       Cheryl Maloof JOHANSEN, Mildred D. Goldman, et al., Plaintiffs-Appellees, Cross-Appellants,

        Aubrey G. McGill, William E. Jones, Raymond H. Jones, Martha Jones Long, et al., Plaintiffs,

                                                      v.

               COMBUSTION ENGINEERING, INC., Defendant-Appellant, Cross-Appellee.

                                                 No. 97-8726.

                                        United States Court of Appeals,

                                               Eleventh Circuit.

                                                April 1, 1999.

Appeals from the United States District Court for the Southern District of Georgia. (No. CV 191-178), Dudley
H. Bowen, Jr., Judge.

Before ANDERSON and BARKETT, Circuit Judges, and HILL, Senior Circuit Judge.

          HILL, Senior Circuit Judge:

          Property owners brought a nuisance and trespass action against the present owner of a former mining

site, Combustion Engineering, Inc. ("CE"), alleging that acidic water had escaped from the site, damaging

streams that run through their properties. The jury awarded the owners an aggregate of $47,000 in

compensatory damages and $45 million in punitive damages which the district court reduced to $4.35 million.

All parties have appealed.

                                                      I.

          In the 1920's, a company named Tiffany's mined a site in Lincoln County, Georgia for rutile, a

substance used for polishing diamonds. At some point thereafter, Aluminum Silicates, Inc. began mining the

site for kyanite, a mineral used to make heat-resistant products. In the mid-1960's, CE purchased the site and

began mining kyanite.1 It conducted these mining operations until 1984, when it sold the property to Pasco

Mining Company ("Pasco"). Pasco operated the mine site until November 1, 1986, at which time Pasco




   1
    Actually, a company named Combustion Chemical, Inc. was formed to purchase the site and do the
mining, but this company was at all times a wholly-owned subsidiary of CE.
defaulted on its obligations and the facility and all environmental responsibilities for the property reverted

to CE pursuant to the parties' 1984 contract. CE never resumed mining operations.

        At the time the mining originally began, Graves Mountain was essentially a big, solid rock. The mine

operator would remove, crush, and process the rock in order to extract the kyanite. After the removal of the

kyanite, the remaining crushed rock, or "tailings," would be deposited into containment areas, known as

"tailings ponds." One of the minerals in the tailings was pyrite. When rainwater falls on pyrite that has been

exposed to oxygen, a chemical reaction takes place that renders the water more acidic. Periodically, acidic

water from the mining site seeped into streams that flowed through CE's property affecting their quality as

they ran through the properties downstream.

        In August of 1991, several individuals who owned a total of sixteen tracts downstream from the mine

site sued CE claiming damages for trespass and nuisance. Several other property owners filed suit in May

of 1992, and the two suits were consolidated. Property owners' claim was that the streams looked and smelled

bad, that the streams no longer contained fish, and that cows would not drink from the streams. They did not

allege any personal injuries, risk to human health, diminution in property value, damage to crops or animals,

or any other economic loss.2

        The case was tried to a jury in a two-phase trial in which issues relating to punitive damages were

decided separately from liability for the underlying torts and compensatory damages. The jury was instructed

that the relevant time frame for damages purposes was the four-year period prior to the commencement of

the property owners' suit.3




   2
    Few of these individuals live on their property. Some do not use their property at all, and several
others have been to their property (or the streams on it) only rarely if at all over the past several years.
The plaintiffs who do use their property, do so for raising cattle, storing junked cars, hunting, timbering,
or growing hay.
   3
    Georgia has a four-year statute of limitations for trespass and nuisance.

                                                      2
        In the first phase of the trial, the jury returned a total of thirteen verdicts for compensatory damages

in favor of the various property owners in an aggregate amount of $47,000. The thirteen verdicts ranged from

$1000 to $10,000. The jury also awarded property owners litigation costs in the amount of $227,000.

        In the punitive damages phase of the trial, property owners were required as a matter of Georgia law

to prove by clear and convincing evidence that CE's actions "showed willful misconduct, malice, fraud,

wantonness, oppression, or that entire want of care which would raise the presumption of conscious

indifference to consequences." O.C.G.A. § 51-12-5(b). To recover more than $250,000 each, property

owners were required to demonstrate, again by clear and convincing evidence, that CE acted "with the

specific intent to cause harm." Id. at § 51-12-5.1(f). The jury awarded $3 million in punitive damages to each

of the fifteen property owners who owned the sixteen parcels of land at issue, for a total of $45 million.

        The district court found this amount "shocking," which if allowed to stand would "give[ ] the system

a black eye." The court entered an order granting CE's motion for a new trial unless property owners agreed

to remit all punitive damages over $15 million. Property owners agreed to do so and the court entered

separate judgments totaling $15 million in punitive damages.

        CE appealed to this court. During the pendency of the appeal, CE settled with three property owners,

leaving an aggregate of $43,500 in compensatory damages and $12 million in punitive damages at issue in

the appeal. After oral argument, we affirmed those judgments without opinion. Johansen v. Combustion

Engineering, Inc., 67 F.3d 314 (11th Cir.1995).

        CE petitioned the Supreme Court for certiorari, contending that the punitive damage award was still

excessive. The Supreme Court deferred ruling on CE's petition pending its resolution of BMW of North

America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). After it ruled that the

Constitution does not permit "excessive" punitive damage awards, the Court granted CE's petition, vacated

this court's judgment, and remanded the case to us for further consideration in light of BMW.




                                                      3
        We remanded the case to the district court. The district court reexamined the punitive award under

BMW, and concluded that the Constitution would permit punitive damages in an amount no more than 100

times each plaintiff's compensatory award. Therefore, he ordered the entry of judgment for each of the

remaining plaintiffs in an amount equal to the jury's compensatory award plus 100 times that amount as

punitive damages. This resulted in an aggregate punitive damage award of $4.35 million. The district court

did not afford property owners the opportunity to elect a new trial.

        CE appealed, arguing that even $4.35 million in punitive damages is unconstitutionally excessive on

the facts of this case. CE also contends that the district court erred in not offsetting the punitive damage

award by the amounts it had already paid some of the property owners in settlement.

        Property owners cross-appealed arguing that the district court erred in holding that the $15 million

punitive damages award was unconstitutionally excessive. They seek restitution of the district court's

remittitur of $15 million which they accepted in lieu of a new trial. They also argue that the district court

erred in ordering post-judgment interest to run from the date of the second rather than the first judgment.

        Finally, property owners claim that the district court committed constitutional error when it reduced

the jury's punitive damage verdicts to $4.35 million and unilaterally entered judgments totaling that amount.

Although they do not analyze it as such, this claim raises a jurisdictional issue of first impression which we

must resolve prior to proceeding to the merits of this appeal.4

                                                     II.




