PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CAROL M. KONKEL,
Plaintiff-Appellee,

v.

BOB EVANS FARMS INCORPORATED,
                                                             No. 97-1824
Defendant-Appellant,

and

ECOLAB, INCORPORATED,
Defendant.

CAROL M. KONKEL,
Plaintiff-Appellant,

v.

BOB EVANS FARMS INCORPORATED,
                                                             No. 97-1867
Defendant-Appellee,

and

ECOLAB, INCORPORATED,
Defendant.

Appeals from the United States District Court
for the Western District of Virginia, at Harrisonburg.
B. Waugh Crigler, Magistrate Judge.
(CA-96-20-H)

Argued: September 24, 1998

Decided: January 4, 1999

Before MURNAGHAN and HAMILTON, Circuit Judges, and
MAGILL, Senior Circuit Judge of the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
Affirmed in part, vacated in part and remanded by published opinion.
Judge Hamilton wrote the opinion, in which Judge Murnaghan and
Senior Judge Magill joined.

_________________________________________________________________

COUNSEL

ARGUED: Steven Walter Bancroft, TRICHILO, BANCROFT,
MCGAVIN, HORVATH & JUDKINS, P.C., Fairfax, Virginia, for
Appellant. Robert Theodore Mitchell, Jr., James Anthony Klenkar,
HALL, MONAHAN, ENGLE, MAHAN & MITCHELL, Winchester,
Virginia, for Appellee. ON BRIEF: Melissa S. Hogue, Michael J.
Carita, TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUD-
KINS, P.C., Fairfax, Virginia, for Appellant.

_________________________________________________________________

OPINION

HAMILTON, Circuit Judge:

Bob Evans Farms, Inc. (Bob Evans), owner of a restaurant in Car-
lisle, Pennsylvania, appeals from a $1,000,000 judgment in favor of
one of its customers, Carol Konkel (Konkel), as compensation for her
physical and emotional damages flowing from her ingestion of hot
tea, contaminated with Eco-line Finish cleaning detergent, served to
her at Bob Evans.1 The principal issue presented in this appeal is
whether the magistrate judge abused his discretion in denying Bob
Evans' motion pursuant to Federal Rule of Civil Procedure 59(a) for
a new trial based upon the alleged excessiveness of the jury's com-
pensatory damage award. Concluding that $25,000 in compensatory
damages is the outermost award that could be sustained, we reduce
the award to $25,000 or grant a new trial nisi remittitur at Konkel's
option. With regard to the additional issues presented on appeal, we
affirm the magistrate judge's denial of Bob Evans' alternative
_________________________________________________________________
1 Ecolab, Inc., the manufacturer of Eco-line Finish cleaning detergent,
was originally also a defendant in this action. However, Konkel dis-
missed her claims against Ecolab, Inc. prior to trial. Ecolab, Inc. is not
a party in this appeal.

                   2
motions under Federal Rule of Civil Procedure 50(b) for judgment as
a matter of law or for a new trial, his denial of Bob Evans' motion
for relief from judgment pursuant to Federal Rule of Civil Procedure
60(b)(6), his denial of Konkel's motion to amend the ad damnum
clause of her complaint to add a request for punitive damages, and his
grant of Bob Evans' motion in limine to exclude evidence to support
a claim for punitive damages.

I

On March 22, 1994, Konkel had dinner at Bob Evans and ordered
hot tea with her meal. The waitress brought Konkel a carafe full of
hot water, a tea bag, and a mug.2 After allowing the tea to steep in
the carafe, Konkel poured herself a full mug of hot tea and drank it.
Shortly thereafter, the waitress inquired as to whether Konkel wanted
a refill of hot water so that she could have a second mug of hot tea.
Upon Konkel's affirmative response, the waitress poured hot water
from a coffee pot into Konkel's carafe.

Konkel waited for the tea to steep in the carafe, poured herself a
second mug of hot tea, and then swallowed one mouthful of it. Upon
swallowing, Konkel noticed that the hot tea tasted soapy, and she felt
a burning sensation in her throat. Konkel notified Bob Evans' staff
that her hot tea tasted soapy, and the waitress and the manager
smelled the hot tea and stated that the hot tea smelled like the Eco-
line Finish cleaning detergent that Bob Evans used to clean its coffee
pots. The manager concluded that the waitress had accidentally served
Konkel from a coffee pot that contained a packet of Eco-line Finish
cleaning detergent.

