*1 (No. 68367. LOITZ,

ROBERT v. REMINGTON ARMS Appellee,

COMPANY, INC., Appellant. Opinion 19, 1990. September on denial Modified filed rehearing 1990. November *3 CLARK, J., CALVO, JJ., joined by WARD dissenting. and William E. Kelly Joern, Jr., Charles E. of Pope, Ballard, Fowle, Ltd., & Shepard of Chicago, and Neiers, Nicholas J. Samuels, Miller, Schroeder, Jack- son Decatur, & for Sly, appellant.

Hull, & Campbell Robinson, of Decatur (Jon D. Robinson, of counsel), appellee. Hoffman,

Richard H. Victor J. Piekarski and Michael Resis, of Harrow, & for ami- Querrey Ltd., of Chicago, cus curiae Illinois Association of Defense Trial Counsel.

Mark I. Levy Lynn D. Thesing, of Mayer, Brown- & Platt, of Chicago, for amicus curiae Product Liability Council, Inc. Advisory

Robert Wadington, N. of Cooney & Conway, of Chi- cago, and Charles A. Porretta, student, for amicus law curiae Illinois Trial Lawyers Association.

JUSTICE MILLER delivered the opinion of the court:

The plaintiff, Loitz, Robert was injured when the bar- rel of the he shotgun was using Loitz exploded. brought the present action against manufacturer gun, *4 Remington Arms Inc. Company, a trial in Following the circuit court Loitz Douglas was County, awarded $75,000 in and compensatory damages million in pu- $1.6 nitive damages. The court appellate affirmed the circuit

court We allowed (177 1034.) judgment. App. R. (107 for leave to Ill. 2d Remington’s petition appeal 315(a)). 19, accident occurred on June 1983. plaintiff’s meet

Loitz was a participating day trapshooting at Illinois. Newman, During club near gun competi tion, Loitz shotgun the barrel of Loitz’s and exploded, as sustained to his left hand and thumb a result. injuries in his Loitz, subsequent action against Remington, with and willful gunmaker both charged negligence and misconduct and awards of com requested wanton damages. Summary judgment and pensatory was later entered in favor on an additional of the in strict be complaint, sounding liability, count period applicable cause that claim was barred 1985, 110, par. Ill. Rev. ch. 13— (see limitations Stat. 213). trial is thoroughly

The evidence at summa- presented court and will be restated rized appellate opinion At time oc- here to the extent necessary. only Model 12- using Remington currence Loitz was semiautomatic, is a gas- The Model 1100 gauge shotgun. target and is intended both operated shotgun introduced shooting hunting game. Remington has gun 1100 to market been Model time; more than 3 million bar- since production Model 1100 shot- have been sold. The own plaintiff’s rels 1972. Loitz was manufactured gun and used it secondhand later year bought Loitz, an ex- incident until the occurrence here. without marksman, in a taking part trapshooting perienced he the barrel explosion when was injured; competition Fol- had fired more than rounds. occurred after Loitz sur- Loitz underwent reconstructive the accident lowing has been hand, virtually his left and his recovery on gery *5 $5,000 He incurred about complete. special damages and lost time from work. expenses medical on of the acci- The shells used Loitz being by day dent were ones that he had reloaded himself. previously Reloaded shells are less than expensive factory-made ammunition and are used commonly by competitive shooters. Home of shells is on a production performed machine. A a reloading shotgun shell consists of casing, wad, shot, primer, and, a and on the multi- gunpowder, Loitz, device used a stage different is component added at each successive station on the machine. At trial, that mistakes can made in parties agreed be operation machine. The reloading parties dis- however, puted, the likelihood of producing, and not de- tecting, shell, an overloaded one with more particularly than twice the normal charge The gunpowder. plain- tiffs unused shells were recovered from the scene and tested. trial At the parties stipulated that the unused shells were not and, fired, overloaded if would produce pressures within normal limits.

The central issue at trial was the and safety suitabil- ity metal used in the Model 1100 plaintiff’s shot- gun barrel, and each side its own presented theory the cause of the accident. The barrel of the Model 1100 is from made a of steel type known as American Iron and Steel Institute (AISI) modified. AISI 1140 modified contains manganese sulfide and is described as steel, a which free-machining means that it can be worked more than steel that easily does not share that characterization. In the manufacturing process used by each Remington, shotgun barrel as a begins slug of steel and is and until forged worked a barrel is Af- produced. ter assembled, is it gun fully is subjected proof- In that testing. procedure, round single capable pro- ducing higher-than-normal is fired from the pressure Afterwards, gun. gun inspected visually -signs and normal rounds are later dis- several damage, trial, at it presented appears From

