *1435derogatory manner on the night he was attacked by the police officer. There is no direct evidence that Stribling’s racist beliefs motivated her to take action against the plaintiff. To conclude that the acts of Hugo’s toward Johnson were racially motivated required the jury to draw an inference from circumstantial evidence that Striding acted out of her racist attitudes. Where, as here, all of the evidence adduced by plaintiff and defendant showed that Hugo’s, despite its owner’s racism, treated blacks and whites equally with respect to admission and enforcement of the rules, such inference is forced, not reasonable. Without condoning or excusing Stribling’s racist attitudes, allowing the judgment to stand on these facts transforms Va.Code Ann. § 8.01-42.1 from a statute providing redress for racially motivated actions to a remedy against people of a certain status— namely, racists — regardless of how they act.
B
In addition to racial motivation, Johnson also had the burden of proving Hugo’s actions against him constituted harassment or intimidation under the terms of the statute. In the instructions to the jury, the court defined harassment and intimidation as follows:
[IJntimidation means to make a person timid or fearful, to frighten into submission or obedience.
Harassment is vexing, troubling or annoying a person continually or chronically-
J.A. 395. These instructions are sound and accord with the plain meaning of those terms. Mallard v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296, 301, 109 S.Ct. 1814, 1818, 104 L.Ed.2d 318 (1989) (common dictionary definition accorded statutory term). None of the actions taken by Hugo’s toward plaintiff satisfy these definitions.
Hugo’s first contact with plaintiff was when he entered the rink and paid his admission. Johnson was freely admitted with his white companions and there is absolutely no evidence that any racial slurs or other derogatory comments were directed at Johnson or his group. Johnson had been to Hugo’s on several prior occasions and on each he was always freely admitted. On those prior occasions, Johnson had seen other black patrons frequenting Hugo’s. On this particular night there were, by happenstance, no other black patrons. Despite the majority’s implication to the contrary, no sinister inference can be properly drawn from the absence of other black patrons on the evening in question. The testimony of Sharon Crawford indicated that the number of black patrons on Saturday nights when she worked could vary from twenty-five to fifty out of 250 to 400 total patrons and that the number of blacks frequenting Hugo’s was increasing during her last year of employment. Johnson testified that there were usually two or three black patrons in attendance on the other Friday nights he had skated at Hugo’s.
Johnson skated on the floor and patronized the refreshment stand for two to three hours without incident. Johnson skated with a black employee of Hugo’s, Clarence Lane. All of this was perfectly consistent with Johnson’s treatment on several previous visits to Hugo’s.
On approximately two occasions during the evening, general warnings to slow down and move out of the center of the rink were given over the public address system. The warnings were virtually unintelligible because of the loud music in the rink, but Johnson and his companions testified that they generally understood that the warnings were directed at them and they responded accordingly.
There are only two “acts” by Hugo’s which could support a finding of harassment or intimidation: (1) assistant manager Wright’s meeting with Johnson at the side of the rink to request that Johnson “come to the back room” to discuss his skating, and (2) Stribling’s call to the police to send an officer to speak with Johnson when he refused to heed Wright’s request.
As to the incident with Wright, the testimony indicated that Wright motioned plaintiff to the side of the rink and asked him to come to a “back room” to discuss some *1436aspect of his skating.3 Wright’s request was neither loud nor abusive. Plaintiffs testimony as to what was said and what was heard during the encounter was not entirely clear or consistent. Generally, he stated that the loudness of the music prevented him from clearly understanding what Wright said. Johnson testified that he understood that Wright’s request had some connection with his skating. Plaintiff did not follow Wright to the “back room”, but ignored his request, returned to skating, and told one of his companions that the meeting had something to do with his skating, but that it was no big deal. See generally J.A. 106, 153-54, 156-57 (testimony of Johnson); 187-88 (testimony of Steele); 206 (testimony of Bowen); 380 (testimony of Wright).
Plaintiff testified to a subjective feeling of intimidation arising from Wright’s request to come to a “back room.” From an objective standpoint, however, the evidence in no way demonstrates intimidation as correctly defined in the district court’s instructions. First, plaintiff simply skated away from Wright, an elderly white man, after the conversation and told a friend it was nothing. This is hardly evidence of being frightened into submission as the court’s definition of intimidation required. Second, plaintiff, on a prior visit to Hugo’s, had been directed by Wright to a “back room” to obtain appropriate equipment (toe plugs) so that he could continue to skate at Hugo’s.4 This is hardly the kind of service one would expect from an establishment allegedly looking for excuses to exclude black patrons. On that occasion, Johnson found the equipment he needed without incident. This defuses any sinister inference from such request. There is simply nothing, except Johnson’s self-serving subjective statement, that would indicate that Wright’s conversation with plaintiff was in any way intimidating. Allowing a subjective claim of “feeling intimidated,” unsupported by any objective indicia of intimidation, to satisfy the proof requirements under the statute renders the statute a fertile tool for false claims in this sensitive area.
The encounter with Wright also cannot qualify as harassment as properly defined by the district court. The encounter was brief and polite. There was no harangue or wild gesturing. There was nothing continual or chronic about Wright’s actions as required to show harassment. Plaintiff himself stated to his companion immediately after the incident that it was nothing to be concerned about.
The only other “act” directed at plaintiff by Hugo’s, which might constitute harassment or intimidation, is Stribling’s phone call to the police requesting that an officer be sent to the rink to speak to plaintiff who had refused to accompany Wright off the skating floor to discuss his skating. For the phoning of the police to constitute harassment, it too, must be part of a chronic or continuous pattern of improper behavior toward plaintiff.
To satisfy this requirement, Wright’s meeting with plaintiff must be taken in conjunction with the phone call, for the single phone call, standing alone, could be neither “chronic” nor “continual”. For Wright’s meeting and the phone call to be improper, the jury must conclude that there was absolutely no reason for the management of Hugo’s to speak to Johnson. The evidence cannot support such an inference.
Johnson himself testified that he had engaged in “weaving” among the skaters because he was moving at a faster speed than others and sought to avoid slower skaters. J.A. 159-60. There was also testimony by Charles Crawford, one of plaintiff’s witnesses, that “reckless weaving in or out” was prohibited by the posted rules of Hugo’s. J.A. 335. The majority itself cites to testimony regarding Johnson and some other individual racing to the middle of the rink, joining hands, and spinning in circles, an activity which plaintiff’s own witness *1437affirmed was dangerous.5 J.A. 229. Johnson testified that Wright attempted to discuss the manner in which he was skating when he motioned plaintiff to the side of the rink. The testimony at trial was undisputed that Hugo’s strictly enforced, indeed overzealously enforced, the rules of the rink. It was equally undisputed, however, that such enforcement was carried out without regard to race.
