
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1646                                    DANA ANTHONY,                                 Plaintiff, Appellee,                                          v.                            G.M.D. AIRLINE SERVICES, INC.,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Coffin, Senior Circuit Judge,                                    ____________________                            and Torruella, Circuit Judge.                                           _____________                                _____________________               Holly S. Harvey,  with whom Kathleen M.  O'Connor, Thornton,               _______________             _____________________  _________          David, Murray, Richard  & Davis, P.A., Juan Marina,  Mar a Emilia          _____________________________________  ___________   ____________          Pic  and Bufete Rexach & Pic , were on brief for appellant.          ____     ____________________               Philip E. Roberts, with whom  Harry A. Ezratty, was on brief               _________________             ________________          for appellee.                                 ____________________                                    March 3, 1994                                 ____________________                    TORRUELLA,  Circuit Judge.   When  confronted  with the                                _____________          difficult task  of determining how  much in damages is  too much,          appellate  courts inevitably  hesitate to  second-guess a  jury's          calculation of  an appropriate amount.   The facts of  this case,          however, compel  us to overcome our usual reluctance.  Plaintiff-          appellee,  Dana Anthony, was awarded $571,100 as compensation for          an injury to his leg despite a dearth of evidence that the injury          prevented Anthony from working as  a cargo pilot or from engaging          in  any other activities he might otherwise enjoy.  Even the most          generous interpretation of  the record cannot support  the amount          granted for Anthony's pain and suffering, which accounts for over          99% of the  total award.  We  therefore set aside the  verdict as          excessive and remand for a remittitur  of damages in an amount to          be determined by the district court.                                    I.  BACKGROUND                                    I.  BACKGROUND                    On  November 7, 1991, Anthony was struck from behind by          a pallet  on  a loaded  forklift  driven by  an  employee of  the          defendant-appellant, G.M.D. Airline Services, Inc.  ("GMD").  The          pallet hit Anthony  in the calf of  his left leg and  then pushed          him  forward,  on both  feet,  for  a  short distance.    Anthony          suffered an abrasion on his left  calf from the accident.  Nurses          at an airport  first aid facility bandaged the  wound and treated          it with  hydrogen peroxide, antibiotic ointment, and an ice pack.          Anthony  then went  to a  hospital where  doctors took  X-rays of          Anthony's leg and determined that it was not fractured.                     After  the accident, Anthony  returned home  to Florida                                         -2-          and briefly took himself off flight duty.  He resumed his regular          flight schedule  one week  later on November  15, 1991.   Anthony          then  continued flying  for nearly  five months  until  the cargo          company he  worked for  ceased all operations  in April  of 1992.          With the exception  of one brief trip  in October of that  year,1          Anthony  has  not flown  or worked  since.   At  the time  of the          accident, Anthony was 56 years old and had worked as a  pilot for          thirty years.                    On  January  2,  1992,  almost  two  months  after  the          accident,  Anthony went  to  see  his  regular  federal  aviation          doctor,  doctor Perraud,  because  he felt  pain behind  his left          knee.  Doctor Perraud examined  Anthony's leg and referred him to          a  cardiovascular specialist, Dr.  Anthony Revilla.   Anthony did          not see doctor Revilla until one year later at which  time doctor          Revilla ran some  tests and told Anthony to  wear special elastic          stockings,  to rest,  and to  elevate his  leg.   Anthony neither          sought nor received any other medical treatment.2                    Anthony brought  this suit  against GMD  in the  United          States District Court for the District of Puerto Rico on June 22,          1992.  In his amended  complaint, Anthony claimed that because of          his injury, he  had sustained $3,572.98  in medical expenses  and                                        ____________________          1  Anthony  testified that his renewed attempt  at flying "wasn't          working out too well" but gave no specific reasons why he stopped          flying.          