Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-30-2001

Pryer v. Slavic
Precedential or Non-Precedential:

Docket 00-3297




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Filed May 30, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3297

RAYMOND T. PRYER

v.

C.O. 3 SLAVIC; C.O. 1 COOK;
C.O. 1 PROROCK; C.O. 1 D. BURSEY,

       Appellants

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Civil No. 92-1461)
District Court Judge: The Honorable Gary L. Lancaster

Argued: October 26, 2000

Before: MANSMANN, ALITO, and FUENTES, Cir cuit Judges

(Opinion Filed: May 30, 2001)

       D. Michael Fisher
       Calvin R. Koons
       John G. Knorr, III (argued)
       Office of Attorney General
       Appellate Litigation Section
       15th Floor, Strawberry Square
       Harrisburg, PA 17120

        ATTORNEYS FOR APPELLANTS
       Jere Krakoff
       1705 Allegheny Building
       429 Forbes Avenue
       Pittsburgh, PA 15219

       Cathy Bissoon (argued)
       Reed, Smith, Shaw & McClay, LLP
       435 Sixth Avenue
       Pittsburgh, PA 15219

        ATTORNEYS FOR APPELLEE

OPINION OF THE COURT

FUENTES, Circuit Judge:

Appellee, Raymond T. Pryer, a state prisoner, filed a civil
rights action against a number of prison guar ds claiming
that they had assaulted him in two separate incidents. A
jury found that some of the guards had acted r easonably
but found four others liable and awarded Pryer $1.00 in
damages. Thereafter, the District Court, on its own motion,
ordered a new trial, limiting its scope solely to the issue of
damages. In the retrial, the court prevented the defendants
from arguing that some of the guar ds no longer in the case
had caused Pryer's injuries. In that second trial, the jury
awarded Pryer $300,000. The guards appeal the District
Court's rulings pertaining to the second trial.

We will affirm the District   Court's order for a new trial.
However, because the issues   of liability and damages were
so intertwined as to make a   fair trial on damages alone
impossible, we will reverse   and remand for a new trial on
all issues.

I.

Pryer brought this action under 42 U.S.C. S 1983 alleging
that he was subjected to excessive use of for ce on
September 15 and 27, 1990, while imprisoned at the State
Correctional Institution at Pittsburgh. In his complaint,
Pryer named approximately forty defendants, including
prison officials, medical personnel, and numer ous

                                 2
correctional officers. Pryer sought compensatory and
punitive damages for his injuries. The District Court
dismissed the claims against the prison officials and the
medical personnel, and the case proceeded to trial against
nineteen guards: Gary Beck, Fred Bogonovich, Richard
Bedilion, Douglas Cameron, Daniel Primm, Jacob Tokarski,
Paul Trunick, Daniel Clarke, Robert Jef ferson, Perry
Ciesielski, Bernard Jacobs, William Balzer, John Weaver,
Daniel Caponi, Richard Slavec,1 David Cook, Gerald
Prorock, Doyle Bursey, and Russell W ilson. Pryer appeared
pro se in the three-day trial, which concerned both
incidents and began February 22, 1999.

A.

The relevant facts established at trial ar e as follows. On
September 15, 1990, the day of the first incident, Pryer was
in the prison exercise yard when he began arguing and
fighting with another inmate. Prison guards broke up the
fight and handcuffed Pryer, then transferred him to the
Restricted Housing Unit ("RHU") where he was placed in the
custody of Officers Balzer, Caponi, W eaver, Bogonovich, and
Beck.

According to Pryer, these officers began beating him in
the hallway near the RHU while admitting him to the
cellblock. Pryer testified that, without pr ovocation and while
in handcuffs, these five officers punched him with fists,
struck him with nightsticks, kicked him repeatedly while he
was lying on the ground, and eventually knocked him
unconscious. Further, Pryer testified that, as a result of the
incident, he suffered bruises, welts, and abrasions. In
contrast, Balzer testified that, when Pryer was br ought to
the RHU, his handcuffs were removed as a preliminary step
to a strip search. According to Balzer , Pryer then began
screaming and punched Balzer in the face. Balzer testified
that he, Weaver, and Caponi used for ce to subdue Pryer. He
said that the officers eventually strip-sear ched Pryer and
placed him in a cell.
_________________________________________________________________

1. In their briefs, the parties apparently agree that "C.O. 3 Slavic" is
Lt.
Richard Slavec, and thus, we have adher ed to this corrected spelling
despite the official caption.

                                3
The next incident took place on September 27, 1990 as
Pryer was being searched before going outside for exercise.
While being searched, Pryer complained that Officer Wilson,
who was conducting the search, had impr operly fondled his
buttocks, so he requested that another guar d complete the
search. That request led to an exchange of words and,
according to Pryer, Wilson punched him in the face. Officers
Caponi and Bursey then began beating Pryer with their
fists and batons, and kicked him to the gr ound. Bursey
called for help, and Officers Slavec, Primm, Pr orock, and
Trunick arrived in response.

At this point, according to Pryer, while he was on the
floor, Slavec ordered his subor dinates to stop hitting Pryer,
and he handcuffed Pryer's hands behind his back. Shortly
thereafter, all of the officers continued the beating. Pryer
was then dragged outside the building, and led to an
elevator that would take him to the third floor of the RHU.
He claims that Officers Prorock, Bursey, Caponi, and Slavec
subjected him to additional beatings inside the elevator and
along the walkway on the third floor. He said that, at the
entrance to the third floor cells, Officers Cameron,
Tokarski, Jefferson, Ciesielski, Jacobs, and Cook met him
with a barrage of nightstick blows and that Primm and
Trunick also participated.

According to Pryer, Officers Slavec, Bursey, Cook, and
other guards then led Pryer into an isolation cell where they
continued the beatings. There, Slavec jammed a nightstick
into his eye and ordered the others to br eak his hands and
legs. The officers then held Pryer down to the cell floor, and
struck his hands and legs with nightsticks. Cook also
jumped from a cell bed onto Pryer's stomach, and Cameron
and Jacobs used a stun gun on him.

