# Petition — Arnold v. Eastern Air Lines, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0548%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 464 U.S. 1040 ## Text IN THE Supreme Court of the United States OCTOBER TERM, 1983 RICHARD ARNOLD, IV AND FRANCIS C. MIHALEK, Petitioners, We EASTERN AIR LINES, INC., Respondent, v. UNITED STATES OF AMERICA, Third-Party Defendant. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Gary S. Hemric William K. Diehl, Jr. JAMES, McELROY & DIEHL, P.A. 700 Home Federal Building 139 South Tryon Street Charlotte, N.C. 28202 Telephone: 704/372-9870 Counsel for Petitioners Questions Presented 1. May a Circuit Court of Appeals properly convene itself for rehearing en banc under 28 U.S.C. §46(c) where the vote on the petition for rehearing by the ten regular, active judges of the Cir- cuit produces five votes in favor and four votes against rehearing with the tenth judge not voting because of recusal? 2. Whether the convening of the Circuit Court for rehearing en banc of a matter which clearly does not involve either securing or maintaining uniformity of decisions within the Circuit or some ques- tion of exceptional legal importance constitutes an abuse of the en banc power such as to vitiate the judgment rendered by the Circuit Court? TABLE OF CONTENTS Page a ees yep sh ob 4k asses eevee. i a ee 2 ER EU nas ciewis'c Sb aisccsceececes ese 2 oa bale buvees 6vo.be8 2 elias wc ob cas seccsensccess 3 TE SGC ashi bcbsveséstscsesevcsees 3 Th 8 I. This Court is the final arbiter of the differing interpreta- tions of 28 U.S.C. §46(c) which are producing irrecon- cilable decisional conflicts among the circuit courts in the exercise of the en banc power ............... 8 A. Conflict between the Fourth Circuit in this case and the decision by the Sixth Circuit in Clark v. American Broadcasting Company, Inc., 684 F.2d 1208 (1982), cert. denied, __. U.S. ___, 75 L.Ed.2d 792 (No. 82-1288, March 21, 1983) .. 10 B. An apparent decisional conflict in the interpretation of §46(c) between the Fourth and Ninth Circuits and decisions of the Second, Third, Seventh and D.C. Circuit Courts; confusion concerning the majority LP ahaa sisinls.e e406 pieces cess 11 C. Conflict between the decision by the Fourth Circuit here and this Court's holding in Shenker v. Baltimore & Ohio R.R. Co., 374 U.S. 1 (1963) ........ 14 II. In Petitioners’ case, the Fourth Circuit Court of Appeals abused the limited legitimate purposes of the en banc rehearing power to substitute the decision of a tenuous majority for that of the panel judgment, for reasons unrelated to the effective administration of the law or I oo ce br sep bb eeeee vee . 16 TABLE OF CONTENTS (Cont'd.) Page SIE sa pals ia Wak vs hoa Gd Aa awe Re hae ve eee 22 Appendix A—Judgment of district court in Arnold v. Lxstern Air Lines, Inc. vy. United States of America . la Appendix B— Judgment of district court in Mihalek v. Eastern Air Lines, Inc. vy. United States of America . \b Appendix C— Memorandum of decision of district court de- nying motions for new trials ............. Ic Appendix D—Panel opinion of the Court of Appeals for the DOT ECENOE: «OSS i weed ae eee co ees Appendix E— Order of Court of Appeals for the Fourth Cir- cuit granting rehearing en banc ........... Appendix F— En banc opinion of the Court of Appeals for the Fourth Circuit and dissenting opinions ..... ld le TABLE OF CITATIONS Cases: Page Boyd v. Lefrak Organization, 517 F.2d 918 (2nd Cir. 1975) 11 Church of Scientology of California v. Foley, 640 F.2d 1335 ee ee Ce NS, ce ave b Ow sab ec Rede 17 City of Cleveland v. Peter Kiewit Sons’ Company, 624 F.2d I ies OU og hes 55 sob dv as eadee cman eee 20 Clark v. American Broadcasting Co. , 684 F.2d 1208 (6th Cir. 1982) cert. den. us. ... , 75 L.Ed.26 792 (mo. ee CEE RROD S455, 5.04.05 0's apae ae aoe ed 10 Copper and Brass Fabricators Council, Inc. v. Department of Treasury, 679 F.2d 951 (D.C. Cir. 1982) rehearing denied, unpublished order no. 81-2091 (August 3, 1982) ..... 12 Curtiss-Wright Corp. v. General Electric Company, 599 F.2d St ME, OPIN caaTooka 0 cn dels vam'neces a Ford Motor Company vy. Federal Trade Commission, 673 F.2d ee CS PUN lg 5 Sy ty wi wo hw a a Renal 12 Moody v. Albemarle Paper Company, 417 U.S. 622 (1974) 9 Porter County Chapter of Isaac Walton League v. Atomic Energy Commission, 515 F.2d 513 (7th Cir. 1978) rev'd on other grounds, sub nom. Northern Indiana Public Service Com- pany \. Porter County Chapter of Isaac Walton League, Se RE RTO 6 cris ccasv ec cavaNue weaneens 12 Shenker v. Baltimore & Ohio R.R. Co., 374 U.S. 1 (1963) ee EN ES OR a eR Es aa aR ee a I 8,14,15,16 Textile Mills Securities Corp. v. Commissioner, 314 U.S. 326 NO ee rete ei earindbwn - a4 Keren redone 8,9 United States v. American-Foreign Steamship Corp. , 363 U.S. REE Gite 2 a Nan eincee Rega oid eae ew eee 9, 13, 17 Western Pacific Railroad Corp. v. Western Pacific Railroad, Ps eT CU kek nk ashanexacanxeraaen 9, 13 Zahn v. International Paper Company, 469 F.2d 2033 (2nd Cir. 1972) aff'd on other grounds, 414 U.S. 291 (1973). 11, 12 ‘ United States Laws and Statutes: Page Act of October 20, 1978, Pub. L. 95-486, 92 Stat 1629 CII os '0's oh. 0) 0 'd nw ep ates wk ert 8 le eas 12 The Federal Courts Improvement Act of 1982, Pub. L. 97-164, Dae QOD 6 5.e Gk sae Ba ee 12 ee UE eG. bik rts oneness Ri, 2e. Se Fe ee ie) es ae 13, 14, 15, 16, 17, 22, 23 Rule 35, Federal Rules of Appellate Procedure ........ ef Rule 16(a) of the U.S. Court of Appeals for the Eighth Circuit CEE Mela « sia o's ays. ane nalacatee oldie ke eae 12 Miscellaneous: 1973 Report of the Proceedings of the Judicial Conference of Pl CE NOD case csceneksostacneemaeeeenrene 12 1980 Annual Report of the Director, Administrative Office of mR se ree ee 17 IN THE Supreme Court of the United States OCTOBER TERM, 1983 RICHARD ARNOLD, IV AND FRANCIS C. MIHALEK, Petitioners, Vv. EASTERN AIR LINES, INC., Respondent, Vv. UNITED STATES OF AMERICA, Third-Party Defendant. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT Petitioners Richard Arnold, IV and Francis C. Mihalek respect- fully pray that a writ of certiorari issue to the United States Court of Appeals for the Fourth Circuit to review whether that Circuit Court has complied with 28 U.S.C. §46 (c) by convening an en banc court when less than a majority of all the regular, active judges of that Circuit have voted to do so, and to review the en banc judg- ment itself which reverses, on tenuous grounds unrelated to the resolution of any intra-circuit conflict or proceeding of exceptional legal importance, the panel opinion which affirmed district court jury verdicts favorable to Petitioners. 2 Citations to Opinions Below The judgments entered by the District Court upon jury verdicts and the memorandum of decision denying motions by Respondent for new trials are printed in Appendices A, B and C hereto, infra, at pp. la, 1b and Ic, but have not been reported. The judgment of the panel of the Court of Appeals for the Fourth Circuit appears in Appendix D, infra, at p. 1d and has been reported at 681 F.2d 186. The judgment entered after rehearing en banc is printed in Appendix F, infra, at p. If but has not yet been reported. Jurisdiction The judgment of the panel of the Court of Appeals for the Fourth Circuit was entered on June 4, 1982. Respondent timely filed a peti- tion for rehearing and suggestion for rehearing en banc. On December 23, 1982, the Circuit Court entered its Order tentative- ly granting rehearing en banc subject to further consideration and order after argument by the parties. Appendix E, infra, at p. le. Rehearing en banc was held on February 8, 1983 and on July 8, 1983 the Fourth Circuit Court of Appeals entered its judgment, af- firming its right to sit en banc and reversing per curiam by a vote of five to four the earlier panel judgment. The mandate of the cir- cuit court was stayed for thirty days by Order entered July 29, 1983 and this stay was extended for an additional thirty days by Order entered August 23, 1983. This petition for a writ of cértiorari is being filed within ninety days after July 8, 1983 and before September 27, 1983, the date through which the stay of the man- date has been ordered by the circuit court. Jurisdiction of this Court is invoked under 28 U.S.C. §1254(1). Questions Presented 1. May a Circuit Court of Appeals properly convene itself for rehearing en banc under 28 U.S.C. §46(c) where the vote on the petition for rehearing by the ten regular, active judges of the Cir- cuit produces five votes in favor and four votes against rehearing with the tenth judge not voting because of recusal? 2. Whether the convening of the Circuit Court for reheariag en banc of a matter which clearly does not involve either securing or maintaining uniformity of decisions within the Circuit or some ques- tion of exceptional legal importance constitutes an abuse of the en 3 banc power such as to vitiate the judgment rendered by the Circuit Court? Statutes Involved 28 U.S.C. §$6(c): Cases and controversies shall be heard and determined by a court or panel of not more than three judges, unless a hearing or rehear- ing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in regular active service. A court in banc shall consist of all circuit judges in regular active service. Rule 35(a) of the Federal Rules of Appellate Procedure: When Hearing or Rehearing in Banc Will be Ordered. A majori- ty of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals in banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its deci- sions, or (2) when the proceeding involves a question of exceptional importance. Statement of The Case This case grows out of the crash of Eastern Air Lines, Inc. (hereinafter **Eastern’’) flight number 212 on September 11, 1974 near Charlotte, North Carolina. Petitioners Arnold and Mihalek were among the ten survivors of the fiery crash; seventy-two other passengers and crew members were killed. Petitioners filed suit in 1976 in the Western District of North Carolina, invoking jurisdic- tion under 28 U.S.C. §1332(a)(1) by virtue of diversity of citizen- ship between them as citizens of South Carolina and Eastern, a citizen of Florida. Their claims against Eastern were consolidated with other survivors’ and decedents’ actions under the authority of Multi-District Litigation docket number 202. Petitioners’ complaints alleged claims for compensatory damages on account of the severe physical and emotional injuries which they sustained as a consequence of the crash and also sought an award of punitive damages upon the basis of both gross negligence by the pilots and willful conduct by Eastern management in ignoring a alleged had existed for several years preceding the 212 crash and was the root cause of that tragedy. 4 Eastern admitted liability for compensatory damages, denied any responsibility for punitive damages and filed a third-party complaint against the United States of America, alleging that the air traffic controllers who were on duty on the morning of September 11, 1974 failed to warn the Eastern pilots of their unauthorized deviation from a normal approach altitude moments before the DC-9 airplane crash- ed approximately three and one-half miles from the runway at Douglas Municipal Airport. Eastern sought contribution from the government with respect to the amount of money damages to be paid Petitioners for their injuries. In February 1977, the Aetna Casualty & Surety Company and eighteen other insurance carriers which had contracted to provide liability and physical property damage coverage for the benefit of Eastern filed suit in the Western District of North Carolina (hereinafter referred to as ‘‘the Aetna case’’) against the United States of America and the four individual air traffic controllers who were in the control tower at the time of the crash. That action sought contribution or indemnity with respect to the approximately $22,000,000 which those insurance companies had previously paid in settlements of passenger injury and death claims and for the destruction of the airplane. On November |, 1977, the District Court entered an Order con- solidating for purposes of discovery and trial the six remaining lawsuits arising out of the crash ten pending before the Court, in- cluding Petitioners’ claims, a wrongful death action (Helen Rae Weston, as Executrix of the Estate of Lewis M. Weston vs. Eastern Airlines, Inc.; hereinafter ‘‘Weston’’) and the Aetna case.' The November |, 1977 Order indicated+that the consolidation of trial would be subject to reconsideration after the completion of discovery, upon ‘‘timely proper showing.’’ (J.A.? I, p. 192). In a number of pre-trial rulings and memoranda after that initial Order, the District Court reiterated its intention to conduct a single, consolidated trial of all matters arising from the crash. An Order ‘Under the terms of the Multi-Distnet Litigation consolidation, this District Court had overseen proceedings in a number of other cases arising out of the crash and, in the spring of 1976, had conducted the trial of several wrongful death claims involving the issues of compensatory and punitive damages. All of those claims were resolved short of jury verdict *Citations to ''J.A. |, Il, etc.” are to the multi-volume Joint Appendix filed in the Court of Appeals for the Fourth Circuit. Citations to ‘Appendix A"’ or other alphabetically designated appendices refer to the Appendix to this Petition of August 24, 1979 states: I intend to have only this one more trial on all the fact issues in these cases . . .. I do not intend to have any separate trials later on the issues between the original defendants on the one hand and the airline [sic] controllers on the other. That case will be disposed of in the same factual inquiry. (J.A. I, p. 233). Twelve days before trial, Eastern and the plaintiffs in the Aetna case filed motions seeking a severance of the trial of Petitioners’ claims from the Aetna case upon the grounds that revelation of the fact of Eastern’s liability insurance coverage to the jury might pre- judice its defense on the issues df compensatory and punitive damage entitlement. In the exercise of its discretion under F.R.C.P. Rule 42, the District Court determined that any potential prejudice to Eastern was far outweighed by the risk of inconsistent adjudica- tions of the common factual and legal issues present in the con- solidated casts, in addition to the practical burden upon parties, witnesses and judicial resources which separate trials would have meant. The request for severance was denied and trial was scheduled to begin on November 5, 1979. The decision by the District Court not to sever was one of the principal grounds for appeal by Eastern and was specifically ad- dressed by the majority opinion of the panel of the Fourth Circuit Court of Appeals: The risks of prejudice and possible confusion as iden- tified by the Appellants were obvious ones which in the exercise of a sound judicial discretion the district court was obliged to weigh. See Molever vs. Levenson, 539 F.2d 996 (4th Cir. 1976). Failure carefully to consider them and the alternative procedures advanced by Ap- pellants as a means of avoiding them may well have con- stituted an abuse of discretion. But the record shows that they were carefully weighed, both in absolute terms and in relation to countervailing considerations also necessary to sound decision. 