charged. in a shotgun pressures that normal shells would produce 8,000 12,000 inch. per range pounds square between Remington produce pres- shells used proof-test 18,000 22,000 per sures ranging pounds between that the plaintiff’s inch. believed square it of about subjected pressure because was exploded inch. 60,000 per pounds square *6 Levinson, David a witness, Dr. plaintiff’s expert Illinois, at the of Chi- University of professor metallurgy that the Loitz barrel cago gun exploded believed campus, to a normal-pres- a failure in fatigue response because of AISI 1140 modified opinion, sure shell. In Dr. Levinson’s bar- shotgun steel a material for use is not suitable that inclusions created by rels. Levinson stated Dr. steel content that high sulfur relatively type cracks, which even- fatigue may the formation of permit to fail normal pressure cause the barrel under tually had that Remington loads. Dr. Levinson also believed of the the barrel thickened, strengthened, and therefore shot- plaintiff’s particular Model since the time that on mea- opinion Levinson based was gun produced. from more he obtained recently produced surements claim, Remington shotguns. Model Disputing that no had been indicating change testimony presented Model 1100 bar- company’s made in the thickness of the Reming- noted that a different rels. Levinson Separately, as 870, is made of the same steel ton the Model shotgun, a thicker the Model 1100 but has barrel. at a of metallurgy

Dr. Hertzberg, professor Richard at behalf testified Lehigh University, the shot- the cause of trial. Hertzberg Dr. believed Dr. a shell. high-pressure barrel gun explosion on an examination his conclusion based Hertzberg of the Loitz with on comparison a plaintiff’s gun, guns intentionally exploded by had been exemplar shells, his own of overloaded and on tests discharge of the of AISI 1140 modified steel. From those strength Dr. tests, Hertzberg concluded that steel type for used by Remington production plaintiff’s gun barrel was a safe material it and suitable purpose was designed to serve and for the range pressures which it would be normally exposed. Hertzberg was not until trial, however, aware a barrel had failed he he during proof-testing, and said that was un- able to account for that occurrence. Remington also pre- sented evidence that barrels shotgun can or ex- rupture for a plode number reasons to their design unrelated or material For a composition. example, might barrel ex- if it is plode Also, obstructed with mud or ice. what burst,” known as a “12-20 a barrel if a might explode shell shell 12-gauge are 20-gauge discharged simul- as an taneously, when unfired shell has 20-gauge inad- vertently been left the barrel. Remington witnesses testified that the sulfur content of the steel used company helps prevent if barrel fragmentation does explode. *7 parties

The the stipulated that time of the by plain- accident, tiff’s in June had Remington received no- tice 94 other barrel Model explosions involving shotguns and In resulting personal injuries. 89 of the cases, the persons involved claimed to have been using shells, normal cases, reloaded while in the remaining five the persons said had they used factory-made ammuni- tion. In each of the 94 cases, however, Remington be- that the lieved explosion was caused the use a by In high-pressure addition, shell. there was in- testimony that dicating in 1979 had received Remington reports more than 100 barrel that explosions occurring year did not result in personal These additional inci- injuries. gun

dents been caused obstructions the by have may of two shells. discharge barrel or the simultaneous by permit- Over the was Remington’s objection, plaintiff three other who had ted to present testimony by persons their when the barrels of personal injuries sustained The three Model 1100 accidents were shotguns exploded. The the 94 incidents mentioned above. among reported in relation to the only trial admitted the evidence judge gave claim for and the damages jury plaintiff’s punitive three to that effect. The witnesses— limiting instructions Glover, Delores Moore—de- Nicholas and King, Terry their said that injuries. King scribed their accidents and when his using exploded, he was a reloaded shell were fac- using and Moore testified they but Glover shells. Also with to the respect plaintiff’s tory-made damages, parties stipulated claim for punitive $162,314,000 on worth of March Remington had net June trial 31, 1987, several months preceding of the matter. its concerning also evidence

Remington presented as well as infor- shotgun, of the Model 1100 manufacture addition, In military. its use regarding mation former executive testimony presented the reloading had manufactured device company described the machine witness plaintiff. used machine, he operation. Using and demonstrated its shells, he was some overloaded but produce was able that Remington suggested unable to make one shell of the accident. present could have been cause a verdict At the close of returned in com $75,000 him and awarded favor damages. in punitive million pensatory $1.6 On Remington’s entered on verdict. Judgment vari company’s court rejected appeal, appellate the compensatory affirmed both claims of error and ous The appel- 1034.) (177 App. awards. *8 late court the amount of acknowledged punitive damages large awarded but concluded nonetheless that case was an one for im appropriate and ex position such award was not cessive. The rejected court also the defendant’s appellate alternative for a new trial on the negli both requests gence counts, and willful and wanton misconduct for on the judgment notwithstanding verdict willful and count, -wanton misconduct and for remittitur on the dam age awards. granted Remington’s We leave petition from the appeal (107 court 2d appellate judgment Ill. R. The 315(a)). Illinois Association of Defense Trial Counsel, the Association, Illinois Trial Lawyers Council, Product Liability Inc., been Advisory have per mitted to submit briefs as amici curiae R. (107 2d 345). issue in the principal present concerns appeal

imposition of million in damages, and $1.6 Remington raises a number to the challenges award. Remington contends that the evidence in the present case does not warrant imposition punitive damages, that the verdict jury’s was the result of error, trial that the sum awarded is excessive and should be reduced to an appropriate amount through remittitur. Remington also argued the courts below that awards of large pu- nitive damages between be an private parties may exces- sive fine in violation of eighth amendment of the Federal Constitution. Acknowledging the same con- tention has since been rejected United States Su- Court preme (see Browning-Ferris Industries Ver- mont, Inc. v. Kelco Disposal, (1989), 257, Inc. 492 U.S. Ed. L. 109 S. 2909), Ct. Remington now presents as an alternative constitutional claim the argu- ment that large punitive damage awards violate due may process. *9 the evidence in the case at was suffi-