Pryer introduced medical records to prove his injuries. He
testified, without dispute, that two bones on his left hand
and three on his right hand were br oken; his lower left leg
was fractured in two places; he was bleeding fr om the
mouth; he urinated blood; his body was cover ed with
bruises; and he had welts on his face, bumps on his head,
a swollen eye, and split lips. Further, Pryer testified that, as
a result of the incident, he received stitches to his head and
lower left leg and his left leg was put in a cast.

                               4
Although not all of the officers testified during the trial,
their version of the events differed markedly from Pryer's
testimony. According to the officers, Pryer had initiated the
second incident by punching Wilson in the face and Caponi
in the head. Wilson testified that he had used his baton on
Pryer five to ten times, aiming below Pryer's left knee.
Bursey testified that Pryer struck him as well. According to
the officers, Pryer was forcibly resisting a search and had to
be subdued, ultimately by the use of mace, then stripped
and searched by the guards.

At the close of evidence, the District Court, on its own
motion, entered a directed verdict in favor of eleven officers:
Beck, Bogonovich, Bedilion, Cameron, Primm, T okarski,
Clarke, Jefferson, Ciesielski, Jacobs, and T runick. In so
ruling, the court stated that Pryer had "failed even to
mention some of [the guards during his testimony], and in
other respects his evidence rose no higher than [that the
guards] were simply present at the scene but were not
identified as having caused him any harm in any way."
Pryer objected to this ruling at trial, but does not raise it
here on appeal. The trial judge's ruling left a total of eight
officers for the jury's consideration.

The judge then instructed the jury on the principles
governing Eighth Amendment prison excessive force claims.
However, on the issue of damages, the court only informed
the jury that Pryer would be entitled to compensation for all
injuries that were proximately caused by the officers'
conduct. The court did not instruct the jury as to what
kinds of injuries were compensable under S 1983, and did
not inform the jury that it could awar d money damages for
intangible harms, such as physical and emotional pain,
humiliation, and fear engendered by a beating. Finally, the
court informed the jury that it must r eturn an award of
damages in the nominal amount of one dollar if Pryer failed
to prove by a preponderance of the evidence that he
suffered any actual injury or damages. Pryer, who was
proceeding pro se, did not object to these instructions.

After deliberating for a little over five and a half hours,
the jury found in favor of four guards (Balzer , Caponi,
Weaver, and Wilson), but r eturned a general liability verdict
against the other four (Slavec, Cook, Pror ock, and Bursey).

                               5
The jury awarded $1.00 in nominal damages and no
compensatory or punitive damages.

B.

On March 10, 1999, the District Court, on its own
motion, vacated the damages award and or dered a new trial
against Slavec, Cook, Prorock, and Bursey limited to the
issue of damages. In its written decision, the court held
that the jury's verdict on damages was against the weight
of the evidence and that a new trial was "necessary to avoid
a miscarriage of justice." Additionally, the court ruled that
its instructions to the jury as to both compensatory and
nominal damages were, respectively, inadequate and legally
erroneous. Specifically, the court recognized that it had
erred "by failing to instruct the jury that it could consider
plaintiff 's pain, suffering, and loss of enjoyment of life in
affixing compensatory damages." The court also held that,
given Pryer's undisputed proof of actual injury, an
instruction on nominal damages was inappropriate.
Notably, the judge did not state any reasons for limiting the
second trial to the issue of damages.

C.

On February 22, 2000, after appointing counsel to
represent Pryer, the court commenced the second trial.2
This trial focused only on the damages caused by the
second incident.3 The court began the trial by reading a
stipulation of facts and a summary of the medical r ecords
describing Pryer's injuries. Pryer then testified at length
against Slavec, Cook, Prorock, and Bursey, and he provided
detailed testimony regarding the natur e and extent of his
injuries. At several times during the course of the trial, the
District Court precluded defense counsel fr om arguing that
_________________________________________________________________

2. The Court takes this opportunity once again to express its
appreciation to Jere Krakoff, Esq., Cathy Bissoon, Esq., and the law firm
of Reed, Smith, Shaw & McClay, LLP for agreeing to represent Pryer in
this case.

3. All of the officers implicated in the first incident were either
dismissed
by the court or exonerated by the jury.

                               6
Pryer's injuries were apportionable among the various
officers, some of whom were no longer defendants in the
action. On March 3, 2000, the court issued a detailed
written explanation for this ruling, which r elied primarily
on the principles of joint and several liability, and
indivisible harm, found in the Restatement (Second) of
Torts. Following detailed instructions on damages, the jury
awarded Pryer $300,000 in compensatory damages against
all four officers.

On March 13, 2000, the defendants moved for a new trial
on the issue of damages or, in the alter native, to reduce the
amount of the verdict on the grounds that the court had
erroneously instructed the jury that the four officers were
responsible for all injuries sustained in the course of the
incident. The motion was denied. The four officers now
appeal the District Court's order of a new trial limited solely
to damages and the court's ruling precluding defense
counsel from arguing the issue of causation to the jury.

II.

The District Court exercised jurisdiction over this case
under 28 U.S.C. SS 1331 and 1334. We have jurisdiction to
hear this appeal under 28 U.S.C. S 1291. W e review a
district court's order granting or denying a new trial for
abuse of discretion, unless the court's decision is based
upon the application of a legal precept, in which case we
exercise plenary review. Failla v. City of Passaic, 

, 152 (3d Cir. 1998).4
_________________________________________________________________

4. At the outset, we note that the District Court articulated no rationale
in summarily ordering that "a new trial will be held in this case on the
issue of damages." Ordinarily, where a trial court fails to explain its
grounds for exercising discretion, and its reasons for doing so are not
otherwise apparent from the recor d, we are left without any meaningful
manner in which to review that ruling. Becker v. Arco Chem. Co., 

, 181 (3d Cir. 2000). In those circumstances, we need not defer
to the trial court's ruling and may undertake to examine the record and
make our own determination. See, e.g., 

trial
court's denial of evidentiary objection). Mor eover, in this case, as we
discuss later, the District Court's or der of a partial new trial turns on
the
application of a legal precept to the evidence adduced at trial.
Therefore,
we will apply a plenary or de novo standar d of review.

