                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


SHERIF SAAD; NOOSHIN SOOZANGAR,         
               Plaintiffs-Appellants,
                and
DAVID C. GRIGGS; ADEL ALALFEY;
OSSAMA NAGY; SHAGUFLA AZAD,
                        Plaintiffs,
                 v.
THE BALTIMORE LIFE INSURANCE
COMPANY; LIFE OF MARYLAND,
INCORPORATED,

                                        
              Defendants-Appellees,
                                                 No. 01-2081
                and
L. JOHN PEARSON; WILLIAM
VIGLIOTTE, Vice President of
Underwriting; GRAY RAY, Vice
President for Career Marketing;
MORRIE R. CLARK, Senior
Underwriter; DAVID S. SACHS;
DAMIAN A. SALVI,
                        Defendants.
THE MARYLAND INSURANCE
COMMISSION,
                              Movant.
                                        
           Appeal from the United States District Court
            for the District of Maryland, at Baltimore.
                  Andre M. Davis, District Judge.
                       (CA-96-3673-AMD)
                         Argued: April 2, 2002
                      Decided: September 26, 2002
2            SAAD v. BALTIMORE LIFE INSURANCE COMPANY
     Before MOTZ, Circuit Judge, Walter K. STAPLETON,
    Senior Circuit Judge of the United States Court of Appeals
         for the Third Circuit, sitting by designation, and
     W. Craig BROADWATER, United States District Judge
            for the Northern District of West Virginia,
                      sitting by designation.



Reversed in part, affirmed in part, and remanded by unpublished
opinion. Judge Broadwater wrote the opinion, in which Judge Motz
and Senior Judge Stapleton joined.


                             COUNSEL

ARGUED: Carmen L. Rivera Matos, Doylestown, Pennsylvania, for
Appellants. Stanley Mazaroff, VENABLE, BAETJER & HOWARD,
L.L.P., Baltimore, Maryland, for Appellees. ON BRIEF: George W.
Hermina, John W. Hermina, HERMINA LAW GROUP, Laurel,
Maryland, for Appellants. Christine P. D’Elicio, VENABLE, BAET-
JER & HOWARD, L.L.P., Baltimore, Maryland, for Appellees.



Unpublished opinions are not binding precedent in this circuit.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


                              OPINION

BROADWATER, District Judge:

  Plaintiffs Sherif Saad and Nooshin Soozangar appeal the district
court’s grant of defendant Baltimore Life Insurance Company’s
motion for judgment as a matter of law. We reverse.

                                   I.

  Although legal residents, the plaintiffs Sherif Saad and Nooshin
Soozangar are not United States citizens. Plaintiff Saad is a citizen of
             SAAD v. BALTIMORE LIFE INSURANCE COMPANY                  3
Egypt. During the time in question, he served as the medical director
for the Kuwaiti Embassy to the United States. Saad is also a legal res-
ident of the United States.

   Plaintiff Soozangar is an Iranian citizen. She came to the United
States in 1991. Soozangar is a legal resident pursuant to her marriage
to a United States citizen.

   In December 1994, Saad and Soozangar applied for universal life
insurance policies from Baltimore Life. Following the submission of
their applications, Baltimore Life representatives contacted the plain-
tiffs by telephone. The representatives asked both plaintiffs if they
were citizens of the United States. Shortly after these telephone calls,
the plaintiffs both received letters from Baltimore Life stating that
their applications were rejected. The stated basis for both rejections
was "(s)ince it is company policy not to issue coverage on people who
are not United States citizens." J.A. at 387, 388, 1304 and 1755.

