Piper also asserts that we should be guided by a line of cases holding that the National Traffic and Motor Vehicle Safety Act (NTMVSA), 15 U.S.C. 1381 et seq., and corresponding regulations, preempt state tort claims for failure to install air bags. The regulations give automobile manufacturers a choice of equipping cars with any of three types of passenger restraints, including air bags. 49 C.F.R. 571.208 (Safety Standard 208). [FN 18] See Kitts v. General Motors Corp., 875 F.2d 787 (10th Cir.1989), cert. denied, 494 U.S. 1065, 110 S.Ct. 1781, 108 L.Ed.2d 783 (1990); Pokorny v. Ford Motor Co., 902 F.2d 1116 (3d Cir.), cert. denied, 498 U.S. 853, 111 S.Ct. 147, 112 L.Ed.2d 113 (1990); Taylor v. General Motors Corp., 875 F.2d 816 (11th Cir.1989), cert. denied, 494 U.S. 1065, 110 S.Ct. 1781, 108 L.Ed.2d 783 (1990); Wood v. General Motors Corp., 865 F.2d 395 (1st Cir. 1988), cert. denied, 494 U.S. 1065, 110 S.Ct. 1781, 108 L.Ed.2d 782 (1990). But see Perry v. Mercedes Benz of N. Am., Inc., 957 F.2d 1257 (5th Cir.1992) (no preemption for installation of defective air bags). These cases determine that "a state common law rule that would, in effect, remove the element of choice authorized in Safety Standard 208 would frustrate the federal regulatory scheme." Taylor, 875 F.2d at 827. Thus, they hold that "[a]llowing a common law action holding manufacturers liable for failing to install air bags in motor vehicles would be tantamount to establishing a conflicting safety standard that necessarily encroaches upon the goal of uniformity specifically set forth by Congress in this area." Kitts, 875 F.2d at 789 (quoting Wood, 865 F.2d at 402).

[FN 18] Piper points us to a district court decision dismissing a claim against an airplane manufacturer. The dismissal was based on implied preemption grounds and cites Wood v. General Motors Corp., 865 F.2d 395 (1st Cir.1988), cert. denied, 494 U.S. 1065, 110 S.Ct. 1781, 108 L.Ed.2d 782 (1990). Dee v. Lake Aircraft, Inc., No. 88-0290-CIV-Kettoe (S.D.Fla. March 12, 1991). The Dee court does not provide its reasoning nor explain the issues in the case. Thus, we cannot determine if the decision should provide us any guidance. An appeal of the decision is now pending in the Eleventh Circuit Court of Appeals.

[FN 19] A closer question is presented by regulations promulgated in 1969 to require manufacturers to choose one of three safety options, one of which utilized shoulder harnesses. See 14 C.F.R. 23.785(g) (1970). Cleveland argues that Piper did not comply with any of the three options. However, as Piper states, these regulations apply only to planes receiving "type certificates" from the FAA beginning on September 14, 1969. 34 Fed.Reg. 13078, 13086 (1969). Since Piper received authority to build the Piper Cub years earlier, the 1969 amendments are irrelevant to our analysis. The fact that the FAA decided against making later amendments retroactive does not bring this case within the teachings of the air bag decisions. Piper's reasoning would suggest that anytime the government chooses not to regulate a field and leaves safety requirements to manufacturers, state court review of a manufacturer's choices would be preempted. Such reasoning stretches preemption doctrine beyond its bounds.

Furthermore, when the Court recently applied the doctrine of expressio unius est exclusio alterius to preemption cases, it excluded consideration of all forms of implied preemption, including conflict preemption. Cipollone, 505 U.S. at ----, 112 S.Ct. at 2618. Justice Blackmun's concurring opinion made this explicit. Id. at ----, 112 S.Ct. at 2625 ("We resort to principles of implied pre-emption -- that is, inquiring whether Congress has occupied a particular field with the intent to supplant state law or whether state law actually conflicts with federal law -- only when Congress has been silent with respect to pre-emption.") (citation omitted, emphasis added); see also id. at ----, 112 S.Ct. at 2633 (Scalia, J., dissenting) (asserting that this aspect of the decision "works mischief"). Congress's inclusion of s. 1305(a) preempting state regulation of air rates and routes suggests that it intended the Federal Aviation Act not to preempt common law claims such as those set forth in this suit. [FN 20] See Holliday, 747 F.Supp. at 1400 n. 3 (pre-Cipollone analysis).

