                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


DEBRA LYNN HENLEY, individually          
and on behalf of her minor child;
CHARLES E. HILL; JOANN GAYLOR;
MARY L. PIERSON, individually, and
on behalf of her minor children,
                Plaintiffs-Appellants,
                 and
CHRISTOPHER MICHAEL HENLEY;
KATHLEEN GROSS, individually and
on behalf of her minor child; DAVID
CHARLES GROSS; BERTRAM WALTER
GROSS; TAMARA DAWN BELL,
individually and on behalf of her
minor child; SAVANNA HARDWICK;
PAMELA DEE TINCHER, individually            No. 00-1605
and on behalf of her minor child;
MORGAN TINCHER; LAURETTA V.
HUTCHINSON, individually and on
behalf of her minor children; RYAN
M. HUTCHINSON; ANDREW C.
HUTCHINSON; DOROTHY M.
DICKERSON; SANDRA L. MCCOY; SUE
MCLENDON; TIMOTHY P. HARR;
DEBRA E. TAYLOR; RONALD L.
MANNING; JOHN HIGGINBOTHEM;
JOSEPH L. HIGGINBOTHEM; JOHN
CRUIKSHANK; DEBRA L. BEAVER,
individually and on behalf of her
minor children; AMANDA E. BEAVER;
DAVID BEAVER; SYMRIA BEAVER;
                                         
2                      HENLEY v. FMC CORPORATION


MOHAMAD KAHN; DAVID E. GIBSON;            
CARMINE DALESSIO; CRESTA SIMMONS;
GEORGE B. GOODARD; STEVEN C.
PERRY; JOHN WISEMAN; JOSEPH A.
DINO; EDWIN BRIDGES; SHERRY
GRUBBS; JAMES E. WAHL; MIRANDA
C. PIERSON; TRAVIS J. PIERSON; JOHN
MCCOREY, all appearing in their           
representative capacity for the class,
                            Plaintiffs,
                  v.
FMC CORPORATION, a Delaware
Corporation,
             Defendant-Appellee.
                                          
             Appeal from the United States District Court
      for the Southern District of West Virginia, at Charleston.
              Charles H. Haden II, Chief District Judge.
                          (CA-95-1098-2)

                        Argued: January 25, 2001
                         Decided: June 29, 2001

      Before WILLIAMS and TRAXLER, Circuit Judges, and
    Raymond A. JACKSON, United States District Judge from the
        Eastern District of Virginia, sitting by designation.



Affirmed in part, reversed in part, and remanded by unpublished per
curiam opinion.


                              COUNSEL

ARGUED: Richard Forlani Neely, NEELY & HUNTER, Charleston,
West Virginia; Henry T. Dart, HENRY DART ATTORNEYS AT
                     HENLEY v. FMC CORPORATION                           3
LAW, P.C., Covington, Louisiana, for Appellants. Andrew Lewis
Frey, MAYER, BROWN & PLATT, New York, New York; Lee
Davis Thames, BUTLER, SNOW, O’MARA, STEVENS & CAN-
NADA, P.L.L.C., Jackson, Mississippi, for Appellee. ON BRIEF:
Jack W. Harang, LAW OFFICES OF JACK W. HARANG, Metairie,
Louisiana, for Appellants. Joseph S. Beeson, ROBINSON &
MCELWEE, Charleston, West Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   Debra Lynn Henley, individually and on behalf of her minor child,
is a named representative in a class action in which the named class
members filed suit in the United States District Court for the Southern
District of West Virginia against FMC Corporation, alleging that they
were injured by a cloud of phosporous trichloride that escaped an
FMC chemical plant because of a gas leak. There were a total of forty
named representatives,1 but after the class was divided into sub-
classes, only fourteen were chosen as initial "trial plaintiffs" (the trial
plaintiffs are collectively referred to as the Appellants).2 After the jury
awarded the Appellants compensatory and punitive damages, the dis-
trict court granted a new trial based upon newly discovered evidence
in the form of affidavits submitted by a witness who had been
unavailable at trial. The Appellants now appeal the jury’s unfavorable
verdict at the second trial, arguing that the district court erred in
granting a new trial based upon the new affidavits, that the district
court erred in concluding that the jury’s findings at the second trial
  1
     The named plaintiffs represented a class of approximately 400 people
allegedly injured by the cloud.
   2
     Although Henley is a named representative, she is not one of the four-
teen "trial plaintiffs."
4                     HENLEY v. FMC CORPORATION
are binding on the entire class, and that the district court erred in
refusing to grant the Appellants a new trial following the second jury
verdict. We conclude that the district court did not abuse its discretion
in granting the second trial based upon newly discovered evidence.
However, because at the second trial, the district court erred in failing
to instruct the jury as to the bifurcation of the class-wide issue of cau-
sation from the individual issues of causation and damages, we con-
clude that yet another trial is necessary. We therefore affirm in part,
reverse in part, and remand for further proceedings consistent with
this opinion.

