Full opinion text
OPINION AND ORDER DENYING DEFENDANT’S POST TRIAL MOTION THEIS, District Judge. This matter is before the court on the motion of defendant Texaco for judgment notwithstanding the verdict, or alternatively, for a new trial. After the reversal and remand by the Tenth Circuit, 862 F.2d 242, the second trial in this case commenced on September 27, 1989 and lasted through closing arguments on January 3, 1990. The jury returned a verdict for plaintiff, finding defendant 100% liable for compensatory damages totaling $9,025,000 and punitive damages in the amount of $25,000,-000. Although the facts of this case have been reported in the Tenth Circuit’s remand order and in a Kansas Supreme Court opinion upon certified question, Mason v. Gerin Corp., 231 Kan. 718, 647 P.2d 1340 (1982), the court provides a brief background here. In September, 1977 Otis Mason was diagnosed with acute myelocytic leukemia while serving in the United States Coast Guard at Yorktown, Virginia. In an attempt to ascertain the cause of Mason's leukemia, his treating and diagnosing physician learned that Mason had possibly been exposed to the chemical benzene while instructing students in the use of a motor oil test kit. Mason filed suit in 1978 against the immediate supplier of the test kit, alleging, inter alia, failure to warn of the carcinogenic danger of benzene. Otis Mason died from leukemia on December 10, 1979, and his widow Diana was substituted as plaintiff in the survival action. By two amended complaints filed in 1980, Mason added various other distributors and two manufacturers of the product, including Texaco, Inc. At this second trial, only Texaco remains as a named defendant. Defendant raises a number of factual and procedural challenges that are claimed to require a judgment notwithstanding the verdict or a new trial. It is well settled that the “district court has broad discretion in deciding whether to grant a motion for a new trial.” Patty Precision Prods. Co. v. Brown & Sharpe Mfg., 846 F.2d 1247, 1251 (10th Cir.1988); Royal College Shop v. Northern Ins. Co. of New York, 895 F.2d 670, 677 (10th Cir.1990). In reviewing a motion for judgment notwithstanding a verdict, the court applies the same standard governing directed verdicts. Hurd v. American Hoist & Derrick Co., 734 F.2d 495, 498 (10th Cir.1984). It is not the function of the court to weigh the evidence or make credibility determinations. Id. at 499. Rather, “the trial court must view the evidence most favorably to the party against whom the motion is made, and give that party the benefit of all reasonable inferences.” Id. at 498. Thus, the court may grant a JNOV motion “only if the evidence points but one way and is susceptible to no reasonable inferences which may support the opposing party’s position.” Q.E.R., Inc. v. Hickerson, 880 F.2d 1178, 1180 (10th Cir.1989). The court will first address those issues raised by defendant which, if meritorious, would entitle it to a grant of JNOV, and will then address the procedural challenges going to the propriety of a new trial. I. Causation in Fact A. Cause of Leukemia As a threshold question, the special verdict form asked the jury to determine whether Mason’s leukemia had been caused by exposure to benzene. Defendant challenges the jury’s affirmative answer on this issue, arguing that Mason’s exposures to benzene and his clinical diagnosis by the treating physicians did not support an inference of causation. The court would be able to accept defendant’s contentions only by ignoring the testimony both of Mason’s treating physicians and of the expert epidemiologists called by plaintiff. Basing their opinions largely on the dose and duration of dose of benzene to which Mason had been exposed while at Yorktown, these witnesses concluded that Mason’s leukemia had been caused by benzene. Because no clinical test can directly and conclusively establish a link between a given case of leukemia and benzene, Mason’s medical diagnosis provided only limited evidence of benzene-induced leukemia. However, Dr. Reid — the Coast Guard physician who first diagnosed Mason’s leukemia — testified that acute myelocytic leukemia is one of the most common forms of leukemia associated with benzene, and that this fact aided his swift identification of the causative agent in Mason’s case. Tr. Vol. 6, at 513. The court is unaware of any authority that would authorize it to reject out of hand the opinions of Mason’s treating physicians and of plaintiff’s experts. As a basis for rejecting the conclusions of these witnesses, defendant refers the court only to the contrary interpretation of the evidence given by defendant’s experts. The proper deference to be given the jury’s resolution of these conflicting opinions, however, was aptly stated by the court in Ferebee v. Chevron Chem. Co., 736 F.2d 1529 (D.C.Cir.), cert. denied, 469 U.S. 1062, 105 S.Ct. 545, 83 L.Ed.2d 432 (1984): Judges, both trial and appellate, have no special competence to resolve the complex and refractory causal issues raised by the attempt to link low-level exposure to toxic chemicals with human disease. On questions such as these, which stand at the frontier of current medical and epidemiological inquiry, if experts are willing to testify that such a link exists, it is for the jury to decide whether to credit such testimony. Id. at 1554; see also Wilson v. Merrell Dow Pharmaceuticals, Inc., 893 F.2d 1149, 1155 (10th Cir.1990) (jury alone has the power to weigh and assess credibility of expert testimony on causation and judges will not retry facts); Graham v. Wyeth Laboratories, 906 F.2d 1399, 1404 (10th Cir.1990); McMahon v. Eli Lilly & Co., 774 F.2d 830, 834-35 (7th Cir.1985). It must also be borne in mind that the jury’s finding, and this court’s review, is governed by a standard of legal sufficiency, rather than scientific certainty. Wells v. Ortho Pharmaceutical Corp., 788 F.2d 741, 745 (11th Cir.), cert. denied, 479 U.S. 950, 107 S.Ct. 437, 93 L.Ed.2d 386 (1986). Considering the substantial expert testimony based upon the evidence, the court finds defendant’s argument to be meritless. Defendant had ample opportunity to develop its own experts’ testimony and to test the conclusions of plaintiffs witnesses through cross examination. The jury’s finding will not be disturbed. B. Exposure to Texaco’s Benzene Defendant also challenges the jury’s finding that the benzene causing Mason’s leukemia was manufactured by Texaco. In a civil case such as this, product identification need only be proven by a preponderance of the evidence. McMahon, 774 F.2d at 834. Additionally, under Kansas law, a defendant who seeks to reduce his fault by comparing it to the fault of an absent party has the burden of proving the other party’s fault by a preponderance of the evidence. McGraw v. Sanders Co. Plumbing & Heating, 233 Kan. 766, 667 P.2d 289, syl. 117 (1983). The procedural history of this complex factual issue is relevant to the present discussion. Plaintiff originally sued two manufacturers of benzene whose products could have ultimately found their way to the Coast Guard facility at Yorktown: Texaco, Inc. and Ashland Chemical Company. After the close of the evidence in the first trial, this court determined that there was insufficient evidence to support a finding of exposure to Ashland’s benzene, and the court granted Ashland’s motion for a directed verdict. Order filed Dec. 16, 1983 (Dkt. No. 228). Accordingly, the issue of Ashland’s comparative fault was not submitted to the jury in the first trial. Although Texaco raised this issue in its appeal, the Tenth Circuit did not review this court’s decision, finding that new factual issues might be presented on retrial. 