## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 29 2004 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TONY BARTEE, Plaintiff - Appellant/ Cross - Appellee,

v. MICHELIN NORTH AMERICA, INC., a New York corporation, Defendant - Appellee/ Cross - Appellant. Nos. 03-6071 & 03-6086

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

(D. Ct. No. CIV-01-438-T)

Andrew W. Lester (Shannon F. Davies and R. Scott Th ompson, with him on the briefs), Lester, Loving & Davies, P.C., Edmond, Okl ahoma, appearing for Plaintiff-Appellant/Cross-Appellee. Victor Fred Albert (Toni J. Ellington, with him on the briefs), McKinney & Stringer, P.C., Oklahoma City, Oklahoma, appearing for DefendantAppellee/Cross-Appellant.

Before TACHA , Chief Circuit Judge, McKAY, and TYMKOVICH , Circuit Judges.

TACHA , Chief Circuit Judge.-2-

Defendant-Appellee Michelin North America (“Micheli n”) terminated Plaintiff-Appellant Tony Bartee from his job as a f oreman at its Ardmore, Oklahoma factory. After his termination, Mr. Barte e brought suit pursuant to the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. , alleging that Michelin failed to reasonably accommodate his disability and that it wrongfully terminated his employment. On appeal, M r. Bartee challenges the District Court’s back-pay award and its order barri ng a punitive-damages instruction. On cross-appeal, Michelin contests th e District Court’s failure to grant it judgment as a matter of law. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, AFFIRM in part, REVERSE in part, andREMAND for a new determination of damages.
I. BACKGROUND Mr. Bartee worked as a foreman at the Michelin fact ory in Ardmore. This position required Mr. Bartee to move about the size able plant to oversee his employees. In 1995, Mr. Bartee was diagnosed with avascular necrosis in both of his hips, which required two surgeries. Post-traum atic arthritis in his right ankle, which resulted from a previous car accident, also m ade walking and prolonged sitting increasingly painful. Mr. Bartee asked Michelin to provide him a four-whe eled golf cart to lessen the strain of his daily movement in the plan t. Michelin denied this request,-3-

instead providing him with a smaller three-wheeled cart. The size of this cart caused Mr. Bartee, a 6’4” man, significant discomfo rt and aggravated his hip condition. Faced with increasing pain, Mr. Bartee took short-term disability leave on June 4, 1998, which became long-term disability leave on December 3, 1998. Michelin’s employment policy requires it to terminate all employees who fail to return to work within twelve months of taki ng disability leave. Mr. Bartee contacted Michelin on May 3, 1999, after almost ele ven months on leave, requesting that Michelin accommodate his condition or reassign him to a job that he could physically perform. In response, Michelinoffered Mr. Bartee a job in the planning division. This job required the emplo yee to work occasional twelvehour shifts with substantial walking and standing and paid $20,000 less than the foreman position. Michelin also denied Mr. Bartee’ s request for use of a fourwheeled golf cart in this position, stating only th at the three-wheeled cart should still be available. Given the physical requirement s of the planning position and the lack of a suitable cart, Mr. Bartee’s doctor ad vised him against taking the job. Mr. Bartee followed this advice and refused the pos ition. Michelin offered him no other jobs and terminated him after his twelve m onths of disability leave expired. Mr. Bartee’s suit presented two theories of recovery pursuant to the ADA: (1) failure to provide a reasonable accommodation, and (2) wrongful termination.-4-

The jury returned a verdict in favor of Mr. Bartee on the reasonableaccommodation theory but against him on the wrongfu l-termination one. Neither party filed a timely motion for inconsistent verdic ts. In its opposition to Mr. Bartee’s request for front and back pay, however, M ichelin contested the consistency of the verdicts. The District Court, e mploying plain error review, denied Michelin’s request. Although the District Court found the verdicts cons istent, it refused to award Mr. Bartee back pay to the date of judgment i n light of the jury’s rejection of his wrongful termination claim. Instead, the Di strict Court limited damages to the time between Mr. Bartee’s letter requesting rea sonable accommodation and the lawful discharge, ultimately awarding him $3,24 1.50. Mr. Bartee filed a timely notice of appeal, and Michelin cross-appeale d. Mr. Bartee raises three points for review. First, he argues that the District Court erred in awarding him only one month’s back p ay. Second, he asserts that the District Court should have instructed the jury on punitive damages. Third, if we do not reverse the District Court’s back-pay rul ing, he requests a new trial. Michelin also brings three arguments on cross-appea l. First, Michelin urges that Mr. Bartee presented insufficient eviden ce that he is a “qualified individual with a disability” under the ADA. Secon d, Michelin contends that Mr. Bartee offered insufficient evidence of its failure to engage in a good-faith-5-

