concurring in part and dissenting in part.
I agree with a great many of the things the majority says in its attempt to guide the trial judge.1 I cannot, however, agree with our rejection of the requested interlocutory appeal and from this I therefore respectfully dissent.
The decision of this court to return this case for a trial only on damages was made with full knowledge of the more obvious pitfalls in the path of a district court struggling with such a mandate. We did not foresee, however, nor could we possibly have foreseen, the unusual turn of events with which Judge Grady is now confronted. He has asked — I think wisely — for our help. Instead of granting it, the majority has chosen to wait until a record has been developed. I think the majority is wrong, and that the complications and uncertainties which may result will be much harder to resolve at the end than they would be to address at the outset. Having marked off damages for separate adjudication in a remarkably complex trial, we have, as I see it, an obligation to respond forthrightly when a wholly unanticipated set of circumstances appear, about which the original mandate says virtually nothing. The court has now said that it prefers to decide the issues presented to us at the next appeal, after a full record has been developed. I foresee, unhappily, not only another appeal, but yet a third trial and appeal, and perhaps a fourth, fifth and sixth.
The majority suggests that a third trial can be avoided by having the jury present a special verdict separating private-line damages from Execunet damages. Anyone who is familiar with the history of this case can be forgiven some reservations about the total efficacy of this proposal (although it certainly seems appropriate, provided that we — without taking the appeal — know enough of the implications). But the idea that any issue before the district court can be so clearly separated from any other is, *803to put it mildly, an optimistic one.2 For us to address the issue presented in this proposed interlocutory appeal would certainly make Judge Grady’s task easier, and for that reason I think we owe it to him to hear the appeal. But such a course would also very probably make our own eventual burden easier.
The majority says that the question whether injury to Execunet is an issue of liability (and thus not triable) or of damages (and thus triable) is too close and difficult for us to decide until it has been argued at trial. I acknowledge that the issue is difficult; in fact I think it is even more difficult than would appear from the majority’s statement of it. For there is some evidence in the briefs that both sides agree that injury to Execunet is an issue of liability not to be reargued, but from this they draw diametrically opposite conclusions. MCI, it appears, believes that injury to Execunet is unchallengeable, while AT & T seems to believe that damages to Execu-net may not be introduced. It is because of these very difficulties that I am convinced that, if these matters are not clarified now, as they might be, we will be faced eventually with the even more difficult job of trying to make sense of whatever confusing verdict eventuates.
There is irony in the court’s assurance to Judge Grady: “We have every confidence that as trial judge, he will be cautious in ruling on issues of this type.” These are issues that we have now declined to decide until after trial as being too close and difficult, even in the serene and contemplative surroundings of the court of appeals. These are issues that arise in a context that we ourselves — in good faith but with insufficient respect for lawyerly ingenuity — have created. Now we confidently turn them over for decision, without, in my view, adequate guidance, to a district judge embroiled in all the other forbidding complexities of this trial.
We decided the original appeal here in the context of a trial that had taken place, and we quite naturally envisioned a retrial on issues defined at the first trial. Along the course charted in our mandate an immense change in circumstances has taken place that we did not foresee, and which we did not therefore address in any way, shape or manner. That change seems to give rise to the possibility of what was a private-line case claiming (untrebled) something less than $1 billion becoming an Execunet case allegedly worth (untrebled) almost $5 billion. As a practical matter, this is an “unforeseen circumstance” of mind-boggling dimensions, rather like Columbus discovering at the last minute that the world was indeed flat and sailing off the edge.3
I therefore respectfully dissent from the denial of an interlocutory appeal.
. And it does say many things. In fact, to a degree the majority opinion is a sort of decision on a "mini-appeal,” which we have granted sub silentio.
. For example, Judge Grady may or may not allow AT & T to argue from inconsistencies with the first damage study. He may or may not allow AT & T to argue mitigation (something that MCI has opposed in its pretrial brief). His decision in either matter may be rejected on appeal. How will it then be determined how far his decision on these matters depended on his decision to admit or exclude evidence of Execunet damage? If he turns out to have made the wrong decision on Execunet, how will the jury award be adjusted to account for the influence of that decision on these other matters?
. To mix my metaphors I think we should try to be in on the take-off as well as on the crash landing.