Dorothy Clark v. Chrysler Corporation

that, he was report stated while The VOA Dorothy CLARK, Plaintiff-Appellee, Linscott “admitted program,

in the VOA (30) thirty victims ‘. having [child] over admission Linscott similar No CORPORATION, CHRYSLER psychiatric evaluation. found in can be Defendant-Appellant. resentencing, During the March judge that the specifically trial stated No. 04-5279. disturbing to me.” No report “is VOA Appeals, Court of United States by the court was made statement similar Circuit. Sixth evaluation. concerning psychiatric April Argued: Ultimately, imposed trial court the Ohio 1, 2006. and Filed: Feb. Decided it would question “because the sentence offense th[e] the seriousness demean public” adequately protect evaluation psychiatric

do otherwise. opinion” first nor the last

“was neither the making decision and

the court heard in key by no State’s

“was means proper sentence.

case” on issue 795-96, 121

Penry, S.Ct. 1910. consider-

Accordingly, believe we evaluation, even if psychiatric

ation of the

erroneous, not have substantial and did the sen-

injurious effect or influence on Therefore, imposed. we find that

tence claim psychiatric

Linscott’s evaluation fail.

must

III. reasons, we hold that foregoing

For the petition timely.

Linscott’s Nonethe-

less, the district we affirm the decision of deny petition

court to Linscott’s because any error in

Linscott establish that cannot injuri-

resentencing had a substantial and

ous effect influence his sentence. MOORE,

Before: KENNEDY RESTANI, Judge.* Chief Judges; Circuit RESTANI, C.J., opinion delivered the court. KENNEDY, 612-614), (pp. delivered J. concurring part in and separate opinion judgment. concurring in the - MOORE, 627), (pp. 614 delivered J. opinion concurring part and separate dissenting part.

OPINION RESTANI, Judge. Chief Chrysler Corporation appeals the dis- remand, order, up- on trict court’s entered holding Dorothy Clark’s million $3 damage propor- award as reasonable and wrong deny- tionate committed and judgment for as a ing motions law, remittitur, for a matter for new puni- we conclude trial. Because damage constitutionally ex- tive cessive, the amount we remit $471,258.26. damages to I. BACKGROUND1 Boutrous, Jr., Theodore J. ARGUED: 14, 1993, Charles On October Clark Crutcher, Gibson, Washington, Dunn & injured in fatally accident automobile D.C., Hay, Appellant. Richard Law for driving Dodge a 1992 Ram club cab while Somerset, Hay, Ken- Office of Richard The accident occurred when pickup truck. tucky, BRIEF: Theo- Appellee. for ON Mr. into an intersection in pulled Clark Boutrous, Jr., H. Dupree, Thomas dore J. oncoming of an vehicle and the two front Jr., Crutcher, Gibson, Washing- Dunn & Clark, vehicles collided. Mr. who was not ton, Sutter, Sutter, D.C., A. Lawrence belt, ejected wearing a from his seat Farchione, O’Connell, Mannion & Cleve- a short time vehicle died later. land, Ohio, Hay, Richard Appellant. Somerset, Chrysler, claiming Hay, Law Mr. Clark’s wife sued Office Richard pickup defectively its truck was Kentucky, for Appellee. * Cir.2002), Restani, Chrysler Corp., Judge Chief 310 F.3d 461 The Honorable A. Jane the United Court of International States relevant to the we now discuss the facts Trade, sitting by designation. disposition. instant previously 1. Because we back- discussed ground dispute in Clark v. of this detail in 1, 1997, negligently designed. On October decision Campbell.” in State Farm v. Pet. trial, three-day the jury Cert., after a rendered a Writ of No. 2003 WL (U.S. 2003).2 unanimous verdict favor of Mrs. Clark *2 May liability, of strict negligence, claims petition, Chrysler insisted that jury failure to warn. The found that jury’s million punitive damage award Chrysler and Mr. Clark were each 50% at was constitutionally excessive. Id. 2003 $471,258.26 fault and returned a verdict of WL *18-*25. Clark opposed $3,000,000 in compensatory damages and petition, arguing Chrysler had damages. The court entered a waived its challenge constitutional fail- judgment against ing to it in post-judgment raise its motions $3,235,629.13, reflecting the com- 50% of court, before the district and that if even pensatory damages plus pu- the million review, preserved issue was for damages nitive award. punitive amount damage award was within constitutional boundaries. See’ trial, Chrysler request After renewed its Resp’t Opp’n Br. in Pet. for Writ of judgment pursuant for as a matter law Cert., 22428165, No. WL to Federal Rule of Civil Procedure 2003). (U.S. 1, July *19-*30 for trial pursuant a new to Federal Rule of for judg- Civil Procedure 59. In its motion 6, 2003, Court Supreme On.October law, ment a matter Chrysler argued granted Chrysler’s petition, our vacated that because was no there evidence judgment, and remanded the case us “gross negligence,” punitive an award of “for further in light consideration of State damages improper. [J.A. 81-85.] Clark, Farm.” Chrysler Corp. Chrysler alternatively argued a new 801, (2003). 124 S.Ct. 157 L.Ed.2d 12 trial in its Rule 59 motion. district The We, turn, in remanded the to the case court denied both motions. [J.A. 87-92.] proceedings district court for further in On we appeal, affirmed the district court’s accordance with the Supreme Court’s or judgment and upheld jury’s compensa- Chrysler Corp., der. See Clark v. Fed. tory damage punitive awards. (6th Cir.2003). Appx. February On later, Supreme Several months upheld jury’s the district court Court decided State Farm Auto- Mutual award, Chrysler’s and denied motions for mobile v. Campbell, Insurance Co. law, judgment aas matter of for remitti- 155 L.Ed.2d 585 tur, Op. and for new trial. See Dist. Ct. (2003). In State the Court elabo- (Feb. 2004), & Order J.A. at 31-43. procedural rated on the and substantive Chrysler timely appealed.3 constraints the Due Clause Process

imposes punitive damage Af- awards. II. DISCUSSION issued, ter Farm Chrysler peti- State certiorari, Supreme tioned for writ of elab- requesting Court certiorari, “grant punishment, by vacate orated on the measure of below, damages, decision and remand means of punitive for further that a state (“GVR”) consideration may impose of its recent civil upon defendant petition, Chrysler In its also asked the Court as a matter law under Federal Rule of Civil grant plenary Id. at review to consider whether Procedure 50. *8-*18. sitting diversity apply federal courts should sufficiency or state federal of the evidence jurisdiction appeal pursu- 3. We have over ruling (2000). judgment § standard in aon motion ant to 28 U.S.C. 1291 (B) review; the award is consti- principle served reiterated the The Court case. that, possess tutionally discretion and should be reduced States excessive “[w]hile (C) damages, $471,258.26 a new trial on the imposition over the procedur there are is well established amount of warranted limita constitutional al and substantive rejected if the reduced award Process The Due tions on these awards. Mrs. Clark. pro the Fourteenth Amendment

Clause imposition grossly excessive hibits the regarding con- claim A. aon tortfeasor.” arbitrary punishments stitutionality of award has been (citations preserved for review omitted). expressed also The Court Chrys parties dispute whether the manner which concern with claim that the properly preserved its ler administered, noting damages systems are constitutionally damage award is aid [a “do little to vague instructions though conclude even excessive. We assigning appropriate jury] in its task of Chrysler initially challenge waived is relevant weight to evidence failing post-trial it motions raise its inflam or tangential that is evidence court, pro subsequent before the district 417-18, 123 1513. matory.” Id. at S.Ct. ceedings Supreme in the Sixth Circuit concerns, ap Court In of these the preserved the for review. Court issue forth in plied guideposts three set the Gore,4 puni that a BMW and concluded v. Challenges to the excessiveness million, where damage tive of award brought in the trial of verdicts must million, compensatory damages were $1 post-trial Young through court motions. 418-29, constitutionally excessive. Id. (6th 792, Langley, 793 F.2d 794 Cir. v. 1513. S.Ct. 123 1986). allows trial procedure This the Farm’s narrow focus judge opportunity initially

Because of State correct damages limit- errors, discretion, and the on Court’s his exercise and create order, our do not reconsider ed GVR we appeal. Id. the full record for Absent liability, com- holdings regarding earlier timely post-trial motion and the filing of damages, sufficiency the of pensatory or thereon, ruling an appellate trial court’s puni- support evidence to some award alleged generally court will not review the must, however, damages.5 tive decide We Id; awards. excessiveness change requires Farm us to whether State 12, Huard, v. also 117 F.3d see O’Connor puni- our the amount of the conclusion that (1st Cir.1997) (“We generally will damage tive was within constitu- dam party’s review contention the tional conclude that it does. limits. We or ages award is excessive insufficient failed to the below, party where the has allow explain discussion we (A) matter.”); rule De district court to on the regarding claim the consti- Brown, 516, v. 669 F.2d tutionality pre- of the Witt award has been imposed penalties com- reviewing Court civil authorized or The Gore instructed courts Am., punitive damages guide- parable cases. BMW N. Inc. v. consider three 559, 1589, (1) 116 S.Ct. posts: degree reprehensibility of (1996). misconduct; (2) L.Ed.2d 809 disparity be- defendant's potential actual tween the harm suffered Thus, damage plaintiff opinion earlier with and the we reinstate our V.B.2, award; (3) addressed exception of Part the difference between punitive damages jury and the Due Process Clause issue. awarded omitted) Cir.1982) (citations (noting quickly factors reveals that case cry of a ver- “inadequacy or excessiveness far from Gore. be, basically, dict is and should a matter Clark, result, 310 F.3d at 481-82. As a court which has for the trial had bene- although Chrysler waived its constitutional testimony hearing fit of observ- challenge by failing post- it in its raise ing the demeanor witnesses court,6 trial motions before the district our community which knows the and its stan- passing essentially the issue preserved dards”). Supreme it for Court review. See United 38, In Local Union No. Metal Sheet Williams, 36, 41, States 504 U.S. Pelella, Ass’n v. Workers’ International (1992) (“Our 118 L.Ed.2d 352 example, the Second Circuit refused precludes traditional rule ... grant punitive damage decide whether the certiorari only question when the present constitutionally excessive because pressed ed was not or passed upon be appellant failed raise the issue in its low.”) omitted); (quotations and citations post-trial motions before the district court. Bankshares, Sandberg, Va. Inc. v. 501 U.S. (2d Cir.2003), 89-90 de cert. 1099 n. 111 S.Ct. nied, (1991) (rejecting respondents L.Ed.2d (2004). Although L.Ed.2d 248 State Farm argument should decline to address during ap was decided the course an issue that was not raised below because peal appellant and the raised the issue suffices for our purposes “[i]t brief, reply the Pelella court held that passed presented, court below on the issue the matter had been waived. See id. The particularly where the issue is ... in a appellant court reasoned the “could evolving state of definition and uncertain in the unquestionably have invoked Gore ty, importance and one of to the adminis to proceedings suggest district court law”) tration of (quotations federal jury’s the award was York, constitution omitted); Payton v. citations New ally at excessive.” Id. 19, 1371, 445 582 n. 63 U.S. (1980) (“Although L.Ed.2d 639 it is not in Similarly, Chrysler this did not ease appellants clear from the record that challenge punitive damage the as in trial raised constitutional issue the constitutionally in its excessive either of courts, highest since the of the court State 63-74, post-trial 75- motions. See J.A. it, there is no that it passed doubt Pelella, however, in we Unlike never- by properly presented review appeal. theless addressed the issue on (citation omitted). Court.”) that, Specifically, we stated Furthermore, Chrysler also ... Supreme maintains that Court’s GVR jury’s suggests so vio- has been award was excessive order issue preserved late the Due Process Clause. for reconsideration on remand. [We do] case, agree.... briefing granted In none of its In this the Court Gore, order; in why, request does under for a GVR indicate whereas two cases, process a due violation occurred in this other the Court denied similar re- However, quests appeals case. a review of the where the courts refused to [three] (6th Cir.2004) Supreme already (explaining 6. Because the Court had 477-78 that "State Gore, Chrysler decided could have invoked change law Farm did not work a in the so challenge the three factors to the constitution- existing as it law much clarified set forth in ality punitive damages See award. Am. [Gore]"). Trim, Corp., L.L.C. Oracle 600 premised are on matters that [the issue. Pelel- orders constitutional

