Silkwood v. Kerr-McGee Corp.

McKAY, Circuit Judge. This case is before our court on remand from the Supreme Court of the United States. Defendants Kerr-McGee Corporation and Kerr-McGee Nuclear Corporation (hereinafter collectively referred to as Kerr-McGee) appeal from judgments awarded against them in a suit brought by plaintiff Bill M. Silkwood as administrator of the estate of Karen Silkwood, deceased. The action, a diversity suit tried before a jury, was based upon common-law tort principles1 under Oklahoma law. Plaintiff sought recovery for personal injury (primarily fear and anxiety) and property damage suffered by Ms. Silkwood as a result of plutonium contamination. The contamination occurred November 5, 6, and 7, 1974. Ms. Silkwood’s death in an unrelated automobile accident on November 13, 1974 marked the end of any damages she did suffer and precluded any damages she might have suffered had she lived beyond that date. The jury awarded $500,000 on plaintiff’s personal injury claim and $5,000 on his property claim. It also awarded $10,000,000 in punitive damages.2 In our initial opinion3 we reversed the personal injury judgment, holding that recovery for those injuries was controlled exclusively by the Oklahoma Workers’ Compensation Act, Okla.Stat.Ann. tit. 85 (West 1971 & Supp.1980). We affirmed the property damage judgment, holding that the Oklahoma Act applied only to personal injuries. Finally, we reversed the punitive damages judgment, holding that the award of such damages constituted state action that competed substantially with the federal statutory regulation of the Kerr-McGee plant. Neither our affirmance of the property damages judgment nor our reversal of the personal injury judgment was appealed. Plaintiff did, however, appeal our reversal of the punitive damages judgment. Our decision in that regard was reversed by the Supreme Court, which concluded that the award of punitive damages in this case is not preempted by federal law.4 The Court remanded, with instructions that Kerr-McGee be free to assert any claims they made before our court that had yet to be addressed. Kerr-McGee now argues that they are entitled to judgment on the punitive damages claim because: (1) there is no evidence that malicious or wanton conduct on their part resulted in the plutonium contamination of Ms. Silkwood’s apartment; and (2) they substantially complied with the federal regulatory scheme governing their conduct. Kerr-McGee further contends that if they are not entitled to judgment on the record, the case should be remanded for a new trial on the punitive damages claim for the following reasons: (1) the evidence and the instructions relating to the personal injury — 1454 — claim thoroughly and prejudicially tainted the trial proceedings because any award of punitive damages must be based solely on evidence supporting the claim for property damage; (2) the trial court’s jury instructions were fatally defective because the jury was not properly instructed on the effect of compliance with federal regulations; (3) the punitive damages award is outrageously excessive, bearing no relationship to the nature and extent of the injury or to the cause thereof; and (4) the prejudicial publicity surrounding the trial, the misconduct of plaintiff’s counsel, and the prejudicial rulings of the trial court combined to deny a fair trial to Kerr-McGee. Karen Silkwood was a laboratory analyst at an Oklahoma Kerr-MeGee plant that fabricated fuel pins, containing plutonium, that were used for reactor fuel.5 Ms. Silk-wood worked the afternoon of November 5, 1974. Over the course of that afternoon, she monitored herself for plutonium contamination five times. The first four times she detected no contamination. The fifth time, after withdrawing her hands from one of the glove boxes6 in which she had been polishing and cleaning plutonium, she found contamination. Further checks were made in the laboratory and other contaminations were found, particularly inside the gloves in the glove box in which Ms. Silk-wood had been working. Ms. Silkwood was decontaminated, placed on a five-day voiding collection program, and furnished urine and fecal kits to take home for the purpose of obtaining samples that would be sent to the United States testing laboratory for analysis. On the morning of the next day, November 6, 1974, Ms. Silkwood arrived at work and did some paperwork for one hour. Upon leaving, she tested herself and again found herself to be contaminated. She was decontaminated and, at her request, her locker and auto were