No. 17-1213
`
`IN THE
`Supreme Court of the United States
`
`
`
`GENERAL MOTORS, LLC,
`Petitioner,
`
`v.
`MICHAEL BAVLSIK, ET AL.,
`Respondents.
`
`
`On Petition for Writ of Certiorari to
`the United States Court of Appeals
`for the Eighth Circuit
`
`RESPONDENTS’ BRIEF IN OPPOSITION
`
`
`
`
`JOHN G. SIMON
`KEVIN M. CARNIE JR.
`THE SIMON LAW FIRM, PC
`800 Market Street
`Suite 1700
`St. Louis, MO 63101
`(314) 241-2929
`
`
`
`JONATHAN E. TAYLOR
` Counsel of Record
`GUPTA WESSLER PLLC
`1900 L Street, NW
`Suite 312
`Washington, DC 20036
`(202) 888-1741
`jon@guptawessler.com
`
`
`
`
`
`April 2, 2018
`
`Counsel for Respondents
`
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`
`
`
`GENERAL MOTORS, LLC,
`Petitioner,
`
`v.
`MICHAEL BAVLSIK, ET AL.,
`Respondents.
`
`
`On Petition for Writ of Certiorari to
`the United States Court of Appeals
`for the Eighth Circuit
`
`RESPONDENTS’ BRIEF IN OPPOSITION
`
`
`
`
`JOHN G. SIMON
`KEVIN M. CARNIE JR.
`THE SIMON LAW FIRM, PC
`800 Market Street
`Suite 1700
`St. Louis, MO 63101
`(314) 241-2929
`
`
`
`JONATHAN E. TAYLOR
` Counsel of Record
`GUPTA WESSLER PLLC
`1900 L Street, NW
`Suite 312
`Washington, DC 20036
`(202) 888-1741
`jon@guptawessler.com
`
`
`
`
`
`April 2, 2018
`
`Counsel for Respondents
`
`
`
`
`
`
`
`
`-i-
`
`QUESTION PRESENTED
`
`In Gasoline Products Co. v. Champlin Refining Co.,
`283 U.S. 494, 500 (1931), this Court held that a partial
`retrial is permissible if “it clearly appears that the issue to
`be retried is so distinct and separable from the others that
`a trial of it alone may be had without injustice.” In this
`case, the Eighth Circuit applied this settled rule and
`concluded that, “[h]aving closely reviewed the record,” the
`“facts are such” that the jury’s liability finding and
`damages award are sufficiently “‘distinct and separable’
`from one another” that the district court did not abuse its
`discretion in ordering a new trial on damages. App. 23
`(quoting Gasoline Prods., 283 U.S. at 500). The question
`presented is whether, on the facts of this case, the Eighth
`Circuit’s holding is correct.
`
`
`
`
`
`
`
`
`
`
`-ii-
`
`TABLE OF CONTENTS
`
`Questions presented ................................................................ i
`Table of authorities ................................................................iii
`Introduction ............................................................................. 1
`Statement ................................................................................. 2
`Reasons for denying the petition.......................................... 5
`I. As GM admitted below, there is an “accepted
`and the Eighth Circuit applied it. ............................ 5
`II. The court of appeals correctly held that
`a new trial on damages. ........................................... 12
`III. The question presented arises infrequently
`Conclusion .............................................................................. 16
`
`legal standard for granting partial new trials,”
`
`liability and damages were sufficiently
`“distinct and separable” such that the district
`court did not abuse its discretion in ordering
`
`and is unworthy of this Court’s review, and
`this case would be a poor vehicle to review
`it in any event. ........................................................... 14
`
`
`
`
`
`
`
`
`
`
`
`
`
`Cases
`
`-iii-
`
`TABLE OF AUTHORITIES
`
`Ajax Hardward Manufacturing Corp. v.
`Industrial Plants Corp.,
`569 F.2d 181 (2d Cir. 1977) .............................................. 7
`
`Boesing v. Spiess,
`540 F.3d 886 (8th Cir. 2008) .......................................... 10
`
`Burger King Corp. v. Mason,
`710 F.2d 1480 (11th Cir. 1983) .................................... 7, 9
`
`Carter v. Chicago Police Officers,
`165 F.3d 1071 (7th Cir. 1998) .......................... 7, 9, 10, 11
`
`Carter v. DecisionOne Corp. Through C.T.
