Henry W. Boerner, Individually and as Administrator of the Estate of Mary Jane Boerner, Deceased v. Brown & Williamson Tobacco Company

WOLLMAN, Before HANSEN, and BYE, Circuit Judges.

WOLLMAN, Judge. Circuit Brown & Williamson Tobacco Company (B W)& appeals from judgment en- tered the district court1 on jury’s verdict in favor of Henry W. Boerner (Boerner) on his design defect claim. We affirm, conditioned on accep- Boerner’s tance of the remittitur ordered on the punitive damages portion of jury’s award.

1. The Moody, Honorable James M. United of Arkansas. Judge States District for the Eastern District Tobacco, York. American also based

I. York, New contributed funds to Sloan- in the 1930s was identified Lung cancer Kettering Runyan through Damon in that sharply same incidence rose and its Recalling sought fund and to intervene. Oschner and In Drs. Alton decade. meeting two the events at a of these DeBakey published “Carcinoma of Michael Hanmer, Mr. Hiram the Research groups, Surgery. The Lung” Archives Tobacco, explained Director American parallel rise article noted he disturbed how “told them were cancer, concluding that the latter lung Wyn- activities” Drs. about some of the former, and mostly to includ due Dr. der and Graham. Rhoads of Sloan- from of sources lengthy bibliography aed Dr. Kettering Wynder’s work replied response, countries. In Edward multiple controlled, publications could be but and Harlow, American Tobac a chemist at the of not his activities outside work. an internal memo Company, circulated co funded or Referring to research randum. 1950s, early In the studies numerous Tobacco, Harlow American conducted linkage widely and agreed were impartial research would predicted press. in the A forward- disseminated that “this would cigarettes but vindicate Cuyler Dr. E. Hammond looking study by reading the exten suspected by be never surveyed Society Cancer American on tobacco.” He medical literature sive 187,000 and people habits of smoking profession is that the “medical also noted then their health. It obtained monitored it desired to reach group which is most inci- in 1954 and 1957: the similar results and that the “tobacco indus and convince” lung approximately dence of cancer was friendly very much in need of some try is day a higher among two-plus pack 2000% Plaintiff-Appel in this field.” research to compared nonsmokers. smokers as E-l E-2. Ex. 19 at to lee’s bias, arguing alleged Critics researcher Wynder, year in his second Ernest while only by a linkage could shown school, conducting began sur- of medical forcing taking people of groups two in 1947. Dr. patients of cancer veys to and the other to abstain. one smoke Graham, surgery head of the Evarts are Wynder as “There replied Dr. follows: University at Washington department in facts of human endeavor which fields in St. Louis and the Medicine School submerged times suppressed can be successfully remove a whole to person first however, so, ... If in forever. science Not granted Wynder human lung being, from a part negates one the value statistics gather his in order to access to wards goal ... and a proof of scientific sets following year. Jour- more data impos- acceptable upon that is based proof Medical Association nal American conditions, very resolve a aim to sible Wynder’s survey data published given paralyzed.” Appraisal An issue is after compilations of case case Wynder’s Issue, New the Smoking-Lung-Cancer variety groups showed that among (June 1961). In J. Eng. Med. 1235 extremely cancer was rare non lung Kennedy into the inquired President begun also minimal smokers. He had lab- the Sur- linkage, leading finding to on mice that tended to oratory studies smoking related geon General that was linkage. support the 1965, the cancer, in men. In lung at least Labeling and Advertis- Cigarette Federal his research at the Wynder continued Institute, branding cigarette Act ing passed, Sloan-Kettering leading pri- Cigarette with “Caution: New boxes the words center for cancer research vate May be Hazardous to Your Smoking stated the full award. B & W now 89-92, Pub.L. No. Health.” Stat. four raises issues for our appeal. review on (codified §at as amended at 15 U.S.C. (2004)).

