concurring specially.
I agree with much that is said in Judge Bright’s dissent and would agree to reverse and remand this matter for a new trial on all issues — liability, causation, and damages. I will not agree, however, under the circumstances of this case, to treat one party unfairly in an attempt to treat the other fairly, especially when justice can be done for both. Accordingly, with reluctance, I concur in the result reached in the opinion prepared by Judge Magill.
First, I disagree with both opinions that the jury verdict stands for the proposition that each plaintiff was raped at least once. This conclusion is speculative and unsupported by the actions taken by the jury.
The plaintiffs contend that a jury verdict in favor of each plaintiff proves at least one rape because of the following instructions:
If you find that any one or more of the Plaintiffs consented or was not forcibly compelled to engage in any alleged sexual conduct with other inmates, then your verdict must be for the Defendant.
Your verdict must be for any of the Plaintiffs and against the Defendant, Denis Dowd, if you find that: One, the Plaintiff was subjected to one or more sexual attacks by prisoners in Farming-ton Correctional Center. Two, Defendant knew or should have known the prisoners, such as Plaintiff, were subject to a pervasive risk of sexual attack. Three, Defendant failed to respond reasonably to the risk of such attacks. Four, the Defendant’s conduct was ,a proximate cause of the Plaintiff’s injury. And five, the Plaintiff was injured.
Appellants’ Reply and Answer Brief at 7 & n. 2 (emphasis added) (citations omitted).
The record contains much evidence concerning rape, threatened rape, and physical and mental abuse of a sexual and nonsexual nature short of rape. All of this activity could properly have been understood by the jury to constitute “sexual conduct,” “sexual attacks,” and “sexual assault,” 1 the various terms used by the trial court in its instructions. Further, in accordance with our opinion in Cowans v. Wyrick, 862 F.2d *678697, 700 (8th Cir.1988) the jury was told “injury or damage[s] ... can include ... physical pain and discomfort, and any emotional and mental harm ... suffered, including fear, humiliation and mental anguish." Trial Transcript Vol. V at 47-48.
Thus, while I agree, as stated in Cowans, that harm of some kind is a-relevant element in a determination that a constitutional violation has occurred, a finding of liability under the verdict director instruction given in this case does not necessarily establish that an actual rape occurred involving each plaintiff, or any plaintiff for that matter.
Second, and of perhaps more importance, the very nature of an Eighth Amendment claim makes partial remand for consideration of only damages improper, especially under the circumstances of this particular dispute. It is elemental that plaintiffs must have carried the burden of proof of the issues of liability, causation, and damages. Because, as discussed, proof of liability in an Eighth Amendment context requires a finding of some element of harm, all issues — liability, causation, and damages — are inextricably intertwined. Thus, a remand to consider damages alone is constitutionally suspect. The practice of retrial on one issue is constitutional, but only if the issue remanded is “so distinct and separable from the others [in the trial] that a [new] trial of it alone may be had without injustice.” Gasoline Prod. Co. v. Champlin Ref. Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931). In this circuit, a district court in considering a trial on less than all of the issues must determine that (1) the issues are clearly distinct; (2) the bifurcation will not prejudice either party; and (3) the action will result in judicial economy. See Taylor v. RayGo, Inc., 680 F.2d 1223, 1224 (8th Cir.1982). If the issues are not clearly separable, a bifurcation of issues is an abuse of discretion. O’Dell v. Hercules, Inc., 904 F.2d 1194, 1202 (8th Cir.1990). Bifurcation must be very cautiously considered where the injury itself, as here, has an important bearing on liability. Id. (citing Hosie v. Chicago & North Western R.R., 282 F.2d 639, 643-44 (7th Cir.1960)), cert. denied, 365 U.S. 814, 81 S.Ct. 695, 5 L.Ed.2d 693 (1961). I can see no reasoned way for this court to deviate from these principles in making a decision to remand this case for retrial on damages only.
