                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1529



CHEFIK SIMO,

                                             Plaintiff - Appellee,

          versus


MITSUBISHI MOTORS NORTH AMERICA, INCORPORATED,
formerly known as Mitsubishi Motor Sales of
America,   Incorporated;   MITSUBISHI   MOTORS
CORPORATION,

                                          Defendants - Appellants.



                            No. 06-1570



CHEFIK SIMO,

                                            Plaintiff - Appellant,

          versus


MITSUBISHI MOTORS NORTH AMERICA, INCORPORATED,
formerly known as Mitsubishi Motor Sales of
America,   Incorporated;   MITSUBISHI   MOTORS
CORPORATION,

                                           Defendants - Appellees.



Appeals from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:04-cv-22302-HMH)
Argued:   March 12, 2007                 Decided:   August 15, 2007


Before WILLIAMS, Chief Judge, and TRAXLER and SHEDD, Circuit
Judges.


Affirmed by unpublished opinion. Judge Traxler wrote the majority
opinion, in which Chief Judge Williams joined. Judge Shedd wrote
an opinion concurring in part and dissenting in part.


ARGUED: Earle Duncan Getchell, Jr., MCGUIREWOODS, L.L.P., Richmond,
Virginia, for Appellants/Cross-Appellees. Eric T. Stahl, FRANK L.
BRANSON LAW OFFICES, Dallas, Texas, for Appellee/Cross-Appellant.
ON BRIEF: Robert L. Hodges, K. Lorraine Lord, Erin M. Sine,
MCGUIREWOODS, L.L.P., Richmond, Virginia; Elbert S. Dorn, TURNER,
PADGET, GRAHAM & LANEY, P.A., Columbia, South Carolina, for
Appellants/Cross-Appellees. Kenneth C. Anthony, Jr., Spartanburg,
South Carolina, for Appellee/Cross-Appellant.


Unpublished opinions are not binding precedent in this circuit.




                                2
TRAXLER, Circuit Judge:

     Mitsubishi Motors Corporation and Mitsubishi Motors North

America, Inc. appeal a district court judgment in a products

liability action arising out of an accident involving a vehicle

rollover.    Finding no error, we affirm.



                                    I.

     In the early morning hours of October 11, 2002, Chefik Simo

was a passenger in a 2000 Mitsubishi P45 Montero Sport that had

been designed, manufactured, and sold by Mitsubishi.        He suffered

severe injuries when the vehicle rolled over on Interstate 85 near

Spartanburg, South Carolina, after the driver suddenly steered left

to avoid another vehicle and then attempted to correct his course

by quickly turning back to the right.     While the vehicle was on its

side, it was struck by a Federal Express tractor trailer.

     At the time of his accident, Simo was an 18-year-old freshman

on the varsity soccer team at Furman University in Greenville,

South Carolina.      Simo presented testimony that he was the top

soccer recruit in the country the year he entered college and among

the best players on the United States’ “Under-20” national team.

By all accounts, he possessed outstanding speed, size, athleticism,

technical ability, instincts, and work ethic. In addition to these

qualities, his left-footedness and his experience at the left back

position    placed   him   in   extraordinarily   high   demand   at   the


                                     3
professional level.         Simo had intended to begin his professional

career in Europe following the conclusion of the soccer season at

Furman. Many European teams, including some at the top levels, had

expressed interest in signing Simo when he became available.

      Simo’s injuries from the accident were severe.                They included

a   fractured   shoulder      blade    and     pelvis,   dislocated       shoulder,

ruptured     small     intestine,     broken    wrist    and    finger,     a    knee

dislocation in his left leg involving a “complete separation of the

thigh bone from the shin bone” and tearing of three of the four

major     ligaments    in   the   knee.       Supp.   J.A.     5.    He    suffered

irreparable damage to his peroneal nerve, resulting in a “drop

foot.”     Id. at 6.    As a result of these injuries, Simo underwent a

number of surgeries and incurred more than $277,000.00 in medical

bills.     Although Simo undertook arduous rehabilitation efforts in

an attempt to resume his soccer career, when he returned to the

field he ended up overcompensating for his injuries to his left

side, leading to painful stress fractures that forced him to

terminate his comeback.

