Robertson Oil Company, Inc. v. Phillips Petroleum Company , 14 F.3d 373 ( 1993 )

JOHN R. GIBSON, Circuit Judge,

with whom HEANEY, Senior Circuit Judge, MCMILLIAN, FAGG, WOLLMAN, and HANSEN, Circuit Judges, join; and with whom MAGILL, Circuit Judge, joins as to Part I.

Phillips Petroleum Company appeals from a district court¹ order refusing to vacate two punitive damage awards — $4,000,000 for tor-tious interference with a business relationship and $4,000,000 for fraud — after the remand we ordered in Robertson Oil Co. v. Phillips Petroleum Co., 930 F.2d 1342 (8th Cir.1991). Phillips argues that the district court erred in reviewing the punitive damage awards by applying the Arkansas “shock the conscience” standard because that standard does not constrain the jury’s discretion when awarding punitive damages so as to satisfy due process considerations. Phillips also argues that the two $4,000,000 awards are grossly disproportionate, arbitrary, capricious, and fundamentally unfair in violation of due process, duplicative; and an abuse of discretion, and that the jury’s deliberations were impermissibly influenced by inflammatory evidence of Phillips’ wealth. After a panel of this court affirmed the punitive damage awards, Robertson Oil Co. v. Phillips Petroleum Co., 14 F.3d 360 (8th Cir.1992), we granted Phillips’ motion to rehear en banc and vacated the panel opinion. Robertson Oil Co. v. Phillips Petroleum Co., 14 F.3d 360 (8th Cir.1992). We received supplemental briefs from the parties and heard arguments, and we again affirm the punitive damage awards.²

The case is before this court for the fourth time, and we need not repeat the underlying substantive facts which are set out in our first two decisions: Robertson Oil Co. v. Phillips Petroleum Co., 871 F.2d 1368, 1369 (8th Cir.1989) (Robertson I); and Robertson Oil Co. v. Phillips Petroleum Co., 930 F.2d 1342 (8th Cir.1991) (Robertson II). . This court denied rehearing en banc in both Robertson I and Robertson II.

The first trial in this case resulted in verdicts against Phillips for fraud, negligence, and tortious interference with a business relationship; ³ an actual damage award of $750,000; and a punitive damage award of $5,000,000. Robertson I, 871 F.2d at 1369. We affirmed the tortious interference verdict, but reversed the negligence and fraud verdicts as inconsistent. Id. We upheld the actual damage award because it was based on only one injury, the loss of the Spe-Dee Mart account, and the tortious interference verdict established Phillips’ liability for that injury. Id. at 1376. We struck the punitive damage award, however, because a jury must consider the defendant’s conduct when it determines the amount to award, and the general verdict form in this case made it impossible for us to determine how much of the punitive damage award was based on the conduct the jury associated with each of its findings of liability. Id. We said that “[e]aeh of these theories ... would support a different amount of punitive damages depending upon the conduct involved.” Id. Some of the punitive damage award may have been based on the conduct underlying the negligence and fraud theories that were reversed. Id. Therefore, the case, was remanded for retrial of the. negligence and fraud claims and the punitive damage award. Id. at 1377.

The second trial resulted in a verdict against Phillips on the fraud claim,⁴ and punitive damage awards of $4,000,000 for fraud and $4,000,000 for tortious interference. Robertson II, 930 F.2d at 1343. Phillips appealed again. Id. We rejected various claims of error, but because of the intervening United States Supreme Court decision in Pacific Mutual Life Insurance Co. v. Haslip, 499 U.S. 1, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991), we remanded with instructions for the district court to consider the propriety of the punitive damage awards under the principles of Haslip and Arkansas law. Robertson II, 930 F.2d at 1347.