                                      I.

   On December 5, 1995, FMC’s chloride unit ruptured at its Nitro,
West Virginia plant and released a hazardous cloud. The rupture was
caused, at least in part, by failures in FMC’s monitoring devices and
safety valves. After the release of the cloud, hundreds of people
alleged that they had suffered injuries as a result of cloud exposure.
On December 11, 1995, the Appellants sued FMC in the United
States District Court for the Southern District of West Virginia. The
Appellants sought class certification, with a proposed class consisting
of "all persons or other entities, who or which sustained damage as
a result of the leak of toxic gas from the Nitro, West Virginia facility
of [Defendant] on December 5, 1995." (J.A. at 226 (alteration in orig-
inal).) On January 22, 1997, the district court issued a memorandum
opinion and order granting a conditional certification of the class pur-
suant to Federal Rules of Civil Procedure 23(b)(3) and (c)(4)(A).3

  On March 5, 1998, the district court issued a case management
order certifying six subclasses.4 On March 13, 1998, the parties
    3
     The district court indicated several issues that were being certified for
class-wide treatment but did not indicate which issues were being sepa-
rated out as individual issues pursuant to Federal Rule of Civil Procedure
23(c)(4)(A).
   4
     The six subclasses consisted of: (1) "[a]ll persons who suffered anxi-
ety and emotional distress as a result of the leak;" (2) "[a]ll persons who
were ‘sheltered in place’ on December 5, 1995 as a result of the leak;"
(3) "[a]ll persons or entities who or which suffered lost wages and/or lost
                      HENLEY v. FMC CORPORATION                            5
agreed to a joint plan under which each side would select an equal
number of named representatives to serve as "trial plaintiffs." (J.A. at
322.) On September 18, 1998, the first trial began with these fourteen
representatives. The case was to be tried in two phases. In the first
phase of the trial, the jury was to decide the class-wide issues of neg-
ligence and strict liability, as well as compensatory damages for the
Appellants. The same jury would decide whether FMC’s conduct
warranted punitive damages, which would be awarded in a single
lump sum and then allocated, after adjudication or settlement of the
individual claims, to all class members successfully proving actual
damages stemming from the cloud.5 The second phase of trial, "if nec-
essary, would involve the disposition of individual claims of class
members," under which "[r]esolution [could] occur either by a series
of mini-trials or disposition by a special master or mediator." (Case
Management Order of Sept. 4, 1998.) "If mini-trials [were to be used],
the juries would be instructed as to the findings on common issues of
the original jury." (Id.)

   At trial, FMC offered the testimony of its expert, Dr. Tony Eggle-
ston, to show that the wind direction had carried the cloud across a
largely uninhabited portion of the state. Eggleston based his opinion
partially upon data gathered from a wind monitoring station run by
the West Virginia Division of Environmental Protection (DEP).
Charles Spann worked at that DEP station and Eggleston spoke with
Spann before trial to confirm the accuracy of the data and the equip-
ment used to gather that data. Spann was listed as a potential witness

profits as a result of the leak;" (4) "[a]ll persons or entities who or which
suffered property damage, either real or personal, as a result of the leak;"
(5) "[a]ll persons delayed inside their motor vehicles as a result of the
leak;" and (6)" [a]ll persons who suffered physical injury as a result of
the leak." (J.A. at 320.) The district court dismissed two of the subclasses
prior to trial, specifically those "claims related solely to shelter-in-place
or stuck-in-traffic inconveniences." (J.A. at 470.)
   5
     The punitive damages award, if any, was to be apportioned to individ-
ual class members "in a percentage equal to the relationship of their com-
pensatory award to the total compensatory damages awarded." (Case
Management Order of Sept. 4, 1998, at 2.)
6                       HENLEY v. FMC CORPORATION
by both parties, but Spann was unavailable to testify because he was
out of the country.6

   After Eggleston was excused by the district court and left town, the
Appellants offered Steve Drake as a rebuttal witness to undermine
Eggleston’s testimony. Drake was an employee of the DEP who was
supervised by Spann. The Appellants had not previously disclosed
Drake as a witness to either the district court or to FMC, and Drake
had not been a subject of discovery. Although counsel for the Appel-
lants represented that Drake had been discovered as a witness only on
the previous day, the district court found that counsel actually had
become aware of Drake before Eggleston left town. Nevertheless,
Appellants’ counsel did not disclose Drake as a witness until after
Eggleston was no longer available. The Appellants offered Drake’s
testimony to show that the equipment upon which Eggleston relied
was defective and therefore that Eggleston’s expert opinion was
flawed.