      Simo instituted the present action in federal district court

on September 21, 2004, alleging claims of strict tort liability and

negligence against Mitsubishi Motors Corporation and Mitsubishi

Motors North American, Inc. (collectively “Mitsubishi”).1                       As is



      1
      Simo also named Federal Express Corporation as a defendant;
however, Simo subsequently settled with Federal Express.

                                          4
relevant here, Simo claimed that the Montero Sport was unreasonably

dangerous because its center of gravity was too high, causing it to

roll over in certain circumstances on flat, dry pavement (to roll

over “untripped”).

     In this regard, Simo presented the expert testimony of David

Bilek, a person with experience in mechanical engineering, on the

subjects of vehicle stability and design.       Bilek had run stability

tests and utilized data to evaluate vehicle dynamics for over 20

years in a litigation-consultant capacity.          Bilek explained the

physics involved in vehicle rollovers and discussed stability tests

he performed on the Montero Sport, a testable prototype,2 and

various sport utility vehicles (“SUVs”) comparable to the Montero

Sport.    Bilek opined that in the well-designed vehicles, lateral

force by a sudden turn would cause the vehicle’s tires to slide on

the pavement to the extent that they could not continue to grip the

road.     On the other hand, he explained that a vehicle like the

Montero    Sport   that   is   unreasonably   top-heavy   can   roll   over

untripped when the lateral forces on the vehicle reach a certain

level.    He also opined that, in light of information that had been

disseminated from other manufacturers, a reasonable manufacturer

would have performed testing on its vehicles to ensure that they



     2
      Bilek created the prototype by widening the Montero Sport six
inches and lowering its center of gravity by one and a half inches
for the purpose of showing how a lower and wider design could
improve stability.

                                     5
would not rollover untripped.        He opined that “handling” tests

performed by Mitsubishi, in which the drivers did not expose the

vehicles to forces strong enough to roll the vehicles over, were

not sufficient.    J.A. 1839.

     Also   providing   testimony    for   Simo   was   engineer    Michael

Gilbert, who, like Bilek, testified that the Montero Sport rolled

over untripped under certain circumstances, whereas better designed

SUVs on the market did not.      He further testified that designing a

stable SUV is not a difficult task and had the Montero Sport been

designed to have the stability of other SUVs, the accident at issue

here never would have occurred.

     Simo further offered extensive testimony regarding earnings

that he lost as a result of the accident.           In particular, Simo

offered the expert testimony of Patrick McCabe, a former collegiate

and professional soccer player, and then-current FIFA-licensed

soccer agent.3    McCabe testified that he performs scouting duties

for various North American and European soccer teams and that his

job requires him to identify soccer talent and determine its market

value.   In light of Simo’s exceptional qualities--which McCabe

described   in   detail--and    McCabe’s   knowledge    of   how   Simo   was

regarded in the soccer world generally as well as by specific

European teams, McCabe testified that Simo “was destined to become

one of the top American players of his generation” before his


     3
      FIFA is the international governing body of soccer.

                                    6
accident.   Id. at 1058.    Based on his specialized knowledge of the

market for professional soccer players in Europe, McCabe testified

concerning the increasing income that Simo would have likely earned

as his career progressed.          Conservatively estimating that Simo

would play for 15 years in Europe, McCabe estimated that Simo’s

career earnings likely would have fallen within the range of $3

million to $10 million.

     Finally,   economist    Ken    McCoin   provided   expert   testimony

concerning the concept of “present value,” and he calculated the

present value of the earnings that McCabe had projected Simo would

have enjoyed had the accident not occurred.