   4
     A federal court not only has the power but also the obligation at any time to inquire into jurisdiction
whenever the possibility that jurisdiction does not exist arises. Philbrook v. Glodgett, 421 U.S. 707, 95
S.Ct. 1893, 44 L.Ed.2d 525 (1975); Blue Cross & Blue Shield v. Sanders, 138 F.3d 1347, 1351 (11th
Cir.1998). "We always must investigate questions of subject matter jurisdiction, whether or not they are
raised by the parties to the case." Reahard v, Lee County, 978 F.2d 1212, 1213 (11th Cir.1992) (quoting
Fitzgerald v. Seaboard System R.R., 760 F.2d 1249, 1251 (11th Cir.1985)). See also Rule 12(h)(3),
Fed.R.Civ.P., ("Whenever it appears by suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the action.").

                                                      4
         A federal court has no general authority to reduce the amount of a jury's verdict. Kennon v. Gilmer,

131 U.S. 22, 29, 9 S.Ct. 696, 33 L.Ed. 110 (1889). The Seventh Amendment prohibits re-examination of a

jury's determination of the facts, which includes its assessment of the extent of plaintiff's injury. Id. A federal

court may not, therefore, "according to its own estimate of the amount of damages which the plaintiff ought

to have recovered, ... enter an absolute judgment for any other sum than that assessed by the jury." Id. at 30,

9 S.Ct. 696.5 To do so would deprive the parties of their constitutional right to a jury. Id.

         A district court may, however, order a new trial.6 The authority to do this is located in the

common-law principle, later codified in the Judiciary Act of 1789, that "[t]rials by jury in civil causes could

not subsist now without a power, somewhere, to grant new trial.... It is absolutely necessary to justice, that

there should, upon many occasions, be opportunities of reconsidering the cause by a new trial." Bright v.

Eynon, 1 Burr. 390, 393 (K.B. 1757) (Lord Mansfield) (quoted by Judge John J. Parker in Aetna Cas. & Sur.

Company v. Yeatts, 122 F.2d 350, 353-54 (4th Cir.1941)).7 Therefore, when a court finds that a jury's award

of damages is excessive, it may grant the defendant a new trial.8 Gasperini v. Center for Humanities, Inc.,

518 U.S. 415, 433, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996).

         A federal court's power to "order" a remittitur grew out of this authority to grant a new trial. A court

which believes the jury's verdict is excessive may order a new trial unless the plaintiff agrees to remit a




   5
    The Seventh Amendment applies only to the federal courts. Minneapolis & St. L. R.R. v. Bombolis,
241 U.S. 211, 217, 36 S.Ct. 595, 60 L.Ed. 961 (1916); Woods v. Holy Cross Hosp., 591 F.2d 1164, 1172
(5th Cir.1979).
   6
    A court may also order a new trial limited to the issue of damages. Kemp v. Balboa, 23 F.3d 211 (8th
Cir.1994); Mason v. Texaco, Inc., 948 F.2d 1546, 1552 (10th Cir.1991).
   7
    The court's power to order a new trial is recognized in Rule 59(a), Fed.R.Civ.P.:

                 A court may grant a new trial for any of the reasons for which new trials have heretofore
                 been granted in actions at law in the courts of the United States.
   8
    This is merely a special application of the general power of the trial court to set aside a verdict that is
against the weight of the evidence. Greyhound Corp. v. Dewey, 240 F.2d 899 (5th Cir.1957).

                                                        5
portion of the jury's award. Dimick v. Schiedt, 293 U.S. 474, 486-87, 55 S.Ct. 296, 79 L.Ed. 603 (1935). This

practice dates from Justice Story's opinion in Blunt v. Little, 3 F.Cas. 760, 761-62 (No. 1578)

(C.C.D.Mass.1822) (Story, J.), in which he announced that, because the verdict was not supported by the

evidence, unless the plaintiff was willing to remit $500 of his damages, the cause would be submitted to

another jury. Although Justice Story cited no authority whatever, the Supreme Court has "never expressed

doubt with respect to this rule." Dimick, 293 U.S. at 486, 55 S.Ct. 296. See e.g., Linn v. United Plant Guard

Workers of America, Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966); Arkansas Valley Land

& Cattle Co. v. Mann, 130 U.S. 69, 9 S.Ct. 458, 32 L.Ed. 854 (1889); Northern Pac. R. Co. v. Herbert, 116

U.S. 642, 646-47, 6 S.Ct. 590, 29 L.Ed. 755 (1886).

        The Seventh Amendment requires, however, that the plaintiff be given the option of a new trial in

lieu of remitting a portion of the jury's award. Hetzel v. Prince William County, Va., 523 U.S. 208, 118 S.Ct.

1210, 1211, 140 L.Ed.2d 336 (1998). In Hetzel, the Supreme Court reversed the Fourth Circuit's mandamus

to the district court to enter judgment for a remittitur without affording the plaintiff the option of electing a

new trial. The Court expressly held that no judgment for a remittitur may be entered without the plaintiff's

consent because the Seventh Amendment prohibits the court from substituting its judgment for that of the

jury's regarding any issue of fact. Id. at 1212. See also Dimick, 293 U.S. at 474, 55 S.Ct. 296; Gasperini,

518 U.S. at 433, 116 S.Ct. 2211. If the plaintiff does not consent to the remittitur, the court has no alternative

but to order a new trial. Id.

         In this case, however, that did not happen. This reduction was neither consented to nor rejected in

favor of a new trial. Rather, the district court entered reduced judgments totaling $4.35 million in punitive

damages, without seeking property owners' consent nor affording them the option of electing a new trial.

        Although they now claim the district court abridged their Seventh Amendment right to a jury,

property owners did not bring this "error" to the district court's attention. Instead, they filed a notice of appeal




                                                         6
of the reduced judgments. In their initial briefs, each claims the right to elect a new trial, should they so

desire, after we decide this appeal.9 This possibility caused us to reflect on the procedural posture of this case.

        Prior to BMW, if a district court ordered a remittitur, a plaintiff had two choices. He could invoke

his Seventh Amendment right to reject the district court's reexamination of the jury's verdict (the remittitur)

and elect a new trial, or he could consent to the remittitur. Neither of these two choices, however, was

appealable.

         A district court's grant of a new trial is not appealable.10 Allied Chemical Corp. v. Daiflon, Inc., 449

U.S. 33, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980). Such an order is merely interlocutory and is not appealable

under the final judgment statute invoked by property owners as the basis for this appeal. Id. See also 28

U.S.C. § 1291. Therefore, if property owners had been afforded the opportunity to reject the reduced awards

and had elected a new trial, the district court would have granted CE's motion for a new trial and this order

would not have been appealable.11 Seltzner v. RDK Corp., 756 F.2d 51 (7th Cir.1985); Continental Trend

Resources, Inc. v. Oxy USA, Inc., 810 F.Supp. 1520, 1523 (W.D.Okla.1992).




   9
    Both parties assume that property owners had a constitutional right to elect a new trial after the
second "remittitur." Defendants concede this point, however, only if property owners must make that
election prior to our resolution of this appeal.
   10
     The only exception would be where the district court was without the power to grant the motion, as,
for example, where the motion was untimely. See Phillips v. Negley, 117 U.S. 665, 6 S.Ct. 901, 29 L.Ed.
1013 (1886).
   11
    It is reviewable, however, on appeal of the final judgment entered after the second trial. If the
appellate court agrees, it will reinstate the verdict reached at the first trial. Conway v. Chemical Leaman
Tank Lines, Inc., 610 F.2d 360 (5th Cir.1980).