Although bar on Remington’s cient to sustain finding negligence we note part Remington requests only new —and trial, verdict, and not on judgment notwithstanding claim dam- plaintiff’s negligence compensatory evi- ages do not believe there sufficient —we dence of misconduct on to warrant part claim for punitive damages submission of the plaintiff’s the punitive we reverse jury. Accordingly, damage award.

I Punitive, are not as damages or awarded exemplary, serve instead to offender punish but compensation, committing and others from sim deter party v. (Gertz Robert ilar acts of future. wrongdoing Welch, Inc. 789, 41 Ed. 2d 323, 350, 418 U.S. L. (1974), v. Towns West Mattyasovszky 2997, 3012; 811, 94 S. Ct. Bus Co. 31, 35; (Second) 61 Ill. 2d Restatement (1975), a, Owen, at 464 (1979); Torts & comment §908(1) Damages Against Problems in Punitive Man Assessing Products, 49 U. Chi. L. 1, Rev. 7- ufacturers of Defective nature, 8 dam penal punitive Because their (1982).) v. Byford (1989), in the law. (Deal are not favored ages Motorola, v. Inc. Kelsay 74 192, 203; (1978), Ill. 2d v. Langland (1982), Cornell 172, 188; 109 Ill. Ill. 2d the initial 472, enough, 474-75.) Appropriately App. in a be may imposed whether damages decision punitive re matter normally is a case in this State particular v. McCartin- Co. J.I. Case to the trial judge. served Inc. Heating, Plumbing & 118 Ill. 2d (1987), McAuliffe Corp. American Asbestos v. North Hammond 453; 447, v. Eshelman Rawalt 211; (1921), 195, 97 Ill. 2d (1983), 1987, 110, ch. 197-98; Ill. Rev. Stat. 192, par. 298 Ill. cf. actions, seeking punitive tort party certain (in 2—604.1 “a rea- hearing at pretrial award must establish damage at sonable likelihood of facts trial sufficient to proving an damages”). award support punitive the circumstances in which Describing an award this court in v. appropriate, Kelsay Motorola, 172, (1978), Inc. 74 Ill. 2d stated:

“It long has been established in this State puni exemplary damages may tive or be awarded when torts fraud, malice, are committed with actual deliberate vio oppression, lence or or when defendant acts willfully, gross or with such negligence as to indicate a wanton dis regard rights (Consolidated of others Coal Co. v. (1893), Haenni 614). Where punitive damages may assessed, be are they allowed nature of pun ishment and as a warning example to deter *10 defendant and committing others from like offenses in (Eshelman (1921), future. v. 192, Rawalt 298 Ill. 197.)”

See also (Second) Restatement of Torts §908(2) (1979) (“Punitive damages be awarded for may conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights others”). action was present submitted to the on alle jury

gations of both and negligence willful and wanton mis conduct. It must be recognized, however, that “[njegli is gence not the same as (Quad wantonness” County v. Distributing Burroughs Co. 68 Ill. Cory. (1979), App. 163, 3d and 166), that “[pjunitive are not damages for mere inadvertence, mistake, awarded errors of judg ment like, and the which constitute ordinary negligence” (Restatement §908, of Torts (Second) b, comment at 465 “Since (1979)). is purpose punitive damages not compensation of the plaintiff but punishment of the defendant and these deterrence, damages can be awarded for only conduct for which this is remedy ap propriate conduct say, involving some ele —which ment of similar outrage to that in usually found crime. The conduct must be either outrageous, because the