     At the close of the evidence, Mitsubishi moved for judgment as

a matter of law on the negligence and strict liability claims.        The

district court granted the motion as to Simo’s claim for negligent

failure to warn, and as to his request for punitive damages, but

otherwise denied the motion.         Subsequently, the jury returned a

verdict in Simo’s favor for $7 million in compensatory damages.

     Following the verdict, Mitsubishi moved for judgment as a

matter of law on the basis that Simo had failed to present

sufficient evidence that an alternative feasible design existed for

the Montero Sport on the date of its manufacture and sale that

would have prevented the accident here.       Mitsubishi also moved for

a new trial on the grounds that the district court improperly

admitted testimony from Simo’s experts and that Simo’s counsel made


                                      7
improper argument during trial and closing arguments, resulting in

prejudice to Mitsubishi.      Mitsubishi finally moved for a new trial

nisi remittitur on the grounds that the verdict was excessive, that

Simo failed to offer sufficient evidence regarding an alternative

feasible design, and that Mitsubishi was entitled to a set-off in

the amounts Simo had received in settlement with other parties for

claims   involving    the   accident.      The   district   court     granted

Mitsubishi’s motion for a set-off but otherwise denied its post-

trial motions, and entered final judgment against Mitsubishi for

$6,050,000.00.



                                     II.

     Mitsubishi first argues that the district court erred in

denying its motion for judgment as a matter of law on the ground

that Simo failed to establish the existence of an alternative

feasible    design   that   would   have   prevented   or   reduced    Simo’s

injuries.    We disagree.

     Under South Carolina law, which the parties agree applies in

this diversity suit, “in order to find liability under any products

liability theory, a plaintiff must show:         (1) he was injured by the

product; (2) the injury occurred because the product was in a

defective condition, unreasonably dangerous to the user; and (3)

that the product at the time of the accident was in essentially the

same condition as when it left the hands of the defendant.”             Bragg


                                      8
v. Hi-Ranger, Inc., 462 S.E.2d 321, 326 (S.C. Ct. App. 1995).

Proving the existence of an alternative feasible design is a

“crucial aspect” of this required showing.      Little v. Brown &

Williamson Tobacco Corp., 243 F. Supp. 2d 480, 495 (D.S.C. 2001).

We review de novo a district court’s denial of a Rule 50(b)

judgment as a matter of law, viewing the evidence in the light most

favorable to the prevailing party and drawing all reasonable

inferences in his favor.   See Konkel v. Bob Evans Farms Inc., 165

F.3d 275, 279 (4th Cir. 1999).

     Here, Simo presented expert testimony that designing an SUV

that will not rollover untripped is not difficult so long as the

issue is addressed early in the design process.    See Restatement

(Third) of Torts:   Prod. Liability § 2 cmt. f (1998) (explaining

that qualified expert testimony may establish that an alternative

feasible design existed “if it reasonably supports the conclusion

that [such a] design could have been practically adopted at the

time of sale”).   Indeed, Simo presented evidence that, at the time

Mitsubishi sold the Montero Sport at issue here, several other SUVs

already on the market had centers of gravity sufficiently low that

the vehicles would not roll over untripped.     Thus, the district

court correctly denied Mitsubishi’s motion.      See id. (“[O]ther

products already available on the market . . . may serve as

reasonable alternatives to the product in question.”).




                                 9
                                       III.

     Mitsubishi also contends that the district court erred in

admitting expert testimony from David Bilek.              We disagree.

     The admissibility of expert testimony is governed by Federal

Rule of Evidence 702, which provides:

          If scientific, technical, or other specialized
     knowledge will assist the trier of fact to understand the
     evidence or to determine a fact in issue, a witness
     qualified as an expert by knowledge, skill, experience,
     training, or education, may testify thereto in the form
     of an opinion or otherwise, if (1) the testimony is based
     upon sufficient facts or data, (2) the testimony is the
     product of reliable principles and methods, and (3) the
     witness has applied the principles and methods reliably
     to the facts of the case.