                                                        7
         Neither could property owners have appealed if they had accepted the reductions.12 Donovan v. Penn

Shipping Co., Inc., 429 U.S. 648, 649, 97 S.Ct. 835, 51 L.Ed.2d 112 (1977). Although for some years there

was authority, especially in the Fifth Circuit, that a plaintiff who consents to a remittitur "under protest" may

challenge on appeal of the final judgment the correctness of the remittitur order, United States v. 1160.96

Acres of Land, 432 F.2d 910 (5th Cir.1970), in Donovan, the Supreme Court made clear that a plaintiff who

has accepted a remitted award may not appeal that award. 429 U.S. at 649, 97 S.Ct. 835.

         In sum, we have for review an "order of remittitur" which has neither been consented to nor rejected

by property owners. In fact, if either of these two events had occurred, this case would not now be before

us as there would be no appealable order.13 It appears that property owners hoped to avoid a new trial and

proceed to immediate appellate review of the reduction in punitive damages by failing to object to the district

court's entry of judgment.

         Jurisdiction in this court, however, may not be conferred by a party's silence. Fitzgerald v. Seaboard

System R.R., 760 F.2d 1249, 1251 (11th Cir.1985) ("Therefore, lack of jurisdiction cannot be conferred upon

a federal court by consent, inaction or stipulation...." ). If the Seventh Amendment continues to prohibit a

federal court from "enter[ing] an absolute judgment for any other sum than that assessed by the jury,"

Kennon, 131 U.S. at 30, 9 S.Ct. 696, then the entry of judgment without property owners' consent was error

and this case is due to be dismissed for lack of jurisdiction. Alternatively, if the reexamination clause is not

implicated by the district court's entry of judgment in this case, the court was entitled to enter the judgment




   12
     If property owners had consented to the reduced awards, the district court would have denied the
motion for a new trial. Defendants may not appeal this denial. State Nat. Bank of El Paso v. United
States, 488 F.2d 890, 893 (5th Cir.1974). It merges into the final judgment, however, which, of course, is
appealable. Thus, the denial of a motion for new trial is reviewable on appeal of the final judgment.
Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147 (1940); Lloyd v. Gill, 406
F.2d 585 (5th Cir.1969).
   13
     Defendants, of course, could appeal the remitted amount as still excessive, but only after plaintiffs
had consented to the remittitur and it became an appealable final judgment.

                                                       8
and we have jurisdiction over this appeal. Since the district court entered judgment under the authority of

BMW, the resolution of this issue must lie in the interplay between BMW and the Seventh Amendment.

                                                       III.

         At common law, no review of jury verdicts was permitted except upon writs of error, which were

limited to questions of law. Gasperini, 518 U.S. at 452, 116 S.Ct. 2211 (citing 3 W. Blackstone,

Commentaries on the Laws of England 405 (1768)). The Seventh Amendment incorporated this principle,

forbidding any reexamination of a jury's determination of the facts. Gasperini, 518 U.S. at 452, 116 S.Ct.

2211. Neither common law nor the Seventh Amendment, however, prohibits reexamination of the verdict

for legal error.14 Id. Therefore, if legal error is detected, the federal courts have the obligation and the power

to correct the error by vacating or reversing the jury's verdict. Id.

         Similarly, where a portion of a verdict is for an identifiable amount that is not permitted by law, the

court may simply modify the jury's verdict to that extent and enter judgment for the correct amount. New

York, L.E. & W.R. Co. v. Estill, 147 U.S. 591, 13 S.Ct. 444, 454, 37 L.Ed. 292 (1893). In Estill, the Supreme

Court determined that interest had been improperly awarded by the jury. The Court affirmed the jury's verdict

as to the damages, but wrote that "it is not affirmed as to the amount of interest, or any part thereof, awarded

by the verdict or judgment. That judgment is modified as to such interest, and the case is remanded to the

court below, with a direction to enter a judgment for the plaintiffs for the [damages]...." Id. The Seventh

Amendment is not offended by this reduction because the issue is one of law and not fact.

        In TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 454, 113 S.Ct. 2711, 125

L.Ed.2d 366 (1993), the Supreme Court held that the due process clause prohibits a state from imposing a

"grossly excessive" punishment on a tortfeasor. Three years later, in BMW, the Court reversed a punitive

damage award because it was unconstitutionally excessive. 517 U.S. at 562, 116 S.Ct. 1589. The Court held




   14
     The Judiciary Act of 1789, 1 Stat. 73, also provides for "reexamin[ation]" of civil judgments upon a
writ of error.

                                                        9
that the Constitution provides an upper limit on punitive damage awards so that a person has "fair notice not

only of the conduct that will subject him to punishment but also of the severity of the penalty that a State may

impose." Id. at 574, 116 S.Ct. 1589.

         No one would dispute that the court, not the jury, has the responsibility for determining this

constitutional limit. Courts decide questions of law, not juries. The real issue, therefore, is whether the court

may enter judgment for a constitutionally reduced award without plaintiff's consent. So put, the question

answers itself. Plaintiff's consent is irrelevant if the Constitution requires the reduction.

         A constitutionally reduced verdict, therefore, is really not a remittitur at all.15 A remittitur is a

substitution of the court's judgment for that of the jury regarding the appropriate award of damages. The

court orders a remittitur when it believes the jury's award is unreasonable on the facts. A constitutional

reduction, on the other hand, is a determination that the law does not permit the award. Unlike a remittitur,

which is discretionary with the court and which we review for an abuse of discretion, Gasperini, 518 U.S.

at 435, 116 S.Ct. 2211, a court has a mandatory duty to correct an unconstitutionally excessive verdict so that

it conforms to the requirements of the due process clause. BMW, 517 U.S. at 585, 116 S.Ct. 1589.

         We conclude that, upon determination of the constitutional limit on a particular award, the district

court may enter a judgment for that amount as a matter of law. Just as the Supreme Court struck the unlawful

interest from the jury's verdict in Estill and ordered judgment entered for the remainder, so may the district

court strike the unconstitutional excess from a jury's punitive damage award and enter judgment for that

amount. As in Estill, the power to do so is located in the court's authority to enter judgment as a matter of




   15
     We find support for this view in the Supreme Court's failure to use the term remittitur in BMW to
characterize a constitutionally required reduction in a verdict. Nowhere does the Court characterize such
a reduction as a remittitur. On the other hand, the Court did specifically refer to the Fourth Circuit's
reduction of the jury's verdict in Hetzel as a remittitur. While we do not imply that the characterization of
a reduction is controlling as to the Seventh Amendment issue, we conclude that the nature of the
reduction by the court does.

