concurring in part and dissenting in part:
I.
I concur in all of the majority opinion except parts II and V, and as to those, I respectfully dissent. I would affirm the judgment of the district court.
II.
As to Part II of the opinion, I dissent, but not in the sense that I necessarily disagree with the majority’s reasoning.
I think we reach out too far to decide the question in this case.
We review judgments, not opinions, and I suggest that principle has been overlooked in this case. Since our principal holding affirms the judgment of the district court as to liability, I think the best way to do it is to accept the district court’s quite correct finding that there was no legal significance between the evidence presented by each side as to the cause of Mrs. Que^inberry’s death. Instead of merely accepting this position, which, as the majority acknowledges, is for all practical purposes a correct one, the majority takes one side of a controversial question which has caused a split in the circuits, thus unnecessarily exposing the judgment of the district court to further review.
I also should say that I agree with that part of Judge Luttig’s opinion which points out that on the reasoning of the majority, a district court would never be able to say that it had not considered evidence which had been admitted. The practice of admitting evidence subject to objection in trials without juries, is so well reasoned, firmly entrenched and commonly used that it ought not to be disturbed. See, e.g. Multi-*1033Medical Convalescent, etc. v. NLRB, 550 F.2d 974, 977 (4th Cir.) (opinion by Judge Craven), cert. denied, 434 U.S. 835, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977); Builders Steel Co. v. Commissioner of Internal Revenue, 179 F.2d 377, 379 (8th Cir.1950) (opinion by Judge Sanborn); Oates v. United States, 233 F. 201, 204-206 (4th Cir.) (opinion by Judge Woods), cert. denied, 242 U.S. 633, 37 S.Ct. 16, 61 L.Ed. 538 (1916); Wigmore on Evidence, Tiller’s Revision (1983), § 4d.l; § 19, p. 852.
III.
Absent a statute or an agreement between the parties an award of interest on interest is impermissible either under general federal or common law. See, e.g. Cherokee Nation v. United States, 270 U.S. 476, 490, 46 S.Ct. 428, 433-34, 70 L.Ed. 694 (1926) (stating “the general rule” that “compound interest is not allowed to be computed on a debt”); Pindall v. Bank of Marietta, 37 Va. (10 Leigh) 481, 484-85 (1839) (same).
28 U.S.C. § 1961(a) states, “Interest shall be allowed on any money judgment in a civil case recovered in a district court.” Although § 1961 awards post-judgment interest on any money judgment, the plain meaning of § 1961 does not require an award of interest on interest: “As properly interpreted, section 1961 creates a logical uniformity — prejudgment interest where appropriate is awarded up to the date of judgment; postjudgment interest then takes over.” Magee v. U.S. Lines, Inc., 976 F.2d 821, 824 (2d Cir.1992). In Magee, the court reversed a holding of the district court which had entered a judgment which had allowed post-judgment interest from the date of a verdict rather than from the date of judgment. Its reasoning is directly on point here, and is that the plaintiff, unless the judgment was reversed, “... would, under the district court’s holding, be entitled to receive double interest from December 23, 1991 [the date of verdict] to January 8, 1992, [the date of judgment].” 976 F.2d at 824.
While the majority holds that § 1961 requires a compounding of interest, I am of opinion that the authorities cited by the majority do not support that holding. In Kaiser Aluminum, supra, the Supreme Court defined the purpose that post-judgment interest serves, but the Court did not go so far as to state that § 1961 abrogates the general federal and common law and requires an award of interest on interest. In fact, the Court disallowed an equitable claim for a higher interest rate than that provided under § 1961 by adhering to the rule that judgments do not bear interest at common law absent a statutory provision to the contrary. See Kaiser Aluminum, 494 U.S. 827, 840, 110 S.Ct. 1570, 1578, 108 L.Ed.2d 842 (1990) (citing Pierce v. United States, 255 U.S. 398, 406, 41 S.Ct. 365, 368, 65 L.Ed. 697 (1926)). Because § 1961 was such a statutory provision the Court held that “[w]here Congress has not seen fit to provide for a higher rate of interest ... the courts may not legislate to the contrary.” 494 U.S. at 840, 110 S.Ct. at 1578.
