Full opinion text
MEMORANDUM OPINION AND ORDER DENYING AMOCO’S MOTIONS FOR JUDGMENT AS A MATTER OF LAW, AND FOR NEW TRIAL OR REMITTITUR BENNETT, District Judge. TABLE OF CONTENTS I. PROCEDURAL BACKGROUND AND INTRODUCTION.845 A. Introduction.845 B. Summary Of Facts.847 C. Amoco’s Challenge To The Jury Verdict .847 D. Chart Of Issues, Waivers, And Disposition On The Merits.848 II. ANALYSIS.850 A. Preservation Of Errors.850 1. Preservation Of Error And Rule 50 Motions.851 a. Reassertion Of A Rule 50 Motion.852 b. Lack Of Reassertion Of Amoco’s Rule 50 Motion.855 2. Objections To Jury Instructions.856 a. Necessity, Purpose, And Effect Of Objections And Failure To Object.857 b. Timing, Procedure, And Specificity Required For Objections-858 c. Amoco’s Objections Or Lack Thereof.859 i. The Elements Of Invasion Of Privacy.859 ii. The Malice And Ratification Instructions On Punitive Damages .860 The Appropriate Standard For Determining Amoeo’s Post-Trial Motions_862 Attack On The Jury’s Verdict Finding An Invasion Of Privacy.865 1. The Elements Of Invasion Of Privacy Under Iowa Law.865 2. Proof Presented .866 Otd a. Amoco’s “Legitimate Objective” And The Degree Of Intrusion_866 b. The Degree Of Injury.867 c. The Evidence Of Injury Here .869 d. Ratification Requirement And Evidence Presented.870 Punitive Damages.873 1. The Purpose Of Punitive Damages Under Iowa Law.873 2. Actual Damages As A Prerequisite To Punitive Damages.874 3. Malice 878 a. “Malice” Defined.879 b. What Conduct Is Sufficient To Show Malice? .880 c. Sufficiency Of Evidence Of Malice In This Case.881 4. Ratification And Punitive Damages.882 5. Was The Punitive Damage Award Excessive?.882 E. Remittitur.889 CONCLUSION.891 III. Challenging a jury award of $2 in actual damages and $500,000 in punitive damages for invasion of privacy, defendant employer has filed post-trial motions for judgment as a matter of law, and for new trial or remittitur. The employee’s claim was based on the employer’s examination of the employee’s credit card records to attempt to determine whether the employee had been abusing sick leave. The employer makes several challenges to the jury’s verdict finding an invasion of privacy asserting that there is insufficient evidence of the elements of the tort to sustain the verdict for the employee on that claim. The employer also makes several challenges to the jury’s award of punitive damages based on sufficiency of evidence. Finally, the employer challenges the punitive damage award as excessive and in violation of due process. The motions require the court to consider whether the employer has preserved the errors it now complains of in its post-trial motions because the employer failed to renew a motion for judgment as a matter of law, first made at the conclusion of plaintiffs case, at the close of all evidence as required by Fed.R.Civ.P. 50. The court must also consider, pursuant to Fed.R.Civ.P. 51, whether the employer preserved the alleged errors it now complains of in its posh-trial motions in its objections to relevant jury instructions or failed to preserve error by failing to object to instructions. Despite its conclusions that errors have not been properly preserved, the court nonetheless examines the merits of each of the employer’s claims by scrutinizing the sufficiency of the evidence in support of the jury’s verdict. Finally, in response to the employer’s post-trial assertion that the jury award of $500,000 in punitive damages was excessive, the court conducts the constitutionally required post-trial review of the punitive damage award. Before turning to the arguments presented here, the court briefly notes that the importance of the right of privacy has long been recognized in this country. Of all the rights of the citizen, few are of greater importance or more essential to [the citizen’s] peace and happiness than the right of personal security, and that involves, not merely protection of [the citizen’s] person from assault, but exemption of [the citizen’s] private affairs, books, and papers from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value. Interstate Commerce Comm’n v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047 (1894) (citation and internal quotation marks omitted). For this reason, the Fourth Amendment to the United States Constitution protects the individual from unreasonable intrusions into private affairs by agents of the government: It cannot be too often repeated ... that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of the government and its employees of the sanctity of a [person’s] home, and the privacies of [a person’s] life.... Id. In commenting on this right, Justice Holmes observed: Anyone who respects the spirit as well as the letter of the Fourth Amendment would be loath to believe that Congress intended to authorize one of its subordinate agencies to sweep all our traditions into the fire and to direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime. We do not discuss the question whether it could do so if it tried, as nothing short of the most explicit language would induce us to attribute to Congress that intent. Federal Trade Comm’n v. American Tobacco Co., 264 U.S. 298, 305-06, 44 S.Ct. 336, 337, 68 L.Ed. 696 (1924) (citation omitted). For similar reasons, the vast majority of states recognize one or more forms of the common law tort action for invasion of privacy to protect individuals from invasion of their privacy by other private citizens or non-governmental entities. The common-law tort remedy is intended to protect “the right of an individual to be let alone, to live a life of seclusion, to be free from unwarranted publicity.” Bremmer v. Journal-Tribune Publishing Co., 247 Iowa 817, 821, 76 N.W.2d 762, 764 (1956). This lawsuit involves the form of the tort known as “intrusion upon seclusion,” which has been recognized under Iowa common law. Stessman v. Am. Black Hawk Broadcasting Co., 416 N.W.2d 685, 687 (Iowa 1987); Winegard v. Larsen, 260 N.W.2d 816, 822 (Iowa 1977). I. PROCEDURAL BACKGROUND AND INTRODUCTION A Introduction Plaintiff Thaddeus C. Pulla filed this action against his employer Amoco Oil Company on February 20, 1991, alleging age discrimination in the form of demotion and retaliation in violation of the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., and pendant state law claims, including a claim of invasion of privacy. On January 18, 1994, the parties filed a consent to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) and the case was referred to me. After discovery and dispositive motions, this matter proceeded to trial before a jury on three of Pulla’s claims on May 3, 1994. Those claims were the two age discrimination claims of demotion and retaliation and the invasion of privacy claim. After the conclusion of the presentation of Pulla’s case on the afternoon of May 5, 1994, on the morning of May 6,1994, Amoco moved for judgment as a matter of law on all of Pulla’s claims pursuant to Fed.R.Civ.P. 50. The court reserved ruling on that motion. Strangely, Amoco did not reassert the motion for judgment as a matter of law at the conclusion of its own case at the end of the day. The court held the first of two jury instruction conferences on the record on the afternoon of May 6, 