                                                       10
law. Thus, a court proceeds under Rule 50, not Rule 59, in the entry of judgment for a constitutionally

reduced award and the Seventh Amendment is not implicated in this legal exercise.16

        We do not think Hetzel is to the contrary. In Hetzel, the Supreme Court reversed the Fourth Circuit's

writ of mandamus directing the district court to enter judgment for a remittitur without affording the plaintiff

the option of a new trial. 118 S.Ct. at 1211. It is clear that the Supreme Court viewed the reduction of the

verdict in Hetzel as a traditional remittitur: "In determining that the evidence did not support the jury's

general damages award and in ordering the District Court to recalculate the damages, the Court of Appeals

in this case imposed a remittitur." 118 S.Ct. at 1211. There was no claim in the case that the Constitution

required the reduction. Therefore, the reduction must have been an exercise of the court's discretion. As we

have seen, the exercise of a court's discretion, under the authority of Rule 59, to propose a remittitur must

afford the plaintiff the option to elect a new trial.17




   16
     The court may enter judgment only if it reduces the jury's verdict to the maximum permitted by the
Constitution in that particular case, as any smaller amount would invade the province of the jury. See
Dimick, 293 U.S. at 486, 55 S.Ct. 296 ("Where the verdict is excessive, the practice of substituting a
remission of the excess for a new trial is not without plausible support in the view that what remains is
included in the verdict along with the unlawful excess—in the sense that it has been found by the
jury—and that the remittitur has the effect of merely lopping off an excrescence.").
   17
     On remand of Hetzel, the Fourth Circuit explained that it had believed that after Gasperini and BMW
"a substantial constitutional question had emerged as to whether the Court's decision in Kennon could be
understood as controlling the disposition of the Seventh Amendment issue." In re Bd. of County Sup'rs
of Prince William County, Va., 143 F.3d 835, 840 (4th Cir.1998). The court read BMW to mean that the
Seventh Amendment right to a jury would not be offended by the entry of judgment for a reduced verdict
required by law—by any law, including state law. Id.

                 We agree with the Fourth Circuit that this issue is clouded by the statement in Gasperini
        that appellate review of a remittitur is permitted because a jury's verdict has an "upper limit
        [under state law], and whether that limit has been surpassed is not a question of fact with respect
        to which reasonable men may differ, but a question of law." 518 U.S. at 435, 116 S.Ct. 2211
        (quoting Dagnello v. Long Island R. Co., 289 F.2d 797, 806 (2d Cir.1961)). This language
        implies that even a traditional remittitur is a matter of law, not discretion. Whether state law
        remittiturs might ultimately be treated similarly to the constitutionally reduced verdict in our case,
        as the Fourth Circuit suggests, is a question that will, no doubt, be resolved as time goes by. We
        do not address it because we have concluded that it is not raised by the constitutional reduction in
        our case.

                                                          11
        We have concluded, however, that a constitutionally reduced award is not a traditional remittitur at

all. It is not discretionary, and the court's authority to do so does not lie in Rule 59. Therefore, a

constitutional reduction is not controlled by Hetzel.

        It appears that the Tenth and the Second Circuits may not agree. Continental Resources, Inc. v. OXY

USA, Inc., 101 F.3d 634 (10th Cir.1996); Lee v. Edwards, 101 F.3d 805, 813 (2d Cir.1996). These courts

have recently decided to continue to offer the plaintiff, whose verdict has been found to be constitutionally

excessive,18 a choice between a reduced verdict and a new trial to "avoid any conflict with the Seventh

Amendment." See OXY USA, Inc., 101 F.3d at 643. Some district courts, applying BMW have also permitted

the plaintiff to elect a new trial. See Mahoney v. Canada Dry Bottling Co., No. 94-CV-2924(FB) (E.D.N.Y.

May 7, 1998); Leab v. Cincinnati Ins. Co., No. Civ. A. 95-5690 (E.D.Pa. June 26, 1997); Kim v. Dial

Service Intern., Inc., No. 96 Civ. 3327(DLC) (S.D.N.Y. Aug. 11, 1997).

        While the Constitution does not prohibit this cautious approach, neither does it require that we tread

in the Tenth Circuit's footsteps.19 When we hold a jury's verdict to be unconstitutionally excessive, we do

not reexamine any facts; we merely adjust the verdict to the maximum the Constitution allows in that case.20

No new trial need be offered as the Supreme Court itself recognized in BMW when it remanded the case to

the Alabama Supreme Court to determine "[w]hether the appropriate remedy requires a new trial or merely




   18
      It is not totally clear that the Second Circuit held the jury's verdict unconstitutionally excessive in
Lee. See Punitive Damages—Constitutional Excessiveness, 12 No. 3 Fed. Litigator 84 (March 1997). If
not, then the Second Circuit followed Hetzel in affording the plaintiff the opportunity to elect a new trial
instead of consenting to a remittitur.
   19
      Giving a plaintiff the option of a new trial rather than accepting the constitutional maximum for this
case would be of no value. If, on a new trial, the plaintiff was awarded punitive damages less than the
constitutional maximum, he would have lost. If the plaintiff obtained more than the constitutional
maximum, the award could not be sustained. Thus, a new trial provides only a "heads the defendant wins;
tails the plaintiff loses" option.
   20
     Of course, if the district court exercises its discretion to reduce the verdict lower than the
constitutional maximum for that case, the verdict has been "reexamined" and the plaintiff must be
afforded the option to elect a new trial.

                                                        12
an independent determination by the Alabama Supreme Court of the award necessary to vindicate the

economic interests of Alabama consumers...." 517 U.S. at 586, 116 S.Ct. 1589.21

        In this case, the district court held that the $15 million punitive damage award was unconstitutionally

excessive and entered judgments totaling $4.35 million. In effect, the court held the greater amount illegal

and amended the jury's verdicts to conform to the law. We conclude, therefore, that the reexamination clause

did not prohibit the district court from entering judgments for the amount of punitive damages it found to be

constitutionally permitted without affording property owners an opportunity to elect a new trial. Accordingly,

we hold that the district court correctly entered judgments in this case and that these judgments are properly

before us for review.

                                                      IV.

        Next, we consider whether the district court correctly determined the punitive damages permitted by

the Constitution in this case.22 Unless its award is at this constitutional "upper limit," it must be vacated.23


   21
      It is unclear to us whether BMW allows an appellate court to determine the "upper limit" the
constitution permits, or requires remand to the district court where the record is not so "cold." In the case
of a remittitur under state law, a good argument can be made that Gasperini requires remand so that the
district court can initially determine the appropriate award. 518 U.S. at 438, 116 S.Ct. 2211 ("Within the
federal system, practical reasons combine with Seventh Amendment constraints to lodge in the district
court, not the court of appeals, primary responsibility for application of [state law] check[s] on punitive
damages")(emphasis added).