After leaving Bob Evans, Konkel continued to suffer pain in her
chest and therefore visited the emergency room. At the emergency
room, Dr. Lawrence Boyler, an emergency room physician, examined
Konkel, diagnosed her slightly red throat as esophageal chemical
burn, and estimated that she would recover rapidly. Almost a year
after the incident at Bob Evans, Konkel suffered chest discomfort and
visited her family physician, Dr. Edward Cullen, who performed tests
_________________________________________________________________
2 The carafe and the mug each could hold approximately one cup of liq-
uid.

                    3
producing normal results. Thereafter, Konkel visited two gastroenter-
ology specialists who performed tests also producing normal results.

Despite the fact that all the tests on Konkel produced normal
results, one of the specialists, Dr. Nicholas Snow, diagnosed Konkel
as suffering from heightened visceral nociception (HVN)3 of the
esophagus and prescribed her anti-depressants to numb the nerves in
her esophagus. Dr. Snow concluded that Konkel's condition was the
result of her ingestion of the "mouthful" of hot tea containing Eco-
line Finish cleaning detergent at Bob Evans a year and a half earlier.

Thereafter, Konkel filed a complaint against Bob Evans in the Cir-
cuit Court of Clarke County, Virginia, alleging that Bob Evans acted
negligently and in breach of its express and implied warranties "that
the food and beverages served at [Bob Evans] were safe and fit for
human consumption" when it served Konkel hot tea containing Eco-
line Finish cleaning detergent. (J.A. 20). In her complaint, Konkel
requested $1,000,000 in compensatory damages on each of her
claims, but did not request punitive damages. Bob Evans subse-
quently removed the case to the United States District Court for the
Western District of Virginia based upon diversity jurisdiction. See 28
U.S.C. § 1332. The case proceeded into the discovery phase, with the
parties agreeing that the law of Pennsylvania applied to all substantive
issues in the case.

Three days before the end of discovery, in supplemental answers
to Bob Evans' interrogatories, Konkel requested punitive damages. In
response, Bob Evans moved in limine to exclude evidence to support
a claim for punitive damages because Konkel did not aver them in her
complaint. Following the close of discovery, Konkel moved for sum-
mary judgment on all counts.

During a hearing on the motions, Konkel orally moved for leave
to amend her ad damnum clause to request punitive damages, but the
magistrate judge denied her motion. At the conclusion of the hearing,
_________________________________________________________________
3 Dorland's Illustrated Medical Dictionary, 1141, 1831-32, (28th ed.
1994), defines "nociception" as "pain sense" and "visceral" as pertaining
to "any large interior organ in any one of the three great cavities of the
body, especially in the abdomen."

                    4
the magistrate judge denied Konkel's motion for summary judgment
as to her negligence claim, but granted the motion as to her breach
of warranties claim with respect to liability only. The magistrate
judge granted Bob Evans' motion in limine to exclude evidence of
punitive damages because Konkel did not allege sufficient facts in her
complaint to give Bob Evans notice of her claim for punitive dam-
ages, and leave to amend at such a late date would prejudice Bob
Evans.

The case proceeded to trial before a jury on the issue of damages
for Bob Evans' breach of warranties and on the issue of whether Bob
Evans' conduct constituted negligence. By consent of the parties, a
magistrate judge presided over the trial. See 28 U.S.C. § 636(c). At
trial, Konkel's theory of the case was that, as evidenced by Dr.
Snow's expert testimony, Bob Evans' conduct caused her serious,
substantial, and permanent physical injury that had a devastating
impact on her life. Konkel testified that her HVN caused her to
severely restrict her diet, thereby affecting her relationships with her
husband, her family, and her friends. In response to Konkel's evi-
dence, Bob Evans introduced the testimony of Dr. Anthony Kalloo.
Dr. Kalloo acknowledged that HVN was a medical condition, but
opined that the data was insufficient to diagnose Konkel with HVN
and that Konkel's esophagus was normal.