862 F.2d at 245. Before and during this second trial defendant contended that it had discovered “new” evidence upon which to submit the issue of Ashland’s comparative fault to the jury. Although more appropriately described as a new construction of old evidence, this court agreed with defendant and determined that Ashland, as well as a third manufacturer of benzene, should be considered by the jury as phantom defendants. Nonetheless, the jury rejected defendant’s arguments and found Ashland and Union Amsco — the third manufacturer — to be zero percent at fault in causing Mason’s death. With this background, the court turns to an examination of the facts relevant to defendant’s present challenge. The complex chain of distribution in this case can be summarized best by schematic representation: It is unnecessary to canvass all the evidence of invoices, purchase orders, and testimony that established the flow of benzene in this distribution scheme. Although some minor dispute’s exist regarding the source of benzene sold by the Gerin Corporation to the Coast Guard, Texaco’s argument focuses on the Coast Guard usage. Therefore, for purposes of the present motion, and viewing the evidence in a light most favorable to plaintiff, the court deems the following facts to have been established. 1. The Coast Guard at Yorktown purchased solvent for the water and sediment test kit only from the Gerin Corporation. 2. The Coast Guard purchased 6 gallons of benzene from Gerin in April 1972, and the benzene used to fill this order was manufactured by Union Amsco. 3. The Coast Guard next purchased 3 gallons of benzene in February 1973 and 4 gallons in September 1973. The benzene used to fill these orders was manufactured by Ashland. 4. The next sale of benzene to the Coast Guard was on April 4, 1974 for 4 gallons, and this benzene had been manufactured by Texaco. 5. The Coast Guard next purchased 5 gallons of Texaco benzene on June 18, 1975. 6. The last two purchases of benzene were 1 gallon in November 1976, and 5 gallons in December 1976. This benzene had been manufactured by Union Amsco. 7. Otis Mason was first exposed to benzene in June 1974 as a student in the water and sediment class. 8. Mason first taught the class in October 1974, and taught a total of 4 times during this year. Over the next three years, Mason taught the class 9 times in 1975, no times in 1976 and once in 1977. Five further pieces of evidence are relevant in determining the source of the benzene at Yorktown during the relevant times. First, there was testimony that the Coast Guard would not re-order benzene until approximately 1 to 2 gallons remained in stock. Price, Tr. Yol. 16, at 1502-04; Seligman, Tr. Vol. 52, at 6849; Kendle, Tr. Vol. 50, at 5997. Second, evidence was introduced that the rate of usage of benzene at Yorktown was approximately 6 gallons per year (or lh gallon per month). Third, one witness testified that the Coast Guard had 15 gallons of benzene in stock at one time, although no time frame was given for this observation. Fourth, there was testimony that the Coast Guard would try to use the “oldest” benzene first, i.e., that which had been in stock for the longest period of time. Finally, at the time the Coast Guard discontinued the class in September 1977, 7 gallons of benzene remained unused at Yorktown. Plaintiffs argument is relatively straightforward. At the time of the first purchase of Texaco benzene on April 4, 1974, the Coast Guard had 1 to 2 gallons of non-Texaco benzene on hand. If the Coast Guard used the oldest solvent first, the residual amount of all non-Texaco benzene would have been gone by the time Mason was first exposed in June of 1974. Therefore, Mason would have been exposed only to Texaco benzene during .the 5 classes in 1974 and also throughout the 9 classes of 1975, when only Texaco benzene was purchased. At the time Mason taught the single 1977 course, 6 gallons of Union Am-sco benzene had also been purchased and were in stock at Yorktown. However, these 6 gallons were the “newest,” and again under the “oldest first rule” would have been among the unused 7 gallons remaining at the time the Coast Guard stopped teaching the class. Interpreting the evidence in this manner compels the conclusion that Mason was exposed only to Texaco benzene. The new construction of the evidence given by defendant is considerably more involved. Rather than proceeding forward from the evidence indicating that the Coast Guard had one gallon of non-Texaco benzene at the time of the April 4 purchase, defendant works backwards from the September 1977 inventory. Defendant emphasizes the evidence that the Coast Guard used benzene at a rate of 6 gallons per year. Applying this constant rate of usage, the “oldest first rule,” and working backwards, the Coast Guard would have used 4 gallons of Texaco benzene between January and September of 1977. Thus, Mason would have received one exposure to Texaco benzene during the single 1977 class. Under defendant’s interpretation, however, the 14 exposures during 1974 and 1975 were to Union Amsco and Ashland benzene. Relying on a strict adherence to each variable, defendant concludes that the Yorktown facility was “stockpiling” benzene, and that the 1974 and 1975 purchases of Texaco benzene were not used until 1976 and 1977, when Mason taught no classes and one class, respectively. Here again, defendant’s argument rests on the proposition that the jury was required to discount all evidence and reasonable inferences unfavorable to defendant’s position. The crux of defendant’s argument is that its evidence of a constant rate of usage inescapably leads to the conclusion that the Coast Guard had on hand a large stockpile of benzene at the time of the purchases of Texaco benzene. The court agrees that an unfaltering acceptance of this evidence would indicate that other manufacturers’ benzene was in stock during the relevant times. But the evidence of a constant usage rate of 6 gallons per year is undercut by two considerations. First, the 1977 documents relied upon by defendant emphasize that this rate of usage was only an approximation. Plaintiff’s Exh. 139L and 139D. More importantly, defendant’s theory of a stockpile is directly contradicted by testimony that the Coast Guard would not restock until its benzene supply was low. This latter evidence, unlike a post facto approximation that assumes a constant rate of usage, is particularly persuasive because it is supported by the entirely reasonable inference that the Coast Guard’s purchases are the most accurate reflection of its actual usage. As Larry Seligman opined in a written statement made in 1977, any fluctuations in the Coast Guard’s actual usage of benzene were “probably based on a varying student load or the current inventory in stock when it was reordered.” Plaintiff’s Exh. 139D (emphasis added). If. the jury accepted this evidence, it could then reasonably reject a constant rate of usage and the manifold inferences made from this. Although defendant’s theory is supported by some evidence, it falls considerably short of that degree of certainty necessary to disturb the jury’s verdict. Indeed, it