pass on the la, instance, Circuit refused ... the court did Court] believe[s] the Second below damage consider, the punitive ... fully require whether decide constitutionally consideration”). excessive be further Union, did not Local appellant, cause the trial court. See in

raise issue damage award is con- B. The II.A. On supra petition Part discussion stitutionally excessive Court, request Supreme Local Union’s above, in As discussed light in of State Farm for a GVR order on the three Farm elaborated Gore Cert., Pet. for Writ denied. See (U.S. that courts must consider guideposts when *16 2004 WL No. 2004) reviewing damage awards. (asking Supreme Court to Apr.20, (1) Namely, degree reprehensibility punitive damages whether either resolve (2) misconduct; the dis constitutionally permissible or remand defendant’s are potential the actual or parity Circuit reconsideration between Second Farm); Local Union No. light plaintiff of State harm suffered Pelella, (3) Int’l Ass’n v. damage award; Sheet Metal Workers’ differ 1086, 124 159 L.Ed.2d S.Ct. punitive damages between the award ence (2d (2004), cert. denying F.3d jury penalties and the civil au ed Cir.2003). En Similarly, Time Warner comparable imposed thorized or cases. Flags Georgia, Co. v. Six Over tertainment 574-75, 116 S.Ct. See LLC, Georgia Appeals Court of held 1589. In of State and after Time waived its constitutional Warner Industries, review, Cooper novo Inc. v. de challenge by failing any to cite relevant Inc., Group Leatherman Tool citations, facts, present provide record 424, 431, L.Ed.2d 674 analysis argu any legal support of (2001), conclude that million we Ga.App. S.E.2d ment. is constitutionally award here excessive. (2002). petition to the Time Warner’s application guideposts An Gore Court, requesting order Supreme GVR puni of case reveals that a the facts light in consideration of State for further damage approximately equal tive Pet. was denied. See for Writ of compensatory amount of twice the dam Cert., at No. WL $471,258.26, comport or ages, would with (U.S. 2002) Dec.23, (requesting, *25-*27 at requirements process. of due minimum, of GVR State Farm); Entm’t v. Time Co. Six Warner Degree reprehensibility of Ga., Flags 538 U.S. 123 S.Ct. Over (2003) (denying L.Ed.2d 665 first respect With to the Gore cert.). emphasized that guidepost, State Farm reprehensibility of degree “[t]he

Therefore, even initial though most indicium of important the reasonable ly by failing claim waived its constitutional court, punitive damages ness of a award.” 538 to raise it in district our earlier at (quoting 123 S.Ct. 1513 Supreme Court’s decision GVR 1589). The 517 U.S. 116 S.Ct. has indicates issue been order laid out a list of five criteria that fur Court preserved, and should be considered Chater, determining lower courts must consider in See ther remand. Lawrence 163, 168, reprehensibility of a defendant’s con (1996) (explaining L.Ed.2d 545 that “GVR duct: (the

We have instructed courts to determine harm “purely inflicted was reprehensibility of a defendant nature”); economic in considering whether: harm caused (same). S.Ct. 1513 economic; physical opposed was as

the tortious conduct evinced indiffer- b. Indifference to or reckless disre- to or disregard ence a reckless gard safety for the of others others; safety target health or of the conduct had vulnerability; trial, financial At Clark introduced evidence that repeated the conduct involved actions or Dodge the 1992 Ram door latch and the incident; was an isolated and the harm metal against frame of the truck which the malice, was result of intentional latch B-pillar closed—the improper- —were trickery, deceit, or or mere accident. ly designed, such that the forces any existence one these factors B-pillar deform, accident caused the or weighing plaintiff may favor of a not out,” open latch, “twist and force allow- be sufficient to sustain a dam- ing Mr. Clark to be thrown from the truck. award; ages the absence all of experts Clark’s that Chrysler testified uti- any suspect. them renders a thin piece lized of formed sheet metal as (citation omitted). Id. In original our a B-pillar; that the truck’s B- “unboxed” opinion, we that Chrysler’s concluded con- pillar design inadequate to withstand reprehensible duct was because the loss of accidents; low-impact that the sheet metal greater life disregard evidenced a for the type of B-pillar substantially outdated rights safety of others than the eco- and had been removed from the modern damage nomic sustained Gore. See industry state the art and state of the Clark, 482. State Farm does years; for over 40 every other manu- change our physical conclusion that the reinforced, boxed-in, facturer utilized harm suffered Mr. weighs Clark supported B-pillar designs that did not strongly finding Chrysler’s favor con- failure; experience bypass and that B-pil- duct reprehensible. considering After lar twist-out was a known failure in the factors, however, four other we conclude addition, industry. automotive factors a whole show that Chrysler representative testified that his sufficiently conduct was not did test group for latch failures involv- reprehensible a million to warrant pun- Also, ing B-pillar twist-out. a member of ishment. Chrysler Safety B- Office stated that a Physical a. or economic harm pillar generally is a boxed-in section of metal, and an piece unboxed of metal Because Chrysler’s conduct in resulted Finally, is in almost every weak direction. physical ultimately harm and the loss of life, was Mr. Clark’s this there evidence introduced at trial that weighs heavily factor in finding favor of Chrysler’s rep- Chrysler ejected, conduct knew that if a driver was 576, rehensible. 517 U.S. at substantially 116 the risk of death increased.7 Cf. Indus., Inc., Cooper 7. The Court in tage primarily respect 532 U.S. at exists with to issues turning n. 121 S.Ct. 1678 credibility instructed courts of on witness and demeanor.” 1678; appeals Inn, to "defer the District Court’s factu- Id. at accord Willow findings, clearly Co., al they unless are errone- v. Inc. Pub. Serv. Mut. Ins. 399 F.3d Cir.2005); explained (3d The ous.” Court further "with 230-31 Leatherman Tool respect Indus., Inc., inquiry Group, the first Gore ... Cooper dis- Inc. v. 285 F.3d (9th Cir.2002). case, superior vantage trict courts have somewhat this this appeals,” over advantage courts of where such "advan- does not exist because district testing disagree we necessary, is opinion, B-pillar in earlier this our As stated we jury’s support is with the district court’s decision sufficient evidence damages.8 In sufficiently to award indiffer- Chrysler’s decision conduct is words, viewing this evidence other support a million ent or reckless Clark, there is not light most favorable award. Chrys- proof’ “complete absence a First, indicates although the evidence and outdated unboxed of a weak ler’s use weak, B- utilized a unboxed disregard a reckless constituted B-pillar a proof is no that even pillar design, there others, including Mr. safety of for the pre- stronger, have B-pillar boxed-in would af- previously Consequently, we Clark.9 Although vented Mr. Clark’s accident. Chrys- court’s denial of the district firmed belief experts Clark’s testified as to their as a matter of judgment for ler’s motion weak, they B-pillar un-boxed was based on the the extent law to any not conduct tests to see whether did sufficiency support of the evidence B-pillar prevented would another have the other award.10 On opening door latch from under similar cir-

hand, is no evidence that a because there (“I cumstances. See J.A. at 145 believe prevented have B-pillar would boxed-in unreasonably Clark, [that B-latch] and because harm suffered Mr. [bjecause ... better dangerous whether there were good-faith dispute there over opinion of the state whose substan- judge who authored the under standard review court case, judge presided governs the same who review is not law tive matter —in 21; See J.A. see also Bankcard Trim, the trial. over Kentucky. at 471. Un- Am. 383 F.3d America, Inc., Sys., v. Bancard Inc. Universal law, Kentucky grant- judgment der should be ("[b]ecause (7th Cir.2000) 203 F.3d "only complete ed if there absence of preside did over the [the court] district action, proof on a material issue in the or if trial, advantage enjoyed special no ... he disputed upon exists no issue fact credibility determining gauging the evi- v. reasonable minds could differ.” Morales warranted”); and “deference is not dence” Co., Am. Honda Motor 151 F.3d Chesapeake & Henry A. Knott Co. Potomac omitted). Cir.1998) (internal quotations Co., (4th Cir.1985) (“The Tel. judgment court cannot substitute judge ... one problem the successor is that rather, juiy; it must review the evi- testimony per- another person hears dence in most favorable to non- findings having without the factual son makes moving every party, who be must accorded the witness .... Deference to heard seen or reasonable inference from the evidence. Id. appel- findings, district court such court, misplaced would such a late case."). explanation Nonetheless, 10.Our here this earlier hold- our rendition of the clarity, ing as State Farm does not findings of parallels the factual the dis- facts Order, 4-5, Op. require us to decision on & reconsider our See Dist. Ct. trict court. ground. State Farm was concerned with the J.A. 34-35. award, jury's amount of the not the decision jury that it could court instructed 8. The punitive damages. See U.S. at to return punitive damages if a verdict for return ("While we do 123 S.Ct. 1513 Chrysler Corporation design- "conduct suggest awarding punitive there was error in ing, marketing manufacturing or damages[,] punishment ... a more modest gross Dodge pickup Ram truck constituted reprehensible this conduct could have satis- negligence negligence.” J.A. at 58. Gross ....”). legitimate objectives fied the State’s disregard defined as "a reckless for the was Indeed, the Court remanded matter for safety persons, including of other lives proper calculation of dam- "[t]he Clark.” Id. Charles ages.” (emphasis Id. 123 S.Ct. 1513 case, added). diversity a when a Rule 50 motion 9. In as judgment a matter of law is based on evidence, sufficiency apply we systems probably out there ... that have Chrysler would alerted to the deficiencies of ejection.”) prevented (emphasis have design its B-pillar prevented Mr. added); (testifying J.A. at 336-42 accident, Clark’s because test was nei strength pillar] understand the “[t]o [a required by ther the government nor used tests,” you admitting need to run but manufacturers, other we cannot con no tests were conducted to determine clude that Chrysler’s failure to adopt the a B-pillar whether boxed-in would have test indicates a level of indifference to or prevented opening during a door from disregard for safety reckless others impact). similar In the absence of evi- to weigh sufficient of reprehensib favor dence that a design different would have ility.12 See Barber v. Nabors Drilling accident, prevented Mr. Clark’s we cannot U.S.A., Inc., (5th Cir. Chrysler’s conclude that use anof unboxed 1997) (reversing punitive damage award B-pillar shows level of indifference or where there no was evidence the defen disregard reckless sufficient establish dant with acted malice or reckless indiffer reprehensibility.11 plaintiffs ence rights and where the Second, Chrysler although failed to con- “good evidence demonstrated a faith dis test, B-pillar duct a twisUout the record pute” toas whether the defendant’s con good-faith dispute that there shows duct plaintiffs rights violated under the testing necessary. over such whether ADA); Co., Satcher v. Honda Motor (“GM”) In General Motors informed Cir.1995) F.3d (vacating Highway Safety the National Traffic Ad- damages against motor (“NHTSA”), ministration as well as other cycle manufacturer after concluding, inter manufacturers, including automobile alia, a genuine dispute existed Chrysler, that it a “Hori- developed had community scientific whether leg way zontal Rotation Test” as a of simulat- guards good, do more harm than no gov ing ultimately reducing the incidence 232-36, 394-95, or bypass. agency required latch ernment [J.A. had ever In response, them, 443.] NHTSA conducted industry and the as a whole had test evaluation GM determine categorically rejected them as unneces whether government replace, should sary). supplement, existing testing require- Thus, in the absence of evidence that a ments. See Denial of Motor Vehicle De- or supported B-pillar boxed-in would have Petition, 64,563, 64,565

fect 61 Fed.Reg. Clark, the harm prevented suffered Mr. 5, 1996). (Dep’t Transp. Ultimately, Dec. and because there is a good-faith dispute against requiring NHTSA decided the GM testing over B-pillar necessary, whether result, test. As a [J.A. 331-32.] isGM we conclude that conduct does automobile manufacturer Therefore, not conducts test. evince level of indifference to or [J.A. 333.] although possible may it is test disregard safety GM’s reckless for the of others evidence, noting undisputed complied absence of we are It revisiting holding our earlier trial testing requirements. with federal [J.A. properly testimony court admitted 30103(e) Although § pro- 156.] U.S.C. Clark, experts. Clark's See 310 F.3d at 466. "Compliance vides that with a motor vehicle Rather, Supreme in accordance with the safety person exempt ... does standard Order, analysis Court's GVR our focuses on law,” liability from at common the issue here Chrysler's whether conduct was indifferent or added). punitive damages (emphasis requisite degree support reckless to the award.