§§ II. 133-1340 (Mrs. Boerner) Mary Jane be- We consider first B & W’s contention gan smoking age in 1945 at the of 15. But that the district court improperly refused period during for a short initial which she grant its judgment motions for aas Lucky cigarettes, smoked Strike she matter of law and for new trial. We re- cigarettes smoked Pall Mall brand view de novo the district court’s denial aof until quit she 1981. In judgment law, motion for aas matter of developed lung she cancer. In June of viewing the evidence in light most Boerner, husband, she and her filed prevailing party favorable and mak- against this lawsuit B & W—the successor ing all reasonable inferences in favor of the Tobacco, entity of American which was the jury’s Douglas verdict. County Bank & manufacturer of the Pall Mall brand —al- Inc., Trust Co. v. United Financial warn, leging design claims of failure to Cir.2000). We review defect, voluntarily violation of a undertak- for abuse of discretion the denial of a fraud, duty, conspiracy en and to commit motion for new trial. Id. Following fraud. Mrs. Boerner’s death in To succeed on a design defect August complaint was amended law, claim under plaintiff Arkansas wrongful to include a death claim. must establish that product was in a granted The district court & W’s mo- condition, defective that the defective con summary judgment tion for as to all of the dition rendered product unreasonably appeal, claims. in part, On affirmed dangerous, and that the defect proximately part, reversed in and remanded design caused the complained-of injury. Ark. pre-1969 defect and failure to warn claims 4-86-102; I, § Code Ann. Boerner for trial. Boerner v. Brown & Williamson product 841. A unreasonably (8th Cir.2001). Corp., 260 Tobacco F.3d 837 dangerous when it is dangerous “to an remand, On B & moved for judgment W beyond extent that which would be con a matter of law at the close of Boerner’s templated by ordinary and reasonable case in district chief. The court denied the consumer, buyer, or user.” Ark.Code. respect motion with to the failure to warn 16-116-102(7); § I, Ann. Boerner claim and reserved its decision on the de- at 841. sign pending jury’s defect claim ver- B & W offers two bases for reversal of dict. jury The found that the defective the district court’s denial of its motions. cigarettes condition of Pall Mall proxi- First, B & W contends that it was entitled mately caused Mrs. Boerner’s illness and judgment to aas matter of law because death, as well resulting injuries as the present failed to any evidence Boerner, Henry $4,025,000 and awarded establishing the defective condition of Pall compensatory damages and million in $15 cigarettes Mall specifically, making instead punitive damages. found Bfor & only categorical a attack on cigarettes gen-