1994, and the second following the weekend break on the morning of May 9, 1994. The jury was instructed and the case was submitted to them on the morning of May 9, 1994. The jury returned a verdict on the afternoon of May 9, 1994, finding in favor of Amoco and against Pulla on all claims except the invasion of privacy claim. On the invasion of privacy claim, the jury awarded $1 in actual damages for past mental pain and suffering, and $1 in actual damages for future mental pain and suffering (reduced to present value). The jury also answered in the affirmative a special interrogatory on punitive damages asking if the jury found by a preponderance of the clear, convincing, and satisfactory evidence that Amoco’s conduct in invading Pulla’s privacy constituted willful and wanton disregard for Pulla’s rights. The jury awarded Pulla $500,000 in punitive damages. The jury also answered in the affirmative a special interrogatory asking if the jury found that Amoeo’s conduct had been directed specifically at Pulla. Judgment was entered on the jury’s verdict on May 10, 1994. Amoco filed the present post-trial motions challenging the jury’s verdict on May 20, 1994. Amoco filed its overlength brief, with the permission of the court, on May 24,1994. Pulla resisted Amoco’s motions on June 1, 1994. Hearing was held on Amoeo’s motions June 21, 1994. Pulla was represented at the trial and the hearing on Amoeo’s motions by counsel I. John Rossi, of Des Moines, Iowa. Amoco was represented at the trial and at the hearing by counsel Charles E. Gribble, from Whitfield & Eddy, P.L.C., of Des Moines, Iowa. Pursuant to the court’s direction, the parties filed supplemental briefs concerning the motions, Amoco on July 26, 1994, and Pulla on August 8, 1994. This matter is -now fully submitted. B. Summary Of Facts In response to a post-trial motion for judgment as a matter of law, the court must deny the motion if reasonable jurors could differ as to the conclusion that could be drawn from the evidence. McAnally v. Gildersleeve, 16 F.3d 1493, 1500 (8th Cir.1994); Minneapolis Community Dev. Agency v. Lake Calhoun Assoc., 928 F.2d 299, 301 (8th Cir.1991); Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 989 (8th Cir.1989). A brief survey of the facts relevant to Pulla’s invasion of privacy claim, as a reasonable jury could have found them from the evidence presented, is therefore appropriate to place in context the court’s ruling on both the motion for judgment as a matter of law, in which the court must defer to a reasonable jury’s verdict, Tilson v. Forrest City Police Dep’t., 28 F.3d 802, 806 (8th Cir.1994); McAnally, 16 F.3d at 1500, and the motion for new trial, in which the court makes its own evaluation of the evidence. White v. Pence, 961 F.2d 776, 780 (8th Cir.1992). A reasonable jury could have found the following. Pulla was employed by Amoco beginning in 1963, and had been continuously employed by Amoco from 1974. Pulla was eventually promoted to the position of lead representative in the credit card sales authorization and investigation department. A co-employee of Pulla’s, Ms. Leckband, because she was “mad” at Pulla for what she believed to be his abuse of sick leave, reviewed the records of Pulla’s Amoco credit card to try to verify that he had not been sick on days he had claimed- sick leave. Ms. Leckband brought her findings to the attention of Pul-la’s and Leckband’s supervisor, Mr. Wieczo-rek. Mr. Wieczorek told Ms. Leckband that her conduct in reviewing Pulla’s credit card records was not appropriate and must not be repeated, but immediately asked another employee, Diana Scott, to make a copy of Pulla’s credit card records, and then delivered the copy himself to Amoeo’s personnel department to be placed in Pulla’s personnel records. Pulla learned that his credit card records had been reviewed in telephone calls from other Amoco employees, and made further investigations. As the result of what he discovered about review and use of his credit card records, Pulla suffered feelings of being watched all the time, and believes that the credit card records made available to third parties in his personnel file unfairly cast him in a bad light. Mr. Wieczorek referred to absences Ms. Leckband had tried to demonstrate were improper in a subsequent employee evaluation of Pulla, and Pulla was singled out for a requirement that he obtain certification from a company doctor of any sick leave claims he subsequently submitted. C. Amoco’s Challenge To The Jury Verdict Amoco has made the following challenges to the jury’s verdict in its post-trial motions. First, Amoco attacks the jury’s verdict finding an invasion of privacy. Specifically, Amoco argues that there is insufficient evidence that Pulla suffered any anguish or suffering as the result of any invasion of his privacy to support his claim, that Amoco had a legitimate interest in reviewing the information in question here, that the evidence shows that Amoco’s means were, not objectionable to a reasonable person, and that there is insufficient evidence to find that Amoco ratified any wrongful conduct. Amoco also argues that the evidence of injury that Pulla presented was insufficient as a matter of law and that the court instructed on the wrong standard for finding an injury. Amoco also challenges the award of punitive damages in this case. Specifically, Amoco argues that there is insufficient evidence of malice or of ratification of wrongful conduct on the part of Amoco to support the jury’s award of punitive damages in this case. Amoco also argues that there are no actual damages awarded here and that an award of actual damages is a precondition to an award of punitive damages under Iowa law. Finally, Amoco argues that the punitive damage award in this case is excessive and violative of due process. The court must conduct the constitutionally required post-trial review of the excessiveness of a punitive damage award, but the court concludes that post-trial review of all of Amoco’s claims of error, with the exception of the issue of ratification of the alleged invasion of privacy, have been waived by failure to assert those claims of error in a timely motion for judgment as a matter of law or by failure to raise adequate objections to relevant jury instructions. In the alternative, the court conducts the appropriate review to determine whether Amoco is entitled to judgment as a matter of law or to a new trial, and concludes that Amoco is not entitled to post-trial relief under either standard. D. Chart Of Issues, Waivers, And Disposition On The Merits The chart that follows provides a concise statement of Amoco’s challenges to the verdict in this case, when they were raised, whether or not they have been waived, and how the court disposes of them on the merits to help clarify the issues discussed more fully below. II. ANALYSIS A. Preservation Of Errors The chart above reveals the court’s conclusion that Amoco has waived almost all of its post-trial challenges to the jury’s verdict and that, even on their merits, the challenges do not require judgment as a matter of law in Amoco’s favor or a new trial. However, before explaining the basis for the court’s conclusion on the merits of Amoco’s post-trial motions for judgment as a matter of law and new trial, the court will explain its conclusions regarding Amoeo’s failure to preserve for post-trial consideration most of the objections it now raises to the jury instructions given and to the jury’s verdict. The court will first discuss why Amoco’s failure to renew its motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50 at the close of all evidence constituted a waiver of issues raised in that motion. Next, the court will discuss why Amoco’s objections, or failure to object, to certain jury instructions waived error on the issues presented. 