604 involved, as our discus- damage injury is not a million permit to $3 indicates, no II.B.l.a. supra in Part sion award. Chrysler’s finan- connection between other target Financially vulnerable c. injury suf- physical and the cial resources Thus, vulnerability, by Mr. Clark was established. to financial fered respect With this factor basis inappropriate held wealth is court the district finding Chrysler’s con- damage for the million weighed favor Clark was finding because Mr. weighs against reprehensible duct and this factor Chrysler’s vehicles one of purchaser Chrysler reprehensible. re- financial has Chrysler substantial Chrysler’s wealth has Because sources. Repeated isolated inci- d. actions or the actual harm sustained no connection dent Clark, disagree. by Mr. we Chrys- court also held The district vulnerability of a financial it because conduct was not isolated ler’s relevant when the particularly target is no correlation that there was was aware in nature. See is economic harm inflicted testing and the door latch its between (ex Gore, 576, 116 at S.Ct. 1589 Chrysler B-pillar, and thus strength its of economic the “infliction plaining Dodge pick- Ram put anyone who drove intentionally injury, especially when done is Because there no up truck at risk. financially is vul target ... or when Chrysler repeatedly engaged evidence that penal nerable, a substantial can warrant knowing suspecting or while misconduct eco plaintiff endures ty”). Even when unlawful, we conclude that it was however, of a injury, wealth “[t]he nomic contrary. un justify an otherwise cannot defendant defendant has “[E]videnee damages award.” constitutional engaged prohibited conduct repeatedly Farm, at 123 S.Ct. 538 U.S. suspecting knowing while Gore, at 1513; 116 U.S. see also support provide unlawful would relevant (“The large is a fact that BMW S.Ct. argument strong medicine is for an impecunious corporation rather than an disrespect defendant’s required cure the not diminish its entitlement individual does at for the law.” ”); .... v. Accor to fair notice Mathias determining 1589. In whether Inc., Lodging, Economy miscon engaged repeated defendant Cir.2003) (“a person punished is duct, the conduct in “courts must ensure is, if does, even the not for who he what he transgres prior question replicates Rather, corporation”). huge who is a sions.” State damage for a justification serve as case, no In there is evi S.Ct. 1513. bear award, wealth must a defendant’s use of Chrysler that its dence that knew the harm sustained some relation cause B-pillar the un-boxed could Mr. U.S. at See State plaintiff. Indeed, no case, injury.13 there is evi- economic Clark’s In undisputed Chrysler It is knew that Citing Montgomery Co. v. McCul- n. 33. Elevator issue, however, (Ky.1984), B-pillar was weak. The lough, Clark 676 S.W.2d Kentucky prod- Chrysler that such a weakness argues whether knew substantive that under law, liability "presumed the harm suffered Mr. Clark. could cause ucts fact, characteristics, that it did. qualities is no evidence There know above, condition, proof that the use there no product discussed [its] actual B-pillar have would Resp. of a reinforced boxed-in Appellee's time Br. [it] sells it.” earlier, misconduct, of similar dence accidents mative or concealment evi Chrysler to might prob- have alerted of improper 579,116 dence motive.” Id. at above, lem.14 And as discussed because Thereafter, Farm, 1589. S.Ct. in State Chrysler any duty was not under to con- malice, Court added “intentional trickery, B-pillar duct its testing, failure to do so or deceit” the list of factors that courts any disrespect does show law. should consider. repeated This absence evidence mis- 1513; see also Agro, Rhone-Poulenc S.A. weighs against finding Chrysler’s conduct v. DeKalb Corp., Genetics reprehensible. conduct (Fed.Cir.2003) (“For the Court’s ma jority, malice, [intentional or de trickery, malice, trickery, e. Intentional or de- an important ceit] has become criterion of ceit accepts what the Constitution reprehen Although the district court concluded conduct.”). Farm, sible In State even Chrysler act did not with intentional though there was evidence that the defen malice, trickery, deceit, or it held that company dant had altered records and en Clark’s death was not the of a result mere gaged in acts that amplified plaintiffs’ agree that Chrysler ignored accident. We harm, the Court held that conduct did such potential B- presented hazards a weak not warrant a million award. See 538 $145 Indeed, pillar. jury’s we deci- upheld the U.S. at 123 S.Ct. 1513. Unlike in But, sion to punitive damages. we there is no evidence here that disagree weighs that this factor favor Chrysler engaged any acts of intentional finding Chrysler’s reprehensible. conduct malice, trickery, deceit. theOn other concept trickery The are deceit hand, evidence Chrysler indicates that reprehensible negligence more than re- B-pillar design knew that its was weak. principle punitive damages flects the Therefore, we conclude that this factor is may “grossly not be out proportion to neutral, favoring party. neither Gore, severity of the offense.” sum, In only the first of the five factors (quotations U.S. at 116 S.Ct. 1589 omitted). weighs in of reprehensibility. favor Gore, con- citations viewed, factors as whole indicate cluded that defendant’s conduct was not sufficiently reprehensible sufficiently to warrant a conduct was not reprehensible million award noted the support large puni- absence such a statements, damage “deliberate false acts of affir- tive award.15 prevented injury. although parties Mr. Clark’s See We discussion also note that II.B.1.a; instruction, supra agreed Part also language jury see 517 U.S. at (rejecting plaintiff's argu 116 S.Ct. 1589 provided jury instruction with little ment that as a guidance determining defendant should be treated appropriate anticipated recidivist because it "should have punitive damages. supra amount See note actions would be considered fraudu may 6. A more informative instruction have lent”) added). (emphasis jury Chrysler's focused the on the level of reprehensibility prevented such an exces- Although sive Clark’s witnesses testified about award. See State Chrysler (expressing several other accidents in ve- 123 S.Ct. 1513 concern over failures, experienced "Mague bypass help hicles twist-out instructions” that do little to subsequent jury assigning weight these accidents occurred Mr. avoid too much Clark’s, "prior transgressions” may bearing and are not have evidence "little as to that would have alerted to the defect. amount of that should 132-133, 240], awarded”). [J.A.

606 (500:1) in disparity taking” award found either Gore The between

2. Ratio: (145:1). potential Op. harm or in Farm Dist. Ct. & or suffered State actual 9, plaintiff agree at at 39. with the and Order J.A. We court, damage opinion, and with our earlier district comparable is not to the ratio here disparity guidepost is second “breathtaking” awards. State Farm other harm in potential or the actual between however, clear, guidepost that this makes the punitive and plaintiff on the flicted simple comparison more than a involves Although Supreme damage award. precise any “The award in other ratios: ratio, it a concrete not identified Court has upon case ... must be based the facts and that “an award of four emphasized has conduct circumstances defendant’s compensatory dam amount times the plaintiff.” and harm to the at U.S. the line of constitu ages might be close to 1513. Based on the facts 123 S.Ct. Farm, 538 tional State U.S. impropriety.” here, that a of approxi- we conclude ratio legisla (noting “long at 123 S.Ct. 2:1 ex- mately appropriate, as will be years history, dating back over 700 tive further. plained today, providing forward to for going and double, conduct, treble, quadruple respect Chrysler’s or With sanctions of Gore, above, punish”); there is no damages to deter and discussed evidence malice, (citing 4-1 at 116 S.Ct. 1589 acted with intentional deceit, ratio); trickery 111 S.Ct. or or intended to harm Mr. Haslip, 499 U.S. although supra award of Clark. See discussion Part II.B.1.d. (concluding Thus, justified the amount of a than four times com 13:1 ratio on the “more reprehensible pensatory damages” might Chrysler’s “par be “close basis of line,” ticularly it line into the egregious” did not “cross the conduct. See State impropriety”). In 538 U.S. at S.Ct. area constitutional Gore, again (quoting 517 U.S. at “decline[d] State 1589) bright-line (noting higher “may ratio a com impose which ratios exceed,1’’but process damages port particularly award cannot noted with due where ‘a only exceeding single-digit egregious that “few awards act has resulted a small ”). fact, damages’ amount of compensatory ratio between economic damages, significant degree, sufficiently egre to a will satis conduct is not 4:1, justify fy process.” gious due 538 U.S. at S.Ct. even ratio of many may cases be the limit of constitu propriety. tional case, In this the district court held that hand, it On appropriate 13:1 ratio was because the other view of severe Clarks, stray single digit far from the noneconomic harm “does not suffered Farm,” $235,629.13 ... compensatory ratio recommended award of overly type large.16 (quot- and because is not the of “breath- See State Farm above, Gore, (quota- 16. As the court reduced the 116 S.Ct. 1589 noted $471,258.26 omitted) damages ("exemplaiy compensatory award of tions citations dam- $235,629.13 ages jury's imposed in accordance with the on a defendant should reflect offense”). finding enormity at fault. We that Mr. Clark Because Mrs. 50% $100,000 damages use this reduced amount to determine the Clark received aid, assistance, services, compan- appropriate ratio because ratio based on the loss of improperly ionship period compensatory full award would for the before Mr. Clark’s punish Chrysler jury period de- for conduct death no his losses), plaintiff. expectancy (except pecuniary termined to fault of the See life be the 1589) factors, ing any higher ratio than 2:1 is unwar- higher might “a ratio (explaining that ranted. Accordingly, we conclude necessary injury where ‘the is hard to ratio approximately of 2:1 would comport monetary detect or the of noneco- value requirements with the process. due might nomic harm have been difficult to ”). contrast, in determine’ In State comparable Sanctions miscon- jury compensato awarded million $1 duct ry damages plaintiffs who suffered eco The third guidepost is the difference case, nomic harm. In that the Court con punitive between the damage award light cluded that “in of the substantial penalties the civil or criminal that could be (a compensatory damages portion awarded imposed for comparable In misconduct. element), punitive of which contained a making comparison, a reviewing court damages award near “should accord substantial deference to amount of compensatory damages” was legislative judgments concerning appropri

justified. Id. at 123 S.Ct. 1513. Oth ate sanctions for the conduct at issue.” damage er courts have reduced punitive (in 517 U.S. at 116 S.Ct. 1589 compensatory awards a 1:1 ratio where omitted). quotations ternal In citation damages are See v. “substantial.” Boerner the Court limited this com Co., & Brown Williamson Tobacco parison to civil penalties, explaining that Cir.2005) (8th (holding F.3d although “[t]he existence of a criminal pen compensatory damages “substantial alty bearing does have on the seriousness against award” of over million entered $4 with which a State views the wrongful company, tobacco favor widower action[, w]hen used determine the dollar required lung whose wife died from cancer award, amount of the ... the criminal punitive damages to be reduced to a ratio penalty utility.” has less 538 U.S. at 1:1); of approximately Williams v. ConA 123 S.Ct. 1513. The explained Court also gra Co., Poultry possibility “the remote of a criminal Cir.2004) (concluding “large compen automatically sanction does not sustain a $600,000 satory award” of in racial harass punitive damages award.” Id. money” ment claim “is a lot of and reduc ratio); ing punitive damages to 1:1 see also previous opinion, In our we concluded Co., Phelps Louisville Water 103 S.W.3d guidepost weighed favor (Ky.2003) (noting relatively “the Clark because “automobile manufacturers compensatory damages small amount of generally are on notice that their reckless ratio). appropriate awarded” to determine resulting conduct in death could trigger compensatory very award here is not substantial damages award.” substantial. Clark, 310 F.3d at 482. Given State short, however, penalties, Farm’s focus on civil compensatory because the damage here particularly is not we now conclude that a million punitive $3 large, a 1:1 inappropriate. damage ratio is But due award is excessive in of com- to the lack of reprehensibility penalties.17 several of parable civil damages may plaintiff