416 acts an

defendant’s are done with evil motive or because to the rights are done with reckless indifference they §908, others.” Torts comment (Restatement (Second) b, at 464-65 context, In this and willful wanton (1979).) “ ‘approaches degree misconduct of moral blame at harm, tached to intentional since the defendant deliber inflicts a unreasonable risk of harm upon ately highly ” v. Bresland Ideal of it.’ others in conscious disregard Graphics Roller & Co. 457. 150 (1986), App. in increased re- As awards have punitive damage amount, cent both years frequency problems such have attracted attention. greater awards posed by A on the Comment Constitu- Jeffries, (See generally Damages, Punitive tionality of 72 L. Rev. Va. 139 Punitive Dam- Problems Assessing Owen, (1986); Products, ages Against Manufacturers Defective Damages Punitive Owen, L. Rev. 1 (1982); U. Chi. Liability Litigation, Products L. Rev. 1257 Mich. Wheeler, The Constitutional Case (1976); Reform- for Procedures, Punitive ing Damages L. Rev. 269 Va. pur- serve a penal Because (1983).) punitive as but and are awarded not compensation, pose deterrence, the amount of reasons of retribution more than a con- just an award is determined such and extent of the claimant’s nature sideration that may of circumstances be range loss. The broad dam- into account aby making taken *11 sum unre- large often of a imposition award invites age v. Robert Gertz (See to the incurred. lated injury Welch, Inc. 350, L. Ed. 2d 323, 41 418 U.S. (1974), 2997, (“In jurisdictions most 789, 811, 94 S. Ct. is limited the amounts awarded discretion over jury not excessive. Con- rule that be gentle they only by wholly un- damages assess sequently, juries punitive relation no necessary bearing amounts predictable has Moreover, been harm caused”).) actual .concern expressed regarding threat of recoveries multiple Richardson-Merrell, v. in mass tort (Roginsky cases. Inc. (2d 832, Cir. 378 F.2d 1967), 839-41.) Threatened with for liability large awards, punitive damage prod- uct manufacturers curtail their research and may de- velopment new and beneficial products. Browning- Vermont, Ferris Industries Inc. v. Kelco Disposal, Inc. (1989), 257, 282, U.S. 219, 106 L. Ed. 2d 242- 43, 2909, 109 S. Ct. 2924 (O’Connor, J., concurring part and dissenting part). Illinois,

In the General has Assembly addressed a number of concerns relating punitive damage awards. For example, punitive not damages be re may covered in cases of medical or legal malpractice. (Ill. 1987, Rev. Stat. 110, ch. par. 1115.) For causes of 2— action on or accruing after 25, 1986, November com plaints alleging negligence and involving personal in or property damage and complaints products li actions ability based on strict not liability may contain for relief prayer seeking an award of punitive dam ages; in those specified cases a request punitive damages may be submitted to the after jury only party seeking demonstrates, award in a pretrial hearing, the evidence would warrant such an award. (Ill. 1987, Rev. Stat. 110, ch. par. If 604.1.) 2— are awarded, subsequently the trial judge may apportion recovery among the plaintiff’s attorney and Illinois Department Rehabilitation Services, in addition to the plaintiff. Ill. Rev. Stat. 1987, ch. par. 2—1207.

II The contends that Remington knew of the defect in the Model 1100 shotgun and the resulting dangerous propensity gun. appellate court agreed with the plaintiff’s assessment of the evidence.

In the award in the affirming punitive stated that case, Reming the court present appellate to warn of a known defect in ton’s “failure flagrant is the which re safety the disregard public activity (177 Ill. damage award.” App. sulted that a number of cir 1064.) at The believes plaintiff the awareness cumstances company’s demonstrate the In response, firearm. the defective nature it to failing contends that Remington punished about defect that the warning company, provide faith, existed. further Remington did not believe good that there is no evidence it had ac any maintains that insists that tual of the claimed defect and knowledge the have grouped by barrel was not defective. We gun the by matter the cited plaintiff evidence subject of his claim and will discuss those points support evidence this re Perhaps significant turn. most that accidents gard concerning prior is number to Other cited reported Remington. however, at best or fails ambiguous entirely plaintiff, on Remington’s part to the awareness demonstrate to that claims have existed. plaintiff The first refers to evidence concerning plaintiff acci- Remington prior notice received admittedly Model 1100 The ob- shotguns. plaintiff dents involving had received of 94 Remington reports that serves Model 1100 shotguns other involving barrel explosions The *13 that did not result in As personal evidencing injuries. knowledge defect, of the the alleged ap pellate court case mentioned present the “de tailed testimony prior, about similar occurrences which were made known to defendant before plaintiff’s gun exploded.” 177 3d at 1064. App.

Remington presented that testimony company had each of the 94 investigated similar occur- prior rences and had concluded in case that every cause of the accident was a shell. high-pressure Contrary to view, plaintiff’s did not insist that all Remington the shells reloaded; trial, were at Remington employee James Hutton testified that the company had con- in cluded those instances that shell high-pressure a either shell reloaded or factory-loaded product. 1983, Until a committee of em- consisting ployees performed investigation of accidents such as those in that question; during as- year, duty was sumed by one It not person. is clear from the record precisely what sort of investigation was in performed each case. It appears, however, rou- many users send their tinely shotguns to the for company purposes of repair work. Remington records of destroys prior accidents after three complaints years have passed.

Guns are inherently dangerous instrumentalities, and the mere occurrence of other explosions not, does more, without outrageous establish misconduct or some other basis sufficient warrant of imposition puni tive v. damages. (Moore Remington Arms Co. (1981), 1102, 100 Ill. App. 1112.) Discussing relevance of evidence in prior accidents the context of claima ' one punitive damages, commentator has stated: 420 to view the number com- important