tested and found to be free of contamination. The next day, November 7, 1974, Ms. Silkwood went directly to the plant’s health physics office upon reporting to work. She was again found to be contaminated. The parties stipulated that the urine samples brought to the plant had been spiked with plutonium; that is, they contained insoluble — not naturally excreted — plutonium. Ms. Silkwood’s apartment was also found to have been contaminated. Ms. Silk-wood’s roommate, who had returned to the apartment from the plant sometime after 8:00 a.m. on November 7th, was contaminated as well. When she had left work, she had been found not to be contaminated. Ms. Silkwood’s boyfriend, who spent the night of November 6th in her apartment and left at 7:00 a.m. on the 7th, was not contaminated. Ms. Silkwood’s possessions were destroyed and she was sent to the Los Ala-mos Scientific Laboratory in New Mexico to undergo further tests concerning her contamination. On November 13th, after having reported back to work and being reassigned, she was killed in an automobile accident. A subsequent autopsy revealed that the amount of plutonium within her body at the time of her death was between 25 percent and 50 percent of the permissible lifetime body burden allowed by the Atomic Energy Commission7 for plutonium workers. We first address Kerr-McGee’s contention that they are entitled to a judgment notwithstanding the verdict on plaintiff’s punitive damages claim because there is no evidence that the contamination of Ms. Silk-wood’s apartment was caused by any malicious or wanton conduct on their part. This circuit has previously held that the question of the sufficiency of the evidence needed to go to the jury in a diversity case — 1455 — is a matter of federal law. Oldenburg v. Clark, 489 F.2d 839, 841 (10th Cir.1974). We have previously explicated the federal standard as follows: It is proper for a court to withdraw a case from the jury and direct a verdict only in limited circumstances. A directed verdict is proper only where the evidence and all the inferences to be drawn therefrom are so patent that minds of reasonable men could not differ as to the conclusions to be drawn therefrom. Taylor v. National Trailer Convoy, Inc., 433 F.2d 569, 571-72 (10th Cir.1970).8 The Oklahoma punitive damages statute, 23 O.S.1981, section 9, provides that: [i]n any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages for the sake of example, and by way of punishing the defendant. The requisite malice may be inferred from gross negligence that indicates a conscious indifference to the consequences of one’s acts, Wootan v. Shaw, 205 Okl. 283, 237 P.2d 442 (1951), or a reckless disregard for the safety of others. Thiry v. Armstrong World Industries, 661 P.2d 515, 517 (Okla.1983). In support of his punitive damages claim, plaintiff presented evidence relating to plant security, worker training, management, radiation detection, medical evaluation, and contamination incidents. Dr. Karl Morgan, who for 29 years directed the government’s health physics program at Oak Ridge, Tennessee, described defendant’s operations as one of the worst, from the standpoint of safety, that he had ever reviewed. He testified that he “could not imagine such a lackadaisical attitude could be developed in an organization in reference to the health and safety of the people,” and concluded that defendants’ practices reflected a “callous” and “wanton” disregard for the health and safety of employees. In addition to this and other expert testimony, plaintiff introduced substantial testimony of individuals who worked at defendants’ plant that related to defendants’ disregard for employee safety and to their endangerment of the public. Plaintiff offered considerable documentary and statistical evidence on this issue as well, the most notable of which was evidence indicating that during the period from 1972-1976 Kerr-McGee was unable to account for as much as 10.4 kilograms of plutonium. Defendants, of course, presented substantial evidence in rebuttal of plaintiff’s claim of gross negligence. We need not — 1456 — recite that evidence here, however. In determining whether a judgment notwithstanding the verdict should be entered, whether it be under the Oklahoma standard or the federal standard, our function as an appellate court is not to determine where the preponderance of the evidence lies. Rather, we are confined to the assessment of whether plaintiff has presented evidence sufficient that a reasonable person might conclude that gross negligence on the part of Kerr-McGee