attempt to accommodate him. Third, in the alternat ive, Michelin challenges the District Court’s exclusion of evidence of Mr. Barte e’s post-June 1999 medical condition. We examine these issues in turn.
II. BACK PAY & FRONT PAY A. Standard of Review A district court’s decision to award back or front pay under the ADA is an equitable one. See 42 U.S.C. § 2000e-5(g)(1) (Relief “may include . . . back pay . . . or any other equitable relief as the court deem s appropriate[.]”); McCue v.
Kansas , 165 F.3d 784, 791-92 (10th Cir. 1999) (interpreti ng back and front pay to be equitable remedies under § 2000e-5(g)(1) in a Ti tle VII case). As an equitable consideration, “a district court has broad discreti on in fashioning relief to achieve the broad purpose of eliminating the effects of dis criminatory practices and restoring the plaintiff to the position that she wo uld have likely enjoyed had it not been for the discrimination.” Dilley v. SuperValu, Inc. , 296 F.3d 958, 967 (10th Cir. 2002) (quotations and alterations omitted). We review a district court’s determination of frontand back pay for abuse of discretion. Davoll v. Webb , 194 F.3d 1116, 1143 (10th Cir. 1999). “Under the law of this circuit, judicial action which is arbit rary, capricious, or whimsical . . . . [or a] ruling based on an erroneous view of the l aw or on a clearly erroneous assessment of the evidence . . . constitute[s] an a buse of discretion.” Amoco Oil-6-

Co. v. EPA , 231 F.3d 694, 697 (10th Cir. 2000) (citations andquotations omitted). “That the court’s discretion is equitable in nature , hardly means that it is unfettered by meaningful standards or shielded fromthorough appellate review.” Albemarle Paper Co. v. Moody , 422 U.S. 405, 416 (1975) (citations omitted). Indeed, when affording remedies under the ADA, “[a] court must exercise this [equitable] power in light of the large objectives of the Act.” Id. B. Merits Mr. Bartee argues that the District Court erred by limiting the damages for his reasonable-accommodation claim to his lost pay, minus his disability insurance payments, from the time that Michelin fai led to accommodate him on May 3, 1999, to his termination on June 3, 1999. F inding that the District Court failed to establish a sufficient factual basis for its equitable award, we reverse and remand for a calculation of back- and front-pay dam ages consistent with this opinion.
1. Consistency of the Verdicts First, like the District Court, we must interpret w hether the verdicts are consistent. Here, neither party timely asserted in consistent verdicts. “A failure to object to general jury verdicts on the ground of in consistency before the jury is discharged constitutes waiver, unless the verdict i s inconsistent on its face such1 The jury received one verdict form, identifying fa ilure to reasonably

accommodate and wrongful discharge as separate clai ms and instructing the jury to proceed directly to damages if it found for Mr. Bartee on either claim. Such verdict forms are best construed as general verdict s. See Resolution Trust , 998 F.2d at 1545-47.

2 As this suggests, we do not conduct plain error re view here under the same plain error standard used in other contexts. See, e.g., United States v. Lang , 364 F.3d 1210, 1217 (10th Cir. 2004) (applying plai n error in the context of Fed. R. Crim. P. 52(b)); Maestas v. Lujan , 351 F.3d 1001, 1011 (10th Cir. 2003) (applying plain error in the context of civil jury instructions); Polys v. Trans-Colorado Airlines, Inc. , 941 F.2d 1404, 1409 (10th Cir. 1991) (applying plain error under Fed. R. Evid. 103(d)). -7- that the entry of judgment upon the verdict is plai n error.” 1 Resolution Trust Corp. v. Stone , 998 F.2d 1534, 1545 (10th Cir. 1993). Plain erro r exists only when verdicts are inconsistent on their face. 2 Diamond Shamrock Corp. v. Zinke & Trumbo, Ltd. , 791 F.2d 1416, 1424 (10th Cir. 1986).
In Diamond Shamrock, we formulated the plain-error inconsistency test as follows: A verdict that resolves separate and distinct cause s of action in favor of both parties is not inconsistent on its face. . . . In contrast, when several causes of action are identical and defended on the same ground, a verdict for the plaintiff on one cause of action and for the defendant on another is inconsistent. Id. at 1424-25.
In Oja v. Howmedica, Inc. , 111 F.3d 782 (10th Cir. 1997), however, we interpreted this standard to find a verdict for pla intiff in negligence and for defendant in strict liability inconsistent on its f ace. We found this inconsistency, despite the facial differences between these causes of action, because the only two3 Although we do not decide today, we note that the following unitary

