Here, the district court looked to the facts of the case, including the nature of the wrong, the two jury awards, the behavior of Phillips' witnesses, the ratio of punitive to actual damages, and Phillips' net worth, and determined that the awards did not violate due process. 779 F.Supp. at 997-98. According to Justices Scalia and Thomas' opinion, due process was satisfied by the simple fact that the district court reviewed the award. See TXO, --- U.S. at ----, 113 S.Ct. at 2727. The district court's review also satisfies the plurality and Justice Kennedy's approach, because the district court focused on the particular facts of the case and identified the reasons the jury might have awarded such an amount. See id. at ----, 113 S.Ct. at 2720-23, 2725-26. In fact, the dissenters (Justices O'Connor, White, and Souter) criticized the trial court's ruling in TXO because the trial judge made no findings and did not articulate any reason for concluding that the "amount of damages bore a reasonable or recognizable relationship to actual damages or any other relevant measure." Id. at ----, 113 S.Ct. at 2740. The West Virginia trial court's deficiency, however, stands in stark contrast to the district judge's thorough analysis of the award in this case. Here, the district court carefully articulated the reasons for its affirmance. TXO, therefore, hurts rather than helps Phillips' position.

Phillips asserts that Haslip also dealt with jury instructions and asks us to review the punitive damage instruction given in this case. In Robertson II, we held that the instruction given was comparable to that approved in Haslip, and that Phillips had waived any defect by failing to offer a more detailed instruction or bring to the court's attention the need for the jury to consider the nature and degree of the wrong--the only Haslip factor that was not part of the instruction. Robertson II, 930 F.2d at 1347.9 Phillips invites us to reconsider its argument in light of another panel's later decision in Union National Bank v. Mosbacher, 933 F.2d 1440 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 870, 116 L.Ed.2d 775 (1992). We should not use Mosbacher's failure to apply stare decisis principles to reach a contrary result on the instruction and record before us in this case. See also Benny M. Estes & Assocs. v. Time Ins. Co., 980 F.2d 1228, 1234-35 (8th Cir.1992) (approving the same Arkansas instruction as that given in this case). We decline the invitation to revisit this issue.10

Phillips also argues that allowing a jury to consider a defendant's financial worth in determining whether to award punitive damages is constitutionally infirm. Insofar as this issue may be separated from the question of the propriety of the jury instruction, Haslip does not prohibit such consideration. Although Alabama juries do not consider financial worth when awarding punitive damages, the plurality in TXO recognized that many other states do allow such consideration.11 --- U.S. at ----, 113 S.Ct. at 2723. Moreover, the plurality, Justice Kennedy, and the dissenters agreed that financial worth is a factor that may properly be considered. The plurality noted that "in Haslip we referred to the 'financial position' of the defendant as one factor that could be taken into account in assessing punitive damages." TXO, --- U.S. at ----, 113 S.Ct. at 2723. Justice Kennedy also looked to the arguments made by plaintiff's attorney regarding "TXO's vast financial resources" to support his conclusion that the facts supported the jury's award. Id. at ----, 113 S.Ct. at 2726. Finally, Justice O'Connor stated that consideration of a defendant's wealth is not unconstitutional, recognizing that wealth has historically been considered relevant in assessing punitive damages, and that "Haslip itself suggests that the defendant's wealth is a permissible consideration, although it does so only in the context of appellate review." Id. --- U.S. at ----, 113 S.Ct. at 2737-38 (citations omitted). TXO is a complete answer to Phillips' argument on financial worth.

Phillips also questions whether malice supports an award of punitive damages and was properly submitted in this case. In Robertson I, we recognized that the jury had been required to find that Phillips intentionally pursued a course of conduct for the purpose of causing harm in an instruction based on the standard for malice established by the Arkansas Supreme Court. 871 F.2d at 1375. The jury in the first trial made such a finding with respect to the tortious interference claim. Id. at 1372-73, 1376; Robertson II, 930 F.2d at 1344-45. The jury in the second trial was instructed that the jury had made this finding in the first trial. 930 F.2d at 1344 n. 1, 1345. The court also instructed the second jury that under the fraud theory Robertson had the burden of proving that Phillips intentionally pursued a course of conduct for the purpose of causing injury or damage.12 This forthright submission of the issue of malice is a complete answer to Phillips' argument that malice is a flexible issue under Arkansas law.

Although Phillips articulates other reasons in support of its claim that the punitive damage awards are unconstitutional and legally improper, what we have said above adequately disposes of all such arguments.

Phillips next argues that the two $4,000,000 punitive damage awards are duplicative and, therefore, constitutionally excessive. The basic assumption of Phillips' argument is that, although Robertson premised its claims on two separate liability theories, it suffered but a single "inseparable" injury--the loss of the Spe-Dee Mart account--giving rise to punitive damages. The arguments now advanced by Phillips are substantially different from and are fatally undercut by the prior positions it has taken in Robertson I and Robertson II.

Arkansas, as well as most jurisdictions, follows the rule that an award of compensatory damages must exist before a jury can award punitive damages. Lake v. Lake, 262 Ark. 852, 562 S.W.2d 68, 69 (1978). Phillips argues that there is no compensatory award to support the punitive damages for fraud.

We recognized in Robertson I that there was only one basis for actual damages underlying all of the liability theories. 871 F.2d at 1376. We stated: "The district court correctly analyzed that all of the liability theories rested upon only one basis for actual damages, the loss of the Spe-Dee Mart account.... We have no quarrel with this analysis." Id. We later explained: "the same injury sustained all theories." Id. We affirmed the award of $750,000 in actual damages but reversed the $5,000,000 punitive damage award and instructed the district court that it should inform the jury on retrial as to the relationship between the actual and punitive damage considerations. Id.

In the second trial, the district court informed the jury that compensatory damages had been awarded and were not to be questioned. 930 F.2d at 1344. Further, the court told the second jury that an appeal had determined that the second jury should decide whether Phillips had defrauded Robertson and, if so, whether Robertson was entitled to punitive damages for fraud. The court instructed that the jury should then decide the amount, if any, Robertson should receive as punitive damages for the intentional interference with contract found by the first jury. The court specifically told the second jury, both at the beginning of voir dire and again before opening statements were made, that:In June of 1986, plaintiff sued defendant claiming to have lost one of its best customers, namely Spe-Dee Mart, because of defendant's wrongful conduct. In October of 1987, a jury found that defendant had intentionally interfered with plaintiff's contract with Spe-Dee Mart and returned a verdict in plaintiff's favor in the amount of $750,000.00. This amount was meant to compensate plaintiff for the damages he suffered on account of the loss of the Spe-Dee Mart account. For purposes of this trial you should not question the $750,000.00 compensatory award at any time....

