*1 263 10,1992; January reassigned of the Court Argued March decision and submitted May 20, denied judgment affirmed reconsideration Appeals of the circuit court July OBERG, Karl L.
Respondent Review,
v. CO., LTD.; HONDA MOTOR Co., Ltd.; Honda R&D Co., Inc., and American Honda Motor Review. Petitioners on S38436) (CC A8709-05897; A61587; CA SC P2d 1084 *2 Jeffrey Ari- Brooke, Phoenix, Brooke, R. of Bowman petition petitioners argued the cause and filed the zona, Cereghini, petition review. With him on the were Paul G. Brown and James H. Phoenix, Arizona; and Thomas W. Gidley, Cosgrave, Vergeer Kester, & Portland. Gaylord, Gaylord Eyerman, P.C.,
William A. & Port- argued respondent land, the cause for on review and filed a response petition. response him to the With on the was Doris Raymond Royce, Brook, J. F. Thomas of & Swanson Thomas, Portland. Templeton, Hoffman, Bischoff,
Jonathan M. of Martin Langslet Hoffman, Portland; Wheeler, & and Malcolm E. Spaanstra, Parcel, Mauro, P.C., Denver, Colorado, Hultin & Liability filed a brief on behalf of amici curiae Product Advisory Council, Inc.; The Motor Vehicles Manufacturers Association of the United States, Inc.; The Chamber of Com- States; merce of the United National Association ofManufac- turers of the United America; Roundtable; States of Business and Chemical Manufacturers Association. *3 Ridgway Foley,
Mildred J. Carmack and Jr., P.C., K. Wyatt, Schwabe, & Portland; Williamson and James N. West- Hager wood, Miller, Nash, Wiener, Carlsen, Portland, & Oregon filed a brief on behalf of amicus curiae Association of Defense Counsel. Engels, Engels, Banks,
David A. Portland, Newcomb & filed a brief on behalf of amici curiae Consumer Federation of Group; America; United States Public Interest Research Oregon Group; State Public Interest Research Portland Fam- ily Injury Support Group; Oregon Lawyers Head Trial Asso- Poverty ciation; and The Southern Law Center. Spears Lubersky, Clarke,
James H. of Lane Powell Port- Snap-On land, filed a brief on behalf of amici curiae Tools Corporation; Ray Kash; Tim Park.
GRABER, J.
265-a
Peterson, J., filed a dissenting opinion.
265-b *5 266
GRABER, J.
This product case involves a claim liability against defendants, who manufactured sold a and 1985 Honda Model (ATV) three-wheeled ATC350X all-terrain vehicle used by Plaintiff to drive the ATV plaintiff. attempted aup steep embankment; backward, it overturned him. Plaintiff injuring then defendants, this action that brought against alleging were they negligent and sell- manufacturing, distributing, ATV, because knew or should have known that it ing they had an inherently dangerous that rendered it unrea- design to users, and strict sonably dangerous alleging liability. A returned a verdict in favor of award- jury plaintiff, and both Defendants ing general punitive damages.1 other that the trial They argued, among things, appealed. court erred in in evidence of various admitting excerpts the Consumer Product Com- generated by Safety documents (CPSC),2 mission to the of ATVs. Defendants relating safety that the trial court erred in their motion denying also argued of discovery eyewit- for a new trial on basis of the new nesses to accident. that Finally, they argued plaintiffs and, therefore, was excessive award of punitive damages 16, I, Oregon violated their under Article section of the rights the Due Process Clause of the Fourteenth Constitution3 and to the Constitution of the United States.4 Amendment held that the trial court did not Appeals The Court of documents, err in from the CPSC admitting excerpts 1 $919,390.39 damages plaintiff compensatory The awarded $5,000,000 damages. percent plaintiff punitive 20 of the fault to and 80 It allocated damage compensatory percent award to defendants. The trial court reduced the $5,735,512.31. against percent judgment defendants for 20 entered 2 collects, agency Safety Commission is a federal that The Consumer Product relating investigates, analyzes, information to the cause and disseminates death, products injury, in the prevention and illness associated with consumer of (1991). § 15 USC 2054 United States.
3 Constitution, part: I, Oregon provides in Article section imposed. required, fines Cruel and not be nor excessive "Excessive bail shall inflicted, propor penalties be punishments but all shall unusual shall not be tioned to the offense.” 4 pro the United States Amendment to the Constitution of The Fourteenth part: vides in any abridge privileges or which shall make or enforce law “No State shall States; any deprive any State nor shall
immunities of citizens of the United life, process law[.]” liberty, property, due person without limited and relevant for the was used that evidence because purpose allegedly knowledge showing defendants’ Oberg Motor dangerous v. Honda of ATVs. characteristics (1991). Court of App 47-48, P2d 517 Co., Or denying did not err in Appeals trial court that the also held the basis of discov- new trial on for a motion defendants’ plaintiffs eyewitnesses accident, because ery newof newly discovered find that entitled to was trial court changed at Id. probably the verdict. not have would evidence damages, respect punitive the court held With 55-56. rights I, Article under defendants’ not violate the award did provi- Oregon Constitution, because 16, of the section sion “does private parties.” apply in civil actions between punitive Finally, held that the award the court Id. at 49-50. *6 rights damages the Due under did not violate defendants’ to the Consti- the Amendment Clause of Fourteenth Process the at 50-55. We affirm the United States. Id. tution of Appeals. of decision of the Court OF CPSC DOCUMENTS
ADMISSIBILITY argue erred in that the trial court Defendants first jury excerpts allowing plaintiff nine from CPSC to read to the internal included seven CPSC documents. documents safety of ATVs; on the of a CPSC notice staff memoranda rulemaking request proposed and data for comments press safety relating release ATVs; and a CPSC injuries. concerning ATV-related accidents A. Relevance hearing
During in limine defendants’ motion on plaintiff generated CPSC, exclude documents disputed argued show that material was relevant to that the dangerousness alleged had “notice” of the defendants therefore, to two was, relevant and that the material ATVs injury foreseeability plaintiffs and defendants’ issues: damages. bearing punitive to the notice as reaction provides: OEC
“ having any ten- evidence ‘Relevant evidence’ means consequence is of any fact that to make the existence dency less or probable of the action more to the determination the evidence.” than it would be without probable provides: OEC 402 admissible,
“All relevant evidence is except as otherwise provided by Oregon Code, Evidence by the Constitutions of the United Oregon, by Oregon States and statutory and decisional law. Evidence which is not relevant is not admissible.” challenge authenticity
Defendants do not they stipulated they documents, CPSC had received plaintiff each approximately excerpts, documents from which read at publication. the time of its Defendants do not argue knowledge potential instability that their ofATVs’ was they argue irrelevant Rather, to the issues at trial. that the disputed other ATVs and the other accidents described in the documents were so unlike this ATV and this accident that knowledge give of the documents did not defendants notice of anything relevant.