                               7
A.

We first conclude that the District Court did not abuse its
discretion in ordering a new trial. A trial court is
empowered to order a new trial on its own initiative "for any
reason that would justify granting one on a party's motion."
Fed. R. Civ. P. 59(d). A new trial may be granted when the
verdict is contrary to the great weight of the evidence; that
is, "where a miscarriage of justice would r esult if the verdict
were to stand." Olefins Trading, Inc. v. Han Yang Chem
Corp., 

, 289 (3d Cir. 1993) (internal quotations
and citations omitted).

Generally, "damages are available under[S 1983] for
actions `found . . . to have been violative of . . .
constitutional rights and to have caused compensable
injury.' " Carey v. Piphus, 

, 255 (1978)
(internal quotations, citations, and emphasis omitted).
However, "substantial damages should be awarded only to
compensate actual injury." 

Where a
constitutional deprivation has not caused actual injury, an
award of nominal damages may be appropriate. See 

damages may only be awarded in the absence of
proof of actual injury. See Memphis Cmty. Sch. Dist. v.
Stachura, 

, 308 n.11 (1986) ("[N]ominal
damages . . . are the appropriate means of`vindicating'
rights whose deprivation has not caused actual, pr ovable
injury."); 

, 266-67 (approving
recovery of nominal damages without proof of actual
injury).

In his written opinion, the District Judge r ecognized that
he had erroneously instructed the jury on nominal damages
and failed to inform it of the availability of compensatory
damages for pain and suffering. Pryer plainly testified as to
both the subjective and physical manifestations of injuries
he sustained as a result of the incident on September 27,
1990. Pryer further supported this testimony with objective
medical records. The guards, however , neither introduced
evidence to dispute that Pryer had, in fact, suf fered these
injuries, nor challenged their nature, extent, and
seriousness. Given this evidence, the District Court did not
abuse its discretion in concluding that an awar d of only

                               8
$1.00 in nominal damages was against the weight of the
evidence and that a new trial was requir ed.

We also agree with the trial judge that his charge did not
fairly and adequately instruct the jury as to the applicable
law on damages, and thus, did not provide the guidance
necessary for a determination of an appr opriate award.
"The standard of review for the district court's ruling on
points for charge is . . . abuse of discr etion." Link v.
Mercedes-Benz of N. Am., Inc., 788 F .2d 918, 922 (3d Cir.
1986). Where a jury charge is alleged to have stated an
incorrect legal standard, "we will r eview the charge as a
whole in the light of the evidence to determine if it fairly
and adequately submitted the issues to the jury and we will
reverse if the instructions were capable of confusing and
thereby misleading the jury." Griffiths v. CIGNA Corp., 

, 462 (3d Cir. 1993) (citation omitted).

In S 1983 actions, damages for violations of constitutional
rights "may include not only out-of-pocket loss and other
monetary harms, but also such injuries as impairment of
reputation . . . , personal humiliation, and mental anguish
and suffering." 

(internal
quotations and citations omitted). The court's err or in
failing to instruct as to the availability of damages for such
intangible harms, coupled with its emphasis on nominal
damages, rendered the totality of the instructions confusing
and misleading. See Connecticut Mut. Life Ins. Co. v.
Wyman, 

, 65 (3d Cir. 1983). Moreover, the error
was fundamental because the incomplete instructions
prevented the jury from considering intangible injuries such
as pain and suffering. See Levinson v. Pr entice-Hall, Inc.,

, 564-65 (3d Cir. 1989). Under these
circumstances, we conclude that the District Court did not
abuse its discretion in ordering a new trial.

B.

Notwithstanding this result, the guards claim that,
because the issues of liability and damages wer e so closely
interrelated, the new trial should have been extended to all
issues. The guards infer from the first verdict that the jury
had not completely accepted Pryer's version of the facts,

                               9
and thus, they accuse the trial court of substituting its
judgment for the jury's findings by effectively holding the
four remaining officers responsible for all injuries.

Pryer, however, contends that the guar ds were well aware
before the commencement of the second trial that
testimony would be elicited about the underlying incident.
Moreover, he notes that the guar ds did not make a motion
in limine or other objection during the second trial, and in
fact fully participated in the development of the trial record,
including the drafting of certain stipulated facts and the
presentation of conflicting testimony and evidence about
the events of September 27, 1990. Thus, accor ding to Pryer,
the District Court properly permitted both parties to
present evidence concerning liability to the extent that such
evidence was relevant to the issue of damages, thereby
eliminating any threat of injustice.

District courts are authorized to grant new trials as "to
all or any of the parties and on all or part of the issues."
Fed. R. Civ. P. 59(a). In this regar d, we are guided by the
Supreme Court's pronouncement in Gasoline Products Co.
v. Champlin Refining Co., 

, 500 (1931): "Where
the practice permits a partial new trial, it may not properly
be resorted to unless it clearly appears that the issue to be
retried is so distinct and separable fr om the others that a
trial of it alone may be had without injustice." Consistent
with these principles, a new trial limited solely to damages
is improper where "the question of damages . . . is so
interwoven with that of liability that the for mer cannot be
submitted to the jury independently of the latter without
confusion and uncertainty, which would amount to a denial
of a fair trial." 

"[t]he grant of a partial new trial
is appropriate `only in those cases wher e it is plain that the
error which has crept into one element of the verdict did
not in any way affect the determination of any other
issue.' " Elcock v. Kmart Corp., 233 F .3d 734, 758 (3d Cir.
2000) (quoting Romer v. Baldwin, 317 F .2d 919, 922-23 (3d
Cir. 1963) (internal quotations and citation omitted)).