681 F.2d at 193 (Appendix D, p. 6d).’ rThe dissent from the panel opinion by Murnaghan J. agreed that consolida- tion was ‘theoretically poper,”’ 681 F 2d at 207, but this view was abandoned 6 The trial of Petitioners’ claims and the Aetna case consumed four weeks. On November 29, 1979, after seventeen hours of deliberation, the jury announced its verdict which awarded Arnold $3,027,500, Mihalek $1,137,500 and the executrix Weston $847,000 in actual damages but which declined to award punitive damages. The air traffic controllers were absolved of any fault in causing the crash, a conclusion which was consistent with the District Court's judgment in favor of the government in that aspect of the Aetna case brought under the Federal Tort Claims Act, 28 U.S.C. §1346(b), in which the court served as trier-of-fact. On December 8, 1979, Eastern filed motions under F.R.C.P. Rule 59 for new trials in Petitioners’ and the Weston cases solely as to the amount of compensatory damages. One of the grounds enumerated in those motions was a concern that certain statements and arguments made by counsel for Petitioners during the trial and particularly during the course of final argument had inflamed the jury and had improperly affected the amount of compensatory damages given Petitioners. Eastern never contended that the amount of the jury awards represented an improper compromise of the com- pensatory and punitive damage issues, ‘‘[T]here is no basis in the record or in the events at the trial to support the theory that the jury's verdict in these cases resulted from a compromise of the ac- tual damages issues and the issue of Eastern’s liability for punitive damages.’ (Eastern’s brief in support of motions for new trials; J.A. 1, p. 452). The District Court denied the motions for new trials and entered its judgment upon the jury verdicts in favor of Petitioners and Weston on January 22, 1980. (Appendices A, B and C, infra, at pp. la, 1b and ic). Eastern appealed to the United States Court of Appeals for the Fourth Circui:. A three-judge panel of that court rendered its judg- ment on June 4, 1982, affirming by vote of two to one the compen- satory dariage awards rendered to Petitioners. 681 F.2d 186; (Ap- pendix D, infra, at p. 1d). With respect to the contention by Eastern by the time the en banc judgment of the Circuit Court of Appeals was announced. (Appendix F, infra, at p. 12f). “The Weston case is not included in this petition and the judgment of the district court is not printed in the Appendix. Weston was unanimously reversed by the panel of the Fourth Circuit and no petition for rehearing was filed. (Appendix D, at p. 28d). - that the jury's deliberations had been improperly influenced by the argument and comments of Petitioners’ counsel, the majority agreed that certain portions of the argument were either technically im- proper or offensive. Of more critical importance said the majority was whether, in the factual context of this case and the particular circumstances of the questioned arguments, actual prejudice to Eastern could be shown to have occurred. In deciding whether there was a reasonable probability that the conduct complained of im- properly influenced the jury in reaching its verdict, the majority concluded: The theoretical possibility that either alone or in cumulative effect these [improper arguments] may have exerted some generally improper influence on the jury's deliberations cannot be gainsaid. To find this a reasonable probability, however, would denigrate a jury whose ob- vious care in deliberating on this case over a period of some seventeen hours strongly belies even the possibili- ty that its reason and its will to obey its mandate could have been subverted by such uninspired flights of invective. 681 F.2d at 199 (Appendix D, at p. 16d). Eastern filed a petition for rehearing and suggested that the rehear- ing be en banc. On December 23, 1982, the Court of Appeals entered its Order (Appendix E, infra, at p. le) , describing the circumstances of the vote on the petition and tentatively granting rehearing en banc. Of the ten regular, active judges of the Fourth Circuit, five voted in favor of rehearing, four voted against and one judge did not vote because of recusal.* F hearing en banc was held on February 8, 1983. By its per curiam judgment entered July 8, 1983, the Circuit Court announc- ed the results of that rehearing: [1] the 5-4 vote of the ten circuit judges of the Fourth Circuit constituted a determination by a majority to grant rehearing en banc under 28 U.S.C. §46(c); and SOne of the ten regular, active circuit judges who voted against rehearing en banc subsequently took senior status after the vote had been taken but before it was announced by the Court. The possible impact of that fact upon the determina- tion of what constitutes a majority sufficient to convene the Circuit Court en banc was specifically not considered or decided in the judgment entered by the Fourth Circuit on July 8 1983. (Appendix F, infra, at 4f). [2] by vote of five to four, the judgments of the District Court in Petitioner's personal injury actions were reversed and remanded for retrial as to the amount of compensatory damages. The original panel dissent by Circuit Judge Murnaghan became the rationale for the en banc reversal on the merits. In strongly- worded dissents, two circuit judges registered disagreement with the method by which the circuit court convened itself en banc, respecting both the interpretation of 28 U.S.C. §46(c) and the legitimacy of the exercise in this particular case. (Appendix F at pp. 13f and 23f). Reasous for Gianting the Writ The proper and consistent implementation of 28 U.S.C. §46(c) by the Circuit Courts of Appeals in uie exercise of the en banc power is an important matter of federal law which this Court has careful- ly monitored for over forty years. There presently exists among the circuits a direct decisional conflict concerning what constitutes ‘‘a majority of the regular, active judges of the circuit’’ for pur- poses of convening an en banc court when one or more circuit judges recuses himself from voting on a petition for rehearing en banc. In addition, the result reached by the Fourth Circuit Court of Ap- peals in Petitioners’ case is arguably in conflict with this Court's holding in Shenker vs. Baltimore & Ohio R.R. Co., 374 U.S 1 (1963). This Court should grant Petitioners’ writ of certiorari in order to provide authoritative guidance to the circuit courts on this recurring aspect of federal procedural law. POINT I This Court is the final arbiter of the differing interpretations of 28 U.S.C. §46(c) which are producing irreconc!\#ile decisional conflicts among the circuit courts in the exercise of the en banc power. The genesis of the authority by which the circuit courts of ap- peals convene for en banc hearings and rehearings was this Court's decision in Textile Mills Securities Corp. vs. Commissioner, 314 U.S. 326 (1941). In resolving a conflict between the Third and Ninth Circuits, this Court sanctioned utilization of the en banc power tc provide ‘‘more effective judicial administration.’’ 314 U.S. at 335. 9 Congress codified the en banc procedure by enacting, in 1948, 28 U.S.C. §46(c) (hereinafter ‘'§46(c)'’) in a form which then provided: Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the cir- cuit who are in active service. A court in banc shall con- sist of all active circuit judges of the circuit. The operative language describing the method by which hearing or rehearing en banc may be authorized has not been changed by Congress in the ensuing thirty-five years, save for the addition of the word ‘‘regular’’ before ‘‘active service’’ by amendment in 1963. On four occasions since the decision in Textile Mills, this Court has granted certiorari to resolve specific questions as to the correct interpretation of §46(c).° In the Western Pacific Railroad Case, supra, while stating that §46(c) was a grant of power to a circuit, which ‘‘vested [it] with a wide latitude of discretion to decide for itself just how that power shall be exercised.’’ 345 U.S. at 259, this Court specifically reserved unto itself the right to monitor the exercise of that discretion: If §46(c) is to achieve its fundamental purpose, certain fundamental requirements should be observed by the Courts of Appeal. In the exercise of our ‘‘general power to supervise the administration of justice in the federal courts’’ the responsibility lies with this court to define these requirements and insure their observance. 345 U.S. at 260 (footnote omitted). The time has come for this Court to once more exercise its general *The Western Pacific R.R. Case, 345 U.S. 247 (1953), construing the 1948 en banc statute as a grant of power to the circuit courts to order such hearings and to establish a procedure for the exercise of the power, Shenker vs. Baltimore & Ohio R.R. Co., 374 U.S. 1 (1963), holding that the procedure for handling en banc petitions is a matter of discretion for the circuit courts; United States vs. American-Foreign S.S. Corp., 363 U.S, 685 (1960), holding that a retired circuit judge is ineligible to participate in rehearing en banc; and Moody vs. Albemarle Paper Company, 417 U.S. 622 (1974), holding that a senior judge who sat on a case initially was ineligible to vote on the question of whether to grant rehearing en bane, 10 supervisory power to consider an aspect of §46(c) which has spawned a conflict of decisional results among the circuit courts. The issue is how a ‘‘majority of the circuit judges of the circuit’’ necessary to order en banc rehearing is determined when one or more other- wise regular, active judges recuses himself from voting on a peti- tion, More specifically, should the total number of ‘‘regular, ac- tive judges of the circuit’’ from among whom the necessary ma- jority of §46(c) must come be reduced by the non-inclusion of the recused judge? A. Conflict Between the Fourth Circuit in this Case and the Decision by the Sixth Circuit in Clark vs. American Broad- casting Company, Inc., 684 F.2d 1208 (1982), cert. denied, U.S. —__._ , 7§ L.Ed.2d 792 (No. 82-1288, March 21, 1983). In Petitioners’ case, the Fourth Circuit construed §46(c) as re- quiring the exclusion of the recused circuit judge from the calcula- tion of the majority necessary to order en banc rehearing. Thus, affirmative votes by only five of the ten regular, active circuit judges provided the basis for the Order granting the en banc rehearing of February 8, 1983. (Appendix E, at p. 2e). The Fourth Circuit premised its authority for this interpretation of §46(c) upon the language of the statute itself. (Appendix F, at pp. 4-6f). There is no rule in the Fourth Circuit concerning the general procedure for voting on a petition for rehearing en banc or the impact upon the majority formulation resulting from the recusal of one or more cir- cuit judges, In a factually identical situation, a contrary result was reached by the Sixth Circuit Court of Appeals in Clark vs, American Broad- casting Company, Inc., supra, There, a grant of summary judg- ment by the district court was reversed by a two to one majority of the panel which heard the appeal. A timely petition for rehear- ing and suggestion for rehearing en banc was filed and the petition was initially granted. Approximately six weeks later, the Sixth Cir- cuit withdrew its earlier Order as having been entered ‘‘in error,”’ explaining ‘‘that in fact the 5-4 vote (one active judge being dis- qualified) failed to attain the 6 affirmative votes required to con- stitute ‘a majority of the [10] circuit judges who [were] in regular, active service’ within the meaning of Rule 35(a) of the Federal Rules of Appellate Procedure.'’684 F.2d at 1226 (citations omitted). Rehearing en banc was thus denied despite the affirmative vote of five of the ten regular, active judges of the Sixth Circuit. American Broadcasting Co. petitioned for a writ of certiorari. On March 21, 1983 this Court denied that petition, thereby leav- ing intact the Sixth Circuit's interpretation of the majority require- ment of §46(c). Without improperly inferring significance to this Court's denial of that petition, if the decision by the Fourth Circuit to exclude the recused judge from the majority formulation is not corrected by summary reversal at this juncture, Petitioners submit that there presently exists an irreconcilable decisional conflict bet- ween the Clark case and the result obtained by the Fourth Circuit here. Without resort to any rule of procedure, both circuits inter- preted the majority requirement of §46(c) in the context of a 5-4-1 vote and reached diametrically opposite results. Consistent with its general supervisory power over the administra- tion of justice in the federal system and its demonstrated willingness to interpret §46(c) for the circuit courts and the litigants who ap- pear there, this Court should grant Petitioners’ writ of certiorari to address this narrow question of federal law and resolve the deci- sional conflict which now exists. B. An Apparent Decisional Conflict in the Interpretation of §$46(c) between the Fourth and Ninth Circuits and Decisions of the Second, Third, Seventh and D.C. Circuit Courts; Confusion Concerning the Majority Requirement. The decision by the Fourth Circuit to proceed with rehearing en banc despite less than an absolute numerical majority of that cir- cuit’s judges having voted to do so is in conflict with the result reach- ed by the Second, Third, Seventh and D.C. Circuits when those courts were faced with a similar factual situation. In Zahn vs. International Paper Company, 469 F.2d 2033 (2d Cir. 1972), aff'd on other grounds, 414 U.S. 291 (1973), a peti- tion for rehearing was considered by the eight regular, active judges of the circuit. One judge disqualified himself and the remaining judges split 4-3 in favor of rehearing. Rehearing was denied for lack of ‘‘an affirmative vote ‘by a majority of the circuit judges of the circuit who are in regular, active service.’ '’ 469 F.2d at 1040, citing §46(c).’ ’That literal interpretation of §46(c) was reiterated by the Second Circuit in Boyd vs. Lefrak Organization, §17 F.2d 918 (1975). 