1. Preservation Of Error And Rule 50 Motions At the close' of Pulla’s case, Amoco moved for judgment as a matter of law on all of Pulla’s claims pursuant to Fed.R.Civ.P. 50. Concerning Pulla’s claim of invasion of privacy, Amoco argued there was no testimony to establish that Pulla had suffered any anguish as the result of the review of his credit card records. In response to Amoeo’s Rule 50 motion on the invasion of privacy claim, Pulla stated his intention to call one more witness. Amoco did not raise the issues of punitive damages, malice, or ratification, in its Rule 50 motion. The court took the motion under advisement, and although expressing doubt as to the submissibility of some of the claims, specifically stated that it thought the invasion of privacy claim was submissible. Following Amoco’s motion pursuant to Fed.R.Civ.P. 50, four witnesses testified, providing a full day of testimony. Although Pulla did not call any more witnesses, he did attempt to introduce some further evidence on the invasion of privacy claim during the testimony of Mr. Marzullo. At the close of all evidence, Amoco, for no apparent reason, failed to reassert its motion pursuant to Rule 50. Amoco argues that its failure to reassert the motion pursuant to Rule 50 is not fatal to its present assertion of a motion for judgment as a matter of law (formerly a motion for judgment notwithstanding the verdict or j.n.o.v.). Amoco argues that among the exceptions to the rule that a motion for judgment as a matter of law must be renewed at the close of all evidence are when the court took the motion under advisement and when objections were made to jury instructions on the same subject, circumstances Amoco argues were present here. Under Fed.R.Civ.P. 50(b), a litigant’s motion for judgment notwithstanding the verdict may not be entertained unless the movant previously moved for judgment as a matter of law (formerly “directed verdict”) at the close of all evidence. Smith v. Ferrel, 852 F.2d 1074, 1075 (8th Cir.1988) (record disclosed that no motion for “directed verdict” had been made at the close of all evidence, “appellant therefore cannot question the sufficiency of the evidence either before the district court through a motion for judgment notwithstanding the verdict or on appeal.”); Hubbard v. White, 755 F.2d 692, 695 (8th Cir.1985) (motion for “directed verdict” at the close of evidence was an “essential condition precedent” to a motion for judgment notwithstanding the verdict, and where no such motion was made at the close of evidence, the j.n.o.v. motion was barred); Myers v. Norfolk Livestock Market, Inc., 696 F.2d 555, 558 (8th Cir.1982). See also Redd v. City of Phenix City, Ala., 934 F.2d 1211, 1214 (11th Cir.1991); Yohannon v. Keene Corp., 924 F.2d 1255, 1261 (3d Cir.1991). The motion for judgment as a matter of law must assert each of the grounds subsequently relied upon in the motion for judgment notwithstanding the verdict. Midamar Corp. v. National-Ben Franklin Ins. Co., 898 F.2d 1333, 1337 (8th Cir.1990); Lowe v. Conlee, 742 F.2d 1140, 1141 (8th Cir.1984). See also Purcell v. Seguin State Bank & Trust Co., 999 F.2d 950, 956 (5th Cir.1993); McCann v. Texas City Refining, Inc., 984 F.2d 667, 671 (5th Cir.1993). a. Reassertion Of A Rule 50 Motion Courts, including the Eighth Circuit Court of Appeals, have construed Rule 50(b) as requiring a party who has moved for judgment as a matter of law prior to the conclusion of the case to reassert that motion at the close of all of the evidence, or be held to have waived the right to seek judgment notwithstanding the verdict. Myers, 696 F.2d at 558. See also Purcell, 999 F.2d at 956 (failure to renew motion waives right to file a post-verdict motion for judgment); McCann, 984 F.2d at 672 (motion for judgment as a matter of law made earlier than the close of evidence, but not renewed at the close of all evidence, “cannot serve as a predicate for a motion for judgment notwithstanding the verdict.”); Riverview Inv., Inc. v. Ottawa Community Improvement Corp., 899 F.2d 474, 477 (6th Cir.1990) (“party seeking a judgment n.o.v. must, as a prerequisite, move for a directed verdict at the close of all the evidence or renew such motion if made prior to the close of all the evidence.”); Gutzwiller v. Fenik, 860 F.2d 1317, 1330 (6th Cir.1988) (party who fails to renew prior motion waives the original motion and is precluded from questioning the sufficiency of the evidence on appeal.). Where a motion for judgment as a matter of law made before the close of evidence has not been renewed, the court should not even consider the j.n.o.v. motion. McCann, 984 F.2d at 671. A party foreclosed from pursuing a motion for judgment notwithstanding the verdict for this reason is limited at the time of post-trial motions to a motion for new trial, Yohannon, 924 F.2d at 1261, and in some circuits is deemed to have waived any post-trial attack on the sufficiency of the evidence. See, e.g., Redd, 934 F.2d at 1214 (in such circumstances no attack on sufficiency of evidence is allowed); Yohannon, 924 F.2d at 1262 (citing cases in the Third Circuit that so hold); Seidman v. Am. Airlines, Inc., 923 F.2d 1134, 1137 (5th Cir.1991); Ferrel, 852 F.2d at 1075; Bohrer v. Hanes Corp., 715 F.2d 213, 216 (5th Cir.1983), cert. denied, 465 U.S. 1026, 104 S.Ct. 1284, 79 L.Ed.2d 687 (1984). The purposes of this requirement are that it enable[s] the trial court to re-examine the question of evidentiary insufficiency as a matter of law, if the jury returns a verdict contrary to the movant, and [it] alert[s] the opposing party to the insufficiency before the case is submitted to the jury, thereby affording it an opportunity to cure any defects in proof should the motion have merit. Bohrer, 715 F.2d at 217; see also Seidman, 923 F.2d at 1137 (quoting Bohrer). One circuit court of appeals has held that a party who made the proper motion at the close of the plaintiffs case, but failed to renew that motion at the close of all of the evidence, had not made a “purely technical” error that could be excused. Redd, 934 F.2d at 1214. Rather, the court held in Rule 50 [w]e are presented with a particularly clear and mechanical rule of law; the [defendant] did not comply and the district judge may not waive [sic] his magic wand dismissing a procedural requirement as a technicality. Id. Therefore the district court’s j.n.o.v. was reversed. Id. Some time ago, the Eighth Circuit Court of Appeals recognized that other circuits had found certain circumstances excused technical non-compliance with the reassertion requirement. Myers, 696 F.2d at 558-59 (citing cases from various circuits that had excused non-compliance without elaboration