“It also concerning product context and lawsuits plaints use, the and in fre- products the total number of sold use, prod- the particular quency product’s Thus, dangers. expected it must be uct’s inherent mass-produced goods virtually all manufacturers tires, drugs, inherently dangerous automobiles, are — many chemicals, targets firearms —will be or Owen, Problems complaints every year.” and lawsuits Damages Against Assessing Punitive Manufacturers Products, (1982). U. Chi. L. Rev. of Defective represent prior about The 94 accidents 0.003% Remington’s production of more than million Model question. during span of time 1100 barrels prior only not must be considered relation accidents by Remington produced dur- the number of barrels period, ing in relation to the estimated but also guns Al- have used. of times those would been number *14 any though with the cannot be known latter number testimony precision, plaintiff’s trial demonstrates the literally shotgun he had his Model 1100 used own explosions prior repre- the Thus, of times. thousands Remington’s production percentage of of sent a small gun percentage of the an even smaller barrels, and shotguns actually were fired. of times the number Reming- plaintiff cites as further evidence of The receipt product its of the defect ton’s awareness concerning 100 other barrel notice some 1979 alone of respect explosions. the addi- it is clear in what But not plaintiff’s theory helpful to evidence is tional indicating Although testimony is this case. there personal injury and did not involve the other incidents plaintiffs accident, the record to were not similar clearly causes not demonstrate what does testimony, explosions however, were. There was other may explode indicating shotgun if ob- barrel that a ice, or if an is in the structed mud or extra shell Moreover, when another shell is fired. gun appear- produced ance a an one following explosion of those causes would not resemble necessarily ap- a gun undergone that has an pearance explosion stated, a shell. As we produced by high-pressure have there was re- testimony indicating company for consumers, broken and the pairs guns plaintiff claiming not that every mishap must be attributed to allegedly defective nature the Model 1100 shot- gun.

The also contends plaintiff information that developed was in the course of prior litigation supplied Remington with notice of the existing defect its Model 1100 The shotgun barrels. notes that plaintiff around several years before the accident involved case, in this Dr. Levinson conveyed Remington his views concerning the safety com suitability pany’s use AISI modified steel. Dr. Levinson an appeared as witness on behalf of expert in Moore v. his Remington, opinion presented company in connection with the earlier litiga In addition, tion. the plaintiff maintains that the appel late court’s decision v. Remington, Moore which af firmed judgment compensatory damages premised on strict theory, apprised liability Reming ton that the Model 1100 shotgun barrel could be con sidered defective. plaintiff alleges the company’s inaction in the wake the earlier decision. In uphold the award of ing case, present court cited an appellate as circum aggravating *15 stance inaction in the face of the earlier adverse decision in Moore. 177 3d at App. 1064.

While it is true Remington that was made aware of Dr. during Levinson’s course of the opinion prior case, it cannot that be said was automati- Remington view to embrace Dr. Levinson’s as its

cally required at indicated that own. The evidence trial presented the Model 1100 began shotgun Remington producing its extensive research into following design. and engineers its metallur- own Remington employs are relies their tests expertise. and on Various gists manufacturing at of the stages different performed its shot- quality to ensure the process safety however, demonstrated, guns. Remington’s are not manufacturing testing procedures that its or explosion able to barrel every rupture, prevent to which the shotguns conditions given varying shells, obstructions might High-pressure exposed. be shotgun all bore, and “12-20 bursts” can cause bar- that the cause of the rels fail. concluded Having to shell, Remington a high-pressure Moore accident was Dr. contrary theory to declined Levinson’s accept that case. explosion no in this Moreover, negli- makes claim plaintiff given effect should be action that gence preclusive the strict claim liability in Moore on earlier verdict is now Remington collaterally asserted there and earlier It determination. challenging from estopped in that case claimed noted that should be her shell when Remington also have using been alleged and she exploded, 1100 shotgun Model defective; the general were Remington products both not did the basis specify verdict returned by to be prior litigation If the finding liability. for its must relevance, then it be conceded accorded have found equal significance could Remington in that award punitive court’s reversal Moore case, court ruled where the appellate in the circum- imposed could not be properly could as vein, In there. like stances shown involving tort actions note two other well take *16 brought Model 1100 that have been shotguns against in the in As the represents, Illinois. company company in Reming- each case the trial directed a verdict judge ton’s claims a damages, favor on seeking punitive in one the a jury Reming- cases returned verdict ton’s favor on a claim for In damages. compensatory an action a brought against Remington Kentucky, found the for both compensatory liable company and punitive damages.

As further proof that was aware of the here, defect the contends that the charged plaintiff changed manufacturing its in 1980 company process and that the barrels of Model 1100 shotguns produced after that time are thicker than those of shotguns pro- duced before manufacturing change. Remington ac- that in 1980 it made a with knowledges change respect to one of the steps of its production shotguns, but insists had ma- company alteration no terial effect on its denies product and thick- ness of the barrels has changed.