W on pre-1969 failure to warn claim. erally. initially The district granted court B & judgment W’s motion a as matter of conclude that We there was suffi law on punitive damages, the award of but cient evidence adduced at trial support reversed itself on reconsideration jury’s and rein- verdict on the design defect Pall specific non-specific, evidence constituted claim. Some evidence cigarettes categorical cigarettes. attack on presented: indeed Mall was addictive; nicotine, ciga- which is contain Next, B & W that it is carcinogens; carcinogens rettes contain because, judgment entitled to as matter smoking link and are the causal between law, cigarettes Pall could not Mall cancer; historically average and unreasonably dangerous following the 1969 fully appreciate did not the nature smoker Cigarette enactment of the Federal Label severity of the health risks associated Act), ing Advertising (Labeling Act significant There also smoking. with (as § seq. currently et codi U.S.C. however, expert testimony, related fied). B Labeling & contends that the Boerner’s case and the specifically to Mrs. Act established the standard for notice to Marvin, Dr. Mrs. Pall Mall brand. Peter dangerousness ciga consumers of the treating physician, testified that Boerner’s rettes, any finding with the result cigarette died from the effects of she a cigarette’s dangerousness exceeded the smoke, Dr. Marvin Blinder testified required warning preempted by would be ciga- to Pall Mall that she was addicted Congress regulated the Act. Once has as content, of their nicotine rettes because manufacture, pects design, or sale of resulted her cancer. Additional- which product, preemp the doctrine of conflict that Pall ly, other evidence indicated Mall tion, including implied preemption, fore higher carcinogenic cigarettes had levels regulated premised closes claims such any tar than other brand and that reduc- conflict an actual aspects. Where there is ciga- tar tion of tar intake low between a state law cause action and have reduced the health risks rettes could Congress’s express policy, state law must smoking. Similarly, associated with the way give Supremacy under the Clause. cigarettes that Pall Mall evidence indicated Co., Inc., Geier v. American Honda Motor technology, filter which lacked effective 861, 1913, 529 U.S. 120 146 L.Ed.2d S.Ct. have reduced the level of carcino- would (2000) (holding design 914 that a defect Indeed, genic lungs. tar inhaled into the solely claim on a lack of an air based car’s ciga- there was evidence that Pall Mall bag preempted Congress pro was because rettes utilized a “tobacco filter” that actu- option vided manufacturers with the ally the amount of taken into increased tar installing bags passive safety air or other in body. Finally, the Mrs. Boerner stated devices). the doc testimony that she did not deposition her trine here Con inapplicable because fully appreciate potential the extent of the gress expressed through an intent has smoking. health risks associated with only Labeling preempt Act to those state provide evidence was sufficient to a This advertising pro or law claims related findings following reasonable basis for the upon design motion and not those based by jury: cigarettes Pall Mall were in a Inc., Cipollone Liggett Group, defects. v. faulty design; condition due to defective 504, 2608, 505 112 120 L.Ed.2d U.S. S.Ct. faulty design excessively resulted in (1992). 407 high carcinogens being levels of introduced lightly do not deem state law to be lungs; “We into Mrs. Boerner’s the defective superseded by federal law due to our soli yielded cigarettes condition the Paul Mall exercise of their tra citude for the states’ unreasonably dangerous; and the defective Vilsack, police powers.” ditional Jones proximately condition caused Mrs. Boer- (8th Cir.2001) (citing 272 F.3d 1033 Accordingly, ner’s illness and death. we 2608). at 112 reject Cipollone, contention that Boerner’s 505 U.S. S.Ct. & W’s alternative, agency. a federal In the B & intent is the “ultimate Congressional reports contends that the should have preemption inquiry. touchstone” been ruled inadmissible under Fed.R.Evid. at Cipollone, U.S. (quoting Id. they informa- 2608). 403 because were based on of con expression The clearest S.Ct. specific tion that was not to the Pall Mall pre a applicable intent here is gressional particular or to Mrs. Boerner’s ill- brand Labeling in included emption clause ness, opportu- and because B & W had no Jones, 1334(b);2 § 272 F.3d Act. 15 U.S.C. reports’ authors. nity to cross-examine the language Labeling Act at 1034. The Congress intended to makes it clear We review for abuse of discretion smoking-related “con laws preempt evidence, district court’s decision to admit advertising promotion cerning the Bergfeld Corp., v. Unimin Jones, 272 F.3d at 1034. The cigarettes.” (8th Cir.2003), conclude that and we question preemp statute is silent on the properly admitted under reports were causes of action. tion of other state law public exception, records inasmuch provi of a “Congress’ Because enactment they prepared pursuant legal to a were preemptive reach of defining sion instance, obligation. Report For the 1989 beyond that matters implies statute prepared response Congress’s Cipollone, 505 pre-empted,” reach are not charge report in Public Law 91-222 “to conclude U.S. S.Ct. new and current information on preemption is that the doctrine of conflict Congress.” and health to the U.S. and that Boerner’s inapposite this case reports findings, also factual al include not Nat’l Bank claims are foreclosed. Cf. though independent these were made Co., 165 v. Dow Chemical Commerce indepen scientists and not on the basis of (8th Cir.1999) (holding that feder F.3d 602 Surgeon dent research General. preclude al labeling legislation does held, however, We have that similar re may that a occur possibility defect ports non-agency based research were resulting liability). particular product properly public admitted under the rec See, exception. e.g., ords Kehm v. Proctor III. Co., Mfg. & Gamble 724 F.2d 613 Cir.1983); Jones, B contention that turn next to & W’s see also 272 F.3d at 1035 We erroneously (assuming admissibility Report admitted of a of the district court the Surgeon pursu- Surgeon “Preventing reports four of the General General entitled exception People”). to the public Amongst Young ant to the records Tobacco Use 803(8).3 hearsay rule, report B & Fed.R.Evid. W Once evaluative shown reports required by that the were inadmissi- have been law and to have maintains not findings, ble because their conclusions were included factual the burden is on independent investigation party opposing of to demon- based on the admission 1334(b) provides, pertinent part, Consequences Smoking, 2. in Health Nicotine Ad- Section of prohibition diction, General, requirement or based Surgeon "[n]o that Report a of the imposed smoking health shall be un- and (CDC) (1988); 88-8406 Re- DHHS Pub. No. advertising respect to the der State law with ducing Consequences Smoking, the Health any cigarettes packages promotion Progress, Surgeon Report 25 Years a of the conformity of which are labeled in with the General, (CDC) DHHS Pub. No. 89-8411 provisions chapter.” of this (1989); Smoking, Report and and a Women General, (CDC) Surgeon DHHS Pub. No. Smoking reports question and The are: (2001). 01-6817 Health, General, Report Surgeon a of the (PHS) (1979); DHEW The Pub. No. 79-50066 Kehm, expo creased the likelihood of 724 F.2d untrustworthiness. increased strate trustworthiness, carcinogens. Despite .we noted sure to this knowl As to at 618. unavailability for edge, the author’s the evidence indicates that American Kehm that marketed, manufactured, render the re- not and sold cross-examination does Tobacco inadmissible, report the fact that a containing excessively for Mall port cigarettes Pall govern- a prepared lacking disinterested tar high carcinogenic levels of and legal to a obli- agency pursuant mental technology, effective filter for and in the badge a of trustworthi- gation Arkansas; constitutes untruthfully represent state of B has made no affirmative ness. Id. & W un cigarettes ed that Pall Mall were not showing reports that the are untrustwor- healthy; untruthfully represented cig that and thus are thy. reports The are final cancer; arette did not cause those at a distinguishable from issue actively suppress research attempted See, e.g., cited B & W. number of cases harmful consequences into the health Min- Brown v. Sierra Nevada Memorial cigarette smoking. jury could reason Cir.1988). (9th Hospital, ers 849 F.2d 1186 determined, ably have based on this evi dence and all reasonable inferences drawn IV. therefrom, that American Tobacco acted challenge turn to & W’s We disregard safety for the with conscious of punitive the district court’s award dam Accordingly, district court of others. for proposes B & four ages. W bases finding not err in did evidence First, B & W reversal award. justified submitting punitive damages sufficiency of the evidence challenges the jury. claim to the punitive damages charge. to warrant court’s Second, review de novo the district it We B & W jury on punitive decision to instruct for American should be liable Tobac Auto. damages. Carpenter law, however, Club Inter pro Arkansas co’s conduct. Exch., insurance entity after a vides that the successor Cir.1995). charge should not be Such merger on all the liabilities of the takes unless there is "substantial submitted to companies. Ark.Code Ann. predecessor claim supporting the 4-26-1005(b)(6). evid ence" § or done the conduct was "malicious Third, B & contends that a injure anoth the deliberate intent to with would punitive damages award this case Price, er," Ark. Ellis v. objectives underly policy not advance the (1999), or was done with a S.W.2d allowing punitive damages ing the rule disregard for the "wanton and conscious inappropriate. sup To and is therefore rights safety Dalrymple of others." contention, argues B as port this & W Fields, 185, 362, v. 276 Ark. 633 S.W.2d purpose punitive damages the of follows: (1982). ample There was evidence ad 363 wrongdoer; wrong the punish is to the at trial to show that American To duced y case and no longer doer no exists this aware, 1950s as the bacco earl leadership posi individuals who were 1960s, cigarette that smoke contained and are in similar tions at American Tobacco con carcinogens, cigarette that smoke W; and, accordingly, that positions at & nicotine, of cancer tained that the risk are wrongdoer punish. there is no We exposure the amou nt increased with only is one of persuaded. not Punishment that of cancer could carcinogens, the risk underlying punitive damages. policies reduced the use of effective filter be Farm in is another. See State and that nicotine addiction Deterrence technology, 602 harm suffered potential actual or 538 U.S. tween Campbell, v. Ins. Co.