In the seventy years since the Gasoline Pr oducts decision,
we have steadfastly applied this standard "to prevent
limited new trials where a tangled or complex fact situation
would make it unfair to one party to determine damages

                               10
apart from liability, or where `ther e is reason to think that
the verdict may represent a compr omise among jurors with
different views on whether defendant was liable.' " Vizzini v.
Ford Motor Co., 

, 760 (3d Cir. 1977) (citing 6A
Moore's Federal Practice P 59.06, at 59-89 (1973) and
quoting 11 C. Wright & A. Miller, Federal Practice and
Procedure S 2814, at 96 (1973)). See, e.g., Simone v. Golden
Nugget Hotel and Casino, 

, 1041 (3d Cir.
1988) (affirming new trial order on all issues for false
imprisonment claim where jury "would first have to find at
what points the unlawful detention began and ended," and
it would additionally have to assess defendant's conduct in
determining whether punitive damages wer e warranted);
Spence v. Board of Educ. of the Christina Sch. Dist., 

, 1201-02 (3d Cir. 1986) (affirming new trial order
on all issues where plaintiff 's claim for emotional distress
damages had to be evaluated in light of all cir cumstances
surrounding alleged misconduct, and because plaintiff
sought punitive damages, which required pr esentation to
jury of all facts leading up to alleged adverse employment
decision).

By contrast, where the error on appeal r equiring a new
trial related peculiarly to the damages portion of the trial
only, and did not implicate the jury's liability ver dict, we
have permitted a new trial limited only to the issue of
damages. See, e.g., Wagner v. Reading Co., 

,
291-93 (3d Cir. 1970) (remanding for new trial on damages
after holding that exclusion of plaintiff 's evidence of wage
records, which related only to damages issue, was
prejudicial error).

A review of the first trial's transcript plainly reveals that
the incident on September 27 involved a "tangled or
complex fact situation." Both sides vigor ously contested
liability. Pryer presented, in addition to himself, two other
inmates who witnessed portions of the incident, while seven
correctional officers testified on behalf of the defense. Pryer
also introduced uncontroverted testimonial evidence and
objective medical records to substantiate his extensive
injuries resulting from the beating. Based upon the
evidence adduced at trial, Pryer's injuries could be
attributed to the guards' reasonable use of force, their

                               11
excessive use of force, his own actions, or some
combination of these several factors. Moreover , while the
first jury may have concluded that each of the guards in
the present appeal used excessive force against Pryer, it is
far from clear that Pryer's injuries cannot be apportioned
based upon the nature and extent of his injuries, who was
involved, and where the alleged beatings took place.5

In particular, Wilson, who was only involved at the
beginning of the September 27 incident, testified that Pryer
had initiated the second incident by punching him in the
head, to which he responded by striking Pryerfive to ten
times on the lower left leg with his baton. Caponi, who
appears to have been involved for a longer duration than
Wilson, also testified that Pryer had punched him in the
head. Caponi was among those guards who utilized force to
subdue Pryer in response to his continued r esistance,
which ultimately included the use of mace and a
compulsory strip search. Pryer confir med this use of force,
testifying that Caponi, among others, had repeatedly beat
him with fists, batons, and kicks, eventually dragging him
outside before leading him to the isolation cell on the third
floor of the RHU. The jury, however, exonerated both Wilson
and Caponi by finding that their use of for ce was
reasonable under the circumstances. Thus, it is impossible
from the record before us to determine whether the injuries
sustained by Pryer resulted from W ilson's and Caponi's
reasonable use of force, the other guar ds' excessive use of
force, Pryer's own conduct, or some combination of these
_________________________________________________________________

5. We do not agree with the District Court that Pryer suffered an
indivisible injury and that the appellants wer e jointly and severally
liable
for the entire injury. On the contrary, for the reasons expressed in the
text, we believe that there was a " `r easonable basis for division
according
to the contribution of each.' " SEC v. Hughes Capital Corp., 

, 455 (3d Cir. 1997) (quoting United States v. Alcan Aluminum Corp.,

, 268-69 (3d Cir. 1992)); see also W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser and Keeton on Law of Torts S 52, at 345 (5th
ed. 1984) ("There will be obvious difficulties of proof as to the
apportionment of certain elements of damages, such as physical and
mental suffering and medical expenses, but such difficulties are not
insuperable, and it is better to attempt some r ough division than to hold
one defendant for the wound inflicted by the other .").

                               12
possibilities not otherwise evident from the jury's general
verdict.

In short, the factual backdrop establishing the respective
culpabilities of the various guards and Pryer himself is
entangled within the assessment of the severity of Pryer's
injuries. At its core, Pryer's claim is that he was the victim
of excessive force at the hands of several officers -- and this
cast of officers changed from scene to scene in the RHU
much like the cast in a multiple-act play. In such a case,
a jury assessing damages must know the precise factual
context in which Pryer's injuries arose and who caused
those injuries. Thus, this is a classic example of where a
new trial on all issues is required under the Gasoline
Products standard.

Moreover, the probability that the verdict was tainted by
compromise also leads us to favor a new trial on all issues.6
In this respect, we have held that, "when a jury's verdict is
obviously the result of a compromise on the questions of
liability and damages, it is considered unjust to order a
_________________________________________________________________

6. Contrary to the dissent, we read the guar ds' brief as raising this
argument. Most of their brief is devoted to their primary argument that
the District Court should not have order ed a retrial at all. However, in
the pages devoted to the fallback argument that any retrial should not
have been limited to damages, the brief unquestionably raises the
argument that the issues of liability and damages are so "intertwined" in
this case that they cannot fairly be tried separately. A compromise
verdict is simply one example of a type of case in which these issues are
"intertwined"; it is not a separate ground for refusing to order a retrial
on damages only. Moreover, the brief (at 22) refers expressly to this type
of case. Citing Morrison Knudson Corp. v. Fir eman's Fund Ins. Co., 

, 1255 (10th Cir. 1999), the brief states that one of "the two
instances in which the Gasoline Products rule warrants full retrials" is
"when an insupportable damage award calls into question the original
jury's finding on liability." As Morrison Knudson states on the cited
page,
"[t]he most common example is a compr omise verdict, i.e., an award of
suspiciously low damages in a case of closely contested 

.