At the close of Konkel's evidence, Bob Evans moved for judgment
as a matter of law under Federal Rule of Civil Procedure 50(a)
because Konkel had not submitted medical bills or records and the
only evidence of causation was Dr. Snow's testimony. The magistrate
judge granted Bob Evans' motion in part, excluding testimony of any
medical expenses Konkel incurred in the past or expected to incur in
the future and also excluding any instruction to the jury regarding
medical expenses.

At the close of evidence, Konkel moved for judgment as a matter
of law pursuant to Rule 50(a) on her negligence claim. The magistrate
judge granted the motion in part, concluding that as a matter of law
Bob Evans had breached its duty of care, but the magistrate judge sent
to the jury the issue of what compensatory damages were proximately
caused by Bob Evans' conduct. Specifically, on the issue of damages,
the magistrate judge instructed the jury to determine whether Konkel

                     5
had suffered or would suffer damages -- past or future physical pain,
mental anguish, humiliation, embarrassment, inconvenience, or loss
of enjoyment of life -- and if so, the amount of those damages. Fol-
lowing its deliberations, the jury found that Konkel suffered damages
in the amount of $1,000,000 as a proximate result of Bob Evans' con-
duct.

Subsequently, Bob Evans moved for a new trial pursuant to Federal
Rule of Civil Procedure 59(a) based upon the alleged excessiveness
of the jury's compensatory damage award. Specifically, Bob Evans
contended that the jury's compensatory damage award was excessive
because Konkel had not submitted objective medical evidence of
injury, medical expenses, lost wages, lost earning capacity, or loss of
employment opportunities. Bob Evans also moved for judgment as a
matter of law or in the alternative for a new trial pursuant to Federal
Rule of Civil Procedure 50(b). The magistrate judge issued a joint
order denying the Rule 59(a) and the Rule 50(b) alternative motions
because Dr. Snow's testimony provided "a legally sufficient evidenti-
ary basis for the jury's verdict." (J.A. 552). Additionally, the magis-
trate judge concluded that the jury's verdict was"not against the clear
weight of the evidence," and "the outcome was not a miscarriage of
justice." Id. Accordingly, the magistrate judge entered judgment in
favor of Konkel in the amount of $1,000,000.

Thereafter, Bob Evans moved for relief from judgment pursuant to
Federal Rule of Civil Procedure 60(b)(6) based on jury misconduct.
In support of its motion, Bob Evans attached an affidavit from Bob
Evans' counsel's secretary. In the affidavit, the secretary stated that
she had spoken to the foreman of the jury, who told her that the jury
had performed an experiment in the jury room "to determine the
amount of liquid that was in the coffee pot at Bob Evans" when the
waitress refilled Konkel's carafe, and in performing the experiment,
had used a cup not admitted into evidence. (J.A. 566). The magistrate
judge denied Bob Evans' Rule 60(b)(6) motion, concluding the jury's
experiment did not constitute jury misconduct, because the experi-
ment was merely an examination of the admitted evidence and an
application of the admitted testimony regarding the concentration of
the detergent in the hot water served to Konkel.

Bob Evans subsequently filed a timely notice of appeal, and Kon-
kel filed a timely notice of cross-appeal. On appeal, Bob Evans con-

                    6
tends that the magistrate judge erred in denying its Rule 50(b) motion
for judgment as a matter of law, its alternative Rule 50(b) motion for
a new trial, its Rule 59(a) motion for a new trial, and its Rule 60(b)(6)
motion for relief from judgment. On cross-appeal, Konkel alleges that
the magistrate judge erred in denying her oral motion to amend her
ad damnum clause to add a request for punitive damages and in grant-
ing Bob Evans' motion in limine to exclude evidence related to puni-
tive damages.

II

First, we address Bob Evans' argument that the evidence was not
sufficient to support the jury's findings of causation, including its
obvious finding that Konkel suffered from HVN as a result of Bob
Evans' conduct, and that therefore, the magistrate judge erred in
denying its alternative motions under Rule 50(b) for judgment as a
matter of law or for a new trial. We review a district court's denial
of a Rule 50(b) motion for judgment as a matter of law de novo. See
White v. County of Newberry, 985 F.2d 168, 172 (4th Cir. 1993). A
Rule 50(b) motion should be granted if a district court determines,
without weighing the evidence or considering the credibility of the
witnesses, that substantial evidence does not support the jury's find-
ings. See id. In reviewing a district court's decision on a Rule 50(b)
motion, we view all the evidence in the light most favorable to the
prevailing party and draw all reasonable inferences in his or her favor.
See Austin v. Torrington Co., 810 F.2d 416, 420 (4th Cir. 1987). We
review a denial of a motion for a new trial under Rule 50(b) for abuse
of discretion. See Bristol Steel & Iron Works, Inc. v. Bethlehem Steel
Corp., 41 F.3d 182, 186 (4th Cir. 1994).

