### 2001 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

7-5-2001 

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P r e c e de n t i al or N on-P r e c e de n t i al :

D ock e t 00-3297

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. e du/thir dc ir c uit_2001/147UNREPORTED NOT PRE CEDENTIAL

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 D. BUR SEY,

Appellants

_____________ Appeal from the United States District C ourt for the Western District of Pennsylvan ia (D.C. Civ. No. 92-1461) District Judge: Honorable Gary L. Lancas ter

_____________ Argued October 26, 2000 Before: MANSMANN, ALITO, and FUENTES, Circuit Judges.

_____________

ORDER AMENDING OPINION

_____________ The opinion filed on May 30, 2001 is amen ded as follows: Page 18, line 2 delete the word "effect ively"; Page 18, insert the following paragraphs before the paragraph beginning "Rather than reversing . . . . The majority seeks to just ify its departure from

our established standard of review, and its c onsequent substitution of its discretion for that of the trial j udge, by invoking two purported exceptions: First, the majority asserts that no deference is due "where a trial court fai ls to explain its grounds for exercising discretion, and it s reasons for doing so are not otherwise apparent from the recor d". Supra at 7 n.4. However, the District Court's reasons for limiting the second trial to damages are made abundantly clea r in its opinion: As the Court explained, "a new trial is appr opriate on the issue of damages because the court failed to prope rly instruct the jury on damages" (by, inter alia, giving an un warranted nominal damages instruction), and because the res ulting nominaldamages award was against the weight of t he evidence.

Implicit in the Court's recital of errors in the damages instructions and award was its recognitio n that there was no error in the liability instructions or ve rdict. Ordinarily, the presence of error limited to a single iss ue should be considered reason enough to limit retrial to that issue. Although the majority may consider the st ated reasons insufficient, it cannot fairly be said th at the trial Court "articulated no rationale". Second, the majority asser ts that the District Court's grant of a partial retrial "turns on the application of a legal precept to the evidence". Supra at 7 n.4 . The majority does not identify what "legal precept" it deem s controlling. The due process and fairness concerns set for th in Gasoline Products clearly speaks to discretion, an d we (and other courts) have always considered its applic ation to be an exercise of discretion, rather than a leg al determination. The majority's cryptic invocation of the "leg al precept" exception, without identifying a controlling questio n of law, threatens to eviscerate the abuse of discretion standa rd: potentially, every exercise of discretion may be subjected t o plenary review at the whim of the reviewing court by pointi ng out that some "legal precept" is somehow involved. By substituting its judgment for that of the District Court ( in which the discretion is intended to be reposed) on the basis o f such ill-considered, amorphous exceptions, the majority has fu ndamentally altered our standard of review, effectively overr uling sub silentio our decisions in Vizzini and Stanton.

Page 19, line 2 delete "finding an abus e of discretion by" and substitute "overriding"

Page 19, line 3 after Court add "'s dis cretion"

IT IS HEREBY ORDERED

/s/ Carol Los Mansmann Circuit J udge

Dated: June 5, 2001