of facts of those cases). The court stated that [assuming we were to apply a flexible approach, however, the record in the instant ease discloses no circumstances similar to those relied upon in the above-cited decisions to excuse noncompliance with Rule 50(b). Consequently, [defendant] was precluded from presenting its motion for judgment notwithstanding the verdict. ... Id. at 559. In Myers, the defendant’s motion for directed verdict at the close of plaintiffs evidence had been denied and was not reasserted at the close of all of the evidence. Id. at 558-59. Because Eighth Circuit cases provide little guidance on what circumstances are sufficient to excuse non-compliance, the court turns to an examination of what circumstances other courts have recognized as sufficient. Some courts have allowed post-trial j.n.o.v. motions despite failure to reassert a prior Rule 50 motion at the close of all evidence “when the purposes of the rule have been satisfied because the court has had the opportunity to reconsider sufficiency as a matter of law and because the nonmovant has had the opportunity to cure any insufficien-cies.” Purcell, 999 F.2d at 956. These courts have sometimes justified excusing technical non-compliance on the basis of the “liberal spirit imbuing the Federal Rules of Civil Procedure.” Gutzwiller, 860 F.2d at 1331 (technical non-compliance excused if purposes of rule have been served, and finding opposing party and court had been put on notice of sufficiency challenges by first Rule 50 motion and court’s subsequent reopening of questions raised thus serving purposes of rule). The Fifth Circuit requires that the non-compliance be “de minimis,” specifying the circumstances in which it has excused non-compliance to be where the trial court had reserved a ruling on an earlier motion for directed verdict (made at the close of the plaintiffs evidence); the defendant called no more than two witnesses before closing; only a few minutes elapsed between the motion for directed verdict and the conclusion of all the evidence; and the plaintiff introduced no rebuttal evidence. McCann, 984 F.2d at 671 (citing cases); Davis v. First Nat’l Bank of Killeen, Tex., 976 F.2d 944, 949 (5th Cir.1992). The Fifth Circuit has since required this combination of circumstances. Purcell, 999 F.2d at 956 (the court reserves ruling on the first motion, the only evidence introduced after the motion is not related to the motion, and very little time passes between the original motion and the close of evidence). Similar, but slightly different combinations of these elements have been required by other courts. See, e.g., Gutzwiller, 860 F.2d at 1330 (reservation of ruling, followed by court’s reconsideration of issues enough without reference to temporal framework or amount of evidence offered after motion). The Sixth Circuit has a two-prong test to decide when to depart from “slavish nominalism” in adherence to the reassertion requirement of Rule 50: [A] motion for judgment notwithstanding may be granted despite the party’s failure to renew his motion for a directed verdict where: (1) The court indicated that renewal of the motion would not be necessary to preserve the party’s rights; and (2) The evidence following the party’s unrenewed motion for a directed verdict was brief and inconsequential. Riverview Investments, 899 F.2d at 477 (citing Boynton v. TRW, Inc., 858 F.2d 1178, 1186 (6th Cir.1988), and 5A Moore’s Federal Practice Digest § 50.08 (2d ed. 1984)). Some courts have excused non-compliance with the reassertion requirement where the movant of the original motion subsequently objects to proposed jury instructions on grounds pertaining to the sufficiency of evidence. Purcell, 999 F.2d at 956 (citing Villanueva v. McInnis, 723 F.2d 414, 417-18 (5th Cir.1984)). However, in Villanueva, the defendant had been specifically directed to reassert his motion after the presentation of closing arguments and jury instructions. Villanueva, 723 F.2d at 418. Finally, some courts will only excuse non-compliance to avoid injustice or an evidentiary inadequacy. See Yohannon, 924 F.2d at 1262 (relying on fact that undisputed evidence showed verdict was totally without legal support and justice required the court’s review of the sufficiency of evidence). Amoco appears to argue that each of the following circumstances standing alone is sufficient to excuse non-compliance: (1) if the court took the motion under advisement or there was some confusion on the part of the court and counsel as to whether the motion needed to be renewed, citing Farley Transp. Co. v. Santa Fe Trail Transp. Co., 786 F.2d 1342 (9th Cir.1985); Boynton v. TRW, Inc., 858 F.2d 1178 (6th Cir.1988); Miller v. Rowan Cos., Inc., 815 F.2d 1021, 1025 (5th Cir. 1987); K & S Partnership v. Continental Bank, NA, 127 F.R.D. 664 (D.Neb.1989); (2) little or no evidence on the subject was introduced after the motion was made, citing Halsell v. Kimberly-Clark Corp., 683 F.2d 285, 294 (8th Cir.1982); Miller, 815 F.2d at 1025; K & S Partnership, 127 F.R.D. at 664; and (3) objections were made to jury instructions on the same subject, citing Farley, 786 F.2d at 1347; Hinojosa v. City of Terrell, 834 F.2d 1223, 1228 (5th Cir.1988). Yet, the court finds that the Fifth Circuit cases Amoco cites do not stand for the proposition that any one of these circumstances standing alone will excuse non-compliance; rather, the Fifth Circuit specifically requires a set of circumstances described above. Purcell, 999 F.2d at 956; McCann, 984 F.2d at 671 (citing cases); Davis v. First Nat’l Bank of Killeen, Tex., 976 F.2d 944, 949 (5th Cir.1992). Similarly, in Farley, two circumstances in combination were considered sufficient: The court reserved ruling on the prior motion and objections were made to jury instructions. Farley, 786 F.2d at 1347. In Halsell, the court noted that excusing non-compliance requires both an indication by the court that renewal of the motion was not required and the evidence introduced after the motion was brief. Halsell, 683 F.2d at 294. The court found that in the case before it, the court had stated that it considered the motion renewed and the evidence introduced after the motion was slight and did not pertain to the issues raised in the motion for directed verdict. Id. See also K & S Partnership, 127 F.R.D. at 666 (noncompliance excused because of combination of factors, including no prejudice from failure to reassert motion, court tacitly-condoned procedure allowing defendant to move for directed verdict before formally resting, defendant presented no new evidence before resting, and evidence presented was brief and consisted of summary of certain complex evidence already in the record). In Hinojosa, although the court seemed to accept that objections to jury instructions alone might excuse failure to reassert a motion for directed verdict, the court was actually confronted with a situation where there had been no prior motion for directed verdict, and the court concluded that the defendant’s motion for j.n.o.v. lacked the proper predicate. Hinojosa, 834 F.2d at 1228. The court concludes that any of the factors Amoco has listed standing alone is inadequate to excuse non-compliance with Rule 50. b. Lack Of Reassertion Of Amoco’s