dissenting:
Legal writers know that, even when one properly defines the legal issue, one may sometimes reach the wrong conclusion. The chances of reaching the wrong conclusion dramatically increase when one initially .identifies the wrong issue. Legal issues must be defined in the context of the facts, as well as the law, that one is reviewing.
I agree with Merrell Dow that the issue before us is the enforceability of “one claim”; I disagree with Merrell Dow as to the answer to that issue. I disagree with my colleagues in defining the issue.
The issue as I see it is whether a 1983 verdict for compensatory damages against Merrell Dow, which we have twice ordered reinstated on previous appeals, can now be enforced, even though another claim for punitive damages, bifurcated for trial at the urging of Merrell Dow (over the objection of Miss Oxendine) remains unresolved.
A “judgment” is defined by Rule 54(a) of the Superior Court Civil Rules as “a decree and any order from which an appeal lies.” (Emphasis added.) Under our appellate rules, Judge Salzman’s order directing final judgment with respect to a jury verdict which we have twice ordered reinstated (and with respect to which a petition for certiorari has been denied) is a “final order.” See D.C.Code § ll-721(a)(l) (1989 Repl.). If it is not a final order, we do not have jurisdiction. If we do not have jurisdiction, we cannot order its vacation. On the other hand, if Rule 54(b) is applicable1 (and there are multiple claims), we would have jurisdiction to review Judge Salzman’s determination that there was no just reason for a delay in appellate consideration of one claim and his entry of final judgment as to that claim. From an appellate perspective, Merrell Dow’s argument, if not logical, is interesting. By focusing our attention on Rule 54(b), it has managed to vest us with jurisdiction, and immediately thereafter, divest us of jurisdiction. Put another way, Merrell Dow’s success in this appeal is predicated upon the premise that Rule 54(b) is applicable both to give us jurisdiction and to defeat Miss Oxendine’s claim. No reference is made to Rule 54(a), which in fact authorizes this appeal.
The fallacy of my colleagues’ reasoning is that, in its focus on Super.Ct.Civ.R. 54(b), it embraces case law holding that certain multiple claims cannot be separated by a trial judge for appellate review. In the instant case, a claim has already been separated for appellate review. Surely my colleagues are not suggesting that we had no jurisdiction to hear Oxendine I (1986) and Oxendine II (1989) — decisions issued by other three judge panels of this court ordering the reinstatement of the jury verdict *1029as to compensatory damages.2 What remains to prevent finality as to that claim? Under these circumstances, the one case we are bound to follow is Robinson v. Sarisky, 535 A.2d 901 (D.C.1988), where yet another three judge panel of this court found no problem with separate trials or separate jury verdicts with respect to compensatory damages versus punitive damages. Robinson made no reference to Rule 54(b). Moreover, there is no practical problem of inseparability here. The merits of liability are settled. The standards for determining the amounts of compensatory versus punitive awards are distinct — one civil in nature geared to making an injured plaintiff whole, the other quasi criminal in nature geared to retribution and deterrence. See Pacific Mutual Life Insurance Co. v. Haslip, — U.S. -, 111 S.Ct. 1032, 1044, 113 L.Ed.2d 1 (1991).3
In any event, if Merrell Dow and I could possibly be wrong, ie., if there was more than one claim remaining for litigation purposes, then Rule 54(b) becomes applicable to support beyond question the determination and entry of the final judgment by the able trial judge.
Judge Salzman covered both spheres. I quote below from his Order:
(b). The Court is not certain that Civil Rule 54(b) is applicable to this case at all. That rule addresses situations where the trial court proceedings are completed on one claim, there is no just reason for delay in the entry of final judgment on it, and the claim is sufficiently distinct from the others in suit so that appellate review of it will not have to be repeated at the end of the entire litigation. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436-38, 76 S.Ct. 895, 900-01, 100 L.Ed. 1297 (1956). This case does not present that problem. Here, not only is the compensatory damage trial over, but appellate review of that issue is already complete. The strictures of Civil Rule 54(b) seem to have no relevance to this situation. Entry of a final judgment on the compensatory damage claim is thus entirely appropriate and the Court will do so. [Footnote (pointing out that Merrell Dow urged finality of compensatory damage claim in seeking certiorari) omitted.]