As discussed, under the evidence adduced and instructions given, the finding of sufficient harm to impose liability and the finding of only nominal damages as a result of the breach of duty are not necessarily inconsistent. See, e.g., Cowans, 862 F.2d at 700 (if jury finds cruel and unusual punishment — which finding involves an element of harm — nominal damages are proper if jury is unable to place a monetary value on harm suffered). Even so, the result here points toward a compromise verdict. In other words, the verdict strongly suggests a recognition by the jury of the inter-relationship of the issues and a tradeoff between liability, causation, and damages. In the face of a compromise verdict, courts have never found the issues to be sufficiently separable to approve a retrial on one issue only. See, e.g., Smallwood v. Dick, 114 Idaho 860, 761 P.2d 1212, 1216 (1988). See generally, Jack B. Weinstein, Routine Bifurcations of Jury Negligence Trials, 14 Vand.L.Rev. 831, 842 (cited in the 1966 amendment notes to Fed.R.Civ.P. 42(b)).
The possibility of a compromise verdict leads to my third concern, a problem neither the majority nor the dissent sufficiently discusses. The jury instruction on Eighth Amendment liability was flawed. Granted, there was not an adequate objection to the improper instruction by the defendant at trial and, I would usually require the defendant to live with any untoward result. However, the faulty instruction becomes an overriding concern when considering a remand for retrial, especially on one issue only.
The improper liability instruction was given twice, in differing versions. Both versions were inconsistent with proper Eighth Amendment jurisprudence. It was first stated as follows:
Prison officials may be liable for violation of a prisoner’s civil rights, where *679they are deliberately indifferent to a prisoner’s constitutional right to be free from sexual attacks by other inmates, if they actually intend to deprive them of that right, or if they act with careless disregard of this right. Reckless disregard of the prisoner’s right to be free from sexual attacks by other inmates may be shown by the existence of a pervasive,risk of harm to inmates from other prisoners and failure of prison officials reasonably to respond to that risk.
Trial Transcript Vol. V at 45. Later, the judge, stating that he had misread the instruction, said:
Prison officials may be liable for a violation of a prisoner’s civil rights where they are deliberately indifferent to a prisoner’s constitutional right to be free from sexual attacks by other inmates; or if they actually intend to deprive him of that right; or if they act with reckless disregard of that right. Reckless disregard of a prisoner’s right to be free from sexual attacks by other inmates may be shown by the existence of pervasive risks of harm to inmates from other prisoners and the failure of prison officials to reasonable — reasonably respond to that risk.
Trial Transcript Vol. V at 51.
Neither version of the instruction defines a standard of care from which an Eighth Amendment violation may emerge.
“To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety_ It is obduracy and wantonness not inadvertence or error in good faith, that characterize the conduct prohibited by the cruel and unusual punishments clause.”
Wilson v. Seiter, — U.S. -, -, 111 S.Ct. 2321, 2324, 115 L.Ed.2d 271 (1991) (some emphasis omitted) (quoting Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986)).2 The instructions given allowed the jury to find liability from acts or omissions not encompassed within the Wilson v. Seiter test. So, the dissent would solve a purported damages error on the part of the jury while allowing error on the part of the trial judge to stand untouched. And, although the dissent may argue that it has no duty to rectify an error not brought to the attention of the trial court, it readily seeks to reverse a finding of only $1.00 nominal damages when the jury was told, certainly without objection from the plaintiffs and probably at the request of the plaintiffs, that
[i]f you find that plaintiff is entitled to a • verdict, but do not find that plaintiff has sustained actual damages, then you must return a verdict for that plaintiff in amount of $1.00 as nominal damages.
Trial Transcript Vol. V at 49. I refuse to join in such an unbalanced approach. Accordingly, I concur in the result reached by Judge Magill.
. This term was used by the district court in its instruction outlining the nature of plaintiffs’ allegations of constitutional violations. Trial Transcript Vol. V at 44.
. I realize that some of our post-Seiler cases establish "reckless disregard” as the standard of care in Eighth Amendment claims. See Elliott v. Byers, 975 F.2d 1375 (8th Cir.1992); Falls v. Nesbitt, 966 F.2d 375 (8th Cir.1992). In my View, a finding of obduracy and wantonness requires more; certainly more is required than an official failing to respond "reasonably” to a risk of harm, as stated in both instructions.