is small wonder that during the first trial neither the court, nor counsel for plaintiff, nor even Texaco’s counsel was able to chart the tortuous path only recently excavated from the evidence by defendant. Faced with two conflicting and mutually exclusive interpretations of the evidence, the jury could reasonably find that the Coast Guard used benzene at widely varying rates, and that it would not reorder benzene until its supply was low. Because such a finding necessarily compels the conclusion that Mason was exposed only to Texaco benzene, the determination that only Texaco’s benzene caused Mason’s leukemia shall stand. II. Adequacy of Warning During the time period of Mason’s exposure, the warning given by Texaco was in the form of a Material Safety Data Sheet (“MSDS”). Under a subheading titled “EFFECTS OF OVEREXPOSURE,” this MSDS stated: High concentrations may cause anethestic [sic] effects; prolonged chronic excessive exposure may damage blood forming organs. Defendant presents two interrelated arguments challenging the jury’s finding of an inadequate warning. First, Texaco submits that its warning adequately reflected the pre-1976 state of scientific knowledge regarding the carcinogenic hazards of benzene exposure. In 1976 the National Institute of Occupational Safety and Health (“NIOSH”), a governmental research body that advises the Department of Labor, became the first government organization to conclude that benzene is a human carcinogen, and to recommend that workplace exposure to benzene be radically reduced. Defendant contends that because the NIOSH report was not released until 1976, after Mason had received most of his classroom exposures, Texaco’s warning conformed to the extant state of scientific knowledge. The duty of a manufacturer is not as facile as defendant would have it. Kansas law imposes a continuous duty to warn, “requiring the manufacturer to keep abreast of the current state of knowledge relevant to its products as gained through research, adverse reaction reports, scientific literature, and other available methods.” Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038, syl. 11 8, cert. denied, 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984). Defendant’s argument, however, implies that it was required to give credence only to scientific studies issued by governmental bodies. The holding of Wooderson squarely refutes this suggestion. See also Jones v. Hittle Serv., Inc., 219 Kan. 627, 632, 549 P.2d 1383, 1390 & syl. ¶ 2 (1976) (compliance with governmental standards is evidence of due care, but does not preclude finding negligence or defective product where reasonable to take additional precautions). Thus, in determining the state of art knowledge by which the adequacy of Texaco’s 1973 warning is measured, the proper inquiry must focus on all sources of scientific knowledge. Considering the available scientific knowledge linking benzene exposure to leukemia, the court finds ample evidence to support the jury’s finding that Texaco either knew or should have known of benzene’s carcinogenic properties at the time it issued its 1973 warning. Plaintiff introduced voluminous scientific publications dating back as far as 1928 that had associated benzene exposure to various cancers of the blood. Tr. Vol. 25, at 2446-543. A 1948 study commissioned by the American Petroleum Institute (“API”) — a trade organization of which Texaco is a member — examined the state of art knowledge at that time and concluded that there were well-documented cases of leukemia resulting from benzene exposure. Tr. Vol. 25, at 2485-96. By the 1960’s, many widely-disseminated scientific publications, including standard american medical journals and textbooks, were reporting the carcinogenic danger of benzene exposure as established through hundreds of individual cases. The literature also indicated that this danger existed even at relatively low concentrations of benzene vapor. Most significantly, Ron Richards, the Texaco industrial hygienist who was responsible for preparing its toxic chemical warnings, candidly admitted his familiarity with much of this information. Thus, the evidence indicated that Texaco was actually aware of the large body of scientific literature linking benzene exposure to leukemia. It matters little that Texaco and its experts dispute the conclusions of most of these pre-1973 publications. As the court held in Wooderson: Where scientific or medical evidence exists tending to show that a certain danger is associated with use of a drug, the . manufacturer may not ignore or discount that information in drafting its warning solely because it finds it to be unconvincing. 235 Kan. 387, 681 P.2d 1038 at syl. 1110; see also id. at 400, 681 P.2d at 1049 (test is not whether evidence of causation is so clear-cut that manufacturer itself is convinced of causation)'. The Wooderson court went on to state “that the duty of the manufacturer must be commensurate with the seriousness of the danger. The greater the danger, the greater the duty.” Id. at 417, 681 P.2d at 1062. Obviously, the risk of developing a fatal cancerous blood disease through benzene exposure is a great danger. And by the 1960’s, epidemiologic studies indicated that a significant percentage of the population is susceptible to this danger, thus triggering the manufacturer’s duty to warn. See Restatement (Second) of Torts § 402A comment j (1973). Although there was conflicting .expert testimony interpreting the persuasiveness of the various studies, the weight to be given the opinions of these experts was exclusively for the jury. Wilson, 893 F.2d at 1155; Ferebee v. Chevron Chem. Co., 552 F.Supp. 1293, 1300 (D.D.C.1982), aff'd, 736 F.2d 1529 (D.C.Cir.1984). Given the substantial body of literature on this issue, the jury could properly find a state of scientific knowledge sufficient to require that manufacturers such as Texaco warn of the carcinogenic dangers of benzene. Alternatively, Texaco argues that its warning adequately warned of the dangers of benzene. To the contrary, the jury could reasonably find that Texaco’s warning was inadequate in several respects. First, although the words “may damage blood forming organs” suggest some type of danger associated with the use of benzene, it is quite doubtful whether this language reasonably conveys the specific carcinogenic danger to which users of benzene are exposed. As set forth in Instruction No. 9a, a warning must be comprehensible to the reasonably prudent person using the product and must convey a fair indication of the nature and extent of the product’s inherent dangers. See Wheeler v. John Deere Co., 862 F.2d 1404, 1413 (10th Cir.1988) (Kansas law); Trujillo v. Uniroyal Corp., 608 F.2d 815, 819 (10th Cir.1979) (under New Mexico law, user of a product must not only be aware of some risk, but the nature and degree of risk must be appreciated). Defendant cannot seriously argue as a matter of law that the language “may damage blood forming organs” reasonably indicates the nature of the danger at issue in this case. In fact, the proximity of this language with the warning of “anesthetic effects” might easily lead the user to conclude that damage to the blood forming organs does not differ significantly in kind from benzene intoxication. Texaco’s warning conveys the true nature of the danger to which Mason succumbed only to those readers who understand that the bone marrow is the