What is the effect of failing to object to the district court's failure to submit the question of punitive damages to the jury?

I concur in the judgment and in most of the majority opinion. I write separately to note my disagreement with the majority opinion's suggestion that, by failing to object to the district court's failure to submit the question of punitive damages to the jury, the plaintiff waived all right to have that claim decided. This is not a case in which a party has withdrawn or abandoned a claim. As the majority opinion notes, plaintiff may well have been "lulled" into failing to object to the submission of the punitive damages issue to the jury; and after the jury was discharged, plaintiff moved to have that issue decided in a new trial. A court should not assume that an expressly asserted and pursued claim has been withdrawn unless there is clear evidence of a knowing withdrawal. See, e.g., Frank v. Relin, 1 F.3d 1317, 1326-27 (2d Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 604, 126 L.Ed.2d 569 (1993). In my view, for the reasons stated below, plaintiff was entitled to have the punitive damages issue decided by the court, although in the circumstances of this case a remand for such a decision is not necessary.