2  Anthony also testified  to seeing a chiropractor, however, his          counsel stated at trial that he was "not making any claim  to the          chiropractor, none at all."  In addition, Anthony was examined by          his medical expert in preparation for the trial but never claimed          this was part of his treatment for the injury.                                          -3-          lost  earnings  as  well  as additional  damages  "in  excess  of          $75,000."   The  amount  claimed  for  special  damages  (medical          related expenses and  lost earnings) was adjusted to $3,433.98 in          a pretrial  order.  During  the trial, Anthony testified  that he          incurred a  total of  $1,335 in medical  expenses and  $47,952 in          lost wages.  Unlike  the complaint and pretrial  order, Anthony's          testimony included lost  wages from April 10, 1992  (when Anthony          stopped flying) until the date of the trial.                    Anthony testified at  trial that since the  accident he          has experienced constant pain in his  left leg for which he takes          aspirin and Tylenol.  Anthony also stated that he  spends most of          the day lying  down and  that he  elevates his leg  two or  three          times a day.  According to Anthony, he is "totally disabled" from          the accident and  cannot work because  of the injury to  his leg.          Specifically,  Anthony  stated that  "I  had to  take  myself off          [flight] duty  by  the  rules  and  regulations  of  the  Federal          Aviation Administration" ("FAA").                    No   evidence  or   testimony,  however,   corroborated          Anthony's  claim that  his injury  prevented him  from flying  or          engaging in any other gainful employment.  Anthony testified that          the FAA refused to issue him a first class medical certificate in          December of 1992 because  of the injury to his leg.   For each of          the thirty-two years preceding the accident, Anthony had received          his FAA health  certification.  To prove that the  FAA refused to          certify  him because of the accident, Anthony presented a medical          examination report by doctor Perraud, sent to the FAA on December                                         -4-          2,  1992, which  mentioned  Anthony's leg  injury  and also  that          Anthony  suffered from hypertension, a condition unrelated to the          injury.   In response  to Anthony's  medical evaluation, the  FAA          sent  Anthony a letter  dated December 22,  1992, which expressed          concern  about  Anthony's  hypertension  and  requested  that  he          undergo further evaluation of that condition and send the results          to the  FAA.    The  letter  made no  mention  of  Anthony's  leg          condition.   The  letter also  said nothing  about the  denial of          Anthony's certification.   Anthony never complied with  the FAA's          request for additional  information about his blood  pressure nor          did he make any subsequent attempt to obtain FAA certification.                    Anthony's medical  expert, Dr.  Jos  R.  P rez-Anzalota          ("doctor  P rez"), a  cardiovascular  surgeon, testified  that he          examined Anthony  and observed swelling and varicose veins in his          left leg.   In  the opinion  of doctor  P rez,  the accident  had          caused thrombophlebitis in  the deep veins of Anthony's  left leg          (also known as deep venous thrombosis ("DVT"), which is basically          a  trauma induced blockage in the veins).   This condition led to          postphlebitic syndrome which is characterized by the formation of          varicose  veins, swelling,  pigmentation  of  the  skin,  and  an          increased  potential  for ulceration.3    Doctor P rez  testified                                        ____________________          3  This diagnosis was contested by GMD's expert who, noting among          other things  that Anthony had  also developed varicose  veins in          the right leg and that  an important diagnostic test, a venogram,          revealed no  evidence of DVT,  concluded that  the varicose  vein          condition was not  caused by the  accident.  For the  purposes of          this appeal, however,  we credit doctor P rez' testimony and find          it  sufficient to  prove  that the  accident  caused the  present          condition in Anthony's left leg.                                         -5-          that the  treatment for  this condition was  for Anthony  to wear          elastic stockings  and to lay  down for  30 minutes to  one hour,          four times a  day, with his  leg elevated.   When asked how  long          Anthony would be able to sit or stand before having to  lie down,          doctor  P rez responded, "[u]sually, maybe two hours, maybe less.          It depends.  Each  individual is different.  He may  have to keep          in contact with his physician to evaluate his case."                    