caused damage to Ms. Silk-wood’s property. It is true, as defendants contend, that plaintiff offered no direct evidence that the general pattern of gross negligence it sought to establish by the above evidence was the specific cause of the escape of plutonium in this particular instance. However, a jury may permissibly infer from a pattern of negligence likely to cause a particular kind of injury that such negligence did indeed cause the injury. See Averitt v. Southland Motor Inn of Oklahoma, 720 F.2d 1178, 1181-82 (10th Cir.1983). Plaintiff presented sufficient evidence of gross negligence and of causation to preclude a judgment notwithstanding the verdict for Kerr-McGee on the ground of insufficiency of the evidence. Kerr-McGee further argues for a judgment notwithstanding the verdict on the theory that its substantial compliance with the federal regulatory scheme governing its conduct precluded the award of punitive damages. Kerr-McGee’s argument in this regard appears to be two-pronged, although it is not clearly explicated as such. First, Kerr-McGee contends that substantial compliance with the federal regulatory scheme precludes the award of punitive damages as a matter of federal preemption. Second, Kerr-McGee apparently argues that even if this is not the case, such compliance is a bar to punitives as a matter of Oklahoma state law. In reversing our decision striking down the district court’s punitive damages judgment, the Supreme Court held that the existence of a federal scheme regulating Kerr-McGee did not preempt the award of punitive damages under state tort law principles. No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a state may nevertheless award damages based on its own law of liability. But as we understand what was done over the years in the legislation concerning nuclear energy, Congress intended to stand by both concepts and to tolerate whatever tension there was between them. We can do no less. It may be that the award of damages based on the state law of negligence or strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it does not conform to state standards, but that regulatory consequence was something Congress was quite willing to accept. 104 S.Ct. at 625-26. Kerr-McGee argues, in effect, that while the existence of the federal regulatory scheme does not preclude the award of punitive damages, full compliance with that scheme does. While it is true that the Supreme Court did not explicitly find that, as a matter of federal preemption, punitive damages may be awarded even if Kerr-McGee substantially complied with the federal regulatory scheme, for us to find that they may not would be inconsistent with the principles implicit in the Court’s opinion. The Court stated that: insofar as damages for radiation injuries are concerned, preemption should not be judged on the basis that the federal government has so completely occupied the field of safety that state remedies are foreclosed but on whether there is an irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damage action would frustrate the objectives of the federal law. We perceive no such conflict in the circumstances of this case. 104 S.Ct. at 626. The Supreme Court was well aware of the “circumstances of this case” regarding — 1457 — the substantial compliance issue. The Court noted that Kerr-McGee offered evidence that it had complied with most federal regulations. 104 S.Ct. at 619. The Court made specific note of a Nuclear Regulatory Commission official’s testimony that there were no serious personnel exposures at the plant and that Kerr-McGee did not exceed the regulatory requirements with respect to exposure levels that would result in significant health hazards. Id. The Court also noted the Nuclear Regulatory Commission’s report on the investigation of the incident involving Ms. Silkwood, in which the Commission determined that Kerr-McGee’s only violation of federal regulations throughout the incident was its failure to maintain a record of the dates of two urine samples submitted by Ms. Silk-wood. Id. Moreover, both of the dissents treated the majority opinion as holding that compliance with federal regulations does not preclude the award of punitive damages under state law principles of tort.9 Kerr-McGee asks us, in effect, to read the Supreme Court’s opinion as holding that the existence of the federal regulatory scheme does not preclude the award of punitive damages — unless that scheme is substantially complied with. In other words, the state may impose, in addition to the federal standard, its