primary “blood forming organ” in adults; who further understand that the genesis of leukemia is in the cells of the bone marrow; and who further understand that “damage” in this case refers to a cellular damage consisting of an alteration in the molecular structure (or a disruption in the replication of this structure) of the genetic material of bone marrow cells in their incipient, undifferentiated stage of development — thus leading to the development of cancerous cells. Irons, Tr. Vol. 48, at 5530-95. The court is confident that such information is beyond the ken of almost anyone lacking an advanced education in the medical as well as molecular-biological sciences, and based on the evidence introduced by plaintiff the jury could properly reach the same conclusion. Second, the jury could reasonably find Texaco’s warning inadequate with respect to the extent of the danger posed by benzene exposure. See Long v. Deere & Co., 238 Kan. 766, 772-73, 715 P.2d 1023, 1028-29 (1986) (no showing that user appreciated extent of harm). Several of plaintiffs witnesses testified that the word “may” was misleading, insofar as the scientific literature recognized the benzene-leukemia association to have been conclusively established at the time Texaco issued its warning. Moreover, “damage” to an organ may suggest that the injury is something which can be repaired or treated, or which may even heal itself with time. The full extent of the danger resulting from benzene exposure is not mere “damage” to an organ: it is inevitable death. In summary, the jury could reasonably find defendant’s MSDS to have been so inadequate as to have been virtually no warning at all, and the court will not disturb this determination. III. Superseding Causes Defendant alleges that actions of others in the chain of distribution were, as a matter of law, intervening and superseding causes of Mason’s exposure to Texaco’s benzene. Issues of negligence, contributory negligence and proximate cause are all determined by the jury. Schmeck v. City of Shawnee, 232 Kan. 11, 27, 651 P.2d 585 (1982). “Although usually the issue of proximate cause is a question of fact for the jury, it becomes a question of law when all evidence relied upon by a party is undisputed and susceptible of only one inference.” St. Clair v. Denny, 245 Kan. 414, 420, 781 P.2d 1043, 1047 (1989) (citation omitted). However, when the critical facts are in dispute, the issue of superseding causes is a matter for the jury to determine, and a decision as a matter of law is inappropriate. Prince v. Leesona Corp., 720 F.2d 1166, 1169 (10th Cir.1983). Questions regarding the existence of intervening and superseding causes are determined according to the test of foreseeability. Schmeck, 232 Kan. 11, 651 P.2d 585, syl. 11 6. Thus, “[i]f the original actor should have reasonably foreseen and anticipated the intervening act causing injury in the light of the attendant circumstances, his act of negligence would be a proximate cause of the injury.” George v. Breising, 206 Kan. 221, 227, 477 P.2d 983 (1970). Giving due regard to the jury’s findings in these matters, the court turns to the. specific issues raised by defendant. A. The Coast Guard Defendant contends that the Coast Guard knew of the dangers of benzene prior to and during the time Mason started working at the Yorktown facility. Defendant argues that this putative knowledge was a superseding cause of Mason’s death, or at least required the jury to assess some degree of fault to the Coast Guard. Ordinarily, a manufacturer has no duty to warn against dangers that are known or should be known by the user. Long, 238 Kan. at 772-73, 715 P.2d at 1028-29; Mays v. Ciba-Geigy Corp., 233 Kan. 38, 58-60, 661 P.2d 348 (1983). If a user is already familiar with the dangerous properties of a product, any additional warning would be superfluous, and the manufacturer’s failure to warn could not be a cause of any injuries resulting from use of the product. See Hall v. Ashland Oil Co., 625 F.Supp. 1515, 1520-21 (D.Conn.1986) (degree of benzene user’s knowledge of specific risk was issue of disputed fact for the jury); Menna v. Johns-Manville Corp., 585 F.Supp. 1178, 1184-87 (D.N.J.1984) (under both strict liability and negligence claims, level of employer’s knowledge or sophistication presents question of fact regarding superseding cause of injury), aff'd, 712 F.2d 895 (3d Cir.1985). In support of its claim that the Coast Guard had actual knowledge of benzene’s dangerous nature, Texaco relies primarily on information contained in the Coast Guard safety manual and on the testimony Kenneth Doolan — the Coast Guard’s manager of industrial hygiene during the relevant times. The Coast Guard safety manual in effect as of November 1973 listed benzene as a “toxic hazard” that could cause injury to blood forming organs. Nowhere in this manual, however, is benzene clearly identified as a cancer or leukemia inducing agent. At most, this manual demonstrates that somewhere within the annals of Coast Guard safety literature there existed information similar to that contained in Texaco’s warning. Defendant produced no evidence that anyone in the Coast Guard’s safety program or at the Yorktown facility understood this language to mean that exposure to benzene could cause cancer. The Kansas Supreme Court has made abundantly clear that a manufacturer may not escape liability for failure to warn simply because a user has some general knowledge of a product’s inherent dangers. Long, 238 Kan. at 772-73, 715 P.2d at 1028-29 (although user knew the reasons and purposes for seat belts, no showing that user appreciated or knew of extreme danger); see also White v. W.G.M. Safety Cory., 707 F.Supp. 544, 549 (S.D.Ga.1988) (knowledge that breathing dust was generally bad does not bar recovery for failure to warn of specific danger of silicosis from breathing sand). Standing alone, this evidence is insufficient to establish that degree of actual knowledge necessary to break the causal connection between Texaco’s inadequate warning and Mason’s exposure to benzene. Nor was there any evidence that Mr. Doolan or anyone else responsible for the Coast Guard’s safety program was otherwise aware of the carcinogenic properties of benzene. Defendant attempts to rely on Mr. Doolan’s membership in the American Conference of Governmental Industrial Hygienists (“ACGIH”) as evidence of Coast Guard knowledge. The first ACGIH report to identify benzene as a carcinogen was issued in 1975. This report was in the form of a document that listed numerous hazardous chemicals and the specific dangers associated with each. As defendant elicited during cross examination, however, Mr. Doolan did not purport to know what the ACGIH or similar organizations were reporting at this time. Tr. Vol. 11, at 1004. Moreover, even if Mr. Doolan had been aware of this report, and had further acted instantaneously to bring this information to the attention of the Yorktown facility, it would have been too late to prevent all of Mason’s exposures to benzene during 1974 —and possibly many of his exposures during 1975. In short, defendant has failed to show that anyone having responsibility for the safety of Coast Guard personnel knew of benzene’s carcinogenic nature prior to and during the time when Mason was exposed to Texaco benzene. Defendant also makes several general allegations that the Coast Guard was a “sophisticated employer,” to whom Texaco