[FN 20] As Justice Scalia's dissent points out, a blanket proscription creates difficulties for cases in which state and federal law actually conflict, making it impossible to satisfy both standards. Cipollone, 505 U.S. at ----, 112 S.Ct. at 2633. In earlier cases, when the Court determined that it was impossible to meet both the state and federal regulations, it turned to the Supremacy Clause to determine that the federal regulations impliedly preempt the state regulations. See, e.g., M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 4 L.Ed. 579 (1819). Abandoning this position seems incongruous to say the least. We need not resolve this incongruity here, however, because there is no actual conflict between the regulations and state tort remedies. Other circuits, however, have determined "whenever Congress includes an express preemption clause in a statute, judges ought to limit themselves to the preemptive reach of that provision with essaying further analysis under the various theories of implied preemption." Greenwood Trust Co. v. Massachusetts, 971 F.2d 818, 823 (1st Cir.1992) (emphasis added), cert. denied, 506 U.S. 1052, 113 S.Ct. 974, 122 L.Ed.2d 129 (1993); see also American Agric. Movement v. Board of Trade, 977 F.2d 1147, 1154 (7th Cir.1992) ("Only if a statute is devoid of explicit preemptive language may we resort to either variant of implied preemption.").

[FN 21] Piper also moved for summary judgment on the basis that Cleveland's claims should be dismissed because New Mexico has legislatively adopted certain federal aviation rules. See N.M.Stat.Ann. s. 64-1-2 (1978 Comp.). The district court denied summary judgment and we agree. Not only does this statute not address tort claims, but to the extent the federal law allows tort claims to proceed, so too does the state law.

The district court made two rulings limiting the scope of the second trial which the defendant attacks as beyond the mandate of this court's initial opinion. The judge stayed both rulings to give this court an opportunity to review them under 28 U.S.C. 1292(b). [FN 22]

[FN 22] The plaintiff claims that this court does not have jurisdiction over this part of the appeal because application to take an interlocutory appeal was not made within the required ten-days provided in 28 U.S.C. 1292. We have considered this argument and find it without merit.

[T]he special verdict form should permit the jury to determine which of the parties and non-parties (whether "original tortfeasors" or "crashworthiness tortfeasors") were negligent; whether the negligence of each of such parties and non-parties was a proximate cause of Plaintiff's injury and damages; the amount of damages sustained by the Plaintiff; and to compare the negligence of each party and non-party (whether "original tortfeasors" or "crashworthiness tortfeasors") found to be the proximate cause of the Plaintiff's injuries and damages.

The district court interpreted the phrase "the amount of damages sustained by the Plaintiff" to be limited to the apportionment of damages, since this was the central focus of our discussion about the deficiency of the special verdict form. Piper now urges that this interpretation is contrary to our mandate. The plaintiff on the other hand urges that no issues of damages remain, and that it is more logical and efficient to limit the second trial to apportionment questions since the amount of damages has been adjudicated in the first trial.

In our earlier opinion we granted a new trial as to both liability and damages. Our original opinion contemplated a recomputation of the damage amount as well as the apportionment of the award.

This court found the deficiency of the special verdict to be as follows:

[T]he trial court should have permitted the jury to determine whether the negligence of original tortfeasors was a proximate cause of Plaintiff's enhanced injuries, and to compare the negligence of any original tortfeasors found to be a proximate cause of the enhanced injuries to the negligence of any crashworthiness tortfeasors and of the Plaintiff which was found to have proximately caused Plaintiff's enhanced injuries. The special verdict form was erroneous and contrary to New Mexico law because it did not permit the jury to do so. As we have already indicated, our remand of this case to the district court for a new trial is necessary on this basis.

The district court's interpretation overlooks this court's earlier observation that a second jury may in fact find that the plaintiff's injuries are partially or wholly attributable to the original collision. Cleveland, 890 F.2d at 1550. In our earlier opinion, we discussed that under New Mexico law, the crashworthiness tortfeasors could not be concurrent tortfeasors with the original collision tortfeasors as to injuries received in the original collision, [FN 23] but both groups of tortfeasors could be concurrent tortfeasors as to the second (or crashworthiness) collision. Id. at 1549-50. Thus, this court concluded that the special verdict form did not allow for an apportionment of fault of the original tortfeasors as required by New Mexico law.

[FN 23] As our earlier opinion explained, even though the original tortfeasors may be concurrent tortfeasors in contributing to the enhanced injuries, under New Mexico law comparative negligence law, the fault or negligence of all concurrent tortfeasors must be apportioned. See Cleveland, 890 F.2d at 1550 (citing Bartlett v. New Mexico Welding Supply, Inc., 98 N.M. 152, 646 P.2d 579, 585 (Ct.App.), cert. denied, 98 N.M. 336, 648 P.2d 794 (1982)).

Thus, we hold that the trial court erred in finding that a new trial was not required as to the overall amount of damages.

The second disputed ruling concerns the district court's order that the new trial be limited to the same witnesses and exhibits as produced in the original trial. Piper urges this ruling is error and not contemplated by our prior opinion.