J.A. at permitted by the total be smaller jurisdictions than in death cases from other jurisdiction. relevant companionship, where loss of etc. for the years suggests insig- yield large damage guidepost after death can 17. Clark that this Nonetheless, because, punitive damage although amounts. nificant the Court in State compensate award is not may inflated Farm observed that defendant have summarize, application design and To the truck’s At the time the facts of this case guideposts to Gore penalty manufacture, maximum civil (1) does misconduct reveals design for a defect imposed could be high degree reprehensi not constitute $1,000 vehicle, up to a maximum per (2) compensa bility, the ratio of $800,000 a related series viola- (3) large, unjustifiably tory awards 30165(a) (1994). § 49 U.S.C. tions. See dam gap wide exists between significantly here is The million civil comparable penalties. age award figures. larger than those death does not fact of Mr. Clark’s Therefore, outweigh jury’s the award all. Chrys- court surmised The district damages upon as of million $3 subjected a larg- to potentially ler could $235,629.13 compensatory of financially gained from if it penalty er civil propor damages neither reasonable nor B-pillar, corpo- or if its using defective Instead, wrong tionate to the committed. suspended or revoked. was rate license approximately a of we conclude that ratio however, presented evi- party, Neither $471,258.26 damages in punitive 2:1 or Chrysler gained whether regarding dence requirements of comport with the would B- installing from unboxed financially process. Accordingly, we reverse due losing of the likelihood pillar, or Chrysler’s motion denial of district court’s Furthermore, license.18 corporate its remittitur remand matter with and warned the lower the Court punitive damage to a instructions enter the loss “speculating] about against court $471,258.26, subject to Mrs. award of licence, the business [the defendant’s] of acceptance. Absent Mrs. Clark’s Clark’s profits, possible and im- disgorgement of remittitur, of the district acceptance “its refer- especially when prisonment,” trial, to new court is instructed conduct a to broad fraudulent scheme ences were [a] determining proper amount limited to and evidence of out-of-state drawn from punitive damage Strick award. See conduct.” 538 U.S. at dissimilar Corning, land Owens F.3d Thus, a comparison Cir.1998) (6th policy that “the (explaining penal- to the civil damage award ... is that behind the device of remittitur imposed comparable could be ties that a plaintiff willing accept if the lower support than incur damages conduct does amount of rather trial, expense of new million is excessive. risks may indicate Mathias, $10,000 compa- comparable-penalty inquiry. In un- subject fine under been to a laws, however, here, approved it dam- rable state like there evidence that age or near the amount com- award "at knowingly rented rooms in- Motel which damages,” pensatory which was 100 times financially bedbugs, gained from fested with penalty. greater comparable civil than the likely lose its busi- its misconduct and could guide- Appellee's Resp. Br. at 33-34. This (concluding id. at ness license. See however, pu- post, does not dictate what the profited Motel 6 from the fraud "because be, damage but rather nitive award should concealing keep able infestation unreasonably the award is indicates whether renting frequent Refunds were but rooms. See excessive. closing may than cost have cost less (describing guidepost third as an S.Ct. 1589 thorough fumigation.”); Id. at 678 hotel excessiveness”). "indicium Code, (noting Chicago Municipal that under unsanitary Chicago permits con- "a hotel that district court relied on Mathias v. Ac 18. The subject to revocation of its ditions to exist is Inc., Economy Lodging, cor license, operate”). without which it cannot Cir.2003) argue appropriate to that it is consider the loss of business license in First, complain defendant cannot because that plaintiffs closing arguments did amount lower would have been within the not improperly urge jury punish award, jury’s just power economy it is a Chrysler for its conduct outside the state to terminate suit without a retrial” Kentucky. In State (quoting Davis v. Consol. Rail Corp., 788 explained that “a State [does have a not] (7th Cir.1986))). F.2d legitimate concern imposing punitive punish a defendant for unlaw- ful damages, C. A new trial on acts committed outside the State’s error, jurisdiction.” based on trial is unwarranted 538 U.S. at 1513. The Court concluded the plain- Chrysler alternatively argues that tiff had framed the case as a chance to requires State Farm new trial in punish the conduct, defendant’s nationwide improper arguments vague jury in citing counsel’s statement is a “[t]his reprehensibility analy structions. very important case.... [I]t transcends sis, overly- State Farm discussed how [plaintiffs’] file. It involves a nation- broad or vague jury statements instruc practice. you, here, wide And going are to may tions result in excessive awards. Nee evaluating and assessing, hopefully (“Our 538 at 123 S.Ct. 1513 con requiring [the defendant] to stand account- arbitrary cerns punishments] [over are able for what doing it’s country, across the heightened when the decisionmaker pre which is the purpose damages.” ... sented with evidence that has little 420-21, Id. at 123 S.Ct. (quoting 1513 Trial bearing as to the amount of dam Tr.). awarded.”). ages that Nothing should be Farm, however, in State mandates a new opening Plaintiffs statements in this grounds. Nonetheless, trial on these we case are unlike those in Al- State Farm.

briefly explain why a on punitive new trial though plaintiffs counsel jury told the to damages is unwarranted. act government, as the federal when read context, it is clear that this remark was Closing arguments 1. a response Chrysler’s to assertion that complied safety because had with federal plaintiffs arguments Because closing did standards, product its was not defective.20 not urge jury punish to Chrysler for although plaintiffs And its counsel asked the nationwide business activities for the individuals, jury Chrysler harm it to “send message” inflicted on third party State Farm require changes necessary, does not a new are trial on this comment was these bases.19 appropriately aimed at deterring Chrys- assertion, Contrary Chrysler 19. to Clark’s did which must get be demonstrated in order to argument by failing not waive this object appeal.” to new trial on Id. plaintiff's closing arguments at trial. In the Circuit, closing argument Sixth if "counsel's Specifically, counsel stated that "the improper, prob- and if there is a reasonable Chrysler Corporation test has done that has ability jury that the verdict of [the] has been anything to do with the door latch and conduct, influenced such it should be coming open set required by door latch is what's aside,” opposing even if counsel failed to government.... They ob- saying, the federal are Strickland, (alteration ject. 142 F.3d at 358 going anything we are do unless Uncle omitted). original) (quotations Well, and citation today you Sam makes us.... ... all are However, object closing "failure to government at trial to the federal in this case.” J.A. arguments degree prejudice does raise issue, incidents, and of similar the number system door latch aof defective ler’s use Farm, killed of individuals who were number State 538 U.S. See future.21 incidents). “puni by such (explaining that are aimed at deterrence ... damages tive Second, arguments did plaintiffs closing retribution”); encourage jury punish (“Punitive may S.Ct. inflicting party on third individu- harm to further a State’s imposed properly be explained als. In State in punishing unlawful legitimate interests acts, inde- defendant’s dissimilar “[a] deterring repetition.”); see conduct liability upon from the acts pendent Inc., Int’l, also McClain v. Metabolife premised, may not as the basis serve (N.D.Ala.2003) (“Al F.Supp.2d U.S. at punitive damages.” counsel, plaintiffs’ law plaintiffs’ though Contrary S.Ct. 1513. do, argument time honored yers made the assertion, did not violate plaintiffs counsel Message,’ A there was no ‘Send Them by referencing Mr. Goode’s acci- this rule defendant] ... attempt punish [the “tangential” evidence dent.22 Unlike may beyond done to [others] what it have length” “introduced at case.”), in this rev’d on consumers four see id. at Cir. grounds, other “substantially Mr. Goode’s accident was 2005). Here, plaintiffs opening statements Moreover, to that Mr. Clark.23 similar” urge jury punish simply did not Chrysler’s fail- emphasize these remarks conduct. Chrysler for its extraterritorial trucks, ground upon ure to test Smith, Energy, Inc. v. Hill Sand Cf. Interrogs. to liability premised. was [See (Ky.2004) (concluding that S.W.3d Form, Jury; Interrog. at J.A. Verdict encouraged jury punish improperly was 59.] pre conduct when Ford for its nationwide argu- Accordingly, plaintiffs closing of the number sented with evidence ments not a new trial. containing Ford the defect at do necessitate vehicles sold "punitive damages jury told are to particular, "[t]he 21. counsel stated that that Chrysler, they message message I think need to message.... to send send a to send get, somebody get their attention and get, somebody needs Chrysler, they I think need to this,” 406; say you J.A. at "the don't do say you get don't needs to their attention better,” message be is do J.A. that sent should you do You before sell [the trucks] this. test 407; punitive dam- at "the evidence warrants ‘gets somebody You wait until them. don’t enough somebody ages. be that And it should expert] to a test that killed and hire run [an up Chiysler Corporation at in or Detroit nothing has do with the facts of somebody ... about this and wherever knows Perry You them Goode case.... test before asks, gets enough somebody wait min- gets up years. thrown out and laid two London, ute, Kentucky, why jury did that gets You test them before Charles Clark they why did award this amount of at killed.” J.A. 405-06. damages? was that case about?” J.A. What at 407-08. explained, judge "I found sub- 23.The trial similarity striking vehicle stantial First, are at There three comments issue: fender; right with the front the struck struck jury told the that unlike Charles counsel fender; ... was front vehicle hit in left Clark, wearing seatbelt Mr. Goode his pillar pickup club identi- the B on the Ram "[sjtill got ejected” from vehi- cal, according interrogatory responses Second, ... cle. J.A. at 391. counsel stated pillar ... ... to the 1992 B on the club Ram Chrysler. "Charley [the truck] Clark tested driving.” at Chrysler. Chrys- pickup that Clark was J.A. Perry good Mr. tested it for [sic] Third, ler test J.A. 400. counsel 251-52. didn't it.” Jury us, however, instruction not require does order Chrysler’s new trial based on previously Although Farm emphasized waived or disposed-of arguments in this instructions, “[v]ague merely or those respect. the jury ‘passion preju inform to avoid or First, dice,’ Chrysler agreed do little to aid the because decisionmaker to the language assigning appropriate weight jury instruction, its task court’s failure guideposts evidence that is relevant and to include the evidence set 411.186(2) out in title section tangential inflammatory,” (citation Kentucky Code does U.S. at 123 S.Ct. 1513 omit necessitate a new trial.24 Clark ted), provided Chrysler expressed with two pre had concern different damage instructions. viously imprecise jury over on instructions One specified contained factors sec- punitive damages. See 411.186, tion and the other included a com- 588,116 J., (Breyer, concurring) S.Ct. 1589 mon law “barebones” instruction. [J.A. (“Legal precise standards need not ... be Chrysler agreed 93-94.] to the latter. they [b]ut must offer some kind of con Thus, Chrysler [J.A. at 52.] not entitled discretion, upon jury straint or court’s to a ground.25 new trial on this protection and thus against purely arbi trary behavior. The standards the ... Second, rejected we previously Chrys- applied courts are vague open here argument ler’s jury that the should have point they ended to the where risk arbi been instructed that compliance results.”); trary Corp. TXO Prod. v. Alli with the federal door latch standard creat- 443, 475, ance Res. Corp., 113 ed a presumption that the truck (O’Con (1993) Clark, even L.Ed.2d 366 defective. See 310 F.3d at nor, J., 475-76. Given dissenting) (noting that “it State Farm’s cannot narrow focus extent damages, denied that lack of clear it is guidance unnecessary for us to reconsider our earli- heightens arbitrariness, pas risk er decision or to order sion, a new trial on this replace or bias will dispassionate de basis. jury’s liberation as the for the basis ver

dict”); Haslip, 499 U.S. at 111 S.Ct. Third, although State Farm stated that (explaining “general of concerns jury must ... “[a] be instructed it adequate ... guidance from the court may not use of evidence out-of-state con- when the case jury is tried to a properly punish duct to a defendant for action calculus”). enter into the constitutional jurisdiction was lawful in the where it oc- Therefore, in accordance with State curred,”

