Freund

Opinion by Judge CANBY. Opinion dissenting in part by Judge GOULD.

OPINION

A jury in district court found that defendant Nycomed Amersham 1 had wrongfully terminated the employment of plaintiff Jeffrey R. Freund for making bona-fide safety complaints, thereby committing the California state-law tort of wrongful termination in violation of public policy. The jury awarded compensatory damages of $1,150,000 and punitive damages of $1,150,000. The district court overturned the jury’s award of punitive damages, granting Nycomed judgment as a matter of law on that issue.

Nycomed now appeals the judgment of compensatory damages, and Freund appeals the order overturning the award of punitive damages. We affirm the judgment for compensatory damages and reverse the order overturning the punitive damages.

Factual Background

In 1992, Freund was hired by Nycomed as a pharmacist in Nycomed’s nuclear pharmacy in San Diego. 3 Freund was hired by Mike Wakefield, who remained his supervisor for the entire term of his employment. Freund eventually was appointed a “Radiation Safety Officer” with responsibility for safety compliance at the San Diego pharmacy. The San Diego pharmacy for which…

dissenting in part:

The majority reinstates Freund’s punitive damages, which had been struck by the district court on post-verdict motion because of lack of evidence of malice. The majority’s decision is based on the requirement of Rule 50(b) of the Federal Rules of Civil Procedure that a motion for post-trial relief must state the same *1083 grounds for relief as the litigant’s Fed. R.Civ.P. 50(a) directed verdict motion. 1 In so doing, my colleagues expand the scope of a federal court’s power in a diversity action beyond permissible bounds, produce a result that is contrary to both Adams and the Due Process Clause of the Fourteenth Amendment, and create a circuit split in the process. See Simmons v. City of Philadelphia, 947 F.2d 1042, 1085-1087 (3d Cir.1991) (Becker, J.) (applying Pennsylvania substantive rule preventing waiver of municipalities’ sovereign immunity and allowing municipality to raise sovereign immunity in 50(b) motion notwithstanding failure of municipality to raise immunity in 50(a) motion).

I agree with the majority that Freund’s compensatory damage award against Ny-comed Amersham (“Nycomed”) should be upheld. I also agree with the majority that federal…