                Such considerations are also present in the case of a constitutionally reviewed verdict.
        Indeed, the Supreme Court remanded both the Gasperini (excessive under state law) and the
        BMW (excessive under Constitution) verdicts to the lower courts for their redetermination of the
        damages. Gasperini, 518 U.S. at 439, 116 S.Ct. 2211; BMW, 517 U.S. at 586, 116 S.Ct. 1589.
   22
     We are mindful of the difficulty of our task. See Justice Scalia's complaint that "[t]he Court has
constructed a framework that does not genuinely constrain, that does not inform state legislature and
lower courts—that does nothing at all except confer an artificial air of doctrinal analysis upon its
essentially ad hoc determination that this particular award of punitive damages was not 'fair.' " BMW, 517
U.S. at 606, 116 S.Ct. 1589 (Scalia, J. dissenting). Nevertheless, BMW requires that we search for this
"constitutional upper limit" when we review a due process challenge to a punitive damage award.
   23
     Depending on the outcome of our inquiry, we would instruct the district court that on remand it must
further reduce the award to the constitutional maximum for that case, or, if the present amount is below
the constitutional limit, consider it a traditional remittitur and offer the plaintiff the option to elect a new

                                                      13
1.        The Constitutional Analysis

           In BMW, the Supreme Court held that punitive damages may be so excessive as to be

unconstitutional. The Court outlined a two-step process for determining when this has occurred. The first

step is to marshal the facts which will inform our ultimate judgment regarding the constitutionality of the

punitive damage award. Then, based upon these constitutionally relevant facts, we draw a legal conclusion

as to whether the punitive damages awarded in the case are excessive.

           The first step, then, is to identify the constitutionally relevant facts. The Supreme Court has

instructed that punitive damages must be based upon conduct in a single state—the state where the tortious

conduct occurred—and reflect a legitimate state interest in punishing and deterring that conduct. The

Constitution also requires that the defendant had fair notice that its conduct could result in punitive damages

and in the severity of the potential damages. BMW establishes three "guideposts" for determining whether

the defendant had fair notice:

1)        the degree of reprehensibility of the defendant's conduct;

2)        the ratio of punitive damages to the actual harm inflicted on plaintiffs; and

3)        the comparison between punitive damages and potential civil or criminal penalties for defendant's
          conduct.

Id. at 575, 116 S.Ct. 1589.

          The district court in this case found that the conduct punished did occur in a single state and that this

state—Georgia—has expressed a strong interest in deterring environmental pollution24 and in protecting the

rights of property owners "to have water flow upon [their] land in its natural state free from adulteration."

Kingsley Mill Corp. v. Edmonds, 208 Ga. 374, 67 S.E.2d 111, 112 (1951). The court further found that:



trial.
     24
      This interest is evidenced by Georgia's statutory scheme which provides that pollution of a stream is
a trespass, O.C.G.A. § 51-9-7, and for civil penalties. O.C.G.A. § 12-5-52 (providing fines of up to
$100,00 per day for violators of the Georgia Water Quality Control Act, O.C.G.A. §§ 12-5-20—12-5-53).


                                                        14
1)        "it is absolutely clear ... that the degree of reprehensibility [of CE's conduct] is not very severe;"

2)        the ratio of the punitive ($15 million) to the actual damages ($47,000) was 320:1; and

3)        the ratio of the $15 million award to the administrative penalty imposed upon CE ($10,000) was
          1500:1.

          The district court concluded that an award of $15 million was "grossly disproportionate" to both the

actual damages and the administrative penalty. Since CE's conduct was "not very severe," the district court

held that CE had no notice that such a disproportional amount might be awarded and, therefore, the punitive

damage award was unconstitutionally excessive. The court reduced the punitive damages awarded to $4.35

million, the maximum it believed the Constitution permits in this case.25

          The parties disagree on the proper standard of review of this judgment under BMW. Property owners

argue that BMW requires a completely de novo review with absolutely no deference to any of the district

court's findings. CE correctly points out that a district court order granting or denying a remittitur under state

law is reviewed for abuse of discretion, but acknowledges that "neither this Circuit nor any other federal court

of appeals has articulated the standard for reviewing a punitive award under BMW." The appropriate standard

of review, therefore, is another issue of first impression for our consideration.

2.        The Standard of Review

          Although the Seventh Amendment limits appellate review of state-law remittiturs to an abuse of

discretion standard, Gasperini, 518 U.S. at 435, 116 S.Ct. 2211,26 BMW makes clear that there is a




     25
      The district court found that, under BMW, $4.35 million was the "appropriate assessment" of the
punitive damages. We interpret this language to mean the constitutional maximum. Otherwise, the
district court would have invaded the province of the jury by passing judgment not on the
constitutionality of the award, but on its reasonableness.
     26
      Gasperini was the first instance in which the Supreme Court approved the appellate review of a
district court's denial of a motion to set aside the verdict as excessive. 518 U.S. at 434, 116 S.Ct. 2211.
(As we have seen, the grant of such a motion results in a non-appealable order.) The Supreme Court held
that the Seventh Amendment limits the review to an abuse of discretion standard.

                                                        15
constitutional limit on a punitive damage award beyond which neither the jury nor the court has any

discretion to venture. The abuse of discretion standard is inapplicable where no discretion may be exercised.27

         The ultimate question whether a punitive damage award is constitutionally excessive is, of course,

a legal issue. We review questions of law de novo. Therefore, whenever an award of punitive damages is

asserted to have entered that "zone of arbitrariness that violates the Due Process Clause of the Fourteenth

Amendment," BMW, 517 U.S. at 568, 116 S.Ct. 1589, we review the award de novo under federal

constitutional standards.28

         In performing this review, however, we shall accept the district court's findings of fact unless they

are clearly erroneous. Rule 52(a), Fed.R.Civ.P. Cf. United States v. Bajakajian, 524 U.S. 321, 118 S.Ct.

2028, 2037 n. 10, 141 L.Ed.2d 314 (1998) ("The factual findings made by the district courts in conducting

the excessive[ ] [fines] inquiry, of course, must be accepted unless clearly erroneous."). For example, the

ratio of the actual to the punitive damages is an historical fact. We accept that finding unless it is clearly

erroneous.

         As to the comparison between the punitive award and other civil or criminal sanctions that could

have been awarded, the selection of the most appropriate point of comparison—actual fine imposed, the

maximum possible penalty or penalties in similar cases—is an issue of law. We, therefore, review the district

court's determination of the appropriate comparison de novo. However, the district court's finding regarding

this comparison, i.e., the disparity between the amount of the punitive damages award and the amount of the

other civil or criminal sanctions, is an historical fact which we review for clear error.




   27
     As noted above, however, if the district court exercises its discretion to reduce a jury's verdict below
the constitutional maximum, the plaintiff has a Seventh Amendment right to elect a new trial, and
appellate review of that remittitur(after the second trial) must be for an abuse of discretion.
   28
     On the contrary, if no constitutional challenge is mounted, then we review the district court's
determination of whether an award is "within the confines set by state law" for an abuse of discretion.
Gasperini, 518 U.S. at 435, 116 S.Ct. 2211.

                                                      16
         Finally, the district court's determination of the reprehensibility of the CE's conduct is also ultimately

factual. Although this determination must begin with the identification of the state's interest and an

assessment of the strength of that interest—both legal questions requiring an interpretation of state law—the

application of this legal standard to the facts of a particular case results in a finding of fact which we review

for clear error.29

         Although the "proper characterization of a question as one of fact or law is sometimes slippery," see

Thompson v. Keohane, 516 U.S. 99, 110-11, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), the degree of

reprehensibility of the defendant's conduct is essentially a judgment about facts. Such judgments are properly

the role of the district court and we will not second guess the judge who sat through the trial, heard the

testimony, observed the witnesses and had the "unique opportunity to consider the evidence in the living

courtroom context" while we have only the "cold paper record." See Gasperini, 518 U.S. at 437, 116 S.Ct.

