Full opinion text
MEMORANDUM, OPINION AND ORDER MCKNIGHT, United States Magistrate Judge. This matter comes before the undersigned United States magistrate judge pursuant to 28 U.S.C. § 636(c) to consider Defendant Zimmer Machinery Corporation’s (Zimmer’s) motions for entry of judgment as a matter of law and, alternatively, for a new trial [docs. 82-1, 82-1], and for attorneys’ fees [doc. 85], and Plaintiff Vanwyk Textile Systems’ (Vanwyk’s) motion for entry of judgment [doc. 93]. Having carefully considered the record, briefs, and cases cited, the undersigned enters the following memorandum, opinion and order. MOTION FOR JUDGMENT AS A MATTER OF LAW AND ALTERNATIVE MOTION FOR A NEW TRIAL Pursuant to Rules 50(b) and 59, Fed.R.Civ. Pro., Zimmer renews its motion for judgment as a matter of law made at the close of all the evidence and, alternatively, moves for a new trial, or remittitur. For the reasons which follow, both motions will be denied. 1. Standards A. Motion for judgment as a matter of law A motion for judgment as a matter of law will be granted: [I]f “there is no legally sufficient evidentiary basis for a reasonable jury to have found for [the prevailing] party.” Fed. R.Civ.P. 50(a)(1). In making this determination the judge is not to weigh the evidence or appraise the credibility of witnesses, but must view the evidence in the light most favorable to the non-moving party and draw legitimate inferences in its favor. Anheuser-Busch, Inc. v. L & L Wings, Inc., 962 F.2d 316, 318 (4th Cir.) (alteration in original)(discussing the standard for j.n.o.v.), cert. denied, 506 U.S. 872, 113 S.Ct. 206, 121 L.Ed.2d 147 (1992). The court will grant the motion for judgment as a matter of law if “viewing the evidence most favorable to the party opposing the motion, a reasonable trier of fact could draw only one conclusion.” Walker v. Pettit Constr. Co., 605 F.2d 128, 130 (4th Cir.1979); Winant v. Bostic, 5 F.3d 767, 774 (4th Cir.1993) (Court may only grant judgment as a matter of law if, viewing the evidence in the light most favorable to the nonmovant and drawing every legitimate inference in the nonmovant’s favor, the court “determined] that the only conclusion a reasonable trier of fact could draw from the evidence is in favor of the moving party.”). B. Alternate motion for new trial Under Rule 50(b) a motion for a new trial under Rule 59 may be joined with a renewed motion for judgment as a matter of law. The movant may seek a new trial on any ground that would support a new trial motion under Rule 59, and the alternate motion for new trial is assessed according to the same standards that would apply if the motion were made independently under Rule 59. [The] Rule 59 standards are well established in the Fourth Circuit: On such a motion it is the duty of the judge to set aside the verdict and grant a new trial, if he is of the opinion that [1] the verdict is against the clear weight of the evidence, or [2] is based upon evidence which is false, or [3] will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict. Atlas Food Systems and Serv. v. Crane Nat. Vendors, 99 F.3d 587, 594 (4th Cir.1996). “Courts do not grant new trials unless it is reasonably clear that prejudicial error has crept into the record or that substantial justice has not been done ... ”11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2803 (1995). “If, having given full respect to the jury’s findings, the judge on the entire evidence is left with the definite and firm conviction that a mistake has been committed, it is to be expected that he will grant a new trial.” Id. “No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial ... unless refusal to take such action appears to the court inconsistent with substantial justice.” Rule 61, Fed.RCiv.Pro. “The court is not free to set aside the verdict merely because the judge might have awarded a different amount of damages, but it may do so if the proceedings have been tainted by appeals to prejudice or if the verdict, in the light of the evidence, is so unreasonable that it would be unconscionable to permit it to stand.” 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2807. C. Remittitur In Atlas Food Systems, the Fourth Circuit discussed remittitur: [A] remittitur, used in connection with Federal Rule of Civil Procedure 59(a), is the established method by which a trial judge can review a jury award for excessiveness. Remittitur is a process, dating back to 1822, by which the trial court orders a new trial unless the plaintiff accepts a reduction in an excessive jury award----And the permissibility of remittiturs is now settled____Indeed, if a court finds that a jury award is excessive, it is the court’s duty to require a remittitur or order a new trial. Id. at 593. Except in those cases in which it is apparent as a matter of law that certain identifiable sums included in the verdict should not have been there, the court may not arbitrarily reduce the amount of damages, for to do so would deprive the parties of their constitutional right to a jury. 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure, § 2815. “Remittitur is said to be proper “where no clear judicial error or pernicious influence can be identified, but where the verdict is so large as to shock the conscience of the court.’ ” Id., citing Abrams v. Lightolier, 841 F.Supp. 584 (D.C.N.J.1994). “... the trial judge is not called upon to say whether the amount is higher than he personally would have awarded.” Dagnello v. Long Island Railroad Company, 289 F.2d 797 (2d Cir.1961). However, “... reduction only to the highest amount that the jury could properly have awarded ... is the only theory that has any reasonable claim of being consistent with the Seventh Amendment.” Id. II. Breach of fiduciary duty Zimmer argues that the jury’s verdict awarding Vanwyk $83,071 in damages for breach of fiduciary duty relating to Twin Rivers should be set aside on two grounds. First, Zimmer contends, any fiduciary duty Zimmer owed to Vanwyk terminated as of September 27, 1995, before anything in connection with the Twin Rivers transaction took place (i.e., there was no relationship from which any fiduciary duty could arise). Second, Zimmer contends that Vanwyk failed to prove that it would have made the sale had Zimmer not breached any fiduciary duty (i.e., no requisite causation). A. Termination of fiduciary duty Vanwyk’s argument is that it lost the Twin Rivers sale because of Zimmer’s bad faith in the timing and manner of termination of its fiduciary relationship with Zimmer. Although there was no fiduciary duty after September 27, 1995, the Twin Rivers sale was lost, according to Vanwyk, because of breaches of fiduciary duty occurring before September 27,1995. Thus, assigning to Vanwyk’s argument the premise that the fiduciary relationship extended past the date of termination, does not address Vanwyk’s point. Vanwyk’s premise is that the post-termination-date proximately-caused consequence of a pre-termination-date breach of fiduciary duty can be the basis of an award of damages for breach of fiduciary duty; a corollary of the uncontroversial principle that a plaintiff is entitled to be fairly compensated for all damages to his business proximately caused by a defendant’s wrongful conduct, and thus may seek monetary recompense which would placed him or her in the same position as he would have occupied had the breach