`Corp. Sys.,
`122 F.3d 997 (11th Cir. 1997) .......................................... 6
`
`Darbrow v. McDade,
`255 F.2d 610 (3d Cir. 1958) .............................................. 7
`
`Diamond D Enterprises USA, Inc. v. Steinsvaag,
`979 F.2d 14 (2d Cir. 1992) ............................................ 6, 7
`
`Fairmount Glass Works v. Cub Fork Coal Co.,
`287 U.S. 474 (1933) .......................................................... 14
`
`Gasoline Products Co. v. Champlin Refining Co.,
`283 U.S. 494, 500 (1931) ........................................ passim
`
`Gasperini v. Center for Humanities, Inc.,
`518 U.S. 415(1996) ........................................................... 14
`
`Gries v. Zimmer, Inc.,
`940 F.2d 652, 1991 WL 137243
`(4th Cir. 1991) .................................................................... 9
`
`Hadra v. Herman Blum Consulting Engineers,
`632 F.2d 1242 (5th Cir. 1980) .......................................... 7
`
`
`
`
`
`
`
`-iv-
`
`Hadra v. Herman Blum Consulting Engineers,
`451 U.S. 912 (1981) ............................................................ 7
`
`Haug v. Grimm,
`251 F.2d 523 (8th Cir. 1958) ............................................ 8
`
`Lucas v. American Manufacturing Co.,
`630 F.2d 291 (5th Cir. 1980) ........................................ 7, 8
`
`Luria Brothers & Co. v. Pielet Brothers Scrap
`Iron & Metal, Inc.,
`600 F.2d 103 (7th Cir. 1979) .......................................... 10
`
`Maher v. Isthmian Steamship Co.,
`253 F.2d 414 (2d Cir. 1958) ............................................ 10
`
`Mekdeci By & Through Mekdeci v. Merrell
`National Labs.,
`711 F.2d 1510 (11th Cir. 1983) .................................... 7, 8
`
`Nichols v. Cadle Co.,
`139 F.3d 59 (1st Cir. 1998) ............................................... 6
`
`Phav v. Trueblood, Inc.,
`915 F.2d 764 (1st Cir. 1990) ....................................... 9, 10
`
`Reider v. Phillip Morris USA, Inc.,
`793 F.3d 1254 (11th Cir. 2015) ........................................ 8
`
`Shugart v. Central Rural Electric Cooperative,
`110 F.3d 1501 (10th Cir. 1997) ...................................... 10
`
`Spell v. McDaniel,
`824 F.2d 1380 (4th Cir. 1987) .................................... 8, 11
`
`Yarbrough v. Sturm, Ruger & Co.,
`964 F.2d 376 (5th Cir. 1992) ............................................ 8
`
`Rules
`
`Supreme Court Rule 10........................................................ 11
`
`
`
`
`
`
`
`
`
`-1-
`
`INTRODUCTION
`In this case, the Eighth Circuit applied what General
`Motors described below as the “accepted legal standard
`for granting partial new trials,” which has existed “for
`nearly a hundred years” and which the Eighth Circuit and
`all “other circuits” have had no trouble applying. Under
`that standard, a partial retrial is permissible if “it clearly
`appears that the issue to be retried is so distinct and sep-
`arable from the others that a trial of it alone may be had
`without injustice.” Gasoline Prods. Co. v. Champlin Re-
`fining Co., 283 U.S. 494, 500 (1931). Applying that stand-
`ard here, the Eighth Circuit held that the jury’s liability
`finding and damages award were sufficiently “distinct and
`separable” that the district court did not abuse its discre-
`tion in ordering a new trial on damages. App. 23.