12 In addition to the Second Circuit, a clear majority of the other circuit courts of this nation follow a literal reading of the majority requirement of §46(c). Curtiss-Wright Corp. vs. General Electric Company, 599 F.2d 1259 (3d Cir. 1979) (rehearing denied with four votes in favor, three against and two judges not participating); Copper and Brass Fabricators Council, Inc. vs. Department of Treasury, 679 F.2d 951 (D.C. Cir. 1982), rehearing denied, un- published order number 81-2091 (August 3, 1982) (five votes to rehear, three opposed, two judges not participating); Porter Coun- ty Chapter of Isaac Walton League vs. Atomic Energy Commission, 515 F.2d 513 (7th Cir. 1978) (rehearing denied where four judges voted in favor, three voted against and one took no part), rev'd on other grounds, sub nom. Northern Indiana Public Service Com- pany vs. Porter County Chapter of Isaac Walton League, 423 U.S. 123 (1975). The Ninth Circuit apparently convenes to rehear matters en banc only when a majority of its regular, active and non-disqualified judges vote to do so. Ford Motor Company vs. Federal Trade Com- mission, 673 F.2d 1008, 1012, n. 1 (1982) (Reinhardt, J. dissen- ting). The Eighth Circuit has adopted a specific rule defining the constituency of eligible circuit judges from among which the re- quired majority must come.* In the year following Zahn, supra, the Judicial Conference of the United States recommended to Congress a change in §46(c) which would ‘‘make clear that a majority of judges in regular, ac- tive service who are entitled to vote should be sufficient to en banc a case.’' 1973 Report of the Proceedings of the Judicial Conference of the United States 47. The Conference report acknowledged that as the statute existed in 1973, ‘‘if a judge disqualified himself there must still be a majority of the entire membership voting for en banc sitting."’ Jd. at 47. No congressional action was taken to imple- ment that suggested modification of §46(c). Since 1973, Congress has seen fit to twice amend §46(c), Pub.L. 95-486, 92 Stat. 1629 (1978) and Pub.L. 97-164, 96 Stat. 25 (1982), *Rule 16(a) of the U.S. Court of Appeals for the Eighth Circuit (1981) pro- vides, **{A] majority of the judges . . . in regular, active service who are active- ly participating in the affairs of the court and who are not disqualified in the par- ticular case or controversy may order a. . . rehearing en banc . . .."’ Petitioners are informed that this Rule grew out of a situation in the Eighth Circuit in which a regular, active circuit judge was due to illness occasionally prevented from tak- ing an active role in the affairs of the court. 13 but on both occasions nothing was done to alter the language re- quiring a majority of all the regular, active circuit judges to order rehearing en banc.* This Court has previously described §46(c) as being ‘‘not without ambiguity.’’ Western Pacific R.R. Case, supra, at 267. However, the legislative history reflects satisfaction by Con- gress with that specific portion of the statute which, in straightfor- ward terms, provides that rehearing en banc may not be had unless a numerical majority of all regular, active circuit judges votes to do so. ‘*There is nothing in the history of the legislation to indicate that these words should be understood to mean anything else than what they say.’’ American-Foreign S.S. Corp., supra, 363 U.S. at 688-89 (in that instance, this Court interpreted an ‘‘active’’ judge as being ‘‘a judge who has not retired from regular, active service’’). Five circuit courts of this nation have read §46(c) in cases com- ing before them and have consistently concluded that a numerical majority derived from all the regular, active judges of the circuit is a prerequisite to the valid exercise of the en banc power. The Ninth Circuit would seem to permit the exclusion of disqualified or abstaining circuit judges from the process by which the en banc court is convened. By its decision in Petitioners’ case, the Fourth Circuit clearly would require such an approach. Surely the discretion vested in the circuits to determine for themselves the format for the exercise of the en banc power is not so broad as to permit such diametrically opposed interpretations of §46(c) to co-exist in a unitary system of federal justice. Had Peti- tioners’ case arisen in the Second, Third, Sixth, Seventh, or D.C. Circuits and a similar 5-4-1 vote on the petition for rehearing en banc occurred, under the decisional policy of those circuits no rehearing would have been allowed and Petitioners would still have the benefit of their jury verdicts. The Fourth Circuit has read the identical federal statute and concluded that it was authorized to pro- ceed with rehearing en banc, a process by which the ultimate reversal of the panel opinion was achieved. Such a disparity of interpretation of $46(c) will inevitably pro- duce for many other litigants in many other cases a confusing and "The legislative prerogative for amending §46(c) has heen acknowledged by this Court, *'[I}ndeed, the Judicial Conference of the United States has approved sug- gested legislative changes that would provide such an exception, and a bill to amend the statute has been introduced in Congress, but this only serves to emphasize that if the statute is to be changed, it is for Congress, not us, to change it." American-Foreign SS. Corp., supra, 363 U.S. at 690-91. 14 uneven application of the standard by which their verdicts may be affected by the en banc power of the circuit courts of this nation. Such a result runs contrary to the very purpose of the en banc power as Originally contemplated by this Court: The principal utility of determinations by the courts of appeals en banc is to enable the court to maintain its in- tegrity as an institution by making it possible for a ma- jority of its judges always to control and thereby to secure uniformity and continuity in its decisions . . .. American-Foreign S.S. Corp., supra, at 689-90 (quoting from Maris, Hearings and Rehearings in Banc, 14 F.R.D. 91, 96 (1954), The disparity in interpretation of §46(c) can only be resolved by this Court's exercise of the general supervisory power in the vehi- cle of Petitioners’ case. C. Conflict Between the Decision by the Fourth Circuit Here and This Court’s Holding in Shenker vs. Baltimore & Ohio R.R. Co., 374 U.S. 1 (1963). A third and equally important reason why this Court should grant Petitioners’ writ is the fact that this Court may very well have previously decided that §46(c) requires an absolute numerical ma- jority of circuit judges to grant rehearing en banc and thus, the ac- tion by the Fourth Circuit in proceeding without such a majority would be in direct conflict with the authority of this Court. Circuit Judge Widener, writing in dissent from the action taken by his fellow judges, concluded that the holding in Shenker is irreconcilably at odds with the result reached by the Fourth Circuit: In Shenker, the Supreme Court affirmed a decision of the Third Circuit which required an affirmative vote of an absolute majority of the active members of the court and which did not require each member of the court to vote on petitions for rehearing en banc. At the time Shenker filed his petition for rehearing en banc, eight judges were in active service. Four of the eight voted to nshear the case; two voted not to rehear; and two abs- taine( for reasons that do not appear either in the Supreme Court's or the Court of Appeals’ opinion. On this vote, 15 the Third Circuit denied the petition for rehearing en banc and the Supreme Court found no error in the denial. * * * * In the first place, so far as } can ascertain, there was no rule in the Third Circuit except a near literal copying of the words of the statute. It was merely a practice of that circuit which was given effect by decision in the Shenker case. Thus, the decision of the Third Circuit was that an absolute majority was required, and this was af- firmed by the Supreme Court. Both the holding of the Third Circuit and the Supreme Court are entirely con- sistent with the wording of the statute. . . . [T]he fact situation presented to the Supreme Court in Shenker is the same as presented to us here. Since the Shenker case offered a perfect opportunity for the Supreme Court to adopt the view the majority now does, and it did not do so, I suggest that, because the adoption of the majority view here would have changed the result of the Shenker case, the Supreme Court has rejected the position the ma jority now embraces. Appendix F at pp. 15-16f (footnote omitted; this conclusion was shared by Phillips, J who wrote a separate, compelling dissent, Appendix F at p. 23f). This Court is fully cognizant of what its decision in Shenker represents and the implications of that holding for the purpose of deciding whether the Fourth Circuit has either ignored or misunderstood that decision. In Petitioners’ view, all the reasonable inferences of the factual setting of the denial of en banc rehearing by the Third Circuit and this Court's affirmation of that result sup- port a conclusion that Shenker expressly decided that §46(c) requires an absolute majority of circuit judges to order en banc rehearing, regardless of how many of the judges may choose not to vote on a particular petition. It [§46(c)] vests in the court the power to order hearings in banc. It goes no further. It neither forbids nor requires each active member of a Court of Appeals to entertain each petition for a hearing or rehearing in banc. The court 16 is left free to devise its own administrative means whereby a majority may order such a hearing. 374 U.S. at 4-5, citing Western Pacific R.R. Case, supra, 345 U.S. at 250 (emphasis added). Petitioners contend that this excerpt from Shenker means that a litigant may not be heard to complain if his petition for rehearing simply fails to garner support from a majority of a// the regular, active circuit judges, even if more than half of those who do vote favor rehearing. Simply put, §46(c) does not require a majority of circuit judges to vote against a petition for rehearing for it to be denied. In reaching its decision in Shenker, the Third Circuit relied upon a literal reading of §46(c) as its rationale for requiring an absolute majority. With no different starting point, the Fourth Circuit has concluded -- by excluding for purposes of computing that majority the recused Judge Ervin, who was in all other respects a regular, active judge of the circuit -- that less than an absolute majority is sufficient to convene for en banc rehearing. Those two views of the same statutory provision simply cannot be harmonized. If Shenker ii: fact represents this Court's answer in the negative to the question raised by Petitioners at the threshold of their peti- tion (see p. 2, supra), then the appropriate action to be taken by this Court is the granting of certiorari and summary reversal of the en banc judgment of the Fourth Circuit Court of Appeals. POINT Il In Petitioners’ case, the Fourth Circuit Court of Appeals abus- ed the limited legitimate purposes of the en banc rehearing power to substitute the decision of a tenuous majority for that of the panel judgment, for reasons unrelated to the effective ad- ministration of the law or policy of this circuit. e other statutory provision affecting exercise of the en banc power by the circuit court is Federal Rule of Appellate Procedure 35. Subsection (a) states: When Hearing or Rehearing en Banc Will be Ordered. A majority of the circuit judges who are in regular ac- tive service may order that an appeal or other proceedings 17 be heard or reheard by the court of appeals en banc. Such a hearing or rehearing is not favored and ordinarily will not be ordered except (1) when consideration by the full court is necessary to secure or maintain uniformity of its decisions, or (2) when the proceeding involves a ques- tion of exceptional importance. The rule reiterates the majority requirement of §46(c) and sets out a criteria for identification of those special cases which war- rant utilization of the en banc procedure. Because it compels the time and attention of every circuit judge, the en banc rehearing pro- cess is ‘not favored,’’'® a pragmatic restriction long recognized by this Court: ‘‘En banc courts are the exception, not the rule. They are convened only when extraordinary circumstances exist that call for authoritative consideration and decision by those charged with the administration and development of the law of the Circuit."’ American-Foreign S.S. Corp., supra, 363 U.S. at 689. The policy underlying the en banc rehearing statute is ‘‘that the active circuit judges shall determine the major doctrinal trends of the future for their court.’ /d., at 690. There is now general agreement among the circuits that the ‘extraordinary’ cases meriting en banc treat- ment are those which involve legal issues likely to impact upon many other cases -- i.e., those of real significance to the legal process as well as to the particular litigants involved. Church of Scientology of California v. Foley, 640 F.2d 1335, 1341 (D.C. Cir. 1981) en banc (Robinson, J., dissenting). In short, the terms of the procedural rule itself, as well as the policy considerations affecting invocation of the en banc power make clear that it is not intended for monitor- ing panel decision-making or reconsideration of cases merely to cor- rect what several circuit judges may feel is either an unjust or ques- tionable panel decision. With these considerations in mind, Petitioners contend that the en banc judgment rendered below represents a capricious misuse of the power, whereby the uninformed will of a narrow five-four '°The degree to which en banc rehearings are disfavored is illustrated by statistics for fiscal 1980. In that year, 23,200 appeals were filed in the Federal Courts of Appeals; 10,598 were orally heard or submitted on briefs. Of these, only 65 cases were heard en banc. 1980 Annual Report of the Director, Administrative Office of the United States Courts at 43, Table 1; 49, Table 7, cited in Church of Scien- tology of California v. Foley, 640 F.2d 1335, 1341 n. 48 (D.C. Cir. 1979), en banc (Robinson, J., dissenting). 