not occurred. B. Proximate cause Guidance for assessment of the parties’ respective arguments on the causation issue is provided by Charleston Area Medical Center, Incorporated v. Blue Cross and Blue Shield Mutual of Ohio, Incorporated, 6 F.3d 243 (4th Cir.1993): Although issues of causation are to be decided by the jury, whether the evidence is sufficient to create a jury issue is solely a question of law to be determined by the court____ [The federal] rule presents the question whether there is evidence on which a jury properly can base a verdict____ The question often has proved troublesome for the courts because judges are understandably loath to deny to earnest litigants their right to trial by jury. Fair and proper adjudication of disputes, however, precludes jury consideration of a party’s claim unless the party produces evidence demonstrating that claim to be at least a reasonable probability rather than merely one of several equally surmisable possibilities____ This emphasis, where causation is dis-positive, upon “probability,” “reasonable probability,” “substantial probability” rather than mere “possibility” as the proper test simply bespeaks the special danger that in a matter so generally incapable of certain proof jury decision • will be on the basis of sheer speculation, ultimately tipped, in view of the impossibility of choosing rationally between mere “possibilities,” by impermissible but understandable resort to such factors as sympathy and the like. It is of course precisely to guard against this danger that the burden of producing rationally probative evidence — and the corresponding risk of nonproduction — is placed upon claimants and subjected to the ultimate control deviceO of [judgment as a matter of law]. Notwithstanding this danger of jury speculation, we are constrained when reviewing a case in which the sufficiency of the evidence is at issue to view the evidence in the light most favorable to the party against whom the motion is made, giving that party the benefit of all reasonable inferences from the evidence. We may not weigh the evidence, pass on the credibility of the witnesses, or substitute our judgment of the facts for that of the jury---That deference to the jury’s findings is not, however, absolute: “A mere scintilla of evidence is insufficient to sustain the verdict, and the inferences a jury draws to establish causation must be reasonably probable.” Id., 6 F.3d at 247-48. Having carefully listened to and reviewed the evidence presented at trial, applying the above standard, crediting factual asseverations in the light most favorable to Vanwyk, giving Vanwyk the benefit of all reasonable inferences therefrom, not weighing the evidence, not passing on witness credibility,-and not substituting the Court’s judgment of, the facts for that of the jury, and fully taking, into account the denials of Contompasis and Weinheimer, the undersigned is persuaded that the evidence having to do with Vanwyk’s loss of the sale at Twin Rivers being .proximately caused by Zimmer’s breach of fiduciary duty prior to termination of its relationship with Vanwyk, was sufficient to create a jury issue and to provide a basis of reasonable inferential probability on which the jury could properly have based the verdict. ■ Specifically, Vanwyk put on evidence to the effect that Zimmer secretly began representing another manufacturer no later than August 3, 1995; that Zimmer’s sales manager visited Termoelettronica in early September, 1995, by which time Zimmer was already making plans to sell Termoelettronica at ITMA; that Zimmer did not inform Vanwyk of Zimmer’s decision -to terminate its seven-year exclusive relationship with Vanwyk until September 27, 1995, just prior to ITMA; that Zimmer deliberately delayed informing Vanwyk - that Zimmer was terminating its relationship with Vanwyk, freeing Zimmer to take advantage of the numerous sales opportunities on behalf of Termoelettronica at the critical October, 1995, ITMA show, when Vanwyk did not have time to adjust; that Twin Rivers agreed to buy Termoelettronica at ITMA; that Twin Rivers became aware of Termoelettronica solely as a result of its contacts with Zimmer; that Termoelettronica was not a competitor in the U.S. market prior to Zimmer’s representation; that the price for Stork was ' noncompetitive; that Vanwyk could competently manufacture a system which met Twin Rivers’ specifications; that, working with Vanwyk, Zimmer had successfully sold an even larger system to Cherokee, a company whose “cut color” manufacturing process mirrored that of Twin Rivers; and that Vanwyk was hampered in its ITMA presentation, as to Twin Rivers, by Zimmer’s last-minute ending of the relationship. Moreover, although the credibility of Weinheimer and Contompasis (a voluntary Zimmer ■ witness) was for the jury, Vanwyk presented evidence upon which the jury reasonably could have decided to accord their denials less or no weight. Twin Rivers now depends on Zimmer for service and has an ongoing relationship with Zimmer in keeping this substantial investment in operation. Second, Vanwyk drew out inconsistencies. Weinheimer testified that Twin Rivers did not give Zimmer an order for Termoelettronica equipment at ITMA, but Zimmer issued a confirmation order for the Termoelettronica system immediately after ITMA, and a letter from Zimmer’s Doujak to Contompasis states that the commitment for the Termoelettronica dispensing system was received at ITMA. Having stated on direct that he fully reviewed the Vanwyk system, Contompasis admitted on cross that he was unaware that Vanwyk could manufacture a larger capacity system and that Vanwyk had expertise in designing color dispensing systems to accommodate “cut color” processes. Contompasis further admitted that neither he nor anyone from Twin- Rivers had visited a Vanwyk installation or seen Vanwyk equipment in operation. He said he considered Vanwyk a “Johnny-come-lately” to the sales negotiations. In sum, there was a legally sufficient evidentiary basis for a reasonable jury to have found for Vanwyk on the Twin Rivers causation. issue. Nor, under the standards of Rule 59, is justice miscarried by this finding. For the reasons set forth above, Zimmer’s motion for judgment as a matter of law and, in the alternative, for a new trial, as to the verdict with respect to Twin Rivers will be denied. III. Punitive Damages Award A. The breach of fiduciary duty and fraud claims do not reduce to breach of contract. Zimmer argues that Vanwyk has “manufacture[d] a tort dispute out of what is, at bottom, a simple breach of contract claim____attempted] to turn a contract dispute into á tort action with an accompanying punitive dimension ...” Strum v. Exxon Company, 15 F.3d 327, 329 (4th Cir.1994). According to Zimmer, since the jury found there was a contract, the Court should limit Vanwyk’s recovery to breach of contract. Differing views of the facts and reciprocal blame casting should not take this action over into tort. The amended complaint as to breach of contract reads in part: 11. Beginning in 1988, ZMC became the exclusive sales agent for Vanwyk in the United States and Canada. Upon information and belief ZMA assumed some or all of these duties in 1993. As Vanwyk’s general agent, Zimmer agreed that it would sell only Vanwyk’s dispensing equipment for textile printing and dyeing. Vanwyk in turn agreed not to sell its system through any other sales agent in those territories, except as agreed with Zimmer. 