After an appeal of this earlier trial to a higher court, it has now been determined that plaintiff is entitled to have a jury decide the amount, if any, of punitive damages to which it is entitled for intentional interference, to decide whether defendant defrauded plaintiff, and, if so, to decide whether plaintiff is entitled to punitive damages for fraud.

For purposes of this trial, you should not question these findings but must accept them as true.

Finally, pursuant to our instructions, the court instructed the second jury that the first jury had found the several elements of intentional interference with contract, including "that Robertson Oil Company was damaged in the amount of $750,000." The court in its instructions continued:

This amount has already been awarded to Robertson Oil Company for its compensatory damages. You should not, therefore, make any award to compensate Robertson Oil Company for its loss of the Spe-Dee Mart account on either the allegation of fraud or the allegation of intentional interference with contract.

Instruction No. 15.

Thus, the district court made clear to the jury in the second trial that the first jury's award of compensatory damage was the basis for any punitive awards for both intentional interference with contract and fraud.

In the second as well as the third appeal to this court, both of which followed the second trial, Phillips made extended arguments with respect to the propriety of the instructions given concerning the first trial, and the propriety of the separate $4,000,000 punitive damages awards. See Robertson II, 930 F.2d at 1344-47. Phillips, however, never argued that there was not an award of compensatory damages underlying the award of punitive damages for fraud. Of greater significance is that after the dissent in Robertson III objecting to the punitive damage award for fraud on the ground that there was no supporting award of compensatory damages for fraud, Phillips did not argue the dissent's position in either its motion for rehearing en banc or in its supplemental briefing to the en banc court.

It is clear that the first jury's determination of $750,000 in compensatory damages is now supported by the first jury's finding of intentional interference and the second jury's finding of actionable fraud.

We now turn to Phillips' argument that the two $4,000,000 punitive damage awards are duplicative.

In Robertson I, we first stated that "all of the liability theories rested upon only one basis for actual damages." 871 F.2d at 1376. We then looked to Arkansas Supreme Court decisions holding that an assessment of punitive damages involves consideration of: the nature, extent, and enormity of the wrong; the intent of the party committing the wrong; and the general circumstances of the particular transaction involved, including any mitigating circumstances, and the financial and social condition and standing of the parties. Id. at 1375-76. We recognized that the amount of actual damages is one indication of the "culpability of the defendant." Id. at 1376 (quoting Ray Dodge, 479 S.W.2d at 523-24). We concluded:

The conduct of Phillips relevant to an award of punitive damages necessarily differs according to the various theories of liability on which the jury based its verdict.

. . . . .

As we have explained above, the conduct of a defendant determines the amount of punitive damages. The tortious interference with a business relationship, fraud, and good faith and fair dealing theories, all intentional torts which support the punitive damage award, each involve different conduct. Each of these theories therefore would support a different amount of punitive damages, depending upon the conduct involved.

Id.

This holding is the law of the case.13 Further, the holding was the basis for instructions on damages given in the second trial, and is the foundation upon which we must consider Phillips' argument as to whether the two punitive awards were duplicative.

At the second trial, the court instructed the jury that an earlier jury had found that Phillips tortiously interfered with a contractual relationship and authorized the jury to award punitive damages on this theory. The court defined the elements of fraud to the jury, and instructed the jury that it could award punitive damages on the fraud theory. The court submitted special interrogatories to the jury, and the jury awarded $4,000,000 as punitive damages on each of the theories.

Considering the awards under principles of Arkansas law we have recited above, the actual damages are identical under each of the theories submitted to the jury. Similarly, the financial and social condition and the standing of the parties are identical with respect to both punitive damage awards.

On the other hand, the nature, extent, and enormity of the wrong, the intent of the party committing it, and the general circumstances attending the particular transaction involved, differ with respect to each of the two punitive awards. These differences are evidenced by the specific jury instructions on the tortious interference with contract14 and fraud claims.15 The enumeration of the elements of the two claims in the instructions made abundantly clear to the jury the differing nature of the wrongs.

With respect to Robertson's claim for punitive damages, the court instructed the jury that it must find that Phillips "intentionally pursued a course of conduct for the purpose of causing injury or damage." The court also instructed that the purpose of punitive damages was "to punish a wrongdoer and to deter others from similar conduct." These aspects of the punitive damage instruction relate directly to the nature, extent, and enormity of the wrong and the intent of the party committing the wrong. It is evident that the jury's deliberations were directed to two different torts and two different types of conduct, each of which supports an award of punitive damages.

There is one further element in the equation. In the first appeal, Phillips argued against the single punitive damage award returned in the first trial, taking the position that there were in fact two separate injuries. Phillips' reply brief in Robertson I argues that there are two bases for punitive damages:

The punitive damages award herein is in the form of a general or "global" verdict. It is impossible to apportion the award among the various theories of liability found by the jury, because none of the liability interrogatories refer to punitive damages, but only to "damages" in general, and neither of the punitive damages interrogatories are (sic) tied to specific torts. (emphasis supplied)

Punitive damages are not intended to compensate an injured party, but to punish and deter conduct of the offending party. Therefore, the existence and size of an award of punitive damages depends upon the conduct of the defendant, not upon the loss to the plaintiff. The loss to Robertson Oil reflected in the compensatory damages interrogatory has no bearing on the punitive damages award.

Phillips' argument continues and makes specific the two differing timeframes of the conduct that might support punitive damages:

Phillips' relevant conduct differs according to the various theories of liability affirmatively answered by the jury. The key conduct on the tortious interference count allegedly occurred during the meeting between the Phillips representatives and Spe-Dee Mart. However, Phillips' relevant conduct on the fraud, negligence and bad faith counts occurred prior to that time, i.e., in the period up to the October, 1984 meeting between Phillips and Robertson Oil. Yet the jury was permitted to assess punitive damages on every action of Phillips from May through October, 1984, i.e., on all conduct of Phillips which supported all of the elements of all of the causes of action represented by interrogatories Nos. 2-5.

To accept Phillips' argument that both punitive damage awards spring from but one injury requires that we reach a conclusion totally at odds with that embraced by Phillips in the first appeal, a conclusion which led to our holding that separate elements are to be considered in awarding punitive damages, depending upon the nature of the tort involved. Robertson I, 871 F.2d at 1376. Although we affirmed only a single award of actual damages in Robertson I, we held that the wrongs giving rise to punitive damages involved different conduct and each would support a different amount of punitive damages. In a sense, as Robertson argues, Phillips got what it asked for in the second trial, namely, separate consideration of the punitive damage issue with respect to each specific tort and a separate award by the jury. Phillips is bound in this litigation by the position it took in the first appeal, and its argument that there are duplicative punitive damage awards is most effectively answered by the arguments it asserted in the first appeal. Under these circumstances, we do not believe that the common factors in the two punitive damage awards--namely the amount of actual damages for the single injury and Phillips' net worth--are sufficient to justify a different conclusion.