The question before us is whether Konkel presented sufficient evi-
dence to support the jury's finding that she suffered damages that
were proximately caused by Bob Evans' conduct. In order to establish
proximate cause under Pennsylvania law, the plaintiff must show by
a preponderance of the evidence that the defendant's acts or omis-
sions were a substantial factor in causing the plaintiff's harm. See
First v. Zem Zem Temple, 686 A.2d 18, 21 (Pa. Super. 1996).

Konkel presented the testimony of Dr. Snow that the likely perma-
nent HVN she suffered was caused by Bob Evans' conduct. In

                     7
response, Bob Evans presented the testimony of Dr. Kalloo, who
opined that the data was insufficient to diagnose Konkel with HVN
and that Konkel's esophagus was normal. Obviously, it was up to the
jury to decide which expert -- Dr. Snow or Dr. Kalloo -- was more
credible. Through its verdict, it is evident that the jury found Dr.
Snow more credible, and we are in no position to take issue with that
finding. In short, Dr. Snow's testimony was sufficient to support a
reasonable jury's finding that Bob Evans' conduct was a substantial
factor in causing Konkel's HVN. Accordingly, we conclude that the
magistrate judge's denial of Bob Evans' motion for judgment as a
matter of law under Rule 50(b) was proper.4

III

Next, we address Bob Evans' contention that the $1,000,000 com-
pensatory damage award is excessive, and therefore, the magistrate
judge erred in denying its Rule 59(a) motion for a new trial based
upon the alleged excessiveness of the jury's compensatory damage
award.

We review a district court's denial of a Rule 59(a) motion for a
new trial based upon the alleged excessiveness of the jury's compen-
satory damage award for abuse of discretion, giving"the benefit of
every doubt to the judgment of the trial judge." Gasperini v. Center
for Humanities, Inc., 518 U.S. 415, 438-39 (1996). Whether a jury
award is excessive is a question of law. See id. at 436-38. If we find
a jury's damage award excessive, we may "grant a new trial nisi
remittitur, which gives the plaintiff the option of accepting the remit-
titur or of submitting to a new trial." Cline v. Wal-Mart Stores, Inc.,
144 F.3d 294, 305 n.2 (4th Cir. 1998).

The Supreme Court in Gasperini addressed the appropriate stan-
dard under which a district court must evaluate a Rule 59(a) motion
for a new trial based upon the alleged excessiveness of the jury's
compensatory damage award. See Gasperini, 518 U.S. at 438-39. The
_________________________________________________________________
4 For the reasons stated above, we conclude that the magistrate judge's
denial of Bob Evans' alternative Rule 50(b) motion for a new trial was
not an abuse of discretion. See James v. Jacobson, 6 F.3d 233, 239 (4th
Cir. 1993).

                     8
Supreme Court determined that because the doctrine of Erie R.R. Co.
v. Tompkins, 304 U.S. 64 (1938), "precludes a recovery in federal
court significantly larger than the recovery that would have been tol-
erated in state court," Gasperini, 518 U.S. at 430-31, a district court
sitting in diversity must apply state law standards when it considers
a Rule 59(a) motion for a new trial based upon the alleged excessive-
ness of the jury's compensatory damage award. See id. at 438-39.

Gasperini overruled our circuit precedent that called for district
courts sitting in diversity to apply federal law in determining the mer-
its of a motion pursuant to Rule 59(a) for a new trial based upon the
alleged excessiveness of the jury's verdict. See Johnson v. Parrish,
827 F.2d 988, 991 (4th Cir. 1987). Specifically, in our circuit prior to
Gasperini, a district court was required to set aside a jury's verdict as
excessive "even when such a verdict is supported by substantial evi-
dence `if [it] is of the opinion that the verdict is against the clear
weight of the evidence, or is based upon evidence which is false, or
will result in a miscarriage of justice.'" Johnson, 827 F.2d at 991
(quoting Aetna Cas. & Sur. Co. v. Yeatts, 122 F.2d 350, 352 (4th Cir.
1941)).