Rule 50 Motion In the present circumstances, the court did take under advisement Amoco’s motion for judgment as a matter of law at the conclusion of Pulla’s case. That action was not an indication by the court that renewal of the motion was not required; rather, in the context of the court’s further discussion of the submissibility of the invasion of privacy claim, taking the motion under advisement should have prompted Amoco to reassert its motion at the proper time. Also, Pulla indicated an intention to attempt to introduce further evidence in support of that claim. Pulla made such an effort. These circumstances should also have alerted Amoco to the necessity of reasserting its motion at the proper time. Also, a substantial part of the trial, four witnesses lasting a full day involving introduction of several exhibits by both parties, followed Amoco’s motion. In the circumstances of this case, Amoco’s failure to reassert its motion was not a “de minimis” departure from standard procedures, but a major oversight. This court is not inclined to wave its magic wand and ignore the specific requirements of the rule and relevant decisions. Furthermore, the court does not find that injustice will result from the court’s adherence to the dictates of Rule 50, precluding Amoco from asserting a post-trial motion for judgment as a matter of law on the ground that Amoco failed to reassert its motion for judgment as a matter of law at the close of all evidence. Amoco’s application for post-trial relief should be limited to a motion for new trial. Yohannon, 924 F.2d at 1261. The court’s conclusion disposes of issues Amoco raised in its unrenewed motion for judgment as a matter of law and those it failed to raise in that motion. Of the issues raised in its unrenewed motion for judgment as a matter of law, the only one of interest here is Amoco’s assertion that there was no evidence of anguish or suffering to support submission of Pulla’s claim of invasion of privacy to the jury. The motion was not timely reasserted, and Amoco thereby waived its right to assert the issue in the present post-trial motion for judgment as a matter of law. Myers, 696 F.2d at 558. Amoco did not raise at all in its first motion for judgment as a matter of law any of the following challenges to the jury’s verdict finding an invasion of privacy: Amoco’s assertion that it had a legitimate interest in the information it obtained from Pulla’s private records; that its means in obtaining that information were not objectionable to a reasonable person; that Amoco did not ratify any wrongful conduct by an employee; and that the jury found an invasion of privacy upon the wrong standard for injury. A motion for judgment as a matter of law is therefore waived as to these issues, and Amoco’s only means of post-trial relief on these issues is through assertion of a motion for new trial. Similarly, Amoco did not assert in its first motion for judgment as a matter of law the following challenges to the jury’s award of punitive damages: Sufficiency of the evidence on any issue pertaining to punitive damages including whether there had been a showing of actual damages; or sufficient evidence of malice or ratification. Amoco’s means of obtaining post-trial relief on these issues are therefore also limited to a motion for new trial. The following chart summarizes these conclusions. The court will next consider whether Amoco’s objections to jury instructions on punitive damages preserved its challenges to the punitive damages award for review on a motion for judgment as a matter of law as well as on a motion for new trial The court will also consider the effect of Amoco’s objections or failure to object to jury instructions on preservation of any of its other claims of error even for consideration on a motion for new trial. 2. Objections To Jury Instructions Amoco has asserted that its objections to jury instructions may substitute for strict compliance with the reassertion requirement of Rule 50, citing Farley, 786 F.2d at 1347; Hinojosa, 834 F.2d at 1228. However, the court finds that there is no issue raised in Amoco’s first motion for judgment as a matter of law that could be construed to have been reasserted in Amoco’s objections to jury instructions. The only issue Amoco continues to challenge here that it raised in its first motion for judgment as a matter of law was the issue of the sufficiency of evidence of anguish and suffering. That issue was not resurrected at any time during objections to jury instructions. Amoco’s objections to jury instructions therefore cannot serve to preserve any issue for consideration on a post-trial motion for judgment as a matter of law even were such an objection sufficient alone to preserve error for such consideration. Furthermore, Amoco’s objections, or failure to object, to jury instructions have not preserved any error in those instructions for consideration even on a motion for new trial. First, a fair reading of Amoeo’s arguments concerning the invasion of privacy claim is that the court did not properly instruct the jury on the proper degree of anguish or mental distress necessary to sustain a verdict in Pulla’s favor. Although these arguments will be discussed further herein, in its post-trial briefing of these motions, Amoco has argued for the first time in this litigation that a “high degree” of mental pain or distress or “severe emotional distress” is required to support a claim of invasion of privacy. Amoco made no objection to the court’s statement of the elements of the invasion of privacy claim in the final discussion of jury instructions, although in its motion for judgment as a matter of law Amoco did object to the court submitting to the jury an invasion of privacy claim on the ground that there was no evidence of “any anguish or suffering” on Pulla’s part as the result of the alleged invasion of privacy. Second, Amoco seeks judgment as a matter of law or new trial on the ground that it was error for the court to submit a jury instruction on punitive damages because there was insufficient evidence of malice and insufficient evidence of ratification of wrongful acts by any Amoco employee with managerial capacity. However, the record conclusively demonstrates that Amoco objected to the punitive damages instruction only on the more general ground of “lack of evidence.” Amoco argues that this objection was sufficient to preserve the issue as to evidence of malice, because the essence of allowance of punitive damages in Iowa is that there must be malice or willful and wanton conduct. a. Necessity, Purpose, And Effect Of Objections And Failure To Object Fed.R.Civ.P. 51 states, in pertinent part, that [n]o party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make objection out of the hearing of the jury. The Eighth Circuit Court of Appeals has held that Fed.R.Civ.P. 51 imposes an affirmative duty on litigants to assert objections to jury instructions before the jury has retired or not at all. Krementz v. Raby, 959 F.2d 695, 697 (8th Cir.1992) (party could not rely on court’s statement that it would “hold up on the ruling” on a particular issue because there was some question about it as preserving error on pertinent instruction when no objection to instruction