own stricter safety standard on a nuclear plant — unless the plant complies with the less stringent federal standard. We do not believe that this non sequitur can be reasonably inferred from the Supreme Court’s opinion. While the Supreme Court has determined that Oklahoma is not precluded from allowing the award of punitive damages despite substantial compliance with a federal regulatory scheme, the question remains whether Oklahoma does indeed allow punitive damages in such circumstances. The district court opinion never clearly addresses this question. The court concluded, after reviewing relevant federal and state cases from jurisdictions other than Oklahoma, that under traditional principles of tort law, compliance with government safety regulations does not bar the award of punitive damages. The court did not, however, explicitly inquire as to whether and how past decisions of the Oklahoma Supreme Court inform the issue. Inquiry into what the general law of tort is in this regard becomes relevant only after a determination that the question has not been decided, either directly or indirectly, by the Oklahoma Supreme Court. Our own analysis of Oklahoma law convinces us, however, that the district court’s conclusion was correct. Although the Oklahoma Supreme Court has yet to address the question of whether substantial compliance with a regulatory scheme bars the award of punitive damages, that court has embraced the general proposition that “mere compliance with statutory requirements does not relieve a party from responsibility for negligence as a matter of law.” Transport Indemnity Company v. Page, 406 P.2d 980, 985 (Okla.1965); see also Roadway Express, Inc. v. Baty, 189 Okl. 180, 114 P.2d 935, 937 (1941) — 1458 — (“merely complying with the statutory requirement relating to the position of his car on the paving did not, as a matter of law, save plaintiff from negligence”). We conclude that, if faced with the specific question, the Oklahoma Supreme Court would find, for the reasons enunciated by the district court, that under Oklahoma law substantial compliance with a regulatory scheme does not bar the award of punitive damages. We therefore reject Kerr-McGee’s argument that substantial compliance with federal nuclear regulations rendered it immune to tort liability, including the possibility of punitive damages. We must nevertheless remand for a new trial for the reasons we will now set forth. Kerr-McGee contends that a new trial should be ordered because evidence of Ms. Silkwood’s personal injury was introduced in the trial below, and the Oklahoma Worker’s Compensation Act, Okla.Stat.Ann. tit. 85 (West 1971 & Supp.1980), functions as a bar to any evidence relating to a covered personal injury. The Oklahoma Act provides that an employer shall pay compensation “for the disability or death of his employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of his employment____” Id. at 8, 11. Section 12 of the Act provides that the liability prescribed in section 11 “shall be exclusive and in place of all other liability of the employer ..., at common law or otherwise, for such injury....” Defendants argue that the Act functions as a complete bar to evidence relating to a covered personal injury claim. Plaintiff contends that while a covered personal injury may not be compensated by an award for actual damages, it may nevertheless be the basis of an award of punitive damages. Oklahoma has yet to decide the question of whether the Act functions as a complete evidentiary bar, or whether it merely precludes the award of actual damages. Our review of the Act and of Oklahoma case law convinces us, however, that the Oklahoma Supreme Court would reject both of the extreme positions advanced by the parties in favor of a more moderate view. If, as defendants contend, the Oklahoma Act functions as a complete evidentiary bar, it would work a substantial hardship on potential plaintiffs whose rights were not intended to be affected by the Act. For example, an evidentiary bar would preclude a non-employee who was injured by a defendant employer's negligent act from introducing evidence of past similar injuries to employees, which would be otherwise admissible under Oklahoma law in order to demonstrate the knowledge and malice of the defendant for purposes of a punitive damages determination. See Kurn v. Radencic, 193 Okl. 126, 141 P.2d 580 (1943); Averitt v. Southland Motor Inn of Oklahoma, 720 F.2d 1178 (10th Cir.1983); Edgar v. Fred Jones Ford, 524 F.2d 162 (10th Cir.1975). Similarly, an evidentiary bar would