Taking the evidence as a whole, a reasonable jury could conclude that Johnson’s skating that night was not, in fact, endangering the safety of other patrons. To conclude, however, that Wright had absolutely no reason whatsoever to approach the plaintiff, speak to him, and ask him to come to a back room to discuss his skating where the music would not drown out the conversation is not reasonable. To the extent Wright’s meeting with plaintiff had a reasonable basis and plaintiff refused to comply, the subsequent phone call cannot be considered harassment.
The same reasoning applies with respect to intimidation. Even a properly conducted encounter with a police officer can be intimidating, i.e., a person would tend to yield to the officer’s request. Here, the officer was summoned to compel compliance with Wright’s request of plaintiff to leave the skating floor and discuss his skating in another location.6 To the extent there was some basis for the request to plaintiff, the “intimidation” of summoning an officer was justified, otherwise, the simple summoning of a police officer where one party is black and another white could lead to liability under the statute even where the call was justified on some basis other than race.
The majority notes that the police officer involved in this case, Wines, had previously worked for Hugo’s. This fact means nothing, however, because, as the district court concluded, there was absolutely no evidence showing that Hugo’s had (1) requested Wines be sent when the police were phoned, (2) directed Wines to arrest plaintiff, or (3) instructed Wines to brutalize the plaintiff. The evidence shows that it was mere happenstance that Wines responded to the call that evening.
In short, the evidence in this case is wholly insufficient to satisfy the requirements of liability under the statute. There is, at best, a mere “scintilla of evidence” showing any causal connection between Stribling’s racist attitudes and the acts taken with respect to Johnson. In addition, the two acts taken by Hugo’s do not meet the defined requirements for liability. Judgment as a matter of law should have been entered for Hugo’s. Fed.R.Civ.Proc. 50.
C
The jury’s verdict against Hugo’s should also be reversed because it is unreasonable and a miscarriage of justice when compared with the verdict rendered against Wines. As stated supra, note 1, Hugo’s was found liable only under count III, the racial intimidation statute. All other counts, which depended on joint action between Wines and Hugo’s, were dismissed by directed verdict. There was no evidence of any concerted activity. As the majority correctly notes, the conduct of Wines must *1438be isolated from the conduct of Hugo’s when assessing the liability of Hugo’s.
The only proper evidence of racial motivation by Hugo’s was racial epithets employed by Stribling on other occasions. As previously noted, the statute does not reprobate a deplorable state of mind, but rather deplorable acts. There was no direct evidence linking Stribling’s racist views to the actions taken against Johnson. As to Wines, the evidence was quite to the contrary. The evidence showed that Wines, who brutally beat the plaintiff and had him imprisoned overnight, employed racial epithets, such as “stupid nigger,” against the plaintiff and used profanity at the very time he was brutalizing the plaintiff. J.A. 114, 119, 137, 140-41. No one can seriously dispute that Wines’ actions were intimidating or harassing.
Incredibly, the jury did not find Wines liable under the same statute. Other than the direct or indirect nature of the epithets employed, the only difference in the evidence of racial animus on the part of Hugo’s and Wines was the consent decree used against Hugo’s. As discussed under Part II, infra, it is all the more likely that the jury misused the consent decree and is punishing Hugo’s for violation of that decree or for Wines’ conduct.
II
Hugo’s also objected to the admission into evidence of the decade-old consent decree between it and the United States Department of Justice. The decree required Hugo’s to post certain notices on the premises stating that the facility was open to all without regard to race. The decree also required Hugo’s to specifically instruct employees that equal access, regardless of race, was required. The decree was not an admission that Hugo’s had ever, in fact, discriminated in admissions on the basis of race. The evidence was substantial that Hugo's had not posted the notices or so instructed its employees in violation of the decree. The evidence was also unrefuted, however, that Hugo’s was open to and served all persons, regardless of race, and that the employees understood this obligation. Though not complying with the form of the decree, Hugo’s, at least on the evidence before the district court, was complying with the goal and purpose of the decree.
Hugo’s initially argued that the decree should be excluded under Fed.R.Evid. 408, which generally excludes evidence of settlements and settlement negotiations to prove “liability for or invalidity of the claim or its amount.” Id. The decree clearly could not be offered to show that Hugo’s had discriminated against blacks in the past. Rule 408 does allow admission for other purposes “such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.”
The district court admitted evidence of non-compliance with the decree for the limited purpose of demonstrating Hugo’s racial motivation on the evening Johnson was attacked by Wines. The district court instructed the jury to that effect. As noted by the majority opinion, the decision to admit this type of evidence is committed to the sound discretion of the district court. United States v. Heyward, 729 F.2d 297, 310 n. 2 (4th Cir.1984). It is also true that we should generally follow the presumption that the jury obeyed the limiting instructions of the court. Yates v. Evatt, — U.S. -, -, 111 S.Ct. 1884, 1893, 114 L.Ed.2d 432 (1991). This is one of those “extraordinary” situations, Heyward, 729 F.2d at 310 n. 2, where deference should not be given.
As to the admission of the decree, the only real question is whether the prejudicial effect outweighed the probative value of the decree with regard to motive, such that it was an abuse of discretion to admit the decree, even with a limiting instruction. Fed.R.Evid. 403. The probative value as to the issue of motivation was slight. Though the testimony was clear that Hugo’s had not followed the technical requirements of the decree by posting notices and instructing employees on equal access regardless of race, the evidence was equally clear that Hugo’s had never denied admission to any person on the basis of race; therefore, the *1439goal of the decree was fully satisfied. Where, as here, Hugo’s failed in technical compliance, but nonetheless conformed to the substance of the settlement, no inference can be reasonably drawn that Hugo’s was more likely than not to act from racial motives to the detriment of black patrons as alleged in this particular case.