owed no duty to warn. This argument must also fail. Courts have regularly excused manufacturers from the duty to warn where the purchaser/employer has, or can reasonably be expected to have, special expertise in handling a potentially dangerous product. See Mays, 233 Kan. at 59, 661 P.2d 348 (no duty to instruct employer who was experienced in the highly specialized business of hooking up oil and gas wells); Hittle, 219 Kan. at 639, 549 P.2d at 1395 (retail distributor of propane well aware of dangerous properties of gas); Martinez v. Dixie Carriers, Inc., 529 F.2d 457, 464 (5th Cir.1976) (stripping crew and its employer were experienced professionals in the field of cleaning tanks that had contained benzene and knew of the dangers of benzene intoxication). Conversely, a manufacturer who sells to unspecialized users is not relieved of its normal duty to warn according to the reasonable and prudent person standard. Pavlides v. Galveston Yacht Basin, Inc., 727 F.2d 330, 338 (5th Cir.1984). Under defendant’s conception of the sophisticated user defense, any user of a chemical product would be become sophisticated if they used the product often enough and had a “general idea” that the chemical was toxic. Such an expansive interpretation of this limited defense would transform even simple household users into chemical experts. See American Mutual Liability Ins. Co. v. Firestone Tire & Rubber Co., 799 F.2d 993, 994 (5th Cir.1986) (purchaser or user must have certain knowledge or sophistication before manufacturer is relieved of duty to warn, and normally this is a question of fact for the jury). The Coast Guard is not in the general trade or business of “benzene handling” and cannot reasonably be charged as a matter of law with any special expertise or knowledge concerning benzene’s carcinogenic properties. See Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1092-93 (5th Cir.1973) (dangers of asbestos not well enough known to insulation workers to reduce duty to warn), cert. denied, 419 U.S. 869, 95 S.Ct. 127, 42 L.Ed.2d 107 (1974), cited in Pavlides, 727 F.2d at 339; Hall, 625 F.Supp. at 1520. Defendant also relies heavily on the argument that the Coast Guard violated OSHA regulations, and the Coast Guard safety manual incorporating those regulations, by failing to provide Mason with a safe workplace. What defendant neglects to recognize, however, is that neither federal nor Kansas law requires employers to protect against unknown dangers. Under Kansas law, the employer has a duty to protect only against dangers that are either known or could be discovered by the exercise of reasonable care. Riggs v. Missouri-Kansas-Texas R.R. Co., 211 Kan. 795, 800, 508 P.2d 850 (1973); see also Prince v. Leesona Corp., 720 F.2d 1166, 1170-71 & n. 8 (10th Cir.1983); Murphy v. Owens-Corning Fiberglas Corp., 447 F.Supp. 557, 565 (D.Kan.1977) (no evidence that manufacturer/employer knew or should have known of danger created by inhaling fiberglass particles). An employer’s responsibilities under the “general duty clause” of the Occupational Safety and Health Act are similar: Each employer— (1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this Act. 29 U.S.C. § 654(a) (emphasis added); Brennan v. Occupational Safety & Health Review Comm’n, 494 F.2d 460, 464 (8th Cir.1974) (“recognized hazard” refers to hazards actually known by employer as well as those generally recognized in employer’s industry). Accordingly, the Coast Guard safety manual prescribed general or local exhaust for “harmful exposure” to “harmful fumes,” and OSHA regulations in effect at the time required that respirators be selected on the basis of the hazard. Tr. Vol. 11, at 968-93. Although benzene was a “recognized hazard,” and the Coast Guard safety manual required “suitable safe facilities” for the “storage, handling and use” of hazardous materials, the Coast Guard had only limited knowledge of the hazards of benzene. There is little doubt that the Coast Guard was aware of the dangers of benzene intoxication, or of the flammability of the chemical. Plaintiffs Exh. 139D; Doolan, Tr. Vol. 10, at 943-44. And the evidence indicated that the facilities at Yorktown were entirely adequate to protect against these known hazards. Reid, Tr. Vol. 8, at 739; Seligman, Tr. Vol. 52, at 6843. The specific carcinogenic danger that would have required measures such as local exhaust, however, was not known to the Coast Guard at the time Mason was exposed to benzene. To reject the jury’s assessment of no fault against the Coast Guard would require the court to find, as a matter of law, that the Coast Guard either knew or should have reasonably discovered this latent danger in benzene. This the court is unprepared to do. There was no evidence that the Coast Guard had actual knowledge of benzene’s carcinogenic nature. Moreover, the Coast Guard has no special duty to inform itself through independent sources of the potential hazards posed by every chemical product that it purchases for its general use. Rather, an employer is only required to protect against dangers known or discoverable through the exercise of reasonable care. Riggs, 211 Kan. at 800, 508 P.2d 850. Under Kansas law the jury generally determines the degree of each actor’s departure from their respective duty. Prince, 720 F.2d at 1171. As applied to this case, the jury could properly refuse to impose upon an unspecialized employer the duty to discover every danger associated with the use of benzene, and the verdict with respect to the Coast Guard is reasonable under the evidence. B. Mellen Chemical Defendant makes similar allegations against Mellen Chemical Company, the immediate purchaser of Texaco’s benzene. Raymond Mellen was the president of a chemical solvent distribution company that employed approximately 13 people. Defendant argues that Mellen was a superseding cause of Mason’s death because Mellen was a knowledgeable dealer in benzene who failed to pass on the warning that Texaco had given him. Defendant’s attempts to characterize Mellen as a sophisticated “benzene expert” are particularly unpersuasive. Mellen held a general baccalaureate degree in biology with a minor in chemistry that he had received in 1949. He had accumulated and read “a lot” of literature on the safe use and handling of benzene. There was no evidence, however, that Mellen knew of the carcinogenic hazard of benzene when he made those sales that could have reached Mason at Yorktown. To the contrary, Mellen’s deposition testimony reveals that he did not know of this hazard until it was published in the Federal Register in 1977, at which time he began to include this information on his own label. Mellen’s educational and business experience reveals that he was little more than a purveyor of chemical solvents, and not a “sophisticated user of benzene.” Texaco’s reliance on Mellen to either understand its warning or look up the crucial information himself was at best thoroughly misplaced, and at worst willful and wanton neglect. See State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 157, 747 P.2d 1326, 1330 (1987) (intermediary/contractor may have no experience in selecting building materials and manufacturer has duty to warn those who rely on its specifications); Pavlides, 727 F.2d at 339 (manufacturer generally does not have the right to assume that persons using complex product will know how it is to be used). Texaco’s affirmative duty under Hittle was to ascertain that Mellen was adequately trained, was familiar with the carcinogenic properties of benzene, and was capable of passing on this information to his customers. 