Fed. R. Evid. 702.    We review a decision to admit or exclude expert

testimony for abuse of discretion.            See Gen. Elec. Co. v. Joiner,

522 U.S. 136, 141 (1997); Cooper v. Smith & Nephew, Inc., 259 F.3d

194, 200 (4th Cir. 2001).

     Bilek    was   experienced   in     applying      mechanical    engineering

principles.     After obtaining his bachelor of science degree in

mechanical    engineering   technology,        Bilek    received    training   in

vehicle stability issues for several years from Dr. Michael Kaplan,

who possesses a Ph.D. in mechanical engineering as well.                In doing

“litigation    consulting-type         work,”    Bilek      gained     extensive

experience and knowledge over twenty years concerning how to

perform   stability    testing    on    vehicles.       J.A.   1732.     He    has

performed “hundreds and hundreds of tests associated with vehicle

stability [and] vehicle rollover resistance.”              Id. at 1734.       As a

                                        10
result, he has specialized knowledge concerning the tests that

manufacturers employ and experience in evaluating the effectiveness

of different design modifications in protecting against rollovers.

Bilek also has “reviewed thousands of pages of internal documents,

test data, test reports, test video tapes, deposition testimony of

in-house engineers and other materials related to the design and

development of various vehicles,” most of which have been written

by and for engineers.           Id. at 937.      He has also reviewed many

documents     authored   by     the   National     Highway     Traffic    Safety

Administration,    as    well    as   publications      from   the    Society   of

Automotive Engineers, and many others relating to vehicle design

and rollovers.

     All of this training qualified Bilek to testify, as he did,

regarding the physics involved in rollovers, his testing of the

various vehicles to determine whether they roll over untripped, and

the state of knowledge of the risk of SUV rollovers.                 See Clay v.

Ford Motor Co., 215 F.3d 663, 668-69 (6th Cir. 2000) (holding that

district court did not abuse its discretion in admitting testimony

of engineer, who had never worked in the automotive industry and

never tested a two-wheel drive Bronco II before the suit in

question,   that   the    instability       of   that   vehicle      rendered   it

defective).    Mitsubishi appears to argue, however, that Bilek was

not qualified to offer expert testimony concerning whether his

notion of designing the Montero Sport to be lower and wider could


                                       11
be   feasibly   implemented.    Even   assuming   that   Bilek   was   not

qualified to offer testimony concerning the feasibility of his own

design--the prototype--he did not purport to do so.          As we have

explained, there was no need for Bilek to theorize about whether

Mitsubishi could design an SUV with utility equal to the Montero

Sport that would not roll over untripped because Simo presented

testimony that several such vehicles were already on the market.



                                 IV.

      Mitsubishi next maintains that the district court erred in

admitting the expert testimony of Patrick McCabe.            Mitsubishi

argues that the testimony violated the standard of admissibility

established in Federal Rule of Evidence 702 and in Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Mitsubishi

also argues that the district court erred in admitting Ken McCoin’s

testimony regarding Simo’s future earnings because his testimony

relied on McCabe’s testimony.    We conclude that the district court

was within its discretion in admitting McCabe’s and McCoin’s

testimony.

      A district court determining the admissibility of expert

testimony has a gate-keeping responsibility to “ensur[e] that an

expert’s testimony both rests on a reliable foundation and is

relevant to the task at hand.”    Kumho Tire Co. v. Carmichael, 526

U.S. 137, 141 (1999) (internal quotation marks omitted).          McCabe


                                  12
testified that an important part of a job as a sports agent was

evaluating   the    worth   of   soccer    players    on   the   market.     In

estimating the income that Simo could have been expected to earn

absent the injury, McCabe drew on his own evaluation of Simo’s

abilities as well as those of others involved with the sport who

believed that Simo “was destined to become one of the top American

players of his generation” before his accident.            J.A. 1058.      Based

on this evaluation, as well as his awareness of the fact that Simo

had wanted to pursue his soccer career in Europe, McCabe utilized

his specialized knowledge of the earnings opportunities Simo would

likely have had in his career.       In so doing, he noted as a point of

comparison the salaries of eight then-current or former left-footed

players from the American Senior National Team.             Cf. Drews Co. v.