12. More specifically, inter alia, a. Zimmer agreed to devote its best efforts to the solicitation of contracts for Vanwyk products; to inform Vanwyk of business possibilities and the activities of competitors in the United States and Canada; to obtain information about potential customers; and otherwise provide support for Vanwyk’s efforts to sell and obtain payment for its products within Zimmer’s sales territory; b. Zimmer agreed to provide Vanwyk with reports of all discussions and business activities, lists of customers and prospective customers and other information with respect to the sales territory as Vanwyk might reasonably need, and Zimmer agreed to send Vanwyk a copy of all correspondence between Zimmer and customers or potential customers; c. Zimmer agreed to treat as confidential the commercial and business secrets which became known to it as a result of its activities for Vanwyk; d. Vanwyk controlled the prices and terms on which Zimmer sold products as Vanwyk’s agent; e. Vanwyk and Zimmer agreed that their agency relationship could be terminated by either party only upon three months notice to the other party. 41. By diverting orders and business opportunities intended for Vanwyk for its own benefit, failing to use its best efforts on Vanwyk’s behalf, concealing from Vanwyk its activities in competition with Vanwyk, misappropriating Vanwyk’s trade secrets and other confidential, proprietary information and terminating its relationship with Vanwyk without prior notice, Zimmer has violated the terms of its exclusive sales agency agreement with Vanwyk. 42. As a direct and proximate result of Zimmer’s breach of its contract with Vanwyk, Vanwyk has suffered injury and loss to its business in an amount to be determined at trial, and Vanwyk is entitled to judgment against Zimmer for such injuries and loss. Amended Complaint. 1. Fourth Circuit case law teaches that an independent tort claim, i.e., one factually bound to the breach of contract but legally distinct therefrom, one that applies to the circumstances of the case and which state law would recognize as an independent basis for the award of punitive damages, may be pursued along with breach of contract. If the breach establishes the elements of an independent, willful tort, it may support an award of punitive damages. However, an act, such as termination, which is contemplated in the contract will not support a tort claim if it is in accord with the terms of the contract and not contrary to equity and good conscience. To state a claim in tort, a plaintiff must allege a duty owed him by the defendant separate and distinct from any duty owed under a contract. This is consistent with the Restatement of Agency, which posits that “[i]f a paid agent does something wrongful, either knowing it to be wrong, or acting negligently, the principal may have either an action of tort or an action of contract. This is true when an agent..., by negligence or fraud, ... violates a duty of loyalty.” Id. at § 401. “The principal has a cause of action either for. breach of contract or for tort, as a remedy for damage caused by the violation of any duty of loyalty on the part of the agent.” Id. at § 403. Strum teaches that “[o]nly where a breach of contract also constitutes an ‘independent tort’ may tort actions be pursued.” Strum, 15 F.3d at 330. While a fraud claim could constitute an independent tort if there is factual and legal support, “mere failure to carry out a promise in contract ... does not support a tort action for fraud.” Id. at 331. In A & E Supply Company, Inc. v. Nationwide Mutual Fire Insurance Company, 798 F.2d 669 (4th Cir.1986), the Court defined an “independent tort” under Virginia law as “one that is factually bound to the contractual breach but whose legal elements are distinct from it.... one that both applies to the circumstances of this case and that Virginia law would recognize as an independent basis for the award of punitive damages.” Id. at 672. “Damages for breach of contract in Virginia normally are limited to the pecuniary loss sustained____The general rule of contractual damages in Virginia admits but one exception. Only if the breach establishes the elements of an independent, wilful tort, may it support an award of punitive damages.” Id. at 671-72 (internal quotation marks omitted). In this ease, A & E Supply, the insured, sustained financial loss for which its policy with Nationwide promised indemnification. Nationwide denied coverage, contending without factual support that the insured was responsible for the loss. The jury awarded A & E Supply the proceeds due and also punitive damages, which it had sought on the theory that the insurer’s breach amounted to several independent, willful torts. The Fourth Circuit held that A & E Supply did not prove the alleged fraud or conversion and that Virginia law would not recognize either the tort of bad faith refusal to honor a first-party insurance obligation or an implied private right of action under the state’s unfair insurance practices statute. Id. at 670. A & E Supply argued that the evidence supported fraud. Id. at 672. The Fourth Circuit concluded that the necessary evidence of fraud was absent. However, discussing Virginia law, it referred to fraud as “[a] familiar independent, wilful tort[].” Id. “But such tentative statements to Larry Fletcher, made soon after the fire had ended and the investigation had begun, were more perfunctory reassurances than promises of payment----A & E could not reasonably have relied on a belief that Nationwide had at this early point made any decision on the claim.” Id. In Glaesner v. Beck/Arnley Corporation, 790 F.2d 384 (4th Cir.1986), a suit for wrongful termination of a distributorship agreement in violation of South Carolina tort law and the South Carolina Unfair Trade Practices Act, the Court reversed and directed entry of judgment in favor of Beck/Arnley. “A termination is not wrongful if it is in accord with the terms of the contract and not contrary to equity and good conscience. Plaintiff has also failed to allege wrongful behavior on the part of Beck/Arnley in anything but speculative terms.” Id. at 386. This dispute, the Court found, amounted to mutual recrimination. But the contract anticipated termination for business reasons and provided both parties the right to terminate. Glaesner only exercised its contractual option. The plaintiff alleged no breach of contract, but that termination was a tortious act. This the Court refused to find in the absence of extraordinary circumstances. Id. at 387-88. Accord, Richland Wholesale Liquors v. Glenmore Distilleries Company, 818 F.2d 312, 315-16 (4th Cir.1987)(“[T]he focus is on whether there was malicious or arbitrary conduct in bringing about the termination. Glenmore’s lack of malice in effecting the termination here is obvious. Not only did it give Richland written notice that it was considering the termination six months before making its final decision, but before giving the notice it met with Richland a number of times to discuss its concerns about the sales situation. After giving notice, Glen-more continued to fill Richland’s orders and Richland continued to sell Glenmore’s products____” By contrast, Vanwyk’s evidence showed that Zimmer terminated arbitrarily and so as to