   Following these rejections, the plaintiffs and others in 1996 filed
suit against Baltimore Life alleging violations of 42 U.S.C. § 1981.
After discovery, the district court granted summary judgment for Bal-
timore Life. Nagy v. Baltimore Life Ins. Co., 49 F.Supp.2d 822 (D.
Md. 1999). In an unpublished per curiam opinion, this Court reversed
the district court’s decision with respect to the alienage discrimination
claims. Nagy v. Baltimore Life Ins. Co., 215 F.3d 1320, 2002 WL
718391, *6 (4th Cir. 2000 (Md.)). The Nagy court noted that Balti-
more Life’s contention that it "only denied life insurance policies
based on applicants’ place of citizenship, not applicants’ non-
citizenship" were "arguments properly resolved by a trier of fact, not
a district court or appellate court on summary judgment." Id. at *6
n.2. In affirming summary judgment on the racial discrimination
claim, this Court remanded the case with instructions to proceed to
trial on the alienage claims.

   Upon remand, the case went to trial. The plaintiffs presented the
deposition testimony of Morrie Clark, a senior underwriter for Balti-
more Life. The plaintiffs also examined William Vigliotte, the Vice
President of Underwriting. Most of their testimony was presented ear-
lier in support of the prior summary judgment motions.
4            SAAD v. BALTIMORE LIFE INSURANCE COMPANY
   Clark stated that the signature on the letters was not his but that a
number of clerks in his office were authorized to sign his name.
Assuming he made the denial of coverage, Clark could not recall the
specific details. Clark did admit that he was aware that the rejection
letter contained language denying coverage to non-United States citi-
zens. However, Clark could not recall a particular policy that covered
sending rejection letters or any specific instance under him that an
applicant was denied coverage because they were not United States
citizens.

   William Vigliotte, as Baltimore Life’s Vice President of Under-
writing, set the policy on accepting risks. Vigliotte admitted that Bal-
timore Life did have a policy denying coverage to non-United States
citizens, but he stated it was loosely enforced. He said that Baltimore
Life hired Adel Alalfey to sell insurance to people of Middle Eastern
decent. However, Alalfey’s contacts with individuals employed by the
Kuwaiti Embassy caused Vigliotte concern due to the unstable nature
of the region after the Gulf War.

   In the trial, new evidence came out during Vigliotte’s testimony.
He stated that the two internal Baltimore Life e-mails sent out under
the name "Morrie Clark" were, in fact, sent by Clark. J.A. at 1595-96.
These e-mails report the rejection of Saad and Soozangar’s applica-
tions, stating as a reason the Baltimore Life policy on denying cover-
age to non-citizens. Vigliotte also agreed that the rejection "letters are
signed by Morrie Clark." J.A. at 1595.

   The district court next refused the plaintiffs’ request to introduce
the deposition of Mark W. Hastings, a former General Counsel of
Baltimore Life. J.A. 1230-36 and 1427-28. The plaintiffs proferred
Hastings’ testimony as evidence for punitive damages because Has-
tings reportedly informed Baltimore Life that its non-citizen policy
violated federal law. J.A. 1232. The district court refused to allow
Hastings’ testimony as plaintiffs’ counsel did not know what date
Hastings gave his advice.

   At the conclusion of the plaintiffs’ case, the district court granted
judgment as a matter of law in dismissing the liability claims against
Baltimore Life and granting Baltimore Life’s motion for dismissal of
the "economical and emotional damages." J.A. 1859. The district
             SAAD v. BALTIMORE LIFE INSURANCE COMPANY                   5
court wrote in its order that "judgment is entered in favor of defendant
against plaintiffs; and in the alternative, if judgment in favor of defen-
dant is found upon appeal to be erroneous, then this judgment shall
be deemed to be entered in favor of plaintiffs . . . for the sum of One
($1.00) Dollar each, for a total of Two ($2.00) Dollars nominal dam-
ages only." J.A. 1857. The order also incorporated by reference its
earlier ruling that the plaintiffs had not presented sufficient evidence
to support an award of punitive damages. J.A. 1230-31.

   Saad and Soozangar appeal these rulings and also whether the dis-
trict court improperly denied their motion in limine as to a market
conduct exam. Finally, the appellants request assignment to a differ-
ent district judge if the case is remanded.

                                   II.