`That factbound holding is unworthy of review. GM’s
`only argument for why damages and liability are insepa-
`rable here is that the jury must have resolved a deadlock
`on liability by compromising on damages. But GM admit-
`ted below that there is a settled “case-specific, fact inten-
`sive standard by which courts determine the existence of
`impermissible compromise,” assessing the “totality of the
`circumstances” to determine if the lower court abused its
`discretion. In this Court, however, GM switches gears and
`claims that there is actually a split about “presumptions”
`and “burdens.” To the contrary, the circuits apply the
`same fact-intensive standard. Any discrepancy in how it
`gets formulated in a particular case is attributable to the
`abuse-of-discretion standard of review—not any dis-
`agreement about the law. In any event, this case would be
`an especially poor vehicle to consider the fact-specific
`question presented because, as the Eighth Circuit found
`and GM does not dispute, GM has waived its principal
`argument for why the jury compromised.
`
`
`
`
`
`
`
`-2-
`
`STATEMENT
`1. Facts. As Dr. Michael Bavlsik was driving a group
`of ten Boy Scouts home from camp one summer morning
`in 2012, the van he was driving collided with a towed boat
`and rolled over at a very slow speed. Only Dr. Bavlsik, who
`was wearing his seat belt, was injured. Because the seat
`belt lacked basic safety features found in nearly 90% of
`other vans at that time, he fell well out of his seat when the
`van turned over. His head hit the roof, and his body
`crashed down with enough force to break his neck and ren-
`der him a quadriplegic. As a result, he now has “no motor
`movement below [his] chest” and “can’t move [his] legs,
`arms, abdomen, [or] toes at all.” CA8 J.A. 240. He was
`(and remains) “the sole support for [his] family,” and he
`fears that he is now a burden on them. Id. at 244.
`2. Trial. After a three-week trial, the jury deliberated
`for a few hours and returned a verdict finding GM liable
`for Dr. Bavlsik’s injuries. On the special-verdict form, the
`jury found that GM was “negligent in the [van’s] design”
`and that this negligence “directly cause[d]” his injuries.
`CA8 Add. 3–4. The jury found negligence because GM
`“admitted [that it] conducted no rollover testing,” despite
`well-known safety risks. App. 11. And the jury found
`causation based on evidence that “testing would have
`shown the van was not safe during a rollover” and “could
`have been improved by adding feasible safety features”—
`used in the vast majority of other vans—that “would have
`prevented” his injury. App. 12–13. Indeed, when GM later
`tested the van’s seat-belt system, it failed GM’s own safety
`standards, and GM implemented safety features that
`would have prevented Dr. Bavlsik’s injuries.
`Given the negligence and causation findings, the jury
`was required by the instructions and special-verdict form
`to enter liability. The jury awarded Dr. Bavlsik $1 million
`
`
`
`
`
`-3-
`
`in past damages—nearly double the stipulated amount for
`past medical expenses ($576,701)—but $0 in future
`damages. “GM did not object to the jury instructions, the
`verdict form, or the verdict itself.” App. 6–7.
`3. The district court’s decision. After post-trial
`motions, the district court held that GM was entitled to
`judgment as a matter of law, despite the jury’s verdict
`against it, on the mistaken theory that the jury’s decision
`to decline to impose strict liability precluded its negli-
`gence finding. That theory was ultimately abandoned by
`GM on appeal. As required by Rule 50(c)(1), the court
`proceeded to conditionally grant the plaintiffs’ motion for
`a new trial on future damages in the event that “the court’s
`granting of defendant’s motion for judgment as a matter
`of law is reversed on appeal.” App. 40. The court found
`that “the award of zero dollars for future health and
`personal care expenses is shockingly inadequate,” and
`rejected GM’s argument that the jury compromised on
`liability. The court pointed out that “[a] special verdict
`form was submitted to the jury so it could clearly report
`its findings regarding liability.” Id. The court concluded
`that “there is no question regarding the jury’s limited
`finding of liability,” and “[s]ubstantial evidence supports
`this finding.” Id. Absent evidence of a deadlock on liability,
`the court declined to find a compromise.
`4. Appeal. On appeal, GM focused mainly on whether
`it was entitled to judgment as a matter of law.1 But it also
`argued that the district court abused its discretion by
`ordering a new trial on damages and rejecting its compro-
`mise-verdict argument. As to this question, both sides
`
`1 Although GM devoted most of its appellate brief (pages 28–45)
`to defending the propriety of the district court’s judgment-as-a-
`matter-of-law analysis, “at oral argument GM conceded” error and
`confined its argument to the sufficiency of the evidence. App. 8–9.