On remand, the district court first analyzed the punitive damage awards under the Arkansas court’s “shock the conscience” standard. This standard allows punitive damage awards to stand unless the amount shocks the conscience of the court or demonstrates that jurors were motivated by passion or prejudice. O’Neal Ford, Inc. v. Davie, 299 Ark. 45, 770 S.W.2d 656, 659 (1989). The district court studied the historical development of the “shock the conscience” standard and determined that the standard’s “long and distinguished history ... bears testimony to its utility and constitutionality.” Robertson Oil Co. v. Phillips Petroleum Co., 779 F.Supp. 994, 996 (W.D.Ark.1991). The court then examined Arkansas cases applying the standard and concluded that the Arkansas Supreme Court had enumerated a number of specific inquiries which gave the standard a definite “shape and texture.” Id. The district court concluded that the standard was not too subjective and that the review criteria and procedures ensured a “meaningful and adequate review by the trial court” as required by Haslip, 499 U.S. at 20, 111 S.Ct. at 1044, and therefore, satisfied due process. 779 F.Supp. at 997. The district court then applied the Arkansas review criteria and allowed the awards to stand. Id. at 997-98. The ease is now before us again, and the only issue is the propriety of the district court’s review of the punitive damage awards under Arkansas law and Haslip,⁵

I.

Phillips advances a multi-faceted argument that the Arkansas “shock the conscience” standard of review does not adequately constrain the discretion of juries to impose punitive damages so as to satisfy due process. Expanding this general argument, Phillips asserts that “standardléss” and virtually unlimited jury discretion to punish and highly deferential judicial review of punitive damage verdicts render the Arkansas system constitutionally defective under Haslip. Phillips argues that application of the Arkansas standard of malice has been inconsistent and unpredictable, and that there is no fixed standard for the measurement of punitive damages or legislatively defined range. Phillips further argues that there is no reasonable relationship between the compensatory and punitive damage awards. Phillips then launches into a more specific attack on the “shock the conscience” standard, and asserts that federal courts applying Arkansas law have taken a broad brush approach to this standard. Phillips also argues that the Supreme Court approved the punitive damage system in Haslip because Alabama limited jury discretion and had a two layered post-verdict review procedure for evaluating the propriety of punitive damages. Finally, Phillips argues that the district court’s application of the Arkansas “shock the conscience” standard was constitutionally flawed.

Phillips’ broad based arguments fail to recognize the scope and nature of the district court’s review of the punitive damage awards and, in truth, fail to recognize the review that Arkansas courts have made of punitive damage awards.

When the district court analyzed the punitive damage awards, it first considered the Arkansas “shock the conscience” standard and the question of whether jurors were motivated by passion and prejudice. 779 F.Supp. at 995-96. The court engaged in an historical analysis of the “shock the conscience” standard in Arkansas cases, as well as earlier English cases, and then examined the awards under the standard in Haslip. Id. at 996-98. The district court observed that the Arkansas Supreme Court has given the “shock the conscience” standard a “definite shape and texture” by engaging in a number of specific inquiries. Id. at 996. The district court stated:

For example, the [Arkansas Supreme Cjourt has examined the relationship between the relevant parties, the ratio of the punitive award to the compensatory award, the extent and duration of a defendant’s acts, the deliberateness of the defendant’s acts in the face of no justification for them, the defendant’s motives, the defendant’s remorse, if any, the defendant’s net worth, and other matters, in order to judge the propriety of a punitive award.⁶

Id. at 996-97. Applying these criteria, the district court observed that not one, but two juries had unanimously awarded punitive damages on findings that Phillips had committed two intentional torts, and that the ten-to-one ratio of punitive damages to actual damages did not suggest excessiveness in light of Phillips’ net worth. Id. at 997. The district court rejected Phillips’ assertion that Phillips’ net worth triggered passion and prejudice on the part of the jurors, because evidence of net worth had not been allowed until the jury made a finding of liability and fixed the compensatory amount. Id. at 998. Finally, the court stated that the nervous and uncertain behavior of Phillips’ witnesses could have caused a reasonable fact finder to believe that they were deliberately evasive and had guilty minds. Id.