Doctor P rez concluded that  Anthony's injury caused  a          20% "whole body" disability.   However, he did not  testify as to          what,  if any,  activities or  functions  Anthony's injury  would          prevent  him from  performing.   Doctor  P rez also  did not  say          whether or not Anthony's injury was permanent.                    Following  a trial  on liability  and  damages, a  jury          found GMD negligent  and assessed $571,100 in damages.   The jury          also  found  that  Anthony was  39%  comparatively  negligent for          entering  a restricted  area  at  the time  of  the accident  and          consequently reduced  the award  by 39%,  leaving Anthony  with a          $348,371  award.    GMD  moved  for  a  new  trial  and,  in  the          alternative,  a remittitur  on the  ground that  the verdict  was          excessive.   The  district court  denied  the motion.   GMD  then          brought this appeal  claiming that the district judge's denial of          a new trial or remittitur was improper.                              II.  HOW MUCH IS TOO MUCH?                              II.  HOW MUCH IS TOO MUCH?                    In  review of  GMD's challenge  to  the jury's  damages          award, our inquiry  is limited to determining "whether  the trial          court abused its discretion in  refusing to set aside the verdict                                         -6-          as excessive."  McDonald v.  Federal Laboratories, Inc., 724 F.2d                          ________     __________________________          243, 246  (1st Cir. 1984);  see also Toucet v.  Maritime Overseas                                      ________ ______     _________________          Corp.,  991 F.2d  5, 11 (1st  Cir. 1993);  Joia v.  Jo-Ja Service          _____                                      ____     _____________          Corp., 817 F.2d  908, 918 (1st Cir. 1987), cert. denied, 484 U.S.          _____                                      ____  ______          1008 (1988).   We will find such  an abuse of discretion  only if          the jury's verdict exceeds "any rational appraisal or estimate of          the damages that could be based on the evidence before the jury."          Milone  v. Moceri Family,  Inc., 847 F.2d 35,  37 (1st Cir. 1988)          ______     ____________________          (quoting Segal  v. Gilbert Color  Systems, Inc., 746 F.2d  78, 81                   _____     ____________________________          (1st Cir. 1984) (citation omitted)); see also Toucet, 991 F.2d at                                               ________ ______          11.  As stated in the oft-quoted Dagnello opinion:  "We must give                                           ________          the benefit  of every doubt to  the judgment of  the trial judge;          but surely  there must be  an upper  limit, and whether  that has          been surpassed is  not a question  of fact with respect  to which          reasonable men may differ, but a  question of law."  Dagnello  v.                                                               ________          Long  Island R.R. Co.,  289 F.2d 797,  806 (2d Cir.  1961).  See,          _____________________                                        ___          e.g.,  Grunenthal v.  Long Island  R.R.  Co., 393  U.S. 156,  159          ____   __________     ______________________          (1968);  Laaperi v. Sears, Roebuck & Co.,  787 F.2d 726, 734 (1st                   _______    ____________________          Cir. 1986); McDonald, 724 F.2d at 246 n.2.   Our determination of                      ________          excessiveness  must be based upon the  evidence of damages viewed          in the light  most favorable to the plaintiff.   Toucet, 991 F.2d                                                           ______          at 11; Joia, 817 F.2d at 918; McDonald, 724 F.2d at 246.                   ____                   ________                    We have  frequently characterized  the type  of verdict          that an appellate court may  vacate for excessiveness as one that          is   "grossly   excessive,"   "inordinate,"  "shocking   to   the          conscience" or "so high that it  would be a denial of justice  to                                         -7-          permit it to stand."   See, e.g., Toucet, 991 F.2d at 11; Doty v.                                 ___  ____  ______                  ____          Sewall, 908 F.2d  1053, 1062 (1st Cir. 1990);  McDonald, 724 F.2d          ______                                         ________          at  246  (citing Grunenthal,  393  U.S. at  159).   All  of these                           __________          descriptions  apply to the  amount awarded  in the  present case.          The  only  damages  incurred by  Anthony  that  the  evidence can          support are $1,335 in  medical expenses, $3,000 in  lost earnings          for one  missed week of  flying,4 and the amount  attributable to          Anthony's pain and  suffering from a condition  that requires him          to take aspirin,  wear special stockings, and to  elevate his leg          several times  a day.   