we considered of adequacy jury the the merely reiterating the Court was princi- instruction in our reprehensibility analysis ple previously in Gore. enunciated See 517 supra above. See note 572-73, 12. State Farm- U.S. at (noting S.Ct. 1589 specified five The factors statute Ky.Rev.Stat. are of the misconduct. Ann. (1) 411.186(2). § the likelihood that serious harm would misconduct; (2) arise from the defendant’s degree Moreover, defendant's awareness that Chrysler challenge did not occur; (3) profitabili- serious harm would appeal, instruction on this basis first see on its defendant; ty (4) Clark, 461; of this misconduct to the petition and in its for misconduct, any certiorari, of duration and conceal- argued of point only writ it this defendant; (5) it any ment of and respect reprehensibility, with to see Pet. for Cert., remedy actions taken to defendant the Writ of No. 2003 WL *22, misconduct once the defendant became aware n. 9. pil- that the testifying After Peterson. ly ... power have the not “does a State as metal, testified he of formed made is lar for conduct defendant] [a punish no follows: had and that it occurred where lawful residents”). or State] [the on impact that’s sure make just Q. want I raised have could Therefore, Chrysler Unformed not unformed. That’s clear. Moreover, is no there earlier. argument like wave you can metal is sheet evi- introduced even that Clark yet, indication stamped been it hasn’t this because of outside conduct Chrysler’s of dence right? in- of this Thus, the absence Kentucky. straight it’s means A. Unformed new trial. necessitate does struction metal. of piece entitled is not sum, because In substantially is metal straight Q. And improper basis of trial a new form; it in put you than once weaker in- jury inadequate arguments closing correct? court’s district structions, we affirm substantially, say a new trial. Well, you for motion when Chrysler’s A. denial forming kind on what sir, depends CONCLUSION III. you do. how much above, the forth set reasons For the question. ask this Let me right. Q. All Chrysler’s denying order district court’s than when stronger formed, is it If it’s REVERSED is remittitur motion it’s formed? district REMANDED is matter Yes, A. sir. an order enter instructions with court damages in is made B-Pillar The 324-25. J.A. remittitur The district the record $471,258.26. My review metal. formed amount strong- Chrysler’s motion how much denying as to evidence court’s order shows no metal, AF- nor of law matter is than sheet judgment as formed metal er per- de- order court’s district difference establish FIRMED. did Plaintiff trial sheet a new motion between accident nying formance view, this my metal. formed AFFIRMED. metal facts that the means proof absence concurring Judge, KENNEDY, Circuit in this case support judgment. in the concurring part B- use boxed did not Chrysler fact that may be Chrysler well design. Restani’s While Judge of Pillar in the bulk I concur B- a boxed I to use failure judgment. negligent in the its concur I also opinion. difficulty some on I have my design, views Pillar express separately write that on damage award affirming punitive appeal. this aspects of certain not convinced alone, I am basis B-Pillar Metal v. Formed Sheet knowledge A. requisite had previous of our negligence. on evidence agree that the I do not dam- affirming punitive decision panel’s supports B-Pillar in the used of metal type nature however, and the unclear ages, case. in this damages finding willing remand, I am Court’s Supreme record in the testimony no is There hold- waiver Judge Restani’s concur B-Pillar the view supports only the amount address ing and met- sheet or “formed metal of sheet made whether damages, not record testimony in the al.” The at all. are warranted damages Bil- from comes B-Pillar’s construction B. Level of Punitive Damages ed million (an $1 dollars in damages award Supreme Court has found to be sub- recognizing After other courts have stantial, see 1513). id. reduced If damages to a one-to-one the award were looked at apportion- after ratio because the compensatory damages (i.e. ment of fault each in those tortfeasor’s substantial, cases were Judge $250,000 portion of award), the total opinion Restani’s it is concludes that the halved possible that no single damage portion tortfeasor’s $235,629.13 here of award is “not of the award would be very substantial, substantial.” I cannot indeed agree with under Judge opinion, Restani’s por- conclusion. The those Supreme Court has tioned awards would likely instructed not that: be found to be substantial. This result is incongruous because there rigid are no benchmarks because the victim my hypothetical a punitive may still would be receiving a substantial dam- surpass, greater ratios than those we age (over award in $750,000 total have previously upheld may comport original award), million though even process with due where “a particularly each tortfeasor’s portion of the award egregious act has resulted in only a might not be Thus, substantial. I believe small amount of economic damages.” ibid, court should use Ibid,.; the full see also (positing that a $471,258.26 award in evaluating whether higher ratio might be necessary where the compensatory damages are “the substantial. injury is hard to detect or the In light of the case law cited Judge monetary value of noneconomic harm Restani, which found awards as low as might have been determine”). difficult to $600,000 to substantial, I cannot concur true, converse is also however. in her conclusion that the award in this When compensatory damages are sub- case is “not very substantial” Ias stantial, find no ratio, then lesser perhaps only discernible difference $600,000 between a equal to compensatory damages, can $471,258.26 award and a award. reach the outermost limit of the due process guarantee. I would reach this conclusion even if the State Farm Mut. Auto. Ins. Co. v. Camp halved compensatory damage award were bell, 408, 425, 538 U.S. 123 S.Ct. 1513 used, as I $235,629.13 believe that is also a (2003) (citing America, BMW North substantial compensatory I award. would Inc. 116 reach this conclusion because I do not (1996)). L.Ed.2d 809 believe that an $235,629.13 award of In evaluating whether a damage award compensatory damages falls either into is substantial under a comparative fault the Supreme Court’s categories, in that it regime, I believe we should use the “small amount of economic dam- total compensatory evaluating ages,” nor is ait case injury where “the whether the award is substantial. Using hard to detect the monetary value of an apportioned by the fault of the noneconomic harm ... difficult to deter- parties could have the effect of finding an mine.” State Farm Co., Mut. Auto. Ins. that is whole, substantial as a insub- 523 425, U.S. at 118 S.Ct. 1428 (citing stantial when it apportioned. Gore, For exam- 582, 1589). U.S. 116 S.Ct. ple, assume we have a case with three today, $235,629.13 Even could not be de- tortfeasors, quarter each one at fault. As- as a amount,” scribed “small and because sume that we victim, have a who is in case, also injury was obvious and the quarter one at fault. The victim is award- monetary value of the harm is something calculate, impact on the driver’s routinely whether was juries and

that courts (with recovering a side an at fault driver be described as monetary value cannot compar- his or reduced amount due to her Id. to determine.” “difficult negligence) passenger’s ative or on however, can, dis despite this I (with fault, side a not at recov- passenger, judgment in the and concur agreement, award). a full ering be by Judge Restani result reached I, therefore, punitive would not halve the punitive dam I believe that the cause also Chrysler. Conse- damages awarded to should be reduced ages award as quently, I come to the same conclusion The dual fault of Mr. Clark. comparative $471,258.26 the Judge Restani that max- damages a punish are goals punitive in this case imum constitutional award (retribution) wrongdoing tortfeasor compensato- ratio of based on one-to-one Cooper deter future similar conduct. ry damages, join in her I Industries, Inc. v. Leatherman Tool judgment. 432, Inc., Group, U.S. (2001). case, 1678, 149 In this L.Ed.2d 674 MOORE, concurring in Judge, Circuit Chrysler damages punish for a part dissenting part. in in that vehicles leads to design defect its join I and new- majority’s waiver to B-Pillar twist- parties refer what holdings. separately, trial I howev- write cases, including the instant out. some er, because I believe in case, can B-Pillar twist-out result was not under damages award excessive during an accident. opening door the Due Clause and therefore Process Chrysler previous panel found be in full. should sustained can oc- aware that B-Pillar twist-outs was damages may Chrysler prop also “Punitive during cur accidents. erly imposed during legiti acci- to further State’s open aware that doors punishing mate in pas- to an risk of a interests unlawful con dents lead increased ejected deterring repetition.” an senger being during accident. duct and its BMW America, Gore, pas- v. Finally, Chrysler aware if North Inc. accident, senger ejected during they S.Ct. L.Ed.2d 809 (1996); in risk of see Farm Mut. Auto. significant increase their also State suffer Thus, 408, 416, 123 Chrysler Campbell, Ins. v. 538 U.S. dying during accident. Co. 1513, 155 (2003); design unsafe increased S.Ct. L.Ed.2d 585 was aware its Pacific Haslip, in vehi- Mut. passengers the risk of death to Ins. Co. Life (1991). are in acci- cles if those vehicles involved 113 L.Ed.2d case, system, necessarily “In dents. Punitive our federal States thus, Chrysler range flexibility determining have punish should considerable death, injuries, punitive damages they possible including level will Pun- design. could from its unsafe allow different classes cases and result any ishing Chrysler particular a lesser amount based case.” comparative ap- possess States its level of fault does S.Ct. 1589. “While propriately punish imposition for the risk discretion over the damages, nor it that there design, that results from its unsafe is well established are goal deterring procedural does serve the similar substantive constitu Chrysler. future tional limitations on these awards. The by punish- conduct Its ment risk Due design is for the defect. The Process Clause of Fourteenth imposition of design prohibits from defect was the same Amendment

615 grossly excessive or arbitrary punishments reprehensible. duct Moreover, the harm on a Farm, tortfeasor.” State 538 was complete in degree, i.e., death. As 416, 123 (citations omitted). S.Ct. 1513 this court and others have recognized, a defendant’s conduct is particularly repre Due-process review of damages hensible when it results in someone’s for gross excessiveness is governed by death. E.g., Gregory v. Shelby County, three “guideposts” Gore, announced in 517 433, (6th Cir.2000); 445 Estate 574-75, U.S. at 116 S.Ct. 1589. The Su- Dieter, Moreland v. (7th 395 F.3d 747, 757 preme Court recently summarized these — Cir.), denied, cert. U.S. —, “(1) 125 S.Ct. factors: degree of reprehensibility 2915, 162 L.Ed.2d (2005); 296 Boerner v. (2) the defendant’s misconduct; the dis- Brown & Williamson Co., Tobacco 394 parity between the actual or potential (8th 594, F.3d 603 Cir.2005); Stogsdill harm suffered plaintiff and the Partners, Healthmark L.L.C., 377 F.3d damages award; (3) the dif- Cir.2004); Union Pac. R.R. ference between damages Barber, v.Co. 268, 356 Ark. 149 S.W.3d awarded jury penalties the civil 325, (2004), 348 denied, cert. 940, authorized imposed or in comparable 125 S.Ct. (2004); L.Ed.2d 249 cases.” State 538 U.S. at Dardinger v. Anthem Blue & Cross Blue S.Ct. Gore, 1513 (citing 517 U.S. at Shield, 98 Ohio St.3d 781 N.E.2d 1589). 116 S.Ct. (Ohio 2002); Cherokee Elec. Coop. v. Cochran, A. Reprehensibility 706 So.2d 1188, (Ala.1997). “[T]he most important indicium of Indifference to or Reckless Disre- the reasonableness of punitive gard Safety of the of Others award is the degree of reprehensibility of the defendant’s conduct.” Under the reprehensibility sub-factor of (alteration U.S. at 123 S.Ct. 1513 indifference to or disregard reckless in original) Gore, (quoting safety others, U.S. at the district court found 1589). In making reprehen the following facts way to conclud- sibility determination, ing that “[Chrysler’s] Court in has conduct evinces a structed us to consider whether: reckless disregard “[1] safety of others harm caused was physical opposed since it exposed its customers to an untest- economic; [2] the tortious product”: conduct ed evinced an indifference to or a reckless disregard [Chrysler] utilized a piece thin of sheet of the health or safety others; [3] the metal as a B-pillar at the door latch target of the conduct had financial vulnera striker. presented [Clark] evidence that bility; [4] the conduct repeated involved [Chrysler] knew that piece of sheet actions or was an incident; isolated and [5] metal was weak and that its strength the harm was the result of intentional mal had been untested. The sheet metal ice, trickery, deceit, or mere accident.” type B-pillar had been removed from