18 majority has imposed itself to overturn the panel decision for reasons most obviously related to the majority's perception of how the ap- peal should be decided. Nothing contained in the opinion of the en banc court suggests that this decision will affect the administration and development of the law of the Fourth Circuit, or that the holding will have any ongoing pertinence to other cases which may hereafter arise in the circuit. Circuit Judge Phillips, who authored the pancl opinion and dissented from the en banc decision, accurately characterized the nature and effect of the action taken by his fellow judges: It obviously resolves no intra-circuit conflict of decision. It neither announces, abandons, nor clarifies any legal principle that might bear upon general ‘‘doctrinal trends”’ in circuit law. It lays down no precedent likely to pro- vide helpful guidance either to the district courts in ex- ercising discretion or to this Court in reviewing exer- cises of discretion in future cases of general comparabili- ty. It deals with no controversy of such general public importance, as opposed to public curiosity, that full-court imprimatur is desirable simply to encourage greater public confidence in the end result. It simply substitutes the judgment of a one-vote majority of the nine-member en banc court for that of a one-vote majority of a three- member panel on purely judgmental questions of trial court discretion not likely ever to recur in even general- lv comparable form. Raw power obviously exists in the larger majority to do this; the real question is the pro- priety of the power's exercise in this or other cases of the general type. Appendix F, at pp. 28-29f. A review of the opinion of the en banc majority confirms this assessment and points up the tenuous, unfortunate quality of judicial prerogative which is being indulged. Five circuit judges agreed that there was ‘‘substantial error’’ (Appendix F at p. 10f) in the denial by the district court of the pre-trial motion to sever Petitioners’ case from the Aetna case. In his dissent from the panel judgment, Cir- cuit Judge Murnaghan had agreed that consolidation was ‘theoretically proper’’ (Appendix D, at p. 30d) but apparently changed his mind on this issue by the time the en banc rehearing was held. The discretionary decision by the district court not to sever 19 the related cases is the on/y matter upon which the en banc majori- ty reached a five-judge concensus. On the critical issue linking the allegedly improper jury arguments by Petitioners’ counsel to the size of the compensatory verdicts, Circuit Judge Widener (in the five-judge maiority on the consolidation question) ‘‘would affirm the judgement of the district court because of lack of contem- poraneous objections and motions for mistrial.’’ (Appendix F at pp. 13-14f) There was at best then a *‘makeshift majority’’ in support of rever- sing the panel judgment because of a different view of the proprie- ty of the district court’s decision not to sever the trials of Petitioners’ claims from the Aetna case. On the face of the en banc majority opinion, that is the only articulated basis for the reversal and re- mand directed by the circuit court. Any pretense that the consolida- tion issue in this appeal is either of exceptional legal importance or likely to affect future doctrinal trends within the Fourth Circuit is dispelled by the er hanc majority's own treatment of the question: There is no need for us to aiinounce a rule of universal applicability, imposing as an absolute necessity the separate trial of every case which is a candidate for con- solidation if consolidation results in revelation to the jury of insurance coverage for a defendant. Nevertheless, looking at the facts and circumstances of the particular case, we are Satisfied that knowledge of Eastern’s in- surance coverage, and awareness of the approximate quantum of recovery for virtually every other crash vic- tim, implanted in the minds of the jury resulted in pre- judice, almost surely prejudice from the outset and cer- tainly prejudice after the trial had wended its way to conclusion. Appendix F at p. lif (footnote omitted). This heavy-handed, simplistic rationalization for achieving what five circuit judges apparently felt was the ‘‘right’’ result in this particular appeal underscores Petitioners’ contention that the en banc power was abused in this instance by the circuit court. The legal issue presented by Eastern’s appeal was the possible abuse of discretion by the district court in its denial of the motions for new trials as to the amount of compensatory damages. The prin- cipal contention of the appeal was that improper argument by Peti- 20 tioners’ counsel had influenced the jury to award excessive com- pensatory damages. After conducting a painstaking, principled analysis of over 2,000 pages of the record on appeal, the panel ma- jority concluded not only was there no showing of abuse of discre- tion by the district court, but that the claim concerning the size of the verdicts and the impact of the questioned jury arguments upon those verdicts was simply not borne out by the events of the trial. Recognizing the inherently limited scope of appellate review of trial court discretionary rulings, the panel majority focused its analysis on the totality of circumstances surrounding the statements made by Petitioners’ counsel as the only legitimate method for deciding whether there was a reasonable probability that the ver- dicts were the result of some improper influence. See, City of Cleveland v. Peter Kiewit Sons’ Co., 624 F. 2d 749, 756 (6th Cir. 1980); Appendix D at p. 13-14d. The tactors which the panel majority found persuasive in its deter- mination that prejudicial influence was highly unlikely included, inter alia: {1} the fact that Eastern had admitted liability for com- pensatory damages and the compelling nature of Pet tioners’ injuries made substantial verdicts a certainty; {2} strong, credible evidence was offered in support of the imposition of punitive damages (Appendix D at p. 3d) yet no award was made on that issue; [3] the district court gave frequent, general cautionary instructions to the jury throughout the course of the trial and specifically addressed itself to the only in- stance of jury argument to which contemporaneous objection was made by Eastern’s trial counsel; and [4] perhaps most importantly, that no contemporaneous objections or motions for mistrial were made by defense counsel to the very arguments which Eastern contended on appeal were the source of the excessive verdicts. See, Appendix D at pp. 14-16d; Appendix F at pp. 34-35f. The cumulative effect of these trial circumstances and the real issues facing the jury totally undermine the contention that the 21 damage awards reflected an improper enhancement resulting from statements by Petitioners’ counsel. Of equal importance to the panel majority's conclusion in this respect was the probing analysis of the trial record which it performed -- an essential element of any serious search for a causal connection between alleged prejudicial trial conduct and the resulting verdicts. The panel dissent by Circuit Judge Murnaghan which was adopted as the rationale for the en banc decision never attempted to trace the potential harm of the questioned jury arguments into the ver- dicts themselves. That dissent, and now the en banc majority, con- tented itself with a scathing condemnation of the conduct of Peti- tioners’ counsel as the basis for the conclusion that the verdicts should be reversed, without ever coming to grips with the more critical inquiry whether that conduct in fact prejudiced Eastern’s right to a fair trial. The dissent by Circuit Judge Phillips from the en banc majority decision describes it well: The en banc decision is -- so far as can be discerned from what is said in the two opinions -- rested entirely upon a blunt perception that the misconduct of counsel here is so bad that review need not go beyond a simple recogni- tion of its particular degree of impropriety -- with re- mand for new trial dictated as a matter of course because of the degree perceived and the need to deter repetitions. No attempt is made to assess whether, under a careful record review, it must further be assumed that actual pre- judice to Eastern probably resulted from the misconduct. Appendix F, p. 32f; (emphasis in original). There was no comparable review of the record on appeal under- taken by either the panel dissent or the en banc majority. The language and brevity of the dissent itself demonstrate clearly that the perceived egregious conduct by Petitioners’ counsel was thought to be sufficient justification to warrant reversal, without undertak- ing any detailed review of the actual probability of prejudice. The premise for the observation by the dissent that the district court had “‘lost control of the situation,’’ (see Appendix D at p. 37d, n. 3; Murnaghan, J., dissenting) rests upon its interpretation of the words of a pretrial memorandum (see p. 5, supra.) which the dissent considered an onci invitation to Petitioners’ counsel to perpetrate abuses at trial with the certain knowledge that the district court had 22 precluded itself from declaring a mistrial, regardless of their tran- sgressions. That perception not only defies logic and a commonsense reading of the pretrial memorandum, but ignores as well the documented proof that the district court scrupulously supervised the conduct of a/l/ counsel during the trial and effectively shielded the jury from the extremes of advocacy which the trial of such im- portant and emotional issues inevitably produces. (Appendix D, p. 16d, n. 11 and p. 17d, n. 13; See also Appendix F at p. 32f, n. 10). The particular context of the tragic crash which gave rise to Peti- tioners’ claims and the events of the trial of those claims in November 1979, create a unique backdrop for this appeal -- one which is unlike- ly ever to be duplicated. The language of the decision by the en banc court makes it clear that consideration of the issues in this appeal by the full court was not necessary to secure or maintain uniformity of decisions within the Fourth Circuit. There is nothing contained in this highly fact-specific, unexceptional diversity case to warrant the investment of tinie and resources compelled by con- vening of the en banc circuit court, The only possible explanation for the decision to rehear en banc and the ensuing reversal of the panel judgment was a presumably honest, albeit unarticulated, dif- ference of perspective by five judges as to what should be the out- come of the appeal. Without undertaking any responsible review of the unique facts of this case, the verdicts were overturned by the thinnest of a majority of circuit judges. Petitioners urge upon this honorable Court the conclusion that the action taken by the Fourth Circuit Court of Appeals in revers- ing the panel judgment is not only substantively incorrect, but represents as well a misuse of the important en banc rehearing power which this Court should not brook. Conclusion By its decision to proceed with rehearing en banc in this case, the Fourth Circuit Court of Appeals has placed itself squarely in conflict with the interpretation of the majority requirement of 28 U.S.C. §46(c) which is applied in the Second, Third, Sixth, Seventh and D.C. Circuits. Two other circuits follow policies in connec- tion with en banc rehearings which lend further uncertainty as to the correct interpretation of this federal statute. This unsettled state of affairs among the circuit courts and the importance of the en banc rehearing process to the adjudication of controversies in the federal 23 system warrant exercise of the supervisory power of this Court and granting of the petition of certiorari which Petitioners seek. As a corollary to the resolution of the question concerning §46(c), this Court should carefully scrutinize the particular exercise of the en banc power in this appeal. The proceedings below offer an ex- cellent opportunity for this Court to provide guidance to the circuit courts concerning the limited proper use of the en banc authority and to sanction the misuse of that power committed here by the Fourth Circuit. Petitioners therefore respectfully request that this Court grant their petition for a writ of certiorari, Respectfully submitted. Gary S. Hemric William K. Diehl, Jr. JAMES, McELROY & DIEHL, P.A. 700 Home Federal Building 139 South Tryon Street Charlotte, N.C, 28202 Telephone: 704/372-9870 Counsel for Petitioners DATED: September 26, 1983 APPENDIX A Judgment of the District Court United States District Court W.D. North Carolina Charlotte Division Jan, 22, 1980 RICHARD ARNOLD, IV., Plaintiff, v. EASTERN AIR LINES, INC., Defendant and Third-Party Plaintiff, ¥. UNITED STATES OF AMERICA, Third-Party Defendant. No. C-C-76-108 JUDGMENT McMillan, District Judge. THIS CAUSE was tried to a jury at the November 5-29, 1979, term of civil jury court for the Western District of North Carolina, Charlotte Division, The defendant admitted liability for compen- satory damages and the following issues were submitted to the jury and answered by the jury in the case of the plaintiff Arnold as follows: 1. Was the plaintiff Richard Arnold, IV., injured and damaged by negligence of the defendant Eastern Air Lines, Inc.? Answer: Yes. [As instructed by the court and for purposes of a complete verdict only.] 2. What amount, if any, is the plaintiff Richard Arnold, 2a IV., entitled to recover of the defendant Eastern as compen- satory damages? Answer: $3,027,500.00. 7. In your discretion, what amount of punitive damages, if any, should be awarded? Answer: No. 8. How should the above amount of punitive damages be divided among the plaintiffs? To the plaintiff Arnold: No. NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED: 1. That plaintiff Richard Arnold, IV., have and recover of defen- dant Eastern Air Lines, Inc., the sum of Three Million Twenty- Seven Thousand Five Hundred and No/100 Dollars ($3,027 ,500.00), 2. That this judgment for the above amount is entered nunc pro tunc as of November 29, 1979, the date of the verdict. 3. That plaintiff recover interest on this principal sum at the rate of six percent (6%) per annum computed from and after November 29, 1979. 