First, defendants contend that the ATVs that were subject “substantially of the CPSC documents were not ’ allegedly injury similar’ to the Honda ATVthat caused the unpersuaded. this case. We are The CPSC documents dealt with ATVs as a class of vehicles. As one of the documents design. stated, vehicles of that class are of similar The trial subject court was entitled to find that the ATVs that were the sufficiently of the CPSC documents were similar to the ATV injury provide that caused this case to notice to defen- danger persons plaintiffs position. dants of
Second, defendants contend that the accidents that *7 were referred to or described in the CPSC documents were “substantially plain- similar” to the accident that caused injury Again, disagree tiffs here. we with defendants’ conten- excerpts reports tion. One of the instability at issue concerned of the reports of ATVs as a class. Another concerned showing “pattern specifically of loss of control” associated by excerpts with ATVs manufactured Honda. Three con- reported cerned in incidents which ATVs overturned back- specifically
ward, and three others more concerned incidents climbing in which ATVs overturned backward while hills. As excerpt similarity configu- noted, the ninth concerned the in among ration all brands of ATVs. The trial court was entitled prior to find that the occurrences that were described in those sufficiently at issue excerpts the accident similar to were relevant. those occurrences make this case to excerpts summary, the CPSC docu- from In by at relevant to issues court, were the trial ments, admitted holding. not err so court did The trial trial. Hearsay
B. argument if even that, consider defendants’ We next to the excerpts were relevant documents the CPSC from dangerousness of had notice defendants whether issue the they excerpts product, inadmissible because were those 801(3) provides: hearsay. OEC were “ statement, than one made other ‘Hearsay’ is a hearing, offered the trial or testifying at declarant while matter asserted.” the truth of the prove to evidence hearsay objections taken, were not well Defendants’ excerpts were not CPSC documents from the because the prove therein. matters asserted the truth of the to offered Rather, proper excerpts for the limited were offered those knowledge showing purpose had of that defendants Oregon Kirkpatrick, dangerousness potential of ATVs. See (2d 1989) (“[m]any state- out-of-court ed Evidence 484-85 being they are not because be received evidence ments asserted,” but for some the matter offered for the truth of showing including purpose purpose, that the other knowledge recipient the matter had of the statement therein). asserted the docu- trial court admitted
It is clear that the plaintiff purpose offered for which the limited ments for them. The court just following gave before instruction jury: excerpts were read to of CPSC documents counsel to “Jurors, going permit plaintiffs I am now of the federal from documents excerpts some you read counsel plaintiffs that I will allow agency. The documents establishing for the purpose are not admitted you read to in those documents. contained the truth of the statements statements you should not assume That means are true. in those documents limited purpose for the documents are admitted
“These gave these documents alleged that notice. Plaintiff has *8 defendants notice before the date of [plaintiffs] accident that the [ATVs] could overturn.
“I will suggest you to that these documents constitute adequate notice. The adequacy of the notice is an issue for you to decide. The statements contained in these documents, the ones that will be you, read to may may or not be true. But we are not going to resolve their truth in this courtroom. In words, they other coming in for a limited purpose on the basis that plaintiff alleged has that [Defendants] had notice, and this is the evidence that’s you submitted to you will make that ultimate determination.” After plaintiffs counsel read the excerpts, the trial court told the jury:
“Jurors, again, I want to review you with the limitation that the Court placed has on this First, information. I want to remind you you that should not assume that these state- ments are true. The plaintiff claims that the excerpts that lawyer just you read gave [defendants] notice before plaintiffs accident that overturn, [ATVs]could and I’m not suggesting you that just the excerpts read to you consti- tute adequate notice. That will you be an issue that will have to decide.”
The CPSC documents were not excludable as hearsay.
C. Prejudice
Defendants that the argued probative value of each of the CPSC documents was substantially its outweighed by Pinnell, State v. prejudicial In effect. 98, 112, 311 Or 806 P2d 110 (1991), this court explained: 403,
“Under OEC relevant evidence is long admissible so as its probative value is not ‘substantially outweighed by the danger of unfair prejudice, issues, confusion of the or mis- leading the or jury, by considerations delay of undue presentation needless of cumulative evidence.’ “OEC like its federal counterpart, FRE “ ‘requires judge the trial go through a conscious process balancing against costs of evidence its benefits. judge Unless the concludes that the probative worth of the evidence is “substantially outweighed” by one factors, or more of the countervailing there is no ” exclude; discretion to the evidence must be admitted.’ Practice Graham, 22 Federal Wright & (Quoting 263-64.) Procedure trial this case demonstrates The record is required. conscious process through court went costs evidentiary considered carefully The court *9 the that and concluded CPSC documents of the benefits substantially was not documents of those value probative The record unfair prejudice. the danger outweighed by that conclusion. to draw trial court a reasonable permitted trial court conclusion, the that drawn Having permissibly was There evidence. disputed to admit the then was required error. no
D. Conclusion documents were from the CPSC
The excerpts' The trial hearsay. were not relevant, and authentic, were them. admitting not err court did EVIDENCE NEWLY DISCOVERED that the argument next consider defendants’ We to motion, pursuant made their denying trial court erred 64B(4)5 based on 71B(l)(b),6 for a new trial and ORCP ORCP the trial, part of two eyewitnesses the after discovery, were a The witnesses injury. rise to plaintiffs incident giving the time of old at years who was seven man and his daughter, testimony that the Defendants assert accident. plaintiffs testimony have disputed would those witnesses — two plaintiffs to the accident eyewitnesses only other 64B(4) provides: ORCP granted in an action may a new trial judgment be set aside and “A former any party aggrieved by jury for the motion of the has been a trial on where there party: rights materially affecting of such following the substantial causes of the “(4) making applica- evidence, party Newly material discovered diligence and have discovered tion, party could not with reasonable which such produced at trial.” 71B(l)(b) provides: ORCP party just, the court relieve upon as are such terms “On motion * * * following reasons: judgment for the legal representative from a party’s such (b) diligence have been could not newly which due evidence discovered 64F[, requiring that Rule move for a new trial under in time to discovered judgment days entry of the within 10 after new trial be filed motion for a sought aside].” be set — regard plaintiffs brothers at location the time he began the maneuver that culminated in his accident and in regard speed position during to his and his on the ATV argue that, Defendants maneuver. because witnesses provided “important would have with new evidence” many they basic facts of the accident because were the only probable incident, unbiased witnesses to the it was testimony changed their would have the outcome of the trial. responds eyewitnesses that,