  The district court was concerned about the surprise nature of
Drake’s testimony, as well as the questionable manner in which the
Appellants had proceeded in offering the testimony:

        [Y]ou had access to this type of information as early as
        Wednesday. You went ahead and crossed the witness Eggle-
        ston with a view toward coming up with refuting type of
        information, and then you disclosed to counsel, once Dr.
        Eggleston left the stand and left the jurisdiction, that you
        had a witness who would significantly attack or erode the
        effect of Mr. or Dr. Eggleston’s testimony. So we get back
        to that point, which is one that the Court remains concerned
        about, and that is, as everyone here concedes, trials like this
        are not to be conducted by way of ambush but rather follow-
        ing the rules of discovery.

(J.A. at 2247.) After hearing Drake’s testimony outside of the pres-
ence of the jury, the district court noted the "immense probative
value" of the evidence and its "possible real significance as to the
    6
     Spann was traveling the remote silk trade routes to China.
                     HENLEY v. FMC CORPORATION                           7
validity of the testimony of some of the witnesses." (J.A. at 2281.)
The district court also continued to express reservations as to whether
to admit the evidence:

     [T]he evidence comes about and comes before this Court
     and a jury . . . under highly questionable circumstances. . . .
     I suggest that plaintiffs’ counsel quite obviously knew of the
     information, knew what plaintiffs’ counsel intended to do
     and made no disclosure to the defense.

(J.A. at 2281-82.) Recognizing the "very difficult balancing function
for any trial judge in a situation like this," the district court neverthe-
less permitted Drake to testify before the jury as to certain documents,
including some authored by Spann, but not as to others. (J.A. at 2281-
82.) The district court based its decision in part upon the assumption
that Drake was authorized by the DEP to testify and speak as to the
documents:

     I note my concern that Mr. Drake says he is not the keeper
     of the records, and he made that clear. I assume, on the other
     hand, that the DEP section chief and the counsel for DEP
     have given him the authority to come down here, whether
     he has the authority or not, and to speak to those records.
     And I assume that if it were necessary to authenticate these
     records as business records, it could be done. So that’s one
     other reason that I will allow it in, even aware of the fact
     that this man is not the keeper of the records. And I just
     think that the evidence may have a significance or probative
     value that slightly outweighs the prejudicial effect.

(J.A. at 2283.)

   During his testimony, Drake told the jury, based upon several doc-
uments, including some authored by Spann, that the weather equip-
ment was defective. Drake’s testimony critically undermined the basis
of Eggleston’s opinion and, therefore, fatally damaged FMC’s
defense. The jury thereafter returned a verdict in favor of the Appel-
lants, awarding compensatory damages in a total amount of $83,000
to ten of the fourteen Appellants, in amounts ranging from $6,000 to
8                    HENLEY v. FMC CORPORATION
$17,500. After FMC stipulated its net worth at $776.6 million, the
jury awarded punitive damages in the amount of $38.8 million.

   Upon Spann’s return from his travels, he submitted two affidavits
contradicting the testimony of Drake and affirming the accuracy of
the DEP equipment, and, on January 6, 1999, FMC filed a Notice of
Newly Discovered Evidence based upon Spann’s affidavits. Spann’s
affidavits stated that, contrary to Drake’s testimony, the equipment
upon which Eggleston relied likely was not defective and that Drake
had been asked to "testify at trial without having all of the informa-
tion necessary to do so." (J.A. at 2850.) The district court, in an opin-
ion extensively describing its reasons and the history of the
Drake/Spann issue, granted FMC a new trial. Among other things, the
district court found that "the actual trial testimony from Drake effec-
tively dismantled FMC’s defense. . . . New evidence offered by FMC
post-trial has laid waste to, not simply impeached or impugned,
Drake’s trial testimony. To ignore this newly discovered evidence
would amount to a miscarriage of justice." (J.A. at 3660-01.) The dis-
trict court recognized that "[p]ractically, FMC’s entire defense rested
on the foundation laid by Dr. Eggleston," and that the Appellants
relied extensively on Drake to rebut Dr. Eggleston’s opinion. (J.A. at
3662.) The district court reemphasized that it was "disturbed greatly
by the misrepresentations, innocent or intentional, Plaintiffs’ counsel
made concerning Drake’s proposed testimony." (J.A. at 3667-68 n.6.)