4. That the court has considered (a) the motion by defendan. Eastern for a partial new trial on the issue of actual damages and (b) the motion of the plaintiff for a conditional new trial on the issue of punitive damages. The court, in its discretion and based upon all the evidence and the circumstances surrounding this trial known to the court, and also for reasons briefly, though not by any means completely, summarized in the accompanying memorandum of deci- sion, denies Eastern’s motion for a partial new trial on the issue of compensatory damages only. As to plaintiff's motion for a new trial on punitive damages, the court orders that if as a result of an appeal there should be a new trial on the question of compensatory damages, then, but only in that event, there shall also be a new trial on the issue of punitive damages. In other words, this is a conditional order granting a new trial on punitive damages nunc pro tunc if a new trial on actual damages is to be had. 5. The usual and customary costs will be assessed against the 3a defendant on those items attributable to proof of actual damages, and against the plaintiff on those items attributable to proof of punitive damages. However, computation and assessment of these costs can await the outcome of the appeal, if any, from this judg- ment; if a new trial is ordered, this order respecting costs will, of course, be modified in accordance with the ultimate outcome of the various issues. ry ) ie) APPENDIX B Judgment of the District Court United States District Court W.D. North Carolina Charlotte Division Jan, 22, 1980 FRANCIS C. MIHALEK, Plainuff, v. EASTERN AIR LINES, INC., Defendant and Third-Party Plaintiff, vy. JNITED STATES OF AMERICA, Third-Party Defendant. C-C-76-249 JUDGMENT McMillan District Judge. THIS CAUSE was tried to a jury at the November 5-29, 1979, term of civil jury court for the Western District of North Carolina, Charlotte Division, The defendant admitted liability for compen- satory damages and the following issues were submitted to the jury and answered by the jury in the case of the plaintiff Mihalek as follows: 3. Was the plaintiff Francis C. Mihalek injured and damag- ed by negligence of the defendant Eastern Air Lines, Inc.? Answer: Yes. [As instructed by the court and for purposes of a complete verdict only.]} 4. What amount, if any, is the plaintiff Francis C. Mihalek entitled to recover of the defendant Eastern as compensatory damages? Answer: $1,137,500.00. 7. In your discretion, what amount of punitive damages, if any, should be awarded? Answer: No. 8. How should the above amount of punitive damages be divided among the plaintiffs? To the plaintiff Mihalek: No. NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED: 1. That plaintiff Francis C. Mihalek have and recover of defen- dant Eastern Air Lines, Inc., the sum of One Million One Hun- dred Thirty-Seven Thousand Five Hundred and No/100 Dollars ($1.137,590.00). 2. That this judgment for the above amount is entered nunc pro tunc as of November 29, 1979, the date of the verdict. 3. That plaintiff recover interest on this principal sum at the rate of six percent (6%) per annum computed from and after November 29, 1979. 4. That the court has considered (a) the motion by defendant Eastern for a partial new trial on the issue of actual damages and (b) the motion of the plaintiff for a conditional new trial on the issue of punitive damages. The court, in its discretion and based upon all the evidence and the circumstances surrounding this trial known to the court, and also for reasons briefly, through not by any means completely, summarized in the accompanying memorandum of deci- sion, denies Eastern’s motion for a partial new trial on the issue of compensatory damages only. As to plaintiff's motion for a new trial on punitive damages, the court orders that if as a result of an appeal there should be a new trial on the question of compensatory damages, then, but only in that event, there shall also be a new trial on the issue of punitive damages. In other words, this is a conditional order granting a new trial on punitive damages nunc pro tunc if a new trial on actual damages is to be had. 5. The usual and customary costs will be assessed against the 3b defendant on those items attributable to proof of actual damages, and against the plaintiff on those items attributable to proof of punitive damages. However, computation and assessment of these costs can await the outcome of the appeal, if any, from this judg- ment; if a new trial is ordered, this order respecting costs will, of course, be modified in accordance with the ultimate outcome of the Various issues. le APPENDIX C Opinion of District Court United States District Court W.D. North Carolina Charlotte Division Jan. 22, 1980 C-C-76-108 RICHARD ARNOLD, IV., Plainuff, Vv, EASTERN AIR LINES, INC., Defendant. C-C-76-249 FRANCIS C. MIHALEK, Plaintiff, Vv. EASTERN AIR LINES, INC., Defendant. C-C-77-006 HELEN RAE WESTON, as Executrix of the Estate of Lewis M. Weston, deceased. Plaintiff, Vv. EASTERN AIR LINES, INC., Defendant. MEMORANDUM OF DECISION McMillan, District Judge. These cases are before the court on various post-verdict motions: (1) defendant's motion to set aside the verdict and for a new trial 2c on compensatory damages only in each of the three cases; (2) plaintiff Arnold's conditional motion for a new trial on the question of punitive damages; (3) plaintiffs’ and defendant's motions regarding the taxing of costs; (4) plaintiff Mihalek’s and plaintiff Weston’s motions for pre-judgment interest; and (5) plaintiffs’ motions for an order requiring a cash appeal bond. MOTIONS TO SET ASIDE THE VERDICT AND FOR NEW TRIAL Eastern’s motion to set aside the verdict in each case rests (1) on the alleged excessiveness of the damage award and (2) on cer- tain prejudicial errors allegedly committed by the court during the trial. A. Assertions of Error. —With one exception to be discussed below, the court is of the opinion that defendant's various asser- tions of error are without merit. 1. Consolidation of the passenger suits with the Aetna suit against the United States and Eastern’s third-party complaint. The court again concludes that there was no error and no pre- judice to Eastern Air Lines in consolidating these cases for trial, for the reasons stated in the court's order of November 1, 1979, denying separate trials. 2. Admission into evidence of photographs and eyewitness testimony about the crash scene. The court took great care to exclude and did exclude photographs and proffered testimony on the crash scene that was not made com- petent by testimony as to what the plaintiffs (in contrast with other witnesses) saw and experienced. The photographs admitted into evidence were in no way inflammatory and prejudicial. 3. Newspaper coverage. The jury was adequately instructed several times in this regard. The court did not tell the jury that it was proper for them to read or to consider press accounts of the case. There is no indication that press accounts of the trial influenced the verdicts. Eastern’s challenge to the instruction is somewhat ironic; the first act by any lawyer which put possibly prejudicial information in the minds of the jury through the press was by one of Eastern’s counsel who ‘*leaked"’ to a reporter on the morning the trial began the informa- ‘on that the United States had made a settlement with the two flight 3c attendants, whose claim was based upon alleged negligence of the air traffic controllers. 4. Evidence of subsequent accidents. This evidence was properly admitted in the trial of the punitive damage question. Since defendant has subsequently argued in its memorandum filed December 14, 1980, that the evidence on the punitive damage question cannot be considered to have influenced the amount of the compensatory award, the court is unable to con- ceive in any event how defendant can simultaneously maintain that it was prejudiced by this evidence. 5. Improper comments by counsel. Comments by counsel where improper were cured by instruc- tions of the court. All the above errors were asserted as grounds for new trial in all three cases. 6. Instructions regarding pain and suffering in the Weston case. Defendant asserts that the court erred in instructing the jury on the issue of decedent's pain and suffering as an element of recoverable damages in the Weston case. The court is now per- suaded that technical error was committed in this one regard. There was apparently no evidence from which the jury could infer that decedent was conscious for even an instant after impact. There should therefore be a new trial in the Weston case uniess plaintiff agrees to a remittitur in the amount of $50,000, which amount the court believes is reasonable and adequate to offset the possibly pre- judicial impact of the court’s erroneous instruction. B. Excessiveness of the Award.—There remains the question whether the damage awards shou!d be set aside in each case as clearly excessive, shocking to the conscience or produced by passion and prejudice. The damage awards in each case are for large sums of money. The court is of the opinion, however, that there is nothing ‘‘ex- cessive’’ or *‘shocking’* in the awards such as should move a court to set aside the considered verdict of the jury. This opinion is bas- ed, in the first place, on the evidence of damages adduced at trial. Only the jury, who actually heard and saw all the lengthy and graphic evidence of damages, can fully appreciate its impact. I will not at- tempt to re-create nor even outline that impact, and will refer to it only as follows: In the Weston case, plaintiff was awarded in damages, for the 4c wrongful death of her husband, $847,000 under a North Carolina Statute which provides: (b) Damages recoverable for death by wrongful act include: (1) Expenses for care, treatment and hospitalization inci- dent to the injury resulting in death; (2) Compensation for pain and suffering of the decedent; (3) The reasonable funeral expenses of the decedent; (4) ihe present monetary value of the decedent to the per- sons entitled to receive the damages recovered, including but not limited to compensation for the loss of the reasonably expected: ~— a. Net income of the decedent, b. Services, protection, care and assistance of the decedent, whether voluntary or obligatory, to the persons entitled to the damages recovered, c. Society, companionship, comfort, guidance, kindly offices and advice of the decedent to the persons entitled to the damages recovered; (5) Such punitive damages as the decedent could have recovered had he survived, and pun'tive damages for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence; (6) Nominal damages when the jury so finds. N.C. Gen. Stat. §20A-18-2(b) (emphasis added). In the Mihalek case, the jury was entitled to conclude from the evidence that plaintiff Mihalek, as a result of the accident, has suf- fered a lifetime pyschic [sic] disability, and that as a result of this disability, a once confident, ambitious, and highly competent business executive has been reduced to passivity, inactivity and despair. The jury evidently accepted plaintiff's theory and evidence of psychic injury; starting from that premise, there is nothing ex- cessive or shocking in the award of $1.1 million that, in addition to other demonstrated elements of damage, compensates Mr. Mihalek for the lifetime loss of what he was as a person before the accident occurred. Sc Finally, Mr. Arnold's account of the pain and suffering resulting from the burns sustained in the crash of Eastern Flight 212 and the ensuing treatment, though dramatic, was credible and without parallel in the experience of the trial judge, which covers twelve years on the bench and twenty-three years as a trial lawyer trying numerous injury cases. This pain and suffering, in combination with the lifetime disfigurement and disability proved at trial, and other proved damages, renders that $3 million award neither excessive or shocking. In the second place, it is a jury verdict we are considering. The jury, not the judge, is the agency under our constitutional system which ‘‘makes the market"’ in cases like this; the jury is not bound by the appraisals made for purposes of compromise settlement, nor by the ‘‘average’’ of about a third of a million dollars per person, which, under the evidence, had been paid four to six years ago in settlement of some seventy-odd otiier claims arising out of this catastrophe. The size of the awards is not excessive when viewed in the light of recent personal injury verdicts in jurisdictions in- cluding North Carolina of which the court is aware; of the current rate of inflation, and of previous settlements of soine individual suits for far more than $1 million as long as four years ago for wrongful death claims arising out of the flight of Eastern 212. There is also a motion by plaintiffs for a new trial on the issues of punitive damages in the event the compensatory damage award is set aside. This motion rests on three grounds: allegedly improper appeals by defense counsel to sympathy and emotion; disregard by the jury of the court’s instructions; and new evidence. The first and second are without support in the record and are without merit. The new evidence asserted as the third ground relates to the recent at- tempted landing of Eastern Air Lines Flight 623 at Brockenborough Airport on Sunday, November 25, 1979. The incident occurred dur- ing the trial and before the present cases were sent to the jury but did not come to public attention until after the jury returned with its verdict. Press reports indicate that the crew of southbound Flight 623 mistook a small general aviation facility north of Charlotte for the much larger Douglas Municipal Airport several miles to the southwest, and was within some 600 feet of landing on its short, thinly paved runway when warned off by Charlotte air traffic con- trol. Plaintiffs contend that the circumstances surrounding the Brockenborough incident led to show that cockpit discipline remains a problem at Eastern despite defendant’s assertions to the contrary. 6c It is possible that evidence of this near-catastrophe would be com- petent in a new trial; the court, however, is of the opinion that this evidence, standing alone, is insufficient to warrant retrial of an issue that already has been the subject of extensive proof and argument and lengthy deliberation by a properly instructed jury. In any event, it is unnecessary to decide plaintiffs’ motion since the court today concludes that the damage verdicts should not be set aside. The court is or the view, however, that if a new trial is ordered on appeal, such new trial should be on all questions and not limited simply to the amount of compensatory damages. The court arrives at this conclusior without joy. Substantial court time has been twice consumed in trial of the punitive damages question. While plain- tiffs made a strong case for punitive damages, the jury decision not to award punitive damages is supportable on the evidence. The court believes, however, that if a new trial is ordered pursuant to appeal, then it would be unjust to re-try the cases solely on the issue of compensatory damages. This is based on the court's view that one probable reason for the large verdicts is that the compensatory award includes some element of disguised punitive damages or represents a compromise in which one or more persons on the jury traded their convictions on the punitive damage question for an increase in com- pensatory damages. There is no evidence before the court on the jury's discussions in this regard. The court's surmise is baseu on the strength of the case for punitive damages and the length of time the jury apparently devoted to deliberating the question of liability for punitive damages. If anything improperly influenced the amount of damages awarded, the court views the evidence of reckless, in- attentive and wanton misconduct by the crew (and the amazing ap- proval displayed by Eastern’. resident and its flight safety chiefs for routine disregard by flight crews of the warning signals they were getting from altimeters and terrain warning indicators and other safety devices installed for their use) as being much more likely causative factors than any of the various errors alleged by defen- dant. Indeed, at hearing on the post-verdict motions, counsel for defendant offered just such explanation of the size of the verdici. Now that it has become apparent a compromise verdict would war- rant and might even compel a new trial on all issues or none, defen- dant has abandoned this view of the verdict. In its memorandum filed January 14, 1980, defendam contends that ‘‘the character of Eastern Air Lines’ conduct did not bear upon the amount of actual damages due to Plaintiffs as compensation for injury’’ and that ‘‘there is no substantial indication that the verdicts were the result of a com- 7c promise.’’ If there is a substantial probability that the verdict was such a compromise, re-trial of the punitive damage issue along with the compensatory damages would appear proper under controlling decisions in this circuit and the weight of authority in other jurisdic- tions. See Great Coastal Express, Inc. v. International Brotherhood of Teamsters, 511 F. 2d 839, 846 (4th Cir. 1975), cert. denied, 425 U.S. 975 (1976); 6A Moore's Federal Practice §59.06, at 81-84. COSTS The court is of the opinion that costs should be apportioned bet- ween the compensatory and punitive phases of the proceedings, with Eastern recovering its costs in defending punitive liability and plain- tiffs recovering their costs in prosecuting their claims for compensation. INTEREST A. Pre-verdict Interest. Counsel for plaintiffs have moved for an order assessing interest against the defendant from the date of the injuries or, in the alter- native, from the date of the first pleading filed by defendant admit- ting liability for compensatory damages. Plaintiffs should not receive pre-verdict interest. It is clear both from the authority cited in support of the motion and from con- trolling decisions in North Carolina that pre-judgment interest on some determinable amount is recoverable, but only as an element of damages. See, e.g., Yancey v. N.C. State Highway Commission, 221 N.C. 185 (1942). In order to recover, plaintiffs must plead their right to pre-judgment interest and submit an issue thereon to the jury. Had plaintiffs requested an appropriate instruction, the court could have permitted the jury to award pre-judgment interest on those elements of damage that were readily and precisely deter- minable prior to trial. Plaintiffs did not do so. They cannot raise the question for the first time now. In addition, adding pre-judgment interest would be inequitable. The chief factor delaying trial on the amount of compensatory damages was the plaintiffs’ pursuit of their punitive damage claim. In view of the high rate of inflation in recent years, it is unlikely that a jury in 1976 or 1977 would have returned verdicts in the amounts in fact awarded in 1979. Thus there is already an ‘‘interest’’ element in the awards, and to add on pre-judgment interest to these amounts would, in a real sense, constitute a double recovery. Bc B. Post-verdict Interest. In view of the large sums involved, plaintiffs should not be pre- judiced by the delay in the entry of judgment necessitated by con- sideration of the post-verdict motions. Judgment will therefore be entered nunc pro tunc as of the date of the verdicts and the legal rate of interest calculated from that date pursuant to 28 U.S.C. §1961. C. Supersedeas Bond, Under Rule 62 of the Federal Rules of Civil Procedure, a supersedeas bond is the normal requirement to stay execution pen- ding appeal from a judgment for damages. The court will deal with any motions or questions about that subject when proposed bonds are presented for approval. Id APPENDIX D Panel Opinion of the Court of Appeals UNITED STATES COURT OF APPEALS For The Fourth Circuit Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. James B. McMillan, District Judge. RICHARD ARNOLD, IV, Appellee, V. EASTERN AIR LINES, INC., Appellant, Vv. UNITED STATES OF AMERICA, Appellee. No. 80-1245 FRANCIS C. MIHALEK, Appellee, Ve EASTERN AIR LINES, INC., Appellant, V. UNITED STATES OF AMERICA, Appellee. No. 80-1246 HELEN RAE WESTON, as Executrix of the Estate of Lewis M. Weston, deceased, Appellee, Vv. EASTERN AIR LINES, INC., Appellant. 2d No. 80-1247 Argued June 2, 1981. Decided June 4, 1982 Before BRYAN, Senior Circuit Judge, PHILLIPS and MUR- NAGHAN, Circuit Judges. PHILLIPS, Circuit Judge: These consolidated appeals grow out of the crash of Eastern Airlines Flight No, 212 near Charlotte, North Carolina on September 11, 1974, which resulted in the deaths of 69 passengers and 2 crew members and serious personal injuries to 9 passengers and 2 crew members who survived. Four resulting lawsuits consolidated for trial generate these appeals. In Nos, 80-1245, 80-1246, and 80-1247, respectively, Eastern Airlines (Eastern) appeals the award of com- pensatory damages aggregating over $4 miliion to surviving passengers Arnold and Miihalek and the award of wrongful death damages of $797,000 to the personal representative of deceased passenger Weston, and in Nos, 80-1245 and 80-1246, Eastern ap- peals the denial of its third party claims for contribution against the United States of America in respect of the Arnold and Mihalek personal injury actions. In No, 80-1334 The Aetna Casualty and Surety Company and other insurers of Eastern (Aetna) appeal the dismissal, following trial to the court and jury respectively, of their action against the United States and four individual air traffic con- trollers for contribution in respect of their out of court settlements of claims by or on behalf of other crash victims and of a property damage claim for destruction of the aircraft. We affirm the judg- ment in all respects save the award of wrongful death damages in the Weston action; as to that we find reversible error and remand for a new trial, Following the crash of Flight 212 the great bulk of the ensuing claims by and on behalf of surviving and deceased crash victims were settled out of court by Easterns insurers. A total of around $22 million was paid in these settlements, and another $3,281,000 was paid in settlement of the aircraft owner's property damage claim. Not ail the claims were settled however. In March and September, 1976, respectively, surviving passengers-plaintiffs Arnold and 3d Mihalek commenced diversity actions against Eastern in the United States District Court for the Western District of North Carolina seeking, on allegations of negligence, compensatory and punitive damages for their personal injuries. In September 1976, plaintiff Helen Weston as Executrix of the Estate of deceased passenger Lewis M. Weston, commenced a diversity action in the United States District Court for the District of South Carolina seeking, on allega- tions of negligence, compensatory and punitive damages for the wrongful death of her decedent. In the Arnold and Mihalek actions (but not the Weston action) Eastern impleaded the United States on allegations of the concurring negligence of certain government employees on duty as air traffic controllers at the time of the crash, and sought on this basis contribution from the government in respect of Eastern’s potential liability. In its responsive pleadings to the personal injury and wrongful death claims Eastern admitted liability for compensatory damages! but denied liability for punitive damages. In February 1977 Aetna and the other insurers of Eastern com- menced an action in the United States District Court for the Western District of North Carolina against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 et seq. , and against four federal air traffic controllers under North Carolina common law, alleging concurring negligence by these defendants and seeking on that basis contribution? in respect of amounts paid by the insurers in making the out of court settlements noted above. After all four of these actions’ had been transferred to the Charlotte Division of the Western District of North Carolina under the guidelines for complex and multi-district litigation, the district court, in early November 1977, sua sponte ordered them consolidated for ' The fault specifically admitted by Eastern as the basis for its liability was the ‘*failure of the pilots to be aware of the plane's altitude immediately prior to the crash.’’ On trial the exact nature of this fault was amplified by specific evidence - mainly that preserved by on-board and airport recorders - of pilot inattention and carelessness which the trial judge characterized, with full support from the record, variously as ‘‘a shocking lack of attentiveness,’’ ‘‘unattentiveness and carelessness of a truly extraordinary nature,’ ‘not simply inadvertent but gross- ly negligent.” ? The claim as originally pleaded included full indemnification as an alternative on the basis of primary negligence of the air traffic cortrollers. This alternative was abandoned before trial. * Along with two other actions by airline stewardesses against the United States that were settled before trial. 4d discovery and trial, subject to reconsideration as to the trial aspect following the completion of discovery. Discovery then proceeded in the consolidated actions until mid-October, 1979. Shortly after completion of discovery Eastern and Aetna moved to sever the Aetna action for trial in order to avoid prejudice to Eastern. After con- sidering alternative proposals respecting the appropriate procedure, the district court denied the motion for severance, and the con- solidated actions proceeded to trial. Following a three-week trial to court and jury,‘ the jury, after seventeen hours of deliberation, returned verdicts awarding substan- tial compensatory damages, but denying any punitive damages, on the Arnold, Mihalek and Weston claims and finding the air traffic controllers not liable on Aetna’s claim for contribution. Arnold was awarded $3,027,500; Mihalek, $1,137,500; and Weston’s represen- tative, $847,000. Following briefing and argument of various post- trial motions by the parties, the district court declined to disturb the jury verdicts in any save one particular. On the Weston wrongful death verdict the court determined that it had erred in submitting pain and suffering to the jury as a compensable item of damages and, to correct this error, ordered a remittitur of $50,000, reduc- ing the award to $797,000, which the plaintiff accepted. As so reduc- ed, the court let this verdict stand. On Eastern’s third party claim and Aetna’s separate claim against the United States for contribu- tion that were tried to the court non-jury, the court made findings of fact and conclusions of law against the claimants, finding the United States not liable for contribution on either claim, From the final judgment in favor of the personal injury and wrongful death claimants on their claims and against Eastern and Aetna on their respective cross-claim and claim for contribution, Eastern and Aetna have appealed. They assign a number of errors, some commanding more discussion than others, to which we now turn, Further background facts and details of the proceedings will be developed as needed in discussing particular assignments of error. * The trial format established by the court before trial provided for trial of all the claims to the jury whose verdicts however were only to be advisory with respect to Eastern's third-party and Aetna's direct contribution claims against the United States. As to those non-jury claims, judgment would be entered upon the court's findings and conclusions. Though trial p.oceeded on this assumed basis down to submission, the court declined at that point to submit the claims against the United States to the jury for an advisory verdict. See Part ILI, infra. Sd Eastern’s three principal assignments of error - two of which are paralleled in Actna’s assignments - all relate ultimately to the amount of compensatory damages awarded in the personal injury and wrongful death actions. Though subject to independent analysis, the errors asserted are in the end so interrelated that we will discuss them as a discrete cluster.‘ Both Eastern and Aetna complain first, in chronological terms, of the refusal of the court to sever the originally consolidated ac- tions into two separate trial units: one consisting of the main claims against Eastern together with Eastern’s two related third party claims for contribution against the United States; the other, of Aetna’s action for contribution against the United States and the four individual air traffic controllers. Eastern claims that consolidated trials (the denial of severance) resulted in prejudicially inflated damage awards against it; Aetna, that it resulted in the introduction into its case of prejudicial irrelevances related to Eastern’s culpability; and that indeed there were not between the two units sufficient common issues to permit consolidation under Rule 42(a). Eastern and Aetna then join in complaining of grossly improper conduct by opposing counsel® in making comments and arguments directly to, and in the presence of, the jury. These, hey claim, were not adequatel:; corrected by the trial judge and, in consequence, resuited in demonstrable prejudice: to Eastern in the form of pre- judicially inflated damage awards; to Aetna, by unfairly prejudic- ing the jury in respect of the bona fides of the insurers’ claims for contribution, Eastern additionally assigns as error the trial judge's refusal to set aside the damage awards as being excessive and the result, however excited, of passion and prejudice. We take these in order and in combination, * Though these assignments run to the Weston wrongful death judgment as well as to the two personal injury judgments, we discuss them here only in relation to the latter in view of our remand of the wrongful death action on other grounds. See Part IV, infra. * Coupled with contentions of counse! misconduct is one of misconduct by plain- tiffs’ witness Crossfield, a former Eastern vice-president. We have considered that contention and finding it without merit do not further discuss it here. 6d A The proper starting point for assessing this cluster of assigned errors is the disirict court's decision to try these four actions and the third party claims incident to two of them as a single unit. This set the stage for all now challenged that followed. Assessed for its independent effect upon the judgments appealed from, we find no reversible error in the decision