Plaintiff because the did only plaintiff not see up turn over, the ATV but saw as he started again injured, testimony the hill and after had he been eyewitnesses “provided insight no new into the nature plaintiffs accident.” previously court This has not considered what fac weigh ruling tors a trial should court on a motion for a new 64B(4), discovery trial, under ORCP based on the of new 64B(4) materially is, however, evidence. ORCP identical to 5-802(4) 17.610(4). OCLA ORS In review former former ing the denial of motions made under statutes, those this consistently applications court stated for a new trial *10 newly based on discovered evidence are not favored and that grant the denial of or such motions is within the sound Skoog trial discretion ofthe court. v. 260 Minkoff, 148, See Or (1971) (stating principle); 150-51, P2d 1364 488 that Larson (1959) v. Co., 25, Heintz Const. 219 P2d 72, Or 345 835 (same); Exley Express, Newbern v. 622, Produce 208 Or (1956) (same); 630-33, 231 Davis, 303 P2d State v. Or (1951) (same). supra, 575, 579, 235 Davis, P2d 761 In State v. 579, 192 Or at this court also stated: “Newly justify discovered evidence which will court new trial the granting following requirements: must meet “ ‘(1) It will probably change must be such as (2) a new trial granted; result if it must have been (3) as, trial; discovered since the it must with due be such trial; diligence, could not have discovered before the been (4) (5) issue; it must be must not be material it (6) cumulative; merely impeaching it must not be merely 5-802, contradicting § evidence.’ O.C.L.A.” of former (Citation omitted.) there trial court in this case found that was no diligence lack in their efforts to locate the defendants 64B(4) (stating prereq- trial. See ORCP before witnesses newly granting discovered trial reason of a new for uisite for law). (same supra evidence); Davis, under former v. State newly reviewing wit- discovered from affidavits After expected pertaining to their information other nesses and newly testimony, “the trial found that however, the court changed probably have would not evidence discovered the trial. result” of first, not err in that, the trial court did
We conclude newly applying discovered evidence. See that standard to (new specified granted “causes be trial ORCP 64B aggrieved affecting rights” materially the substantial (under stating party); supra Davis, law, former test v. State result). having change probable reviewed the evi Second, did its the trial court not abuse dence, we conclude that denying the Court of note,We as did the motion. discretion length Appeals, the accident and time between (four age years), daughter’s young witnesses’ statements from which the accident, plaintiff, at the time of the the distance witness observed the fact that neither witnesses actually fact that the father said accident, saw the testimony. disagree plaintiffs he did not with Those newly probably suggest evidence factors that the discovered changed have of the trial. would not the result denying err in defendants’ The trial court did not discovery new a new trial on the basis of the motion for witnesses. AWARD OF THE
CONSTITUTIONALITY DAMAGES OF PUNITIVE argu- next turn defendants’ constitutional We ments. We first consider defendants’ state constitutional Kennedy, P2d 1316 v. 295 Or claim. See State (1983) (court claims before state constitutional considers *11 ones). federal I, A. Article section 16 punitive argue dam- that the award of
Defendants ages rights I, section under Article this case violated their Oregon supra, to be 16, Constitution, 3, out in note set penalties “propor- from free tioned “excessive fines” and from previously to the This offense.” court has not consid- application provision ered of that constitutional to a civil punitive damages. award of begin by examining
We the text and context provision. Priest Pearce, 411, See v. 314 Or 415-19, 840 P2d (1992) (setting construing provi- out method of another Constitution). Oregon sion of The first I, sentence of Article may 16, section refers to what be done before and after conviction I, of a crime. Article 16, section limits the amount may required; proceed- of bail that be bail relates to criminal ings. (providing I, See Article section 14 that offenses other bailable). than murder and shall treason be The first sentence specifies I, 16, section further that “excessive fines” Article imposed. not be That limitation follows the reference to precedes only relating bail and two sentences to criminal Oregon at Moreover, cases. the time that Constitution (as now), commonly was drafted a “fine” referred a crimi- to penalty. Dictionary, nal 1, Burrill’s Law See Part at 491 (1850) (“Fine” payment money “[a] imposed upon means party punishment [sic].” aas an for offence “To fine” means impose pecuniary punishment; “[t]o adjudge order, to pay money sentence that an offender a certain sum of as a [sic].”). punishment for his offence I, second sentence of Article 16, section uses two “punishments” to terms refer crimes: and “offense.” appear preceding provi- Those terms in the two constitutional they clearly only sions, where refer Article I, crimes. 14, [sic], section relates to for criminal bail “offences” “punishment” I, 15, Article section uses the word refer punishment Wagner, 115, 212, crime. See State v. 305 Or (1988) (Linde, dissenting) (“principles 752 P2d J., penal humane laws” I, are “enshrined” in Article 15, section added)). (emphasis I, and Article section 16 specifies
The final I, sentence Article section applies “[i]n that it all criminal cases whatever.” That sen- only tence mentions civil cases as a benchmark, further suggesting apply section does not itself to civil cases.
Reading I, Article section as a and in whole, applies only context, we conclude that it to criminal cases.
275 disprove History not what the text demon- does equivalent I, 16 was strates. Article section modeled after the provision Carey, Oregon the The of Indiana Constitution. Proceedings and Debates the Constitu- Constitution of (1926). 1857, at We 468 have found no tional Convention of antedating Oregon’s court or other source Indiana adoption decision might provision, the Indiana which inform us as of to of our constitution understood. See what the framers (so stating). supra, Pearce, 314 Or 418-19 v. at Priest Oregon 16, I,
We hold that Article section of the apply punitive dam- Constitution, civil awards of does ages. damages punitive in this case, therefore, award of I, violate Article section 16. does not Due B. Process appeal
Finally,
argued
that,
defendants
on
because
punitive damages
product
the
in this case was the
of
award of
by
jury and
an
of standardless discretion
the
was
exercise
“disproportionate,”
it
the Due Pro
“excessive”
violated
Constitu
cess
of the Fourteenth Amendment to the
Clause
supra.
States,
4,
Mut.
tion ofthe United
set out at note
Pacific
Haslip,
L Ed
1,
S Ct 1032, 113
v.
In approving that, contends procedure awarding punitive damages Alabama’s Haslip, supra, Mut. Ins. Co. v. the United States Pacific Life Supreme Court did not establish standards for such awards beyond general requirements of “reasonableness” and of “adequate guidance” jury by to the the trial court. Plaintiff punitive damages also contends that the award of in this case met those standards. significance
Because of its to our here, decision we *13 begin by examining in detail the decision of the United States Supreme Haslip, supra.8 Court in Mut. Ins. Co.v. Pacific Life policies case, In that the health insurance of four insureds lapsed agent misappropriated after an of the insurer their premium payments. brought The insureds an action for fraud against jury the insurer. The trial court instructed the that, if liability punitive damages it found fraud, it could award plaintiffs. jury punitive damages;
The awarded the trial court approved Supreme award, and the Alabama Court appeal. sought affirmed it on The insurer certiorari in the Supreme ground United States Court, on the that the award punitive damages product was the of unbridled discre- rights tion and that it therefore violated the insurer’s under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States. considering
In
that assertion,
the United States
Supreme
“[pjunitive damages
long
Court noted that
have
’’
part
been a
oftraditional state tort law,
Mut.