The potential abuse of the decree is readily apparent. This was neither a public accommodations case nor a contempt proceeding on the consent decree. Regardless of the instruction, the jury could easily have considered the decree as an admission that Hugo’s had discriminated in the past and, therefore, most probably did so on the occasion at issue in this case. At the very least, the jury may have felt compelled to punish non-compliance with the decree’s specific terms, a matter established by the evidence although not an issue properly redressable in this case. The ease with which the decree is misused is readily demonstrated.
First, plaintiff, in his supplemental brief, constantly refers to a violation of the decree, not for the purpose of showing animus, but for the purpose of arguing that Hugo’s failure to comply with the decree should be punished by the jury; therefore, the $175,000 punitive damages award was justified. See Plaintiff’s Supplemental Br. at 30-31. Since this is not a contempt hearing with respect to the consent decree, all such argumentation is highly improper. The district court’s limiting instruction specifically charged that the decree was to be used for no purpose other than deciding whether or not Hugo’s was motivated by racial animus.
Second, and most compelling, is the manner in which the now-vacated panel opinion addressed the consent decree. As noted, the district court admitted the decree solely for the purpose of determining whether or not Hugo’s possessed the necessary animus to satisfy the statute. The opinion for the panel specifically referenced the decree as proof that Hugo’s had engaged in “blatant racial discrimination resulting in harassment and intimidation” which had “long endured” because the evidence indicated that Hugo’s had not complied with its terms over the entire period of the decree. This “fact” was cited as possible justification for the excessive punitive damages awarded by the jury in this case. See Johnson v. Hugo’s Skateway, 949 F.2d 1338, 1351 (4th Cir.1991), vacated, No. 90-2499 (Order filed January 15, 1992). This use of the consent decree was precisely the type use the limiting instruction was designed to preclude. This was not a contempt proceeding to punish non-compliance with the decree. If this court can so easily confuse this evidence, it is highly probable, indeed likely, given the evidence in the case and the odd disproportionality of the monetary awards, a fact even the majority acknowledges, that the jury misused the evidence in awarding an amount of compensatory and punitive damages.
Because the prejudicial effect of admitting the decree is readily apparent and the probative value is slight, the judgment of the district court should be reversed. If judgment as a matter of law is not entered, Hugo’s should at least receive a new trial excluding the consent decree.
Ill
Hugo’s also challenges the amount awarded by the jury as excessive, therefore, requiring a new trial at least with respect to damages, both compensatory and punitive. As set forth in Part I of this dissent, no liability should be assessed in the first instance; therefore, any damage award is inappropriate. Even if liability were established, however, remand for a new trial as to damages would be appropriate because the amounts awarded by the jury against Hugo’s were “untoward, inordinate, unreasonable [and] outrageous” in light of the evidence presented at the trial. See Spell v. McDaniel, 824 F.2d 1380, 1400 (4th Cir.1987) (citing Grunenthal v. Long Island R.R. Co., 393 U.S. 156, 160, 89 S.Ct. 331, 334, 21 L.Ed.2d 309 (1968)), cert. denied sub nom., City of Fayetteville v. Spell, 484 U.S. 1027, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988).
The jury assessed $25,000 in compensatory and $175,000 in punitive damages *1440against Hugo’s. Wines was assessed $200 in compensatory and $500 in punitive damages.
The district court abused its discretion in not awarding a new trial because the compensatory and punitive damages awarded to the plaintiff against Hugo’s are clearly excessive given Hugo’s culpability. This is apparent for two reasons. First, as previously noted and as the majority acknowledges, the acts of Wines must be completely isolated from those of Hugo’s in determining liability. If Wines had simply come to the rink and merely spoken with the plaintiff about his skating, this case would, in all likelihood, have never been filed. It is utterly preposterous, under those circumstances, to conclude that Johnson would have suffered mental anguish and personal humiliation, the only type of compensatory damages charged with respect to Hugo’s, in the amount of $25,000, by a properly conducted encounter with a policeman or that $175,000 was necessary to punish and deter Hugo’s from overzealously enforcing the rules of the rink.
This conclusion is reinforced when examining the evidentiary foundation for the compensatory damages. The only mental anguish and humiliation to which plaintiff testified was that anguish and humiliation occurring as Wines arrested and brutalized him in front of his companions and other Hugo’s patrons. J.A. 115-16. One would rightfully expect plaintiff to suffer anguish and humiliation as a result of Wines’ acts. As to plaintiff’s encounter with Wright at the side of the skating rink, however, plaintiff’s own testimony was that he simply ignored Wright’s request and told one of his skating companions that the incident was nothing. It seems intuitively wrong that a proper encounter with a police officer or the meeting with Wright would cause 125 times the mental and emotional anguish ($25,000/$200 = 125) caused by an encounter where the policeman slammed plaintiff to the floor in front of his friends and others, placed his knee in plaintiff’s back and choked him so that he foamed at the mouth and could not breathe, cursed at his friends who expressed concern, called him a “stupid nigger” and a “dumb ass,” handcuffed him, and imprisoned him overnight.
One must conclude, from the size of the award, that the jury impermissibly punished Hugo’s on account of one or two things: (1) the actions of Wines in brutalizing plaintiff, or (2) violation of the consent decree, as discussed under Part II, supra. Simply dismissing the disparity in the awards against Hugo’s and Wines on the predilection of the jury for punishing racial harassment as the more heinous wrong is an abandonment of the appellate function. The instructions limited compensatory recovery to mental and emotional anguish. The only evidence of such anguish to which plaintiff testified was that caused by Wines. Common sense and the evidence before the jury indicate that such anguish and distress as plaintiff did experience should be principally, if not totally, attributed to Wines on the facts of this case.
IV
While agreeing with Hugo’s and the majority that the award of punitive damages should be vacated, I do so only for the reasons set forth in Parts I — III, supra, of this dissent and on the basis set forth more fully in this part. I emphatically reject Hugo’s suggestion and the majority’s holding that the Supreme Court’s decision in Pacific Mutual Life Ins. Co. v. Haslip, — U.S. -, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), mandates that we find the Virginia scheme for assessing punitive damages, as applied in this case, violates the due process provision of the Fifth Amendment. I would overrule our decision in Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir.1991), which I believe erroneously elevates the dissent in Haslip to the law of this circuit, and reaffirm the applicability of the common law methodology for imposing punitive damages as applied in Virginia.
The resolution of this issue turns on what requirements, if any, are imposed on awards of punitive damages under state law in federal courts following the Supreme Court’s ruling in Haslip. The dis*1441cussion of this issue is divided into three parts: (A) a discussion of the holding in Haslip, (B) an application of Haslip to the present case, and (C) a review of the majority’s use of Haslip and Mattison in this case.