to deny the mo- tions to sever. The decision whether to sever or to consolidate whole actions or sub-units for trial is necessarily committed to trial coun discretion. We review only to determine whether the discretion was abused, Bowie v. Sorrell, 209 F.2d 49, 51 (4th Cir. 1953); In re Air Crash Disaster at Florida Everglades, 549 F.2d 1006, 1013 (Sth Cir. 1977), and if so, whether prejudice resulted. Here we find no abuse. When the motions to sever were made some twelve days before trial, Eastern and Aetna contended that a consolidated trial would necessarily prejudice both of them: Eastern, by the necessary revela- tion to the jury of the fact and apparent scope of its insurance coverage; Aetna, by allowing evidence of Eastern’s allegedly gross culpability to influence the jury in deciding whether any other par- ty should, in view of such gross culpability, share Eastern’s (hence Aetna’s) burden of liability. To avoid the predicted prejudice they suggested two alternative procedures. First, as a quid pro quo for severance of the Aetna action, Eastern would abandon its third party claims for contribution against the United States in the two passenger actions thereby foregoing in these actions at least any right of its insurers to contribution in respect of these two litigated claims. Alter- natively, in a consolidated trial of all the actions, specific steps could be taken to screen from the jury any knowledge that Eastern had liability insurance coverage or that any settlements of other claims by its insurers had occurred. Counsel for Aetna and Eastern would be introduced as co-counsel for Eastern, no mention of liability in- surance would be allowed, and the jury would be informed only of the interests involved in the passenger claims against Eastern and in Eastern’s related third party claims for contribution. appellants were obvious ones which in the exercise of a sound judicial discretion the district court was obliged to weigh. See Molever v. Levenson, 539 F.2d 996 (4th Cir. 1976). Failure carefully to consider them and the alternative procedures advanced by ap- pellants as a means of avoiding them may well have constituted an abuse of discretion. But the record shows that they were carefully 7d weighed, both in absolute terms and in relation to countervailing considerations also necessary to sound decision. The critical ques- tion for the district court in the final analysis was whether the specific risks Of prejudice and possible confusion were overborne by the risk of inconsistent adjudications of common factual and legal issues, the burden on parties, witnesses and available judicial resources posed by multiple lawsuits, the length of time required to conclude multiple suits as against a single one, and the relative expense to all concerned of the single-trial, multiple-trial alternatives. See Fed. R. Civ. P. 42; see generally 9 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2383 (1971). In this case it could not seriously be contended that the purely logistical factors - time, expense, travel burdens, etc. - did not militate in favor of a consolidated trial. Eastern and Aetna have made no such claim. They focus instead primarily on the specific risks of prejudice posed to Eastern by the disclosure of its insurance coverage and to Aetna by evidence of Eastern’s possibly gross culpability, and on the absence of any risk of inconsistent adjudica- tions because of the asserted absence of any substantial common issues between the Aetna contribution action on the one hand and the passenger actions with their related third party contribution claims on the other. Without here exploring the parties’ opposing contentions on this point in the same detail] that they have been advanced in both courts, it suffices to say that the district court did carefully assess them in detail in the process of making its determination not to sever the actions. We are satisfied that the discretion exercised was in con- sequence a sound one. Gauging the possible prejudice to Eastern flowing from the disclosure of insurance coverage, the district court made a pragmatic assessment, one frequently made by federal courts, see, e.g., Tallant Transfer Co. v. Bingham. 216 F.2d 245, 247 (4th Cir. 1954), that under the specific circumstances of this case, it would simply be unrealistic to assume either that the jury did not know that insurance coverage existed or that, if it were known to exist, it would likely inflate any damage award made against a corporate defendent such as Eastern. Since liability for compensatory damages was not in issue this was essentially the limit of risk. Cf. Posttape Associates v. Eastman Kodak Co., 537 F.2d 751, 758 (3d Cir. 1976) (risk of imposing liability because of insurance coverage). Assessing the possible prejudice to Aetna in its effort to obtain 8d contribution from the government that would be created by revela- tion of Eastern’s gross culpability and the details of the injuries suffered by the crash victims, the court recognized the risk and ex- plicitly relied upon its ability to safeguard Aetna’s interest by ap- propriate cautionary instructions. We agree that this is the sort of risk that a trial court may properly consider to be controllable by this means, and we are satisfied that the judgment that here it might be controlled was, in the event, borne out.’ Addressing the contention that there were no sufficient common issues between Aetna’s contribution action and the main and third party contribution claims to warrant consolidation under Rule 42, the court correctly rejected it. Properly identified as substantial com- mon issues were those of proximate causation necessarily involv- ed in the passenger claims that Eastern’s negligence proximately caused the crash, and Eastern’s and Aetna’s claims that the air traffic controllers’ negligence concurred in causing it.* See, e.g., A/S Lud- wig Mowinckles Rederi v. Tidewater Construction Corp. , 559 F.2d 928 (4th Cir. 1977). We are satisfied that at the time the district court made its ruling against severance, it did so reasonably and on the basis of a sound assessment of the proper factors, hence well within the bounds of the discretion committed to it. * The court gave careful cautionary instructions to the jury in advance of the presentation of evidence designed to clarify the relationships between the different parties and the different claims and to emphasize the necessity that matters rele- vant to one claim but not to another be kept in mind. The instruction was exemplary in its clarity and accuracy * In the event. the commonality of these issues was made plain by trial developments. Indicative is the trial judge’s assessment of the evidence as it bore upon the contribution claims directly against the United States which he decided non-jury. The same evidence of course bore upon the asserted individual liability of the air traffic controllers as alleged joint tortfeasors with Eastern, an issue sub- mitted to and decided by the jury. After recognizing that pilots and air traffic controllers both have a duty to exer- cise due care to avoid accidents . . . “’ and that ‘‘[t}he fact that the pilots . . . were guilty of negligence, proximately causing an accident, [does not] preclude a fin- ding that negligence on the part of the controllers was also a proximate cause,"’ the judge concluded that on the evidence adduced air traffic controller negligence had not been established as a concurring proximate cause. ‘‘An accident of this sort could only occur through pilot inattentiveness and carelessness of a truly ex- traordinary nature. Failure of [the] cont.ollers to observe the altitude of the plane... , if a cause at all, was a remote rather than a proximate or provoking Cause 9d B Eastern’s major contention on appeal - another of those in which Aetna joins - relates to conduct of opposing counsel in making im- proper comments and arguments to the jury. So gross was this con- duct, and so manifestly did it taint the jury verdicts, say the ap- pellants, that only by setting the verdicts aside could the prejudice be cured. The district court failed, they say, properly to curb and contain its effects as it occurred and committed reversible error in declining on their post-trial motions to correct it by that ultimate means. Though the contention is a serious one that has been treated accordingly, we conclude that here too the district court properly acted within its discretion in declining on this ground to reject these verdicts. Of the many details of trial management necessarily committed to broad trial court discretion, perhaps none is more due appellate deference than conduct of non-judicial participants in the process that is asserted unfairly to have prejudiced the jury. See Arkwright Mutual Insurance Co. v. Philadelphia Electric Co. , 427 F.2d 1273, 1277 (3d Cir. 1970); see generally F. James and G. Hazard, Civil Procedure § 7.18 (2d ed., 1977). This is a matter preeminently for on-the-scene sensing by trial judges. At that vantage point demeanor - here that of the jury - can be observed; the impact of efforts to control and dissipate prejudicial effects can be assessed in light of the interpersonal relationship that inevitably develops between trial . judge and jury; and the actual effect of the conduct upon jurors - an effect frequently at odds with or actually counter-productive to that improperly intended by the offender - can be gauged first-hand. For the very reason that the problem is essentially one of assessing the immediate emotional and psychological effect of specific ac- “Moreover, the court is not persuaded, as apparently neither was the jury, that a warning from the tower, if it had been received, would have prevented the acci- dent. The crew were not simply inadvertent but rather were grossly negligent. They distracted themselves with extraneous matters; they did not look out the win- dow to see what numerous others saw - that they were dangerously low; they fail- ed to comply fully with procedures instituted to keep flight crews awake and con- scious of their altitude while descending and landing; they ignored the visual readings of five pairs of altimeters and beacons showing that they were too low and descending too fast, and they also ignored a shrill whistle and red light which called their low altitude emphatically to their attestion. I am unable to find that an additional request from an air traffic controller that the pilot check his altitude would have changed the outcome."’ 10d tions and words on particular people, the appellate vantage point in retrospective review on a cold written record is especially sub- ject to misperceptions of what actually transpired and, more subt- ly, to miscalculations of likely effects. It is for this reason that trial court discretion as to these matters is broad or - what comes to the same thing - appellate review is especially deferential. It is important also to emphasize that review here is ultimately focused not upon the impropriety of counsel's conduct but upon the propriety of the trial court's response to it.’ Of course if the conduct challenged is not by applicable standards improper in the first place, then there can be no abuse of judicial discretion in fail- ing to take any, or particular, action to correct it. But the mere fact that conduct is improper - even grossly improper - does not end the inquiry. The question remains whether the judicial response - or lack of response - to the legally improper conduct constituted a prejudicial abuse of discretion. In consequence, a conclusion that no prejudicial abuse of discretion has been shown is not necessari- ly a condonation of the challenged conduct, though this is likely always to be - as it is here - the dire assertion of appellants. Orderly review will therefore look first to the question whether and in what respects challenged conduct was in legal contempla- tion improper, then turn, if need be, to the more difficult question of the adequacy of the judicial response. We proceed on that basis. There is no doubt that tested as and when it occurred by applicable legal standards much of the conduct specifically challenged was im- proper. Indeed the legal impropriety of some of it has been con- ceded both below and here by offending counsel. Beyond its legal impropriety, it was in substantial part inelegant, tasteless, offen- sive, arguably violative of professional standards and, perhaps most deserving of condemnation, irresponsibly threatening to any ver- dicts that might in the end be obtained by offending counsel's clients. Since in the end we find no abuse of discretion in the trial judge's overall response to it, we might simply let stand this general assess- ment and disapproval of counsel's conduct. Fair review - to both sides - requires, however, that the general assessment be made more * The specific response under review is of course the ultimate one: the directly challenged refusal to set aside the veraict. Earlier, pre-verdict responses (or nonresponses) are reviewed incidentally, as elements in the totality of the cir- cumstances bearing upor the exercise of discretion in letting the verdict stand. See F. James & G. Hazard, supra. I1d specific. Only so cam offending counsel be protected against im- plication or speculation that things may have been even worse than they were in fact, and appellants be provided an adequately reasoned statement for our basis of decision. Additionally, the adequacy of judicial response can only be fairly gauged in reference to specific conduct. Without attempting full embellishment of some of its more col- orful elements, we first identify the specifically challenged conduct. In identifying it in mass and without full contextual detail it is im- portant to keep in mind that of course it did not all occur in such possibly jolting proximity but in pieces over a period of days, and that its real flavor could only be appreciated in full trial context. Here we merely identify it to point up the various respects in which, under applicable standards, it was or was not legally improper to the point that judicial response of some kind was appropriate. For sake of analysis, we group the principally challenged comments and arguments in general categories. In his opening statement to the jury one of the plaintiffs’ counsel urged the jury to use the Golden Rule approach in fixing damages. After advising the jury that they would hear evidence of psychic injuries sustained by the plaintiffs and admonishing that ‘‘we do not present this evidence to you by way of asking for your sym- pathy,’’ he added, ‘‘[w]hat we do ask you to do is to listen to it carefully, place yourself, if you can, in their shoes,’’ During jury selection government counsel, representing the contribution-claim defendants, called