work a substantial hardship on employees, like Ms. Silkwood, who press a property claim against an employer, even though such a claim is clearly not within the scope of the Act. There is no indication, either in the language of the Act or in the legislative history, that it was intended to limit the ability of plaintiffs to introduce evidence of covered injuries in order to prove elements of claims not covered by the Act through functioning as a complete evidentiary bar. Evidence of an injury covered by the Act, however, may not be the basis for damages of any kind — actual or punitive. The Act is exclusive of “all other liability of the employer.” (emphasis added). See 2A Larson, The Law of Workmen’s Compensation, § 65.37 (1983) (reciting and documenting the well-recognized principle that punitive damages claims are barred by the exclusivity provisions, such as Oklahoma’s, in workers’ compensation acts). Cf, Arrington v. Michigan-Wisconsin Pipe-Line Co., 632 F.2d 867 (10th Cir.1980) (Oklahoma’s workers’ compensation remedy is exclusive even where plaintiff alleges the “highest possible degree of negligence”). Therefore, evidence of an injury covered by the Act that is admissible to prove an element of a claim for a non-covered injury — 1459 — must be properly restricted to that purpose by a limiting instruction. We are aware that in allowing evidence of a covered injury to prove an element of a non-covered claim we leave open the possibility that a covered injury may indirectly give rise to employer liability for that non-covered claim where none would have existed otherwise. However, our position is mandated by the fact that a complete evidentiary bar would expand the reach of the Oklahoma Act well beyond its framers’ intent. Plaintiff offers two cases in support of his position that even though an injury is non-eompensable by actual damages because of workers’ compensation exclusivity, that injury may nevertheless be the basis of a punitive damages award. In the first, Martin v. Texaco, Inc., 726 F.2d 207 (5th Cir.1984), the widow of a Texas worker who was killed on the job brought a diversity suit seeking punitive damages in Texas federal court. The district court allowed the jury to consider evidence of injury and to determine how much actual damages it would award, even though such damages were, in fact, unrecoverable because they were subject to the exclusive remedy of the workers’ compensation system. The jury returned a verdict for $450,000 in actual damages and $1 million in punitive damages, upon which the trial court entered judgment for plaintiff of $0 actuals and $1 million punitives. The Fifth Circuit affirmed. Martin is distinguishable from the case at hand in an obvious and significant way. The claim involved in that case — punitive damages for gross negligence causing death — was specifically preserved both by the Texas constitution10 and by the Texas Workers’ Compensation Act.11 The Oklahoma Workers’ Compensation Act not only contains no such specific preservation, but affirmatively precludes imposition of any other liability for a covered injury. Another case plaintiff cites in-support of the proposition that Ms. Silkwood’s personal injury may be the basis of a punitive damages award is Nales v. State Farm Mut. Ins. Co., 398 So.2d 455 (Fla.App.1981). That case involved the Florida no-fault automobile law, which places a statutory limitation on an injured party’s common-law right to claim damages for pain, suffering, mental anguish and inconvenience.12 To avoid this limitation a party must prove that he or she has suffered permanent injury. The plaintiff, who had been injured by a drunk driver, sought both actual and punitive damages. The trial court instructed the jury that the plaintiff had to. prove permanent injuries to recover both those types of actual damages expressly limited by the statute and punitive damages. The jury returned a verdict for the defendant. The court of appeals reversed the trial court, holding that even though certain types of actual damages arising from a non-permanent injury were not compensable under the Florida no-fault insurance law, that law did not preclude a common-law claim for punitive damages for such an injury. This case, too, misses the mark. Unlike the Oklahoma Workers’ Compensation Act, the Florida no-fault insurance law does not purport to be exclusive of all other liability. Both Martin and Nales stand for the proposition that where a statute precludes actual damages for a particular kind of injury but does not explicitly preclude other