Cook v. Rockwell Int'l Corp.

摘要

The Cook I mandate remanded the entire case for a new trial, leaving no portion of the jury's verdict intact. Thus, the district court on remand was powerless to reinstate any part of that verdict or the judgment on that verdict. While the mandate precluded the plaintiffs' desired remedy on remand-i.e., the verdict's reinstatement-the district court's proper rejection of that remedy did not alter the fact that the Cook I panel had remanded the plaintiffs' state law nuisance claim and that claim remained pending even after the plaintiffs dismissed their PAA claims. The potential for retrial of the nuisance claim requires consideration of the district court's alternative ruling that the PAA preempted the plaintiffs' state law claims. On that issue I disagree with the majority's conclusion that the law of the case precluded the defendants' preemption argument. But consistent with the majority, I would reject that argument.