disrupt critical sales, having secretly agreed to promote a competitor, a very different situation indeed.) In Due v. Orkin Exterminating Company, Inc., 729 F.Supp. 1533 (D.S.C.1990), Due contended that Orkin had a contractual duty to inspect his house annually and to report to him any evidence of water damage discovered during the inspections. Due claimed that Orkin did not make annual inspections as required by the contract or, if it did, it failed to notice or report to Due any evidence of water damage. Had Orkin timely reported to Due the existence of a plumbing leak, Due claimed, he could have prevented or reduced the water damage that later occurred. Id. at 1535. The Court held that Due could not recover on his negligence cause of action because Orkin owed Due no legal duties independent of the contract, and in so reasoning stated: South Carolina courts have recognized the distinction between contract and tort causes of action and have held that in order for a plaintiff to state a claim in tort, he must allege a duty owed him by the defendant separate and distinct from any duty owed under a contract: Ordinarily, where there is no duty except such as the contract creates, the plaintiffs remedy is for breach of contract, but when the breach of duty alleged arises out of a liability independently of the personal obligation undertaken by the contract, it is a tort ____ As a general rule, there must be some active negligence or misfeasance to support tort. There must be some breach of duty distinct from breach of contract. ... Here, the duties and liabilities of the parties were created and defined by the contract and the guarantee. Due has alleged no breach of duty by Orkin that is independent of the contract and guarantee. Id. at 1535. Due’s fraud claim alleged that Orkin fraudulently represented that it was complying with the terms of the contract but that it never intended to comply with the contract and yet took Due’s annual fee. Id. at 1536. The Court upheld summary judgment as to this contention in one sentence: “In South Carolina, a mere violation of a contract does not support a fraud claim.” Id. 2. Vanwyk’s breach of fiduciary duty claim does not reduce to breach of contract. As to breach of fiduciary duty, the amended complaint reads, in relevant part: 73. As Vanwyk’s agent, Zimmer owed Vanwyk a fiduciary duty to act in good faith in Vanwyk’s best interest. 74. By failing to act in Vanwyk’s best interest, and instead using its agency relationship for its own benefit to the detriment of Vanwyk, Zimmer breached its fiduciary duty to Vanwyk. 75. Zimmer’s breach of fiduciary duty to Vanwyk was intentional and willful. 76. As a direct and proximate result of Zimmer’s unlawful conduct as alleged above, Vanwyk has been injured and damaged in an amount to be determined at trial, for which injury and damage Vanwyk is entitled to judgment against Zimmer. Amended Complaint. Zimmer argues that the breach of fiduciary duty claim is an attempt to recover in tort where the recovery should be limited to contract. Zimmer finds no authority for the proposition that the relationship between a manufacturer and its sales representative can be fiduciary. Further, the duties Vanwyk claims as fiduciary were also contractual, i.e., diversion of Vanwyk’s business opportunities for its own benefit, failure to disclose to Vanwyk that Zimmer was assembling, manufacturing, and selling products directly in competition with Vanwyk, and failure to use its best efforts to promote Vanwyk’s interests throughout the relationship. Zimmer argued to the jury that Vanwyk’s claims at most amount to “some breach of duty.” Zimmer now contends that Vanwyk’s claim reduces to breach of contract. It does not. The Fourth Circuit cases teach that the tort may be factually bound to the contractual breach but must have different legal elements. Such is the case here. There may be, and was, a degree of factual overlap in the proof, in that what went to show breach of contract also went to establish breach of fiduciary duty, but there is neither conceptual nor legal identity in the elements. For example, applying the reasoning of Glaesner and Richland, Zimmer’s abrupt termination can be construed in terms of compliance with the terms of the contract as to termination, and it also becomes part of the proof of willful failure to act in Vanwyk’s best interest contrary to equity and good conscience, yet the two claims are distinct. The breach of fiduciary duty which Vanwyk pleads, duty to act in good faith in Vanwyk’s best interest, is factually and legally distinct from breach of contract. What we have here is simply more than can be captured in the category known as breach of contract, namely, an independent claim sounding in tort. 3. Vanwyk’s fraud claim does not reduce to breach of contract. The amended complaint as to fraud reads, in relevant part: 50. With the intent to induce Vanwyk to allow Zimmer to maintain Vanwyk’s full trust and confidence and permit Zimmer to hold itself out as Vanwyk’s exclusive sales agent, Zimmer represented to Vanwyk that it was acting as Vanwyk’s exclusive agent and not engaging in competitive activities against Vanwyk from June 1995 until September 26,1995. 51. For example, on June 28, 1995, two weeks after secretly deciding to sell a dispensing system manufactured by Zimmer and one of Vanwyk’s competitors, Ozark, to Springs, Zimmer wrote to Vanwyk stating, “we have not quoted any domestic equipment equivalent to Vanwyk. You get copies of all our quotations for color dispensing auxiliary equipment.” 52. These representations by Zimmer to Vanwyk were false and material to the agreement between the parties. 53. At the time of making its representation, Zimmer knew that its representation was false and had no intention of honoring its representation. 54. Vanwyk reasonably relied and acted upon Zimmer’s misrepresentation that it would not engage in competitive activities against Vanwyk by continuing to trust Zimmer to act as Vanwyk’s exclusive agent and not employ other sales agents for the critical territories in the United States and Canada allocated to Zimmer. 55. As a direct and proximate result of Zimmer’s misrepresentation to Vanwyk, Vanwyk has suffered injury and loss to its business in an amount to be proven at trial. Amended Complaint. Zimmer contends that the fraud claim, as pleaded, is another version of its contract/agency claim, and for that reason does not present a valid claim. The fraud claim is another version of the contract/agency claim because Vanwyk and Zimmer entered into a contractual agency agreement, as part of which Zimmer agreed not to compete with Vanwyk, and the fraud claim is simply another version of this same idea. Moreover, now that the jury has found that there was a contract, and in fact awarded the same compensatory damages for fraud and for breach of contract, Vanwyk’s recovery should be in contract, not in fraud. This case, as pleaded and proven, presents more than mere violation of a contract. There is much more here by way of factual basis, for example, than Due’s bald allegation that Orkin never intended to inspect, or Larry Fletcher’s perfunctory on-the-spot reassurances upon which A & E Supply claimed reasonably to rely. In A & E Supply, fraud, “[a] familiar independent, wilful tort,” could have been proven but was not. The fraud claim was not conceptually or