No reasonable valuation of  these damages          could  conceivably add  up  to  $571,100  without  "shocking  the          conscience."                    Anthony  maintains  that   the  damage  award  properly          included amounts for  lost wages from the period  when he stopped          flying in April of  1992 up until the trial and  amounts for lost          earning capacity due to his inability to work in the future.  The          record,  however, does  not support  damages for  past or  future          wages (except for  the week immediately following  the accident),          because  there  is  insufficient evidence  to  show  that Anthony          cannot work because of  the injury to his leg.   Although Anthony          testified that the  injury prevented and continues to prevent him          from  flying, his  own evidence  overwhelmingly  contradicts this          assertion.                                          ____________________          4  Anthony  estimated this figure  to be $3,036 in  his complaint          but the court  reduced it to  $2,710 in the  pretrial order.   On          cross-examination,  Anthony testified to a figure of $3,000 which          is the amount we use here.                                         -8-                    In  the first place,  Anthony never testified  that his          leg injury physically impedes his ability to perform his job as a          pilot.5     Likewise,  Anthony's  expert,  doctor   P rez,  never          described any specific functional limitations  that might prevent          Anthony  from performing  tasks required  of a  pilot.   In fact,          Anthony flew for five months after the accident until the company          he worked  for ceased operations.   The only reason  Anthony gave          for not being able to fly is that the  FAA would not certify him.          The FAA,  however, never  expressed any  concern about  Anthony's          leg, despite  the fact that  doctor Perraud's medical  report put          the FAA on notice of the injury.  The FAA only expressed concerns          relating  to Anthony's high blood pressure, a condition unrelated          to the  accident.  Therefore, if  there is any reason  to believe          that Anthony could not obtain  an FAA health certification -- and          the record does not even establish  that the FAA would, in  fact,          deny such a  certification were Anthony  to apply  for one --  it          would be because of Anthony's hypertension and not because of the          injury caused by GMD.  Furthermore, Anthony presented no evidence          regarding wage  rates and  projected working  hours from  which a          jury could estimate lost future earnings.  We consequently see no          basis  for awarding  Anthony damages  for lost  earnings  or lost          capacity to earn in the future.  See Qui ones-Pacheco v. American                                           ___ ________________    ________          Airlines, Inc., 979 F.2d 1, 6-7 (1st Cir. 1992) (To claim loss of          ______________          earning capacity, a plaintiff  "must offer evidence from  which a                                        ____________________          5   Anthony testified that pilots need to use their legs in order          to operate various airplane controls but he never claimed that he          was unable to operate the controls himself.                                         -9-          jury may  reasonably determine  the annualized  stream of  income          that  the plaintiff, uninjured,  would probably have  earned, and          contrast it, over  the period of proven disability,  to a similar          forecast of what the injured  plaintiff's earnings are likely  to          be.");  Parra v. Atchison, T.  & S. F. R.  Co., 787 F.2d 507, 509                  _____    _____________________________          (10th Cir.  1986) ("[E]xpert  medical testimony  is necessary  to          establish that a  loss of future earnings capacity  was caused by                                                                  ______          such a non-obvious injury.").                    Out of the $571,100  verdict, Anthony only established,          according  to the most  generous interpretation of  the evidence,          $1,335 in medical expenses and $3,000 for one lost  week of work.          That leaves Anthony with a  whopping $566,765 in damages for pain          and suffering.   Although it  is admittedly difficult to  place a          value  on  the  pain and  suffering  of  another  individual, see                                                                        ___          Milone, 847 at 37 (citing Wagenmann  v. Adams, 829 F.2d 196,  215          ______                    _________     _____          (1st Cir. 1987)); McDonald, 724 F.2d at 247, such amounts are not                            ________          immune  from appellate  review.    