Freund

Opinion by Judge CANBY; Dissent by Judge GOULD.

ORDER

Judges Canby and Berzon have voted to grant the petition for panel rehearing in part and to deny it in part. Judge Gould has voted to grant the petition. The petition of Nycomed for panel rehearing is granted in part and denied in part. The majority and dissenting opinions filed in *756 this case on April 22, 2003, and reported at 326 F.3d 1070 , 1082, are withdrawn and the attached majority and dissenting opinions are ordered filed herewith.

Judge Berzon has voted to deny the petition for en banc rehearing, and Judge Canby so recommends., Judge Gould has voted to grant the petition for en banc rehearing. The petition for rehearing en banc, the response thereto, and the attached opinion have been circulated to the full court, and no judge has called for a vote to rehear the case en banc. The petition for rehearing en banc is denied.

No further petitions for panel or en banc rehearing may be filed. The mandate shall issue in due course.

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,…

dissenting in part:

*767 The majority reverses the district court’s order overturning as a matter of law punitive damages awarded to Freund. These punitive damages, in my view, were correctly stricken by the district court on post-verdict motion because of lack of evidence of malice. The majority errs in reinstating these punitive damages even though subject to the district court’s decision on remand about new trial on punitive damages.

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 grounds for relief as the litigant’s Fed.R.Civ.P. 50(a) directed verdict motion. 2 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…