It is evident that the district court considered not only whethér the awards shocked the conscience or resulted from passion and prejudice, but also specifically recognized and discussed other factors that numerous Arkansas courts have considered in reviewing punitive damage awards. Id. 779 F.Supp. at 996-97. The district court’s failure to discuss all the, enumerated considerations does not mean that the other factors were not considered. We are satisfied that . the district court’s analysis properly recognized that although the Arkansas court’s “shock the conscience” and passion and prejudice inquiries are broad, the Arkansas cases recognize far more specific issues in their analyses. The district court dealt with a number of the more specific issues, and properly reviewed the issue of punitive damages in light of the Arkansas standards.

Thus, because the district court engaged in a detailed analysis, Phillips’ argument that the “shock the conscience” standard does not satisfy due process considerations simply misses the mark. The district court’s inquiry was far more specific than this, as is the standard enunciated and the review conducted by Arkansas courts. In our earlier opinions, Robertson I, 871 F.2d at 1875-76, and Robertson II, 930 F.2d at 1346-47, we discussed the elements underlying punitive damage awards and referred to Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961), and Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972). Ray Dodge is particularly instructive.

In Ray Dodge, the Arkansas Supreme Court concluded that a punitive damage award was based on a finding of legal malice and was not so great as to “shock the conscience” of the court or to indicate passion or prejudice on the part of the jury. 479 S.W.2d at 523. The Arkansas court stated that punitive damages are “the penalty the law fixes for conduct which is malicious, wanton, in violation of a relationship of trust or confidence, or which is done with a deliberate intent to injure another.” Id. The court emphasized that the punitive damage award must not only “deter similar conduct on the part of the particular tortfeasor,” but “must also be sufficient to deter others who might be inclined to engage in such conduct.” Id. The court observed that although the jury had discretion in fixing the amount of punitive damages, the circumstances in Ray Dodge showed the jury had exercised its discretion soundly. The Ray Dodge facts indicated that the defendant had committed a deliberate wrong, which, if unpunished, might lead to widespread commercial fraud. Id. at 524. The court believed the jury’s award was not based on passion and prejudice, but rather evidenced “a legitimate concern for the possible consequences of such a practice” to the general public. Id.

The court in Ray Dodge then considered particular factors governing the proper amount of punitive damages, including the proportion of punitive to actual damages, the defendant’s culpability as shown by the actual damages awarded, the defendant’s motives, the degree of calculation involved, and the extent of the defendant’s disregard of the rights of others. Id. Ray Dodge fleshes out the “shock the conscience” standard with considerable detail.

The district court’s analysis in this case covered the same ground as Ray Dodge and Holmes. In light of the district court’s detailed analysis, Phillips’ arguments against the “shock the conscience” standard have no merit.

Like Phillips, we recognize that in Haslip the United States Supreme Court considered the Alabama procedures as laid down in recent Alabama Supreme Court decisions, and determined that the procedures for reviewing punitive damage awards met constitutional standards. 499 U.S. at 20, 111 S.Ct. at 1045. The Alabama court’s procedures included requiring the trial court to review the award by considering the culpability of defendant’s conduct, the desirability of discouraging others from similar conduct, the impact on the parties involved, and the impact on innocent third parties. Id. at 19, 111 S.Ct. at 1044. The Alabama court had provided additional checks, first, by engaging in a comparative analysis, and then, by applying substantive standards — considering whether the award exceeded the reasonable amount that would accomplish society’s goals of punishment and deterrence. Id. at 20, 111 S.Ct. at 1045. The Alabama court had indicated that many factors could be considered in determining whether an award was excessive or inadequate:

(a) whether there is a reasonable relationship between the punitive damages award and the harm likely to result from the defendant’s conduct as well as the harm that actually has occurred; (b) the degree of reprehensibility of the defendant’s conduct, the duration of that conduct, the defendant’s awareness, any concealment, and the existence and frequency of similar past conduct; (c) the profitability to the defendant of the wrongful conduct and the desirability of removing that profit and of having the defendant also sustain a loss; (d) the “financial position” of the defendant; (e) all the costs of litigation; (f) the imposition of criminal sanctions on the defendant for its conduct, these to be taken in mitigation; and (g) the existence of other civil awards against the defendant for the same conduct, these also to be taken in mitigation.