Ins.
Pacific
Life
Haslip, supra,
Co. v.
“Under
the traditional
common-law approach,
punitive
amount of the
determined
initially
award is
by jury a
31, 1993,
Supreme
On March
argument
the United States
Court heard oral
Resources,
Corp.
granted_US_,
TXO Production
594,
v. Alliance
cert
113 S Ct
(1992) (case
below,
870),
Id. at 1042. where the even damages of punitive awards had approved * * * any very not controlled [was] of the jury “discretion fixing no statute “there was where rules” and definite no damages, measuring no rule for maximum penalty, Ibid. hearing.” mere fact however, that cautioned, Court ’ did long’ for so recognized “have been damages
that punitive unconstitutional.” is never that “their imposition not mean ” wild,’ ‘run damages about “punitive concern Expressing whether that it must “determine concluded the Court award in damages renders the punitive Due Process Clause Id. at 1043. constitutionally unacceptable.” this case as follows: analysis proceeded The Court’s — or juiy that unlimited discretion concede “One must — fixing matter for that judicial unlimited discretion jar one’s invite extreme results damages may punitive not, we need and indeed We sensibilities. constitutional line between the consti- cannot, bright draw a mathematical constitutionally unacceptable and the tutionally acceptable however, general say, can every fit case. We that would *14 the guidance from adequate and reasonableness concerns of into the jury enter properly tried to a when the case is court constitutional * * * calculus. “ [given] instructions the carefully have reviewed 1. We these By in this case].[9] Alabama court [by the the jury respect in stated: instructions The trial court’s compensa- perpetrated “Now, you then in addition find that fraud was if discretion, say discretion, I your when I use the word tory damages you may, to, you law fraud, the you have but you find wouldn’t have to even don’t damages. money punitive known as says you may of award an amount compen- money plaintiff but it is not to the of is awarded “This amount * * * injury. punish any the defendant. plaintiff It is to the for sate damages exemplary is to allow “Now, awarding punitive purpose or the of * ** by way punishment the defendant recovery plaintiffs, of money of to the instructions, the trial court expressly described for jury the * * * the purpose punitive damages. of sure, gave
“To be the jury significant instructions the discretion its determination of punitive damages. But that discretion was not unlimited. It was confined to deterrence retribution, and policy the state sought concerns to be if damages awarded, advanced. And were to punitive be the jury ‘must take into consideration the character and the degree wrong by of the as shown the necessity evidence and of * ** preventing wrong.’ similar instructions, believe,
“These we reasonably accommo- [the dated interest in rational decisionmaking defendant’s] meaningful Alabama’s interest in individualized assess- * * * ment appropriate long of deterrence and retribution. As constraints, as the discretion is exercised within reasonable due is satisfied. process
“2. place, Supreme Before the trial this case took Court of Alabama had established post-trial procedures for scrutinizing awards. In punitive City Hammond v. Gads- den, (1986), 493 So 2d 1374 it stated that trial courts are ‘to interfering reflect in the record the reasons with jury verdict, so, refusing grounds or to do of excessiveness of damages.’ Among the factors deemed ‘appropriate for the trial court’s consideration’ of the defen- ‘culpability conduct,’ dant’s the ‘desirability discouraging others from conduct,’ similar ‘impact upon parties,’ ‘other factors, impact parties.’ such as the on innocent third meaningful Hammond and adequate test ensures review the trial whenever a has fixed the by punitive court damages. awards, review of the Alabama By punitive
“3.
its
jury’s
Court
an additional check on the
Supreme
provides
comparative
trial court’s discretion. It first undertakes a
it
analysis.
applies
It then
the detailed substantive standards
protecting
public by detering
purpose
[sic] the defendant
and for the added
Imposition
punitive damages
doing
wrong in
and others from
such
the future.
* * *
jury.
entirely discretionary
with the
amount, you
you
damages,
fixing
take
punitive
must
“Should
award
by
degree
wrong
as shown
into consideration the character and the
wrong.”
necessity
preventing
similar
evidence
law,
financial worth was not
required
Alabama
evidence of the defendant’s
As
Haslip,
jury.
279 damages. particu- In developed evaluating punitive has lar, that the award does ‘not it makes its review to ensure society’s goals that will of accomplish exceed an amount Hornsby, Oil Co. v. and deterrence.’ Green punishment (1989)[.] review makes certain that appellate So 2d 218 This in damages are reasonable their amount and punitive the what light purpose punish rational in oftheir has occurred and its repetition. to deter case, ruling in present
“Also before its the Alabama Court had elaborated and refined the Hammond Supreme whether a rea- determining punitive criteria for sonably award is related of deterrence and retribution. goals following It was that the could Hornsby, [supra]. announced determining be taken into consideration in whether the (a) award whether a inadequate: was excessive or there is damages reasonable between the relationship punitive harm likely award and the to result from defendant’s (b) occurred; actually conduct as well as the harm that the has conduct, degree of reprehensibility of the defendant’s conduct, awareness, any duration of that concealment, the defendant’s frequency past and the existence and similar (c) conduct; wrongful to the defendant of the profitability desirability removing profit conduct and the and (d) loss; having the defendant ‘financial also sustain (e) (f) defendant; litigation; ofthe all the costs of position’ imposition of criminal sanctions on the defendant for its conduct, mitigation; (g) these to be taken in and the existence against of other civil awards conduct, the defendant for the same mitigation. these also to be taken in standards, conclude, application “The of these we sufficiently meaningful imposes the definite constraint awarding punitive discretion of Alabama factfinders * * * damages. “* * * provide relationship The standards for a rational than determining particular greater whether a award is reasonably necessary punish They surely and deter. legislatively specific adopted [Ohio] as as those [Montana]. had the benefit of the full panoply
“[The insurer] Alabama’s procedural protections. adequately was hearing trial a post-verdict instructed. The that court conducted * * * with Court Supreme [The conformed Hammond. applied approved Alabama] Hammond standards all brought the verdict thereunder. It to bear the relevant in Hornsby. factors recited damages award this punitive
“We are aware that the
the amount of compensatory-
case is more than
times
damages,
out-of-pocket expenses
is more than 200 times
and,
course,
fine
is much in excess of the
plaintiff],
of [the
*16
Alabama
[under
be
for insurance fraud
imposed
that could
* * *
law],
and,
are wide
monetary comparisons
While the
line,
here did not lack
indeed, may be close to the
the award
consideration,
conclude,
We
after careful
objective criteria.
in
it does not cross the line into the area of
that
this case
Accordingly,
defendant’s]
impropriety.