   At the second trial, FMC accepted responsibility for the cloud
itself, and framed the issue as whether the Appellants had been
exposed to and injured by the cloud. The jury found in favor of FMC.
Under the jury form, the jury could not decide punitive damages
absent a finding of compensatory damages for one or more of the
Appellants. Thus, the jury did not reach the question of punitive dam-
ages in rendering its verdict in favor of FMC.

   On November 22, 1999, the district court issued a judgment order
in favor of FMC, directing the Clerk to remove the case from the
active docket of the court. On December 2, 1999, the Appellants filed
a post-trial memorandum seeking a new trial, to set the remaining
cases of the other members of the class action for jury trial, and to
reinstate the verdict of the first trial. On April 18, 2000, the district
court denied the Appellants’ post-trial motions, concluding that the
                     HENLEY v. FMC CORPORATION                           9
jury’s finding that the Appellants had not been injured by the cloud
and its failure to reach the punitive damages question was binding on
the entire class. On April 18, 2000, the Appellants noted their appeal.

   The Appellants raise several issues on appeal. First, the Appellants
argue that the district court erred in granting a new trial after the first
jury verdict. Second, the Appellants argue that the second jury’s find-
ings should not bind the entire class. Third, the Appellants argue that
the district court erred in declining to grant a new trial after the sec-
ond jury verdict. We address each issue in turn.

                                    II.

   Plaintiffs first challenge the district court’s decision to grant a new
trial on the basis of newly discovered evidence. The district court, in
granting the new trial, found that "FMC was excusably ignorant and
exercised appropriate diligence upon Spann’s return to expose Plain-
tiffs’ calculated, late, surprise and successful effort to crush the cor-
nerstone of its defense." (J.A. at 3684.) The Appellants argue that the
evidence was not newly discovered because FMC could have tried to
depose Spann earlier to verify Dr. Eggleston’s opinion and that FMC
also could have found other means to verify the accuracy of the DEP
data on which its entire case relied. The Appellants also argue that
Spann’s testimony was presented only to impeach Drake’s testimony
and that the evidence, even if new, was not material. FMC responds
that the district court did not abuse its discretion in granting a new
trial to offset the Appellants’ use of an eleventh-hour surprise witness
who testified incorrectly about a subject on which he had little knowl-
edge, i.e., the accuracy of the DEP instruments and the data gathered
therefrom, and which had not been an issue that previously had been
in dispute.

  Under Federal Rule of Civil Procedure 59, the district court may
grant a new trial based upon newly discovered evidence.

     In this circuit, the standard governing relief on the basis of
     newly discovered evidence is the same whether the motion
     is brought under rule 59 or rule 60, and rule 60 requires that
     a party demonstrate: (1) the evidence is newly discovered
     since the judgment was entered; (2) due diligence on the
10                    HENLEY v. FMC CORPORATION
      part of the movant to discover the new evidence has been
      exercised; (3) the evidence is not merely cumulative or
      impeaching; (4) the evidence is material; and (5) the evi-
      dence is such that is likely to produce a new outcome if the
      case were retried, or is such that would require the judgment
      to be amended.

Boryan v. United States, 884 F.2d 767, 771 (4th Cir. 1989) (internal
citation omitted).7 "Thus, in order to support a motion for reconsidera-
tion, the movant is obliged to show not only that this evidence was
newly discovered or unknown to it until after the hearing, but also
that it could not with reasonable diligence have discovered and pro-
duced such evidence at the hearing." Id. (internal quotation marks
omitted). The district court made extensive findings to support its
decision to grant a new trial, and we review those findings for an
abuse of discretion. Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301
(4th Cir. 1998). Under the abuse of discretion standard, we may not
"substitute [our] judgment for that of the district court; rather, we
must determine whether the court’s exercise of discretion, considering
  7
    As noted above, the district court also explicitly found that "[t]o allow
the verdict to stand under such circumstances would result in a manifest
miscarriage of justice, one that the Court yet can remedy by corrective
action." (J.A. at 3687.) Some courts have held that a new trial may be
granted on the basis that the new evidence is "practically conclusive" and
allowing the verdict to stand would cause a manifest miscarriage of jus-
tice. See Ferrell v. Trailmobile, Inc., 223 F.2d 697, 698 (5th Cir. 1955)
("If, in fact, practically conclusive evidence shows that the appellant had
actually paid all eighteen installments for the purchase of the trailer, it
is obvious that the judgment should be set aside to prevent a manifest
miscarriage of justice. In such a case, the ends of justice may require
granting a new trial even though proper diligence was not used to secure
such evidence for use at the trial."). Because we conclude that the district
court did not abuse its discretion in concluding that Spann’s affidavits
supported the grant of a new trial under the criteria set forth in Boryan
v. United States, 884 F.2d 767, 771 (4th Cir. 1989), we save for another
day whether to adopt the "manifest miscarriage of justice" standard. Cf.
United States v. Singh, 54 F.3d 1182, 1190 (4th Cir. 1995). ("Without
ruling out the possibility that a rare example might exist, we have never
allowed a new trial unless the defendant can establish all five ele-
ments.").
                     HENLEY v. FMC CORPORATION                        11
the law and the facts, was arbitrary or capricious." United States v.
Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).