Dr. Levinson, testifying plaintiff, behalf stated that he had measured six or seven different Model 1100 shotguns and had found that the barrel walls shotguns after produced manufactur- ing change were about 5% thicker than those of guns produced to previously. According Levinson, the former manufacturing process contributed to the problem: Levinson believed that barrels made before the 1980 manufacturing change have and less- larger, longer, well-distributed sulfide inclusions than manganese bar- rels after produced time. trial,

At Remington presented contradict- ing plaintiff’s theory. Hutton, James senior staff engineer for firearms research and devel- testified opment, in detail the different concerning stages of the manufacturing Model 1100 shot- gun. manufacturing change explained Hutton that the step preliminary cited involved production shotgun pertained to barrels, dif- prepare product used the steel re- ferent methods forging. Hutton stated ceived from the steelmaker company extrusion that until 1980 the used Verson press produce pieces forged into shot- that were company switched to a tech- barrels. In 1980 the *17 “auto-drilling.” nique that the known as Hutton denied produc- changeover any effect on barrel had material a of tion. Hutton further stated that review Model dating parts specifications to 1963 failed to 1100 back affecting any design changes barrel thick- wall reveal import questioned Dr. Hutton also the of Levin- ness. regarding testimony of at son’s his measurements least According earlier, of the Verson-extruded barrels. two shotguns repair Hutton, work on two of the earlier to slightly the thickness of their barrel walls. had reduced part explained the of a to the Hutton addition bar- guns, certain restoration area of one of the rel another, of in the re- on the had resulted work barrel those of material from the outer surfaces of bar- moval rels. plaintiff final of items intended

The offers a series deficiency Remington’s of to show awareness sup- shotgun. plaintiff The notes the the Model uniqueness posed steel used AISI 1140 modified the Remington by and, addition, certain statements cites by Remington respect a to that material made with Remington’s expert employee by witness present litigation. contends that the First, the by Remington, modified, is AISI metal used gun unique manufacturer uses sim- and that no other Remington presented trial, however, material. At ilar by company although the metal used evidence that company’s unique, own it made to in that is also AISI other manufacturers use specifications, explained 1100 series steel. witnesses cause an exploding a softer metal ductility may com- barrel rather than and that the petal fragment, to sulfur prevent added metal to pany fragmenta- tion in the event of barrel As we have explosion. seen, barrel accidents can occur for reasons unrelated design or shotgun. plain- composition Levinson, tiff’s Dr. a barrel acknowledged that expert, made of more a harder material would brittle. be

As further awareness steel, deficiencies of AISI plain- 1140 modified tiff cites certain an given on earlier occasion testimony Johnson, Phillip Remington’s supervisor of chemical control, and metallurgical and introduced into evidence case. this At in 1980, Moore trial Johnson stated, witness, during examination as an adverse he was aware that chrome steel contains molybdenum fewer inclusions than steel used variety Asked Remington. whether chrome steel molybdenum was “a modified, better steel than AISI 1140 using” *18 “Yes, Johnson replied, that’s true.” The wit- perhaps ness not agree, however, did that the inclu- presence of sions would weaken a At the of the gun barrel. trial case, present the testi- introduced Johnson’s plaintiff into a mony upon showing evidence that the witness was not plaintiff available. The now that John- argues son’s prior reflects the view that testimony Remington was aware of the unsuitable nature of its AISI 1140 modified steel. it

While is true that may Johnson have believed that material, chrome steel a molybdenum was better his does not reflect that the testimony judgment the steel used was the by Describing Remington improper. same stated, court testimony, “Phillip the Moore Johnson’s that was molybdenum chrome testimony

426 the by Reming a steel than steel used better probably or dangerous néither the unreasonably ton establishes metal used nor Remington nature of the by defective of such de that was aware existence Remington That 1115.) Ill. 3d at We John (100 agree. fect.” App. that of be su variety might son another steel believed not that the used actually by does mean type perior Remington inadequate. criticism another own example

As the statements selection, ap- its metal cites plaintiff book, in Dr. Deformation Hertzberg’s pearing (2d Materials ed. Engineering Fracture Mechanics to the the of sulfur inclu- 1983), presence effect At trial, in steels materials. sions weaken may however, Dr. the statements explained Hertzberg matter had no in his were true as but general book here, metal used type because application to normal loads was in fact able withstand Remington of pressure. .favorable light most

Viewing record R.R. Co. v. Peoria & Eastern Pedrick (see do Ill. 2d we not consider (1967), 510), above, tes expert or additional evidence described to war was sufficient parties, timony presented case, in this damages rant óf imposition punitive is assessed under standard whether Moore, (see indifference” “flagrant public safety indiffer at (adopting “flagrant 1112-15 App. use in awarding ence” standard or cases)), against measured products liability miscon of willful and wanton more traditional phrasing disagreed expert At trial witnesses parties’ duct. used by the material safety suitability on the shotgun of its Model Remington production it had received acknowledged barrels. *19 but involving similar accidents prior reports were all claimed that caused prior explosions shells, whether reloaded shells or fac- high-pressure products. witnesses involved tory-made Testimony by three of cases was not inconsis- prior necessarily tent with did not theory. evidence that doubt on present any Reming- would cast ton’s faith in good investigating the cases. prior conclude that

We that there was not sufficient proof had the Remington requisite degree culpability would warrant of a imposition sanction is intended to punish indicated, and deter. As we have willful and wanton misconduct more than requires mere proof of negligence, we do not consider plaintiff satisfied burden here. In of our light decision that punitive damages not be recovered may case, we need present not consider Remington’s remaining contentions challenging constitutionality of such or, an award seeking a new trial alternatively, on that part or a plaintiff’s action remittitur of the amount awarded. Taken with case was the plaintiff’s motion to strike certain of the ami- portions cus brief submitted on this issue the Product Liabil- ity Advisory Council, Inc. The challenged portions do brief not form the basis for our resolution of the present appeal, and the motion to strike is there- fore dismissed as moot.