In addition, unlike the dissent, we do not believe that the guards'
attorney made any statement at oral ar gument that may fairly be
interpreted to mean that the first ver dict did not have the hallmarks of
a compromise.

                                13
new trial on damages only." Rosa v. City of Chester, 

, 883 (3d Cir. 1960) (citations omitted). In this
case, the award of $1.00 is not easy to r econcile with the
uncontested evidence of injuries Pryer introduced. Indeed,
we believe the verdict most likely repr esented a compromise
among jurors with differing views on whether the
correctional officers were liable. Her e, we are unable to
understand why the first jury returned an award of only
$1.00 after finding that four officers had used excessive
force while two others had used only reasonable force. In
such a case, a new trial should be granted on all issues.
See, e.g., Stanton by Brooks v. Astra Pharma. Prods., Inc.,

, 576-77 (3d Cir. 1983) (ordering new trial on
all issues where award was fairly small compared to
reported verdicts for similar injuries to similarly situated
plaintiffs, and far smaller than the evidence might have
supported, thus strongly indicating that jury's verdict
represented a compromise); accor d Lucas v. American Mfg.
Co., 

, 292-94 (5th Cir . 1980) (ordering new
trial on all issues where jury's award of less than half of
stipulated out-of-pocket losses was a compromise induced
by trial judge's instruction rushing the jury to r each a
verdict); Hatfield v. Seaboard Airline R.R. Co., 

,
723-24 (5th Cir. 1968) (ordering new trial on all issues
where liability was hotly contested, and after lengthy
deliberations, the jury's $1.00 award when plaintiff had
uncontested special damages of $2,795.75 and substantial
pain and suffering "can be seen only as the result of either
a compromise on one of the liability issues or as an attempt
to render a verdict for [the defendant] with [the defendant]
paying the costs"); National Fire Ins. Co. of Hartford v. Great
Lakes Warehouse Corp., 261 F .2d 35, 38 (7th Cir. 1958)
(ordering new trial on all issues where it would be "absurd
to say" jury's award of only one-half the amount of
uncontested damages losses "was anything other than a
compromise," especially when liability was vigorously
contested); Schuerholz v. Roach, 58 F .2d 32, 34 (4th Cir.
1932) (ordering new trial on all issues wher e jury's "grossly
unjust and inadequate" award of $625 for plaintiff blinded
in one eye "can give rise only to the infer ence" of a
compromise verdict).

                               14
On this record, there is no r easonable basis for
concluding with assurance that the questions of liability
and damages were so separable that the jury's
determination on one issue had no bearing on its
determination on the other. Simply put, it is not "clearly
apparent that the issue [of damages] is so distinct and
separable from the [issue of liability] that a trial of it alone
may be had without injustice." Pryer essentially argues that
this error was cured by the parties' conduct during the
second trial. However, this puts the cart before the horse as
we must confine our review to the recor d before the District
Court at the time when it made the decision to limit the
trial solely to damages. Thus, neither the evidence
subsequently introduced at the second trial, nor the higher
verdict, are relevant. See, e.g. , 

n.43 ("[W]e may not take this second, higher verdict into
account in deciding whether the district court abused its
discretion in limiting that new trial to damages.").

Unlike a situation in which a discretionary ruling
resulting in prejudice to a party is cur ed by a cautionary
instruction during the trial, the unfairness to the guards
occurred after the first verdict on the District Court's own
initiative, thereby tainting any subsequent pr oceedings.
Thus, on the record presented, we decline to adopt the
practice urged by Pryer and promulgated in other circuits
whereby new trials are permitted solely on damages with
cautionary instructions to the second jury. See, e.g., Watts
v. Laurent, 

, 181-82 (7th Cir. 1985); Wheatley
v. Beetar, 

, 867-68 (2d Cir . 1980). A
straightforward application of the Gasoline Products
standard remains the law in this cir cuit.

Therefore, we conclude that the District Court erred in
limiting the scope of the new trial solely to damages. The
proofs Pryer submitted, upon which the finding of liability
rests, necessarily form the foundation for the award of
damages. There was no conceivable fashion by which a
second jury could fairly evaluate the extent of Pryer's
damages without also fully appreciating the manner in
which the force, both reasonable and excessive, gave rise to
his injuries. Under the Gasoline Products standard, the
guards are entitled therefore to a new trial on all issues,

                               15
including liability, causation, and damages. See, e.g.,
Atkins v. New York City, 

, 104 (2d Cir. 1998)
(ordering new trial on all issues because issue of liability
was close and vigorously contested, and ver dict on damages
was inconsistent with facts adduced at trial).

III.

For the foregoing reasons, we conclude that, while the
District Court properly ordered a new trial after the first
jury's nominal damages award, it erred in limiting the
scope of the trial solely to damages. Accordingly, we will
reverse the District Court's order granting a new trial and
remand the case for further proceedings consistent with
this opinion.

                               16
MANSMANN, Circuit Judge, concurring in part, and
dissenting in part.

Following an initial trial, despite an erroneous nominal
damage award, Pryer had won something important: He
had vindicated his constitutional rights by obtaining the
formal determination of a jury that the savage beating
administered to him by Appellants was wr ongful. Under the
majority's ruling, that determination is taken away, even
though no one contends that it was the product of any
error. Solely because the guards benefitted from an
erroneous instruction that contributed to an inadequate
damages determination, the majority now holds that they
must be accorded a further windfall by giving them a
second bite at the liability issue. I respectfully dissent.1

I.