forms of liability, that injury may be the basis for a punitive damages award. The Oklahoma Workers’ Compensation Act explicitly provides, however, that the liability it prescribes “shall be exclusive and in place of all other liability of the employer____” (emphasis added). Thus, Martin and Nales have no application to this case. Having found that a personal injury covered by the Act may not be the basis of a punitive damages award, we must next address the question of whether Ms. Silk-wood’s personal injury was, in fact, the basis of any portion of the punitive dam — 1460 — ages awarded below. Plaintiff argues that the nature of punitive damages is such that the award would have been the same even if the trial below had been properly restricted to the property damage claim. This is so, plaintiff contends, because punitive damages analysis focuses not so much on the nature and extent of a plaintiffs injury as upon the endangerment to society created by the negligent conduct of the defendant and the punishment necessary to deter such conduct in the future. Plaintiff notes that our ruling on workers’ compensation did not diminish Kerr-McGee’s size and wealth, nor did it diminish the risk created by the escape of plutonium. In further support of his position, plaintiff offers Oklahoma cases holding that a punitive damages award need bear no relation to the actual damages awarded. It is indeed true that under Oklahoma law the wealth of the defendant and the risk created by the defendant’s negligent conduct are substantial factors to be considered in the calculation of punitive damages. See Whiteley v. OKC Corp., 719 F.2d 1051 (10th Cir.1983); Smith v. U.S. Gypsum Co., 612 P.2d 251 (Okla.1980); Thiry v. Armstrong World Industries, 661 P.2d 515 (Okla.1983). It is also true that under Oklahoma law punitive damages need bear no relation to the actual damages awarded. Garland Coal and Mining Co. v. Few, 267 F.2d 785, 791 (10th Cir. 1959); Cates v. Darland, 537 P.2d 336, 340 (Okla.1975). Indeed, under Oklahoma law, punitive damages may be recovered even in conjunction with nominal actual damages. Moyer v. Cordell, 204 Okl. 255, 228 P.2d 645 (1951); Beavers v. Lamplighters Realty, Inc., 556 P.2d 1328, 1333 (Okla.App.1976). In several instances the Oklahoma Supreme Court has reduced an actual damages award but refused to reduce the attendant punitive damages award. See, e.g., Hobbs v. Watkins, 481 P.2d 746 (Okla.1971); Moyer v. Cordell, 204 Okl. 255, 228 P.2d 645 (1951). Thus, if Ms. Silkwood’s personal injury were a permissible basis for a punitive damages claim, our striking down plaintiff’s actual damages award would not necessarily require a reduction in the amount of the punitive damages award. The Oklahoma Workers’ Compensation Act precludes all liability for a covered injury, however. Accordingly, our inquiry must be whether Ms. Silk-wood’s personal injury was indeed the basis for a portion of the punitive damages award. We must conclude that it was. While under Oklahoma law punitive damages need bear no relation to the amount of actual damages awarded, they must bear some relation to the “cause and extent of one’s injuries.” Hobbs v. Watkins, 481 P.2d 746, 747-48 (Okla.1971). See also Cates v. Darland, 537 P.2d 336, 340 (Okla.1975); Sopkin v. Premier Pontiac, Inc., 539 P.2d 1393, 1398 (Okla.App.1975); Garland Coal and Mining Co. v. Few., 267 F.2d 785, 791 (10th Cir.1959). The Oklahoma Supreme Court recently noted in Timmons v. Royal Globe Insurance Co., 653 P.2d 907, 918 (Okla.1982), that the harm caused to society by the particular conduct establishing liability for punitive damages, as well as the societal harm caused by that genre of conduct, were considerations material to a punitive damages award. The court also looked to the wealth of the defendant and to the deterrent effect of the award, but did not purport to overrule prior cases by enunciating an exclusive list of material factors. Thus, under Oklahoma law, although such factors as risk created and deterrent effect may be considered in determining a punitive damages award and the amount of punitive damages need bear no relation to the amount of actual damages awarded, the analysis is not open-ended. Rather, it must be disciplined by reference to. injuries actually caused by the defendant, both to the plaintiff and to society generally. On the issue of punitive damages the trial court instructed the jury as follows: Any exemplary damages that you award must bear some relationship to the injuries inflicted, but need not bear any relation to the