2211. When findings of fact are based on determinations about witnesses' credibility, the deference accorded

the trial judge is even more significant "for only the trial judge can be aware of the variations in demeanor

and tone of voice that bear so heavily on the listener's understanding of and belief in what is said." Anderson

v. City of Bessemer City, N.C., 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

         This does not mean that we are without the power to reverse such judgments. If a district court's

finding regarding the defendant's degree of reprehensibility is not supported by the record or is contrary to

the evidence, it is "clearly erroneous." See Anderson, 470 U.S. at 573, 105 S.Ct. 1504. BMW instructs that

there are several indicia of reprehensibility: deliberate false statements, acts of affirmative misconduct or

concealment of evidence of improper motive, and repetition of tortious conduct. 517 U.S. at 576, 116 S.Ct.




   29
     Similarly, a finding of negligence or gross negligence, each of which involves the application of a
specific legal standard to a particular set of facts, has traditionally been deemed to be a finding of fact
reviewed for clear error. See Hale Container Line, Inc. v. Houston Sea Packing, 137 F.3d 1455, 1471
(11th Cir.1998). See also Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573, 105 S.Ct. 1504, 84
L.Ed.2d 518 (1985) ("Because a finding of intentional discrimination is a finding of fact, the standard
governing appellate review of a district court's finding of discrimination is [clearly erroneous].").

                                                       17
1589. Thus, where a district court finds deliberate false statements, acts of affirmative misconduct or

concealment of evidence of improper motive, and repetition of tortious conduct, but concludes, nonetheless,

that the defendant's conduct was "not very reprehensible," a reviewing court would have ample authority to

"set aside" this finding. Fed.R.Civ.P. 52(a). United States v. United States Gypsum Co., 333 U.S. 364, 395,

68 S.Ct. 525, 92 L.Ed. 746 (1948) ( "A finding is 'clearly erroneous' when although there is evidence to

support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a

mistake has been committed.").30

        Review of a punitive damage award for constitutional error, therefore, requires first that we identify

the state's interest in deterring the relevant conduct and the strength of that interest. Next, we review the

district court's findings regarding the three BMW guideposts. To the extent that these are findings of fact, we

review them for clear error. Finally, we determine de novo whether the punitive damage award is

constitutionally excessive when measured by these guideposts.

        In performing the latter assessment, the essential legal issue is whether the relevant facts of this case,

as indicated by the various BMW factors, constitutionally support the punitive damage award, i.e., do these

facts indicate that CE had adequate notice that its conduct might subject it to this punitive damage award.

We will measure the adequacy of this notice by the degree of reprehensibility of CE's conduct, and the

disparities between the actual damage it caused and the other available sanctions and the punitive damages

that were ultimately awarded. In determining whether these disparities are constitutionally excessive, we will

be informed by the strength of the state's interest in deterring CE's conduct.

                                                       V.




   30
      On the other hand, "[i]f the district court's account of the evidence is plausible in light of the record
viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been
sitting as the trier of fact, it would have weighed the evidence differently. Where there are two
permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous."
Anderson, 470 U.S. at 574, 105 S.Ct. 1504 (citing United States v. Yellow Cab Co., 338 U.S. 338, 342, 70
S.Ct. 177, 94 L.Ed. 150 (1949)).

                                                       18
          First, we find no error in the district court's findings that the conduct punished here occurred in a

single state and that the Georgia statutes express a strong interest in deterring environmental pollution. This

interest would support a substantial punitive award. To determine the maximum punitive award permitted

by the Constitution in this case, we turn now to the district court's findings on the notice CE had regarding

its potential liability.

1.        Reprehensibility of CE's Conduct

          The most important indicum of the reasonableness of a punitive damages award may be the degree

of reprehensibility of the defendant's conduct. BMW, 517 U.S. at 575, 116 S.Ct. 1589. The relevant conduct

of CE in this case involves only the four years preceding the filing of the property owners' complaint in

August of 1992.31 The evidence was that, during that time, the mining site was not operated by CE. CE

reacquired the property in 1986 from Pasco, but never resumed mining operations.32

          During the four years at issue, the district court found that CE put into effect a land reclamation plan,

which was approved by the Georgia Environmental Protection Division, and which was designed to restore

the property and prevent the problem of acidic rain water entering the streams flowing through its property.

CE also cooperated with the Environmental Protection Division. Although its efforts were not entirely

successful, the district court concluded that CE's "most egregious conduct was the failure to do more to

prevent the acidic water problem."

          The district court concluded that the degree of CE's reprehensibility was not great. Given the

"developing" science of land reclamation which characterized the late 1980's, and CE's significant efforts in




     31
     Where a trespass or nuisance is continuing in nature, an action may be maintained for all damages
accruing during the four-year period preceding the filing of an action. O.C.G.A. § 9-3-30; Tucker v.
Southern Wood Piedmont Co., 28 F.3d 1089, 1091 (11th Cir.1994) (citation omitted).
     32
     CE had mined the property prior to selling the property to Pasco which, in 1986, defaulted on its
obligation to CE.

                                                        19
that regard, the district court held that there was not evidence in this case of "that high degree of culpability

that warrants a substantial punitive damages award." BMW, 517 U.S. at 580, 116 S.Ct. 1589.

        Although, under Georgia law, the jury must have found "specific intent to cause harm" to award

punitive damages of this amount, the district court found that there was no direct evidence of such intent. The

court concluded that the jury must have determined that CE's conduct exhibited a want of care rising to the

level of conscious or deliberate indifference to the consequences of its actions. Specific intent to cause harm

may properly be inferred from deliberate indifference, but the court concluded that CE's "deliberate

indifference" did not constitute severe "reprehensibility" under BMW.

        Furthermore, the district court found that none of the "aggravating factors associated with particularly

reprehensible conduct," BMW, 517 U.S. at 576, 116 S.Ct. 1589, was present in this case. The district court

found that:

        The evidence does not suggest that [CE] affirmatively engaged in prohibited conduct of any kind
        after it reacquired the property. It did not commit illegal acts, knowing or suspecting that the acts
        were illegal. In fact, [CE] responded to any criticisms or penalties levied against it by the
        Environmental Protection Division in a positive, more aggressive manner. Hence, there is no
        evidence that [CE] is a recidivist that continually repeats certain misconduct.

        As there was ample evidence to support the district court's view of the evidence, we hold that its

finding that CE's conduct was not highly reprehensible is not clearly erroneous.

2.      Ratio of Actual to Punitive Damages

        Punitive damages must bear a "reasonable relationship" to actual damages. BMW, 517 U.S. at 580,

116 S.Ct. 1589 (collecting cases). If the ratio of actual to punitive damages is too great, it is an indication

that the defendant did not have adequate notice that its conduct might subject it to an award of this size. Id.

at 574, 116 S.Ct. 1589 ("Elementary notions of fairness enshrined in our constitutional jurisprudence dictate

that a person receive fair notice not only of the conduct that will subject him to punishment but also of the

severity of the penalty that a State may impose.").