The jury instructions and the jurors' answers to the interrogatories show that the jury based its punitive damage awards on two separate patterns of conduct.16 Phillips also has divided the conduct subject to punitive damages into two distinct timeframes, the day of the meeting, and the five-month period leading up to that meeting, a division which is consistent with our discussion in Robertson I. 871 F.2d at 1369-71.

Here, although there was a single compensatory injury (the loss of the account), there were two separate wrongful courses of conduct supporting the punitive damage awards involving different timeframes.

The record is silent as to whether Phillips requested a cautionary or limiting instruction to guard against the jury considering overlapping conduct on each of the two punitive damage claims. It should have been evident that by submitting two specific claims for punitive damages on two different theories the potential existed for this to occur. Further, we do not know whether Phillips raised the question of duplication before the district court. Certainly, it was not discussed in the district court order, and such an argument was not pressed in the second appeal of this case. See Robertson II, 930 F.2d at 1342.

We conclude that the punitive damage awards are not duplicative. Each of the jury awards was approximately five and one-third times the actual damage award. The two together are approximately eleven times the actual damage award. On the record before us, we do not believe that such an amount is sufficient to shock the judicial conscience or to demonstrate that the jury was motivated by passion and prejudice. As the district court observed, strong issues of credibility arose in the trial of the case. The district court specifically commented that a reasonable factfinder could have thought Phillips' principal witnesses were deliberately evasive and that they had guilty minds. Under such circumstances, we should not disturb the jury verdict, and we do not believe that Haslip, 499 U.S. 1, 111 S.Ct. 1032, or TXO, --- U.S. ----, 113 S.Ct. 2711, or due process principles require us to do so.

We affirm the judgment of punitive damages for fraud in the amount of four million dollars, and for intentional interference with contract in the amount of four million dollars.

BEAM, Circuit Judge, dissenting, with whom BOWMAN and LOKEN, Circuit Judges, join, and with whom MAGILL, Circuit Judge, joins as to Parts II C and D.

After considering this case four times, this court now affirms two separate $4,000,000 punitive damage awards arising from a single compensable injury. I dissent.

Without serious contradiction from any party or any judge involved in this case, the single compensable event in this dispute was the purported loss by Robertson of its Spe-Dee Mart account. And, at the first trial in this matter, the co-owner of Spe-Dee Mart testified that within two months after the activities at issue in this litigation, Robertson would have lost the account anyway because of Spe-Dee Mart's acceptance of a direct petroleum jobbership (the same status held by Robertson) offered by Unocal, one of Phillips' competitors. In fact, Spe-Dee Mart had been searching for such an arrangement since 1971. Trial I Transcript, Vol. 2 at 31.1 So, for a two-month period of lost "branding,"2 the jury compensated Robertson with a $750,000 actual damages award, an amount affirmed by a panel of this court. Robertson Oil Co. v. Phillips Petroleum Co., 871 F.2d 1368 (8th Cir.1989) (Robertson I ). This court now endorses an additional $8,000,000 in punitive damages for Robertson. It is no wonder that the Supreme Court recently voiced its concern "about punitive damages that 'run wild.' " Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 18, 111 S.Ct. 1032, 1043, 113 L.Ed.2d 1 (1991).

Before addressing the substantive issues, I consider two procedural matters. They present separate but interrelated concerns.

This court states that "the case is now before us again [en banc], and the only issue is the propriety of the district court's review of the punitive damage awards under Arkansas law and Haslip." Supra at 376. I disagree. The court also mentions that rehearing en banc was denied in both Robertson I and II. Supra at 375. Since we now consider the case en banc, this latter point is immaterial. However, both of these statements merit discussion.

The court apparently makes its "only issue" statement in reliance on decisions made by panels of this court in earlier appeals which it labels Robertson I, Robertson II and Robertson III.3 Supra at 375. (I will also use these designations.) This approach is based upon a "law of the case" argument. See supra at 382-83 and n. 13. That is, all issues that were decided in Robertson I and Robertson II are not now susceptible to consideration by the court en banc since we rejected en banc review after Robertson I and Robertson II.

In the usual course of events, when a suggestion for rehearing en banc is granted, the panel opinion is vacated. Without citing authority, the court assumes that only the last panel opinion in this case is vacated and only that panel's holding is before the en banc court for review. While this may be the proper analysis for a matter of continuing concern in the district court like, for instance, a school desegregation case, such a course does not follow when we deal en banc with a case that has presented the same set of facts and the same issues and disputes in each of three appeals. We are dealing here with issues that were not satisfactorily resolved in the earlier appeals and which impact the present appeal.

The latest order involved in this en banc appeal is the Robertson III affirmance of $750,000 in compensatory damages and dual awards of punitive damages. The procedural history of this case is complex. In Robertson I, the panel remanded for a partial new trial. Phillips appealed from the retrial. This resulted in the Robertson II opinion in which the panel ordered a Haslip analysis of the $8,000,000 (dual $4,000,000) punitive award. When the case returned to this court after the Haslip review, as Robertson III, far more than a dispute over the Haslip analysis remained in the case. The dual awards issue clearly remains and this, of necessity, encompasses the retrial procedure through which the awards came about. This is shown by the suggestions for rehearing en banc from which our en banc consideration emerges. Phillips raised the following questions:

1. Whether a defendant may be subjected to two separate punitive damage awards in the same case based on two different theories of tort liability that are predicated on the same core act of the defendant and where the defendant's conduct has resulted in a single injury to the plaintiff and a single compensatory damage award.

2. Whether the Arkansas process by which punitive damages are imposed, assessed and reviewed is invalid under the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution because that process permits juries to punish defendants based on their wealth and does not contain sufficiently definite or constitutionally meaningful standards.

3. Whether the excessive, duplicative and disproportionate nature of the two $4,000,000 punitive damage awards violated Phillips' constitutional due process rights.

4. Whether federal courts in diversity cases must apply federal, rather than state, excessiveness standards and are precluded by the Seventh Amendment from engaging in the kind of rigorous judicial review of punitive damage verdicts contemplated by Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1, 18-24, 111 S.Ct. 1032, 1044-46, 113 L.Ed.2d 1 (1991), and therefore must instead fashion particularly detailed and objective punitive damage jury instructions to comport with due process.

Petition for Rehearing and Suggestion for Rehearing En Banc (Robertson III ) at ii-iii.