amount of actual damages. — 1461 — 485 F.Supp. at 603. Thus, by instructing the jury to consider “the injuries inflicted” without restricting their consideration to the property damage claim, the district court explicitly invited the jury to increase the size of the punitive damages award on the basis of Ms. Silkwood’s personal injury. As we have held, although evidence of an injury covered by the Oklahoma Workers’ Compensation Act is admissible to prove an element of a claim not covered by the Act, it must be limited to that purpose. It may not be used by the jury as the basis for increased punitive damages in the jury’s assessment of the appropriate relation between the injuries inflicted and the punitive damages award. Consequently, the trial court erred in using an instruction that invited the jury to consider a factor in setting the size of the punitive damages award that Oklahoma law forbids. Any jury award of punitive damages involves a “discretionary moral judgment,” see Smith v. Wade, 461 U.S. 30, 52, 103 S.Ct. 1625, 1638, 75 L.Ed.2d 632 (1983). Oklahoma law places very little limitation on the jury’s discretion in making this moral judgment. Thus, no clear guidelines exist for us to determine what is an appropriate amount for a punitive damages award. In such a situation we are reluctant to hold errors that permitted the jury to consider improper elements in fashioning its award to be harmless. Because we cannot determine to what extent the jury’s punitive damages analysis was distorted by the consideration of an impermissibly large actual injury, a new trial is required. In addition to limiting the use of Ms. Silkwood’s personal injury so as not to increase the size of the punitive damages award, the district court on retrial must ensure that the entire focus is on the type of conduct by Kerr-McGee that could have caused Ms. Silkwood’s property damage: conduct allowing plutonium to escape the Kerr-McGee plant. Only evidence that relates to the plant operations and practices relevant to that escape will be admissible. Evidence of Ms. Silkwood’s personal exposure will be admissible only insofar as it bears on that issue. Thus, no doubt some of the evidence that the jury may have considered in making the punitive damages award in the earlier trial will not be admissible in the new trial. Further, the evidence of Ms. Silkwood’s personal injury that is admissible for proving the property damage claim must be restricted so as not to be a factor in the determination of the required relation between injuries inflicted and the amount of punitive damages. Because a new trial is required to determine whether Kerr-McGee’s conduct that caused plaintiff’s property damage warrants imposition of punitive damages and, if so, the amount of those damages, we need not consider Kerr-McGee’s other grounds for a new trial. Finally, we address plaintiff’s claim that he is entitled to a new trial on his personal injury claim. We, of course, previously reversed the district court’s judgment for the plaintiff on this claim, holding that workers’ compensation was the exclusive remedy for Ms. Silkwood’s personal injuries. Plaintiff contends, however, that the trial court’s rulings regarding the workers’ compensation law framed the case in such a way that plaintiff’s counsel “contented themselves” with offering intentional tort evidence solely to rebut Kerr-McGee’s theory of self-contamination, and did not “marshal the evidence” or “frame arguments” in such a way as to persuade the jury that an intentional tort had been committed. We find the argument that plaintiff’s counsel were induced to complacency on this issue somewhat less than persuasive. Plaintiff had opportunity as well as incentive to marshal and persuasively present all the evidence available to prove that Kerr-McGee intentionally contaminated Ms. Silkwood. Demonstrating intent on the part of Kerr-McGee to contaminate Ms. Silkwood was of obvious significance to plaintiff’s punitive damages claim. Moreover, even if plaintiff’s effort to prove intent was less fervent than it might have been if the trial court had properly ruled on the workers’ compensation law, — 1462 — under the doctrine of “law of the case” plaintiff is not entitled to a new trial on this claim.13 Under this doctrine plaintiff would be required to show that our previous decision was “clearly erroneous” or that it would result in a “manifest injustice.” Handi Inv. Co. v. Mobil Oil Co., 653 F.2d 391, 392 (9th Cir.1981); White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967). In view of