Mut. Auto. (often 1513, damages award punitive 155 L.Ed.2d 585 and the 408, 416, 123 S.Ct. ("[P]unitive the amount of (2003) damages serve a broad stated as a ratio between damages]; damages award and the compensatory compensatory [than er function (3) award); and retribu and the dif punitive damages at deterrence they are aimed America, v. punitive damages Inc. tion"); North ference between the BMW of 568, 1589, 134 116 Gore, S.Ct. authorized penalties 517 U.S. award and the civil ("Punitive (1996) damages Gore, 517 U.S. at 574- comparable L.Ed.2d 809 cases. to further a imposed that may properly argues B & 116 S.Ct. 1589. W punishing interests legitimate reprehensibility, State’s is no evidence of there repeti deterring and its conduct unlawful not bear a reasonable that the award does law, tion"). punitive Arkansas damages, Under relationship compensatory to the " to `deter damages award serves vastly million award is and that the $15 particular part on the of similar conduct $10,000 penalty greater possible than the rtfeasor,’" "`others who but also to Act. Labeling Boer- violation in such con engage inclined to might be that B & W’s conduct was responds ner " Phillips v. Pe Oil Co. duct.’ Robertson it resulted in reprehensible: particularly (8th Co., Cir. 378 troleum harm; indifference to the physical evinced 1993) banc) (en Inc. Ray Dodge, (quoting others; safety of involved re health and Moore, 1036, 479 251 Ark. S.W.2d incidents; of peated and was the result (1972)). B & and other Because (illustrated by American Tobacco’s deceit in the to it are still companies similar anti-tobacco research and efforts to stifle selling cigarettes, making business publication practice as well as its officers’ punitive in the value there is deterrent contending making public statements damages award. risk). Sec was not health ond, argues that the ratio-less than to he Fourth, argues B & W acceptable range within the es 1—is well is excessive and amount of the award Third, tablished Court. and federal law therefore violative state Labeling Act’s Under Arkansas process guarantees. due penalty provision inapplicable is because law, award “is is whether the question on a failure did not base its award the conscience of this great so as to shock apt a more to warn. He instead cites as passion preju court or to demonstrate potential financial conse comparison the of fact.” dice of the trier part injunction barring of an further quences Service, Washing Inc. v. Routh Wrecker product. of the defective sale ton, 240, 244 335 Ark. 980 S.W.2d (1998). the Arkansas courts em Because degree reprehensibility Supreme Court’s ploy the United States “ of the rea important ‘most indicium analysis, we conflate both process due damages a punitive sonableness Stogsdill v. state federal review. ” Farm, 419, 123 U.S. at award.’ State Partners, L.L.C., Healthmark Gore, 517 U.S. at (quoting S.Ct. 1513 Cir.2004). 827, 832 1589). trial The evidence S.Ct. conduct indicated that American Tobacco’s provided Court has ciga Pall Mall highly reprehensible: of was process three for due review guideposts extremely carcinogenic and ex rettes were punitive damages the amount of a award: (1) substantially more so tremely the degree reprehensibility the of addictive' — (2) cigarettes; the sale of conduct; types than other disparity defendant’s the be