                                   A.

   The first two elements of the newly discovered evidence test are
whether the evidence is, "in fact, newly discovered," and whether
there are facts alleged "from which the court may infer diligence on
the part of the movant." United States v. Custis, 988 F.2d 1355, 1359
(4th Cir. 1993). The Appellants argue that "FMC could have taken
Mr. Spann’s deposition at any time before trial, but chose not to do
so," (Appellant’s Br. at 29) and that FMC had access to Spann before
trial, as demonstrated by the fact that Eggleston verified with Spann
the data that formed the predicate of his expert opinion before Spann
left the country. The Appellants also point to the fact that Spann was
on both parties’ witness lists before trial, although he subsequently
could not be called at trial because of his travels. The district court
found that the Appellants "waited until the waning days of a lengthy
trial to spring a surprise witness and unexpected evidence upon
FMC’s lawyers and then only after Dr. Eggleston left town." (J.A. at
3683.) Accordingly, the district court found that "FMC was excusably
ignorant and exercised appropriate diligence upon Spann’s return to
expose Plaintiff’s calculated, late, surprise and successful effort to
crush the cornerstone of its defense." (J.A. at 3684.)

   We cannot conclude that the district court abused its discretion in
finding that Spann’s affidavits satisfied the first two elements of the
newly discovered evidence test. First, Spann’s testimony was not
within FMC’s possession prior to or during trial because he was out
of the country in a remote location. Second, although FMC was aware
of Spann prior to trial, the accuracy of the equipment itself was not
in dispute until late in the trial, when the Appellants offered Drake as
a surprise witness after Spann was known to be unavailable and
Eggleston had already left the jurisdiction. We do not believe that
FMC, even exercising the height of diligence, could have anticipated
that it would have to develop evidence to respond to inaccurate testi-
mony by a surprise witness, Drake, who was called to testify about
matters outside of his knowledge. (See J.A. at 2709, 2707 (Spann affi-
davit of December 23, 1998, stating that he believed that "Drake was
placed in a difficult position by being asked to testify at trial without
12                   HENLEY v. FMC CORPORATION
having all of the information necessary to do so" and that Drake did
not consult with Spann prior to testifying).) As stated by the district
court, "Rule 59 requires a moving lawyer to be duly diligent, not a
prophet." (J.A. at 3684 n.9.) Third, we do not believe that FMC’s fail-
ure to question Drake before trial as to the accuracy of the data
reflects a lack of diligence; indeed, prior to trial, FMC’s expert had
verified the data with Spann, who was Drake’s supervisor and who
had authored the most important document about which Drake testi-
fied. (See J.A. at 2539 (statement by FMC’s counsel to district court
that "we have evidence from [Eggleston] that he spoke with [Spann]
and [Spann] was the source of the information that he got on which
he relied, and he checked with him and was told it was good"); 3666
(district court’s characterization of Spann as "the author of the most
hotly contested of the three documents").) We simply do not agree
that FMC had to question every DEP employee duplicatively as to
matters about which Spann had already spoken and about which
Spann clearly had the best knowledge, particularly where there was
no indication that the accuracy of the equipment would be in dispute.
Certainly, had Spann been available to testify at trial, FMC would
have had little reason to question Drake before trial as to matters
already verified by Spann. We do not believe that FMC’s failure to
question Drake somehow reflects a lack of diligence simply by virtue
of the fact that Spann subsequently became unavailable for trial. For
these reasons, and in light of the unique factual setting of this case,
we have no difficulty concluding that the district court did not abuse
its discretion in finding that Spann’s affidavits were new evidence and
that there were facts from which the district court could infer due dili-
gence on the part of FMC.