There can be little question that our grant of rehearing en banc must vacate those parts of all previous panel opinions which deal with the matters raised by Phillips in its suggestion for en banc review. That would include, at least, portions of the panel opinions in Robertson II and in Robertson III.

In any event, whatever was specifically vacated by our grant of en banc consideration, "sitting en banc, we may overrule any panel decision that a majority of the active judges believes [was] wrongly decided, unless a party would be seriously prejudiced as a result." Van Gemert v. Boeing Co., 590 F.2d 433, 437 n. 9 (2d Cir.1978). The doctrine of law of the case is properly applied only to the district court and to other panels of the court of appeals. Id. It cannot be used to immunize a decision from review by the court en banc. Id.; see also Watkins v. United States Army, 875 F.2d 699, 704-05 n. 8 (9th Cir.1989) (law of the case doctrine does not prevent the court which rehears a second appeal en banc from overruling the decision of the panel that decided the first appeal), cert. denied, 498 U.S. 957, 111 S.Ct. 384, 112 L.Ed.2d 395 (1990); Shimman v. International Union of Operating Eng'rs, Local 18, 744 F.2d 1226, 1229 n. 3 (6th Cir.1984) (law of the case doctrine does not impair the power of an en banc court to overrule any panel decision), cert. denied, 469 U.S. 1215, 105 S.Ct. 1191, 84 L.Ed.2d 337 (1985); Lincoln Nat'l Life Ins. Co. v. Roosth, 306 F.2d 110, 114 (5th Cir.1962) (on a second appeal, the court en banc has the power to reexamine any prior panel decision), cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963).

Similarly, the en banc court has the power to overrule panel decisions in cases other than those before the court for en banc review. See, e.g., United States v. Wise, 976 F.2d 393, 401 (8th Cir.1992) (en banc) (overruling panel holdings in United States v. Fortier, 911 F.2d 100 (8th Cir.1990) and United States v. Streeter, 907 F.2d 781 (8th Cir.1990)); United States v. McKines, 933 F.2d 1412, 1426 (8th Cir.) (en banc) ("insofar as our earlier [panel opinions] may be to the contrary, they should not be followed"), cert. denied, --- U.S. ----, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991). If this were not so, any prior panel decision would be locked in stone and could not be modified by an en banc court. I find no case in this or any other circuit that has adopted that position. Such a posture is particularly untenable in a case like this where we deal with one core of operative facts and one compensatory injury.

This circuit has not held to the contrary in circumstances comparable to these. In Liddell v. Missouri, 731 F.2d 1294 (8th Cir.) (en banc), cert. denied sub. nom., Leggett v. Liddell, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984), the St. Louis school desegregation case, this court invoked the law of the case doctrine in dealing with previously decided questions on interdistrict student transfers. Liddell, 731 F.2d at 1304. However, the principal prior decision on the transfers at issue, Adams v. United States, 620 F.2d 1277 (8th Cir.) (en banc), cert. denied, 449 U.S. 826, 101 S.Ct. 88, 66 L.Ed.2d 29 (1980), was an en banc decision. Liddell, 731 F.2d at 1302. Even so, in Liddell, the author of the court's present opinion, who also authored the opinions in all three Robertson panel appeals, stated:

The Court declares that we are bound by our previous holdings as to interdistrict transfers. The law of the case doctrine, however, applies with less force to prior decisions of a panel. Van Gemert v. Boeing Co., 590 F.2d 433, 436-37 n. 9 (2d Cir.1978); aff'd, 444 U.S. 472, 100 S.Ct. 745, 62 L.Ed.2d 676 (1980); 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 4478 at 796-97. Resting as it does on the precarious comparison with Hills [v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792], even if the issue were firmly established by Liddell V, [Liddell v. Bd. of Educ., 677 F.2d 626] the Court en banc should attempt to decide the case correctly rather than consistently. See Robbins, et al. v. Prosser's Moving & Storage Co., 700 F.2d 433, 438 (8th Cir.1983); United States v. Unger, 700 F.2d 445, 450 n. 10 (8th Cir.1983); Wrist-Rocket Manufacturing Co. v. Saunders Archery Co., 578 F.2d 727, 730 (8th Cir.1978).4

Liddell, 731 F.2d at 1331 (Judge John R. Gibson, dissenting in part).

This statement reflects the correct policy to be followed in this and every other case. Outside of the context of a school desegregation (or similar) case in which the district court maintains continuing jurisdiction and day-to-day supervision over evolving adverse issues, Judge Gibson's statement in Liddell is (or should be) the law of this circuit. Sitting en banc, we should, indeed, attempt to decide a case "correctly rather than consistently."

The fact that we denied en banc review of the panel opinions in Robertson I and Robertson II does not insulate them, if they were wrongly decided, from reversal now. The court's statement concerning en banc review reflects, as earlier indicated, immaterial acts insofar as this en banc proceeding is concerned. Denial of a petition for en banc review has no precedential value and does not establish law of the case. Luckey v. Miller, 929 F.2d 618, 622 (11th Cir.1991).

There are numerous reasons for voting to deny rehearing en banc other than agreement with a panel opinion. This is especially true when, as in this matter, the case is being remanded for further activity in the district court. Federal Rule of Appellate Procedure 35 and Eighth Circuit Rule 35A disfavor and discourage en banc consideration and limit such occurrences to cases that present issues of grave constitutional dimension or exceptional public importance. Matters which come to the federal courts under diversity jurisdiction, as here, usually fit neither of these molds.

I now turn to the matter of deciding the case correctly. This involves four points, only three of which ultimately affect the outcome of this litigation.

At the first trial, the district court instructed the jury as follows:

In addition to compensatory damages for any actual loss that Robertson Oil Company may have sustained, it asks for punitive damages from Phillips. Punitive damages may be imposed to punish a wrongdoer and to deter others from similar conduct. In order to recover punitive damages from Phillips, Robertson Oil Company has the burden of proving that Phillips intentionally pursued a course of conduct for the purpose of causing damage. You are not required to assess punitive damages against Phillips Petroleum Company, but you may do so if justified by the evidence.

Trial I Transcript, Vol. 5 at 82-83 (emphasis added).

In addition to compensatory damages for the actual loss that Robertson Oil sustained and has already recovered, it asks for punitive damages from Phillips for both intentional interference with contract and fraud. Punitive damages may be imposed to punish a wrongdoer and to deter others from similar conduct. In order to recover punitive damages from Phillips, Robertson Oil Company has the burden of proving that Phillips intentionally pursued a course of conduct for the purpose of causing injury or damage.

Trial II Transcript, Vol. 3 at 208 (emphasis added).