   When an appellate court decides a rule of law, that decision must
continue to govern the same issues in subsequent stages in the same
case unless "(1) a subsequent trial produces substantially different
evidence, (2) controlling authority has since made a contrary decision
of law applicable to the issue, or (3) the prior decision was clearly
erroneous and would work a manifest injustice." Columbus-America
Discovery Group v. Atlantic Mutual Insurance Co., 203 F.3d 291 at
304 (4th Cir. 2000) (internal citations omitted). In this case, the Nagy
Court reviewed the record presented at summary judgment and deter-
mined that "these two plaintiffs met their burden of producing direct
evidence of discrimination on the basis of alienage." Nagy at *6.
There appears to be no new "substantial" evidence introduced at trial,
or any new precedent, to compel a departure from this ruling.

   However, the district court concluded that there was new testimony
from Clark at trial, which was "unimpeached," and which established
as a matter of law that Clark did not write this letter. Baltimore Life
made this same argument in support of its motion for summary judg-
ment. J.A. 90 n.4. As well, the litigants introduced substantially simi-
lar evidence on this point at summary judgment and at trial. The
following testimony from Clark was proffered in support of summary
judgment: (1) the signature on the letters was not his; (2) he did not
recall sending the letters out or asking anyone to write them for him;
and (3) although he "assumed" that the decision to deny coverage to
6            SAAD v. BALTIMORE LIFE INSURANCE COMPANY
both Saad and Soozangar was his, he could not recall why coverage
was denied in either case. J.A. 296, 1467, 590-92.

   At trial, both sides confined themselves almost entirely to deposi-
tion transcript excerpts submitted at the summary judgment stage.
Baltimore Life introduced only one new section of Clark’s transcript
in which he stated that no one at Baltimore Life "made him aware"
that Soozangar’s application was being rejected, and that "the first
time [he] recall[ed] seeing the name" was on the day before his depo-
sition. J.A. 1509. This testimony appears not to be a new detail or a
new point. The summary judgment record contained Clark’s testi-
mony that no one "working for Baltimore Life Insurance Company
ever made [him] aware that an individual or individuals were being
declined coverage because they are not United States Citizens." J.A.
90 n.4.

   With respect to Vigliotte, none of his testimony represented a
material departure from the summary judgment record. Counsel for
Baltimore Life argues that Vigliotte introduced new evidence when
he testified "that . . . Baltimore Life never had any policy to refuse
persons who were not United States Citizens of life insurance solely
because of their citizenship," and instead made "rational inquiries
about citizenship for the purpose of determining whether it was likely
that they would travel abroad." That explanation was in the summary
judgment record and was described in detail in the district court’s
memorandum opinion in support of summary judgment. J.A. 1667-68.
Baltimore Life also notes that Vigliotte testified at trial that he never
approved or saw the letter. However, similar statements were intro-
duced in his deposition and are present in the summary judgment
record. J.A. 497-99.

   Saad and Soozangar do not allege that Vigliotte himself authored
or read the letters. They argue that (1) Vigliotte made statements indi-
cating an anti-foreigner bias (e.g., re: hostages); (2) Vigliotte believed
that the practice of not writing coverage on non-U.S. citizens was
"widespread"; and (3) Vigliotte admitted in an affidavit that Balti-
more Life adopted such a policy. J.A. 48, 164. At trial, Vigliotte con-
ceded the first two points. J.A. 1518 (Kuwait); 1523 (widespread).
With respect to the third, Vigliotte repeated testimony available in the
summary judgment record that Baltimore Life did not, in fact, have
             SAAD v. BALTIMORE LIFE INSURANCE COMPANY                    7
a policy of rejecting non-U.S. citizens. He asserts he was guilty of
nothing more than a poor choice of words in the first affidavit, which
was produced for different purposes. Saad and Soozangar impeached
his testimony with the first affidavit. J.A. 1540-44.