Ledwith-Wolfe Assocs., Inc., 371 S.E.2d 532, 536 (S.C. 1988)

(noting with approval the “yardstick” method of proving future lost

profits by comparing business to one of similar size, nature, and

location).

     Mitsubishi challenges the district court’s conclusion that

McCabe’s methodology was sufficiently reliable.              It argues that

McCabe   “made     no   reference   to    objective    sources    or   outside

information to explain how he determined [Simo’s] supposed career

path playing professional soccer” and that Simo’s prospects for

future success were “simply unknown and unknowable.”              Appellants’

Cross Br. at 43, 46.      It further maintains that the district court


                                     13
did not specifically consider the non-exclusive list of factors set

out   in   Daubert   for   judging   the    reliability    of   methodologies

underlying expert opinions.          We find no fault with the district

court’s admission of McCabe’s testimony. The factors identified in

Daubert “do not constitute a definitive checklist or test.”              Kumho

Tire, 526 U.S. at 150 (internal quotation marks omitted).              Rather,

the inquiry into the reliability of an expert’s methodology must be

flexible and case-specific. See Maryland Cas. Co. v. Therm-O-Disc,

Inc., 137 F.3d 780, 784-85 (4th Cir. 1998).               Here, the district

court reasonably accepted that a soccer player’s value can be

reliably estimated by the personal observations and experience of

a person whose job requires him to evaluate players’ abilities and

determine    their   value.4     Cf.    Kumho   Tire,     526   U.S.   at   150

(recognizing that “the relevant reliability concerns may focus upon

personal knowledge or experience” because “there are many different

kinds of experts”).



      4
      Mitsubishi takes issue with the players that McCabe
identified in his report as illustrating the demand for top left-
footed players, arguing that McCabe did not explain what specific
characteristics Simo shared with these players. However, clearly
what McCabe believed they had in common was that they were among
the very best soccer players in the country and had correspondingly
high earning potential. Discussion of the specific characteristics
of these players that put them in such high demand, such as their
speed or technical skill, was unnecessary, although it was
certainly a fair topic for cross-examination.       See Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993) (“Vigorous
cross-examination, presentation of contrary evidence, and careful
instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.”).

                                       14
     While neither McCabe nor anyone else could predict with

certainty what the future would have held for Simo, South Carolina

damages law did not require such certainty.        See South Carolina

Fin. Corp. of Anderson v. W. Side Fin. Co., 113 S.E.2d 329, 336

(S.C. 1960) (“The law does not require absolute certainty of data

upon which lost profits are to be estimated, but all that is

required is such reasonable certainty that damages may not be based

wholly upon speculation and conjecture, and it is sufficient if

there is a certain standard or fixed method by which profits sought

to be recovered may be estimated and determined with a fair degree

of   accuracy.”   (internal   quotation   marks   omitted)).   McCabe

explained that his projections encompassed “a range of averages,”

rather than a precise prediction of Simo’s future.         J.A. 2025.

And, it is noteworthy that even Mitsubishi’s expert testified that

he was sufficiently informed to offer a “probable career path” for

Simo.    Id. at 1092; cf. Correa v. Cruisers, 298 F.3d 13, 26 (1st

Cir. 2002) (“Acceptance of the methodology by the other party’s

expert may give additional credence to the reliability of the

proffered testimony.”).5



     5
      Mitsubishi also argues that the district court erred in
denying its motion for mistrial based on what Mitsubishi
characterizes as “personal attacks” directed by Simo’s counsel
against Mitsubishi’s counsel, expert, and corporate representative.
Appellants’ Cross Br. at 50. Having reviewed the statements in
question, we conclude that none of these statements, considered
separately or together, approached the level necessary to warrant
the grant of a new trial.