standard seems to reconcile and capture the essence of both formulations: verdicts are only inconsistent on their face where the jury ruled for different parties on two or more claims and the sole elements disputed at trial were common to all causes of action.

4 To present a claim of wrongful termination, Mr. Ba rtee must show: (1) he is disabled within the meaning of the ADA; (2) he c an perform, either with or without reasonable accommodation, the essential fun ctions of the desired job; and (3) “that [Michelin] terminated him because of his disability.” White v. York Int’l Corp. , 45 F.3d 357, 361 (10th Cir. 1995). To present a prima facie failure to accommodate claim, the first two elements remain th e same, while the third is met by showing that “an employer [did not] take reasonable steps to reassign a qualified individual to a vacant position or a posi tion the employer reasonably anticipates will become vacant in the fairly immedi ate future.” Albert v. Smith’s Food & Drug Centers, Inc. , 356 F.3d 1242, 1252 (10th Cir. 2004).

5 We assume, without definitively deciding, that wro ngful termination and failure to reasonably accommodate claims under the ADA are separate causes of action. The District Court and the parties proceed ed as if they were, and neither party objected to that assumption on appeal. Furth ermore, at least one court of appeal appears to treat them as distinct causes of action. See Burch v. Coca-Cola Co. , 119 F.3d 305, 314 (5th Cir. 1997). On the other hand, both theories of (continued...) -8- elements contested at trial, product defectiveness and injury causation, “were common to all of Oja’s claims.” Id. at 791. We note that some tension may exist between these two formulations; however, we need not resolve any possible tension t oday because the verdicts here are facially consistent under either standard. 3 First, noting that the third elements differ for the claims of wrongful termination and f ailure to accommodate under the ADA, 4 they appear to present separate and distinct cause s of action. See Diamond Shamrock, 791 F.2d at 1424. 5 Second, both parties vigorously contested5 (...continued)

recovery arise from the same statutory provision. See, e.g., Siemon v. AT&T Corp. , 117 F.3d 1173, 1175 (10th Cir. 1997) (citing 42 U .S.C. § 12112(a) as basis for failure to accommodate claim); Taylor v. Pepsi Cola Co. , 196 F.3d 1106, 1107-09 (10th Cir. 1999) (citing 42 U.S.C. § 12112( a) as basis for wrongful termination claim). Such cases could lend support to the view that the y provide merely alternative methods of proving one statutorycause of action.

6 For the former, the relevant issue was whether Mic helin took reasonable steps to reassign Mr. Bartee to a vacant position. For the wrongful termination claim, the pertinent question was whether Michelin terminated Mr. Bartee because of his disability.

7Unless otherwise indicated in this opinion, the te rm “findings of fact” refers both to findings implied by the district cou rt from the jury verdicts and to the court’s original findings. -9- the third elements of the reasonable accommodation and the wrongful termination claims. 6 Hence, the verdicts are consistent under plain er ror review because the disputed elements were not common to both causes of action and the jury could have logically reached opposite conclusions on thos e elements. See Oja , 111 F.3d
at 790-91.
2. Factual Findings of the District Court Having found the verdicts consistent, we next evalu ate the District Court’s factual basis for limiting Mr. Bartee’s back-pay aw ard. Pursuant to the Seventh Amendment to the Federal Constitution, in fashionin g equitable relief, a district court is bound both by a jury’s explicit findings o f fact and those findings that are necessarily implicit in the jury’s verdict. 7 Smith v. Diffee Ford-Lincoln-Mercury,
Inc. 298 F.3d 955, 965-66 (10th Cir. 2002) (holding that the district court abused8 In full, the District Court concluded:

Had Plaintiff elected to proceed solely on the fail ure to accommodate claim, Plaintiff would have been in a position to a rgue he would have (continued...) -10- its discretion in refusing front pay under an ADA and FMLA claim because it “disregarded the jury’s implicit finding that [the plaintiff] would have been employed at least until the date of trial”)

. In other words, “the subsequent findings by the trial judge in deciding the equitab le claims [cannot] conflict with the jury’s [explicit and implicit] determinations.” AG Services of America, Inc. v. Nielsen , 231 F.3d 726, 731 (10th Cir. 2000). Moreover, a district court must construe the implied factual findings from both jury verdicts in harmony before using them as the basis for its equitable relief. Diamond Shamrock, 791 F.2d at 1431 (McKay, J., concurring in part, dissenting in part). Finally, to facilitate appellate review, a district court must make clear on the record the findings of fact on which it relies. Cf. United States v. Pelliere , 57 F.3d 936, 940 (10th Cir. 1995) (noting that an appellate court cannot reviewfindings of fact under U.S.S.G. § 3B1.1(b) unless the district court makes those findings on the record); Heinold Hog Mkt., Inc. v. Superior Feeders, Inc. , 623 F.2d 636, 637 (10th Cir. 1979) (“[T]he function of appellate review is to de cide whether the correct rule of law was applied to the facts found[.]”). Here, although the District Court briefly addressedthe matter, 8 the findings8 (...continued)

been employed by Defendant until his retirement at age 65. However, Plaintiff elected to submit a claim for wr ongful termination to the jury. The jury, having heard all the eviden ce presented by both parties, determined that plaintiff’s termination on June 3, 1999, was not discriminatory.

9 To the extent that the District Court made written findings of fact, the Court appeared to focus exclusively on the jury’s w rongful termination verdict and ignored the reasonable accommodation verdict. Thus, even if we found this sparse factual analysis sufficient, its failure to interpret the implied factual findings from both jury verdicts in harmony would require us to reverse and remand for additional factual findings and, if nece ssary, the recalculation of the equitable relief. AG Servs. , 231 F.3d at 731; Diamond Shamrock, 791 F.2d at 1431 (McKay, J., concurring in part and dissenting in part). -11- are insufficient to enable us to evaluate whether t he District Court abused its discretion by basing its equitable remedy on findin gs of fact that conflict with those implied by both jury verdicts. 9 See AG Servs. , 231 F.3d at 731; Smith , 298 F.3d at 965-66. Thus, we reverse and remand the award of equitable relief for specific findings of fact by the District Court and , if necessary, recalculation of equitable damages. These findings of fact should i nclude implied findings of fact from both jury verdicts—read in harmony—as well as any independent findings of fact necessary for determination of the proper equi table relief.
III. PUNITIVE DAMAGES A. Standard of Review Mr. Bartee appeals the District Court’s order exclu ding the punitive damages issue from the jury. “Whether sufficient e vidence exists to support10 Because we remand on the equitable damages issue, w e need not address

Mr. Bartee’s request for a new trial as an alternat ive remedy. -12- punitive damages is a question of law reviewed de n ovo.” EEOC v. Wal-Mart Stores, Inc. , 187 F.3d 1241, 1244 (10th Cir. 1999) (quotations omitted). B. Merits An ADA plaintiff may seek punitive damages if his e mployer acted with “malice or with reckless indifference to the plaint iff’s federally protected rights.” Kolstad v. American Dental Assoc. , 527 U.S. 526, 535 (1999) (applying § 1981(a) in a Title VII case) (emphasis and alterations omitted); see also Wal-Mart Stores,
Inc ., 187 F.3d at 1244 (applying Kolstad standard to an ADA case). To satisfy this standard, the employer must engage in the proh ibited conduct with the “knowledge that it may be acting in violation of fe deral law, not [mere] awareness that it is engaging in discrimination.” Kolstad, 527 U.S. at 535. Having extensively reviewed the record before us, we find no evidence that Michelin either (1) acted with malice or reckless indifferen ce with respect to Mr. Bartee’s federally protected rights, or (2) knew that it act ed in violation of the ADA. Therefore, we affirm the decision of the District C ourt to prevent the jury from considering punitive damages against Michelin. 10 IV. SUFFICIENT EVIDENCE OF STATUS AS A QUALIFIED INDIVIDUAL A. Standard of Review-13-