   Section 1981 bars discrimination on the basis of race and ethnicity,
or lack of citizenship. Duane v. GEICO, 784 F. Supp. 1209, 1216 (D.
Md. 1992), aff’d, 37 F.3d 1036 (4th Cir. 1994). It "does not provide
protection," however, "for individuals discriminated against on the
basis of national origin." Id. (citing Al-Khazraji, 481 U.S. at 613).

   To prevail under § 1981, a plaintiff must prove that such discrimi-
nation was intentional, and led to the deprivation of one of the rights
enumerated therein. See Spriggs v. Diamond Auto Glass, 165 F.3d
1015, 1018 (4th Cir. 1999). How the proof proceeds depends on the
evidence proffered by the plaintiff. Where the plaintiff cannot pro-
duce direct evidence of discriminatory intent, the familiar framework
of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies.
See Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989)
(Claims under 1981 are analyzed in the same manner as claims under
Title VII or the ADEA). After a plaintiff satisfies the "modest"
requirements of the prima facie case, the defendant must produce a
nondiscriminatory reason for the challenged action, after which the
burden returns to the plaintiff to prove that the defendant’s "proffered
non-racial reason . . . was, in reality, a pretext for a racially motivated
decision." Fuller v. Phipps, 67 F.3d 1137, 1141 (4th Cir. 1995). In
contrast, if a plaintiff can present sufficiently direct evidence of dis-
crimination, he or she qualifies for the "more advantageous standards
of liability applicable in mixed-motive cases." Id. at 1141.

   In this case, Baltimore Life contends that Vigliotte is the relevant
decision-maker and that Saad and Soozangar must prove that he
intentionally discriminated against them. Baltimore Life relies on Ful-
ler v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995) (stating that the bur-
den of persuasion shifts if plaintiff presents "direct evidence that
decision-makers placed substantial negative reliance on an illegiti-
mate criterion"). This argument appears to be based on the letters,
which state that Baltimore Life has a "policy" of denying coverage to
non-citizens, and on the apparently uncontested fact that only Vigli-
otte, not Clark, was entitled to establish any such policy.
8            SAAD v. BALTIMORE LIFE INSURANCE COMPANY
   The plaintiffs argue the relevant decision-maker in this case is
Clark, a Senior Underwriter who was undisputedly authorized to act
for the company in accepting or denying applications. Since the let-
ters were sent out over his signature, Clark arguably denied the appli-
cation because he believed that such a policy existed.

   Thus, although this Court is reversing the district court’s grant of
judgment as a matter of law on liability, this is not to say that judg-
ment should be entered in favor of the plaintiffs. Simply, the plaintiffs
have submitted enough evidence to require the defendant to meet its
burden or send the case to the jury for a finding of fact.

                                  III.

   Neither Saad nor Soozangar is entitled to the face value of the poli-
cies as both are still alive. Nor did they introduce evidence of any
other economic damages at trial. Upon her denial, Soozangar immedi-
ately obtained insurance from Peoples Life, and she sought and
obtained insurance from Baltimore Life in 1996. She did not proffer
any evidence of economic damages from the denial.

   Saad contends that he had economic damages because he lost an
investment opportunity. He concedes, however, that he elected to put
his money in a savings account instead of "investing" in another life
insurance policy. Consequently, he has failed in his duty to mitigate.
Fariss v. Lynchburg Foundry, 769 F.2d 958, 966-67 (4th Cir. 1985).

   It is clear that the evidence presented on emotional damages is
insufficient to sustain a large award. Our decision to vacate the dis-
trict court’s alternative order is not meant in any way to suggest that
the evidence presented in this trial was adequate to support a substan-
tial award of compensatory damages for emotional injury. Although
"a plaintiff’s testimony, standing alone, may support" an award of
compensatory damages, claims of injury based solely on testimony
must be "scrupulous[ly] analyzed." Price v. City of Charlotte, 93 F.3d
1241, 1251 (4th Cir. 1996). As the Price court explained,

    the testimony must establish that the plaintiff suffered
    demonstrable emotional distress, which must be sufficiently
             SAAD v. BALTIMORE LIFE INSURANCE COMPANY                   9
     articulated; neither conclusory statements that the plaintiff
     suffered emotional distress nor the mere fact that a constitu-
     tional violation occurred supports an award of compensatory
     damages.