At the outset, it appears that the majority has failed to
apply the appropriate standard of r eview. In Vizzini v. Ford
Motor Co., 

(3d Cir. 1977), we first enunciated
the scope of review to be applied in deter mining the
appropriateness of an order limiting a new trial to damages.
See 

("[T]he standard we apply on review is
whether, viewing the circumstances as a whole, it was
consistent with the sound exercise of discr etion for the trial
judge to limit the new trial to the issue of damages."); see
also Stanton v. Astra Pharmaceutical Pr ods., Inc., 

, 576 & n.42 (3d Cir. 1983) (observing that "the only
question is whether the district court abused its discretion
in ordering" a partial new trial on damages).2
_________________________________________________________________

1. I join, however, in Part II(A) of the majority's opinion, which upholds
the District Court's decision setting aside the nominal damages verdict.
2. Our application of an abuse of discretion standard is in keeping with
the practice of other courts. See, e.g. Sprague v. Boston & Maine Corp.,

, 28 (1st Cir. 1985) (allowing separate retrial on damages and
noting that "[t]he trial judge is affor ded broad latitude . . . to limit
the
new trial to the issue of damages if liability has, in his opinion, been
competently determined by the jury") (citing cases); Young v.
International
Paper Co., 

(4th Cir. 1963) (affirming trial court's
limitation
to issue of damages and holding that trial judge, in reviewing record,
could conclude that jury properly found defendants liable but verdict too
low to be sustained).

                               17
The majority acknowledges the abuse of discr etion
standard, but it effectively applies a de novo standard,
reversing the trial court because this court is led to "favor
a new trial on all issues" due to this court's inability to
understand why the jury awarded only nominal damages.
Supra at 13. I recognize that under Gasoline Products it
must "clearly appear" that a partial r etrial may be had
without injustice.3 Nevertheless, I believe that the required
clarity is for the trial judge, whose view should pr evail even
if the issue is less than clear to us as a r eviewing court.

There is good reason to commit such matters to the
sound discretion of the trial court. The trial court has seen
all of the evidence first-hand. It has ruled on motions,
instructed the jury, and overseen the conduct of trial. In
short, the trial court has lived with and thought about the
case for a considerable period, and so is in an
advantageous position to determine what will or will not
overtax the jury's discernment. We, on the other hand,
upon review of a cold record, cannot be expected to achieve
the same mastery of every nuance of the case. It is hardly
surprising that, where a trial judge is justly assured that
issues are separable, the matter may appear less clear to a
reviewing court.

Rather than reversing whenever we cannot be sur e that
the issues are separable, I would uphold the trial court's
exercise of discretion unless we could say with some
assurance, based upon clearly identified factors in the
record, that the issues are not separable.4 Because the
_________________________________________________________________

3. See Gasoline Products Co. v. Champlin Refining Co., 

, 500
(1931) (holding that a partial new trial "may not be properly resorted to
unless it clearly appears that the issue to be r etried is so distinct and
separable from the others that a trial of it alone may be had without
injustice"). See also, e.g., Williams v. Rene, 

, 1101 (3d Cir.
1995) (holding that under Gasoline Products a new trial must extend to
all issues where "the issue of damages . . . is so intertwined with
liability
that one cannot be submitted to the jury independently of the other
without confusion and uncertainty.").

4. An example of the appropriate level of deference may be found in
Stanton, where we reversed the partial retrial only because a "great deal
of evidence" in the record "strongly suggest[ed]" a compromise verdict,

                               18
majority's opinion in this case does not identify a record
basis for finding an abuse of discretion by the District
Court, it effectively leaves no discretion. This result is
contrary to the purpose of the Gasoline Pr oducts rule in
that it will preclude even justly limited r etrials, thereby
thwarting judicial economy and unduly burdening plaintiffs
who have already fairly obtained a favorable liability verdict.
See Wheatley v. Beetar, 

, 867-68 (2d Cir.
1980) (noting that where defendant has had a fair trial on
the issue of liability it would be "grossly unfair to plaintiff,
as well as contrary to the spirit of F.R. 59, to require a
retrial of the question of defendant's culpability" solely
because the jury did not properly consider damages)
(internal quotation marks omitted).5

II.

In deciding whether a new trial on damages alone would
be unjust, it is not enough simply to observe that issues
concerning damages and liability are interwoven. Of
necessity they are always interrelated, because only those
damages proximately caused by conduct giving rise to
liability are recoverable. The universal r equirement of a
causal link between liability and damages means that the
issues can never be completely unlinked.6

Nevertheless, it is clear that in many cases damages may
justly be tried apart from liability. Such separate trials are
_________________________________________________________________

based on two objective factors: a comparison of the verdict amount to
the evidence that provided a "compelling indication" of compromise, and
the jury's answers to "special questions" that"apparently absolved [the
defendant] of liability". 

& n.45. As discussed
in Part II, below, no such compelling objective factors are present here.

5. Moreover, in the present case, the majority has gone beyond simply
substituting its judgment for that of the trial court: As will be
explained
below, the majority has based its decision on considerations that were
not placed before the trial court.

6. See Olsen v. Correiro, 

*3 (D. Mass., Feb. 3, 1995)
(observing that the "interwoven" test of Gasoline Products is "quite
difficult to apply in practice, for damages and liability are in some
sense
interwoven").

                                19
a common occurrence, both ab initio and on retrial.7 See
Rosa v. City of Chester, 

, 882 (3d Cir. 1960)
(observing that "[f]ederal appellate and district courts have
time and again ordered new trials as to damages only"). See
generally Propriety of Limiting to Issue of Damages Alone
New Trial Granted on Ground of Inadequacy of Damages -
Modern Cases, 

at S 4 (1993) (providing
extensive citations to cases where "new trial was required
upon damages only, since defendant's liability was
supported or established by the evidence and ther e was no
necessity to retry the liability issue").

Assessment of the degree to which facts concer ning
liability and damages are interrelated seems a quixotic
venture with little direct bearing on the justice or injustice
of separate trials; and it does not lead to any workable
standard. A more serviceable approach is to consider
whether there is something about how the interr elationship
unfolded at trial that would make separation of the issues
on retrial unjust. Courts have focused on two aspects in
particular: whether the jury's erroneous tr eatment of
damages infected its determination of liability, and whether
it appears that the verdict on liability and damages together
represents a compromise. See,e.g., Olsen v. Correiro, 

*4 (D. Mass., Feb. 3, 1995) (observing that in
determining "interwoven" test "some courts ask whether the
invalidity of the jury's reasoning as to one part of the
verdict could have `infected' their r easoning as to the other
part" and that "[a] variation on the `infection' inquiry is the
`compromise verdict' inquiry, under which a court asks . . .
whether . . . an inadequate damages award r eflected the
jury's ambivalence about its finding of liability").