on the issue was made before jury retired); Tinnon v. Burlington Northern R.R. Co., 898 F.2d 1340, 1341 (8th Cir.1990) (counsel cannot rely on the court or any other party to discharge duty to object); Ways v. City of Lincoln, Nebraska, 871 F.2d 750, 757 (8th Cir.1989); Phillips v. Parke, Davis & Co., 869 F.2d 407, 409 (8th Cir.1989) (“Rule 51 makes it incumbent upon the attorneys in a civil case to ascertain how the jury is to be instructed and to state any objections before the jury retires. Counsel is entitled to rely on no one in discharging this duty”). The purpose of Rule 51 is to compel litigants to afford the trial court an opportunity to correct any error in the instructions and also to prevent the losing party from obtaining a new trial through relying on a possible error in the original trial. Johnson v. Houser, 704 F.2d 1049, 1051 (8th Cir.1983) (per curiam). See also Arthur Young & Co. v. Reves, 937 F.2d 1310, 1333-34 (8th Cir.1991) (citing Johnson); Tinnon, 898 F.2d at 1341; Ways, 871 F.2d at 757 n. 5 (quoting Johnson and holding that litigants failed to object at the required time); Phillips, 869 F.2d at 409 (purpose of rule is to give trial court the opportunity to cure a defect in the instructions prior to submission of case to jury). The Rule helps to avoid the necessity of a retrial when a losing party, “by design or through sheer neglect,” fails to make an objection at the proper time. Arthur Young & Co., 937 F.2d at 1334 (quoting 9 C. Wright & A. Miller, FEDERAL PRACTICE AND Procedure § 2551 (1971)). Failure to make a proper objection to a jury instruction constitutes a waiver of error. Campbell, 19 F.3d at 1277; Arthur Young & Co., 937 F.2d at 1334; Hicks v. Six Flags Over Mid-America, 821 F.2d 1311, 1315 (8th Cir.1987); Thomas v. Booker, 784 F.2d 299, 304 (8th Cir.1986), Johnson, 704 F.2d at 1051. b. Timing, Procedure, And Specificity Required For Objections Cases from this circuit demonstrate that the timing requirements and procedures for objecting to jury instructions must be followed. Specific objections must be made on the record; tender of an alternative instruction without objecting to the court’s charge will not preserve the error. Campbell v. Vinjamuri, 19 F.3d 1274, 1277 (8th Cir.1994); Tillwick v. Sears, Roebuck & Co., 963 F.2d 1097, 1099 (8th Cir.1992) (specific objection must be on the record); Farmland Indus. v. Frazier-Parrott Commodities, Inc., 871 F.2d 1402, 1408 (8th Cir.1989) (tender of alternative instruction not enough), Johnson, 704 F.2d at 1051 (tender of alternative instruction not enough), but see Beckman v. Mayo Foundation, 804 F.2d 435, 438 (8th Cir.1986) (noting that “[a] general objection to the failure to give proposed instructions may suffice to preserve the alleged error,” citing Monahan v. Flannery, 755 F.2d 678, 683 (8th Cir.1985), but holding that because no objection had been made the issue was waived). Extensive pretrial briefing of an issue will not preserve alleged errors in instruction on that issue if no objection is made to the relevant instruction be fore the jury retires. Beckman, 804 F.2d at 438; DeHues v. Western Electric Co., 710 F.2d 1344, 1346 (8th Cir.1983). Objections to instructing on an issue made during the course of trial will not preserve an error in the instructions when no further objection is made to the instructions prior to the jury retiring. Krementz, 959 F.2d at 697 (judge himself raised objection to particular instruction at close of plaintiffs case, but party did not reurge the objection prior to instruction of jury). Nor does a party’s alternative post-trial motion for judgment as a matter of law or for new trial preserve the issue for appellate review, because Rule 51 “is not so easily circumvented.” Norton v. Caremark, Inc., 20 F.3d 330, 335 (8th Cir.1994) (citing and quoting Mid-America Food Service, Inc. v. ARA Services, Inc., 578 F.2d 691, 695 (8th Cir.1978)). Objections to jury instructions must also be “sufficiently specific to bring into focus the precise nature of the alleged error.” Palmer v. Hoffman, 318 U.S. 109, 63 S.Ct. 477, 87 L.Ed. 645 (1943); Hicks, 821 F.2d at 1315; Denniston v. Burlington Northern, Inc., 726 F.2d 391, 393 (8th Cir. 1984); Wilson v. Crouse-Hinds Co., 556 F.2d 870, 875 (8th Cir.), cert. denied, 434 U.S. 968, 98 S.Ct. 513, 54 L.Ed.2d 455 (1977). Rule 51 itself requires that an objection to a jury instruction state “distinctly the matter objected to and the grounds of the objection.” Christopherson v. Deere & Co., 941 F.2d 692, 694 (8th Cir.1991) (finding objection made insufficient). Consequently, the Eighth Circuit Court of Appeals has also required a close relationship between the objection made before the jury was instructed and subsequent complaints of error. In Hrzenak v. White-Westinghouse Appliance Co., 682 F.2d 714, 719 (8th Cir. 1982), the plaintiff objected to an instruction on appeal on the ground that the instruction misled the jury into believing that he had the burden of establishing why he was discharged, which is contrary to Missouri law, but at trial he had only objected on the ground that the instruction “constitutes a third burden of proof placed upon the plaintiff as the other burden of proofs being set forth in plaintiffs 3 and defendant’s No. 3 and defendant’s No. 4.” Hrzenak, 682 F.2d at 719. The court concluded that this objection was not specific enough to preserve the alleged error for appellate review under Rule 51. Id. In Denniston, on appeal the plaintiff contended that one of the instructions was erroneous because it was “cautionary and argumentative” and prevented the jury from considering defects as evidence of negligence. Denniston, 726 F.2d at 393. However, at trial, Denniston had made only a “general objection” to the instruction that “did not particularize either of these grounds.” Id. The court therefore concluded that Den-niston had not preserved the alleged error for review. Id. Similarly, in Johnson, the plaintiff “failed specifically to object to the instruction that was given,” but stated only that he “would prefer” a different wording. Johnson, 704 F.2d at 1051. The court concluded that describing some other instruction as “preferred” without a specific objection to the instruction given waived the objection. Id. In Tinnon, one party objected to an instruction on the ground that it was not applicable to the facts and that it was misleading, not on the ground that a portion of the Arkansas statute had been omitted from the instruction, which was its objection on appeal. Tinnon, 898 F.2d at 1343. The court held that the complaining party “did not distinctly state the nature of [its] complaint as required by Rule 51” and therefore held it could review the instruction only under the “plain error” standard. Id. In Christopherson, the plaintiff objected to an instruction on the ground that “the evidence was insufficient to justify an assumption of risk instruction, not that the instruction itself contained an incorrect statement of the law.” Christopherson, 941 F.2d at 694. The court again held that the objection did not state distinctly the matter objected to or the grounds of the objection as required by the rule. Id. See also Thomas v. Booker, 784 F.2d 299, 304 (8th Cir.1986) (objection that