At the second trial, the district court further stated with reference to recovery of punitive damages:

I instruct you that as to the claim of intentional interference with contract, Robertson Oil has met that burden. It is for you to decide whether Robertson Oil has met that burden as to the claim of fraud.

Id.

The general punitive damages instruction is patterned after the second of two alternative instructions set out in Arkansas Model Jury Instruction (AMI) 2217.5 The first instruction, not used in this case, expressly requires a finding of malice.6

The language of the Robertson (AMI) instruction raises two somewhat related inquiries. The first question is whether evidence of an intentional tort, alone, is enough to permit submission of punitive damages to the jury. The second query is whether the "intentionally pursued ... conduct for the purpose of causing damage" language adequately guides the jury in finding the elements necessary for an award of punitive damages. I believe that use of the punitive damages instruction in this case is both contrary to Arkansas law and unconstitutional under the holdings of Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) and TXO Prod. Corp. v. Alliance Resources Corp., --- U.S. ----, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993).

There is no doubt that the district court regarded evidence of any intentional tort sufficient to submit the issue of punitive damages to the jury.7 At the first trial the district court gave this instruction on intentional interference with a business expectancy:Interrogatory No. 4. Do you find from a preponderance of the evidence that Robertson Oil Company had a business relationship or expectancy with the Spe-Dee Mart stores; that Phillips Petroleum Company had knowledge of Robertson Oil's relationship or expectancy with the Spe-Dee Mart stores; that Phillips intentionally and improperly interfered with that relationship; and that Robertson Oil suffered damages which resulted from Phillips Petroleum's intentional and improper interference? You will answer that question "yes" or "no."

Trial I Transcript, Vol. 5 at 76. (Emphasis added). The jury at the first trial found that Phillips had committed this intentional tort. Id. at 143. The panel in Robertson I affirmed this finding but reversed the punitive damages award because it could not ascertain that the jury had used an intentional tort as the basis for such award. Robertson I, 871 F.2d at 1377. On retrial, the district court instructed the second jury, as indicated above, that the "claim of intentional interference with contract" found by the first jury meets the burden "of proving that Phillips intentionally pursued a course of conduct for the purpose of causing injury or damage." Trial II Transcript, Vol. 3 at 208. With this, the jury was effectively directed to consider only the amount of punitive damages arising from that intentional tort. Likewise, the second jury was told that a simple finding of fraud, another intentional tort, was sufficient for them to consider a second award of punitive damages. The punitive damages instruction contained no requirement of malice or recklessness or wantonness.8 Id. This was error.

Arkansas law does not support use of a punitive damages instruction solely upon evidence of an intentional tort. In a case involving an action for breach of contract, the Arkansas Supreme Court stated that a bare showing of intentional misuse of insurance premium payments and an untrue representation that the insurance sought had been purchased would not justify punitive damages. McClellan v. Brown, 276 Ark. 28, 632 S.W.2d 406, 407 (1982) ("we must always consider circumstances other than the wrongdoer's intention to do what he did, in order to determine whether punitive damages are appropriate"). In Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992), an action for bad faith in settling an insurance claim, the Supreme Court of Arkansas approved a punitive damages instruction that required a finding that the defendant "engaged in affirmative misconduct which was dishonest, malicious, or oppressive." Id. 836 S.W.2d at 379. The approved instruction also states that "[a]ctual malice is that state of mind in which a person's conduct is characterized by hatred, ill will, or a spirit of revenge, actual malice need not be proved but may be inferred from conduct and surrounding circumstances." Id. Thus, Viking Insurance, a post-Haslip decision, clearly undermines the validity of the punitive damages instruction given in this case.

The only Arkansas case that even arguably stands for the proposition that evidence of an intentional tort is sufficient, by itself, to support a jury inquiry on punitive damages is Bruns v. Bruns, 290 Ark. 347, 719 S.W.2d 691 (1986). In Bruns, a spousal battery case, the Supreme Court of Arkansas stated that "[p]unitive damages are recoverable when there is an intentional violation of another individual's rights." Id. 719 S.W.2d at 694. However, the Arkansas Supreme Court also expressly noted the existence of proof, as a matter of law, that Bruns was guilty of intent, willfulness, wantonness or conscious indifference from which malice could be inferred. Id. In its present opinion, the court relies heavily on Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). Supra at 377-78. However, that case also supports the proposition that malice is required for imposition of punitive damages in Arkansas. In Ray Dodge, the Arkansas Supreme Court stated, "[i]f, then, there was evidence tending to show that appellant intentionally performed a deliberate act with the intention of misleading a prospective purchaser about a material matter to his injury, it was proper to permit the jury to consider the award of exemplary or punitive damages." Id. 479 S.W.2d at 522. The Arkansas Supreme Court noted, however, that "there was sufficient evidence to support a finding of legal malice." Id. at 523.

In any event, it is clear from these Arkansas cases that evidence of or the bare finding of an intentional tort is not sufficient to trigger deliberations on punitive damages. Giving Robertson the benefit of every reasonable inference from the record, I find no evidence of malicious, oppressive, or outrageous conduct on the part of Phillips to support a punitive damages instruction in this case.9 At the least, if the district court were to submit the issue of punitive damages to the jury, it should have been submitted with an instruction requiring a finding of malice in accord with Arkansas law.

Assuming for the sake of argument that the instruction used in this case comports with Arkansas law, the instruction violates the Constitution. In Haslip, the defendant argued that the punitive damages instruction violated the due process clause because it failed to properly guide the jury. The Supreme Court "concede[d] that unlimited jury discretion ... in the fixing of punitive damages may invite extreme results that jar one's constitutional sensibilities." Haslip, 499 U.S. at 18, 111 S.Ct. at 1043. When a case is tried to a jury, adequate guidance from the court must be a factor in the constitutional calculus. Id. Of course, this guidance must come from the instructions given by the trial judge.

The Supreme Court noted that among the factors "appropriate for the trial court's consideration [is] the culpability of the defendant's conduct." Id. at 20, 111 S.Ct. at 1044 (quotations omitted). The Supreme Court translated this factor into a requirement of specific restraint on jury discretion, requiring the jury to consider "the degree of reprehensibility of the defendant's conduct, the duration of that conduct, the defendant's awareness, any concealment, and the existence and frequency of similar past conduct" before awarding punitive damages. Id. at 21, 111 S.Ct. at 1045. The district court's instruction that the jury must find merely that Phillips "intentionally pursued a course of conduct for the purpose of causing injury or damage," falls short of the requirements set forth in Haslip. By comparison, in reviewing the fraud findings in Haslip, the Supreme Court of Alabama found that "given [the] facts, the conclusion is inescapable that the fraud was intentional, gross, oppressive and malicious." Pacific Mut. Life Ins. Co. v. Haslip, 553 So.2d 537, 540 (Ala.1989) (quotation omitted).