legally incompatible with breach of insurance contract. Such is the case here. The alleged fraud is factually bound to the contractual breach, but its legal elements are distinct. Unlike A & E Supply, the necessary evidence of fraud was present. Under South Carolina law, the elements of fraud are (1) a representation, (2) its falsity, (3) its materiality, (4) either knowledge of its falsity or reckless disregard of its truth or falsity, (5) intent that the representation be acted upon, (6) the hearer’s ignorance of its falsity, (7) the hearer’s reliance on its truth, (8) the hearer’s right to rely thereon, and (9) the hearer’s consequent and proximate injury. Ardis v. Cox, 314 S.C. 512, 431 S.E.2d 267, 269 (App.1993); Mishoe v. General Motors Acceptance Corp., 234 S.C. 182, 107 S.E.2d 43, 49 (1958). Nondisclosure is fraudulent when there is a duty to speak. Manning v. Dial, 271 S.C. 79, 245 S.E.2d 120 (1978); Jacobson v. Yaschik, 249 S.C. 577, 155 S.E.2d 601 (1967). South Carolina law permits claims for fraud and breach of contract to be raised independently in the same action. Floyd v. Country Squire Mobile Homes, Inc., 287 S.C. 51, 336 S.E.2d 502 (App.1985)(“Our law has long recognized a plaintiffs right to recover punitive damages for breach of contract accompanied by a fraudulent act.”) If a plaintiff may plead and prove breach of contract together with fraud and obtain a punitive damages instruction, it may plead and prove and recover each claim established independently. Vanwyk presented evidence to the effect that Zimmer failed to disclose its sales to Springs and Glenoit Mills as was its duty under the contract and by virtue of its fiduciary relationship. Moreover, without disclosure, Zimmer ceased to use its best efforts to represent Vanwyk and began representing a competitor, Termoelettronica. These nondisclosures were material in that they were deliberately made with the intent that Vanwyk continue to believe that Zimmer was acting as its agent. Ignorant of these developments, Vanwyk, as was its right, to its detriment relied on Zimmer’s representations, which were materially incomplete and false. In addition to failure to disclose, Zimmer affirmatively misrepresented to Vanwyk that Springs had decided not to purchase a dispensing system and that Zimmer had not quoted any domestic equipment equivalent to that of Vanwyk. Under Ardis, Vanwyk made out a case of fraud, and Zimmer does not contest the jury’s finding of fraud on the merits. B. Under South Carolina law, Vanwyk could advance its claim of breach of fiduciary duty under a theory of trust and under a theory of agency. Vanwyk presented substantial evidence upon which a reasonable jury could find breach of fiduciary duty arising from trust and arising from agency. Zimmer contends that as to breach of fiduciary duty, it is entitled to judgment as a matter of law on the merits. Zimmer’s argument has two prongs. First, Zimmer contends that Vanwyk could not impose a fiduciary duty apart from agency. Second, Vanwyk could not impose a fiduciary duty through agency because Vanwyk failed to prove Zimmer was its agent under South Carolina law. As to its first position, Zimmer argues that case law does not support the Court’s instruction, which read in part that fiduciary duty may arise from a relationship that “may be moral, social, domestic, or merely personal.” Rather, to have a fiduciary relationship, one party must be in a superior position of influence, enabling it to exercise influence over the other party, who reposes special trust and confidence. The law having to do with manufacturer-distributor relationships is designed around the premise that it is the manufacturer, not the distributor, who has the superior position. Thus, the law is designed to protect Zimmer’s position, not Vanwyk’s. There was no justification for Vanwyk to repose special confidence in Zimmer and no foundation for any belief that Zimmer would act as fiduciary in the inherently risky manufacturer-distributor relationship. According to Zimmer, no law supports the characterization of a manufacturer-distributor relationship as fiduciary. Second, Vanwyk failed to prove Zimmer was its agent under South Carolina law, because Vanwyk failed to prove Zimmer had the power to bind Vanwyk so as to be its agent. An agent must have power to contract, and Zimmer did not have that power, as admitted in ¶ 11 of the amended complaint. 1. The Vanwyk-Zimmer relationship could properly be characterized as “fiduciary” based upon the trust and confidence which Vanwyk reposed in Zimmer. In O’Shea v. Lesser, 308 S.C. 10, 416 S.E.2d 629, 631 (1992), the South Carolina Supreme Court stated, “A fiduciary relationship exists when one reposes special confidence in another, so that the latter, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing confidence.” The Court cited Island Car Wash, Inc. v. Norris, 292 S.C. 595, 358 S.E.2d 150 (App.1987), a suit by a car wash corporation against a former manager and supplier, alleging that the manager had conspired with the supplier to breach the manager’s confidential relationship with the corporation and divert corporate funds. Therein, discussing fiduciary relationship, the Court stated: A confidential or fiduciary relationship exists when one imposes a special confidence in another,- so that the latter, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one imposing the confidence. Courts of equity have carefully refrained from defining the particular instances of fiduciary relationship in such a manner that other and perhaps new cases might be excluded and have refused to set any bounds to the circumstances out of which a fiduciary relationship may spring. 86A C.J.S. Fiduciary at 885 (1988). Id. 358 S.E.2d at 152 (emphasis supplied). Further, in Construction Techniques, Incorporated v. Dominske, 928 F.2d 632 (4th Cir.1991), a suit brought in thé District Court for the District of South Carolina by a former employer against a former employee and his wife alleging breach of fiduciary duty by holding an undisclosed ownership interest in the employer’s main supplier, the Court stated: [T]he fiduciary relationship arises not only from the formal principal-agent contract, but also from informal relationships of trust. Id. at 637-38. In Steele v. Victory Savings Bank, 295 S.C. 290, 368 S.E.2d 91 (App.1988), in which the remitter of a cashier’s check brought an action against the bank to whom the check was delivered for breach of fiduciary duty and conversion, the Court stated: A “fiduciary relationship” is founded on trust and confidence reposed by one person in the integrity and fidelity of another. It “exists when one imposes a special confidence in another, so that the latter, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one imposing the confidence.” ... Courts of equity have been careful to not define fiduciary relationships so as to exclude new cases that may give rise to the relationship .... To constitute a fiduciary relationship, the relationship must be more than a casual relationship. Id. 368 S.E.2d at 93 (citation omitted; emphasis supplied). In Burwell v. South Carolina National Bank, 288 S.C. 34, 340 S.E.2d 786 (S.C.1986), a suit by the guarantor of a loan by a bank to an airline against the bank alleging fraud and breach of fiduciary duty, the South Carolina Supreme Court examined the question whether á normal bank-depositor arrangement creates a fiduciary relationship, and in so doing stated the general rule in the following terms: The term fiduciary implies that one party is in a superior position to the other and . that such a position enables him to exercise influence over one who reposes special trust and confidence in him. 36A C.J.S. Fiduciary. (1961). As a general rule, mere respect for another’s judgment or trust in his character is usually not sufficient to establish such a relationship.