counsel did not believe that “there’s any evidence in the ease to support the giving of that instruction” was insufficient to preserve error alleging instruction applied an improper legal standard). c. Amoco’s Objections Or Lack Thereof i. The Elements Of Invasion Of Privacy Amoco now objects to jury instructions on two of the elements necessary for liability on Pulla’s invasion of privacy claim, ratification and the standard for injury. However, only the ratification objection was actually made at the time of the final conferences on jury instructions. The objection to the standard for injury presented in the jury instructions was made for the first time in Amoeo’s post-trial motions. In its briefs in support of its post-trial motions, Amoco argues strenuously that a claim of invasion of privacy requires a “high degree” of mental pain or “severe emotion stress.” Yet, Amoco did not object to the jury instruction on invasion of privacy on any ground except to argue that there was no evidence upon which a jury could find ratification. Amoco certainly did not object to the invasion of privacy instruction on the ground that it misstated the standard for injury a jury was required to find in order for Pulla to prevail on his claim. The court concludes below that it properly instructed the jury on the elements of the claim under Iowa law. Furthermore, Amoco’s objections to submitting Pulla’s invasion of privacy claim offered during the course of trial cannot substitute for a timely objection to the relevant instruction. Krementz, 959 F.2d at 697. Nor will Amoeo’s alternative post-trial motions for judgment as a matter of law or for new trial preserve the issue for post-trial or appellate review, because Rule 51 “is not so easily circumvented.” Norton, 20 F.3d at 335. Even were the court to consider the objection offered during the unrenewed motion for judgment as a matter of law, the court concludes that the objection made then, that “[tjhere’s no testimony in the record to establish that the review of the credit card records caused any anguish or suffering” to Pulla, is too general to preserve an error based on alleged misstatement of the standards for the amount of injury required. Christopherson, 941 F.2d at 694; Tinnon, 898 F.2d at 1343; Denniston, 726 F.2d at 393; Hrzenak, 682 F.2d at 719. Amoco failed to preserve the alleged error in the invasion of privacy instruction, and failed to state its objection with the required specificity. Amoco is not entitled to judgment as a matter of law or a new trial on the basis of any alleged error in the invasion of privacy instruction, Amoco’s objection to the invasion of privacy instruction as it pertains to ratification was not raised in the first, unrenewed motion for judgment as a matter of law, and the court concluded above that Amoco cannot assert this issue as a ground for a motion for judgment as a matter of law. However, Amoco’s objection to the invasion of privacy instruction as it pertains to ratification does not suffer the same difficulties under Fed. R.Civ.P. 51 as do Amoco’s objections to the standard for injury. Amoco’s objection concerning ratification was stated distinctly and specifically at the time of objections to jury instructions. Amoco therefore preserved this error, and only this error,.for consideration on a motion for new trial. ii. The Malice And Ratification Instructions On Punitive Damages Although Amoco did timely object to the punitive damages instructions on the ground of “lack of evidence,” in its post-trial motions Amoco has greatly amplified its objection. Post-trial Amoco now asserts that it is specifically lack of evidence of malice and lack of evidence of ratification that should have prevented the court from instructing the jury on punitive damages. Amoco asserts that its general objection was sufficient to preserve error because malice is the essence of an award of punitive damages under Iowa law. The court is not persuaded that Amoeo’s objection was “sufficiently specific to bring into focus the precise nature of the alleged error,” Palmer, 318 U.S. at 119, 63 S.Ct., at 483; Hicks, 821 F.2d at 1315; Denniston, 726 F.2d at 393; Wilson, 556 F.2d at 875, or that it stated “distinctly the matter objected to and the grounds of the objection” as required by Rule 51. Christopherson v. Deere & Co., 941 F.2d 692, 694 (8th Cir.1991) (finding objection made insufficient). Malice (or wanton and willful conduct, as the level of culpability is defined by Iowa Code § 668A.1), is not the only question which a jury must resolve on the basis of the evidence presented in order to award punitive damages. See, e.g., Iowa Model Civil Jury Instruction 210.1. As is discussed more fully below, a principal evi-dentiary issue is whether the plaintiff has shown actual damages. See, e.g., Pringle Tax Service, Inc. v. Knoblauch, 282 N.W.2d 151, 153-54 (Iowa 1979). Another is the amount of punitive damages which will punish and discourage like conduct by the defendant and others. TXO Production Corp. v. Alliance Resources Corp., — U.S. —, —, 113 S.Ct. 2711, 2721-22, 125 L.Ed.2d 366 (1993); Spaur v. Owens-Corning Fiberglas Corp., 510 N.W.2d 854, 865 (Iowa 1994); Beeman v. Manville Corp. Asbestos Disease Compensation Fund, 496 N.W.2d 247, 255 (Iowa 1993); Ryan v. Arneson, 422 N.W.2d 491, 496 (Iowa 1988); Pringle, 282 N.W.2d at 154; McCarthy v. J.P. Cullen & Son, Corp., 199 N.W.2d 362, 369 (Iowa 1972). Yet another, in the context of a case involving a corporate defendant being held liable for punitive damages for a tort by an employee or employees, is the question of Amoco’s ratification of the misconduct. See, e.g., Bethards v. Shivvers, Inc., 355 N.W.2d 39, 45 (Iowa 1984). Amoco’s belated focus on but one or two of these factors as unsupported by the evidence could not have been drawn to the court’s attention by the general “lack of evidence” objection made at the final jury instruction conference. Amoco’s objections to the punitive damages instructions on the basis of lack of evidence of malice or ratification were not distinctly stated. Nor were any grounds offered for the general objection actually made. A “shotgun” objection, offering no specific grounds, should not be allowed to preserve rifle shot issues as specific as evidence on particular elements or factors for which specific guidance is given to the jury. The court concludes that Amoco is not entitled to judgment as a matter of law or a new trial on the basis of any inadequacy in the instructions on malice because Amoco failed to preserve that alleged error. Although the court could read Amoco’s objection to Instruction No. 23 concerning ratification in the context of liability for the invasion of privacy claim as also raising the ratification issue for the punitive damages claim, the court concludes that it is not constrained to read more into a party’s objections than they actually said. Furthermore, Instruction No. 28 also lists ratification as a factor for an award of punitive damages, and no specific objection was raised to the ratification element of that instruction. To allow an objection to a liability instruction on a claim also to stand as an objection to a punitive damage instruction, however similar the elements of the two instructions might