Id. The United States Supreme Court concluded that these standards imposed a sufficiently definite and meaningful constraint on the discretion of Alabama juries in awarding punitive damages. Id. The Supreme Court concluded:

The Alabama Supreme Court’s post-verdict review ensures that punitive damages awards are not grossly out of proportion to the severity of the offense and have some understandable relationship to compensatory damages. While punitive damages in Alabama may embrace such factors as the heinousness of the civil wrong, its effect upon the victim, the likelihood of its recurrence, and the extent of defendant’s wrongful gain, the fact finder must be guided by more than the defendant’s net worth. Alabama plaintiffs do not enjoy a windfall because they have the good fortune to have a defendant with a deep pocket.

Id.

Although the items the district court considered in this case do not match the Haslip factors identically, they coincide for the most part, and insofar as the district court did not consider some of the Haslip factors, the record reveals that they were inapplicable. We are satisfied that the district court’s review complies with the principles laid down in Haslip.⁷

Phillips argues that a number of post-Haslip decisions in other circuits require reversal of the punitive damage awards in this case. Each of the cases Phillips discusses, however, was decided before the Supreme Court’s TXO Production Corp. v. Alliance Resources Corp., — U.S. -, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993), decision which .was released soon after we heard argument in this case.⁸ In TXO, the Supreme Court affirmed a West Virginia punitive damage award of $10,000,000 even though the actual damages supporting the award were only $19,000. Id. at-, 113 S.Ct. at 2713. The plurality (Chief Justice Rehnquist, Justice Stevens, and Justice Blaekmun) again rejected any bright line approach to evaluating punitive damage awards, reiterating that “ ‘[a] general concer[n] of reasonableness ... properly enter[s] into the constitutional calculus.’ ” Id. at-, 113 S.Ct. at 2720 (quoting Haslip, 499 U.S. at 18, 111 S.Ct. at 1043). The Court looked to the facts of the case, including the amount of money potentially at stake, the defendant’s bad faith, the overall scheme involved, and the defendant’s wealth, and held that even though a drastic disparity existed between the actual and punitive damage awards, the punitive damage award was not “so ‘grossly excessive’ as to be beyond the power of the State to allow.” Id. -— U.S. at -, 113 S.Ct. at 2723.

Justice Kennedy concurred in part and in the result, observing that the plurality seemed to rely on a “rational relation between the size of the award and the degree of harm threatened by TXO’s conduct.” Id. at -, 113 S.Ct. at 2725 (Kennedy, J., concurring). Justice Kennedy wrote separately because he found no indication in the record that the jury had evidence regarding “potential harm” when it determined the amount of the award. Id. Suggesting that a “manageable constitutional inquiry focuses not on the amount of money a jury awards ... but on its reasons for doing so,” Justice Kennedy considered whether there might be another explanation for the jury’s award. Id. at -, 113 S.Ct. at 2725-26, He then decided that the jury was probably motivated by a legitimate concern for punishing and deterring. Id. at -, 113 S.Ct. at 2726. He reasoned that the jury found that TXO had committed an intentional tort and that there was evidence of willful and malicious conduct, prior lawsuits alleging similar misdeeds, and argument for the jury to award a large judgment as punishment in light of TXO’s wealth. Id. at -, 113 S.Ct. at 2726.

Justices Scalia and Thomas also concurred in the result because although “ ‘procedural due process’ requires judicial review of punitive damages awards for reasonableness ... there is [no] federal constitutional right to a substantively correct ‘reasonableness’ determination.” Id. at -, 113 S.Ct. at 2727 (Sealia, J., concurring). Thus, the West Virginia courts’ act of reviewing the award satisfied due process. Id.

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

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

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

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

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

II.

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

A.