                                                       20
          In this case, property owners were awarded an aggregate of $47,000 in actual damages. The

aggregate $15 million punitive award, therefore, was almost 320 times the amount of actual damage. The

district court concluded such a ratio was constitutionally excessive because it approached the 500:1 ratio

found "breathtaking" by the Court in BMW. 517 U.S. at 583, 116 S.Ct. 1589. The district court's reduction

to an aggregate of $4.35 million represents a ratio of 100:1.

3.        Civil or Criminal Sanctions for the Misconduct

          There may also be a lack of adequate notice if the difference between the civil or criminal penalties

that were or could have been imposed and the punitive damage award is too great. BMW, 517 U.S. at 584,

116 S.Ct. 1589. In this case, Georgia law provides for civil fines of up to $100,000 per day for pollution of

its streams. O.C.G.A. §§ 12-5-20—12-5-53. The statute is administered by the Georgia Environmental

Protection Division. The only fine it actually imposed on CE for the conduct at issue in this case was

$10,000.

          The district court selected the $10,000 actual fine imposed as the most relevant "other sanction" for

comparison with the punitive damage award as required by BMW 's third guidepost. We agree.

          Whether a defendant had constitutionally adequate notice that his conduct might result in a particular

damage award depends in large part upon the available civil and criminal penalties the state provides for such

conduct. In BMW, the Court clearly stated that "a reviewing court engaged in determining whether an award

of punitive damages is excessive should 'accord substantial deference' to legislative judgments concerning

appropriate sanctions for the conduct at issue." 517 U.S. at 583, 116 S.Ct. 1589 (citations omitted).

          If a statute provides for a range of penalties depending on the severity of the violation, however, it

cannot be presumed that the defendant had notice that the state's interest in the specific conduct at issue in

the case is represented by the maximum fine provided by the statute.33 On the contrary, the extent of the



     33
     For example, the Court held in BMW that none of the statutes covering the relevant conduct in that
case would have provided "fair notice [to BMW] that the first violation—or, indeed the first 14
violations—of its provisions might subject an offender to multimillion dollar penalty." 517 U.S. at 584,

                                                       21
defendant's statutory notice is related to the degree of reprehensibility of his conduct. For example, if the

defendant had emptied a bottle of soda pop into a Georgia stream, it cannot reasonably be said that he was

on notice he could be fined $100,000. Similarly, constitutionally adequate notice of potential punitive

damage liability in a particular case depends upon whether this defendant had reason to believe that his

specific conduct could result in a particular damage award.

         The district court found that the degree of reprehensibility of CE's conduct was not severe.

Furthermore, Georgia fined CE's conduct an amount far below the maximum permitted under its statute. The

record reveals no indication that the $10,000 fine did not represent the strength of Georgia's interest in CE's

conduct. Under these circumstances, the most relevant comparison under the third BMW guidepost is

between the actual fine imposed and the punitive damage award. Where the state has actually imposed a

penalty for the conduct at issue, the district court may choose to look to that penalty as an indication of the

"legislative judgment" as to the "appropriate sanctions for the conduct at issue." BMW, 517 U.S. at 583, 116

S.Ct. 1589.34

        The remitted punitive award of $15 million was 1500 times the amount of the $10,000 Georgia fine.

The district court concluded that $15 million was "grossly disproportionate to the penalties that [CE] has

suffered or has come to expect" and "would not comport with the fair notice requirements of the

Constitution." The court's reduction of the punitive damages to $4.35 million represents an award 400 times

greater than the actual civil sanction.

        In sum, the district court found CE's conduct not very reprehensible, with no aggravating factors

present. It found the $15 million punitive damage award to be 1500 times the administrative sanction




116 S.Ct. 1589.
   34
     This is not to say that there may not be a case where the record reveals that the actual civil penalty
imposed does not adequately reflect the state's interest in the specific conduct at issue in the case. In such
a case, the court will have to decide whether to look at the maximum penalty permitted by state law or
past penalties for similar conduct.

                                                      22
imposed and 320 times the actual damages found by the jury. The district court reduced the $15 million to

an aggregate of $4.35 million, thereby reducing the relevant ratios to 400:1 and 100:1. We consider now

whether the district court erred in holding that $4.35 million is the maximum amount of punitive damages

the Constitution permits in this case.

                                                     VI.

         A punitive damage award may not be "grossly out of proportion to the severity of the offense."

BMW, 517 U.S. at 576, 116 S.Ct. 1589. We agree with the district court that the initial disparities in the

relevant ratios were genuinely "shocking," and that $15 million in punitive damages was grossly excessive.

         The reduction to $4.35 million also produced ratios which were gross enough to "raise a suspicious

judicial eyebrow." Id. (quoting TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443 482, 113

S.Ct. 2711, 125 L.Ed.2d 366 (1993)). There is, however, no "mathematical bright line between the

constitutionally acceptable and the constitutionally unacceptable that would fit every case." Id. (quoting

Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991)). In examining

the ratio between the actual damages and the punitive award in a given case, a "general concern of

reasonableness ... properly enter[s] into the constitutional calculus." Id.

         The Supreme Court recognized in BMW that there would be times when a substantial disparity

between actual damages and the punitive award would be expected and, therefore, not constitutionally

excessive:

        Indeed, low awards of compensatory damages may properly support a higher ratio than high
        compensatory awards, if, for example, a particularly egregious act has resulted in only a small
        amount of economic damages. A higher ratio may also be justified in cases in which the injury is
        hard to detect or the monetary value of noneconomic harm might have been difficult to determine.

517 U.S. at 582, 116 S.Ct. 1589.

        This is such a case. The actual damages awarded were relatively small; yet the state's interest in

deterring the conduct—environmental pollution—is strong. In order to achieve this goal, ratios higher than

might otherwise be acceptable are justified. As Chief Judge Posner has noted:


                                                      23
        [a] mechanical ratio, such as two to one or three to one or four to one or even ten to one, would not
        make good sense. The smaller the compensatory damages, the higher the ratio of punitive to
        compensatory damages has to be in order to fulfill the objectives of awarding punitive damages.

Cooper v. Casey, 97 F.3d 914, 919 (7th Cir.1996).35

        Furthermore, in promoting deterrence, the economic wealth of a tortfeasor may be considered. TXO

Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 462 n. 28, 113 S.Ct. 2711, 125 L.Ed.2d 366

(1993). A bigger award is needed to "attract the ... attention" of a large corporation. OXY USA, Inc., 101 F.3d

at 641. CE is a large and extremely wealthy international corporation. It is not unlikely that having to pay

$4.35 million in punitive damages would not make the company newsletter.36 It should, however, attract the

attention of whomever is in charge of the corporation's daily decisions regarding environmental protection,

and would, no doubt, bear heavily upon regional or local managers where failures to regard consequences

would be expected to subject their employer to loss. The $4.35 million award is not so large, however, as

to "implicate[ ] the federal interest in preventing individual States from imposing undue burdens on interstate

commerce." BMW, 517 U.S. at 585, 116 S.Ct. 1589.