Finally as to Kaiser Aluminum, it is noteworthy that the quote on page 1031 of the majority opinion does not include the next following sentence which is:
Where the judgment on damages was not supported by the evidence, the damages have not been “ascertained” in any meaningful way. 494 U.S. at 836, 110 S.Ct. at 1576.
The only meaning of the sentence I have just quoted is that in the usual case, such as the one at hand, damages are not ascertained until judgment is entered. Since damages have not been ascertained until judgment has been entered, requiring the accumulation of double interest on the same is entirely contrary to the long standing treatment of the same question as exemplified by Cherokee Nation, Pindall and the many other cases on the same subject.
As for the cases cited by the majority, I am of opinion that they should be limited to their facts rather than interpreted as requiring an award of interest on interest under § 1961 in all instances. Drovers Bank v. Nat’l Bank & Trust Co., 829 F.2d 20 (8th Cir.1987), illustrates the specific exception that an agreement between the *1034parties may provide for a recovery of interest on interest. Based on the terms of a loan-participation agreement, Drovers Bank obtained a judgment for principal and contract interest, and the Magistrate awarded post-judgment interest on the entire amount.* 829 F.2d at 21. In upholding the award of post-judgment interest on the contract interest, the Eighth Circuit stated that contract interest constituted an element of Drovers’ damages under the agreement and thus post-judgment interest should accrue on the entire amount. 829 F.2d at 23. Similarly, in Hellenic Lines Limited v. Gulf Oil Corp., 359 F.2d 403 (2d Cir.1966), although the court allowed interest on interest, the underlying claim involved a contract dispute and the interest contained in the original judgment apparently was awarded pursuant to the contract. See Hellenic Lines Limited v. Gulf Oil Corp., 340 F.2d 398, 402 (2d Cir.1965) (affirming award of principal under contract but reversing and remanding for new trial adjudicating liability for interest and costs). Finally, in United States v. Hannon, 728 F.2d 142, 143 (2d Cir.1984), the United States was seeking to renew a judgment against Hannon that remained unsatisfied. Reversing a summary judgment ruling for Hannon, the Second Circuit allowed the subsequent action and directed the district court to enter a new judgment against Hannon, comprised of the original judgment plus accrued post-judgment interest. 728 F.2d at 145. The court then awarded post-judgment interest on the entire amount, thus compounding the original award of post-judgment interest. 728 F.2d at 146.
The fact that the Second Circuit considered Kaiser Aluminum in its opinion in Magee and decided the Magee case the way it did, I think, is an indication that Hellenic Lines and Hannon (although unmentioned in Magee) should not be construed to require post-judgment interest on pre-judgment interest in every instance, rather only to permit it when authorized by proper exception such as a previous contract interest judgment, as was the case in Hellenic Lines, or debt on a judgment, which was the case in Hannon.
Pursuant to the general law and the plain meaning of § 1961, the district court awarded post-judgment interest upon the principal judgment and not upon the award of pre-judgment interest. Because § 1961 applies to “any money judgment,” by reversing the district court, the majority holds that § 1961 requires an award of post-judgment interest on pre-judgment interest in all civil cases, whether based on diversity or federal question jurisdiction, and regardless of the nature of damages involved. I am of opinion that § 1961 does not so require an award of interest on interest in all such instances. I would affirm the district court’s calculation of post-judgment interest.
I am authorized to state that Judge Wilkinson joins in Part III of this opinion.
The Magistrate also awarded pre-judgment interest. 829 F.2d at 21. The eighth circuit reversed the award of pre-judgment interest because awarding both contract interest and pre-judgment interest violated Iowa law by duplicating the recovery of interest. 829 F.2d at 22-23.