plaintiffs obvious incentive at the trial below to prove intentional contamination, we would be hard-pressed to hold that plaintiff has met this standard. Put simply, plaintiff has had his day in court on his compensatory damages claim. He is not entitled to another. The punitive damages judgment is reversed, and the cause is remanded for a new trial on the punitive damages issue. Footnotes [1] Civil Rights Act and federal constitutional claims were also asserted in the original petition. The trial court’s dismissal of those claims was affirmed in a separate appeal. Silkwood v. Kerr-McGee Corp., 637 F.2d 743 (10th Cir.1980), cert. denied, 454 U.S. 833, 102 S.Ct. 132, 70 L.Ed.2d 111 (1981). [2] The opinion of the trial court overruling Kerr-McGee’s post-trial motions is reported at 485 F.Supp. 566 (W.D.Okla.1979). [3] Silkwood v. Kerr-McGee Corp., 667 F.2d 908 (10th Cir.1981). [4] Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). [5] What follows is a brief review of the facts set out in more detail in our first opinion, 667 F.2d 908 (10th Cir.1981). [6] A glove box is a supposedly impervious box surrounding the plutonium processing equipment that has glove holes permitting the operator to work with the equipment or with plutonium from outside the box. [7] Now the Nuclear Regulatory Commission. [8] There is conflict among the circuits on the question of whether it is proper to apply a state or federal test of sufficiency of the evidence to support a jury verdict in a case where federal jurisdiction is rested on diversity of citizenship. Compare Kuziw v. Lake Engineering Co., 586 F.2d 33 (7th Cir.1978) (state law applies in determining motions for directed verdicts and for judgments notwithstanding the verdict) with John Hancock Mutual Life Ins. Co. v. Dutton, 585 F.2d 1289 (5th Cir.1978) (federal law standard is to be applied in assessing whether judgment notwithstanding the verdict should be granted). The Oklahoma standard for assessing the sufficiency of the evidence in support of a jury verdict differs somewhat from the federal standard. The Oklahoma Supreme Court has held that: A motion for directed verdict ... should not be sustained unless there is an entire absence of proof tending to show a right to recover, and in passing on the same the trial court must consider as true, all of the evidence favorable to the party against whom motion ... is directed together with all inferences that reasonably may be drawn therefrom and disregard all conflicting evidence favorable to the movant. Austin v. Wilkerson, Inc., 519 P.2d 899, 903 (Okla.1974) (quoting Central Mutual Ins. Co. v. Dickason, 451 P.2d 1 (Okla.1969)) (emphasis added). Even if Oklahoma state law on this question were to be applied in this case, however, our decision on this issue would be the same, because whatever the differences in nuance between the Oklahoma standard and the federal standard, it is clear that Kerr-McGee’s motion for judgment notwithstanding the verdict on the ground of insufficient supportive evidence must fail under either. [9] Justice Blackmun stated that the punitive damages award ... enables a State to enforce a standard that is more exacting than the federal standard. Were Kerr-McGee to continue adherence only to the federal standard, it would presumably be in continuous violation of state law — an indication that the jury award in this case was too small to serve its purpose. A licensee that continues to meet only the federal standard therefore presumably will receive increasingly large punitive sanctions in subsequent personal injury suits, until compliance with the state-imposed safety standard is obtained. 104 S.Ct. at 630. Justice Powell in his dissent noted that: The Court’s decision, in effect, authorizes lay juries and judges in each of the states to make regulatory judgments as to whether a federally licensed nuclear facility is being operated safely. Such judgments then become the predicate to imposing heavy punitive damages. This authority is approved in this case even though the Nuclear Regulatory Commission (NRC) — the agency authorized by Congress to assure the safety of nuclear facilities — found no relevant violation of its stringent safety requirements worthy of punishment. 104 S.Ct. at 634. [10] Const, art. XVI, S. 26. [11] Tex.Rev.Civ.Stat.Ann. art. 8306, S. 5 (Vernon 1967). [12] Fla.Stat. § 627.730 (1979). [13] Defendants argue that our prior decision is res judicata on remand. See IB Moore’s Federal Practice f 0.404 [4.3] (2d ed. 1982). In light of our disposition we need not reach this issue.