Thus, after Haslip, it is clear that an adequate jury instruction must, at least, require a finding of malice or something reasonably akin to it.10 The Robertson instruction did not and was unconstitutional.

In spite of the above analysis, I find that Phillips' recent claims with regard to the wording of the instruction must fail. Phillips objected to the sufficiency of the evidence for the submission of the issue of punitive damages to the jury. With this objection, I agree. However, I have fully examined the record and I find no specific objection by Phillips to the language of the instruction given by the trial court, either with respect to its failure to comport with Arkansas law or its constitutionality. While general constitutional claims were made at the conference on jury instructions, they fell short of raising the specific "guidance" issue raised in Haslip and discussed but not reached in TXO. I am convinced that a punitive damages instruction worded as set forth in the second instruction of AMI 2217 is unconstitutional. Its demise, however, must await another day when it can be considered under a properly raised objection.11

My further explanation of the reasons for reversing the judgment for punitive damages begins with an examination of our previous decisions. The panel in Robertson I could not determine the exact basis for the jury's punitive damages award. Robertson I, 871 F.2d at 1377. Since some submitted theories could not support a punitive award, a retrial was ordered. Id. That part of the decision was clearly correct. It was incorrect, however, to order a retrial on less than all of the issues. That decision disregarded applicable law and was unfair to Phillips.

In its first appeal, Phillips vigorously argued for a retrial on all issues, relying on our decision in Dudley v. Dittmer, 795 F.2d 669 (8th Cir.1986). Phillips' Brief (Robertson I ) at 42. Dittmer held that "when one of two theories has erroneously been submitted to the jury, a general verdict cannot stand." Id. at 673. The Robertson I panel correctly concluded that Dittmer was applicable to the result of the first Robertson trial. Robertson I, 871 F.2d at 1375. The panel also correctly concluded that there was "only one basis for actual damages, the loss of the Spe-Dee Mart account." Id. at 1376. It then let the tortious interference with contract verdict stand and allowed the $750,000 compensatory award to escape reconsideration on retrial. Id. at 1377.

This may have been a proper result had the nature and amount of compensatory damages not been so inextricably intertwined with both a finding of punitive damages and the proper determination of their amount. Although a federal court sitting in diversity must apply the substantive law of the forum, the Federal Rules of Civil Procedure govern procedural matters. Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938). The Federal Rules permit partial retrials but only when the issues are distinct and separable. Fed.R.Civ.P. 59(a); Gasoline Products Co. v. Champlin Ref. Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931). In this circuit, the district court must consider the law of the forum state when deciding whether to grant only a partial retrial. England v. Gulf & Western Mfg. Co., 728 F.2d 1026, 1029 (8th Cir.1984); see also Sayre v. Musicland Group, Inc., 850 F.2d 350, 353 (8th Cir.1988) ("[r]eference to state law can be helpful"). Under Arkansas law, issues of punitive and compensatory damages are generally so interwoven that an error with respect to one requires a retrial of the whole case. See Orsini v. Larry Moyer Trucking, Inc., 310 Ark. 179, 833 S.W.2d 366, 368 (1992); City Nat'l Bank v. Goodwin, 301 Ark. 182, 783 S.W.2d 335, 339 (1990); KARK-TV v. Simon, 280 Ark. 228, 656 S.W.2d 702, 705 (1983). The panel in Robertson I was rightly "troubled ... with the interplay between the considerations involved in compensatory and punitive damages." Robertson I, 871 F.2d at 1376. This concern was supported by the evidence and was sufficient to require a new trial on both issues.

As noted, since Robertson I was decided, the Supreme Court has issued two opinions on punitive damages. See Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991); TXO Prod. Corp. v. Alliance Resources Corp., --- U.S. ----, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993). These cases underscore the Robertson I panel's concern. "[I]f punitive damages [are] to be awarded, the jury must take into consideration the character and the degree of the wrong as shown by the evidence and necessity of preventing similar wrong." Haslip, 499 U.S. at 19, 111 S.Ct. at 1044 (quotation omitted). Post-trial procedures validated by Haslip include consideration of the culpability of the defendant's conduct, the impact of the conduct upon the parties, and other factors such as the impact on third parties. Id. at 20-21, 111 S.Ct. at 1044-45. The Supreme Court also said that a required determination is whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant's conduct, as well as an evaluation of the harm that actually occurred. Id. at 21, 111 S.Ct. at 1045. The Supreme Court's most recent pronouncement on punitive damages does not negate this proportionality requirement. TXO, --- U.S. at ----, 113 S.Ct. at 2721. Punitive or "exemplary damages allowed should bear some proportion to the real damage sustained." Id. The "[p]unitive damages should bear a reasonable relationship ... to the harm that actually has occurred." Id. This determination of proportionality is necessary for there to be a definite and meaningful constraint on the discretion of the factfinder, in this case, the jury. See Haslip, 499 U.S. at 21, 111 S.Ct. at 1045.

Applying these rules, it is impossible to see how the second Robertson jury could have lawfully and fairly considered the issue of punitive damages without considering the nature of the compensatory damages and the evidence on which they were based. For instance, with regard to the punitive award rendered by the second jury for tortious interference with contract, the second jury was told only that an earlier jury had found that Phillips had not acted "in its own fair interest," that Robertson was damaged in the "amount of $750,000 and they [the second jury] should not question these findings." Trial II Transcript, Vol. 3 at 207. This approach was required by our opinion in Robertson I and it was error.

Robertson's only evidence of damages at the first trial was its diminished profits from the loss of the Spe-Dee Mart account.12 At the second trial, absolutely no evidence was adduced on the nature and extent of compensatory damages. Thus, in deliberation, the jury had no information on compensatory matters except an instruction that an earlier jury, who heard several different witnesses on the issues of both liability and damages, had awarded $750,000.

This is not enough under either Haslip or Arkansas law. As the panel in Robertson II noted,

"[T]he nature, extent, and enormity of the wrong, the intent of the party committing it, and, generally, all the circumstances attending the particular transaction involved, including any mitigating circumstances which may operate to reduce without wholly defeating such damages, may be taken into consideration, and so, as a rule, may the financial and social condition and standing of the party."

Robertson II, 930 F.2d at 1346 (quoting Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96, 99 (1961)).

The second jury had no information on the nature of the lost profits or any of the circumstances attending the particular economic loss calculations. Likewise, Phillips was precluded at the second trial from offering any evidence on mitigation of economic loss. As a result, the punitive damages awards were the product of jury speculation based on an incomplete factual presentation.