The first test, then, is whether the error which
undermined the damages verdict also corrupted the liability
verdict. Apropos of this standard, we have held that "if the
error compelling the reversal relates solely to the damage
question, the new trial will be restricted to that question."
_________________________________________________________________

7. The rules expressly authorize such separate trials. See Fed. R. Civ. P.
42(b) (permitting, in furtherance of convenience or when conducive to
expedition and economy, separate trial of any separate issue); Fed. R.
Civ. P. 59(a) (permitting new trial on"all or part of the issues").

                               20


. Moreover , we have consistently
recognized the propriety of partial new trials "in those cases
where it is plain that the error which has crept into one
element of the verdict did not in any way af fect the
determination of any other issue." V 

(quoting Romer v. Baldwin, 

, 922-23 (3d Cir.
1963)) (additional citations omitted).

Here, there is no suggestion that the err oneous
instructions or reasoning which necessitated r etrial as to
damages had any bearing on the liability ver dict. The
finding of liability was amply supported by the evidence,
and Appellants have not assigned any error with respect
thereto. I do not read the majority opinion as indicating
that the liability verdict was erroneous.

It is with respect to the second test for unfairness -- the
"compromise verdict" inquiry -- that I must part ways with
the majority. Appellants never took the position, either
before the District Court or in briefing before this Court,
that the liability verdict represented a compromise.8
Ordinarily an appellate court will not r everse a trial court
on grounds not asserted by the parties. Nevertheless, the
majority opines that "the verdict most likely represented a
compromise among jurors with differing views on whether
the correctional officers were liable", because the majority is
"unable to understand" why the jury would otherwise
return an award of $1.00 despite Pryer's uncontested
evidence of injuries. Supra at 14.

A compromise verdict results when jur ors resolve their
inability to make a determination with unanimity as to
liability by finding inadequate damages. As the majority
correctly observes, we have previously held that a limited
new trial is unjust where the verdict is"obviously the result
of compromise" on questions of liability and damages. 

).9 To avoid undue interference
_________________________________________________________________

8. Indeed, when invited to adopt that position at oral argument,
Appellants' counsel effectively declined to do so.

9. It is significant that the statement in Rosa   cited by the majority is
followed immediately by an explicit recognition   of the converse rule
where there is no such obvious compr omise: "On   the other hand if the
error compelling the reversal relates solely to   the damage question, the
new trial will be restricted to that question."   

.

                               21
with the trial court's discretion to limit a r etrial, we have
required trial on all issues only wher e the compromise is
"obvious". See 

.10 This standard is in
keeping with the practices of our sister Courts of Appeals.11
It is not enough that the damage award is inadequate, or
nominal.12 Rather, the compromise must be evident from
other factors of record.13 Where the presence of compromise
is doubtful, a new trial on liability is not r equired.14
_________________________________________________________________

10. Cf. Huddleston v. Crain Brothers, Inc., 

(W.D. Pa.
1960) (concluding new trial on damages alone was appropriate where
verdict was not "absolutely the r esult of a compromise on liability and
damages") (emphasis added) (citing Rosa, 

).

11. See Burger King Corp. v. Mason, 

, 1487 (11th Cir.
1983) (defining compromise verdict as"one where it is obvious that the
jury compromised the issue of liability by awar ding inadequate
damages.") (emphasis added); Freight T erminals, Inc. v. Ryder System,
Inc., 

, 1053 (5th Cir. 1972) (same); Great Coastal Express,
Inc. v. International Brotherhood of Teamsters, 

(4th Cir.
1975) (new trial required where inadequate verdict "could only have been
a sympathy or compromise verdict") (emphasis added). See also Spell v.
McDaniel, 

, 653 (E.D.N.C. 1985) (finding new trial on
damages proper where the "totality of the circumstances simply [did] not
point unerringly to a compromise ver dict") (emphasis added).

12. See Rosa, 

(inadequate verdict in amount of $1 held not
indicative of compromise on issues of liability and damages). See also De
Luca v. Wells, 

(1968) (noting that not every inadequate
verdict is ipso facto a compromiseverdict); Spell, 604 F. Supp. at653
(holding that an award of minimal damages, in itself, is insufficient to
prove a compromise) (citing Burger 

). Cf. Edwards
v. Sears Roebuck & Co., 

, 282 (5th Cir. 1975) ("A jury's
finding as to liability can be binding even though its monetary award is
found to be [inadequate] or even improperly influenced - our deference
to and faith in the jury system demands at least this much.").

13. See Burger 

; Mekdeci v. Merrell National
Laboratories, 

, 1513-14 (11th Cir. 1983).

14. Cf. Lockhart v. Westinghouse Credit Corp., 

, 54 (3d Cir.
1989), (rejecting claim for new trial although it "[could] not be said
with
fair assurance that [a compromise ver dict] did not occur", and noting
that "[o]ur task on review is to ascertain only whether the jury's verdict
is reasonable in light of the evidence pr esented, and not to indulge in
unsubstantiated and speculative assertions"), effectively overruled on
other grounds, Hazen Paper Co. v. Biggins, 

(1993).