Williams  v.  Martin  Marietta                                             ________      ________________          Alumina, Inc., 817  F.2d 1030, 1038-41 (3d Cir.  1987); Rivera v.          _____________                                           ______          Rederi A/B Nordstjernan, 456 F.2d 970, 975 n.8. (1st Cir.), cert.          _______________________                                     ____          denied, 409 U.S.  876 (1972).  In this case, an award of $566,765          ______          for Anthony's pain and suffering is "so grossly disproportionate"          to his injury "as to be unconscionable."  Marchant v. Dayton Tire                                                    ________    ___________          &  Rubber Co.,  836  F.2d  695, 704  (1st  Cir. 1988);  see  also          _____________                                           _________          Laaperi, 787 F.2d at 735-36;  Bonn v. Puerto Rico Int'l Airlines,          _______                       ____    ___________________________          Inc., 518 F.2d 89, 94 (1st Cir. 1975).          ____                    Anthony  suffers from  pain  in his  left  leg and  the                                         -10-          inconvenience  of having  to  lie  down several  times  a day  to          elevate the  leg.  According to  doctor P rez, Anthony has  a 20%          whole  body  disability and  cannot  stand or  sit  for prolonged          periods of time.   There is no evidence,  however, that Anthony's          injury   has  rendered  him  unable  to  perform  any  particular          functions or engage  in any particular  activities; nor is  there          evidence  that the  injury  has  otherwise  interfered  with  his          professional, recreational, or personal life.                    The injury to Anthony's leg is not particularly severe.          Most notably, it required no major medical treatment.  Aside from          the  initial administration  of  first  aid  and  the  subsequent          referral  by doctor Perraud,  Anthony's entire  medical treatment          consisted  of  one  visit  to  a  doctor who  prescribed  elastic          stockings and rest.  Secondly, Anthony's pain is not so severe as          to  require anything  more  powerful  than  aspirin  or  Tylenol.          Furthermore,  there  is  no  testimony  or  other  evidence  that          Anthony's current condition is permanent.   Although it would not          be unreasonable for the jury  to conclude that Anthony's pain and          need to  lie  down will  persist  for some  time in  the  future,          Anthony's expert never stated or even implied that  the condition          in Anthony's  left leg  was permanent.   On the  contrary, doctor          P rez  described Anthony's treatment as a "long, tedious process"                                                                   _______          (emphasis added),  implying that the  treatment would lead  to an          improvement in Anthony's condition over time.                    Anthony maintains that GMD's own  expert testified that          Anthony's varicose veins  were incurable.  Quite  the opposite is                                         -11-          true.  The expert stated  that Anthony's condition could be cured          but that the varicose veins would return after treatment because,          in the expert's opinion, the  condition was caused by disease and          not by trauma from the accident.   While a reasonable jury  could          conclude that  Anthony's postphlebitic syndrome  and accompanying          varicose veins  may persist,  there is nothing  in the  record to          support a finding that Anthony will experience pain and be forced          to lie down several times a day for the rest of his life.                    We conclude,  therefore, that  the nature  of Anthony's          injury cannot justify a pain and suffering award that is over one          hundred times  larger than the  $1,335 in out of  pocket expenses          and $3,000 in  lost wages that Anthony incurred.   See Betancourt                                                             ___ __________          v. J.C.  Penney Co., 554  F.2d 1206,  1209 (1st Cir.  1977) ("The             ________________          award  for pain,  suffering  and such  other  intangibles as  are          permitted under Puerto  Rican law  would be  roughly one  hundred          times the amount of past and future medical bills.  We think such          an award simply makes no sense.  We cannot, in conscience,  allow          it to stand.").  In sum, the minimal severity of Anthony's injury          and the lack of evidence concerning any functional limitations --          combined  with the fact that  Anthony went back  to work one week          after the accident,  continued working until his  employer ceased          operating,  and incurred  only  $1,335  in  medical  expenses  --          convinces us  that $571,100  in total damages  is excessive  as a          matter of law.  