219 Kan. at 639, 549 P.2d at 1394. The mere assumption by Texaco that Mellen had such knowledge and capabilities is not sufficient to defeat the jury’s considered judgment that something more was required of Texaco. See American Mutual, 799 F.2d at 994; see also Restatement (Second) of Torts § 388 comment n (1973) (supplier may be liable unless he ascertains character of intermediary or unless previous experience with intermediary gives supplier reason to believe that intermediary is careful). Even assuming that Mellen would have understood the language contained in Texaco’s MSDS, there is no evidence that Mellen was aware of the information contained in Texaco’s MSDS, nor that Texaco’s sales representative had emphasized or even mentioned this information to Mellen. When Mellen purchased benzene from Texaco, he did not receive any information with the product. Tr. Vol. 9, at 765. Rather, the Material Safety Data Sheet was sent separately from the shipment of benzene. Tr. Vol. 9, at 775. The jury could reasonably conclude that this was an inadequate method by which to warn the customers of Texaco. Kansas law imposes no per se duty upon a bulk seller to train its salesmen or to warn through such salesmen. Mason, 862 F.2d at 248. The failure to train salesmen and the failure of a salesman to make the purchaser aware of a product’s inherent danger, however, may be considered by the finder of fact in determining the overall adequacy of a warning. Id. Thus, the jury could reasonably find that Texaco had failed to take adequate steps to bring this information to Mellen’s attention. See also W.G.M. Safety Corp., 707 F.Supp. at 549 (even when warning is provided, adequacy of efforts to communicate dangers of product is question for jury). Defendant also argues that Mellen was required to pass on Texaco’s MSDS, which contained certain precautionary instructions, and that the failure to do so destroyed any causal responsibility on the part of Texaco. This argument rests on the mistaken assumption that causation for an inadequate warning is defeated where strict adherence to a manufacturer’s instructions would eliminate exposure to the dangerous element of a product. In the court’s view, this is simply an attempt to carve an adequate warning out of an inadequate one. Where the warnings given are unclear or inadequate to apprise of the inherent or latent dangers associated with a product, a manufacturer cannot escape liability for injury on the grounds that perfect compliance with its instructions would have prevented the injury. Karns v. Emerson Elec. Co., 817 F.2d 1452, 1457 (10th Cir.1987) (quoting Smith v. United States Gypsum Co., 612 P.2d 251, 253 (Okla.1980)). Although a warning should contain precautions or instructions for a product’s safe use, an adequate warning must also inform the user of the result that will follow from the failure to observe these instructions. Ferebee v. Chevron Chem. Co., 552 F.Supp. 1293, 1304-05 (D.D.C.1982), aff'd, 736 F.2d at 1539 (D.C.Cir.1984); Beauchamp v. Russell, 547 F.Supp. 1191, 1195 n. 2 (N.D.Ga.1982) (instructions are not warnings). The reason a user has no specific legal duty to use a product in accordance with the bare, unembellished instructions of an inadequate warning is that such a warning fails to impress upon the reader the nature and gravity of harm that will follow from the failure to observe the instructions. If Texaco had adequately warned of the carcinogenic danger of benzene exposure in terms understandable to the ordinary user, the users of its product might elect not to purchase benzene at all. Indeed, this is precisely the choice made by the Coast Guard when it finally learned of benzene’s carcinogenic propensities. Thus, because a user has no specific legal duty to follow the instructions of an inadequate warning, defendant cannot contend that Mellen’s failure to pass on Texaco’s MSDS was the legal cause of Mason’s injury. For the same reason, the court rejects defendant’s argument that the jury could not reasonably find Mellen to have borne no causal responsibility, even though Mellen did not pass on the information in Texaco’s MSDS. A manufacturer’s immediate vendee certainly has a duty to convey adequate warnings that it has received from the manufacturer. Younger v. Dow Corning Corp., 202 Kan. 674, 451 P.2d 177 (1969); and Kansas law requires that a seller warn of those dangers of which it either knows or has reason to know. Hittie, 219 Kan. 627, 549 P.2d 1383, syl. II4. In this case, however, there was no evidence that Mellen had read Texaco’s MSDS, and the jury could reasonably conclude that Texaco’s method of conveying its warning was inadequate under the circumstances. See Holmes v. Sahara Coal Co., 131 Ill.App.3d 666, 86 Ill.Dec. 816-819, 475 N.E.2d 1383, 1386 (1985) (fact that manufacturer supplies a warning does mean that warning is adequate to shift or reduce risk inherent in product, and this determination is left to jury). Moreover, even assuming that Mellen was negligent in failing to read the MSDS sent to him separately by Texaco, defendant’s argument does not relate Mason’s injury to the failure of Mellen to pass on this information. As already noted, the Coast Guard safety manual itself stated that benzene could cause injury to blood forming organs. Yet no evidence was produced that anyone in the Coast Guard’s safety program or at Yorktown understood this language to mean that benzene is carcinogenic. Thus, the jury could reasonably find that Mellen’s asserted negligence in failing to convey Texaco’s warning was not a proximate cause of Mason’s injury. The salient motif among defendant’s numerous arguments is that Mellen and the Coast Guard were sophisticated entities who could have looked up this information themselves. Even if the court were to conclude that Mellen and the Coast Guard were sophisticated intermediaries, defendant’s efforts to defeat the jury's verdict would fail nonetheless. Under the “learned intermediary” rule, of which the physician-patient relationship is the most common example, a manufacturer has no duty to warn the ultimate user of the product. Rather, the manufacturer is entitled to rely upon the education and experience of the physician in conveying those adequate warnings provided by the manufacturer. Wooderson, 235 Kan. 387, 681 P.2d 1038, syl. ¶ 5. In this respect, the prescription drug rule resembles the “bulk distributor rule” announced in Jones v. Hittle Serv., Inc., 219 Kan. 627, 549 P.2d 1383, syl. ¶ 6 (1976). The prescription drug rule relieves the manufacturer of all liability, however, only when the manufacturer has in fact adequately informed the physician. Additionally, although information regarding a drug’s dangerous properties may be “equally available” to physicians, the law does not require them to look such information up themselves. See Hoffman v. Sterling Drug Inc., 485 F.2d 132, 146-47 (3d Cir.1973) (jury should be allowed to decide efficacy of drug literature mailed to physicians where evidence indicates that such literature is generally not read); Sterling Drug, Inc. v. Yarrow, 408 F.2d 978, 994 (8th Cir.1969) (reasonable trier of fact could find that sending warning letters, product cards, publishing in the Physicians’ Desk