[the
constitutional
is,
be,
rejected.”
challenge must
process
due
(footnotes omitted; some citations
Ill
at 1043-46
S Ct
omitted).
summary,
Supreme Court first identified the
In
safeguarded
required
in the
interests
to be
constitutional
damages:
punitive
the constitu
determination of an award
ensuring
fact has
in
that
the finder of
tional
interest
making
“adequate guidance”
an award and the
in
such
ensuring
in
that the amount of
constitutional
interest
resulting
Mut.
Ins. Co. v.
award
“reasonable.”
is
Life
Pacific
Haslip, supra,
then identified
Fashioning and Other Procedural and Substantive Due Process Toxic Tort Actions Involving Punitive Damages After Pacific Mutual Life Ins. Co. v. Haslip, (1992). 573, 587-88, Multiplicity L of awards is not an issue in this Envtl 606-07 case. the procedure to analysis an equivalent apply
We damages Oregon product awards of punitive determining whether that procedure, ascertain actions, to liability pro- from the Alabama respects in some differing although rights the due process safeguards also cedure, adequately the statute out by setting We begin in this state. defendants Ore- to be considered criteria the substantive establishing actions, liability product deciding, factfinders gon in setting damages of punitive to make awards whether provides: those awards. ORS 30.925 the amounts of “(1) action, damages liability punitive civil product In a clear and proven by unless it is not be recoverable shall against punitive whom party that the convincing evidence disregard for the has shown wanton damages sought health, and welfare of others. safety
“(2) trial, evidence of the defen- During the course of admitted unless and until shall not be ability pay dant’s right facie prima establishes a entitled recover party (1) of this section. under subsection recover *17 “(3) any, if shall be determined and damages, Punitive following criteria: upon awarded based “(a) that serious harm would The likelihood at the time misconduct; defendant’s arise from the “(b) of that the defendant’s awareness degree The likelihood;
“(c) misconduct; of the defendant’s profitability “(d) any and conceal- of the misconduct The duration it; ment of
“(e) upon of the defendant The attitude and conduct misconduct; discovery of
“(f) defendant; and of the The financial condition punishment of other deterrent effect “(g) The total misconduct, as a result of the on the defendant imposed to to, damage awards punitive limited including, but not and the sever- to the claimant’s in situations similar persons has been the defendant to which ity penalties of criminal subjected.” be addition, 41.315 provides: In ORS law, a
“(1) provided specifically as otherwise Except by clear be established damages shall punitive claim for convincing evidence.
282
“(2) punitive party in which a seeks In a civil action evidence of the financial condi- party, from another damages seeking until the party not be admissible tion of a shall party justify to to has evidence sufficient damages presented such damages.”11 punitive facie claim of prima the court More generally:
“
Oregon
punish
damages
‘Punitive
are allowed
deter that
willful,
wrongdoer
malicious
and to
wanton or
like conduct in
similarly
situated from
wrongdoer
others
Cambas,
257, 293
(1930);
Martin v.
P 601
134 Or
the future.
420,
Hospitals,
accord Noe v. Kaiser Foundation
248 Or
(1967).’
Crookham, 61,
Young
State ex rel
v.
Or
P2d 306
(1980).
a substi
damages
Punitive
‘are not
punish wrongdoers discourage wanton misconduct. and to defendants], plaintiff punitive damages against “In recover order plaintiff prove by convincing have] must clear and evidencethat defendants health, safety, disregard of others. shown wanton for the welfare ‡ ‡ defendants], you against you may punitive award “If decide this issue so, damages damages, although you required punitive are not to do because
discretionary. evidence, discretion, any, you if “In of that shall consider the exercise following: *18 “First, ATV]that serious harm [of the likelihood at the time of the sale the from defendants’ misconduct. would arise two, degree of that likelihood.
“Number the of the defendants’ awareness three, the duration of the misconduct. “Number four, upon defendants] notice of and conduct of the “Number the attitude alleged the vehicle. condition of defendants], five, of the financial condition the “Number damages may $5 of punitive not exceed sum “And the amount of million.” “ finder of fact must determine what punitive ‘[t]he any, if to award based on the damages, proper premise deterring by future similar misconduct the defendant or relevant, end, a number of be others. To this factors including public, the seriousness of the hazard to the wrongdoer learning attitude and conduct of the upon hazard, the number and position employees misconduct, causing covering in up involved cover-up, duration of the misconduct its the finan- and/or wrongdoer, prior potential cial condition of similarly from situated or other punishment plaintiffs sources.’ Crookham, Young supra,
“State ex rel
v.
In Alabama, as in the factfinder “culpability” must consider the of a defendant. ORS 30.925(1); Haslip, supra, “Objective” ill Ct at S S Ct at 1044. Haslip, supra, 111 criteria, see considered required Oregon product Alabama, and to be considered liability actions, include the likelihood of harm from a defen profitability conduct, dant’s the duration and of the conduct, the defendant’s it, awareness or concealment of the defen position, imposition financial dant’s and the of other sanc Oregon provides tions on the defendant.12 precaution; law also an extra plaintiff prove punitive must entitlement damages by convincing evidence, clear and than rather a mere 41.315(1). 30.925(1); preponderance. ORS ORS We conclude product liability Oregon, that, in actions in as in Alabama objective application cases, criteria ensures that suffi ciently meaningful imposed definite and constraints are resulting the finder fact and ensures that the award is not disproportionate to a conduct and defendant’s need to punish and deter. liability Oregon procedure product
Neither is the objective actions rendered unconstitutional the fact that Oregon statutory criteria are almost identical to the criteria established approvingly by Supreme Haslip. in the Ohio statute that is Ill noted Court in S Ohio, however, applied by at 1046. In the criteria are court after the Ct the trial — — factfinder whether a or the court determines that the defendant is liable for punitive damages. § Ohio Rev Code Ann 2307.80. *19 284 initial applied during
criteria
factfinder’s
determina-
tion of the amount of an award of
rather
punitive damages,
than
review of the award.
during post-verdict
appellate
We
interpret Haslip
do
to hold that an award of
punitive
with the
of the Due Pro-
damages,
comport
requirements
Clause,
be
to a form of
always
subject
post-verdict
cess
must
review that includes the
of remittitur.
possibility
or appellate
Procedural and
Due Pro-
See
Substantive
May, Fashioning
in Toxic and Other Tort Actions Involving
cess Arguments
Punitive
Pacific
Life Ins. Co. v. Haslip,
Damages After
Mutual
Haslip
22
L
that
leaves
that
597,
(stating
open
Envtl
601
Mosbacher,
Nat. Bank Little Rock v.