Under the Supreme Court's mandate in Gasperini , the magistrate
judge was required to apply Pennsylvania law in determining whether
the jury's $1,000,000 compensatory damage award in favor of Konkel
was excessive. Under Pennsylvania law, a jury's damage award is
considered excessive if it does not fall "within the necessarily uncer-
tain limits of fair and reasonable compensation in the particular case"
or if the award "so shocks the sense of justice as to compel the con-
clusion that the jury [was] influenced by partiality, prejudice, mistake,
or corruption." Carminati v. Philadelphia Transp. Co., 176 A.2d 440,
445 (Pa. 1962).

Here, the magistrate judge applied federal law in testing the jury's
compensatory damage award for excessiveness, concluding that it
was not against the clear weight of the evidence and was not a miscar-
riage of justice. Such application was erroneous in light of Gasperini.
Because the magistrate judge applied the wrong standard in testing
the jury's compensatory damage award for excessiveness, a remand
is required unless we conclude that the magistrate judge would have

                     9
reached the same result applying Pennsylvania law as he did applying
federal law.

Applying federal law, the magistrate judge concluded that the
jury's compensatory damage award was not against the clear weight
of the evidence and was not so excessive as to be a miscarriage of jus-
tice. Because the federal excessiveness standard is analogous to the
Pennsylvania excessiveness standard, to say that the magistrate judge
would not have concluded that the jury's compensatory damage
award was "within the necessarily uncertain limits of fair and reason-
able compensation in the particular case" and was not so extravagant
that it "so shocks the sense of justice as to compel the conclusion that
the jury [was] influenced by partiality, prejudice, mistake, or corrup-
tion," Carminati, 176 A.2d at 445, would strain credulity. Therefore,
because the magistrate judge would have reached the same result
applying Pennsylvania law as he did applying federal law, a remand
is not only unwarranted but would be a waste of judicial resources.
Accordingly, we turn to consider whether the magistrate judge's
denial of Bob Evans' motion for a new trial based upon the alleged
excessiveness of the jury's compensatory damage award was an abuse
of discretion.

The Pennsylvania courts apply the following factors when deter-
mining whether a jury's damage award is excessive:"(1) the severity
of the injury; (2) whether the injury is demonstrated by objective
physical evidence or subjective evidence; (3) whether the injury is
permanent; (4) the plaintiff's ability to continue employment; (5) dis-
parity between the out of pocket expenses and the amount of the ver-
dict; and (6) damages plaintiff requested in his complaint." Stoughton
v. Kinzey, 445 A.2d 1240, 1242 (Pa. Super. 1982). As Pennsylvania
courts have recognized, because the circumstances of each case are
unique, only those factors relevant to the particular case at issue
should be considered. See Mineo v. Tancini, 502 A.2d 1300, 1305
(Pa. Super. 1986).

In this case, we believe the jury's compensatory damage award is
not "within the necessarily uncertain limits of fair and reasonable
compensation." Carminati, 176 A.2d at 445. Although the testimony
of Dr. Snow indicates that Konkel's likely permanent HVN was
caused by Bob Evans' conduct, Konkel produced no objective physi-

                    10
cal evidence concerning her injury, no evidence of lost wages, no evi-
dence of lost future earning capacity, no evidence of loss of future
employment, and no evidence of out-of-pocket expenses. When the
lack of this evidence is viewed in connection with Konkel's evidence
concerning the severity and permanency of her injury, it becomes evi-
dent that Pennsylvania courts would view this compensatory damage
award as excessive. See also Kemp v. Philadelphia Transp. Co., 361
A.2d 362, 364-66 (Pa. Super. 1976) (finding damage award of
$15,000 excessive where woman complained of knee and back pain
but there was no objective medical evidence, no evidence of perma-
nency, no evidence of lost earning capacity, and whose out-of-pocket
expense were only $535) (citing Meholiff v. River Transit Co., 20
A.2d 762, 764-65 (Pa. 1941) (reducing verdict when prediction of
permanency was based upon plaintiff's subjective claims of pain);
Brown v. Paxton, 2 A.2d 729, 730-31 (Pa. 1938) (reducing verdict
when evidence showed that plaintiff continued at same employment
with no lost earning capacity)). In our view, taking into account the
relevant factors under Pennsylvania law, an award of $25,000 is the
outermost award that could be sustained. We, therefore, reduce the
jury's compensatory damage award to $25,000 or grant a new trial
nisi remittitur at Konkel's option.