See, e.g.,  Marchant, 836 F.2d at 703-04 (finding                          ___  ____   ________          $600,000  excessive for  wrist injury  that  would require  daily          heating  and soaking  and  future physical  therapy  but did  not                                         -12-          detrimentally affect employment  prospects); Betancourt, 554 F.2d                                                       __________          at  1209-10 (finding $60,000  excessive for shoulder  injury that          would continue to cause pain but would not prevent plaintiff from          working); Gautreaux v. Insurance Co.  of North America, 811  F.2d                    _________    _______________________________          908, 913-16  (5th Cir. 1987) (finding $483,000 excessive for knee          injury that left plaintiff  with a functional disability  but did          not  prevent him from  engaging in certain  types of employment).          Accordingly, we set aside the award.                                   III.  THE REMEDY                                   III.  THE REMEDY                    In choosing  the appropriate disposition of  this case,          we  have  the  option  of  selecting  a  reduced  damages  figure          ourselves  or remanding  the case  to  the district  court for  a          determination of damages.   See Marchant, 836 F.2d at  704 & n.7.                                      ___ ________          We choose the  latter.  Although  we find the damages  awarded to          Anthony to be excessive  as a matter of law, we decline  to set a          specific amount  for remittitur  as we have  the option  of doing          under  the "maximum  recovery  rule."   See  Seidman v.  American                                                  ___  _______     ________          Airlines, Inc., 923 F.2d 1134, 1141 (5th Cir. 1991) (finding that          ______________          appellate courts can  reduce an excessive verdict  to the maximum          amount  the jury could have properly awarded as a matter of law);          Marchant, 836 F.2d at 704 (noting the First Circuit's adoption of          ________          the  maximum recovery rule)  (citing Liberty  Mutual Ins.  Co. v.                                               _________________________          Continental Casualty Co., 771 F.2d 579, 588 (1st Cir. 1985)).          ________________________                    The  bulk  of   the  damages  in  this   case  involves          compensation  for pain  and suffering.    Normally, this  type of          damages, which does not involve  any measurable economic loss, is                                         -13-          particularly difficult to estimate upon a mere examination of the          record.  In the present case, the difficulty is compounded by the          fact that nothing in the record suggests  or even hints at what a          maximum allowable award might be.6  Compare      Abernathy     v.                                              _______      _________          Superior Hardwoods,  Inc., 704 F.2d  963, 973-74 (7th  Cir. 1983)          _________________________          (basing remittitur on $10 per day figure suggested by plaintiff's          counsel   as  appropriate   pain  and  suffering   damages)  with                                                                       ____          Gautreaux,  811 F.2d  at 915-16  (remanding  for a  new trial  on          _________          damages because the court was "unable to determine loss of future          earnings") and Betancourt, 554 F.2d  at 1209 n.5 (reversing for a                     ___ __________          new trial on damages instead of ordering a remittitur because the          estimation   of  the   proper  award   "would   rest  solely   on          speculation").                    Instead  of setting our  own figure for  remittitur, we          remand this case to the trial judge with instructions to select a          figure in our stead.  Having presided over the trial and observed          Anthony and  the other witnesses  first hand, the  district court          judge is in the  best position to assess the evidence  and set an          amount for  remittitur.   Cf. Kristufek  v. Hussmann  Foodservice                                    __  _________     _____________________          Co.,  985  F.2d 364,  371  (7th  Cir.  1993) (remanding  for  the          ___                                        ____________________          6  GMD  suggests a figure  of $75,000  as an appropriate  maximum          recoverable  amount because Anthony  estimated his damages  to be          "in excess of $75,000.00"  in his amended  complaint.  We do  not          find this figure  to be particularly significant.   The words "in          excess of"  indicate that  Anthony intended this  number to  be a          floor  not  a  ceiling.    In addition,  GMD  presents  no  legal          authority for  the  proposition  that  an amount  stated  in  the          complaint, without being referred to  at trial, should be used as          a  guide for estimating pain and suffering damages on appeal.  