                                   B.

  The third element of the newly-discovered-evidence standard is
whether the evidence is "not [ ] merely cumulative or impeaching."
Custis, 988 F.2d at 1359. The Appellants contend that Spann’s testi-
mony "was offered for no other purpose than to contradict the testi-
mony of Mark Drake," (Appellants’ Br. at 32), and, therefore, it was
merely impeachment evidence. The district court found that "[t]he
new evidence here . . . is much more than grist for the mill of
impeachment" because "[i]t not only serves to seriously deprecate
Drake’s trial testimony and his interpretation of the documents, but
                     HENLEY v. FMC CORPORATION                         13
also supplants that testimony entirely, replacing it with his supervi-
sor’s contrary account of the critical wind direction evidence." (J.A.
at 3686.) We agree.

   Although the Appellants argue that the only purpose of Spann’s
affidavits was to impeach Drake’s testimony, the district court did not
abuse its discretion in concluding that Spann’s affidavits do not sim-
ply create a conflict in evidence or offer an alternative version of the
facts. See United States v. Estabrook, 774 F.2d 284, 290 (8th Cir.
1985) (affirming district court’s denial of new trial based on affidavits
asserting the falsehood of a government witness’ testimony because
the affidavits served only to refute the witness’s testimony by attack-
ing the witness’s credibility and offering an alternative version of the
facts). Drake was offered as a witness by the Appellants, and reluc-
tantly accepted by the district court, only because Spann was unavail-
able for trial. Spann, however, was self-evidently more knowledgable
than Drake as to the subject of Drake’s testimony, both as Drake’s
supervisor and as author of the most important notations and docu-
ments about which Drake sought to speak. Spann, in other words, was
clearly in a better position than Drake to testify and the jury should
have heard Spann, rather than Drake. We therefore agree with the dis-
trict court that Spann’s affidavits did not merely impeach Drake’s tes-
timony or create a simple conflict in the evidence, but rather that
Spann’s affidavits wholly "supplant[ed]" Drake’s testimony. (J.A. at
3686.) Accordingly, the district court did not abuse its discretion in
concluding that Spann’s affidavit could serve as a proper basis for a
new trial.8

  8
    Likewise, we do not believe that the evidence was used to impeach
Drake’s credibility. Cf. Sterkel v. Fruehauf Corp., 975 F.2d 528, 532 (8th
Cir. 1992) (stating, in affirming trial court’s refusal to permit rebuttal
witness who had been characterized as an impeachment witness, that
"[i]mpeachment is an attack on the credibility of a witness, whereas
rebuttal testimony is offered to explain, repel, counteract, or disprove
evidence of the adverse party"); United States v. Finis P. Ernest, Inc.,
509 F.2d 1256, 1263 (7th Cir. 1975) (same, and stating that "[a] witness’
testimony may be contradicted without being impeached").
14                   HENLEY v. FMC CORPORATION
                                   C.

   The fourth and fifth elements of the test for newly discovered evi-
dence are whether it is "material to the issues involved," Custis, 988
F.2d at 1359, and whether the "evidence is such that it is likely to pro-
duce a new outcome if the case were retried, or is such that would
require the judgment to be amended," Boryan, 884 F.2d at 771. The
district court found that the timing and nature of Drake’s testimony
were crucial to the case because Drake’s testimony undermined
Eggleston’s testimony, which formed the backbone of FMC’s
defense, and "Drake was the last witness the jury heard and, judging
by their expressions, the members were riveted by his not-to-be-
misunderstood, matter-of-fact testimony." (J.A. at 3685.) The district
court therefore concluded that "the newly discovered evidence is both
material and of a nature that could likely lead to a different result at
a second trial." (J.A. at 3686.)

    The district court did not abuse its discretion in so finding. First,
it is notable that presented with Spann’s testimony, the jury at the sec-
ond trial found in favor of FMC, clearly signaling the outcome-
determinative and material nature of the new evidence. Second,
although the Appellants now assert that the DEP wind direction data
and the accuracy of the machines was immaterial because wind direc-
tion data is inaccurate when measured over short time intervals, we
note that the Appellants argued the opposite when seeking to admit
Drake’s last-minute testimony. (See J.A. at 2246 (arguing to the dis-
trict court that "[the fact that] this may not be accurate information
from Nitro is very important").) Notably, only after considering the
assertedly highly probative nature of Drake’s testimony did the dis-
trict court decide, reluctantly, to admit Drake’s testimony notwith-
standing the prejudicial nature of the Appellants’ conduct, stating that
the "immense probative value" of Drake’s testimony "slightly" out-
weighed the prejudicial nature of the testimony. (J.A. 2281, 2283.)
Accordingly, we agree with the district court, which saw Drake’s tes-
timony firsthand and witnessed the devastating effect of his testimony
on FMC’s defense, that Spann’s new evidence was both material and
was such that it was likely to produce a new outcome on retrial.