Reference, and willingness to answer inquiries were not reasonable efforts to warn physicians who are inundated with such literature); McEwen v. Ortho Pharmaceutical Corp., 270 Or. 375, 528 P.2d 522, 529 & 535 n. 25 (1974) (drug manufacturer must “bring warning home” to the physician, one method of which may be the use of “detail men”), quoted in Wooderson, 235 Kan. at 401, 681 P.2d 1038. Thus, defendant seeks to place a burden of discovery upon Mellen and the Coast Guard that is not required even of true learned intermediaries such as doctors of medicine. See also State ex rel. Stephan v. GAF Corp., 242 Kan. 152, 747 P.2d 1326 (1987) (roof manufacturer liable for actual and punitive damages for failure to warn architect intermediary of unsuitability of roofing material). Defendant also suggests that it is too speculative to assume a causal connection between the numerous deficiencies of its warning and Mason’s exposure to Texaco benzene. In support, defendant calls attention to the absence of any testimony by Mellen that use of the word “cancer” would have caused him to pass on a warning. The short answer to this argument is that in Kansas, an inadequate warning is presumed to have caused exposure to a dangerous product. Wooderson, 235 Kan. 387, 681 P.2d 1038, syl. ¶ 11. Thus, even if the court were to agree that plaintiff’s proof of causation is speculative, the burden is upon defendant to refute the presumption of causation. Moreover, in the court’s view, any speculation on this issue is found not in the reasonable inference of causation from an inadequate warning in this case, but in the very type of testimony from Mellen that defendant alleges is necessary to establish a causal link between its inadequate warning and Mason’s injury. See Kloepfer v. Honda Motor Co., 898 F.2d 1452, 1459 (10th Cir.1990) (trial court could properly exclude speculative and self-serving statements by plaintiff that she would have heeded an adequate warning); see also Wooderson, 235 Kan. 387, 681 P.2d 1038, syl. ¶ 12 (what a doctor might or might not have done if adequately warned is not an element plaintiff must prove as a part of case). Similarly, the jury was not required to accept the “undisputed” testimony of Mr. Seligman, Mason’s superior at Yorktown, who testified that Texaco’s warning would have caught his attention. Neither Seligman nor any other witness is the incarnation of the reasonable and prudent person, by which standard the adequacy of a warning is measured. The jury could properly reject this testimony and find that defendant had failed to rebut the presumption. Even in the absence of a presumption of causation, defendant’s argument does not address the most telling evidence in support of the jury’s finding of causation. There is no evidence that any person other than Texaco in the chain of distribution and use was aware of the carcinogenic danger of benzene at the relevant times. With the notable exception of Texaco, however, each entity within this chain altered its conduct when it finally learned of this danger. Mellen began to warn of the cancer hazard in 1977 as soon as he was informed through the Federal Register. Dooner & Smith ceased selling benzene also as a result of the information published in the 1977 Federal Register. Gerin and the Coast Guard first learned of benzene’s carcinogenic hazard through this very case, and immediately discontinued its use. Thus, what the parties actually did, as opposed to what they would have done if they had received Texaco’s MSDS, belies defendant’s suggestion that an adequate warning in this case would have been to no avail. Finally, the cursory suggestion is made that defendant cannot be held liable, because the position of Texaco, who was the first link in the chain of distribution, was ill-suited to control the content of the warning ultimately received by the user. This fact, however, does not relieve Texaco of its duty under Hittle to warn its immediate purchaser. 219 Kan. at 639, 549 P.2d at 1394; see also GAF Corp., 242 Kan. at 157, 747 P.2d at 1330 (although manufacturer does not deal with ultimate consumer, but with intermediary architect or contractor, manufacturer still has duty under Wooderson to warn). As the foregoing analysis demonstrates, a reasonable finder of fact could conclude that Texaco failed to fulfill its duty to provide an understandable warning to its customers or to otherwise ascertain the ability of its customers to warn others of benzene’s carcinogenic propensities. As a manufacturer with its own independent research program, Texaco was in a far superior position to discover latent dangers in its product and to warn of these dangers. See GAF Corp., 242 Kan. at 157, 747 P.2d at 1330; see also Pavlides, 727 F.2d at 338 (manufacturer’s duty to warn is derived from the notion that warning costs very little and can prevent severe losses); Beauchamp, 547 F.Supp. at 1197 (manufacturer stands in best position to collect and disseminate information regarding dangers of a product); Michalko v. Cooke Color & Chem. Corp., 91 N.J. 386, 451 A.2d 179, 187 (1982) (quoting Beshada v. Johns-Manville Prods. Corp., 90 N.J. 191, 201-02, 447 A.2d 539, 545 (1982)). Texaco had discovered and was aware of numerous scientific studies and reports indicating a relationship between benzene exposure and cancerous blood diseases. Rather than communicate this information to its immediate purchaser, its chose to withhold it until persuaded by more conclusive evidence. Alternatively, it relied upon Mellen to discover this danger himself, either by reading and then deciphering Texaco’s MSDS, or by learning of the danger through independent sources. In light of the failure of defendant even to initiate the process of information, the jury could reasonably conclude that the distributors and users of Texaco’s benzene share no causal responsibility for the death of Mason. C. The Gerin Corporation Defendant also contends that Ge-rin was a superseding cause of Mason’s injuries for mislabeling the benzene it sold to the Coast Guard. The Gerin label provided with the benzene sold to the Coast Guard represented conformity with specification 96 of the American Society of Testing Material (“ASTM 96”), which stated that toluene is a preferred solvent to benzene. Defendant claims that this representation was false, and that the jury erred by failing to find any fault on the part of Gerin. The court initially notes that the “falseness” of Gerin’s label is far from clear. As Albert Stewart from the Coast Guard recognized, a specification that states a preference is not the equivalent of a requirement. Tr. Vol. 20, at 1833. Moreover, there was some dispute as to whether ASTM 96 applied to lube oil such as that being tested by the Coast Guard or only to crude oil. Defendant also fails to appreciate that by shipping benzene, Gerin sold to the Coast Guard exactly what it had ordered. Nor was there any evidence that the Coast Guard relied on this representation in using the product. See Tetuan v. A.H. Robins Co., 241 Kan. 441, 469, 738 P.2d 1210, 1230 (1987) (test for fraud is whether any misrepresentation caused plaintiff’s injury). But more directly to the point, defendant’s argument elides any analysis of Gerin’s fault with respect to its duty. Under Kansas law, a seller has a duty to warn “only when he knows or has reason to know that the product is or is likely to be dangerous for the use for which it