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

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

In the second trial, the district court informed the jury that compensatory damages had been awarded and were not to be questioned. 930 F.2d at 1344. Further, the court told the second jury that an appeal had determined that the second jury should decide whether Phillips had defrauded Robertson and, if so, whether Robertson was entitled to punitive damages for fraud. The court instructed that the jury should then decide the amount, if any, Robertson should receive as punitive damages for the intentional interference with contract found by the first jury. The court specifically told the second jury, both at the beginning of voir dire and again before opening statements were made, that:

In June of 1986, plaintiff sued defendant claiming to have lost one of its best customers, namely Spe-Dee Mart, because of defendant’s wrongful conduct. In October of 1987, a jury found that defendant had intentionally interfered with plaintiff’s contract with Spe-Dee Mart and returned a verdict in plaintiff’s favor in the amount of $750,000.00. This amount was meant to compensate plaintiff for the damages he suffered on account of the loss of the Spe-Dee Mart account. For purposes of this trial you should not question the $750,-000.00 compensatory award at any time....

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

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

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

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

Instruction No. 15.

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

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

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

B.

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

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

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

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

Id.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1 .THE HONORABLE MORRIS SHEPPARD ARNOLD was United States District Judge for the Western District of Arkansas and was the trial judge in this case. He was appointed Circuit Judge of the United States Court of Appeals for the Eighth Circuit on June 1, 1992. Neither he nor Chief Judge Richard S. Arnold participated in the en banc proceedings in this case.

2 . Judge Magill, joining in Part I of this opinion, concurs in the award of punitive damages for tortious interference with a business relationship only.

3 . The jury also found Phillips liable for breaching the .duty of good faith and fair dealing, but the district court overturned this finding.

4 . Robertson retried both the fraud and negligence issues, but elected to submit only the fraud theory to the jury.

5 . The dissent would accept a party’s motion for rehearing en banc of a decision after a second remand to open up the entire litigation. This we should not do. The dissent’s willing acceptance of this opportunity reveals a different view of the principles of the law of the case which a majority of the judges of this court so firmly endorsed in our order denying rehearing en banc in Liberty Mutual Insurance Co. v. Elgin Warehouse and Equipment, 4 F.3d 567, 573 (8th Cir.1993). Indeed, the dissent would take this rehearing of Robertson III to vacate Robertson I, in which we denied rehearing, and vacate Robertson II, in which we denied rehearing, and remand the case for a new trial.

6 . The district court cited these Arkansas Supreme Court decisions in support of this enumeration: Walt Bennett Ford, Inc. v. Keck, 298 Ark. 424, 768 S.W.2d 28 (1989); First Commercial Bank v. Kremer, 292 Ark. 82, 728 S.W.2d 172 (1987); Twin City Bank v. Isaacs, 283 Ark. 127, 672 S.W.2d 651 (1984); Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984); Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983); Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972); Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961); Vogler v. O’Neal, 226 Ark. 1007, 295 S.W.2d 629 (1956); McGlone v. Stokes, 193 Ark. 1008, 104 S.W.2d 191 (1937); St. Louis Southwestern Ry. Co. v. Hagler, 160 Ark. 543, 254 S.W. 1071 (1923); Gordon v. McLearn, 123 Ark. 496, 185 S.W. 803 (1916); and Pine Bluff & Arkansas River Ry. Co. v. Washington, 116 Ark. 179, 172 S.W. 872 (1915).

7 . Phillips claims that there is an overlap between the punitive damage awards for fraud and for intentional interference with a business relationship, and thus a dual award. We discuss this issue in Part II.

8 . TXO makes it unnecessary that we further discuss these post-Haslip decisions from the other circuits. See our panel opinion for its views on Mattison v. Dallas Carrier Corp., 947 F.2d 95 (4th Cir.1991), Mason v. Texaco, Inc., 948 F.2d 1546 (10th Cir.1991), cert. denied, — U.S.-, 112 S.Ct. 1941, 118 L.Ed.2d 547 (1992), Eichenseer v. Reserve Life Ins. Co., 934 F.2d 1377 (5th Cir.1991), and Glasscock v. Armstrong Cork Co., 946 F.2d 1085 (5th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1778, 118 L.Ed.2d 435 (1992).