A
In Haslip, the Supreme Court specifically noted that the Court, on more than one occasion, both before and after enactment of the Fourteenth Amendment, had approved the common law method of assessing punitive damages and had specifically held that such method does not violate the Fourteenth Amendment. Haslip, — U.S. at -, 111 S.Ct. at 1042-43. The court stated, “So far as we have been able to determine, every state and federal court that has considered the question has ruled that the common-law method for assessing punitive damages does not in itself violate due process.” Id. at -, 111 S.Ct. at 1043 (emphasis added). The opinions of Justice Scalia, id. at ---, at 1046-54, and Justice Kennedy, id. at ---, 111 S.Ct. at 1054-56, concurring in the judgment, would have ended the inquiry here. Nonetheless, the majority opinion of five justices (Justice O’Connor dissented and Justice Souter did not participate) proceeded to a case-specific analysis of the Alabama law and procedures at issue in the case.
In concluding that Alabama punitive damages law did not deny due process, the Court first addressed the jury instructions under Alabama law regarding whether punitive damages may be awarded and the amount of such damages. As to whether punitive damages were available, the Alabama instructions stated that willful misconduct, namely fraud, had to be proved as a prerequisite to assessing punitive damages. Id. at - n. 1, 111 S.Ct. at 1037 n. 1. The Court, on the other hand, focused on those portions of the instructions delimiting the amount of an award. The Court noted that the instructions specifically informed the jury of the purposes of punitive damages: punishment and deterrence. Id. at -, 111 S.Ct. at 1044. Examination of the jury instructions shows that in computing the amount, if any, of punitive damages, the jury was specifically to take into account those purposes and the character and degree of the wrongdoing. Id. at - n. 1, 111 S.Ct. at 1037 n. 1. Under Alabama law, consideration of defendant’s wealth was not permitted. Id. at -, 111 S.Ct. at 1044 (citing Southern Life & Health Ins. Co. v. Whitman, 358 So.2d 1025, 1026-27 (Ala.1978)).7
The Court acknowledged that the instructions “gave the jury significant discretion in its determination of punitive damages.” Id. at -, 111 S.Ct. at 1044 (emphasis added). However, the Court held, with regard to the instructions, as follows:
[T]hat discretion was not unlimited. It was confined to deterrence and retribution, the state policy concerns sought to be advanced. And if punitive damages were to be awarded, the jury “must take into consideration the character and the degree of the wrong as shown by the evidence and necessity of preventing similar wrong.” ... The instructions thus enlightened the jury as to the punitive damages’ nature and purpose, identified the damages as punishment for civil wrongdoing of the kind involved, and explained that their imposition was not compulsory.
These instructions, we believe, reasonably accommodated Pacific Mutual’s interest in rational decisionmak-ing and Alabama’s interest in meaningful individualized assessment of appropriate deterrence and retribution. The discretion allowed under Alabama law in determining punitive damages is no greater than that pursued in many familiar areas of the law as, for example,
*1442deciding “the best interests of the child,” or “reasonable care,” or “due diligence,” or appropriate compensation for pain and suffering or mental anguish. As long as the discretion is exercised within reasonable constraints, due process is satisfied.
Id. at -, 111 S.Ct. at 1044 (emphasis added). The court thus held that the Alabama jury instructions, standing alone, were sufficiently specific and restrictive of jury discretion, in determining the amount of punitive damages to be awarded, to satisfy due process concerns.
The Court went on to discuss post-trial procedures employed by Alabama, as a matter of state law, to evaluate punitive damage awards. The Court, quoting Alabama case law, noted that the legal ground for interfering with a jury’s punitive damages award under Alabama law is “exces-siveness.” Id. at -, 111 S.Ct. at 1044 (quoting Hammond v. City of Gadsden, 493 So.2d 1374, 1379 (1986)). The Alabama courts have set forth a number of factors to which the trial and appellate courts of Alabama should look to reach the legal conclusion as to “excessiveness,” including, among other things, the culpability of the defendant, the likely deterrent effect, the effect on the parties, and the impact on non-parties. Haslip, — U.S. at -, 111 S.Ct. at 1044. The Supreme Court approved this methodology as “meaningful and adequate review.” Id. The Court did not and never has ruled that a legal standard of “excessiveness” governing review of punitive damages violates due process.
The Court stated that the type of review of punitive damage awards conducted in Alabama was “an additional check,” not a necessary check, on jury discretion where the jury instructions already constrained that discretion as noted above. Id. at -, 111 S.Ct. at 1045. Haslip does not hold that review incorporating all or some number of the review factors applied in Alabama is required in order for another state’s scheme to satisfy due process. It is also important to note that the Alabama factors are a series of factual determinations, which taken together, lead to a legal conclusion under Alabama law that an award was or was not excessive. Haslip does not establish Alabama law as the paradigm by which all other state or federal punitive damages schemes are to be judged. As Justice Scalia properly notes in his concurrence in the judgment, the Has-lip majority opinion “provides no guidance as to whether any other procedures are sufficiently ‘reasonable.’ ” Id. — U.S. at -, 111 S.Ct. at 1046-47 (emphasis in the original).
B
The jury instructions and the scheme of review provided in this case also satisfy due process as explicated in Haslip.8 Hugo’s admits, as it must, that the district court's instructions correctly and fully stated Virginia law on the subject of punitive damages.9 Hugo’s Supplemental Brief at *144325. The instructions by the district court are more clear and concise, but otherwise indistinguishable from the instructions specifically approved in Haslip as satisfying due process. Hugo’s argument and the majority’s holding that these instructions are “standardless” with respect to the amount of punitive damages are utterly without support in Haslip. The instructions set forth the purpose for awarding an amount of punitive damages (punish defendant and deter defendant and others), set forth an evidentiary standard for concluding that the evidence warrants a punitive damage award (preponderance), set forth the elements that must be found before punitive damages may be awarded (entitlement to actual damages, intentional wrongdoing, unanimity on the issue), define certain terms, and specifically reiterate that the amount of punitive damages, if any, should be based on the conditions and purposes for such damages, should reflect reasoned and sober judgment, and should exclude passion and prejudice. See supra n. 9.