                                  15
                                V.

     On cross-appeal, Simo argues that the district court erred in

granting Mitsubishi’s motion for judgment as a matter of law on the

issue of punitive damages. However, Simo requests that his case be

remanded for a trial on punitive damages “if and only if the issue

of punitive damages can be tried without disturbing [his] award of

actual damages.”   Appellee’s Br. at 77.   Because we determine that

the issue of punitive damages could not be tried without disturbing

the compensatory damage award, we need not decide whether the

district court erred in granting judgment as a matter of law to

Mitsubishi on the punitive damages issue.

     Although the propriety of granting a new trial on fewer than

all issues of fact is well established, we should not order a new

trial on the sole issue of punitive damages if “the evidence

relating to wilful misconduct is so inextricably tied up with that

relating to primary negligence that a fair trial upon either issue

requires a trial of both issues together.”     Atl. Coast Line R.R.

Co. v. Bennett, 251 F.2d 934, 939 (4th Cir. 1958).   In Bennett, the

plaintiffs recovered compensatory and punitive damages in an action

involving an accident which occurred when a freight train engineer

failed to slow the train to an appropriate speed.    See id. at 936.

We held that the punitive damage award could not stand because it

was based on an improper jury instruction.         See id. at 938.

Nevertheless, we refused to grant a new trial on punitive damages


                                16
only, reasoning that the amount, if any, of punitive damages to be

awarded could be intelligently determined only in connection with

the jury’s consideration of the entire case.    See id. at 938-39.

     As in Bennett, the evidence that Simo relies on here to

support his punitive damages claim is largely the same evidence on

which he relies to establish the defectiveness of Mitsubishi’s

vehicle.   His argument for punitive damages boils down in large

part to the proposition that not only was the vehicle defective,

but it was so obviously defective that Mitsubishi’s failure to

remedy the defect amounted to at least recklessness.   We therefore

conclude that remand for a trial on punitive damages only would not

be appropriate.   See id.; but cf. Atlas Food Sys. & Servs., Inc. v.

Crane Nat’l Vendors, Inc., 99 F.3d 587, 599-600 (4th Cir. 1996)

(holding that the district court’s grant of new trial on sole issue

of punitive damages did not amount to an abuse of discretion).



                                VI.

     In sum, we affirm the judgment of the district court.


                                                           AFFIRMED




                                 17
SHEDD, Circuit Judge, concurring in part and dissenting in part:

     I concur in Parts I-IV of the majority opinion, affirming the

jury’s verdict on liability and compensatory damages.   However, I

believe the district court erred in excluding Simo’s claim for

punitive damages from the jury’s consideration.     In addition, I

believe it is entirely appropriate to remand this case for a trial

solely on punitive damages.   Accordingly, I dissent from Parts V

and VI of the majority opinion.

     Under South Carolina law, “punitive damages may be awarded to

punish only those tortfeasors who have acted in a reckless, willful

or wanton manner.”   Jimenez v. Daimler Chrysler Corp., 269 F.3d

439, 449-50 (4th Cir. 2001) (internal punctuation omitted).     In

meeting this standard, a plaintiff need not show that a tortfeasor

had actual knowledge of the danger his tortious behavior posed to

another.   Rather, a plaintiff can recover punitive damages “even

when the wrongdoer does not actually realize that he is invading

the rights of another, provided the act is committed in such a

manner that a person of ordinary prudence would say that it was a

reckless disregard of another's rights.”     Atlas Food Systems &

Services, Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d 587, 599 (4th

Cir. 1996).