Union
933
question);
(8th
1991)
Haslip
Cir
1440,
(reviewing
F2d
1447-48
Court considered
and
that
stating
Supreme
decision
instructions,
scrutiny,
appel-
jury
post-trial
Alabama’s
factors” in
determining
late review to be “significant
Rather,
in
state’s
constitutionality
procedure).13
of that
Alabama pro-
determined
Haslip,
only
the Court
effect,
Due
and in its net
did not violate the
cedure, as a whole
Haslip,
Mutual
Ins. Co. v.
Process Clause. See
Life
Pacific
(Court’s task was to determine
supra,
We also note
after the
and the
courts are not
If there is
appellate
entirely powerless.
—
no
context,
evidence
decision
this
support
jury’s
no evidence that the statutory
for the award of
prerequisites
—
were met
then the trial
punitive
court or
damages
intervene to vacate the award. See ORCP
can
appellate courts
64B(5) (trial court
a new trial
if the evidence is
may grant
*20
Hill v.
law);
insufficient
the verdict or is
justify
against
(1977)
Garner,
641, 643,
277 Or
P2d
1016
(judgment
the verdict is to be
when
notwithstanding
granted
there is no
Brown,
v.
State
verdict);
599,
evidence to
the
support
306 Or
(1988) (a
604,
Those in ensure that procedural protections, liability an award of in a action punitive damages product bears a rational to a defendant’s conduct and to relationship the need the Fifth Circuit deterrence. As punishment Co., Eichenseer v. Reserve Ins. Court of noted Appeals Life (5th 1991): 934 F2d Cir Haslip, damages “Under an of does not punitive award meet constitutional of the case indicate that the award is reasonable. This condi- unless the circumstances requirements defendant], tion, is not a contrary [the to the assertion of punitive damages review of expansive appellate vehicle for * * * awards. “* * * reviewing constitutionality the of Accordingly, damages, may or punitive explicitly award of a court not an moreover, damages; it recalculate award of implicitly high may express opinion an whether award is too Rather, only low. the court consider whether too amount support of the case offer some for the circumstances probative are any the award. If there circumstances of award, award the amount then that support value prong of the due test process meets ‘reasonableness’ (Footnote omitted; in original.) Haslip.” emphasis The court added that: support
“the the constitu- procedural protection adequate damages varies the circum- tionality punitive award with * * * long meaningful procedural As as there some stances. impulsive assurance that the amount of the award is not an defendant, the award wrongful reaction to the conduct of due procedural protection aspect process survives analysis in Id. at Haslip.” 138.5. damages punitive that the
The court concluded that case award in the support “did record.” Id. at 1382. not lack See 1992) (9th Morgan Woessner, v. 975 F2d 641 n 8 Cir also (stating, in that the the context of the defendant’s claim punitive damages process, due that the trial award of violated — jury find to the that the must court’s instructions clear and
convincing
culpa
was
evidence that the defendant
relationship
between the award and
ble, must consider
*21
by
plaintiff,
deterrence
harm suffered
the
must consider
passion
an award
of
retribution,
and
must
make
out
prejudice,
defendant’s financial worth
and must consider the
—
court”);
Haslip
“appear to meet all the concerns of the
Super 533, 608 A2d
Chemical,
v.
257 NJ
Herman
Sunshine
(1992) (“[wjhether
punitive damages 978,
to award
983
fact”).14
is
of the trier of
their amount within
discretion
scope
relatively narrow
of
We
note that
also
Oregon
punitive damages
appellate
review of
awards
reviewing
appellate
similar to that
to federal
courts
available
14
Haslip,
damages,
punitive
which
award of
was
In
the Court stated
damages
compensatory
more
upheld,
than
was more than 4 times the amount of
plaintiff.
out-of-pocket expenses
at 1046. The
of the
Ill S Ct
times the amount of
200
damages
punitive
is about 5.4 times
proportions here are
The award of
here
similar.
compensatory damages
amount of out-of-
of
and about 258 times the
the amount
supra.
pocket
plaintiff.
See
expenses
note
awards of
made in
punitive damages
federal district courts
applying state law in cases involving diversity jurisdiction.
See Browning-Ferris
Inc.,
Industries v. Kelco Disposal,
(1989)
US
2909, 2922-23,
109 S Ct
“ law, ‘In at Suits common where controversy the value in dollars, twenty shall exceed right of trial jury shall be preserved, and by jury, no fact tried shall be otherwise reexamined in any States, Court of the United than accord- ” ing to the rules of common law.’ Id. at 99 and 99 n 1.
The court examined the United States Supreme Court’s approval Alabama system determining puni- tive damages:
“[Haslip’s] unusual approach of emphasizing post- verdict review to the extent of perhaps slighting a review pre-verdict process significant raises questions when courts, federal sitting diversity cases, are confronted with the proper application punitive damages. of state legit- The imizing constraints provided by the de quasi novo review process practiced under Alabama state law applied cannot be * ** by a federal district court. % %
u# # “The law of South permits Carolina to award deter, punitive damages to and vindicate punish, rights willful, the plaintiff whenever the conduct of the defendant is wanton or reckless. The plaintiff prove by must clear and convincing evidence the conduct included a ‘conscious- wrongdoing’ ness of at the time of the Punitive conduct. damages may awarded. only damages be awarded if actual to the penalty
“The amount of the is committed discre- jury. Supreme tion of the repeatedly Court of South Carolina has *22 applies awarding
announced that no formula damages their award and amount are punitive [that] judgment jury within the and discretion of the ‘peculiarly * * * * * Thus, is no appropriate *.’ there ratio between * * damages punitive damages Similarly, actual *. there bear requirement punitive damages any specified is no * * * Moreover, to the wealth of the defendant. relationship damages awards would be in the punitive apparently upheld any absence of evidence of the worth of the defendant. only by jury provided “The constraint on the award is by given the discretion to the trial court to review the award by appellate for excessiveness. The review the an abuse-of-discretion standard. The reverse a trial court’s refusal to set aside an award court is under
appellate court will only when ‘ shockingly manifestly the award is “so excessive as to that the was actuated by caprice, passion show” prejudice.’ * * *,
“When the verdict is returned a federal court no significantly greater is provided. restraint case, argument in this Court of Supreme “Since * * * South Carolina a more elaborate adopted post- [has] by trial review be conducted in the future state trial courts to * * * attempt process challenges. [T]he in an to avoid due * * court announced new factors to be considered *.” Id. at 99-100, by 106. The factors announced the South Carolina Court included the defendant’s Supreme degree conduct, the duration of the the defen- culpability, culpable it, dant’s awareness or concealment of the existence of similar conduct, the likelihood that the award would deter the past conduct, the determination defendant or others from similar likely whether the related to the harm reasonably award conduct, result from the the defendant’s ability pay, Id. at “other factors” deemed 106. appropriate. that the defendant
The Fourth Circuit concluded case before it was denied due diversity jurisdiction pro- uncon- cess, because the the award exercised the jury making discretion to it South Carolina law and strained permitted because the elaborated substantive newly post-verdict state’s the federal applied by appellate constraints could be that, remand, the federal district court. The court directed court those elaborated standards into “incorporate” newly Id. at 105-10. jury. its instructions result in later reached a similar The Fourth Circuit damages punitive made federal an award of its review of *23 Hugo’s Virginia law. Johnson v. Skate court under district (4th 1992). Virginia way, law, like South Cir 974 F2d 1408 provided on the discretion minimal constraints law, Carolina damages. punitive juries awards of in the determination of again that the concluded Id. at 1415. The Fourth Circuit post-verdict applied Virginia’s review in substantive criteria by applied process in federal court in state court must be factfinder. Id. at 1418. essentially protection provides the same
ORS 30.925 granted to the defendants to defendants as the Fourth Circuit In in Mattison and Johnson. contrast to on remand by allowed to factfinders South unconstrained discretion Virginia cases, in criteria estab- Carolina and law those objective, resulting by in lished ORS 30.925 are detailed and being constitutionally sufficient. The criteria need their also applied post-verdict appellate review, not be in but are — — permissibly by juries preferably applied even in the damages punitive initial determination of awards. liability product
The in action was this properly about the criteria to be instructed substantive applied considering punitive damages. There was evidence support Accordingly, punitive dam its determination. ages the Due Clause award this case did not violate Process of the Fourteenth Amendment to the Constitution United States. judg- Appeals decision of and the the Court
ment of the circuit court are affirmed. dissenting.