- The facts and circumstances must indicate that , the one reposing the trust has foundation for his belief that the one giving advice or presenting arguments is acting not in his own behalf, but in the interests of the other party. 36A C.J.S. Fiduciary (1961). Id. 340 S.E.2d at 790. Applying the teaching of these cases to the Vanwyk-Zimmer relationship, it is clear, first, that the respective roles of the parties as manufacturer and promoter/seller do not prevent the relationship from being properly described as fiduciary; nor does the fact that this relationship, like all business relationships, involves economic risks and the impact of changing business circumstances. Second, which party is in a superior position is a matter of evidence and not a priori category. Third, the evidence before the jury was sufficient to permit the jury to find that Vanwyk reposed trust and confidence in Zimmer. Vanwyk’s evidence tended to show that Vanwyk is a relatively small Dutch manufacturer dependent for the success of its American sales upon its exclusive relationship with Zimmer. Vanwyk’s Roberts testified that Vanwyk trusted Zimmer completely to handle and promote Vanwyk’s American business. Zimmer’s witnesses testified that Zimmer acknowledged and accepted Vanwyk’s trust. Zimmer’s former president, Doujak, testified that he was aware that Vanwyk trusted Zimmer to handle its business and not sell competing products. There was evidence sufficient for the jury to conclude that Zimmer was in a superior position to Vanwyk. Roland Zimmer, Zimmer’s owner and president, testified that Zimmer had a customer base of several hundred companies and that Vanwyk “did not bring much to the table.” Zimmer further testified Vanwyk provided no new customers to Zimmer and was always a “small part” of Zimmer’s much larger business. Moreover, the size of Vanwyk’s staff, Vanwyk’s distance from the United States, and the exclusive, nature of Vanwyk’s relationship with Zimmer required it to rely upon Zimmer’s good faith in fulfilling its duties. Fourth, the jury was properly instructed under South Carolina law as to fiduciary duty. The instruction used the O’Shea test and explained that fiduciary relationships can arise outside of traditional categories such as agency. 2. The Vanwyk-Zimmer relationship could properly be characterized as “fiduciary” based upon agency. Zimmer contends that Vanwyk failed to prove Zimmer was its agent under South Carolina law. According to Zimmer, under South Carolina law, an agent must have power to bind the principal in order to be an agent. Zimmer did not have the power to bind Vanwyk. Zimmer relies primarily upon Peeples v. Orkin Exterminating Company, 244 S.C. 173, 135 S.E.2d 845 (1964), for its position that under South Carolina law, the power to contract is a necessary condition of agency. In that case, the South Carolina Supreme Court stated: Respondent maintains that the record supports the finding that Appellant has an agent and office in Hampton County for venue purposes. The arrangement between Ellis and Appellant where by Ellis answers the telephone and takes messages for Appellant is analogous to an answering service. A person performing the function of an answering service is not an agent within the meaning of the venue statutes. “An agent is one appointed by a principal as his representative and to whom the principal confides the management of some business to be transacted in the principal’s name, or on his account, and who brings about or effects legal relationships between the principal and third parties.” State v. W. T. Rawleigh Company, 172 S.C. 415, 174 S.E. 385; Thompson v. Ford Motor Co., 200 S.C. 393, 21 S.E.2d 34. Ellis had no power to contract in Appellant’s name, his entire authority was to answer the telephone and take message. Id. 135 S.E.2d at 848. More recent South Carolina cases have cited Peeples as authority for the proposition that having the power to contract is a sufficient condition for a finding of agency. In State ex rel. McLeod v. C & L Corporation, Incorporated, 280 S.C. 519, 313 S.E.2d 334, 338 (App.1984), in the context of examining whether an independent contractor was an agent, the Court reasoned: An independent, contractor can also be an agent; the two. are not mutually exclusive____One who is appointed to establish a contractual relationship between the principal and a third person is an agent. Peeples v. Orkin Exterminating Co., ... Since Wayne Cooper was appointed by C & L to enter into sales contracts binding between C & L and third persons, the relationship here was undoubtedly one of agency. Id. 313 S.E.2d at 338 (some citations omitted). As in Peeples, the Court does not say that power to contract is the one way an agency relationship can be shown, i.e., that power to contract is a sufficient and necessary condition of agency. In Palmer & Cay/Carswell, Inc. v. Condominium/Apartment Insurance Services, Inc., 306 S.C. 1, 409 S.E.2d 806 (App.1991),, again in the.context of examining whether an independent contractor was an agent, the Court reasoned: On the other hand, an independent contractor can be an agent.... Elsewhere in the document, C/AIS is referred to as Colonial Penn’s “Manager.” The document provides that Colonial Penn “appoints the Manager as its legal representative and true and lawful attorney to act in the .Company’s behalf.” The document specifies that the duties of C/AIS include, among other things, the procuring, underwriting and servicing of binders, policies and contracts. C/AIS is specifically given “binding authority.” “One who is appointed to establish a contractual relationship between the principal and a third person is an agent.” ... Id. 409 S.E.2d at 808 (citations omitted). C/AIS was given binding authority and was, therefore, an agent. Power to establish a contractual relationship is a sufficient condition of agency. These holdings are in harmony With the South Carolina Supreme Court’s older decision in Thompson v. Ford Motor Co., 200 S.C. 393, 21 S.E.2d 34 (1942), wherein the Court, in the context of examining whether service was effected on a company’s -agent so as to support a personal judgment against it, reasoned from the general principle, which it articulated as follows: It is true that the power to contract for one’s principal is strong evidence of agency, but it is only one means by which agency can be shown, and does not constitute the sole test as to its existence. Agency may be shown by the fact that a person represents his principal in some one or more of his relations to others, even though he lacks contractual power. Id. 21 S.E.2d at 49-50. Accordingly, in Hester v. New Amsterdam Casualty Company, 287 F.Supp. 957 (D.S.C.1968), affirmed as to liability but remanded for recomputation of damages, 412 F.2d 505 (4th Cir.1969), the District Court applied South Carolina law to answer the question whether certain parties (Hall, Brassel, Smith, and