9 . The dissent’s tonr de force on the punitive damage instructions ends with recognition that the issue has been waived. We respectfully point out that the instruction issues discussed by the dissent were not raised by Phillips in its briefs.

10 . We also observe that Phillips offered its own variation of the Arkansas form instruction, which repeated the standard for awarding punitive damages and allowed the jury to consider its financial condition, just like the instruction given. This record thus prohibits us from reconsidering the constitutional propriety of the instruction.

11 . Citing Wagner v. McDaniels, 9 Ohio St.3d 184, 459 N.E.2d 561, 564 (1984); Gamble v. Stevenson, 305 S.C. 104, 406 S.E.2d 350, 354, n. 3 (1991); Lunsford v. Morris, 746 S.W.2d 471, 473 (Tex.1988); Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371, 379 (1992).

12 . Instruction No. 16 stated: “In order to recover punitive damages from Phillips, Robertson Oil has the burden of proving that Phillips intentionally pursued a course of conduct for the purpose of causing injury or damage.”

13 . Seven judges, of this court, denying rehearing en banc in Liberty Mutual Insurance Co., 4 F.3d at 567, resoundingly affirmed the importance of the law of the case principle. The dissent's argument that the punitive awards are duplicative proceeds from its rejection of Robertson I as incorrectly decided. The dissent thus ignores the clearly expressed views of a majority of the judges of this court. Indeed, even Phillips does not now ask us to revisit the holding in Robertson I.

14 . The court instructed the jury that the previous jury had found the following elements of the tortious interference with contract claim:

First, that there was a valid contract between Robertson Oil Company and Spe-Dee Mart; second, that Phillips Petroleum knew of that contract; third, that Phillips intentionally interfered with that contract by inducing or causing its termination; fourth, that with respect to intentional interference with contract, Phillips was not acting in its own fair interest based upon reasonable economic and business considerations, but with an intent to cause injury or damage to Robertson Oil Company.

15 .The jury was required to find the following elements in order to return a verdict for Robertson on the fraud claim:

First, that Phillips made false statements of material fact to Robertson Oil; second, that Phillips knew or believed that the statements were false or lacked a sufficient basis of information to make the statement; third, that Phillips intended to induce Robertson Oil to act or to refrain from acting in reliance on the statements; fourth, that Robertson Oil justifiably relied on the statements in acting or refraining from acting; and fifth, that the actions of Phillips were a proximate cause of damages to Robertson Oil.

The fifth element necessarily found by the jury causes us to conclude that the dissent's statement that there has been no valid determination by the second jury that Robertson suffered compensable damages from fraud, dissent at pages 393-94, is plainly incorrect.

16 . This case differs from Holmberg v. Morrisette, 800 F.2d 205 (8th Cir.1986), cert. denied, 481 U.S. 1028, 107 S.C.t. 1953, 95 L.Ed.2d 526 (1987), in which this court held that the defendants had injured Holmberg only once and, accordingly, should be punished only once. See id. at 212. Similarly, the case differs from Super-Turf, Inc. v. Monsanto Company, 660 F.2d 1275 (8th Cir.1981), in which the duplication was found between a treble damage award under antitrust statutes and a punitive damage award for tortious interference with business. See id. at 1283. Stoner v. Houston, 265 Ark. 928, 582 S.W.2d 28 (1979) is distinguishable for the same reason. See 582 S.W.2d at 30-31. While Minnesota law does not control this case, the decision of the Court of Appeals of Minnesota in Bradley v. Hubbard Broadcasting, Inc., 471 N.W.2d 670 (Minn.Ct.App.1991), is also factually distinguishable. That court concluded that the jury assessed its punitive damage award on the same misconduct which the trial court punished by assessing a civil penalty. Id. at 678.