603 it repeatedly compensatory occurred where the was product this defective award. Co., $500,000); many years despite Morse v. the course of Southern Union over (8th Cir.1999) knowledge 917, that (up- Tobacco’s 174 F.3d 925-26 American dangerous holding to the user’s close to a 1:6 ratio where product was health; actively $70,000). compensatory only American Tobacco award about the health risks misled consumers ratio, justify higher Factors that a such (cid:127) Moreover, smoking. associated with presence “injury of an that hard to relate reprehensible conduct was shown to detect” or a act “particularly egrégious directly to the harm suffered Mrs. has resulted in a small amount [that] painful, lingering death Boerner: most damages,” of economic are absent here. surgery. following extensive Gore, 582, 517 at 116 See U.S. S.Ct. 1589. that, despite We also note evidence that light guide In of the second Gore American a callous Tobacco exhibited dis- however, puni conclude that the post, we regard for the adverse health conse- damages tive award is excessive when quences smoking, there is no evidence against compen the substantial measured anyone that at American Tobacco intended satory damages Though award. the Su to victimize its customers. Eden Elec- Cf. “reluctant to iden preme Court has been trical, Co., Ltd. v. Amana 370 limits on the tify concrete constitutional (8th Cir.2004) (affirming an award of plaintiff harm ... to the ratio between punitive damages approximately 4.5 times award,” damages id. at punitive and the greater compensatory damages than the 1513, it has identified a cir 123 S.Ct. award where the defendant had devised a required: in which caution is cumstance of fraud and evinced an intent to scheme damages compensatory are sub “When * *” “f* “kill” plaintiffs busi- stantial, ratio, perhaps only then a lesser ness). damages, can equal compensatory to $4,025,000 com- Accordingly, given the pro limit of due reach the outermost case, damages pensatory award this Id. at guarantee.” cess 123 S.Ct. that a ratio 1:1 approximately conclude Supreme Court noted in 1513. As the comport requirements would with the Gore, no mathematical “simple there is Thus, that the process. due we conclude the constitutional formula” marks damages award must be remitted punitive line. 517 at 116 S.Ct. 1589. See U.S. from million to million. Farm, $15 $5 also State at U..S. (“[W]e again impose to