attention to the fact that the defendant air traffic controllers had children, one of whom had recently died. In opening statement the same counsel suggested that the only reason for the contribution claims was to mislead the jury as to the real issues, In closing arguments to the jury different ones of plaintiffs’ counsel and government counsel from time to time: —made an outright appeal for sympathy: ‘‘I’m asking, I'm beg- ging for your sympathy for this man... They [plaintiffs] are beg- ging for your sympathy"’; —made disparaging remarks about defense witnesses: of one witness, that Eastern ‘‘must have searched the countryside’’ for him; and, of his testimony, that ‘‘for 40 bucks an hour, you can pro- bably get almost anybody to say anything’’; of another witness, Frank Borman, President of Eastern, that he was ‘‘pompous,’* ‘*god- 12d like’* and that he, with others in Eastern’s management, were now ‘condoning the very thing that killed 72 people’’; —made disparaging personal references to defense counsel: *‘the gang over here’’; ‘‘the best Eastern’s money can buy’’; that one was ‘‘ashamed"’ of his case and that plaintiffs’ counsel was *‘sorry for [him] and that kind of attitude’’; —made improper and intentionally inflammatory comments about Eastern’s wealth, position and general culpability: ‘‘murderers’ row’*; the ‘‘great white knight corporation’’; a ‘‘little poor airline’ which ‘‘offered to buy [another line] for 342 million dollars’’; that it had been engaged in ‘‘whacking them into the trees in Houston . . . running off the runway in Buffalo . . . *’; had ‘*killed 112 human beings in New York’’; that ‘‘killing people and maim- ing people is something they've gotten immune to as a part of do- ing business"’; —offered personal opinion as to the injustice and lack of merit of Eastern’s defenses and Eastern’s and Aetna’s contribution claims: ‘‘outrageous"’; ‘‘insulting’’; attempt to ‘‘pass the buck’’; ‘‘Eastern’s bad joke’’; ‘makes me sick’’; makes me ‘‘angry"’; “‘haven't real- ly taken on that human responsibility to say we're sorry’’; ‘‘lack of accountability’’; and offered contrasting personal opinions as to the justice and merit of plaintiffs’ tactical decisions not to sue the United States and the air traffice controllers: ‘‘the reason . . . is a simple one, [t]hey aren't liable, and we have a duty . . . not to sue people or the government when there isn't any liability’’; —made improper references to settlements and settlement offers: ‘‘no offer to settle Mrs. Weston's case as long as I have been the attorney for the case’’; defense counsel represents ‘‘the 19 insurance companies that have been busy buying off the claims of the other people, and he’s finally run up against three human beings . . . and three lawyers that ain't going to be bought.”’ For purposes of this appeal we can accept that most of these statements and arguments (and there were others of comparable quality) were legally improper - in the sense that at the least and as to most some kind of censure or curative instructions by the trial judge - either sua sponte or on motion - would have been appropriate. Some obviously fell more clearly beyond the bounds of permissi- ble advocacy than others. Some arguably lay at least marginally within legal bounds if not within those of the common civility that 13d countless good lawyers have demonstrated is compatible with ef- fective advocacy. The Golden Rule appeal in opening statement and the blatant, direct appeal for sympathy in closing argument were plainly im- proper, and offending counsel concede this. The tasteless and ir- relevant comments and allusions to and about opposing counsel were improper under applicable professional standards and justified cen- sure if for no other reason than to preserve some degree of respect among the attending public for the professiun and the process. Less clearly improper in the legal sense - though arguably so close to the line that some cautionary instruction would not have intruded unfairly into the prerogatives of advocacy - were the personal characterizations of witnesses, the equally heavy-handed expres- sions about the bona fides of the defendants’ tactical decisions in defending the actions, and some of the more pejorative comments about the degree of Eastern’s culpability in relation to other air crashes. Of the same general stripe were the references to the defen- dants’ refusal to make settlement offers to the plaintiffs, though in fuller context, as will appear, the technical impropriety of those comments may not have been that certain. This leads then to the critical inquiry whether, on total balance, the trial judge's response to these several incidents of clear or arguable misconduct, leading finally to his refusal to set aside the verdicts, constituted a prejudicial abuse of discretion. As to this no more precise legal principles than those implicit in the general concepts of *‘abuse’’ and ‘‘prejudice’’ exist. In consequence, there is not much of specific precedential value to be found in other cases - as the parties readily demonstrate on this appeal by their equal ability to cite apparently conflicting decisions on the significance in different contexts of various examples of counsel comments close- ly comparable to those here in issue. See generally 11 C. Wright & A. Miller, Federal Practice and Procedure: Civil, § 2809 & nn.2-6 (1973). In the final analysis the question is simply one of judgment to be exercised in review with great deference for the superior vantage point of the trial judge and with a close eye to the particular context of the trial under review rather than to any general formulations of principle or to assessments of comparable comments in other cases. Helpful in focusing this general inquiry upon the specific ruling challenged - the refusal to set aside the verdict because of counsel's misconduct - is the Sixth Circuit's recent prescription for practical 14d and principled review of such rulings in City of Cleveland v. Peter Kiewit Sons’ Co. , 624 F.2d 749 (6th Cir. 1980), Fair review, said that court, must take into account the ‘“‘totality of the circumstances, inciuding the nature of the comments, their frequency, their possi- ble relevancy to the real issues before the jury, the manner in which the parties and the court treated the comments, the strength of the case (e.g. whether it is a close case), and the verdict itself. ** /d. at 756. This is a helpful guide to proper and consistent review. It focuses in a practical and systematic way upon whether, all things con- sidered, the virulence of the comments, their intrinsic capacity un- fairly to prejudice the jury on the real issues, the inadequacy of any judicial efforts made to contain them or of any extrinsic fac- tors of time or context to dissipate their force, make it a ‘‘reasonable probability’’ id., that they improperly influenced the jury in reaching its verdict. ‘*Improper influence’’ here must be understood to mean effective subversion of the jury’s reason or of its commitment to decide the issues on the evidence received and the law as given it by the trial court. Only if such a reasonable probability is found can an abuse of discretion in deciining to set aside that verdict be found. Our review on that basis discloses no such abuse. Perhaps the single most important of the relevant circumstances here is the nature of the ‘‘real’’ issues before the jury. It is only with respect to these that the probability of improper influence can properly be gauged. They determine not only the content range of proper comment and argument but, to a considerable extent, the degree to which improper influence as opposed to the normal in- fluence of partisan advocacy can be reckoned as probabilities in explaining the verdicts. The dominant issue in this trial was the degree of Eastern’s con- ceded culpability. This bore directly upon that defendant's liability for punitive damages. It bore less directly, but nevertheless legitimately, upon the claim of Aetna to recover contribution from the air traffic controllers as alleged joint tortfeasors, since it was inextricably bound up in the primary issue of proximate causation central to that claim. It also of course bore directly upon the amount of punitive damages that might be recovered against Eastern. The other issues in the case were the amounts of compensatory damages due the three plaintiffs, liability for some amounts having been conceded. The permissible range and content of inevitably damaging evidence 15d and argument opened by these issues was wide and of an inescapably volatile nature. On the culpability issue, the substantive law not only permitted but required evidence - hence partisan argument - going to establish negligent conduct that a jury could find gross, wanton, and consciously indifferent to others’ rights. See, e.g., Robinson v. Duszynski, 36 N.C. App. 103, 243 S.E.2d 148 (1978). On the compensatory damages issue, the nature of the injuries suffered by the miraculously surviving, completely faultless personal injury plaintiffs - hence of the evidence to establish its severity and lasting effect - was necessarily calculated to excite in any jury some degree of human sympathy, with or without overt appeals for it by counsel. See Herman v. Hess Oil Virgin Islands Corp., 379 F. Supp. 1268, 1275 (D.V.I. 1974), aff'd, 524 F.2d 767 (3d Cir. 1975). When such issues legitimately dominate the trial of a case, a trial judge may well have a heightened obligation to police counsel against excesses of zeal and deliberate impropriety. By the same token, the obligation must be recognized as an exceedingly difficult one to discharge in fairness to both sides. In such cases the substantive law itself invites, indeed compels, inquiry into emotion-laden areas, hence evidence and argument that necessarily track the substantive law's content. In consequence, a trial judge attempting to contain excessive emotional appeals by counsel must be concerned as well to avoid unfair intrusions into the prerogatives of advocacy in developing the issues legitimately in dispute. Punitive damage issues - whether gross culpability exists, the amount required to deter and punish - are of course prime examples. '° Not only does the dominance of such issues justify cautious polic- ing of emotional sallies during trial. More importantly for our pur- poses, it counsels great caution by reviewing courts in finding im- proper influence as the probable reason for a verdict disfavoring a party against whom the influence of peculiarly damaging but whol- ly proper evidence already inevitably runs so strongly. '© In this they share to some extent with libel cases the characteristic that caus- ed Judge Spears to opine in Curtis Publishing Co. v. Butts, 351 F.2d 702, 714 (Sth Cir. 1965), aff'd, 388 U.S. 130 (1967), that ‘‘the very nature of the case made it virtually impossible to discuss the evidence free of emotion or drama,"’ and Judge Wyzanski, writing more generally, to say of a political libel suit that “*it is the modern substitute for ordeal by battle’’ isi which ‘‘the prudent and second- thinking judge will stand severely aside, acting merely as a referee applying the Marquis of Queensbury rules.’’ Wyzanski, A Trial Judge's Freedom and Respon- sibility, 65 Harv. L. Rev. 1281, 1283-84 (1953). 16d When the specifically challenged arguments here are related to the real issues and to the verdicts returned upon them, perspective is properly gained. Without condoning them, we can lay aside as offensive irrelevancies - sufficiently dissipated in any event by general cautionary instructions of the trial judge'' - the snide allu- sions to and characterization of opposing counsel, of that counsel's conduct of the litigation, and of opposing witnesses. The theoretical possibility that either alone or in cumulative effect these may have exerted some generally improper influence on the jury's delibera- tions cannot be gainsaid. To find this a reasonable probability, however, would denigrate a jury whose obvious care in deliberating on this case over a period of some seventeen hours strongly belies even the possibility that its reason and its will to obey its mandate could have been subverted by such uninspired flights of invective. The pejorative characterizations of Eastern’s culpability, wealth, and callousness related essentially to the punitive damage issue. While gross and unimaginative in tone and phrasing, the substance of these arguments and comments lay at least arguably within the range of fair comment on evidence properly introduced on this issue. More importantly, their intended influence - whether proper or im- '' E.g., in closing instructions: ‘* Your verdict is not to be based upon prejudice or sympathy or any bias you may have for or against flyers or people who get hurt. It's not to be based on emotion or on any outside information you may have about the case. . . . You are not to decide any fact on speculation or guesswork or conjecture. You're not to decide on any basis of a guess as to what you think the Court would do if the Court were the jury . . . . You are the jury, and you're to pay no more attention to what you think the Court would like for you to do than you are to what lawyer I last cussed out or who I fussed at the longest. The controversy is not between the lawyers and not between lawyer and lawyer, although they are the ones who generate the evidence and the biggest commotion. The ques- tion is one of law and justice among the litigants." During trial: **(WJhen lawyers have been sitting for hours under tension they sometimes explode, so do judges, and I again instruct you that you are not to decide the case based on anything that takes place among the lawyers or between the Court and lawyers . . . A little bit of temper flaring is natural, sometimes a little distraction takes place, but it usually livens up the proceedings, so long as there is not too much of it.” Whether these cautionary references to the lawyers’ behavior and the court's response to it actually had the intended effect is of course beyond any reviewing court's power to gauge. What can be said is that in content it was directly on the mark, and that in the very homeliness of its style it was calculated to put the mat- ter in proper perspective as peripheral flares of temper, ‘‘commotion,"’ and *‘fuss- ing’ irrelevant to the jury's fact-finding obligation. 17d proper - was not realized on this issue since the jury found in Eastern’s favor on it. That the arguments may indirectly and im- properly have influenced the compensatory damage verdicts in a possibility recognized by the district judge that is better assessed in connection with our consideration o [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0548%3A1. Public record. Not legal advice.