PETERSON, J., disagree majority points. I would I with the on two admitting the Consumer hold that the trial court erred Safety Second, I believe Product Commission documents. beyond process requires post-verdict that due review (which, essentially, majority is no which the post-verdict finds sufficient review). (CPSC) Safety Commission
The Consumer Product regulatory “independent created commission” is a federal by protecting regulate products, Congress consumer associated with risks of injury unreasonable against public evaluating consumers assisting consumer products, uni- developing consumer safety products, comparative and promoting for consumer products, standards safety form into the causes and prevention investigation research and 2051, 2053 §§ 15 USC and illnesses. injuries product-related (1991). safety received product shows that CPSC The record system. Concerning reporting under a “NEISS” reports one witness testified: system, NEISS CPSC and the * * * is the function “Q. COUNSEL] What DEFENSE [BY Safety Products Commission? the Consumer ‘ charged by the Consumer Prod- agency ‘A. It’s the federal safety products of consumer Safety Act to monitor ucts provide con- safety data on comparative with consumers legislation actions as the and to take such products, sumer function. its perform dictates to System, and there’s “Q. the NEISS Data You mentioned *24 first, My in trial. question that earlier this been reference to System, of the NEISS sir, us an you give explanation is could * * means *. acronym what that including * * * Injury S, Electronic Surveillance EIS National “A. N system. an electronics surveillance truly and it is System, pays an Safety Commission Products “The Consumer a half currently about one and it’s individual to work nation, in the emergency rooms hospital all the percent of to be percent, and a half carefully a selected one and this is statistically representative of emer- population the entire * * * individuals hospitals, And in these gency rooms. to the patients admitted information from paid acquire to injury was related whether or not their emergency room on to be just got has relationship And the product. to a consumer relation, is, you if were that some sort of association you and fell off the change light a bulb standing on a chair to and light bulb related chair, likely be coded as that would bulb, because related, got light to the you even if never chair get light to the bulb. you trying were to lines, on aroller skate you stepped if along “And the same stair, that you would be coded ultimately fell down a and codes, and roller related to stairs get product two would range. imagine can skates, you the line. As or so on down roller category, that is by product And the data is collected bulbs, Light category. are a category, steps are a stair skates category opposed light incandescent are a as to bulbs fluores- cent, down the line. so on categories
“And there are 850 that are monitored. And coder collectsthat information and transmits daily CPSC electronically to the Consumer Products that information in Washington. why Commission That’s it’s the Safety National Electronic
Injury System. Surveillance The func- system daily entry tion of that hope and the reason it is a is it is the of the if design system for instance a —there was a sudden importation toys sudden Third World had from some tainted,
country say toy that had stuffed fur, poisonous hope system begin it wouldbe the unanticipated poisonings to catch a sudden rise associ- toys emergency ated with stuffed or child admissions to —cause it wouldn’t be stuff monthly rooms and would this emergency that the rooms would treat all month patients paper go Washington. and then next month the would they’d you “The next month look at the would paper toys you figured out there be three months into these was a ically daily before problem. By transmitting that information electron- they
to the would to see headquarters, hope CPSC categories, if it and take blip happened one of their 850 action.
<<$ * * [*]
“Q. in any way attempt explain Does the NEISS data why? how accidents occurred or just basically you I mean what I’ve described to
“A. No. you put report. about all the information can in a Even words, In don’t type you itself is not described. other product get description through something, you get code Bicycle, product of a Schwinn bicycles, digit it will be a four code for two-wheel.[1] testimony summary system described This is similar to the NEISS *25 Utility O’Connor, the U.S. Heiden, Pittaway, Edward Alan R. and Rosalind S. J. of Injury System Safety a Product Data as Basis Consumer Product Commission’s for (1982): Assessment,
Hazard Liab 295 and 295 n 1 5 J Prod (CPSC) jurisdiction Safety has “The U.S. Consumer Product Commission recall, ban, 10,000 regulate products, power approximately with the over characteristics, safety safety provide product The basis for all information. or accuracy, system safety precision, and health and data. The CPSC action is its of consumers, CPSC, and the reliability data are a critical issue for of these CPSC-regulated community dealing liability for with considerations business products. Injury principal National Electronic actions is the “One of the bases for CPSC’s (NEISS), system product-associated System reporting based on Surveillance a layer of data another level or “Q. McCarthy, is there Dr. by the CPSC? utilized collection several. “A. There are layer? next
“Q. What’s the it the term for will what’s called there be Occasionally “A. And most of Investigation, IDI. IDI, In-Depth an an is In-Depth time an I mean it’s called call. phone that’s a call. that’s a overwhelmingly phone but Investigation, what kinds greater in little detail describe “Q. you Would IDI process in the how it’s collected data and of can occur, Investigation Well, In-Depth an IDIs can “A. number of any and take of reasons number any occur for injury an and will be forms, they of the time but most for some reason interesting, or something will look IDIs, and one flagged that month for category will be product to the residence call follow-up phone will make a you because when hospital, at the who was treated individual coder when the NEISS hospital, especially to a get admitted number, they can right? So there, they’ve got your phone indeed Now, requirement, real there’s no your call home. In-Depth of these or a third quarter for a it’s not uncommon does to a witness. Someone even to talk Investigations not about the they to them And talk phone. answer the have to not be a accident, may may they injury, nature of knows; if if someone witness, just generally happened, what approximately sample emergency within rooms injuries in a national of that occur all the total of estimates of seventy-five hospitals. is used as abasis to obtain NEISS majority great of consumer medically injuries with the associated national attended (1) methodological elements: consist of three products. The national estimates injury, data, from product(s) with that recording injury associated terms (2) upward (ERVs); sample to an projection of data emergency sample room visits visits; injury emergency product-related room of all the total universe estimate for (2) (3) injuries a total for all emergency from to room projection total national injuries. medically attended “1- teletype reported either products via Injuries with consumer associated computer on a personnel a central hospital personnel or contractor in-house — — Each general product codes. daily usually for several hundred frequent basis involved, injury provides informa lype product, injury report indicates — involved, sex, body part injury diagnosis, injury age, and the tion about the victim released, was treatment, treated and locale, the victim was whether date of these cases emergency A subset of room. on arrival at the hospitalized, or was dead special interest investigation products of in-depth follow-up for is selected staff or Commissioners.” CPSC *26 them, talk to that be it. Most of they don’t know or won’t call, that’s the end of the phone the time that is it. After investigation.” ATVs, statistics included information about all
The NEISS or the accident of who the manufacturer was how irrespective happened. case-in-chief,
At the end of of nine plaintiffs copies evidence, objec- CPSC documents were received over the tions of defendants. of the exhibits are set forth Copies The exhibits include three kinds of information: Appendix. Interoffice memoranda 1. information containing ATV about accidents to CPSC. reported Interoffice 2. memoranda containing opinions CPSC or personnel concerning safety design ATVs.