        We conclude therefore, that substantial punitive damages are warranted for deterrence and, since the

actual damages are quite small, must be somewhat disproportional to the actual damage award. The ratio of

the district court's reduced award of $4.35 million to the administrative fine of $10,000 is significant, but the

Georgia statutes provided fair notice to CE that it might be subject to a substantial penalty for pollution of

the streams running though its property. The 100:1 ratio of the punitive to the actual damages is at the upper



   35
      Another reason for a somewhat higher than normal ratio in this case is that, under Georgia law,
property owners were forced to waive their claim for loss of market value in order to preserve their right
to injunctive relief.
   36
     Such a ratio might not be a direct deterrence to stockholders; it may not attract the attention of the
board of directors. But it is not the act or omission of stockholders or directors that pollutes. The
decision-maker on the scene whose conduct subjects the company to $4.5 million in damages is acutely
aware that this loss affects the year-end reports of the department or division within which he works. An
award sufficient to attract the attention of the department head in charge of the local decision-maker can
be instrumental in deterring local disregard of the rights of others. In that sense, vast international
corporations are made up of many smaller enterprises and deterrence of the small may be sufficient.

                                                       24
limits of the Constitution, but is justified by the need to deter this and other large organizations from a

"pollute and pay" environmental policy. Under the circumstances of this case, then, $4.35 million in punitive

damages is not so disproportional as to offend the "[e]lementary notions of fairness enshrined in our

constitutional jurisprudence." BMW, 517 U.S. at 574, 116 S.Ct. 1589.

          We hold, therefore, that $15 million was a constitutionally excessive punitive damage award in this

case, and the district court correctly reduced it to $4.35 million, the maximum the Constitution permits in this

case.

                                                      VII.

          Two issues remain for our review. First, are property owners entitled to post-judgment interest on

the original punitive damage judgments? Second, is CE entitled to a set-off of the amounts paid by it in

settlement of some of the property owners' claims?

1.        Post-Judgment Interest

          The district court ordered interest on the punitive damages to run from June 9, 1997, the date it

entered the reduced judgments totaling $4.35 million, rather than from June 16, 1994, the date of the original

(remitted) judgments totaling $15 million. Plaintiffs assert that the district court erred in so doing.37

          The determination of when interest begins to accrue on a money judgment is based on 28 U.S.C. §

1961 which provides:

          Interest shall be allowed on any money judgment in a civil case recovered in a district court.... Such
          interest shall be calculated from the date of the entry of the judgment....

          The question in this case is when "the judgments" as to punitive damages were "entered". Was it on

June 16, 1994, when the initial judgment of $15 million was entered, or was it on June 9, 1997 when the

district court entered the reduced judgment of $4.35 million?



     37
     CE argues that property owners waived this argument by not presenting it to the district court. This
argument is without merit because "interest accrues from the date of a judgment whether or not the
judgment expressly includes it, because 'such interest follows as a legal incident from the statute
providing for it.' " Tinsley v. Sea-Land Corp., 979 F.2d 1382, 1383 (9th Cir.1992) (citations omitted).

                                                       25
         The law on this issue is clear. The Supreme Court has held that postjudgment interest compensates

the successful plaintiff for being deprived of compensation for the loss from the time between the

"ascertainment of the damage" and the payment by the defendant. Kaiser Aluminum & Chemical Corp. v.

Bonjorno, 494 U.S. 827, 835-36, 110 S.Ct. 1570, 108 L.Ed.2d 842 (1990) (citing Poleto v. Consolidated Rail

Corp., 826 F.2d 1270, 1280 (3d Cir.1987)). Where the judgment is not supported by the evidence and is

vacated and damages are determined by a new trial, the damages were not "ascertained" in any meaningful

way until the entry of the second judgment. Id.

         When an original judgment is not completely vacated, the date from which post-judgment interest

runs turns on the degree to which the original judgment is upheld or invalidated. Loughman v. Consol-

Pennsylvania Coal Co., 6 F.3d 88, 98 (3d Cir.1993). Where the initial judgment is supported by the evidence

and the later judgment merely reflects a remittitur of a certain portion of that judgment as excessive, the

courts of appeals have routinely decided that damages were sufficiently "ascertained" at the time of the first

judgment and that post-judgment interest should run from the date of the original judgment. Dunn v. HOVIC,

13 F.3d 58, 61 (3d Cir.1993); Coal Resources v. Gulf & Western Industries, 954 F.2d 1263, 1274-75 (6th

Cir.1992); Tinsley v. Sea-Land Corp., 979 F.2d 1382, 1383 (9th Cir.1992); Masinter v. Tenneco Oil Co.,

934 F.2d 67, 68 (5th Cir.1991); and Affiliated Capital Corp. v. Houston, 793 F.2d 706, 709 (5th Cir.1986).

        These courts have reasoned that a remittitur merely reduces the damages by a distinct amount easily

determined from the facts of the case. Coal Resources, 954 F.2d at 1275. The initial judgment is viewed as

correct to the extent it is permitted to stand, and interest on a judgment partially affirmed should be computed

from the date of its initial entry. Tinsley, 979 F.2d at 1383.

         We think this reasoning is especially applicable in the context of a constitutionally excessive verdict.

The jury's punitive damage awards were correct to the extent of $4.35 million. The clearly identifiable

excessive portion has been stricken, but the remaining portion is just as clearly identifiable. Accordingly, this

case is governed by the rule that post-judgment interest runs from the date that damages are clearly



                                                       26
ascertained, which, to the extent of the $4.35 million we affirm today, was the date of entry of the initial

judgment—June 16, 1994.38

2.        Set-off

          Finally, with respect to CE's claim to a right of set-off with regard to the amount paid by it in

settlement of three of the plaintiffs' claims, CE cites no supporting authority and we can find none.

Furthermore, the settlement agreements recite that "no part of the settlement amounts" be considered punitive

damages. Having determined that punitive damages totaling $4.35 million do not offend the Constitution,

we find no reason to set off any amounts CE has already paid in settlement.39

                                                     VIII.

          We hold that the Constitution permits punitive damages in this case totaling $4.35 million.

Post-judgment interest on the punitive damages accrues from the date these damages were ascertained, which,

on the amounts we affirm today, was on June 16, 1994. CE enjoys no right to a set off of amounts paid by

it in settlement of property owners' judgments.

          Accordingly, the district court's judgment in each case is AFFIRMED; VACATED as to the date of

accrual of post-judgment interest which shall run from June 16, 1994; and REMANDED.




     38
      We also reject CE's argument that the district judge took into account his intention not to permit
interest to date back to 1994 in determining the maximum constitutionally permissible punitive damages
in this case. Even if he did, we do not believe that the statute permits the discretion to start the accrual of
interest at some time other than when damages are "ascertained."
     39
      The court has received some correspondence indicating that a settlement may have been reached
with some of the remaining ten plaintiffs (or groups of plaintiffs). Any further settlements and dismissals
of individual plaintiffs would, of course, result in the removal of that judgment from the case. As the
district court applied a multiplier of 100 to each plaintiff's compensatory award to arrive at his
constitutionally appropriate punitive award, resulting in the aggregate award of $4.35 million, the
elimination of that plaintiff's individual judgment would result in a proportional reduction of the
aggregate punitive damages awarded and, therefore, in a corresponding reduction in the relevant ratios.
Thus, our holding today would also remain applicable.

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