`
`
`
`
`
`-4-
`
`agreed that “the case-specific, fact intensive standard by
`which courts determine the existence of impermissible
`compromise” required an assessment of the “totality of
`the circumstances,” which is left to the district court’s dis-
`cretion. GM CA8 Reply 2, 6. And both sides agreed that,
`given that court’s ringside view of the case, it abuses its
`discretion only if “the record, viewed in its entirety, clearly
`demonstrates the compromise nature of the verdict.” Id.
`at 6. They disagreed only on the answer.
`The Eighth Circuit held that “there was legally suffi-
`cient evidence to support the jury’s liability finding,” but
`not its damages award. App. 8. On the compromise-verdict
`question, the court explained that the answer was “driven,
`in large part, by the standard[] of review.” App. 2.
`Although the court noted its belief that GM had made a
`“strong case” that, were the issue decided on a blank slate,
`a judge might be able to find a compromise, GM had not
`established an abuse of discretion. App. 16. The court
`found that GM had waived any argument that the jury’s
`liability finding was unclear by failing to object to the
`instructions, special-verdict form, or verdict. Id. “Our
`analysis may have been different,” the court explained,
`“had GM preserved the issue for our review. But GM did
`not do so, perhaps because making a timely objection to
`the verdict might have reduced its odds of prevailing. Now
`the confusion lingers on appeal in a repackaged argument
`about a compromise verdict. We decline to make [the
`plaintiffs] pay the price for GM not acting on this per-
`ceived error in a timely manner.” App. 23.
`The court concluded its analysis by applying this
`Court’s decision in Gasoline Products: “Having closely
`reviewed the record,” “we are satisfied the issues regard-
`ing damages and liability are ‘distinct and separable’ from
`one another” such that the district court did not abuse its
`
`
`
`
`
`-5-
`
`discretion by ordering a new trial on damages. Id. (quot-
`ing Gasoline Prods., 283 U.S. at 500).
`GM petitioned for rehearing en banc, claiming a split
`based on Gasoline Products. No judge called for a vote.
`REASONS FOR DENYING THE PETITION
`I. As GM admitted below, there is an “accepted legal
`standard for granting partial new trials,” and the
`Eighth Circuit applied it.
`A. GM admitted below that there has been an
`“accepted legal standard for granting partial new trials”
`since this Court’s decision in Gasoline Products. GM CA8
`Reply 13. That decision holds that a partial new trial is
`permissible if “it clearly appears that the issue to be
`retried is so distinct and separable from the others that a
`trial of it alone may be had without injustice.” 283 U.S. at
`500. And that is the very standard the Eighth Circuit ex-
`pressly applied to the facts of this case. App. 23.
`In Gasoline Products, which involved a counterclaim
`for breach of an oral contract, the Court held that this
`standard was not met. It did so because “the question of
`damages on the counterclaim” turned on determinations
`as to when the contract was formed, when it was breached,
`“the duty of respondent to minimize damages,” and the
`“reasonable time for performance.” Id. at 499–500. Alt-
`hough a jury had found liability, it had not used a special-
`verdict form, so it was impossible “to say precisely what
`were the dates of [the] formation and breach of the
`contract found by the jury, or its terms.” Id. at 499. For
`that reason, the Court determined that the question of
`damages was “so interwoven with that of liability that the
`former cannot be submitted to the jury independently of
`the latter without confusion and uncertainty, which would
`amount to a denial of a fair trial.” Id. at 500.
`
`
`
`
`
`-6-
`
`It has been nearly a century since Gasoline Products
`was decided and courts have not exhibited any difficulty in
`applying its holding. In a case like this one, damages and
`liability are, on their face, entirely separate issues with en-
`tirely separate evidence. There is no argument that a jury
`needs to decide one to decide the other. Instead, GM’s
`argument is that the issues are inextricably linked in this
`case because the jury must have deadlocked on liability
`and resolved the deadlock by compromising on damages.