The district court has broad discretion in its control and management of trials. This discretion extends on remand to all areas not covered by the higher court's mandate. See Sprague v. Ticonic Nat'l Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 780, 83 L.Ed. 1184 (1939); United States v. Iriarte, 166 F.2d 800, 803 (1st Cir.), cert. denied, 335 U.S. 816, 69 S.Ct. 36, 93 L.Ed. 371 (1948). The Federal Rules of Civil Procedure require that all actions be disposed of in a fair and expeditious manner. See Fed.R.Civ.P. 1. Trial judges exercise broad discretion in limiting issues to be tried, evidence to be used (such as by avoiding cumulative and collateral proof), the time for oral argument, and the number of witnesses and experts who can be produced. Pretrial procedures are designed to manage trials, schedule and make expeditious discovery procedures, formulate issues, and provide fair notice of witnesses and proof to be adduced by all parties to litigation.

Notwithstanding the recognition of the trial court's broad discretionary authority over such issues, its rulings nevertheless must be balanced with constitutional fairness so as not to prejudice the basic rights of the parties.

In the present case, Piper wishes to produce new witnesses (all but one of whom is an expert witness), exhibits, and regulations at the new trial. [FN 24] The district court denied use of all new witnesses and evidence. It found that this limitation was in harmony with the court's earlier opinion. However, the trial court also found such a limitation did not mean that the second trial will necessarily duplicate the first.

[FN 24] Piper wishes to produce the following witnesses: (1) Herbert M. Tooney, the former chief of the Aircraft Engineering Division of the Civil Aeronautics Administration (CAA) for the Eastern Region, to explain certain correspondence of the CAA to Piper which was received in evidence at the first trial; (2) Richard Chandler, the former manager of the Protection and Survival Laboratory of the FAA's Civil Aeromedical Institute, to discuss the development process of the shoulder harness; (3) Les Hudson, to testify about the purpose of the acquisition of the Super Cub involved in the accident; (4) Samuel Hayden, the former head of the Aircraft Modification Section of the FAA for the Eastern Region, to testify Cleveland violated federal aviation regulations by altering the airplane; (5) Bret Willat, who owns and operates a sailplane operation which utilizes a Super Cub, to testify about tow operations and to show a video he produced; and (6) J.T. Hayes, a New Mexico State police officer, to describe his investigation of the accident. Piper also wishes to introduce additional evidence depicting "the long and safe history of the thousands of Super Cubs ... with the same basic design and visibility characteristics."

Piper can further develop many of its theories and defenses through its earlier trial witnesses. The trial court undoubtedly resolved that much of Piper's new evidence would be cumulative and redundant of that which was produced before. It appears to this court that much of the proffered evidence constitutes a lawyer's theory of how to "plug the holes" of a case. Allowing Piper to use the newly discovered evidence would require extensive additional discovery. This court must defer to the trial court's balancing of the value of additional evidence with the need for judicial economy and the reasons that the case was remanded in the first place. As the Fifth Circuit has noted in a different context, pretrial procedures can achieve the purpose

of improving the quality of justice only if the pretrial requirements entered at the discretion of the trial court are applied with intelligent flexibility, taking into full consideration the exigencies of each situation. The trial judge must be permitted wide latitude in guiding a case through its preparatory stages. His decision as to the extent that pretrial activity should prevent the introduction of otherwise competent and relevant testimony at trial must not be disturbed unless it is demonstrated that he has clearly abused the broad discretion vested in him by Rule 16.

We find the same principles should govern the trial court's discretion in managing a second new trial in any given case. The trial court is much more familiar with the conduct of the original trial, the needs for judicial management and the requirements of basic fairness to the parties in a new trial. We do not feel, however, that the trial court's ruling should be inflexible. Clearly, if the trial court perceives in limiting evidentiary proof in a new trial, a manifest injustice, to one side or the other, [FN 25] the court must retain broad latitude and may with proper notice allow additional witnesses and relevant proof. In this regard, if a party makes a timely motion to produce new and material evidence which was not otherwise readily accessible or known, the court should, within the exercise of discretion, consider whether denial of the new evidence would create a manifest injustice. If a lay or expert witness is deceased or ill or for whatever reason unable to attend trial, the court should give every consideration to allowing additional witnesses to testify. This does not mean the court should allow cumulative evidence, but it does mean that the court should allow sufficient leeway for the parties to produce new evidence, without undue prejudice to their interest. Technical rulings should never preclude new and material proofs; common sense should control. In conclusion, we remand to the trial court the issue concerning Piper's motion to adduce new witnesses and new evidence; the court in accord with the principles set forth here may in the exercise of discretion, reaffirm or modify its original ruling.

[FN 25] See Fed.R.Civ.P. 16.

[FN 26] The plaintiff has cross appealed the trial court's refusal to grant summary judgment on the issue of liability. Such a ruling would contradict this court's earlier opinion. In addition, it is not among the issues properly certified by the trial court under 28 U.S.C. 1292(b).