The most troublesome aspect of this case is the decision to affirm a $4,000,000 punitive damages award for fraud without an underlying award for compensatory (actual) damages arising from fraudulent conduct.13 The law of Arkansas is crystal clear: "punitive damages are not recoverable unless compensatory damages not only have been suffered by the plaintiff but also have been assessed by the jury." Lake v. Lake, 262 Ark. 852, 562 S.W.2d 68, 69 (1978). There has been no valid determination by either the first or second jury that Robertson suffered compensable damages resulting from fraud. Thus, at least, the punitive award based upon fraud should be set aside.

On retrial after Robertson I, the plaintiff chose to proceed on only one theory of recovery, fraud.14 Of course, under our panel decision in Robertson I, plaintiff had already prevailed on the tortious interference theory and had obtained an award of compensatory damages. Thus, according to Robertson I, the only issue with regard to the tortious interference theory, as earlier discussed, was punitive damages.15 Because we said in Robertson I that "[e]ach of these theories ... would support a different amount of punitive damages, depending upon the conduct involved," Robertson I, 871 F.2d at 1376, the district court submitted the case to the jury on three separate interrogatories, one dealing with liability for fraud and two dealing with punitive damages, one for each liability theory. As also noted, no inquiry was made at the second trial with regard to compensatory damages for either theory. If all roads do not now lead to Rome for punitive damages purposes, and we are really dealing with two discrete intentional torts, each separate punitive award must also be supported by a separate compensatory award.16

Robertson contends that two different fact patterns support the jury's distinct findings of tortious interference with contract and fraud.17 Robertson's fraud claim was premised on misrepresentations or assurances made by Phillips during the spring and summer of 1984 that Phillips would "brand" all retail outlets of Robertson's client, Spe-Dee Mart, with the "Phillips 66" logo. Any alleged acts that factually support this claim ended, by Robertson's own account, when he was informed, on the night before the October 24, 1984, meeting, that Phillips would not brand all the Spe-Dee Mart stores.18 The essence of the tortious interference claim was that Phillips said or implied nasty things about Butch Robertson to the owners of Spe-Dee Mart at that meeting and, as a result, Spe-Dee Mart severed its connections with Robertson. No one challenges the assumption that the only compensable damage in the case arises from Robertson's loss of the Spe-Dee Mart account. Indeed, evidence as to the value of lost profits because of Robertson's loss of the Spe-Dee Mart account was the only actual damage evidence ever submitted by Robertson.

Under Arkansas law, the elements of a fraud claim are 1) a false representation of a material fact; 2) knowledge or belief on the part of the person making the representation that the representation is false; 3) an intent to induce the other party to act or refrain from acting in reliance on the misrepresentation; 4) a justifiable reliance by the other party; and 5) resulting damages. Interstate Freeway Serv., Inc. v. Houser, 310 Ark. 302, 835 S.W.2d 872, 873-74 (1992). An essential element of a fraud claim is proof of damages proximately caused by the misrepresentation. Ozark Kenworth, Inc. v. Neidecker, 283 Ark. 196, 672 S.W.2d 899, 904-05 (1984). With no proof of causal connection between the misrepresentation and the injury, a claim must fail. Id.

There is no proof of causal connection between the misrepresentation and the injury in this case.19 The fraud did not cause the loss of the Spe-Dee Mart account--the nasty things said or implied about Butch Robertson at the October meeting caused, according to Robertson, the loss of the account.

The evidence is absolutely clear that Robertson connected the loss of the Spe-Dee Mart account to the October meeting. He testified that the "deal that we had [to brand Spe-Dee Mart] was ... blown by the comments that were made at the [October] meeting with the Greenwoods that morning in their office." Trial II Transcript, Vol. 2 at 113. Stanley Greenwood stated that as a result of the meeting "I told my father we had a problem, that I perceived that Butch was history with Phillips." Id. at 182. Greenwood also stated that he perceived some problem with Robertson's finances before the October meeting. Id. at 197-98. This perception and the discussions at the October meeting, according to Greenwood, caused him to speed up his search for a jobbership. Id. at 211. The Spe-Dee account was lost as a result of Greenwood's perception, developed prior to the October meeting, that Robertson had financial problems, coupled with the further perception gained at the October meeting that Robertson "was history" with Phillips. Phillips' purported promises to Robertson that it would brand all Spe-Dee Mart stores could not, by themselves, be the legal cause of the loss.20

The proper measure of damages on the fraud claim, under Arkansas law, is Robertson's out of pocket loss.21 See, e.g., Interstate Freeway, 835 S.W.2d at 875. Evidence which might have supported Robertson's damages for fraud could have included a showing that he expended sums in anticipation of the eventual branding or that the value of some service or asset promised by Phillips was less than represented by Phillips. There is no such evidence.

Robertson did testify that because of the false representations by Phillips, he did not seek an alternative supplier who would be willing to brand Spe-Dee Mart. Trial II Transcript, Vol. 1 at 279. There was, however, no further evidence that Spe-Dee Mart, in such event, would have been willing to accept a substitute for Phillips or that Robertson could have found another satisfactory supplier. To the contrary, the evidence was that Spe-Dee Mart had been looking for its own jobbership and that it otherwise desired branding only with Phillips because of credit card volume at one Phillips outlet that Spe-Dee Mart had purchased. Trial II Transcript, Vol. 2 at 174-75. Neither was there evidence that this reliance scenario proximately caused any of Robertson's damages. There was no evidence that Robertson would have conducted himself any differently toward Spe-Dee Mart had the alleged misrepresentations made by Phillips in the spring or summer of 1984 not been made. In short, proof of causation connecting the purported misrepresentations and the lost profits from the Spe-Dee Mart account is absent.

Further, the jury in this case was not given any instruction on the measure of damages for fraud, which is different than the measure of damages arising from tortious interference.22 Jurors were told only the elements of fraud and the definition of proximate cause. A special interrogatory asked whether the actions of Phillips were the proximate cause of damage to Robertson, but the jury was never told how to measure such damages. The district court instructed the jury that Robertson had been damaged in the amount of $750,000 and that:

[t]his amount, this $750,000, has already been awarded to Robertson Oil Company for its compensatory damages. You should not, therefore, make any award to compensate Robertson Oil Company for its loss of the Spe-Dee Mart account on either the allegation of fraud or the allegation of intentional interference with contract.

Trial II Transcript, Vol. 3 at 207-08 (Emphasis added). This instruction effectively directed a verdict on the issue of causation and the measure of damages for fraud. This was error. The law and the evidence do not support such an instruction or such a finding. The acts of fraud should properly have been viewed as nonactionable "bad acts;" as evidence which is, of course, relevant to the issue of the motive or intent or state of mind of Phillips on the tortious interference claim, but which cannot and did not stand alone as a separate cause of action for fraud.