In its cross-appeal, Michelin objects to the Distri ct Court’s denial of its motions for judgment as a matter of law. We review this issue de novo, applying the same standard as the District Court. Roberts v. Progressive Independence,
Inc. , 183 F.3d 1215, 1219 (10th Cir. 1999). Under this standard, [w]e must affirm if, viewing the record in the ligh t most favorable to the non-movant, there is evidence upon which the ju ry could properly return a verdict for the non-movant. In conducting our review, we do not weigh the evidence, pass on the credibility of witnesses, or substitute our own conclusions for that of the jury . However, we must enter judgment as a matter of law in favor of the moving party if there is no legally sufficient evidentiary basis with respect to a claim or defense under the controlling law. Id. at 1219-20 (quotations, citations, and alterations omitted). B. Merits First, Michelin challenges the jury’s determinationthat Mr. Bartee is a qualified individual with a disability under the AD A. “The term ‘qualified individual with a disability’ means an individual w ith a disability who, with or without reasonable accommodation, can perform the e ssential functions of the employment position that such individual holds or d esires.” 42 U.S.C. § 12111(8). Michelin admits that Mr. Bartee is an individual wi th a disability. Mr. Bartee concedes that the planning position – the on ly job offered to him by Michelin – exceeded his physical capabilities by re quiring extensive standing and walking with occasional twelve-hour shifts. Thus, the relevant issues for our-14-

analysis are: (1) whether the jury could have found , based on the evidence presented at trial, that extensive standing and wal king with occasional twelvehour shifts are not essential functions of the plan ning position and (2) whether Mr. Bartee could have performed all essential funct ions of the job with reasonable accommodation. Davidson v. America Online, Inc ., 337 F.3d 1179, 1190 (10th Cir. 2003) (citations omitted). The term “essential function” is defined as “the fu ndamental job duties of the employment position the individual with a disab ility holds or desires.” 29 C.F.R. § 1630.2(n)(1). “Determining whether a part icular function is essential is a factual inquiry.” Davidson , 337 F.3d at 1191. In conducting this inquiry, th e finder of fact must give consideration to the emplo yer’s judgment regarding the functions of a job that are essential, including th ose functions contained in a written job description. See id. ; see also 42 U.S.C. § 12111(8). However, “an employer may not turn every condition of employmentwhich it elects to adopt into a job function, let alone an essential job fun ction, merely by including it in a job description.” Davidson , 337 F.3d at 1191 (quotation omitted). Mr. Bartee produced sufficient evidence at trial fo r the jury to conclude that neither of these conditions are “essential fun ctions or prerequisites” of the planning position. Plaintiff’s Exhibit 36 includes Michelin’s position description for the planning job. It lists the eight “major re sponsibilities of the [planning]-15-

position.” Neither extensive walking nor twelve-ho ur shifts appear in these primary requirements. In fact, Dr. Troop, Mr. Bart ee’s treating physician, having already stated that Mr. Bartee could not fulfill a position requiring twelve-hour days and extensive walking, testified that he consi ders Mr. Bartee qualified to perform all of the tasks required for the planning position. 7Thus, sufficient evidence existed for the jury to find that the duration of planning shifts and the amount of walking required are not “essential funct ions or prerequisites” of the planning position. As non-essential functions, the ADA required Michel in to reasonably accommodate Mr. Bartee regarding the use of a cart and the length of the workday. Benson v. Northwest Airlines, Inc. , 62 F.3d 1108, 1112-13 (8th Cir. 1995) (citing 42 U.S.C. § 12111(9)(B)). Mr. Bartee presented evidence showing that he could have performed the movements requiredfor the planning job if equipped with an average sized golf cart. Mr. Hill , the area personnel manager, testified that an employee could get almost anywher e in the Michelin plant by cart, although leaving the cart for short walks wou ld be necessary to inspect equipment and interact with certain employees. Oth er Michelin employees testified that average-sized golf carts maneuvered and otherwise operated effectively throughout the plant. Dr. Troop stated that Mr. Bartee was physically capable of performing labor that consisted of sitti ng in a properly-sized cart with-16-