Id. at 1254 (emphasis added). Thus, claims of "depression" do not by
themselves support an award. In assessing such testimony, a court
must consider the context of the claims, including the nature of the
conduct allegedly causing the injury and any other losses to the plain-
tiff, such as the esteem of his or her peers, income, physical function.
Id. at 1254-55.

   In this case, Saad and Soozangar’s testimony, if believed, describes
an injury of uncertain intensity. Soozangar asserts that she was "un-
happy" and "so upset," and states that she just "couldn’t be produc-
tive" at work and "would sit and watch the TV." J.A. 1355. Saad and
his wife state that he lost some sleep, that his appetite was affected
and that he was not as "interested as usual" in playing with his chil-
dren or going out. J.A. 1607-08. Neither Saad nor Soozangar went to
a doctor or counselor, or describe any physical ailments.

   More significant is factual background on which this testimony
was given. Soozangar obtained new life insurance within two weeks
and she testified that when she received the insurance "then I feel bet-
ter . . . I know it was nothing wrong with me." J.A. 1355. There is
no reason to believe that Saad was unable to obtain substitute cover-
age, and in fact, his wife did obtain an annuity. Moreover, Baltimore
Life took corrective action before this litigation commenced, contact-
ing both plaintiffs and inviting them to reapply. Finally, any discrimi-
nation by Baltimore Life did not deprive Saad or Soozangar of an
ongoing relationship or settled expectations. In contrast to an eviction
or employment practice, Saad and Soozangar were not faced with the
loss of their residence, longstanding relationships or job skills. As this
Court noted in Hetzel v. County of Prince William, 89 F.3d 169 (4th
Cir. 1996), awards of more than $25,000.00 in compensatory dam-
ages for intangible injuries commonly involve "plaintiffs that either
were the victims of invidious discrimination, suffered serious — often
permanent — physical injuries, or were discharged and had difficulty
finding alternative employment." Id. at 172. While we will not specu-
late on the evidence that will be presented upon retrial, we note that
10           SAAD v. BALTIMORE LIFE INSURANCE COMPANY
it would have to be substantially different than that presented already
to support any substantial award for emotional damages.

                                 IV.

   Early in the trial, the district court informed the parties that it
would not submit the question of punitive damages to the jury. The
court explained its reasoning most fully when it stated that: "from
December of 1994 through the Spring of 1995 an insurance company
in America could not reasonably have believed, notwithstanding
Duane v. GEICO, (referring to 37 F.3d 1036 (4th Cir. 1994)), that a
resident alien in America had a federally-protected right to an insur-
ance policy." J.A. 1231. Duane v. GEICO, a Fourth Circuit case, was
published in October 1994 and held that a non-citizen had stated a
claim against GEICO when he alleged that the company had refused
to sell him an insurance policy because of his non-citizen status.

   Two cases, Kolstad v. American Dental Assm., 527 U.S. 526
(1999), and Lowery v. Circuit City Stores, Inc., 206 F.3d 431 (4th Cir.
2000), provide clear guidance as to the proper standards in a § 1981
punitive damages case. In Kolstad, the Supreme Court "flatly rejected
the notion" that punitive damages are available only in cases of "egre-
gious misconduct." Lowery, 206 F.3d at 441 (citing Kolstad, 119 S.
Ct. at 2124). Rather, the statute requires "malice" or "reckless indif-
ference" to a federally protected right. Thus, in cases where a federal
right is at stake, the crucial questions "pertain to the [defendant’s]
knowledge that it might be acting in violation of federal law." Kol-
stad, 119 S. Ct. at 2124. To answer these questions, a defendant’s
actual knowledge is relevant. Id.; see also Lowery at 443 (determin-
ing, "individually," the level of relevant legal knowledge for each of
the two defendants).