S.Ct. 1513 decline V. punitive ratio which a dam bright-line exceed”). B ar Finally, cannot Notwith we consider & ages award W’s jury in the district standing simple gument the absence of a formula court’s ratio, bright-line general contours structions were erroneous. We review jury to the conclu district court’s decisions on instruc past of our decisions lead discretion, looking to the that a low ratio is called for here. tions for abuse of sion Co., as a whole to determine ConAgra Poultry See 378 instructions Williams (8th Cir.2004) to they fairly submitted the issues (remitting pu F.3d 790 whether jury.' Brown v. Resorts In damages equal nitive award to an amount Sandals Cir.2002). tern., compensatory damages award of $600,000); instruct the (ap failing & Stogsdill, 377 F.3d only the hárm compensatory 1:4 dam that it could consider proving a ratio of & conduct ages damages upper as an lim- to Mrs. Boerner and B W’s punitive 604 I

Arkansas, court violated the district requirement in State Supreme Court’s analysis disagree I with the Court’s re ... instructed “jury must be that a Farm punitive of this garding the excessiveness of out-of-state use evidence may it Electrical, Ltd. award. In Eden damage for action a defendant punish to conduct Co., 824, Amana 370 F.3d 829 jurisdiction it in the where lawful that was Cir.2004), damage punitive we affirmed a at 128 S.Ct. 538 U.S. occurred.” greater 4.5 times approximately award the district conclude 1513. We award, damage de compensatory than the instructions limited the properly court’s To substantiality of the latter. spite the only those facts relevant inquiry to jury’s sure, may 4.5:1 ratio crowd Eden’s injuries, had claimed which to Boerner’s Farm constitutional limits. See State preventing effect practical unre Campbell, B & W for conduct Mut. Auto. Ins. Co. v. 538 U.S. punishing from Additionally, there is claims.4 lated to his 155 L.Ed.2d 585 123 S.Ct. in the record that & W’s (2003) (“When no indication damages are compensatory elsewhere, lawful conduct would have been ratio, substantial, perhaps then a lesser concerned with the so we need not be can only equal compensatory damages, for punished B & was possibility that pro limit of the due reach the outermost legal have been where conduct that would guarantee.”). But it does not exceed cess it occurred. ratio single-digit Court setting has intimated as the constitutional “

VI. cases, id., ‘a limit for all save those where judgment conditionally affirm We egregious act has resulted in particularly verdict, subject to Boer- entered on the damages only a small amount of economic judgment of a remittitur acceptance ner’s injury is hard to detect or where] the [or damages award in the punitive on the monetary noneconomic harm value of ” accep- million. Absent his amount of $5 determine,’ may have been difficult to id. remittitur, reverse and tance of the Am., Gore, (quoting N. Inc. v. BMW of trial on the claim for remand a new 559, 582, U.S. 116 S.Ct. 134 L.Ed.2d punitive damages. (1996)), justified the 4.5:1 ratio and we the case involved an “ex Eden because BYE, Judge, concurring Circuit traordinarily reprehensible scheme to de result. Eden, at fraud.” 829. court affirming I concur in district Here, compensatory the ratio between accept with the condition Mr. than four to punitive damages is less damage award. punitive remittitur on the one, reconciling I have trouble re- I result on different Because reach such our affirmance duction this award with my grounds, separately explain I write Eden on distinguishes Eden. The Court position. Farm, damages S.Ct. award on the basis of evidence*of 4. State U.S. at Cf. reason, ("For how- a more fundamental particular to the claim misconduct unrelated ever, the Utah erred ...: The Courts courts issue). assessing responsibility... at "In it is damages punitive punish and de- awarded a court focus on the conduct crucial Camp- ter conduct that bore no relation to the plaintiff's rather than the related to the claim harm"); Poultry, ConAgra 378 F.3d 790 bells' general." conduct of the defendant in Id. (concluding process that due had been violat- upheld punitive ed where the district court