be, would relieve defense counsel of the obligation to make separate objection to punitive damage instructions. Such a procedure would fly in the face of Rule 51’s requirements that objections to jury instructions be stated distinctly and specify the objections and grounds therefor. Although the court concluded above that the ratification issue as to liability for any invasion of privacy had been preserved for consideration on a new trial motion, the ratification issue as to liability for punitive damages has not been preserved. The court’s conclusions that Amoco has waived its right to challenge any issue but ratification as to a finding of invasion of privacy on a motion for new trial by noncompliance with Fed.R.Civ.P. 51 are summarized in the following chart. Although the court has concluded that no issue was preserved for consideration on a post-trial motion for judgment as a matter of law, and only the issue of ratification was preserved for consideration on a motion for new trial pursuant to Fed.R.Civ.P. 59, the court will nonetheless, in the alternative, consider all issues Amoco has raised on their merits pursuant to the standards for granting either a post-trial motion for judgment as a matter of law or a post-trial motion for new trial. B. The Appropriate Standard For Determining Amoco’s Post-Trial Motions Pulla’s complaint presents some confusion as to the appropriate standard to be applied to Amoco’s post-trial motions. Jurisdiction over Count I of Pulla’s complaint was founded on a federal question. Pulla pled diversity jurisdiction only in Counts II and III of his original complaint as an alternative to supplemental jurisdiction over state law claims. Count V, the invasion of privacy claim, and the only one on which the jury found for Pulla, was an amendment to the original complaint. Count V of the amended complaint incorporates only the jurisdictional allegations of Count I of the original complaint, in which jurisdiction was founded on a federal question, not diversity. The court had supplemental jurisdiction over the invasion of privacy claim, and assumes that Pulla also intended to assert diversity jurisdiction over this claim as he had for his other state law claims. While neither Pulla nor Amoco has raised the question, “[t]here is some uncertainty about whether federal courts should apply state law standards or federal law standards to motions for a judgment notwithstanding the verdict in diversity cases.” Keenan v. Computer Assoc. Int’l, Inc., 13 F.3d 1266, 1268 n. 3 (8th Cir.1994). Federal Rule of Civil Procedure 50 entitled “Judgment as a Matter of Law in Actions Tried by Jury; Alternative Motion for New Trial; Conditional Rulings” states in relevant part- ía) Judgment as a MatteR of Law. (1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue. (2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgment, (b) Renewal of Motion FOR Judgment After Trial; Alternative Motion for New Trial. Whenever a motion for a judgment as a matter of law made at the close of all the evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. Such a motion may be renewed by service and filing not later than 10 days after entry of judgment. A motion for a new trial under Rule 59 may be joined with a renewal of the motion for judgment as a matter of law, or a new trial may be requested in the alternative.... Fed.R.Civ.P. 50(a) & (b). Federal Rule of Civil Procedure 59 entitled “New Trials; Amendment of Judgments” states in relevant part: (a) GRounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States; and (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in suits in equity in the courts of the United States. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. Fed.R.Civ.P. 59(a). Because there has been some confusion in the district courts in this circuit and because there are substantial differences in the standards to be applied under Federal Rules of Civil Procedure 50 and 59, the court will examine the appropriate standard to be applied under each rule. As the court recently stated in White v. Pence, 961 F.2d 776, 779 (8th Cir.1992), “it is evident that the standards for considering a motion for j.n.o.v. differ thoroughly from those governing consideration of a motion for new trial.” The court in Pence carefully delineated the difference between the appropriate standards for these two motions. In determining a motion for j.n.o.v. (and in the current parlance of Federal Rule of Civil Procedure 50, a motion for “judgment as a matter of law”) the court in Pence observed: the question is a legal one, whether there is sufficient evidence to support a jury verdict. This court must analyze the evidence in the light most favorable to the prevailing party and must not- engage in a weighing or evaluation of the evidence or consider questions of credibility. See Dace v. ACF Indus., Inc., 722 F.2d 374, 375-76 (8th Cir.1983), supplemented, 728 F.2d 976 (1984). We have also stated that to sustain a motion for j.n.o.v., all the evidence must point one way and be susceptible of no reasonable inference sustaining the position of the nonmoving party. Id. at 375; Washburn v. Kansas City Life Ins. Co., 881 F.2d 1404, 1407 (8th Cir.1987); Brown [v. Syntex Lab., Inc., 755 F.2d [668], 671 [ (8th Cir.1985) ]. These principles have no application to the consideration of a motion for new trial on the ground that the verdict is against the weight of the evidence. Pence, 961 F.2d at 779 (footnotes omitted). See also First Dakota Nat’l Bank v. Saint Paul Fire & Marine Ins. Co., 2 F.3d 801, 808-09 (8th Cir.1993). Thus, this standard requires the district court to: “consider the evidence in the light most favorable to the prevailing party, assume that the jury resolved all conflicts of evidence in favor of that party, assume as true all facts which the prevailing party’s evidence tended to prove, give the prevailing party the benefit of all favorable inferences which may reasonably be drawn from the facts, and deny the motion, if in light of the foregoing, reasonable jurors could differ as to the conclusion that could be drawn from the evidence.” Minneapolis Community Dev. Agency v. Lake Calhoun Assoc., 928 F.2d 299, 301 (8th Cir.1991) (quoting Atlas Pile Driving Co. v. DiCon Fin. Co., 886 F.2d 986, 989 (8th Cir. 1989)); McAnally v. Gildersleeve, 16 F.3d 1493, 1500 (8th Cir.1994). This standard for consideration of a motion for judgment notwithstanding the verdict accords the jury’s verdict substantial deference. Tilson v. Forrest City Police Dep’t., 28 F.3d 802, 806 (8th Cir.1994); McAnally, 16 F.3d at 1500. Even with this deference to the jury’s verdict, the jury cannot be accorded “the benefit of unreasonable inferences, or those ‘at war with the undisputed facts,’ ” McAnally, 16 F.3d at 1500 (quoting City of Omaha Employees Betterment Ass’n, 883 F.2d 650, 651 (8th Cir. 1989), in turn quoting Marcoux v. Van Wyk, 572 F.2d 651, 653 (8th Cir.1978)), but the court must still defer to the jury’s resolution of conflicting testimony. Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979). In contrast, concerning motions for new trial under Federal Rule of Civil Procedure 59, the court in Pence observed: With respect to motions for new trial on the question of whether the v