IV

Next, we turn to Bob Evans' allegation that the magistrate judge
erred in denying its motion for relief from judgment under Federal
Rule of Civil Procedure 60(b)(6) based upon jury misconduct.
According to Bob Evans, the jury's experiment using a cup not admit-
ted into evidence constituted jury misconduct.

This Court will not disturb a district court's denial of a Rule
60(b)(6) motion absent an abuse of discretion. See National Org. for
Women v. Operation Rescue, 47 F.3d 667, 669 (4th Cir. 1995). We
conclude that the magistrate judge did not abuse his discretion in
denying Bob Evans' Rule 60(b)(6) motion. Accordingly, we affirm on
this issue.

Experiments performed by juries, "which have the effect of putting
them in possession of evidence not offered at trial," constitute jury
misconduct requiring a new trial, unless no prejudice results. See

                    11
United States v. Beach, 296 F.2d 153, 158 (4th Cir. 1961). However,
jury experiments that are merely more critical examinations of exhib-
its than the examinations made during the trial are not objectionable.
See id. at 158-59.

The affidavit submitted by Bob Evans indicates that the jury per-
formed an experiment "to determine the amount of liquid that was in
the coffee pot" containing the packet of Eco-line Finish cleaning
detergent. (J.A. 566). In performing this experiment, the jury, accord-
ing to the affidavit, used the coffee pot and carafe, which were both
exhibits, and a cup, which had not been admitted into evidence. The
jury then "read the directions off the packet of detergent that was an
exhibit and found that the liquid solution swallowed by [Konkel] was
twelve times stronger than it was supposed to be." Id.

We conclude that the jury's experiment did not constitute jury mis-
conduct. The jury simply examined the coffee pot, carafe, and packet
of detergent that were admitted into evidence and applied the testi-
mony that coffee pots at Bob Evans were cleaned with one packet of
detergent, the testimony that the carafe was practically empty when
the waitress refilled it with water from the coffee pot, and the testi-
mony that the mug from which Konkel drank the soapy solution could
hold approximately one cup of liquid. Because the jury simply
applied the testimony concerning the size of Konkel's mug, the jury's
experiment did not place it in possession of evidence not presented at
trial. Accordingly, we conclude that the jury's experiment using a cup
not admitted into evidence did not constitute jury misconduct. We
therefore affirm the magistrate judge's denial of Bob Evans' Rule
60(b)(6) motion.5
_________________________________________________________________
5 To the extent that Konkel raises on cross-appeal that the magistrate
judge erred in denying her oral motion to add a request for punitive dam-
ages in her ad damnum clause and the magistrate judge erred in granting
Bob Evans' motion in limine to exclude evidence of punitive damages
because Konkel did not aver punitive damages in her complaint, we con-
clude that we need not address her claims because, as is obvious, the
facts in this case could not sustain an award for punitive damages under
Pennsylvania law, and Konkel has proffered no evidence in this regard.
See Feld v. Merriam, 485 A.2d 742, 747-48 (Pa. 1984) (noting that puni-
tive damages may be awarded in Pennsylvania for conduct that is "mali-
cious, wanton, reckless, willful, or oppressive") (internal quotation marks
omitted).

                    12
V

For the reasons stated above, we reduce the jury's compensatory
damage award to $25,000 or grant a new trial nisi remittitur at Kon-
kel's option. In accord with In re Board of County Supervisors, 143
F.3d 835, 842 (4th Cir. 1998), the new trial may be"`upon the whole
case'" or limited to the issue of damages alone, at the election of Kon-
kel. Id. (quoting Kennon v. Gilmer, 131 U.S. 22, 30 (1889)). In all
other respects, we affirm the judgment.

          AFFIRMED IN PART, VACATED
          IN PART, AND REMANDED

                    13