Id. (citing U.S. at the modem state the art and state 1589). the industry over years. Every other modem motor vehicle on the mar Physical vs. Economic Harm ket, including trucks, pickup employed I agree that the type of physical B-pillar. boxed General Motors harm — had rather than merely weighs developed system to test its door economic— strongly favor of finding Chrysler’s con- la[t]ches to they insure would withstand B- un-boxed that the to their belief fied with it shared twisting, which B-pillar any conduct weak, they did not pillar was [Chrysler],however, [Chrysler]. failed B-pillar another whether see to tests test, though it even this implement to from latch a door prevented have would death risk driver’s that knew Id. circumstances.” under similar opening vehi ejected increased greatly from if that testified experts Clark’s B- One that Moreover, [Chrysler] knew cle. “properly-con- otherwise or “box[ed]” mode failure awas twist-out pillar prevented have would B-pillar in structed” industry and automotive to the known door-open- concomitant out and twist the was investi government federal fact the 165) (Trial Tr. at 292, 309 J.A. ing. problem. twist-out B-pillar the gating vein, Test.). anoth- In similar (Peterson con [Chrysler] knowledge, this Despite a “state-of-the-art that testified expert er sheet piece a thin to utilize tinued ejection the prevented have would latch” stronger aof much place in the metal the open to door allowing the by not [Chrys Additionally, B-pillar.... boxed (Trial 140,145 Tr. at J.A. accident. information which had received ler] testimony of Test.). The 124) (Gilberg safety the question led have should enough more than experts these two product. this latch B-pillar another and/or that evidence (Dist. Ct. (“J.A.”) at 34-35 Appendix Joint open- from the door prevented have would added). 4-5) (emphases Order Op. & circumstances. ing in similar evi- much recognizes also opinion The lead ig opinion court’s that lead the district supports the extent To dence that in- simply showed because conduct evidence Chrysler’s this nores finding tests, be oth- it acts disregard conduct or reckless did not experts difference prior In appeal. at 6. Op. scope of this safety. yond Lead ers’ experts Clark’s attacked Chrysler appeal, evidence, opinion lead Despite specific conducting tests not did conduct concludes issue Clark’s We resolved suit. disre- reckless indifference reflect Chrys Clark opinion, prior in our favor “[i] because of others safety gard of (6th Cir. 461, 466-72 F.3d Corp., 310 ler B- a boxed-in no there evidence grounds, 2002), other vacated suf- the harm prevented would have pillar (2003), L.Ed.2d 801, 124 S.Ct. ais there Clark, ... [ii] ... fered case Court remanded Supreme and the B-pillar whether over dispute good-faith light of consideration further us “for In light Id. at necessary.” testing is Clark, Corp. v. Farm].” [State dis- in which circumstance the unusual 801, 801, 124 S.Ct. at trial presided who judge trict court experts’ (2003). reject To L.Ed.2d we opinion wrote the judge who evi- essentially revisits here opinions pur- present I today, accept review exceeds and therefore dentiary issue district deference poses giving less remand, a move of the Court’s scope Nevertheless, I findings. factual court’s of our questionable more is even under- premises the two agree with cannot holding of evidentiary of the reinstatement conclusion. opinion’s the lead girding opinion. our earlier premise first support In premise second support B- a boxed-in no evidence “there is whether over dispute good-faith is a “there suf- harm prevented have pillar would lead necessary,” the testing is B-pillar ar- Clark,” opinion the lead by ... fered the [twist- that “because argues opinion testi- experts “[a]lthough Clark’s gues that out] test was neither required by gov- the purchase of one of Chrysler’s vehicles au- ernment nor used manufacturers, other tomatically put Clark in a financially vul- cannot we conclude that nerable Chrysler’s position. failure Clark has not forth put adopt the other test evidence of indicates a level of indif- financial vulnerability, so this reprehensibility ference to or disregard reckless sub-factor for the does not weigh in safety Clark’s of others favor. weigh sufficient to in favor reprehensibility.” Op. Lead at 7-8. The lead opinion goes far, too however, Excusing Chrysler’s failure to adopt the in disapproving the consideration of a de- test because of the government lack of a fendant’s financial condition when review- requirement is questionable at best when ing damages award.2 The Su- 30103(e) § 49 U.S.C. expressly provides preme Court has never forbidden such that “[c]ompliance with a motor vehicle consideration. Mut. Ins. Pacific Life safety standard ... v. does not Co. exempt Haslip, 1, U.S. 111 S.Ct. person from liability (1991), L.Ed.2d law,” common the Court approved appealing while instructions that permitted to the other the manufactur- jury con- sider, among factors, ers’ failure to other use ignores the “the test financial fact position of defendant,” every other holding manufacturer used they “impose[d] a sufficiently safer boxed definite B-pillar. Why would these meaningful constraint on the companies discretion of conduct tests on the safety of jury] [the in awarding punitive damages.” an part obsolete they did not use? Id. at (internal 111 S.Ct. 1032 quo- toMore the point, why equate these manu- tation omitted). marks In TXO Prod. facturers’ sensible reluctance not to test a Corp. v. Alliance Res. Corp., part they did use Chrysler’s with fail- 113 S.Ct. (1993) 125 L.Ed.2d 366 ure to test part that it continued to use?1 (plurality opinion), the plurality cited Has- ample evidence discussed in the dis- lip approvingly in rejecting the defen- trict court opinion, the lead opinion, and dant’s contention that jury impermissi- separate opinion Chrysler’s reflects bly considered its “impressive worth,” net indifference to or reckless disregard for noting that it was “well-settled law” to safety of others. Therefore, this sub- allow consideration of this factor. Id. at weighs factor in favor finding 462 n. Gore, S.Ct. 2711. In reprehensible. conduct Court observed that “[t]he fact that BMW a large corporation rather than impe- Vulnerability Financial cunious individual does diminish its I agree that the district court erred entitlement to fair notice of the demands holding that Chrysler’s wealth and Clark’s that the several States impose on the con- clear, then, It is "good- there is no true Supreme 2. The Court has not discussed con- dispute” faith necessity over the B-pillar sideration defendant’s financial condi- Therefore, testing. tion in cases cited in the context reprehensibility lead opinion guidepost. See proposition good-faith that a at 427- dispute precludes (discussing S.Ct. 1513 finding defendant's of indifference to assets under the guidepost); ratio disregard reckless safety, others' Barber U.S. at 116 S.Ct. 1589 (discussing Inc., U.S.A., Drilling Nabors 130 F.3d 702 defendant’s status large corporation” as “a (5th 1997); Cir. Co., Satcher v. Honda Motor conclusion). I discuss the issue here (5th Cir.1995), denied, 52 F.3d 1311 cert. because opinion lead discusses it under 133 L.Ed.2d 661 guidepost my first responses will be (1996), inapposite. are clearest if I maintain parallel organization. 672, Cir. 677 Inc., 347 F.3d 585, Lodging, 116 at business,” U.S. 517 of its duct (i) the Su J.). light 2003) (Posner, In this statement of course but

S.Ct. considering approval Court’s preme alone dis address —let to purport does (ii) logical resources defendant’s prop it is that law” “well-settled turb —the con financial the defendant’s between link Fi wealth. a defendant’s consider toer sur it is not damages, dition that noted in nally, defendant’s taken the we have that prising justify cannot defendant of a wealth “[t]he puni reviewing when account into finances unconstitutional otherwise an Romanski, for excessiveness. tive awards 427, 123 S.Ct. at award,” 538 U.S. Mat 649-50; also see at F.3d 428 understood best is statement this but hias, at 677. F.3d “[Wealth] it cites: passage aof in In- vs. Isolated Repeated Actions inflating 4. basis open-ended provides cident wealthy is defendant when awards use its make is “there That does not that .... unlawful opinion concludes The lead that means simply it en- repeatedly Chrysler inappropriate; that no evidence failure or sus- up knowing for the make while cannot factor in misconduct gaged this atOp. Lead ‘reprehensibility,’ factors, it unlawful.” such as that pecting of other princi- rely to appears an award conclusion significantly 8. This constrain to first is The premises. conduct.” on two pally a defendant’s punish to purports knew Chrysler is evidence no 1589 “there 591, 116 S.Ct. Gore, could B-pillar added) un-boxed its use (emphasis J., concurring) (Breyfer, 9. As Id. at injury.” ... Clark’s cause in State cited (alterations original), in dis- indifference/reckless discussed 427-28, 123 S.Ct. U.S. at evi- ample above, is there section regard consider- why recently summarized We acknowledged including much dence— resources financial defendant’s ation knew of Chrysler opinion lead —that underlying purposes with is consistent twist-out. B-pillar dangers damages: is a there is that premise The second punish will dollar award a fixed “Since acci- earlier, similar “evidence lack of one, wealthy than more poor person alerted might have dents of [the relevance understand one can point failure The Id. problem.” to the position] financial defendant’s however, not automat- accidents, does such ” .... The in retribution interest State’s sub-fac- reprehensibility this ically render equally position financial defendant’s Gore, where In Chrysler’s favor. tor in deter- interest State’s to the relevant defen- conduct was complained-of purpose of a valid also rence, dis- failure distributor’s dant automobile damages. repaired been cars had its new close when L.L.C., Entm’t, Detroit damage, 517 Romanski predelivery for minor Cir.2005) (quoting argued plaintiff F.3d J., (Breyer, as a S.Ct. treated be should the defendant (cita- (alterations original) antici- have it “should concurring)) because recidivist [such] omitted). Moreover, if a to disclose defendant’s failure pated tions considered, liability de- expose could were not work repair condition financial (emphasis (and 577,116 fraud,” cor- S.Ct. id. at resources superior with fendants argu- defenses) rejected added). Court aggressive more respondingly (1) “[Ac- following logic. ment, using the from plaintiffs potential over-deter could misrep- material requires fraud tionable Econ. v. Accor Mathias bringing suit. resentation or omission.” Id. at (ii) 116 deceit and Clark’s death was not the (2) deciding whether or not result of accident, a mere reprehensi- issue, disclose the repairs at the defen- bility sub-factor neutral, favoring nei- dant “reasonably reified] on state disclo- party. ther sure statutes for guidance” as to whether the repairs it did disclose were too 6. Summary (3) minor to material. Id. These disclo- sure statutes “could reasonably [be] inter- The State Farm Court cautioned that preted] ... as establishing safe harbors” “[t]he any existence of one of these factors for the nondisclosure of minor repairs. Id. weighing in favor a plaintiff may not be at 1589.(4) 116 S.Ct. Therefore, sufficient sustain a the defendant reasonably did not antici- award; and the absence of all of them pate that its conduct give would rise to any renders award suspect.” 538 liability for fraud. Here, S.Ct. 1513. three factors Notably, the Gore did reject Court (the harm was physical; Chrysler showed per se plaintiffs “anticipated liability” indifference to or reckless disregard of the theory of repeated finding In- actions. safety others; Chrysler’s conduct in- stead, rejected the Court it on the facts repeated conduct) volved weigh favor of because the defendant had reasonably re- Clark; (Clark one factor was not financial- lied on statutes that could reasonably be vulnerable) ly weighs in of Chrysler; favor interpreted provide a safe harbor for its and one factor (Chrysler’s conduct in- conduct. Chrysler can make no such claim volved neither malice, intentional trickery, here, 30103(e) because 49 § U.S.C. ex- or accident) deceit nor mere is neutral. pressly provides that “[compliance awith This balance surpasses the sufficiency motor safety vehicle standard ... does not standard one factor in favor of exempt person from liability at common plaintiff, and it is of law.” course enough to avoid the automatically “suspect” condition when light In of its awareness of the dangers all five factors are absent. of the of B-pillar twist-out and its knowledge that fact three out of four non-neutral there were no statutory “safe harbors” factors favor the conduct, plaintiff especially when Chrysler should have antici- — those three are the pated plaintiffs that its physical inju- conduct expose could it to ry, liability defendant’s damages. im- indifference Gore toward or plies such a conclusion reckless disregard would safety others, make the defendant a recidivist for purposes of and the repeated defendant’s conduct— repeated-action sub-factor; therefore, Ghrysler’s conduct reprehensible. it weighs in favor. Clark’s B. Ratio