We          do not mean  to suggest, however, that $75,000  is necessarily an          inappropriate amount.                                         -14-          calculation of a remittitur by  the district court); Peoples Bank                                                               ____________          and Trust  v. Globe Int'l  Publishing, Inc., 978 F.2d  1065, 1071          _________     _____________________________          (8th  Cir. 1992)  (remanding for  a  "substantial remittitur"  of          compensatory damages).                    We recognize  that GMD opposes this result.  GMD argues          on  appeal that  certain improper  remarks  by Anthony's  counsel          during  closing argument  necessitate  a  new  trial  on  damages          because the remarks infected the  jury's verdict with passion and          prejudice.   See Mason v. Texaco, Inc., 948 F.2d 1546, 1561 (10th                       ___ _____    ____________          Cir. 1991)  ("It is well  settled that mere excessiveness  in the          amount  of  an  award  may  be cured  by  a  remittitur,  whereas          excessiveness which results  from jury passion and  prejudice may          not be so cured.  In that case, a new trial is required."), cert.                                                                      ____          denied,  112  S. Ct.  1941  (1992); see  also  De  Le n L pez  v.          ______                              _________  ______________          Corporaci n  Insular  de Seguros,  931  F.2d 116,  125  (1st Cir.          ________________________________          1991); Seidman, 923 F.2d at 1140.  GMD makes no claim  of error,7                 _______          however,  and   does  not   assert  that   the  alleged   remarks          contaminated the  jury's liability findings.  Cf.  De Le n L pez,                                                        __   _____________          931 F.2d at 125 (noting that the rule against remittitur in cases          of  tainted   jury  verdicts  "protects   against  the  potential          contamination  of a jury's liability findings") (emphasis added);                                     _________          11 Wright  and  Miller, Federal  Practice and  Procedure,    2815                                  ________________________________                                        ____________________          7  GMD failed to object to  the alleged improper remarks at trial          and acknowledges  that its  claim of error  is waived  on appeal.          Although such claims can still  be reviewed for "plain error," we          conduct no such analysis in this case because GMD "does not claim          that  by  permitting  counsel to  make  improper  and prejudicial          remarks the trial court committed plain error."                                         -15-          (1973) (same); J. Moore, Moore's  Federal Practice, 6A   59.08[7]                                   _________________________          (1993) (same).  Therefore, we  find it unnecessary in the present          case to review the effect  on the jury of potentially prejudicial          comments by opposing counsel simply because we  found the verdict          to be excessive as a matter of law.                    Instead,  we  hold  that Anthony  should  be  given the          opportunity to accept a very substantially reduced verdict before          subjecting both parties to a  new trial.  Of course, Anthony  may          reject the district court's remittitur offer in which case  GMD's          desired remedy, a new trial on damages, would result.8                    Accordingly,  the verdict of the jury  as to damages is                    _______________________________________________________          set aside, the denial of  GMD's motion for remittitur is vacated,          _________________________________________________________________          and  the  case  is  remanded   to  the  district  court  for  the          _________________________________________________________________          determination of  a very substantial remittitur of the damages in          _________________________________________________________________          an amount not  inconsistent with this opinion.   A new  trial, on          _________________________________________________________________          damages only,  shall be ordered  if Anthony decides not  to remit          _________________________________________________________________          the amount determined by the district court.          ___________________________________________                                        ____________________          8  It is suggested that counsel seek the aid of the Civil Appeals          Management Program to attempt a  settlement of this matter before          causing their clients to incur additional litigation expenses.                                         -16-