Ill As a final matter, raises Remington several argu ments in of its support request new trial of the plaintiff’s no negligence claim. We find error reversible here. assigns first as error the introduction Glover, three testimony by King, witnesses — own describing involving their accidents Moore— defendant’s Model 1100 The three shotgun. witnesses stated that the shells were at the time of they using

428 reloaded or factory prod their accidents were normal re also described the injuries they ucts. witnesses The and re ceived as a result of the barrel explosions The counted their medical treatment. subsequent court that the appellate detailing ruled the testimony was rele “arguably events the accidents preceding vant” to the failure to of provide warnings company’s the the the defect, but court considered medical alleged to be relevance. (177 App. evidence of doubtful on at The were instructed 1062-63.) specifically jurors Glover, the King, several occasions to consider the in relation to the of portion Moore testimony only and we seeking damages, action plaintiff’s admonitions confined to consider that the trial judge's use of the evidence. challenged that extent the jury’s of puni Because we have determined that the award no to reversed, we occasion tive must be have on here effect of the that testimony por consider the tion the judgment. that the trial erred judge next contends

Remington the the to introduce evidence that allowing Remington shotgun, barrel wall a' different that of the Model 870, was thicker than Model Loitz. The barrels of both models used shotgun 1140 modi- steel, are the same AISI made from type n barrel it that thicker fied, disputed is not an alternative feasibility that Noting stronger. case, in this asserts was not at issue design 870 shotgun Model regarding that was irrelevant. that evidence of

Assuming, deciding, without the present relevant 870 was not shotgun Model its had any introduction case, we do not believe heard Remington’s expla- effect. The jurors prejudicial 870 was thicker of the Model nation that the barrel the former shot- because that of the Model 1100 than barrel, with a originally equipped two-piece and the thickness accommodated the threads added which the barrel extension was secured.

Remington also cross-ex complains plaintiff’s amination of James Hutton con Remington employee cerning catalogue. company’s product catalogue contained the erroneous statement Model shotgun was made of chrome molybdenum Hutton, steel. in his testimony, acknowledged statement Hutton went on appeared catalogue; true, the statement was not and he at explain tributed the mistake to the work whoever was re *21 for sponsible for the preparing copy catalogue. We agree with the court that appellate relevance of this “tenuous, at testimony (177 best.” Ill. App. 3d at 1046.) There was no claim in the present case that Loitz relied on the 1980 catalogue statement as a representation of the metal of composition his own Model 1100 shotgun, or even that he purchased in 1972 in reliance on a like representation. We do believe, not however, that the evidence cata logue misstatement had effect on the any jurors’ deter mination of or on liability their assessment of compen satory damages. noted, As we have Hutton explained the statement appearing catalogue was a Moreover, mistake. Hutton was not the sole source of chrome testimony concerning steel, molybdenum other, there was competent evidence its de indicating sirability. final

Remington’s assignment trial error concerns certain statements made by plaintiff’s counsel during the defendant’s direct examination of Remington em- ployee James On Hennings. occasion, plaintiff’s counsel declared before the jury had company reveal, failed to during certain discovery, information to the witness’ relating later, Sometime testimony. out- side the defense counsel demon- presence jury, had, fact, in made strated that the information been informed the judge available. trial subsequently had materi- produced required instructed the “to als, jurors disregard and specifically is no references to the There reason any contrary.” believe here that the admonition was other than suffi- cient to cure mistaken remarks. counsel’s stated, affirm the award

For reasons we award of and reverse the puni- compensatory tive damages. judgment appel- Accordingly, in in part, late is affirmed and reversed part court the circuit court of Douglas County judgment part part. affirmed and reversed court in part

Appellate affirmed and reversed in part; part court circuit affirmed part. and reversed in CLARK, dissenting: JUSTICE evidence of there was sufficient I believe that case and wanton misconduct this willful damages. imposition support jury’s Therefore, I dissent. respectfully in Illinois “when be awarded damages may

Punitive malice, fraud, deliber committed with actual torts are *22 the defendant acts ate or when violence or oppression, a as to indicate negligence gross or with such willfully v. (Kelsay of others.” disregard rights wanton of Motorola, or Inc. 172, 186.) 2d Willful 74 Ill. (1978), “ under acts ‘committed misconduct includes wanton disregard a reckless exhibiting circumstances of failure, knowledge after such as a others, of safety to prevent care to exercise ordinary danger, impending reckless through danger it discover the or a failure to been discov- it could have when ness or carelessness

431 ” (Hering v. ered the exercise of care.’ ordinary Schneider Hilton 559, 12 562 (quoting Ill. 2d (1958), Lines, man v. Interstate Transit Inc. (1946), 394 Ill. 569, of a defendant’s con 583).) question whether duct was or sufficiently willful to justify wanton imposition case is punitive damages particular jury (1958), to decide. Smith v. Hill one for the 12 Ill. 588, 2d 595. true,