     Simo produced evidence which indicates that Mitsubishi (1)

knew or should have known of the risk that its Montero Sport would

roll over because it could not sustain the tire forces which come


                                  18
into       play   following   an   emergency   swerve   and   (2)   recklessly

disregarded those risks.*          More specifically, as to the risk of an

accident and Mitsubishi’s knowledge thereof, Simo’s evidence shows:

that drivers of Mitsubishi’s vehicles would, from time to time,

have to undertake accident avoidance maneuvers; that such maneuvers

could expose the vehicles to “limit tire forces”; that vehicles

whose static stability factor is as low as 1.06 are likely to roll

over, untripped in such circumstances; that the consequence of a

rollover would be severe, inasmuch as rollovers are one of the

deadliest accident scenarios; that Mitsubishi conceded it was on

notice that its vehicles had been involved in roll overs; and that

any reasonable manufacturer would have known of the risk based on

the testing, research, and literature available in 2000.                As to

Mitsubishi’s disregard of these risks, Simo introduced evidence

demonstrating: that Mitsubishi did not perform “limits” testing to

determine whether the Montero Sport would remain stable in limit

tire force conditions; that it knew how to perform such testing

(and had done so for other vehicles); that it knew or should have

known that only limits testing would allow it to evaluate whether

the Montero Sport posed unnecessary risks of untripped rollovers;




       *
      In assessing the district court’s grant of judgment as a
matter of law on Simo’s punitive damages claim, we must view the
evidence -- and I recite it here -- in a light most favorable to
Simo. Atlas Food Systems, 99 F.3d at 597.

                                        19
that it did not alter the design of the Montero Sport; and that it

sold the Montero Sport despite these failures.

       Mitsubishi, of course, vigorously contested Simo’s allegations

and    his    evidence    both   in   its   case-in-chief    and   on   cross-

examination. Nonetheless, it was for the jury to determine whether

to accept Simo’s evidence and credit his witnesses or to side with

Mitsubishi instead. Because Simo’s evidence, if credited, supports

a claim for punitive damages, the district court erred in excluding

it from the jury’s consideration.           See Atlas Food Systems, 99 F.3d

at 597 (holding that a district court should not grant judgment as

a matter of law “unless there was no evidence presented in the case

that would authorize the jury's verdict”) (emphasis added).

       The majority does not consider whether Simo presented a viable

claim for punitive damages because it concludes that a trial

limited to that issue would be “inappropriate.”             In reaching this

conclusion, the majority relies on Atl. Coast Line R. Co. v.

Bennett, 251 F.2d 934, 938 (4th Cir. 1958), in which we applied the

established principle that a partial new trial should not be

ordered unless the issue to be retried is separate and distinct

from the remainder of the case such that “the trial of it alone may

be had without injustice” to bar a new trial limited to punitive

damages.      The Bennett court based its holding on its observation

that   “the    evidence    relating    to   wilful   misconduct    is   .   .   .

inextricably tied up with that relating to primary negligence.”


                                       20
Id. at 939.   I do not believe, however, that Bennett established a

firm rule that a new trial on punitive damages is inappropriate as

a matter of law where a plaintiff relies on overlapping evidence to

support his claims for compensatory and punitive damages. In fact,

we implicitly rejected this interpretation of Bennett in Atlas Food

Systems.   There, we concluded that a district court did not abuse

its discretion when it ordered a new trial on punitive damages

because “[a]ll of the evidence relating to [the defendants’]

willful or wanton conduct was before the second jury, enabling it

to render a proper verdict on both the liability for and amount of

punitive   damages.”   Atlas   Food   Systems,   99   F.3d   at   599-600.

Similarly, in this case, if a new trial on punitive damages were

granted, a jury would be able to consider in full the evidence

relating to Mitsubishi’s alleged willfulness and recklessness.

Therefore, I would reverse the district court’s grant of judgment

as a matter of law on Simo’s punitive damages claim and would

remand for a new trial on that claim.




                                 21