605 punitive compensatory and “intended to victimize” between dam grounds Amana case); ages personal injury in a Burton v. Eden, merely “ex- while American Tobacco Co., Reynolds F.Supp.2d Tobacco 205 for R.J. disregard a callous the adverse hibited (D.Kan.2002) (approving 1263-65 smoking.” Ante at consequences of health punitive compensa 75:1 ratio and between satisfy- than I find the rationale less tory damages personal injury in a suit purely economic harm. ing. Eden involved against company). tobacco only injury personal This case not involves harm, personal rather than economic but if this did fall within Even case not injury very wrong- of a nature —a serious specific exception Supreme Court Thus, American ful death. while Tobac- involving out for difficult-to- carved cases may quite level of intent not be co’s harm, determine noneconomic the mere (and is egregious as Amana’s even injury physical fact this case involves rath- arguable), consequence of its conduct er than economic harm makes it difficult to tied to its outweighs any far considerations reconcile our remittitur here with our af- marginally culpable less state of mind. firmance in Eden. The Court list- outraged by have more reason to be We ed five factors for the courts to consider disregard for American Tobacco’s callous judging degree reprehensibili- when of would, Mary Boerner’s life than we Jane 1) ty of a defendant’s conduct: whether it example, intentionally if it had pilfered for rather than physical caused economic money. all her 2) harm; whether it evinced an indiffer- disregard to or a reckless ence addition, I In am troubled 3) others; safety health or of whether its fac incomplete discussion of the Court’s 4) vulnerable; target financially justifying higher puni ratio between tors repeated it involved actions rather whether damages. and It notes compensatory tive 5) incident; than an isolated and whether presence factors —the the absence two malice, harm from intentional its resulted detect, or a injury of an which is hard to deceit, than mere acci- trickery or rather particularly egregious resulting act Farm, dent. State 538 U.S. 123 damages. a small amount of economic Gore, 576-77, (citing 517 U.S. at S.Ct. 1513 Ante at 603. But it fails to discuss the 1589). 116 S.Ct. third, is, presence of a where the monetary value of noneconomic harm is Eden, affirming In the 4.5:1 ratio in difficult to determine. Such a factor clear presence just one of those discussed the injury ly applies involving personal to suits malice. See five factors—intentional See, wrongful e.g., death. Eden, despite the 370 F.3d at 829. Yet Stafford Inc., Med., 470, 475 Neurological of several of the five factors presence Cir.1987) (noting deceased’s suicide harm,-callous disregard physical this case— resulting misdiagnosis injury from was “an others, re safety to the health and terms”). easily calculable economic wrongful span incidents of conduct peated factor suggest presence I this one decades, and calculated deceit—we ning within the consti brings alone this award sum, principled remit. In I find no basis process. tutional limits of due See Bielicki concluding this award excessive Co., v. Terminix Int’l F.3d compared with our affirmance- of the when (10th Cir.2000) (approving a 12:1 ratio be punitive damage award in Eden. punitive compensatory damages tween II case); personal injury Equi in a Deters v. Servs., Inc., Despite my agree reluctance to with- Credit Info.