   This rule suggests two considerations relevant to this case. First,
while the novelty or public knowledge of a legal theory is surely rele-
vant to the punitive damages inquiry, such generalized factors cannot
defeat proof that the relevant decision-makers had relevant knowl-
edge. At present, there is no direct evidence that Baltimore Life knew
of the relevant federal right.

   Second, in assessing the novelty of Duane v. GEICO it is noted that
the decision-makers in this case were underwriters for an insurance
             SAAD v. BALTIMORE LIFE INSURANCE COMPANY                  11
company. To prevail against the punitive damages claim, Baltimore
Life must contend that its underwriters were unaware of controlling
Fourth Circuit precedent touching directly on legal rules governing
issuance of insurance policies. It would appear to be problematic to
hold that an insurance company’s ignorance of such precedents is not,
at least, reckless. This is more applicable in light of Vigliotte’s testi-
mony that insurers routinely consider citizenship in deciding whether
to issue policies. Even if plaintiffs prevail on liability, punitive dam-
ages will be available only if Baltimore Life is shown to have had
actual knowledge that its denials of plaintiffs’ applications violated
§ 1981 or to have acted with reckless indifference to whether those
denials constituted such violations.

                                   V.

   The plaintiffs also challenge two of the district court’s evidentiary
rulings. First, the district court refused to admit the deposition testi-
mony of Baltimore Life’s former associate general counsel, Mark W.
Hastings. Second, the district court admitted the Maryland Insurance
Administration market conduct exam. Only upon a finding that the
trial judge abused its discretion should an appellate court reverse a
trial judge’s evidentiary rulings. Martin v. Deiriggi, 985 F.2d 129,
137 (4th Cir. 1993). We find that the district court did not abuse its
discretion as to both evidentiary rulings.

   Saad and Soozangar proffered Hastings’ testimony as evidence on
the punitive damages issue. J.A. 1230. Because the district court
believed that there was "no basis . . . whatsoever to award punitive
damages in this case," it ruled that his testimony was inadmissable.
See id.

   Counsel for Saad and Soozangar argued that Hastings’ testimony
could rebut the court’s presumption about what Baltimore Life could
have believed, because Hastings allegedly informed Baltimore Life
that its policy violated federal law. This proffer apparently gave the
district court cause to reconsider because the district court then asked
counsel when Hastings gave this alleged advice. J.A. 1233. Saad and
Soozangar conceded that they had not obtained an exact date, and the
court restated its refusal to allow Hastings’ testimony. Id.
12           SAAD v. BALTIMORE LIFE INSURANCE COMPANY
   The lack of a date is sufficient to uphold the district court’s deci-
sion under the abuse of discretion standard. If Hastings gave his
advise after the relevant decisions were made, his testimony could
surely be more prejudicial than probative. Moreover, Hastings’ testi-
mony does not concede the existence of any policy or even any causal
relationship. Hastings was not asked the reason for denials of insur-
ance coverage to non-U.S. citizens, in this question, nor did he give
a reason in answer to any of the questions.

   The district court did not err in denying Saad’s motions in limine
regarding the market conduct exam. Saad and Soozangar objected to
the introduction of a Market Conduct Exam conducted on Baltimore
Life by the Maryland Insurance Commissioner and also to Baltimore
Life’s references to the Swiss Re Life and Health Life Guide. J.A.
886-88, 1838-50, 860-72, 172-77. Admitting this evidence was not an
abuse of discretion.

                                  VI.

   We have carefully considered the plaintiffs’ request for assignment
to a different district court upon remand. After thorough review of the
record, we conclude that such relief is not warranted. We are confi-
dent that on remand the experienced district judge will faithfully fol-
low our mandate.

                                 VII.

   We reverse the district court’s judgment as a matter of law as to
liability, compensatory damages, and punitive damages. We affirm
the district court’s evidentiary ruling and deny assignment to a new
judge.

                                  REVERSED IN PART, AFFIRMED
                                      IN PART, AND REMANDED