`As GM acknowledged below, the circuits assess an
`argument of this kind based on the “case-specific, fact
`intensive standard by which courts determine the exist-
`ence of impermissible compromise.” GM CA8 Reply 2.
`That factbound standard can be reduced to several princi-
`ples on which the circuits are all in harmony:
`1. The district court’s determination is reviewed
`only for an abuse of discretion. As Judge Boudin has
`summarized, the “appellate decisions show a marked ten-
`dency to give great weight to the district court’s assess-
`ment whether
`the verdict reflects an
`improper
`compromise,” and “[t]here are good reasons for this view:
`the district court has a far better sense of what the jury
`likely was thinking and also whether there is any injustice
`in allowing the verdict to stand.” Nichols v. Cadle Co., 139
`F.3d 59, 63 (1st Cir. 1998).
`Every circuit applies an abuse-of-discretion standard,
`including those on which GM relies for its alleged split. See
`Carter v. DecisionOne Corp. Through C.T. Corp. Sys., 122
`F.3d 997, 1006 (11th Cir. 1997) (“Whether a new trial on
`damages should be granted is within the sound discretion
`of the district court.”); Diamond D Enterprises USA, Inc.
`v. Steinsvaag, 979 F.2d 14, 18 (2d Cir. 1992) (holding that
`district judge’s rejection of compromise-verdict argument
`and “grant of a partial new trial [on damages] was well
`
`
`
`
`
`-7-
`
`within his discretion”); Lucas v. Am. Mfg. Co., 630 F.2d
`291, 293 (5th Cir. 1980) (“Appellate review . . . is very
`limited; we may reverse only for abuse of discretion.”);
`Ajax Hardward Mfg. Corp. v. Indus. Plants Corp., 569
`F.2d 181, 185 (2d Cir. 1977) (affirming district court’s
`exercise of “discretion in choosing between a partial and a
`complete new trial”); Darbrow v. McDade, 255 F.2d 610,
`611 (3d Cir. 1958) (“[W]e cannot say that the district court
`abused its discretion when it held that the issues of liabil-
`ity and damages were so distinct and separable that a
`retrial of the issue of damages alone could be had without
`injustice.”).
`2. Grossly inadequate damages alone are insuffi-
`cient to show a compromise; there must be evidence of
`a deadlock on liability. The circuits have also uniformly
`recognized (as did GM below) that “[a]n inadequate
`damages award, standing alone, does not indicate a
`compromise.” Diamond D, 979 F.2d at 17; see GM CA8
`Br. 47 (saying same). That is because, “if inadequate dam-
`ages [were] the sole test for a compromise, Rule 59(a)
`would have little or no purpose.” Burger King Corp. v.
`Mason, 710 F.2d 1480, 1487 (11th Cir. 1983).
`Thus, there “must be other evidence demonstrating
`that the deficient monetary award resulted from an imper-
`missible compromise”—in other words, evidence showing
`that the jury was “hopelessly deadlocked” on liability.
`Mekdeci By & Through Mekdeci v. Merrell Nat’l Labs.,
`711 F.2d 1510, 1514–15 (11th Cir. 1983); see also, e.g.,
`Carter v. Chicago Police Officers, 165 F.3d 1071, 1082 (7th
`Cir. 1998); Hadra v. Herman Blum Consulting Eng'rs,
`632 F.2d 1242, 1245–46 (5th Cir. 1980), cert. denied, 451
`U.S. 912 (1981). And the task of weighing the possible
`explanations for an inadequate damages award—and thus
`deciding whether to require “a new trial confined to
`
`
`
`
`
`-8-
`
`damages alone” or a new trial “on all issues”—“is quintes-
`sentially a decision committed to the informed discretion
`of the judge who has conducted the trial and can best esti-
`mate the relative possibilities.” Spell v. McDaniel, 824
`F.2d 1380, 1400 (4th Cir. 1987).