Kelly), who acted to procure a buyer for property in Florida, were agents, and in so doing reasoned: South Carolina courts have defined an agent as: [Ojne appointed’' by a principal as his representative and to whom the principal confides the management of some business to be transacted in the principal’s name, or on his account, and who brings about or effects legal relationships between the principal and third , parties. State v. W.T. Rawleigh Company, ..., Thompson v. Ford Motor Co., ..., Peeples v. Orkin Exterminating Company,____ The court, therefore, concludes, as a matter of law, that Hall, Brassell, Kelly and Smith were agents of defendants Keith and Estelle Jones and the above named agents acted within the scope and extent of their authority in their effort to procure a purchaser of the land in Florida. Id. at 976 (citations omitted). These cases teach that under South Carolina law, the power to contract is a sufficient but not a necessary condition of agency. “Agency is a fiduciary relationship which results from the manifestation of consent by one person to another to be subject to the control of the other and to act on his behalf.” Peoples Federal Savings & Loan Association v. Myrtle Beach Golf & Yacht Club, 310 S.C. 132, 425 S.E.2d 764, 773 (App.l992)(citing Restatement (Second) -of Agency § 1 (1958)). “An agreement may result in the creation of an agency relationship although the parties did not call it an agency and did not intend the consequences of the relationship to follow.” Id. “Agency may be proved by circumstantial evidence showing a course of dealing between the two parties.” Id. Vanwyk presented substantial evidence upon which the jury could have, and did, as against Zimmer’s evidence to the contrary, find that Zimmer was Vanwyk’s agent under South Carolina law. Vanwyk’s evidence showed that Zimmer acted on Vanwyk’s behalf, represented Vanwyk to customers, and had authority to make binding commitments to customers for Vanwyk. Vanwyk’s president, Roberts, testified that Zimmer often negotiated as to price and terms with prospective customers. Roberts kept control to the extent that he would give Zimmer authority to agree to a price within a given range, and Zimmer would negotiate the highest price within the range. Roland Zimmer testified that he used the phrase “full service agent” to describe Zimmer’s relationship with Vanwyk when the relationship ended and that phrase imports power to bind the principal. Moreover, Zimmer kept a price list for smaller machines sold to complement Vanwyk’s color dispensing systems and sold these machines without prior approval by Vanwyk. Zimmer, acting on behalf of Vanwyk, retained a security interest in equipment it sold to customers. C. By the standards of Rules 50 and 59, Fed.R.Civ.Pro., the jury’s award of $200,000 in punitive damages was supported by substantial evidence, was not against the clear weight of the evidence, was not based upon evidence that was false, and will not result in a miscarriage of justice. 1. Standards (a) South Carolina law Rules 50(b) and 59 are applied against a background of South Carolina law. In Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350 (1991), the Court established an eight-factor post-trial review: Hereafter, to ensure that a punitive damage award is proper, the trial court shall conduct a post-trial review and may consider the following: (1) defendant’s degree of culpability; (2) duration of the conduct; (3) defendant’s awareness or concealment; (4) the existence of similar past conduct; (5) likelihood the award will deter the defendant or others from like conduct; (6) whether the award is reasonably related to the harm likely to result from such conduct; (7) defendant’s ability to pay; and finally, (8) as noted in [Pacific Mutual Life Ins. Co. v. ] Haslip, [499 U.S. 1, 111 S.Ct. 1032,113 L.Ed.2d 1 (1991)] “other factors” deemed appropriate. Id. 406 S.E.2d at 354. Gamble requires that “no award be grossly disproportionate to the severity of the offense ...” Id. Finally, Gamble states the following general principles: In South Carolina, “punitive damages are allowed in the interest of society in the nature of punishment and as a warning and example to deter the wrongdoer and others from committing like offenses in the future.” ... Moreover, they serve “as a vindication of private rights when it is proved that such have been wantonly, willfully or maliciously violated.” ... Lastly, punitive damages may be awarded only upon a finding of actual damages. ... Gamble, 406 S.E.2d at 354 (citations omitted). Accord, Carter v. R.L. Jordan Oil Company, Inc., 301 S.C. 84, 390 S.E.2d 367, 368 (App.l990)(Evidenee of simple negligence alone will not support an award of punitive damages____“[T]here must be evidence the defendant’s conduct was wilful, wanton, or in reckless disregard of the plaintiffs rights ____ Conduct is wilful, wanton, or reckless when it is committed with a deliberate intention under such circumstances that a person of ordinary prudence would be conscious of it as an invasion of another’s rights. It is the present consciousness of wrongdoing that justifies the assessment of punitive damages against the tortfeasor.” (citations omitted)). In South Carolina Farm Bureau Mutual Insurance Company v. Love Chevrolet, Inc., 324 S.C. 149, 478 S.E.2d 57 (1996), the Court applied Gamble: [A] punitive damage award is warranted only when the defendant’s conduct is shown to be willful, wanton, or in reckless disregard of the rights of others.... ... [Tjhere are now three stages in this state to a trial court’s review of punitive damages. First, the court must determine whether the defendant’s conduct rises to the level of culpability warranting a punitive damage award. If not, the issue of punitive damages may not be submitted to the jury. If so, the jury should be adequately instructed to assess an appropriate amount of damages. Second, the trial judge must conduct a post-trial Gamble review to ensure that the award does not deprive the defendant of due process. If the award is determined to violate the defendant’s due process rights, then the trial court must either grant a new trial absolute, or a new trial nisi remittitur. If the award is determined not to violate the defendant’s due process rights, then the trial court reaches the third inquiry, to wit, whether, in the exercise of its discretion, it finds the award excessive or inadequate. If the verdict is not excessive, it may stand. If the trial judge finds the award excessive or inadequate, he may grant a new trial nisi additur or remittitur. Id. 478 S.E.2d at 58-59. (b) Fourth Circuit law In Mattison v. Dallas Carrier Corporation, 947 F.2d 95 (4th Cir.1991), the Court discussed the standards appropriate to federal district court post-trial review of an award of punitive damages in diversity cases: “While a district court must apply the substantive law of the state when instructing the jury on punitive damages, ..., it must also apply the Federal Rules of Civil Procedure and, therefore, must review the jury verdict under standards established by Rules 50(b) ... and 59____Moreover, the review by a federal district court of a jury verdict is always subject to the Seventh Amendment constraints guaranteeing the right to a jury trial which are not imposed on any state-prescribed post-trial review. This division in the application