   For these reasons, we conclude that the district court did not abuse
its discretion in granting a new trial based on newly discovered evi-
dence.
                        HENLEY v. FMC CORPORATION                             15
                                      III.

   The Appellants next challenge the district court’s decision to deny
relief to the other class members once the Appellants’ claims failed
at the second trial. As discussed further below, the jury form conflates
the issue of whether the cloud released by FMC was located in the
vicinity of the Appellants with the issue of whether each Appellant
individually proved that he had been injured by the cloud. Thus, the
jury’s verdict in favor of FMC demonstrates that the Appellants are
not entitled to relief, but it does not indicate whether the Appellants
are not entitled to relief because they were not located in an area cov-
ered by the cloud, which was the primary issue common to the entire
class. If we could determine with confidence that the jury’s verdict
indicates that it resolved this class-wide issue in favor of FMC, we
would have no difficulty affirming the district court’s decision to
deny relief to the other class members once the claims against the
Appellants failed. Based upon the jury form, however, we cannot
make this determination. Accordingly, while we affirm the entry of
judgment in favor of FMC with respect to the Appellants, we must
remand for a new trial involving a different group of class representa-
tives.9

   The district court conditionally certified the class action pursuant
to Federal Rules of Civil Procedure 23(b)(3) and 23(c)(4)(A).10 The
  9
   Although the Appellants argue that the second jury’s verdict was
against the weight of the evidence and, thus, that the district court erred
in refusing to grant a new trial as to Appellants JoAnn Gaylor, Mary
Pierson, and Charles Hill, we note that FMC’s counsel thoroughly cross-
examined Gaylor, Pierson, and Hill as to their exposures to the cloud and
their injuries, and the jury had ample bases from which to decline to
credit their respective testimonies. We do not believe the district court
abused its discretion in declining to grant a new trial on the ground that
the jury’s verdict was against the weight of the evidence.
  10
     Federal Rule of Civil Procedure 23(b)(3) provides:
      (b) Class Actions Maintainable. An action may be maintained as
      a class action if the prerequisites of subdivision (a) are satisfied,
      and in addition:
      ....
16                    HENLEY v. FMC CORPORATION
primary common issue that was to be litigated class-wide was
whether the cloud was capable, by virtue of its placement, of causing
the injuries asserted by the class.11 After resolution of this class-wide
issue, each Appellant was required to prove on an individualized basis
that he was harmed as a result of the cloud.12 Because recovery would
be authorized only upon resolution of these individual issues, the dis-
trict court apparently contemplated that individualized trials on causa-
tion and damages would be necessary after the class-wide issue had
been resolved. (J.A. at 324-27; Case Management Order, at 1-2 (envi-
sioning a bifurcated trial that separated common issues from individ-
ual issues, under which the first phase of trial would resolve class-
wide issues, punitive liability, and compensatory damages to the trial

        (3) the court finds that the questions of law or fact common
        to the members of the class predominate over any questions
        affecting only individual members, and that a class action is
        superior to other available methods for the fair and efficient
        adjudication of the controversy. The matters pertinent to the
        findings include: (A) the interest of members of the class in
        individually controlling the prosecution or defense of sepa-
        rate actions; (B) the extent and nature of any litigation con-
        cerning the controversy already commenced by or against
        members of the class; (C) the desirability or undesirability of
        concentrating the litigation of the claims in the particular
        forum; (D) the difficulties likely to be encountered in the
        management of a class action.
Fed. R. Civ. P. 23(b)(3).
   11
      Another common issue was whether FMC’s conduct in releasing the
cloud warranted punitive liability. FMC stipulated to fault for allowing
the cloud to escape; thus, this issue was not litigated in the second trial.
   12
      The individualized inquiries regarding the harm suffered by each of
the Appellants included whether each suffered an injury that was caused
by the cloud and the amount of compensatory damages that each Appel-
lant was entitled to receive on account of that injury. For example, some
class members may have lived in areas covered by the cloud, yet suffered
no actual injuries. Additionally, the fact that a class member lived in the
area covered by the cloud and suffered injury does not mean that the
injury was caused by the cloud; instead, the class member may have suf-
fered from an illness that was wholly unrelated to the toxins in the cloud.
                      HENLEY v. FMC CORPORATION                            17
plaintiffs, and the second phase of trial would resolve the individual
claims of other class members).)13