5. Malice, Intentional Trickery, or Deceit vs. Mere Accident Judge Restani concludes that a ratio (i) I agree that because Chrysler between punitive did not compensatory dam- and. act with malice, intentional trickery, or ages of 13:13 justified” is “not but a ratio Judge (12.73 Restará calculated the 13:1 (6.37:1 different ratio —6.4:1 rounded) by us-— rounded) ratio apportioning after compar- ing the entire compensatory award in the fault, ative meaning that she used half the ratio’s Judge Kennedy denominator. then compensatory damages in the ratio's denomi- reaches "the same Judge conclusion as Resta- Judge nator. Kennedy implicitly $471,258.26 analyzes a ni that is maximum constitu- Finally, 1.” Id. at 10. Op. Lead appropriate.” “is 2:1 had it noted Court Farm in State by presuming this conclusion reaches She ratio the 4:1 Gore that Haslip and said but than 4:1 less be should the ratio the line.” close to be “might persuasively 1:1, fails but than more added). But (emphasis 425,123 ratios two these the choice of justify any give did the Court again once ratio instant bookends within ratio, because 4:1 to the weight special fall. must words, In other 145:1. it before was ratio by presuming begins Judge Restani explicitly said never has ratio should punitive-to-compensatory to the constitu- close actually is ratio 4:1 This ratio to 4:1. equal less than be. might line, just that tional supposedly Court Supreme one that distinction object might One Gore, and State Haslip, ceiling in as a set a semantic purely is might and however, is it between inspection, closer Upon Farm. really given has one, that Court the actually never has that is clear in due the place special a 4:1 ratio the constitutional ratio a 4:1 that the said po analysis. Such excessiveness process that shows the cases review of ceiling. A howev scrutiny, not withstand does 4:1 sition that a intimated has Court TXO. in decision er, of the Court’s in Haslip, to the line. close might ratio damages award There the damages assessed Court compensa large” as as times “over compen- 526 4 times” than of “more TXO, at 509 U.S. award.5 23, damages tory at U.S. 499 damages award.4 satory ex plurality The 459, 2711. 113 S.Ct. that observed Court The S.Ct. 111 com for measure the relevant plained close to “may be ratio although at damage, id. potential parison line cross the line,” ultimately “[did] 2711, lowered which 462, 113 S.Ct. improprie- of constitutional the area into 1.2:1 between to somewhere ratio (empha- 1032 111 S.Ct. ty.” Id. at characterized has since Court The Haslip 10:1.6 cited added). Court The Gore sis 10 to “not more than as in TXO the ratio more ratio of proposition ” 1589; 581, 116 S.Ct. at 517 1.” U.S. 517 line.’ ‘close “might be 4:1 than 1,n. Farm, at U.S. 430 538 also State add- see (emphasis 1589 581, 116 S.Ct. at U.S. J., dissenting) (Ginsburg, 1513 123 S.Ct. give ed). had no occasion But the Court characterization Court’s Gore (noting the ratio, because 4:1 meaning to the greater 472, TXO, at ratio); the TXO breathtaking 500 of “awas Gore ratio in $840,000 punitive figures were precise 4. The on a one-to- this case based award in tional $200,000 dam- compensatory damages and punitive dam- compensatory to one ratio 2, S.Ct. at 7 n. 111 U.S. ages, Haslip, 499 differ- As this Kennedy Op. at 18. ages.” J. 4.2:1. a ratio of issue of suggests, the approach ence is a difficult denominator proper ratio Gore puni- $10 million figures were precise 5. The higher even the I Because conclude one. $19,000 compensatory damages and tive case, a choice excessive in ratio TXO, S.Ct. at U.S. damages, Instead, I sim- unnecessary. denominator a ratio 526.3:1. purposes, for current ratio ply accept the 13:1 $1 million damages figures from cited compensatory plurality assuming half the poten- possible values as the denomi- million figure $8.3 use appropriate is the TXO, plaintiffs, Thus, harm the the resolution tial panel leaves nator. 10:1 yield ratios S.Ct. appropriate issue for of the denominator 1.2:1, respectively. future case. J., (de S.Ct. (Scalia, dissenting) ing Farm, State U.S. at 123 S.Ct. scribing the 1513). Court’s decision upholding Two aspects of this claim are worth a “10-to-l ratio between exploring greater length. potential harm” (emphasis delet First, this characterization of State ed)). When one considers that the Court Farm overstates what the Court actually upheld a punitive TXO that, even said. The Court held that the $145 million

when charitably interpreted, featured a punitive damages award was excessive but ratio,7 10:1 one cannot seriously conclude never reached the issue of what size award the Court really designated has justified: would be the Court remarked 4:1 ratio as close to the constitutional line the facts of the “likely case would or as a presumptive ceiling.8 Mathias, See justify damages award at or (“The 347 F.3d at 676 Supreme Court did near the amount of compensatory dam not, however, lay down a 4-to-l or single- ages” but left “[t]he proper calculation of digit-ratio rule —it said merely ‘there punitive damages ... resolved, [to] be ais presumption against an award that has instance, first by the Utah courts.” ratio,’ 145-to-l it would be unrea —and State 538 U.S. at (internal sonable to do so.” citation re added). 1513 (emphasis Indeed, on re moved) (quoting mand supreme the state court reduced the 1513)). award from million $145 to about mil $9 lion,

Having yielding a decided 9:1 the ratio. instant Campbell ratio v. should State 4:1, be Farm Co., less than Mut. Auto. Judge Ins. 98 Restani P.3d 409, (Utah), then 420 a denied, makes cert. move, subtle rhetorical de- 543 U.S. 874, 114, 125 voting S.Ct. (2004). the rest of 160 analysis her L.Ed.2d 123 explain- The Supreme ing why the Court ratio denied should be State greater Farm’s than subsequent petition 1:1. just Yet as she certiorari. did State demonstrate Farm Mut. Auto. why 4:1 Ins. Co. v. Campbell, should the ceiling, Judge 543 Res- 125 tani does not L.Ed.2d persuasively why show (2004). floor should be so low. begins She Farm, on relying State stating that Second, even if the Court inwas fact Court “concluded ‘in light of the sub- strongly hinting to the Utah Supreme stantial compensatory (a damages awarded Court it should punitive remit portion of which contained a punitive ele- award ratio, to a 1:1 it did so “in of ment), punitive [... a] damages award at the substantial compensatory damages or near the amount of compensatory (a dam- awarded portion which contained a of ages’ justified.” was Lead Op. at 11 (quot- element).” punitive Farm, State 538 U.S. 7. The Court upheld has also puni ratio of Farm did not establish ceiling, a 4:1 State tive to compensatory damages 100:1, of over Farm did establish ceiling, pre- a 10:1 albeit Eighth under the Amendment's Exces sumptive Instead, or otherwise. sive Fines Clause. Browning-Ferris See In advised that exceeding "few awards a single- Vt., dus. Inc., Inc. v. Kelco Disposal, digit punitive ratio compensato- between 257, 262, 109 S.Ct. 106 L.Ed.2d ry damages, significant to a degree, satisfy will (1989) ($6 punitive million award and process.”’ due State 538 U.S. at $51,146 award, compensatory ratio (emphasis added). S.Ct. Although 117.3:1). ratio, 13:1 double-digit is a surely does not single exceed digits significant degree.” "to a 8. Perhaps Judge instead Restani believes And, course, a ratio of 6.4:1 13:1 does not high ratio is ex- too because it exceeds dou- single digits ceed digits. at all. ble just Yet as Haslip, and State “[t]he no concern that added). is thus there cause (emphasis 429, 123 S.Ct. injury suf- for the damages compensatory no phrase parenthetical Court’s

The on a based likely were ... here to the discussion fered refers line—it throwaway in the duplicated was which component relevant highly an issue award,” State punitive case: instant reason there no case award compensatory The that the 1:1 ratio blindly to the Campbells were substantial; hew was supposedly endorsed. compensatory Farm Court [in million $1 awarded of emo- a half year damages] justify attempts to Restani also Judge complete was This distress. tional two by citing floor aof 1:1 choice compensatory compensation.... that reduced cases Eighth Circuit here, suffered injury for the damages cases are these Yet ratio. to 1:1a awards a com- on based moreover, were likely In Boerner distinguishable. readily also pu- duplicated ponent Co., Tobacco & Williamson Brown the distress Much nitive award. Cir.2005), court remitted F.3d 594 humiliation outrage and by the caused million to $5 award $15 actions of at the suffered Campbells had received plaintiff where million major role of insurer; it is their over million compensatory con- such condemn damages design defect defendant’s claims damages, howev- Compensatory duct. illness in his wife’s resulted had ele- already contain er, 598, 603. As Id. wrongful death. (Second) of Restatement See ment. however, concedes, Judge Restani (1977) c, p. 466 § Comment Torts case— instant compensatory compensatory (“In in which cases many $236,000, de $471,000 or approximately for emo- an amount include appropriate of the one’s choice pending distress, as humiliation such tional com as the not as substantial baseline—is the defendant’s by indignation aroused Indeed, the Boerner. award pensatory of demarcation line act, no clear there is Boerner 8.54 award compensatory compensation and punishment between compensato the larger than times or 17.08 amount specified for a verdict and between disparity This here. ry award both”). elements frequently includes in Boerner and awards compensatory (emphases, in- Id. at to militate would seem case instant in quota- parenthetical cluding those 1:1 ratio as baseline. using against added). Restatement, tion Co., Poultry ConAgra In Williams Clark jury awarded case, instant Cir.2004), remitted the court F.3d earning of his $250,000 the destruction million of over $6 award physi- his mental and $100,000 for power; had received plaintiff $600,000where loss of $100,000 his wife’s suffering; cal hos $600,000 on a award compensatory services, society, and assistance, aid, his under claim environment work tile ex- $12,778.26 for medical companionship; Although 793, 799. Id. at § 1981. U.S.C. expenses. $8,480 for burial penses; and work commit who those misconduct Verdict). In other (Jury at J.A. endured the harms and harassment place not directed words, minimized, be should by their victims by hu- caused distress harms —emotional that the seriously questioned be it cannot indignation miliation, outrage, or —that (and causing the misconduct of death harm as the identified Supreme Court com- further it) in kind. No different Be- damages. compensatory element of necessary ment is (Gore’s to see that use sis first prong). But Judge the ratio in a harassment case to set the Restani seems to recognize, it also de- ratio in a wrongful death case misguid- serves special consideration under the ra- ed. tio guidepost. Over the course puni- of its tive damages jurisprudence, the Court has very approach of setting the 1:1 struck (Gore) down ratios of 500:1 floor is at least as problematic as the (State Farm), 145:1 while upholding ratios individual distinctions between the instant (TXO) of 10:1 and 4:1 (Haslip). In none Farm, case and Boerner, State of these cases did plaintiff suffer physi- A Williams. court cannot simply set cal injury, let alone death. Yet the Court floors or ceilings in the case before it has suggested physical harm would borrowing ratios from other cases. To do justify higher ratios. See State ignores so both the Supreme Court’s “con U.S. at 123 S.Ct. 1513 (holding the reject[ion][of] ] the notion that the sistent 145:1 ratio high too noting while that the constitutional line is marked by simple economic injury in that case “arose ... not formula,” Gore, mathematical 517 U.S. at from some physical trauma; assault or 582, 116 and its instruction that there were physical no injuries”). To precise “[t]he case, award in any course, strike down wrongful-death punitive must be upon based the facts and circum award with a barely ratio higher than stances of the defendant’s conduct and the those that the Court has upheld in eco- harm to plaintiff,” nomic injury cases would ignore the S.Ct. 1513. Court’s none-too-subtle suggestion. Having rejected the presumptive ceiling Finally, the following statement floor as flawed in approach both Court Gore “In cases, instructive: most in the specific chosen, ratios I see no inde- the ratio will be within a constitutionally justification pendent reducing the ratio acceptable range, and remittitur will not Indeed, from 13:1. Judge Restani makes justified [i.e., on this a high basis ratio]. (in points several the discussion of why the When the ratio is a breathtaking 500 to 1:1) ratio greater should be than that actu- however, the award must surely ‘raise a ally favor leaving the full ” suspicious judicial eyebrow.’ First, undisturbed. “the ratio here is not 583, 116 S.Ct. TXO, 1589 (quoting 509 U.S. comparable other ‘breathtaking’ at (O’Connor, J., S.Ct. 2711 dis- awards.” Op. Lead Second, 10. at the senting)). This statement strongly sug- compensatory award is not “overly” or gests that judges not lightly should deem a “particularly” large in fact could be ratio excessive under the second Gore fairly very described as “not substantial.”9 guidepost. Supreme Court a found at Third, Id. 11. Clark a endured compelling reason to hold the ratios exces- “severe noneconomic harm.” Id. at 10. in sive Gore and State Farm: they were Whether the injury is, physical is large. breathtakingly As Judge Restani course, part of the reprehensibility analy- acknowledges, however, this reason is ab- Judge case, 9. Restani cites a Phelps v. Louis- compensatory award was approximately Co., ville Water (Ky.2003), S.W.3d $175,000, yielding a ratio over 11:1. 103 support argument of her that the instant ratio Judge S.W.3d at 54. Restani offers no reason higher should be than 1:1 because Clark's why a approved case that an sup- 11:1 ratio compensatory award very is "not substan- ports allowing greater a ratio of 1:1 but than Op. tial.” Lead at Phelps, 11. In the court no more than 2:1. upheld a punitive $2 million award where the be- is excessive damages award punitive certainly is ratio a 13:1 here, because sent the than larger” “significantly it is cause were to if we Even breathtaking. $800,000 penalty civil maximum not be breathtak- need a that ratio assume under U.S.C. faced have could a 13:1 excessive, holding that to be ing This conclu- 30165(a). at Lead Op. § ac- constitutionally a “within is not