These instructions, standing alone, satisfy due process under the “standard” of Haslip. The instructions do not charge the jury to simply “do what you think best.” Haslip, — U.S. at -, 111 S.Ct. at 1056 (O’Connor dissenting) (quoting Browning-Ferris Industries v. Kelco Disposal, Inc., 492 U.S. 257, 281, 109 S.Ct. 2909, 2928, 106 L.Ed.2d 219 (1989) (Brennan, concurring)). The jury’s discretion is specifically limited by the purposes for which punitive damages are awarded: punishment and deterrence.10 Haslip, — U.S. at -, 111 S.Ct. at 1044. The jury’s discretion in setting the amount of a punitive damage award is indeed broad, just as in Haslip. However, the majority’s claim that the instructions provide no standard for quantitatively assessing punitive damages in this case is simply without support in the record or in Haslip.
Review of the punitive damage award in this case also comports with due process. The review in Haslip was conducted under Alabama law by Alabama state courts. Alabama courts review jury verdicts awarding punitive damages for “excessiveness.” Haslip, — U.S. at -, 111 S.Ct. at 1044 (citing Hammond v. City of Gadsden, 493 So.2d 1374). On motions to set aside the verdict as excessive, trial courts must set forth in the record the specific reasons “for interfering with a jury verdict, or refusing to do so, on grounds of excessiveness of the damages.” Hammond, 493 So.2d at 1379. A number of factors are considered, both by the trial court and the appellate courts, in reaching the conclusion as to “excessiveness,” See Haslip, — U.S. at -, 111 S.Ct. at 1045 (listing factors). Under Alabama law, the trial and appellate courts are apparently permitted to consider evidence not placed *1444before the jury. Cf. Id. at -, 111 S.Ct. at 1044 (evidence of defendant’s wealth excluded) (citing Southern Life, 358 So.2d at 1026-27); Haslip, — U.S. at -, 111 S.Ct. at 1045 (“financial position” of defendant considered on review) (citing, e.g., Central Alabama Electric Cooperative v. Tapley, 546 So.2d 371 (Ala.1989)). Alabama appellate courts appear to conduct a form of de novo review of punitive damage awards.
The review standard employed in this case is not identical to that employed by the Alabama court. Nonetheless, it satisfies due process. As noted by the Supreme Court in Browning-Ferris:
In a diversity action, or in any other lawsuit where state law provides the basis of decision, the propriety of an award of punitive damages for the conduct in question, and the factors the jury may consider in determining their amount, are questions of state law. Federal law, however, will control on those issues involving the proper review of the jury award by a federal district court and court of appeals.
Id. 492 U.S. at 278, 109 S.Ct. at 2922 (footnotes omitted). The scope of federal diversity review of a punitive damage award on a motion for new trial is also set forth:
In reviewing an award of punitive damages, the role of the District Court is to determine whether the jury’s verdict is within the confines set by state law, and to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered. The Court of Appeals should then review the District Court’s determination under an abuse of discretion standard.
Id. at 279, 109 S.Ct. at 2922. On a motion for new trial:
In federal practice, it is the duty of the district judge to set aside an excessive verdict even when such a verdict is supported by substantial evidence “if he is of the opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a miscarriage of justice.”
Johnson v. Parrish, 827 F.2d 988, 991 (4th Cir.1987) (quoting Aetna Casualty & Sur. Co. v. Yeatts, 122 F.2d 350, 352 (1941)).
Where a review of a punitive damage award is instituted through a motion for judgment as a matter of law under Fed. R.Civ.Proc. 50,11 the district court reviews the evidence to see if there is substantial evidence upon which the jury could base its award. Defender Industries v. Northwestern Mutual Life Ins. Co., 938 F.2d 502, 505 (4th Cir.1991).
Hugo’s moved for both a judgment as a matter of law under Rule 50 and a new trial under Rule 59. Hugo’s motion for judgment attacked the sufficiency of the evidence to support any verdict for Johnson, not just the amount of the punitive damages award. Accordingly, the district court was empowered to review the evidence placed before the jury at trial to see if it was legally sufficient, both as to whether an award could be made at all and the amount of an appropriate award. As to amount, the district court’s specific task was to determine if there was substantial evidence to support the amount awarded by the jury as commensurate with the culpability of Hugo’s and whether such award was tailored only to the stated goals of punishing and deterring future wrongful conduct. Defender Industries, 938 F.2d at 505. This determination of whether substantial evidence supports the punitive damages award represents no greater intrusion upon the jury’s fact finding function than a similar assessment of a jury’s determination regarding “reasonable care,” “due diligence,” or “appropriate compensation for pain and suffering or mental anguish”; concepts which also involve the exercise of broad discretion by the jury. See Haslip, — U.S. at -, 111 S.Ct. at 1044. To the extent the reviewing court does not go beyond the evidence in the *1445record, no Seventh Amendment problems arise with this type of review.
As to the motion for new trial, Hugo’s attacked not only whether a factual predicate existed for awarding some amount of damages, but also whether the amount awarded was “excessive.” J.A. 435. “Under traditional procedure, a district court, faced with what it believed to be an excessive damage award by a jury in a diversity case on a common-law cause of action, could set aside the excessive verdict by granting a new trial or a new trial nisi remittitur.” Defender Industries, 938 F.2d at 505. This procedure, conducted under the review standard set forth above for motions for new trial, satisfies due process and Seventh Amendment concerns about right to a jury trial. Id. at 507.
The district court’s resolution of the new trial motion afforded Hugo’s due process. The district court specifically assessed the evidence placed before the jury regarding the culpability of Hugo’s and concluded that the award was commensurate with that culpability. The district court could have made a more definitive statement concerning how the award served the purposes and goals of punishment and deterrence. District courts in the future should be directed to make specific findings on this issue. Failure to make such findings in the record should be treated as an abuse of discretion. By making such findings in the record, review by this court is more meaningful. Cf. Haslip, — U.S. at -, 111 S.Ct. at 1044 (under Alabama law, trial court to state in the record specific reasons for action taken in reviewing a punitive damage award, citing Hammond, 493 So.2d at 1379).