intermittent standing and walking. In addition, Mr . Bartee testified that he could work effectively with a cart so long as it containe d sufficient leg room to relieve the pressure on his hips and allow him to operate the foot controls. The evidence also shows that Mr. Bartee could have worked an eight-hour day. According to Mr. Bartee and Dr. Troop’s testi mony, Mr. Bartee could work for at least eight hours per day if the job consist ed primarily of sitting with occasional movement. Michelin further supported th is conclusion by finding him sufficiently qualified to offer him the planning po sition after reading his May 1999 letter and medical report. Interpreting this evidence in the light most favorable to Mr. Bartee, we find that sufficient ev idence existed for the jury to reasonably determine that Mr. Bartee was a qualifie d individual with a disability with respect to the planning position.
V. SUFFICIENT EVIDENCE OF FAILURE TO ACCOMMODATE A. Standard of Review Michelin also challenges the jury’s finding that itfailed to reasonably accommodate Mr. Bartee. Michelin raised this issue in its motion for judgment as a matter of law. Thus, we review the District Court’s order de novo, applying the same standard as the court below. Roberts , 183 F.3d at 1219. B. Merits Michelin had a duty under the ADA to allow Mr. Bart ee to work in the-17-

planning department if, through reasonable accommod ations, he could fulfill the essential functions of the position. 42 U.S.C. § 1 2112(b)(5). To facilitate the reasonable accommodation, “[t]he federal regulation s implementing the ADA envision an interactive process that requires parti cipation by both parties.” Templeton v. Neodata Servs., Inc. , 162 F.3d 617, 619 (10th Cir. 1998) (quotation omitted); see also 29 C.F.R. § 1630.2(o)(3). “[T]he interactive process must ordinarily begin wi th the employee providing notice to the employer of the employee’s disability and any resulting limitations, and expressing a desire for reassignme nt if no reasonable accommodation is possible in the employee’s existin g job.” Midland Brake , 180 F.3d at 1171-72 (footnote omitted). After such not ice—which the record illustrates occurred here through Mr. Bartee’s May 3, 1999, letter—“both parties have an obligation to proceed in a reasonably inter active manner to determine whether the employee would be qualified, with or wi thout reasonable accommodations, for another job within the company . . . .” Id. at 1172. While “[t]he exact shape of this interactive dialog ue will necessarily vary from situation to situation and no rules of univers al application can be articulated[,]” id. at 1173, “[t]he interactive process [necessarily] includes good-faith communications between the employer and employee[,]” id . at 1172. As such, after receiving notice from Mr. Bartee, Mi chelin had a duty to engage11 At trial, Mr. Warner stated that he asked Mr. Barte e about his restrictions,

although Mr. Bartee claimed otherwise. Mr. Warner did admit, however, that he made no inquiry into reasonable accommodations thatMichelin could make for Mr. Bartee. -18- with him in a good faith effort to “identify the pr ecise limitations resulting from the disability and potential reasonable accommodati ons that could overcome those limitations.” Id. at 1171. Mr. Bartee produced evidence at trial showing that Michelin failed to participate in such an interactive process. Readin g the evidence in the light most favorable to Mr. Bartee, Michelin did not inquire a bout his restrictions or about the accommodations that he needed to perform the pl anning position. 11 Instead, Mr. Warner, Mr. Bartee’s former area personnel mana ger, offered the planning job to Mr. Bartee without assessing any of its requ irements. Michelin did not offer any position modifications to Mr. Bartee nor did it provide any evidence showing that shortening this position’s work day to eight hours or acquiring a larger cart would disrupt essential functions of th e job. In fact, the record does not indicate any accommodations offered to Mr. Bart ee by Michelin other than the three-wheeled cart, which Mr. Bartee had already st ated was too small for his use. The record, then, provides sufficient grounds for the jury to conclude that Michelin failed to reasonably accommodate Mr. Barte e. Thus, we affirm the12 Michelin also claims in its cross-appeal that the District Court erred in

excluding from trial Mr. Bartee’s medical records and other information regarding his health after June 3, 1999. Michelin asks us to reverse this ruling only “if this Court affirms the district court’s denial of Michel in’s motions for judgment as a matter of law, and if this Court grants Bartee a ne w trial . . . .” Because we do not grant Mr. Bartee’s motion for a new trial, we n eed not address this issue. -19- District Court’s denial of Michelin’s motions for j udgement as a matter of law. 12
VI. CONCLUSION For the reasons provided above, we AFFIRM the Distr ict Court’s refusal to submit punitive damages to the jury, AFFIRM the Dis trict Court’s denial of Michelin’s motion for judgement as a matter of law, REVERSE the calculation of damages, and REMAND for further findings of fact an d a determination of equitable relief consistent with this opinion.