It is of course as the notes, majority where, law, as matter punitive damages cannot be particular awarded for a action, cause of a trial type court cannot submit the question punitive damages to the jury. (See 138 Ill. 2d at 414 (citing Hammond v. North American Asbestos Corp. (1983), 97 Ill. 195, 2d v. and Eshelman Rawalt (1921), 211, 192, 298 Ill. 197- 98).) Similarly, question of punitive damages cannot be submitted to if fails to intro duce the defendant’s or willfulness wanton ness. See Ill. 2d 138 at 414-15 (citing J.I. Case Co. v. & Plumbing Heating, Inc. (1987), McCartin-McAuliffe 447, Ill. 2d 453). This has court stated that a trial court’s de “[w]hile termination to is punitive damages] always subject [as to review, we will not that finding disturb or substitute our own opinion unless it against manifest re weight of the evidence.” (In Estate Wernick (1989), 61, 127 Ill. 2d 85.) This standard requires a jury’s verdict be not unless there is “evi .reversed which, dence when viewed most to the favorably party court, prevailing trial nevertheless so over whelmingly favors the [party seeking that no reversal] stand.” York v. verdict could contrary (1983), Stiefel 321. Remington, through a written stipulation read the jury, admitted it knew prior plaintiff’s accident that at least Model 1100 shotgun barrels

432 similar to the in explosion

had in a manner exploded the claimed explosions this case. Five of victims the ammunition, normal, factory to have new using been using to while the other 89 victims claimed have been The had three normal, ammunition: plaintiff reloaded that they two of whom stated testify, these victims normal, new ammunition. using factory had been alone, evidence, standing I that this would believe to award of jury’s be sufficient support that Reming The could have concluded damages. jury in to discover ton or wantonly failing acted willfully Hering, 94 (see the defect after complaints v. Jarvis City Chicago 562; 12 see Ill. 2d at also Co. Moore v. Jewel Tea 614, 617; (1969), 226 Ill. (1907), 109, accidents (evidence prior 116 Ill. 2d App. of a de notice and is admissible to establish complaints to wantonly failing or acted fect)), willfully v. the gun (see Lipke warn of the defect The Corp. Celotex 505-06). (1987), App. pertaining the evidence however, holds majority, negated by was somehow to the 94 prior explosions testify of its employees fact had two ex all of the prior had investigated company to these 426-27.) According 138 Ill. 2d at (See plosions. that, case concluded each employees, company victims, explosions to the claims of the contrary rather shells by high-pressure to caused had have been cit without majority, than defects guns. deter reviewing standard ing to the applicable conclusive employees’ testimony minations, gives province majority invades doing, effect. In so of the jury. the function of the jury

It is axiomatic “[i]t weight witnesses credibility assess the deter- ***, and jury’s their testimony be accorded to the contrary unless mination will not be overturned (Midland Hotel weight manifest of the evidence.” v. Reuben H. Corp. Donnelley Corp. (1987), 118 Ill. 2d *24 In case, this there are it 312-13.) many reasons would not have the been manifest against weight the evidence for the found the employees’ have jury than testimony less credible.

First, witnesses, both as longtime employees Remington, obviously were biased. Both also employees conceded that to these pertaining alleged records were not for trial investigations available because they had been Furthermore, nei- destroyed by Remington. ther employee what if explained procedures, any, utilized in undertaking these investi- alleged Thus, gations. only pieces evidence in the case pertaining to the alleged investigations were the un- substantiated statements that such employees did in investigations fact take due to the place. Finally, fact did not jury believe claim Remington’s explosion this case was caused aby high- shell, the pressure doubted jury may have the veracity sincerity Remington’s concerning claims the 94 Instead, cases. prior have believed that jury may even Remington if had investigated each explosion, were investigations done fash- merely perfunctory ion. Such a belief would have been reinforced three that, victims who testified this case contrary claims, Remington’s they were not using high-pres- sure ammunition.

In light factors, of these it would not have been against weight manifest of the evidence for the to have jury disregarded the employees’ testimony. so, done Having it would not against have been manifest of the for the weight evidence to have awarded punitive based upon knowledge of the 94 which took explosions place prior to the accident in Under the mani- plaintiff’s this case. review,

fest I standard would weight affirm the court’s decision which affirmed appellate in this case. jury’s punitive damages award WARD dissent. join JUSTICES and CALVO this (No. 68714. ILLINOIS, Appel-

THE PEOPLE OF THE STATE OF al., JAMES FURBY et lant, Appellees. v. *25 Rehearing denied Opinion September 1990. filed 30, 1990. November accident. notes plaintiff to own prior plaintiff’s in those persons five of involved though that even using factory- claimed to have been prior accidents time, Remington at maintained made ammunition in all 94 cases were of the explosions causes According plain- reloaded shells. high-pressure be- tiff, Remington invariably proffers explanation a factory-produced realizes cause company unless explode cause a barrel shell would not barrel were defective in some way. also refers to re testimony indicating ceived 100 in 1979 alone of barrel explosions reports