`3. Whether there is evidence of deadlock is a case-
`specific and fact-intensive inquiry. “Given that Rule
`606(b)(1) of the Federal Rules of Evidence generally pro-
`hibits courts from inquiring into the jury’s deliberative
`process,” courts ascertain whether there is sufficient
`evidence of a deadlock “by looking at the totality of the
`circumstances.” Reider v. Phillip Morris USA, Inc., 793
`F.3d 1254, 1260 (11th Cir. 2015). This is a highly factbound
`inquiry that requires, as the Eighth Circuit noted below,
`“‘good reason to believe that the inadequacy of the
`damages awarded was induced by unsatisfactory proof of
`liability and was a compromise.’” App. 17 (quoting Haug
`v. Grimm, 251 F.2d 523, 528 (8th Cir. 1958)).
`In one case, for example, an approaching hurricane
`caused the district judge to instruct the jury to “reach a
`verdict within fifteen minutes,” and the Fifth Circuit
`found that these were “extraordinary circumstances” that
`amounted to an abuse of discretion. Lucas, 630 F.2d at
`293. In another case, “the jury took four days to reach a
`verdict,” during which time it said that it was “hopelessly
`deadlocked” on liability, and the jury even “attempted to
`qualify its verdict.” Mekdeci, 711 F.2d at 1515. The
`Eleventh Circuit held that, under “these unique circum-
`stances,” the district court had not abused its discretion
`by finding an impermissible compromise. Id. In still
`another case, a juror flat-out admitted that “the jury’s
`conflict on the liability issue had caused it to reach an
`incomprehensible damage award.” Yarbrough v. Sturm,
`Ruger & Co., 964 F.2d 376, 378 (5th Cir. 1992).
`
`
`
`
`
`-9-
`
`As GM put it below, “because courts determine the
`existence of compromise on an individualized basis from
`the unique facts and circumstances of each case, the hold-
`ings of other cases are not dispositive.” CA8 GM Reply 3.
`Still, two additional principles have emerged:
`4. Short deliberations cut against a finding that the
`jury was deadlocked on liability. Courts have found
`that, when a jury deliberates for just a few hours after a
`long trial, as it did here, “[i]t obviously was not dead-
`locked.” Burger King, 710 F.2d at 1488; see, e.g., Phav v.
`Trueblood, Inc., 915 F.2d 764, 768–69 (1st Cir. 1990) (hold-
`ing that district court did not abuse its discretion in
`finding no compromise verdict where jury deliberations
`lasted only an afternoon even though damages were inad-
`equate); Gries v. Zimmer, Inc., 940 F.2d 652, 1991 WL
`137243, at *10–11 (4th Cir. 1991) (finding no compromise
`verdict when, “after a seven-day trial, the jury debated
`only three and one-half hours” and “gave no indication of
`being deadlocked or confused as to liability,” and “the
`evidence on liability, even now weighing the evidence and
`the credibility of the witnesses, was sufficient to preserve
`the possibility that a compromise verdict was not
`rendered”).
`5. The jury’s answers on a special-verdict form will
`not be considered as evidence of a compromise if the
`defendant failed to object. Finally, although the issue
`rarely arises, courts will “not consider the jury’s answers”
`on a verdict form “as evidence of its confusion on liability”
`if, as here, the defendant did not object to the form or
`instructions below. Phav, 915 F.2d at 769; see Carter, 165
`F.3d at 1082 (“Carter’s argument that the jury’s verdict
`resulted from impermissible compromise is substantially
`undermined by our conclusions that Carter waived her ob-
`jection to the District Court’s failure to instruct the jury
`
`
`
`
`
`-10-
`
`on the definition of proximate cause and that the jury’s
`verdict was consistent.”). “To decide otherwise would
`countenance ‘agreeable acquiescence to perceivable error
`as a weapon of appellate advocacy,’” Phav, 915 F.2d at 769,
`rewarding one party’s strategic decision not to object
`“because making a timely objection” would “have reduced
`its odds of prevailing,” App. 23.
`B. Having failed below to persuade the court of
`appeals that it should win under the “accepted legal stand-
`ard,” GM now takes a different tack. It contends (at 3–4,
`13–14) that there is actually a “split of authority” on “the
`standard that courts should apply when deciding whether
`a damages-only retrial” may be permitted if one party is
`claiming there was a compromise verdict, and that courts
`“have applied different standards and presumptions.”