In sum, Hugo’s claim that it was denied due process is without merit. The jury was correctly instructed on common-law punitive damages with instructions indistinguishable from those approved in Haslip. The procedures for reviewing the award are also more than adequate to afford due process. Though Hugo’s was afforded due process, the district court abused its discretion in not awarding a new trial on the issue of punitive damages. The punitive damages awarded against Hugo’s were excessive, as were the compensatory damages as discussed in Part III, given the evidence of Hugo’s culpability; therefore, absent a directed verdict as to liability, the judgment should have been reversed and a new trial ordered with respect to punitive damages. This reversal is predicated on the “excessiveness” of the verdict as determined under Virginia law, not on the notion that Virginia punitive damages law does not provide due process.
C
Nothing in Haslip compels nor counsels the actions taken by the majority today. Rather, the majority’s decision rests squarely upon the interpretation of Haslip set forth in Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir.1991). The majority is faithful to Mattison, which was wrongly decided as set forth below. Mattison should be overruled and the Virginia scheme (but not the amount) of punitive damages in this case should be upheld against Hugo’s due process attack.12
Mattison struck down the South Carolina scheme for assessing punitive damages as applied in federal district court, because “its lack of meaningful standards allowed the jury to exercise unconstrained discretion in making its awards.” Id. at 98. This holding, supposedly grounded in Has-lip, actually contradicts Haslip, and elevates the dissenting opinion of Justice O’Connor in Haslip to the law of the Fourth Circuit.
Mattison utterly ignores the specific holding in Haslip that the common law jury instructions on punitive damages used by Alabama, which confined the amount of punitive damages to those necessary to punish and deter willful conduct commensurate with the culpability of the defendant, sufficiently constrain the discretion of the jury to satisfy due process and that the specific review procedures utilized by *1446Alabama were an additional, but not necessary, check on jury discretion. Haslip, — U.S. at ---, 111 S.Ct. at 1044-45. The majority ignores Haslip again today by declaring the Virginia common law instruction “standardless” when that instruction is, in fact, clearer and more concise than that approved in Haslip.
The discussion of South Carolina standards for setting punitive damages as set forth in Mattison, 947 F.2d at 100-01, shows that the amount of such damages a jury may award is specifically guided by the purposes of punishment and deterrence, the wealth of the defendant, and the seriousness of the defendant’s conduct, standards identical to those found sufficient to satisfy due process in Haslip. South Carolina in fact imposes a higher evidentiary standard, “clear and convincing” evidence, as opposed to a mere preponderance, for awarding and determining appropriate punitive damages. See Mattison, 947 F.2d at 100. Cf. Haslip, — U.S. at - n. 11, 111 S.Ct. at 1046 n. 11. As previously stated, the Virginia instruction in this case, supra n. 9, is more clear and concise and should be upheld as satisfying due process.
In striking down the South Carolina instructions as unconstitutional, Mattison specifically relied on the “vagueness and lack of standards” argument employed by Justice O’Connor in her Haslip dissent. To support this argument, Mattison postulates a hypothetical statute providing that “anyone who wantonly or recklessly breaches an existing duty of law becomes subject to a penalty in an amount that the fact finder wishes to enter” and suggests that such statute would be readily struck down. The hypothetical mischaracterizes both South Carolina and Virginia punitive damages law, however. Both, like the instructions approved in Alabama, restrain the amount awardable to that which achieves the state’s goals of punishment and deterrence commensurate with the culpability of the defendant.
Mattison specifically cites and relies on cases utilized by Justice O’Connor in her Haslip dissent to justify its conclusions, particularly Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966). See Mattison, 947 F.2d at 102; Haslip, — U.S. at -, 111 S.Ct. at 1057 (O’Connor, dissenting). This “void for vagueness” argument was specifically rejected by the Haslip majority. Id., — U.S. at - n. 12, 111 S.Ct. at 1046 n. 12. Because the majority rests its decision against the Virginia instructions on Matti-son, this rejected “void for vagueness” argument is once again being applied as the law of this circuit despite Haslip’s explicit rejection of that approach.
After declaring the South Carolina instructions void for vagueness in direct contradiction of Haslip, Mattison next addresses whether or not the review process under Rules 50 and 59 of the Federal Rules of Civil Procedure “saves” the scheme from violating due process and concludes it does not.13 Mattison holds that an “exces-*1447siveness” review standard is impermissible because “no criteria are provided against which to measure excessiveness.” Id. at 106. This conclusion is plainly erroneous. Because the jury was specifically instructed that their award must be tailored to the goals of punishment and deterrence and must take into account the nature of defendant’s conduct, excessiveness may be measured by how well the jury’s verdict serves these goals and accounts for defendants’ conduct.
Because, as Haslip holds, a common law instruction constraining the amount of a punitive damage award to punishment and deterrence commensurate with the wrongdoing of defendant satisfies due process, the Virginia instruction given in this case also satisfies due process. The majority’s holding to the contrary finds no support in Haslip, except in Justice O’Connor’s dissent. Because the instruction is adequate, Virginia’s “excessiveness” standard of review as applied in the federal courts is also adequate to satisfy due process. There is no need for a different federal jury instruction.
Though Virginia courts never grouped them together in one list, Virginia courts’ review for excessiveness has incorporated many of the same factors applied in Alabama. The majority acknowledges this fact. Maj. op. at 1417-1418. There is simply no reason why a federal district court may not apply these same factors to see if, as a matter of law, the jury’s award is excessive in relation to the purposes of punishment and deterrence and the culpability of the defendant. See Browning-Ferris, 492 U.S. at 278-79, 109 S.Ct. at 2922 (“[T]he role of the District Court is to determine whether the jury’s verdict is within the confines set by state law.”). No Seventh Amendment problem is posed by such review since none of the factors require the court to assess evidence not before the jury. Cf. Haslip, — U.S. at ---, 111 S.Ct. at 1044-45 (evidence of defendant’s wealth excluded from trial, but considered in trial and appellate review of award).14
Following its declaration that South Carolina’s punitive damage scheme was unconstitutional, Mattison, and the majority today with respect to Virginia, proceed to follow a suggestion made in Justice O’Connor’s dissent in Haslip, — U.S. at -, 111 S.Ct. at 1061, and impose a jury instruction on federal district courts which does not comport with the jury instructions used in the Virginia or South Carolina state courts. This “solution” to the “vagueness” of the South Carolina and Virginia schemes violates Erie by creating a federal common law of punitive damages in the South Carolina and Virginia courts distinct from the common law of punitive damages charged in their respective state courts. See Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350, 354 (1991) (retaining common law punitive damages charge in South Carolina state courts post-Haslip).