of substantive state law and federal procedural law is specifically confirmed in Brouming-Ferris Indus, of Vermont, Inc. v. Kelco Disposal, Inc., ... : In reviewing an award of punitive damages, the role of the District Court is to determine whether the jury’s verdict is within the confines set by state law, and to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered____ .. .the Seventh Amendment does not permit a federal court to substitute its judgment for that of a jury, as long as the jury operates within the constraints of the law and the evidence, ... The verdict is permitted to stand unless, under Rule 50(b), no substantial evidence is presented to support the award, ..., or, under Rule 59, the verdict is “against the clear weight of the evidence, or is based upon evidence which is false, or will result in a miscarriage of justice.” Id. at 99-100 (citations omitted). Accord, id. at 107 (Because a new trial will be conducted in federal court, the new South Carolina procedures for post-trial review would not be applicable. Rather, the district court must apply Rules 50(b) and 59, which permit the court to interfere with a verdict, under Rule 50, only where no substantial evidence is offered on which the jury can base its award, and, under Rule 59, only where the verdict is “against the clear weight of the evidence, or is based upon evidence which is false, or will result in a miscarriage of justice.” (citation omitted)). The Mattison Court discusses the implications of the Seventh Amendment for post-trial review of an award of punitive damages as follows: The Seventh Amendment directs that facts decided by a jury may not be “re-examined” by a federal court, other than “according to the rules of common law.” .... The right to jury trial secured by the Seventh Amendment thus reserves the weighing of evidence and the finding of facts exclusively to the jury. When a jury has not been presented with substantial evidence to make a finding, the finding can be reversed by the trial court. When the jury commits error in the application of the law, relies on facts not before it or bases its decision on improper motives, or reaches a result that is against the clear weight of the evidence or is manifestly unjust, the court may withdraw the case from that jury and order a trial before another jury. In either case, however, the court cannot, consistent with the Seventh Amendment, evaluate a jury’s verdict based on evidence that the jury was not permitted to consider at trial or on a legal standard not given to the jury. These rights secured by the Seventh Amendment form the basis of current jurisprudence developed around Rules 50(b) and 59, Fed. R.Civ.Pro. A Haslip-type post-trial review, insofar as it is a quasi de novo review by which the court reviews facts, some of which may not have been presented to the jury, would be inconsistent with the restrictions of the Seventh Amendment. When a factual issue is committed to the jury, as punitive damages are under federal law, ..., the court cannot substitute its judgment for that of the jury. Rather, it can only grant a new trial, and then only under the standards permitted by federal law____ Id. at 107-08 (citations omitted). “A federal court cannot apply the Gamble post-verdict review process.” Id. However, South Carolina’s Gamble standard for post-trial review should “be incorporated by the district court in its instructions to the jury.” Id. at 109. If the plaintiff demonstrates an entitlement to punitive damages, we direct that the district court’s instructions on the amount of punitive damages that may be awarded include instruction on four aspects, which are derived from Gamble and Haslip: (1) Relationship to harm caused: Any penalty imposed should take into account the reprehensibility of the conduct, the harm caused, the defendant’s awareness of the conduct’s wrongfulness, the duration of the conduct, and any concealment. Thus any penalty imposed should bear a relationship to the nature and extent of the conduct and the harm caused, including the compensatory damage award made by the jury. (2) Other penalties for the conduct: Any penalty imposed should take into account as a mitigating factor any penalty that may have been imposed or which may be imposed for the conduct involved, including any criminal or civil penalty or any other punitive damages award arising out of the same conduct. (3) Improper profits and plaintiffs costs: The amount of any penalty may focus on depriving the defendant of profits derived from the improper conduct and on awarding the costs to the plaintiff of prosecuting the claim. (4) Limitation based on ability to pay: Any penalty must be limited to punishment and may not effect economic bankruptcy. To this end, the ability of the defendant to pay any punitive award entered should be considered. Id. at 109-110. Accord, Barber v. Whirlpool Corporation, 34 F.3d 1268, 1278 (4th Cir.l994)(“Under South Carolina law, punitive damages are permissible where the conduct of the defendant was wilful, wanton or reckless; conscious wrongdoing must be proven____ [A] federal district court applying South Carolina law must rely on the [eight] factors set forth in Gamble----The determination of damages is left to the discretion of the jury, to be reviewed by the district court in accordance with federal standards of review under Rule 50(b) and Rule 59. The award shall stand unless no substantial evidence is presented to support it, it is against the clear weight of the evidence, it is based upon evidence that is false, or it will result in a miscarriage of justice.” (citation omitted)). Accord, Atlas Food Systems and Serv. v. Crane Nat. Vendors, 99 F.3d 587, 593-94 (4th Cir.1996). Accord, Johnson v. Hugo’s Skateway, 974 F.2d 1408, 1416 (4th Cir.1992) (“We thus conclude that if state law assigns the trial or appellate court a post-verdict role in assessing the reasonableness of a punitive damages award and specifies certain factors to be considered in making that assessment, then this body of substantive law must also be applied in federal court, but in a manner that permits consideration by the jury as the sole fact finder, rather than by the judge.” (emphasis in original)). In Atlas Food Systems the Court provided guidance for applying Rule 59 to punitive damage awards: [The] Rule 59 standards are well established in the Fourth Circuit: On such a motion it is the duty of the judge to set aside the verdict and grant a new trial, if he is of the opinion that [1] the verdict is against the clear weight of the evidence, or [2] is based upon evidence which is false, or [3] will result in a miscarriage of justice, even though there may be substantial evidence which would prevent the direction of a verdict. [W]e ... examine more closely our three-pronged Rule 59 standard and the role served by each prong. The first two prongs require a district court to determine purely factual questions: whether the jury’s damages award is (1) “against the weight of the'evidence” or (2) “based upon evidence which is false.” ... This review encompasses a comparison of the factual record and the verdict to determine their compatibility. Consequently, jury determinations of factual matters such as liability on a cause of action, liability for compensatory and punitive damages, and the amount of compensatory damages will be reviewed by determining whether t