                               22
Here the presence of a compromise is certainly not
obvious. That the jury was able to find some of the initial
defendants liable and others not clearly demonstrates its
ability to assess and distinguish conduct, and to adjust its
liability findings accordingly. And unlike some of the cases
relied upon by the majority, the jury in this case did not
simply "split the difference" between the parties' positions
in arriving at a damages figure. Measur ed against the
extent of the beating and injuries inflicted on Pryer, an
award of $1 hardly seems a "compr omise".15

The majority does not point to any factors suggestive of
compromise, other than the purportedly inexplicable
deficiency in damages. But that deficiency is r eadily
explained by the District Court's erroneous instructions.
One need not reach out in search of speculative alternative
explanations where the very reason for the new trial was
the court's acknowledgment of its erroneous instructions
on damages. To all appearances, the reason for the jury's
nominal damages award was the court's err oneous
instruction on that very issue, and not that the jury did not
mean what it said as to liability.16 In Rosa, we found that
an inadequate damages verdict was not indicative of
compromise where the inadequacy was appar ently due to
erroneous evidence and instructions.17 Numerous cases are
in accord.18 In the pr esent case, we should similarly decline
_________________________________________________________________

15. Compare 

(finding "compelling indication"
of compromise in damages award of about one third of the amount
supported by the evidence).

16. Any doubt on this score should be r esolved by according the jury's
liability verdict the usual presumption of propriety and regularity. See

(in conducting compromise inquiry, court
started from proposition that jury's ver dict is to be afforded every
inference that it is proper and honest).

17. See 

.

18. See, e.g., Saide v. Stanton, 

(Ariz. 1983) (concluding new
trial could be limited to damages alone, though liability issue was
strongly contested, where inadequacy in damage award resulted from
trial court's erroneous instructions to jury r egarding amounts includable
in assessing damages); Capelouto v. Kaiser Foundation Hospitals, 

(Cal. 1972) (new trial properly limited to damages where ample
evidence supported liability, and inadequacy of the verdict was probably

                                 23
to presume that the liability verdict was a product of
compromise.19

III.

Appellants have raised the possible apportionment of
Pryer's injuries in a separate assignment of err or,
contending that the trial court improperly pr evented the
jury in the second trial from considering whether some or
all of the injuries resulted from the conduct of guards who
were absolved of liability in the first trial. If Appellants'
contention were correct, they would be entitled to a new
trial on damages, in which they could attempt to assign
responsibility for particular injuries to the other guards.
They would not, however, be entitled to r evisit the question
of their own liability.

Appellants' contention on apportionment turns on
whether the evidence in the second trial would allow a non-
_________________________________________________________________

due to erroneous jury instruction); Cedars of Lebanon Hosp. Corp. v.
Silva, 

(Fla. 3d DCA 1985) (affirming limitation of new
trial to damages where inadequate award was apparently generated by
trial court's instruction and case was not one wher e evidence of
defendants' liability was tenuous or insubstantial, or where it appeared
that juror who would have found no liability whatsoever compromised
with those who would have found defendants liable, and observing that
new trial on liability was not required simply because the issue was
disputed).

19. Some courts have employed an explicit multi-factorial analysis to
determine whether a compromise ver dict was reached, based on: (1)
clarity of the jury instructions and verdict form; (2) length of jury
deliberations; (3) strength of the evidence as to liability; (4) questions
and notes from the jury during deliberations; and (5) whether the case
involved a sympathetic plaintiff and unsympathetic defendant. See, e.g.,
Mekdeci, 

; 

. Here, there is no
indication that the liability instructions wer e unclear; that the jury
deliberations were over-long; that liability evidence was lacking; that
the
jury asked questions evincing uncertainty; or that Pryer, an incarcerated
felon, was a particularly sympathetic plaintiff. Compare 

(requiring full retrial wher e liability evidence was "very thin"
and
jury's failure to agree on damages after two full days of deliberations
indicated that deliberations were affected by liability issues).

                               24
speculative attribution of particular injuries to particular
causes. The majority addresses this issue only in passing.
While it does opine that "it is far from clear that Pryer's
injuries cannot be apportioned", this comment appears to
be part of its discussion of the first trial. See supra at 12.20
Whether such an apportionment was supported by the
evidence in the first trial is of no moment, since the
majority has agreed with the District Court that the
damages verdict was tainted by erroneous instructions that
necessitated a new trial.

The issue properly before us concer ns whether
apportionment was proper on the recor d before the jury in
the second trial (not whether the first jury could or did
apportion damages). As to that issue, Appellants had the
burden of providing a record basis for non-speculative
attribution of particular injuries to particular causes.21
Appellants do not attempt to parse the recor d to show how
such a determination could be made; nor does the majority.
Appellants merely point out (and the majority r epeats) that
one non-liable guard admitted to beating Pryer on the leg
which was broken. But this was only one beating in a long-
running melee that included other assaults to the same leg.
It appears that any conclusion that one guar d's conduct
was the sole cause of that injury would be speculative.

As the District Court held,

       The evidence in this case clearly established that
_________________________________________________________________

20. The majority appears to intimate that thefirst jury might have
arrived at its $1 verdict by determining that all of the substantial
elements of damage were caused by guards found not liable. This may
be possible in theory, but given the usual r elationship between force and
injury, it is hardly plausible that a jury would find that guards who
inflicted multiple broken bones, lacerations, contusions and head
injuries used only reasonable force, while concluding that the force used
by those who did only nominal damage was excessive.

21. See, e.g., United States v
              . Alcan Aluminum Corp., 

, 268-
69 (3d Cir. 1992) ("[W]here joint tortfeasors cause a single and
indivisible
harm for which there is no reasonable basis for division according to the
contribution of each, each tortfeasor is subject to liability for the
entire
harm. . . . . [I]t is the tortfeasor's burden to establish that the
damages
are capable of such apportionment.").

                               25
       plaintiff suffered a single indivisible injury caused by
       multiple blows inflicted by multiple guards. There is no
       logical, reasonable or practical basis to apportion his
       pain, suffering . . . between the blows inflicted by the
       four defendants and the blows inflicted by the other
       guards, or to attribute such injuries to the blows
       inflicted by any particular guard. Any attempt to do so
       would be purely arbitrary.

Mem., March 3, 2000, at 6. Because nothing in Appellants'
submission or the majority's opinion convinces me that the
court's analysis was incorrect, I would uphold its refusal to
allow the jury to speculate as to apportionment of Pryer's
damages.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               26