The full consequences of the majority’s decision cannot be readily forecast. One may expect some forum shopping as parties attempt to ascertain whether the detailed federal instructions or the less detailed state instructions best satisfy their *1448goals. Some might assume that the “vaguer” state instructions will result in a greater award than the supposedly more constraining federal instructions. Conversely, the attention focused on punitive damage awards by the more complex Mat-tison-type instructions may result in greater punitive awards being awarded by juries, undoubtedly not the result which parties defendant, who have argued strenuously for such instructions, expect. District courts must already go to great lengths to tell the jury that the instructions on damages do not necessarily indicate any liability on the part of the defendant. See, e.g., J.A. 402 (District court in this case cautions jury that instructions on damages do not indicate entitlement to a verdict.).
The new federal instructions do not guarantee any greater uniformity of result for the reasons succinctly stated by Justice Kennedy in his concurrence in Haslip: juries are not permanent adjudicatory bodies and do not have the opportunity to “practice” over time. Haslip, — U.S. at -, 111 S.Ct. at 1055 (Kennedy, J., concurring). That the new instructions do not assure greater uniformity is illustrated by the disposition of the Defender Industries case subsequent to our remand. We reversed the district court’s order reducing a jury verdict for punitive damages from five million dollars to $10,000 and entering judgment without retrying the issue before a jury as violating the Seventh Amendment right to a jury trial. Defender Industries, 938 F.2d at 505-07. The case was remanded for a new trial, or new trial nisi remitti-tur on punitive damages. Though originally tried using the South Carolina common law instructions, the punitive damages issue was retried to a new jury by the district court using the instructions mandated for South Carolina district courts by Matti-son. The second jury returned a punitive damages verdict for twenty-five million dollars, five times the original award. See Defender Industries, C/A No. 3:88-3232-17, Judgment entered February 7, 1992 (D.S.C. J. Anderson, Dist. Judge). The district court has subsequently entered another order for a new trial nisi remittitur reducing the punitive damage award to the original amount of five million dollars. Id., Order entered April 29, 1992. No doubt, the matter will find its way back to this court.
The concise common law punitive damage instructions in this case coupled with review by the district court under Virginia’s “excessiveness” standard and the Federal Rules of Civil Procedure satisfy due process requirements. The majority’s conclusion that the instructions are vague contradicts Haslip. The formulation of new instructions, in conformity with the reasoning of the Haslip dissent, creates an unnecessary Erie problem of undetermined impact.
V
In conclusion, a finding of liability on the part of Hugo’s cannot be sustained.15 A directed verdict in Hugo’s favor should have been granted. There is, at best, a mere scintilla of evidence showing any causal relationship between Stribling’s racist attitudes and the actions taken with respect to the plaintiff James Johnson. There is also no proof showing that the “acts” of Hugo’s directed at Johnson constituted harassment or intimidation. Finally, there was no evidence of any damages flowing from the acts of Hugo’s distinct from the damages suffered at the hands of the rogue policeman Wines. Such mental pain and anguish that Johnson testified to was connected with his treatment by Wines and not Hugo’s. In this regard, given the dearth of proof on the necessary elements for imposing statutory liability and the complete absence of distinct evidence as to emotional damage, it is apparent that Hugo’s is being punished for the acts of Wines or for violation of the 1979 consent decree, a matter before the jury only for the limited purpose of showing a racial animus for Hugo’s conduct. The judgment below should be reversed with directions to *1449enter judgment as a matter of law for Hugo’s or for a new trial. Fed.R.Civ.Proc. 50, 59.
We should also uphold the Virginia common law scheme for imposing punitive damages as applied in federal courts. Support for this proposition is by no means an unqualified endorsement of punitive damages. The majority decision today perpetuates the error begun in Mattison by striking down the Virginia common law instructions on due process grounds utilizing the rationale set forth in the Haslip dissent. Following that dissent further, a new federal law of punitive damages is imposed on those using Virginia’s federal district courts that raises Erie problems of unspecified magnitude.16
For the reasons set forth above, therefore, I respectfully dissent. I am authorized to state that Circuit Judge DONALD RUSSELL joins this dissenting opinion.
. As noted by the majority, the following causes of action were asserted against Hugo’s in the complaint: Count I, Deprivation of Civil Rights based on 42 U.S.C. § 1983; Count III, False Arrest and False Imprisonment; and Count IV, the statutory racial harassment claim. Each of these counts and an additional assault and battery count were alleged against Wines, the policeman who brutalized the plaintiff. The district court directed a verdict as to all counts except the harassment count with respect to Hugo’s. Wines was tried on all counts and was found liable on each, except the racial harassment count.
. Hugo Stribling, the husband of Edith Stri-bling, also has an ownership interest in the skating rink. The evidence in this case primarily concerns the attitudes of Mrs. Stribling, because she is the individual who called the police.
. Wright testified that he asked plaintiff to come to the office to discuss his skating.
. This “back room” was apparently a storage room connected with the area where skates were rented to patrons who needed skates. J.A. 144, 146.
. The majority mixes together two apparently distinct events. The testimony indicated that Johnson attempted to teach Marcia Bowen how to "spin” in the center of the rink. Johnson was behind Bowen. While skating slowly, Bowen stumbled and fell on Johnson. J.A. 160, 205. Clarence Lane, apparently describing another event, testified that Johnson and some other unidentified individual or individuals were rushing to the middle of the rink from opposite directions, clasping hands, and spinning in circles. J.A. 229.
. The majority’s statement that Wines arrived at the rink and Stribling "instructed that Johnson be removed,” Maj. op. at 1413, is not supported by the evidence. Stribling and Wines testified that Wines was only instructed to ask Johnson to come to the office as Wright had requested. This is corroborated by Johnson who testified that Wines first requested that he come to "the back room.” J.A. Ill, 165. The district court specifically found that there was no agreement between Hugo’s and Wines that plaintiff would be arrested, imprisoned, or beaten. Whether Johnson would have been expelled or simply warned at the office meeting is a matter of conjecture.
. The majority is, therefore, plainly wrong when it characterizes Haslip’s discussion of the jury instructions as only addressing whether the instructions were adequate to determine "whether" punitive damages should be awarded. Maj. op. at 1415, n. 5. The Court's holding in fact gave little or no discussion of "whether” punitive damages were available at all, but instead focused on the "determination” and "meaningful individualized assessment" of damages. Haslip, — U.S. at -, 111 S.Ct. at 1044.