`That is not so. As just explained, there is remarkable
`consensus among the circuits on the correct approach for
`reviewing a district court’s compromise-verdict determi-
`nation. Although they sometimes use slightly different
`formulations, the differences are attributable to the defer-
`ential standard of review rather than any disagreement on
`the law. Thus, when an appellate court is reviewing a
`district court’s determination that the jury did not com-
`promise, it will occasionally frame the question (as it did
`in this case, and GM agreed) as being “whether the record,
`viewed in its entirety, clearly demonstrates the compro-
`mise nature of the verdict.” App. 18; see GM CA8 Reply 6
`(quoting same); see also, e.g., Boesing v. Spiess, 540 F.3d
`886, 889 (8th Cir. 2008); Carter, 165 F.3d at 1083; Shugart
`v. Cent. Rural Elec. Co-op., 110 F.3d 1501, 1506 n.7 (10th
`Cir. 1997); Luria Bros. & Co. v. Pielet Bros. Scrap Iron &
`Metal, Inc., 600 F.2d 103, 115 (7th Cir. 1979); Maher v.
`Isthmian Steamship Co., 253 F.2d 414, 419 (2d Cir. 1958).
`The court will frame the question this way, however, only
`
`
`
`
`
`-11-
`
`because a clear demonstration is needed to show an abuse
`of discretion—not because there is any lack of consensus
`on the right legal standard. Indeed, each of the three cases
`cited by GM (at 17–18) uses such a formulation because
`the district court had found that there was no compromise,
`and this finding was entitled to significant deference. See
`Phav, 915 F.2d at 769; Carter, 165 F.3d at 1083; Spell, 824
`F.2d at 1400.
`Moreover, GM fails to acknowledge that the Eighth
`Circuit’s decision below applies the very standard that GM
`now urges. GM says that, in its view (at 17), the correct
`rule under Gasoline Products is that a “damages-only
`retrial cannot be held consistent with the Constitution if
`there is reason to suspect that the jury returned a
`compromise verdict.” But the Eighth Circuit said the
`same thing: “While it is true a retrial on only damages is
`sometimes proper, it is inappropriate ‘where there is good
`reason to believe that the inadequacy of the damages
`awarded was induced by unsatisfactory proof of liability
`and was a compromise.’” App. 17. And the Eighth Circuit
`expressly applied Gasoline Products and concluded that
`“the issues regarding damages and liability are ‘distinct
`and separable’ from one another” such that the district
`court did not abuse its discretion by ordering a new trial
`on damages. App. 23 (quoting Gasoline Prods., 283 U.S. at
`500).
`Simply put, there is neither a split to resolve nor any
`legal error to correct. There is instead a widely accepted
`approach for reviewing a district court’s determination in
`a case like this one, and the Eighth Circuit followed it. This
`Court “rarely grant[s]” certiorari to review the asserted
`“misapplication of a properly stated rule of law.” S. Ct. R.
`10.
`
`
`
`
`
`-12-
`
`II. The court of appeals correctly held that liability
`and damages were sufficiently “distinct and
`separable” such that the district court did not
`abuse its discretion in ordering a new trial on
`damages.
`The Eighth Circuit’s factbound, case-specific applica-
`tion of the settled legal standard was correct. In its
`petition, GM does not challenge the court’s holding that
`the jury’s liability finding is supported by sufficient evi-
`dence. Nor does GM dispute that the jury’s damages
`award, unlike the liability finding, is not supported by the
`evidence. Nor does GM take issue with the Eighth Cir-
`cuit’s finding that GM has waived any objection “to the
`jury instructions, the verdict form, or the verdict itself,”
`and thus cannot rely on any “perceived error” in the jury’s
`liability findings to support its compromise-verdict argu-
`ment. App. 6–7. And GM makes no claim that, apart from
`its compromise-verdict argument, damages and liability in
`this case are too intertwined to permit a new trial on
`damages under Gasoline Products, or that the new trial
`will cause “confusion and uncertainty, which would
`amount to a denial of a fair trial.” Gasoline Prods., 283
`U.S. at 500.