is supplied.” Hittle, 219 Kan. 627, 549 P.2d 1383, syl. ¶ 4. There is no evidence that Gerin had actual knowledge of benzene’s carcinogenic propensities until after Mason was diagnosed as having leukemia. And as with Mellen, the jury’s refusal to impose upon Gerin a constructive knowledge of this danger is reasonable. Thus, even assuming that Gerin misrepresented the product it sold to the Coast Guard, defendant has made no showing how this contributed to Mason’s exposure to benzene. IV. Rulings Defendant also takes issue with a number of rulings alleged to have been erroneous and requiring a new trial. A. Law of the Case Defendant alleges that the doctrine of “law of the case” precluded the relitigation of the issue of punitive damages, and that submission of this issue to the jury requires a new trial. In the first trial of this case the jury awarded no punitive damages. Plaintiff moved for a new trial limited to the issue of punitive damages, and the court denied this motion. Plaintiff did not appeal this ruling, and the Tenth Circuit’s decision reversing the judgment never addressed this court’s denial of plaintiff’s motion. On remand, defendant made a pretrial motion to exclude the issue of punitive damages in this retrial. In its pretrial motion, and again in the present motion for new trial, Texaco contends that plaintiff’s failure to appeal this court’s denial of a new “punitive damages” trial prevents her from relitigating this matter. The mandate of the Tenth Circuit in this case reversed the first judgment generally and remanded for a new trial. Normally when an appellate court vacates a judgment, neither collateral nor direct estoppel, nor the law of the case will give preclusive effect to this judgment. No East-West Highway Comm., Inc. v. Chandler, 767 F.2d 21, 24 (1st Cir.1985); see also Fox v. Mazda Corp. of Am., 868 F.2d 1190, 1194 (10th Cir.1989) (law of the case doctrine applies only when there has been a final decision); Ramey Construction Co. v. Apache Tribe of Mescalero Reservation, 673 F.2d 315, 318 (10th Cir.1982) (general remand by court of appeals allows district court to reconsider issues); Dodrill v. Ludt, 764 F.2d 442, 444 (6th Cir.1985). Thus, once a new trial is granted, preclusion does not extend “to any matter that is left open for further proceedings,” but rather is “limited to matters actually resolved by the appellate court.” 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4432, at 302 (1981); see also Quern v. Jordan, 440 U.S. 332, 347 n. 18, 99 S.Ct. 1139, 1148 n. 18, 59 L.Ed.2d 358 (1979) (doctrine of law of the case affects only issues determined on previous appeal, and on remand lower court may consider any matters left open by appellate court’s mandate). Defendant does not contend that the first jury’s denial of punitive damages itself precludes relitigation of this issue as a matter of direct or collateral estoppel. Instead, defendant relies upon the doctrine of law of the case. Unlike the various rigid rules of res judicata, the more amorphous concept of law of the case determines whether a court’s prior decision on a rule of law should continue in force in subsequent stages of the same case. Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 1391, 75 L.Ed.2d 318 (1983). As it is most frequently applied, law of the case encompasses a lower court’s adherence to its own prior rulings, to the rulings of its superior court in the case, or to the rulings of another judge or court in the same case or a closely related case. 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4478, at 788 (1981). Defendant bases its argument on a less common fourth aspect of the doctrine, under which courts will give preclusive effect to a ruling that could have been appealed, but has been abandoned by a failure to do so. Id. § 4478, at 801. It should be noted that the law of the case doctrine is implicated here only as a result of plaintiffs motion for new trial for punitive damages and the court’s previous ruling on that motion. Plaintiff did not appeal this court’s denial of her motion, and defendant argues that this ruling must stand as the law of the case. Strictly speaking, this prior ruling does remain the law of the case, and the court would be no more inclined now to grant plaintiff a new trial limited to punitive damages than it was six years ago. A court may order a new trial on the grounds that the damage award is unreasonably low. Fox Motors, Inc. v. Mazda Distributors, Inc., 806 F.2d 953, 961 (10th Cir.1986); Brown v. Richard H. Wackolz, Inc., 467 F.2d 18, 20-21 (10th Cir.1972). In addition, a new trial may be properly limited to the question of damages where the damage and liability issues are distinct and separate. Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 500, 51 S.Ct. 513, 515, 75 L.Ed. 1188 (1931); K-B Trucking Co. v. Riss Int’l Corp., 763 F.2d 1148, 1163 n. 22 (10th Cir.1985). However, these principles have developed within the context of compensatory damages, and it is doubtful whether it would ever be appropriate for a court to grant a new trial limited to relitigating the issue of punitive damages. Because punitive damages are inextricably interwoven with the issue of liability, the courts have recognized that it would be impossible to order a retrial limited solely to the issue of punitive damages. McDonald v. Johnson & Johnson, 722 F.2d 1370, 1388 (8th Cir.1983) (citing cases), cert. denied, 469 U.S. 870, 105 S.Ct. 219, 83 L.Ed.2d 149 (1984). Defendant asserts that plaintiff’s “procedural maneuvering” has deprived Texaco of the opportunity to defend this court’s ruling denying a new trial on punitive damages. The court does not ascribe the same sinister motives to plaintiff’s decision not to pursue a patently frivolous request. In any event, it would have been unnecessary for defendant to “defend” a previous ruling of law to which this court would still adhere if presented with the same question: plaintiff is not entitled to a new trial limited to the issue of punitive damages. See Key v. Wise, 629 F.2d 1049, 1054 (5th Cir.1980) (applicability of law of the case necessarily depends on whether the question as to which it is asserted was decided previously by the court), cert. denied, 454 U.S. 1103, 102 S.Ct. 682, 70 L.Ed.2d 647 (1981). After the general reversal and remand by the Tenth Circuit, however, this ruling became moot, because the posture of this case had changed. By virtue of defendant’s successful appeal, the court was no longer confronted with the propriety of granting plaintiff a new trial on the issue of punitive damages. Under defendant’s argument, a party who is forced to relitigate a lawsuit because of its opponent’s successful appeal may never fare any better upon retrial of the issues unless that party has performed the perfunctory task of itself filing a notice of appeal on issues that have been decided adversely to it. Thus, the logical extension of this rule would mean that the second jury in this case could not find Texaco to have been more than 35% at fault and would limit plaintiff’s compensatory damages against Texaco to the amount awarded in the first trial. But as the Sixth Circuit has explained, a party is not required to appeal every issue decided adversely to it in order to preserve relit-igation of that issue in the event of a reversal: Any other rule would needlessly and astronomically proliferate the number of issues raised on app