. I emphasize once again that this does not signify my assent to the particular award in this case. No award is justified on these facts, or, to the extent liability is established, the punitive damage award is manifestly excessive given the culpability of Hugo’s and the sparseness of the evidentiary foundation for imposing liability.
. The punitive damage instructions given by the district court state in relevant part:
Now, in addition to actual damages, the law permits the jury under certain circumstances to award the injured person punitive and exemplary damages in order to punish the wrongdoer for some extraordinary conduct and to serve as an example and warning to others not to engage in such conduct.
If you find from a preponderance of the evidence in the case that plaintiff is entitled to a verdict for actual or compensatory damages and you further find that the act or omission of a defendant which proximately caused actual injury or damage to the plaintiff was maliciously or wantonly or oppressively done, then you may add to the award of actual damages such amount as you shall unanimously agree to be proper as punitive or exemplary damages.
.... [Definitions of malicious, wanton, and oppressive acts]
Whether or not to make any award of punitive and exemplary damages in addition to actual damages is a matter within the province of the jury if you unanimously find from a preponderance of the evidence in the case that the defendant’s act or omission which proximately caused actual damage to the *1443plaintiff was maliciously or wantonly or oppressively done.
But you should always bear in mind that such extraordinary damages may be allowed only if you should first unanimously award plaintiff a verdict for actual or compensatory damages.
You should also bear in mind not only the conditions under which and the purposes for which the law permits an award of punitive and exemplary damages to be made but also the requirement of the law that the amount of such extraordinary damages, when awarded, must be fixed with calm discretion and sound reason and must never be awarded or fixed in amount because of any sympathy or bias or prejudice with respect to any party to the case.
J.A. 400-02.
. Significantly, this limitation is no different from the standard imposed upon district court judges when determining the amount of sanctions to be awarded in a Rule 11 proceeding. Cf. In re Kunstler, 914 F.2d 505, 522 (4th Cir.1990) cert. denied, — U.S. -, 111 S.Ct. 1607, 113 L.Ed.2d 669 (1991); Miltier v. Downes, 935 F.2d 660, 665 (4th Cir.1991) (sanction amount should only be minimum amount necessary to deter future wrongdoing). This court in Kun-stler specifically analogized sanctions awards to punitive damage awards. Id. at 524. A standard suitable to limit the discretion of a federal judge in making an award is equally suitable for a jury. It is true that judges’ awards may tend to be more uniform because they have the opportunity to "practice” over time. Cf. Haslip, — U.S. at -, 111 S.Ct. at 1055 (Kennedy, concurring in the judgment) (disparate punitive awards by juries on similar facts may be expected because they are not permanent bodies, but are empaneled for one case only; nonetheless nonuniformity does not equate with unconstitutionality).
. At the time of trial, this motion was designated a motion for judgment notwithstanding the verdict (j.n.o.v.). The designation was changed to judgment as a matter of law effective December 1, 1991.
. Mattison was settled by the parties following the panel disposition and was not subject, therefore, to possible further review by this court or the Supreme Court.
. The majority and Mattison interpret Haslip such that the Alabama-type review was a necessary check, not an additional check on jury discretion. This conclusion is apparently based on footnote 10 in Haslip. In that footnote, the Haslip majority, without elaboration, notes that the Alabama review process appears to be more stringent than the process employed in Vermont and Mississippi, systems about which “Justices expressed concern” in previous cases. Haslip, — U.S. at - n. 10, 111 S.Ct. at 1045 n. 10. Mattison, and by inference the majority in this case, reason that the South Carolina and Virginia schemes are more like the Vermont and Mississippi schemes than Alabama’s; therefore, they must violate due process. Mattison, 947 F.2d at 105; Maj. op. at 1415-1416.
This interpretation lacks merit for two reasons. First, the Vermont and Mississippi schemes have never been declared unconstitutional as violating due process by any court. To the contrary, the Fifth Circuit in Eichenseer v. Reserve Life Ins. Co., 934 F.2d 1377 (5th Cir.1991), rejected just such an attack on the Mississippi scheme after Haslip.
Second, the Justices who expressed concern about the Vermont law in Browning-Ferris were Justices Brennan and Marshall, who are no longer on the court, and Justice O'Connor who dissented in Haslip, and would find any common law scheme, even Alabama's, unconstitutional. Id., 492 U.S. at 281, 109 S.Ct. at 2923 (Brennan, concurring); at 282, 109 S.Ct. at 2924 (O’Connor concurring in part dissenting in part). The Justices expressing "dissatisfaction” on due process grounds with Mississippi law were Justice O’Connor, joined by Justice Scalia, in her concurrence in Bankers Life and Casualty *1447Co. v. Crenshaw, 486 U.S. 71, 86-89, 108 S.Ct. 1645, 1654-56, 100 L.Ed.2d 62 (1988). Justice O’Connor dissented in Haslip, and Justice Scalia concluded in Haslip that all common law punitive damages schemes satisfy due process.
Mattison’s, and by inference, the majority’s use of footnote 10 thus elevates the concurring opinions of two former justices and the Haslip dissenter into a constitutional determination that the Vermont and Mississippi schemes, and by comparison the South Carolina and Virginia schemes, are unconstitutional. Whatever meaning should be ascribed to footnote 10 of Has-lip — and the Supreme Court is none too clear as to its significance — it certainly cannot be interpreted and applied in that manner.
. A potential Erie problem created by the majority’s approach is illustrated by their statement in footnote 9, ante, where the majority hypothesizes that an Alabama federal district court would be required to create a Mattison-type instruction for use in that court. Would the district court be free to create an instruction placing the defendant’s wealth before the jury, since, as the majority states, the court may "look beyond" the state jury instruction to the review criteria to determine the state’s substantive law? This would, of course, violate the prohibition against introduction of such evidence in the trial. A dual system of punitive damages would be created in Alabama in direct violation of Erie.
. Consequently, the award of any attorney’s fees to plaintiff as a prevailing party should be vacated. The failure of Johnson to cross-petition from the panel’s order respecting attorney's fees has foreclosed review of that issue by the en banc court.
. Unresolved today is the question of how a non-Virginia court, whether state or federal, will choose between the federal and state versions of Virginia punitive damages law when the choice of law dictates the application of Virginia law.