The problems in this case are illustrated by comparison to another Eighth Circuit case that correctly approved a dual award of punitive damages. In Glass Design Imports, Inc. v. Import Specialties, 867 F.2d 1139 (8th Cir.1989), we approved separate punitive awards for tortious interference and fraud. Examination of that case shows that each award was supported by a distinct and separable compensatory award and by distinct and separable culpable conduct by the defendant which caused palpable injury to plaintiff.

In that case, Glass Design, an importer, asserted claims of fraud and tortious interference with a business relationship against, among others, Rastal GmbH & Co. KG, a German corporation that manufactured specialty glass and Gene Lepere, Rastal's American agent. The parties agreed that Glass Design would be Rastal's sole American importer and retailer except for some preexisting customers serviced by Lepere. Further, Rastal and Lepere represented that Rastal's products were made in West Germany by Rastal. Glass Design soon became aware that it was not the sole Rastal distributor in the United States and that much of the glass was not made by Rastal or anyone else in West Germany.

In a separate incident, a customer (Cribbins) sought to purchase 200 beer steins which Glass Design did not have in stock. This prompted Glass Design to contact Lepere who informed Glass Design that he also had none. Later, Lepere himself sold the steins to the customer without paying a commission to Glass Design who had arranged the sale.

The district court entered judgments for Glass Design. We affirmed both punitive awards because Lepere's actions in the Cribbins deal constituted conduct "separate and apart from the fraudulent misrepresentations made to the principals of Glass Design," and because both compensatory awards could independently support punitive damages.23 Id. at 1144-45.

Obviously, the interference with the Cribbins' expectancy, which occurred months after the date of the fraudulent misrepresentations on exclusivity and origin, was a separate act that gave rise to both separate compensatory damages and a separate punitive award. In contrast, in this case, the acts of fraud gave rise to no separate damages and thus can only be viewed as part of a continuing pattern of conduct leading to the eventual tortious interference and not as a separate actionable tort. Thus, at best for Robertson, Glass Design could only support the $4,000,000 punitive fraud award if the underlying facts had represented a separate, discrete event leading to separate, calculable compensatory damages. Such is not the case here. The punishment, if any were proper, should have been meted out for the conduct leading to the single compensatory award.24D. Duplicative Awards

Even if the dual punitive awards had been supported by valid compensatory awards, the punitive awards are nevertheless duplicative. In Holmberg v. Morrisette, we stated that "[f]raud and conversion are separate legal theories of liability, but in reality defendants have injured Holmberg only once. Accordingly, they are to be punished only once, not as many times as there are separate legal theories that have been found to fit the case." Holmberg v. Morrisette, 800 F.2d 205, 212 (8th Cir.1986) (emphasis added).25

Strangely, in this case we have two separate juries deciding liability issues, one jury hearing the evidence on and deciding the amount of compensatory damages and the other jury deciding punitive damages. The district court was correct at the first trial to submit the case, if it was submissible at all, for one determination of punitive damages arising from the entire core of facts leading to the single compensatory award. As noted in Holmberg, the number of legal theories of liability arising from one core of facts does not change the legal analysis on punitive damages.

Recognizing that this court en banc is entitled to overrule Holmberg, I have searched the reporters for cases affirming dual awards of punitive damages arising out of one core of facts, even one as wide ranging and repetitious as in Holmberg.26 I found none.27 On the other hand, there are numerous cases both in and out of this circuit which require a nonduplicative result when exemplary and punitive damages are found under a single core of facts giving rise to compensatory damages. See, e.g., Fineman v. Armstrong World Indus., Inc., 980 F.2d 171, 218 (3d Cir.1992) (requiring election of either statutory treble damages for anti-trust violations or common law punitive damages for tort claims), cert. denied, --- U.S. ----, 113 S.Ct. 1285, 122 L.Ed.2d 677 (1993); SuperTurf, Inc. v. Monsanto Co., 660 F.2d 1275, 1284 (8th Cir.1981) (treble damages for anti-trust count and punitive damages for state law count would be duplicative); Lexton-Ancira Real Estate Fund, 1972 v. Heller, 826 P.2d 819, 822 (Colo.1992) (treble damages and punitive damages awarded under misappropriation claim and deceptive trade practices claim were duplicative and both were not recoverable); Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 367 (Tex.1987) (awards of treble damages for deceptive trade practices and punitive damages under common law claim amount to prohibited double recovery); Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28, 31 (1979) (treble damages allowed under statute for damage to timber were punitive and prohibited as duplicative of punitive damages awarded for trespass).

Finally, to summarize Parts C and D, because they are somewhat interwoven, I note that if the acts supporting the fraud claim and the tortious interference claim necessarily intertwine and overlap in order to establish elements of a claim represented by Robertson's lost profits, Holmberg and every other case I have found dictate a single punitive award. If, on the other hand, the acts underlying each tort, separately support the elements of a claim flowing from each separate tort, then Arkansas law and the law of every other jurisdiction except, perhaps, Florida, preclude a punitive award for the fraud claim without a separate and distinct compensatory award based on fraud.

This represents the rule of law in effect in virtually every jurisdiction. It is also the only fair approach to the issue. Accordingly, the $4,000,000 punitive damages award for fraud returned by the second jury was error and should be set aside.

As noted earlier, at the end of Robertson's case in the first trial, Phillips made a motion for a directed verdict on Robertson's claim for punitive damages. The district court stated, in response, "I'm not inclined to think that there's been much of a case been made out for punitive damages, but I want to think about it some more." Trial I Transcript, Vol. 2 at 210. The court was correct. The record does not disclose much of a case for punitive damages.

At the end of Robertson's case in the second trial, Phillips made a motion to dismiss Robertson's fraud claim. The district court stated, "Well, I'm going to deny the motion, but it is a thinner case than the last one." Trial II Transcript, Vol. 2 at 231. This statement at the second trial must be considered in light of the fact that the first jury could not reach a verdict on whether Phillips promised Robertson that it would "brand all the Spe-Dee Mart Stores." Jury Instruction Interrogatory No. 1, Trial I Transcript, Vol. 5 at 75; Return of Verdict, Id. at 142. This was the purported promise, vigorously denied by Phillips, that Robertson claimed Phillips did not intend to keep when made in May of 1984 and at various other times during that summer. Thus, if the second trial evidence on fraud was thinner than the evidence at the first trial, the Robertson fraud theory must represent one of the thinnest fraud cases in the history of Arkansas law ever to support a substantial award of punitive damages.

Accordingly, I would reverse and remand for a new trial, or, in the alternative, reverse and dismiss the $4,000,000 punitive award based upon the intentional tort of fraud.