fax (10th Cir.2000) Farm and application ratio State (approving 59:1 Court’s Eden, Gore, prove reprehensibility I find is relevant to the distinction of and its conduct, result it reached and in this case Mr. with the a defendant’s myself agreeing Ironically, I reach the undoubtedly another reason. offered the evidence for Boerner disagree- just second same result because to that about American prove Tobac- majority’s analysis, conduct, the ment I have with the as well as to establish co’s is, argument B rejection of & W’s cigarettes its relationship causal between error. on instructional cancer. But State Farm Mrs. Boerner’s can not be clearly indicates such evidence Farm, the Court said: In State amount determining when the considered permit-courts, process “Due does specific for the harm punitive damages damages, to ad- punitive the calculation by plaintiff. I do not believe suffered parties’ hypo- of other judicate the merits by punitive damages given the instruction against a defendant [be- thetical claims sufficiently district court limited the the on these bases creates punishment] cause jury’s damages consideration to the suf- dam- possibility multiple punitive the by fered Mrs. Boerner. conduct; for the same for ages awards nonparties by are not bound the usual case judgment plaintiff some other obtains.” III 128 S.Ct. 1513. Pursuant U.S. acknowledge normally I a remittitur Farm, B

to State & W asked district not be used to cure an instructional should “only it court to instruct could Werbungs error. See Und Commerz Un punitive damage upon award based con- Guild, Ltd., 930 ion Austalt v. Collectors’ duct ... which had some connection to the (2d Cir.1991) (“Remitti- 1021, 1027-28 plaintiff.” harm claimed only to reduce verdicts appropriate tur is give court The district refused properly in cases which a instructed instruction, B portion requested of & W’s jury hearing properly admitted evidence using instead the Arkansas Model Instruc- an excessive award nevertheless makes punitive damages. argued on B & tion designed compensate is not [and] process court violated its due district verdicts in cases where [instruc excessive punitive when it failed to limit the rights, jury’s entire error has infected tional] per Farm damage instruction State be- of the evidence on dam consideration cause the evidence at trial referred to con- (internal quotations ages.”) citation and other than what was directed at Mrs. duct omitted). proper remedy for instruc 1) example, Boerner. For Boerner em- damages. is a new trial on tional error harm phasized causes nation- (3d Johnson, F. Jacoby v. See wide, 450,000 specifically 'referring to Cir.1903). 2) annually, cigarettes deaths are indicated preventable one in the number killer result, normally I would be reluc- As a 3) States, and introduced United the Sur- agree tant to with the Court’s remittitur geon Reports General’s which described excessiveness) (based as a means patients’ diagnoses other cancer and tobac- specifi- the award for amounts not reduce co-related diseases. cally to the harm suffered attributable (based er- I on instructional point. believe & W has a valid This Mrs. ror). however, Farm, case, In this the instruc- quite case is similar to State which also tional error would have affected involved evidence of the harm State So, damages awarded. wrongful punitive Farm’s on a na- amount of conduct caused sure, appropriate to cure tionwide To evidence if a remittitur was ever basis. be such error, would an instructional this

case.

Moreover, to a a defendant can consent an of a new trial to cure

remittitur lieu (“The id. defen-

instructional error. See damages as-

dant is entitled have instructions by jury proper under

sessed right the court. Of this the defendant deprived

cannot without his own con- added).

sent”) argu- At oral (emphasis

ment, B agreed, & W’s counsel when

asked, grant that the court could remitti-

tur cure the instructional error dis- acquies- Based on B &

cussed above. W’s

cence, therefore, I a remittitur believe case, agree

appropriate this with

the amount of remittitur ordered

Court.

IV discussed, I con-

Because the reasons

cur in the result. Q. HOTELS, INC.;

JOHN HAMMONS Q. Hotels, L.P.,

John Hammons

Appellants, SYSTEMS,

ACORN WINDOW

INC.; Nabholz Construction

Corporation, Appellees.

No. 03-3786. Appeals,

United States Court of

Eighth Circuit. 17, 2004.

Submitted: June

Filed: Jan.

Case Details

Case Name: Henry W. Boerner, Individually and as Administrator of the Estate of Mary Jane Boerner, Deceased v. Brown & Williamson Tobacco Company

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jan 7, 2005

Citation: 394 F.3d 594

Docket Number: 03-3557

Court Abbreviation: 8th Cir.