   During the trial, conflicting evidence was introduced regarding the
placement of the cloud. Eggleston testified that the cloud traveled
only over largely uninhabited areas, and, thus, that it could not have
caused the injuries alleged by the Appellants. (J.A. at 2100 (testifying
that, in his opinion, none of the Appellants were within the area of the
cloud)). However, several Appellants testified that they were in or
near Nitro at the time of the release, saw the cloud, and experienced
serious injuries as a result of the exposure. (J.A. at 3878, 3888 (testi-
mony by JoAnn Gaylor that she saw "puffs of clouds that were com-
ing out of FMC" and that she experienced respiratory problems
afterwards).)

   Upon the close of the evidence, despite FMC’s objection, the dis-
trict court submitted interrogatories to the jury that conflated the
class-wide issue of placement of the cloud with individual issues of
whether the cloud caused actual and proximate harm to each Appellant.14
The jury form stated, "Did any one or more of the Plaintiffs prove by
a preponderance of the evidence that on December 5, 1995 they were
(a) exposed to chemicals from the FMC plant; and (b) that such expo-
sure was the proximate cause of either physical injury to them or
  13
      After FMC admitted liability for the release of the cloud, we question
whether the common issues continued to predominate over the individual
issues, and we also question whether a class action is the most fair or
efficient means of resolving the individuals’ various disputes. Broussard
v. Meineke Discount Muffler Shops, Inc., 155 F.3d 331, 341 (4th Cir.
1998) (cautioning against using the class action as a mechanism for
bringing together legally and factually dissimilar claims and making
clear that if the district court needs to take testimony from more than
three hundred class members, that fact alone "strongly suggests . . . that
class-wide relief [is] improper"). Nevertheless, neither party appeals the
district court’s certification decision or otherwise seeks decertification.
Thus, we do not address the propriety of class certification in this case.
   14
      FMC represented at oral argument that it requested a jury interroga-
tory on the common issue of the placement of the cloud but that the dis-
trict court refused its request at both trials. It is at best unclear from the
joint appendix submitted by the parties on appeal whether FMC objected
to the jury verdict form.
18                   HENLEY v. FMC CORPORATION
damage to their property or both." (J.A. at 4404.) It then listed each
Appellant separately, with boxes beside each name for the jury to
check "Yes" or "No." (J.A. at 4404.) The jury form further provided
that, if the jury answered, "Yes," with respect to any individual
Appellant, the jury should proceed to determine the amount of com-
pensatory damages with respect to each. (J.A. at 4404-05.) Because
the placement of the cloud was disputed and the district court failed
to bifurcate the class-wide issue of placement of the cloud from the
individualized issues, there is no means to discern whether the jury
denied relief to the Appellants due to the jury’s conclusion that the
cloud was not located in the vicinity of the class members. Without
this determination, we cannot resolve whether the jury’s denial of
relief is binding on the entire class.

   If the Appellants were denied relief solely because of their failure
to prove individual harm and damages and not because the jury
rejected evidence indicating that they were within the vicinity of the
cloud, the other class members should not have been denied individu-
alized trials. If, on the other hand, the jury’s verdict as to the Appel-
lants resulted from the Appellants’ failure to prove that they were
within the area covered by the cloud, that failure of proof, as an issue
common to the entire class, would apply to all class members equally,
and the district court would have acted properly by denying individual
trials to the other class members. Accordingly, while we affirm the
entry of judgment against the Appellants, we must remand for the dis-
trict court to conduct a new trial before a jury properly instructed to
resolve the common issues separately from and prior to the individual
issues.

                                  IV.

   In sum, we cannot conclude that the district court abused its discre-
tion in granting a new trial based upon newly discovered evidence.
However, because the district court erred in failing to bifurcate the
common issues from the individual issues, and because we therefore
cannot determine whether the denial of relief as to the Appellants was
due to the jury’s conclusion that the Appellants failed to prove that
                    HENLEY v. FMC CORPORATION                      19
they were within the vicinity of the cloud rather than that the Appel-
lants were not individually injured by the cloud, we remand for fur-
ther proceedings consistent with this opinion.

                       AFFIRMED IN PART, REVERSED IN PART,
                                           AND REMANDED