(c). Even if Rule 54(b) applies, however, entry of final judgment on this claim now remains appropriate. As Circuit Judge Ruth Ginsburg observed when writing for the Court of Appeals in Tolson, supra, “Rule 54(b) precedent is untidy, and that ‘courts have been completely unable to settle on a single test for determining when claims are separate.’” 235 U.S.App.D.C. at 399, 732 F.2d at 1001 (citations omitted). Whether punitive and compensatory damage claims are “separate and distinct” or “so interwoven that they cannot fairly be separated” frequently turns on the peculiar posture of the litigation. See, e.g., Robinson v. Sarisky, 535 A.2d 901, 908 (D.C.1988) (compensatory damage claim sufficiently distinct from punitive damage claim that a separate trial before a new jury permissible on the latter). But the Court need not attempt to resolve that nice question in this case. The purpose of the “1 or more claims” language in Rule 54(b) is entirely practical. It is intended to strike a balance between the undesirability of piecemeal appeals and the need for making review available in timely fashion without delaying the entry of judgment without cause. In other words, the drafters of Rule 54(b) sought to provide a mechanism for prompt appellate review of those claims that would not have to be reconsidered on an appeal *1030of the whole case, while avoiding the delay in justice that would follow if such claims had to abide the remainder of the litigation. Sears Roebuck & Co. v. Mackey, 351 U.S. 427, 435, 76 S.Ct. 895, 899, 100 L.Ed. 1297 (1956); Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 363 (3d Cir.1975). [Footnote omitted.]
But that purpose manifestly has no application here. Plaintiffs entitlement to compensatory damages from Merrell Dow has already been reviewed by our Court of Appeals twice; certiorari has been denied. Appellate review of this issue is thus effectively complete. Even if on closest examination plaintiff has but “1 claim” in this litigation, it is no offense to the intendment of Rule 54(b) to enter judgment now on the compensatory damage award in these circumstances. The Court of Appeals will not be burdened with another review of this aspect of the case. No valid end is served by making the plaintiff continue to wait for her judgment — and Merrell Dow has suggested none. Seven years’ delay is long enough. The Civil Rules must be construed to expedite the just determination of litigation, not to hinder it. Civil Rule 1.
The Supreme Court has reminded us that “[i]t is a familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit, nor within the intention of its makers.” Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892). The Court has “repeatedly warned against the dangers of an approach to statutory construction which confines itself to the base words of a statute * * *, for ‘literalness may strangle meaning.’ ” Lynch v. Overholser, 369 U.S. 705, 710, 82 S.Ct. 1063, 1067, 8 L.Ed.2d 211 (1962) (per Harlan, J.) (citations omitted). Accord, Mulky v. United States, 451 A.2d 855, 857 (D.C.1982) (Fer-ren, J.) (“and” read as “or” where necessary to give an appropriate construction to a statute). In the unique circumstances of this case, where appellate review of the compensatory damage award is complete and almost seven years have elapsed since the jury rendered that verdict, the Court may order the entry of judgment now. There is no just reason for further delay. To construe Rule 54(b) otherwise would be to elevate form over substance; this a responsible tribunal may not do. Accordingly, the Court expressly directs entry of final judgment on the plaintiff’s award of compensatory damages.
For the reasons articulated by the trial judge, I would affirm his order in its entirety.
. Rule 54(b) recites in pertinent part:
When more than 1 [one] claim for relief is presented in an action ... the Court may direct the entry of final judgment as to 1 [one] or more but fewer than all of the claims ... only upon an express determination that there is no just reason for delay and upon an express direction for entry of judgment.
. I do not accept the reasoning of the majority here that the identity of the party appealing is related to finality.
. Pacific Mutual Life Insurance Co. v. Haslip, supra, was pending before the Supreme Court at the time of Judge Salzman's order. Recognizing that this decision, involving a constitutional challenge to the awarding of punitive damages, might be dispositive of Miss Oxendine’s bifurcated claim, Judge Salzman ordered a brief delay in pretrial and trial dates. In Haslip, the Supreme Court stayed enforcement of the judgment pending certiorari, but that judgment, unlike the judgment here, was based upon a general verdict disputed as to amounts allotted as between compensatory and punitive damages. Ill S.Ct. at 1037 n. 2.