`That leaves GM with virtually nothing to support its
`claim that the district court abused its discretion. There is
`not one communication from the jury saying that it was
`deadlocked or struggling to reach a verdict—just a single
`note asking about the meaning of the stipulation for past
`medical expenses ($576,701.00). But this note, on its own,
`does not demonstrate deadlock on liability, let alone that
`“the trial court abused its discretion in not recognizing as
`much.” App. 23. The jury awarded almost double the
`stipulated amount, including past damages for pain and
`suffering. Add. 5. On these facts, the Eighth Circuit cor-
`
`
`
`
`
`-13-
`
`rectly concluded that, “[a]lthough GM makes a strong
`case, we are unable to say the trial court abused its con-
`siderable discretion and committed reversible error” in
`rejecting GM’s argument. App. 16.
`GM now tries to use the Eighth Circuit’s charitable
`language against it, seizing on its use of the phrase “strong
`case.” But GM ignores the context in which the court used
`this phrase: while explaining that GM could not surmount
`the deferential standard of review. GM also ignores its
`own shifting, sandbagging position—and the waiver
`holding in the decision below—and tries to claim, with
`emphasis, that “the jury found that Bavlsik’s vehicle
`contained no design defects.” Pet. 2. That argument,
`however, is neither correct nor preserved.
`There is therefore no “injustice” in declining to give
`GM a do-over on liability. Gasoline Prods., 283 U.S. at 500.
`Exactly the opposite: GM never objected to the instruc-
`tions, the verdict form, or the verdict, “perhaps because
`making a timely objection to the verdict might have
`reduced its odds of prevailing.” App. 23. But now that it
`has lost its primary argument on appeal—that it was enti-
`tled to judgment as a matter of law—GM wants to rewind
`and start over. The court of appeals rightly said no,
`because that would make the plaintiffs “pay the price for
`GM not acting on [the] perceived error in a timely man-
`ner,” forcing them to prove liability twice before they
`could obtain compensation. Id. Nothing in the Seventh
`Amendment or due process requires a different result.
`Nor did the Eighth Circuit err by deferring to the
`district court under the abuse-of-discretion standard. As
`this Court has explained in an analogous context, “appel-
`late review for abuse of discretion is [not only] reconcilable
`with the Seventh Amendment,” it makes good sense:
`“Trial judges have the unique opportunity to consider the
`
`
`
`
`
`-14-
`
`evidence in the living courtroom context . . . while appel-
`late judges see only the cold paper record.” Gasperini v.
`Ctr. for Humanities, Inc., 518 U.S. 415, 435, 438 (1996)
`(citations omitted); see also Fairmount Glass Works v.
`Cub Fork Coal Co., 287 U.S. 474, 485 (1933) (“Appellate
`courts should be slow to impute to juries a disregard of
`their duties, and to trial courts a want of diligence or per-
`spicacity in appraising the jury’s conduct.”). Hence the
`longstanding rule that appellate courts “must give the
`benefit of every doubt to the judgment of the trial judge.”
`Gasperini, 518 U.S. at 435. That rule carries particular
`force in the compromise-verdict context, where the
`inquiry is into the jury’s state of mind. The Eighth Circuit
`made no misstep in heeding this rule.
`III. The question presented arises infrequently and is
`unworthy of this Court’s review, and this case
`would be a poor vehicle to review it in any event.
`Even apart from the correctness of the decision below
`and the lack of any circuit conflict, the petition should be
`denied for three additional reasons. First, the question
`presented is one that arises, at most, only a few times a
`decade. Appellate courts simply do not confront many
`cases in which (1) a jury’s damages award is plainly unsup-
`ported by the trial evidence, so it cannot be sustained; (2)
`the jury’s liability finding is supported by the evidence;
`and (3) the district court concludes that the jury had not
`compromised its verdict to break a deadlock on liability.2
`
`2 Our research reveals only a handful of cases that have
`confronted the scenario here: where the liability finding is supported
`by the record but the damages award is not, and the district court
`found no compromise and ordered a retrial on damages. Indeed, in the
`87 years since Gasoline Products was decided, only 75 reported
`federal appellate decisions even include the words “compromise
`verdict” and “damages” in the same paragraph—less than one a year.
`
`
`
`
`
`-15-
`
`Second, the factbound, case-specific nature of the
`question presente
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