ratio rea- least two for at unsupportable is sion of the the face flies in range” ceptable sons. award ra- punitive that admonition Court’s “[i]n muster ex hardly pass constitutional will award First,

tios punitive the con- true especially civil This comparable cases.” the most relative cessive only 1.3 times (i) ratio the Supreme Court’s sidering the light of penalty in TXO10 upheld ratio Farm the 10:1 large as read State If one were cases. plaintiff ato (ii) given was award punitive-to-com the proposition mere (as rather than death 1:1 wrongful have been claiming should ratio pensatory I injury. as suggests economic opinion the lead analy purposes only for sume it, judi ably put “[t]he Posner Judge As a upheld have would sis), then range, not police tois cial function though award even punitive million Mathias, We F.3d point.” a mere was penalty civil comparable “Although principle: recently echoed 428, 123 S.Ct. $10,000 fine. 538 U.S. might panel members individual a ratio between yield figures These if 1513. fewer have awarded comparable and the award the standard judge, a trial acting as too, the Haslip, of 100:1. penalty and, civil is deferential awards such review for punitive-to-compa large tolerated Court us to error, not allow does legal absent There, the Court ratio. rable-civil-penalty of the judgment our substitute even award $840,000 punitive upheld De DuPont E.I. Pollard court.” trial fine of the in excess “much though was Cir. Inc., Nemours, fraud insurance imposed for could ignores this majority 2005). Today, the law].” [Alabama under than rather point by policing principle 13A-5-11, §§ (citing ala. Code approach modest Given the range. 27-12-23). 27-12-17, 27-1-12, 13A-5-12(a), and the to take us has advised Court size specify Court did above, Although the discussed considerations additional was award fine potential weighs Gore second hold I would enu of,” largest fine in excess “much well finding in favor of Court by the cited statutes merated proc due required the bounds within § 13A-5-11. $20,000. ala. Code ess.11 Haslip Thus, Comparable Penalties between C. though the ratio even upheld civil comparable the and award punitive under opinion concludes The lead contrast, when 42:1.12 was penalty million the $3 guidepost, third Gore Williams, Phelps conclude Gore and ratios in comparison, By —to 10. case in the instant compensatory award greater, and 11.2 times 38.5 were State Farm justification offering no before "substantial” here. ratio the 13:1 respectively, than Kennedy Op. J. ratio. settling the 1:1 at 613. apply this section arguments made The opinion, also by Judge Kennedy's the Court equal provisions cited force with 12.Two "[a]ny amount Judge by levy fine of permitted law cited case "the relies on gain to pecuniary Boerner, exceeding Fann, double not State presumably Restani” — Court struck punitive down the broad fraudulent scheme drawn evi- from 1,000 it was times greater than the dence and dissimilar con- of out-of-state maximum civil penalty.13 517 U.S. at duct.” State 538 U.S. at 116 S.Ct. 1589 (comparing puni million added). S.Ct. 1513 (emphasis The district $2,000 fine). tive award to statutory The court the instant case did premise punitive-to-comparable-civil-penalty ratio potential loss Chrysler’s business in the 3.75:1, instant only case is which can license on “out-of-state and dissimilar con- hardly be characterized as when excessive duct.” Recognition of key differ- it is than approved less ratios of 100:1 ence—which the opinion lead ignores— and 42:1 in State Farm and Haslip, re makes it clear that the district court did spectively, and far 1,000:1 falls short run afoul of State Farm when it con- ratio deemed excessive in Gore.14 potential sidered the suspension or revoca- Second, the lead opinion’s analysis relies tion of Kentucky charter under on the premise $800,000 flawed is the the third prong of the Gore analysis. comparable maximum penalty. civil The Indeed, several of our sister circuits district court found that could have considered the loss of a business subject have been to a larger much civil license when conducting the compa Gore penalty under Kentucky law: “suspension rable-penalty Inn, inquiry. Willow Inc. v. or revocation of corporate charters for acts Pub. Co., Serv. Mut. Ins. (Dist. F.3d wrongdoing.” J.A. at 40 Op. Ct. (3d Cir.2005) ky. icy. 237-38 10) (upholding & a punitive Order at (citing 205; § Const. award thirty larger times 271B.14-300, poten §§ than the 502.050). Rev. Stat.Ann. tial civil fine while opinion noting lead suggests that state that consider- law provided ation potential penalties of this penalty “up civil is incon- and including with suspension sistent State Farm. While it is true revocation of one’s li rejected cense”); the state Greenberg court’s v. Paul Revere Life “speculation] Co., about the loss of Ins. Appx. 539, 91 Fed. Cir. license,” Farm’s business 2003) it did so because (unpublished opinion) (upholding a the state court’s “references were to the million $2.4 award without dis- the defendant loss the victim caused award was magnitude "orders of the commission of the offense." larger than authorized civil pen- and criminal ala. Code 13A-5-11, §§ 13A-5-12. provision Another TXO, alties for similar offenses.” 509 U.S. at violation, permitted $1,000 a fine of per (O'Connor, J., ala. 113 S.Ct. 2711 dissent- § 27-1-12. Although these sections Code ing). appear would permit larger a fine than $20,000, which would in Haslip's turn lower opinion The lead responds point ratio, punitive-to-comparable-civil-penalty noting that the third guidepost Gore "does not Court's "much in language excess” makes it dictate what damage award likely more that the Court comparing be, should but rather indicates whether the punitive award to the enumerated values unreasonably excessive.” Op. Lead statutes, §§ (specify- 13A-5-11 Code ala. at 11 n. 17. This completely rebuttal is unre- ing $20,000, $10,000, fines of $5,000), sponsive question to the why $2,000, 13A-5-12 (specifying $1,000, fines of award that greater 3.75 times than the $500). comparable penalty civil is "unreasonably ex- 13. Neither the plurality TXO cessive” nor prong Justice Ken- under the Gore third when the (who nedy part Supreme concurred in and Court punitive concurred has held that awards judgment) in the compared punitive forty-two the greater and one hundred times than award to the comparable penalty. civil respective Jus- the comparable penalties civil were dissent, however, tice O'Connor noted in not excessive.

626 Chev- v. Carr Ohio”); Parrott insurance “[c]onsider- but civil fines cussing potential 473, 489 537, 17 P.3d Inc., rolet, 331 Or. sanctions civil possible

ing punitive million a (2001) (upholding $1 or suspension the include of conduct type was civil fine potential licenses”), the cert. where award insurer’s anof revocation and “administrative 2918, 159 $25,000 per violation 939, 124 S.Ct. denied, U.S. 542 of a business “the Mathias, loss F.3d included (2004); 347 sanctions” 815 L.Ed.2d 150, nearly 176 S.W.3d Payne, license”); v. Krysa punitive award a (upholding 678 $500,000 puni- potential (2005) a the larger (upholding than times 163-64 seventy-five of “subject the size discussing was the defendant without where tive award fíne civil license, recognizing without but its fines civil potential revocation Blue v. result Grabinski “could operate”); conduct not] the defendant’s [could Inc., F.3d Sales, dealer- 203 of the revocation Ford or Springs suspension Cir.2000) punitive (8th (upholding Ins. license”); v. Erie Hollock 1026-27 ship’s $100,000 $10,000 and (Pa.Super.2004) between 422 Exch., awards 842 A.2d two fines under civil award potential million where (upholding $2.8 and $1,000 violation per $5,000 were statutes was civil fine potential where noting that total, respectively; $5,000 “suspend state could and per violation refuse authority to “the agency had license”), appeal state offender’s revoke the or of a motor the renewal or issuance 864 878 A.2d Pa. 583 part, granted denied, license”), 531 cert. vehicle dealer’s 107 S.W.3d Gustafson, (2005); v. Baribeau 35 L.Ed.2d 148 825, 121 S.Ct. (upholding (Tex.App.2003) 52, 64 Int’l v. Terminix (2000); Bielicki also see discussing without award $200,000punitive Cir.2000) 1159, 1166 Co., F.3d “exem noting that fines but civil potential fines provided law that state (noting punish severe a less damages [are] plary the defen revocation of or suspension of [the or revocation suspension ment than relying on ultimately but license dant’s license”), de cert. medical defendant’s] punishment). criminal potential nied,543 871, 125 S.Ct. similarly courts have Aid state Rite Hundley (2004); A number L.Ed.2d a business loss of Inc., the potential Carolina, S.C. considered South prong. the third Gore (2000) under (upholding license 45, 63-64 S.E.2d Co., 140 Auto Ins. Workmen’s Myers v. with million million of $1 awards (2004) (uphold- P.3d Idaho fines but civil discussing potential out dis- without award $300,000 punitive ing a empowered “is state recognizing fines but civil potential size cussing the any permit revoke suspend losing threat “[e]ven noting that committing viola facility” dispensing drug have did not in the licensure defendant’s). tions like the de- upon” effect [deterrent] immediate that in contrast argues opinion The lead n. 8 98 P.3d fendant); Campbell, case, there Mathias instant to the times over (upholding finan- “gained defendant evidence while fine civil potential than the larger likely could misconduct cially from its “may behavior the defendant’s noting that at 12 Op. Lead license.” its business lose of its termination justification ... be not, howev- did Circuit The Seventh n. 18. 781 N.E.2d license”); Dardinger, loss of consideration er, its condition million (upholding $2.5 defendant’s upon the license a business $3,500 fine civil potential where did not fact, court gain. financial “lose could defendant per violation applying while at all this fact discuss in the business engage license Mathias, Gore factors. See 347 F.3d at

677 (noting the profit defendant’s D. from ABU-KHALIEL, Hisham Petitioner, misconduct in the general context of a discussion of the deterrent effect of puni- GONZALES, Alberto Attorney

tive damages, several paragraphs before General, Respondent. its discussion of comparable penal- civil ties). Moreover, the court made no judg- No. 04-4061. ment with respect to the likelihood of the losing defendant’s license; its business in- United States Court of Appeals, stead, it simply stated that “a Chicago Sixth Circuit.

hotel permits unsanitary conditions to Argued: Oct. subject exist is to revocation of its license.” added). (emphasis Id. The district Decided and Filed: Feb.

court used the same “subject neutral to”

language in the instant case. J.A. at 40

(Dist. 10). Op. Ct. & Order at fact

that neither Mathias nor any other case (or

cited above has erected any these oth-

er) prerequisites to the consideration of potential loss of a business license

under the Gore third guidepost.

The low 3.75:1 ratio puni- between the

tive award fíne, and the relevant civil but-

tressed consideration potential Chrysler’s

loss of corporate charter, com-

pels the conclusion that

is not excessive relative to comparable civil

penalties.

D. Summary

Because repre- conduct was

hensible, the ratio between the

and compensatory damages awards was

neither breathtaking nor otherwise unrea-

sonable given the circumstances of the

case, and the punitive damages award was

in line with comparable civil penalties, I

would affirm the district court and sustain full million in punitive damages.

Case Details

Case Name: Dorothy Clark v. Chrysler Corporation

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 1, 2006

Citation: 436 F.3d 594

Docket Number: 04-5279

Court Abbreviation: 6th Cir.