3. CPSC notices concerning ATVs. The holds that all the documents majority were relevant admissible. I disagree. 801(3)
OEC provides: “ ‘Hearsay’ statement, is other than one made declarant while testifying hearing, at the trial or offered in evidence prove to the truth of the matter asserted.” Plaintiff that asserts these exhibits were “offered to prove notice to Defendants of not contents, for the truth [their] asserted, the matter and therefore not hearsay.” [were] — 20, 23, 25, 28, 31, Plaintiff read the nine exhibits Exhibits — 37,120,121, and 122 to the Before the exhibits were jury. read to the the trial told the jury, judge jury:
“Jurors, going permit I am now to counsel to plaintiffs you excerpts read to from some documents of the federal agency. The documents that I will allow counsel to plaintiffs you establishing read are admitted purpose not for the the truth of the statements contained in those documents. you That should the statements means not assume that in those documents are true. are for limited purpose
“These documents admitted alleged gave of notice. Plaintiff has that these documents Oberg’s acci- [sic] defendants notice before the date of dent that the ATVs could overturn. suggest you will these documents constitute
“I not an issue adequate adequacy notice. The of the notice is documents, to decide. The statements contained these you you, may may will be read to not be true. But the ones that In going to resolve their truth this courtroom. we are words, they coming purpose in for a limited other notice, alleged has that Honda had plaintiff basis that the you will you and this the evidence that’s submitted make that ultimate determination.” on the “other accidents” trial decision judge’s *27 days was made after discussions between trial evidence of On after lawyers subject. April on the judge counsel, trial discussion between the judge an extensive the court stated:
“Now, a I going to have to have subdivision because we’re controversy on the word recognize going that there is to be ‘stability,’ so is that a document will the first criterion before Court, to with lack by the it has deal of be considered stability. insta- “Then that will be divided into two components, —what call that?
bility, you which relates to rearward do Rearward turnover. “[DEFENDANTS’ LAWYER]: Flips, Honor. “[PLAINTIFF’S LAWYER]: Your — reasonably to the “THE COURT: which is similar similarity of the other test our accident. And then normal of those things saying are the Plaintiff is criteria which instability general. with in report this deals going team that to signaling you “I’m the Plaintiffs general instability me that will difficulty convincing have you every I’ll look at document adequate, certainly be but me to at.” want look memoranda, internal of the nine exhibits are office one
Seven 122) (Exhibit 37) (Exhibit release, and one press is a CPSC in the Federal of rulemaking published a notice proposed Register. the admis- concerning
There are two issues actually One concerns the admis- CPSC documents. sibility evidentiary rule documents in sibility light CPSC The second limits evidence of other accidents. issue public contained in a admissibility of opinions concerns agency’s the evidence of other I discuss records. first accidents. applicable agree parties appear as to the rule
Both
Reed
v. Gibbons and
Rader
of other accidents.
to evidence
(1972),
as
states the rule
some circumstances admis- negligence is not accidents or acts prior evidence is, evidence negligence. a act of Such prove specific sible to however, continuing a prove the existence of admissible conduct, and that continuing negligent a course of defect or dangerous, or course of conduct is fact the condition dangerous had notice of its character. that the defendant is, however, admissibility purposes such evidence these have prior to the that the accidents must subject requirement and circumstances.” occurred under similar conditions omitted.) added; citations (Emphasis long court, cases, that, in a line of has held in a This negligence prior case, admissible evidence of accidents is not prove specific negligence.” “to act of Such evidence be among admissible, however, of, as notice a defendant other things, dangerous plaintiffs In Rader, condition. dece- dent killed *28 was when the windshield the car which the riding by falling policeman decedent was was struck a rock. A regularly previous patrolled that, who the area testified on large occasions, trucks carried rock on the haul road. There was evidence that that had shows rocks fallen onto highway the haul road, from and that the defendant was upheld ruling admitting aware of evidence, this. court saying objected that “the evidence to tended to dangerous show both the existence of a defendant had notice of the and that condition
dangers.
question
The real
is
sufficiently
whether
the circumstances were
similar
each
instance.”
Rader is a code and the Ore- gon relevancy Evidence Code does not itself touch on this ** * ‘similarity’ “[t]he issue. Plaintiff states that issue is no ’ question more than a ofrelevance’ and that the rule stated applied. agree. Rader is the rule to be I
296 very in the exhibits is accident” evidence
The “other different many types are made to References general.2 companies. manufactured other and to machines accidents other accidents concerning in this record is no evidence There in which the the manner concerning detail any that provides admis has upheld When this court accidents occurred. accidents, the record contained evidence of other sion of in which those other accidents the manner evidence of Co., Reed supra, v. Gibbons and 261 Or occurred. See Rader on earlier occa falling rocks (testimony concerning at 361 occurred held admis where accident very highway sions on that the movement prove it “tends sible because like of accidents created a danger on the haul road equipment v. Polk Or Clary County, that suffered by [plaintiff]”); (1962) (evidence acci showing prior 152, P2d 524 that the condition evidence the same “is some place dents at Co., & 7, 62 v. Williams 155 Or Saunders was dangerous”); (1936) (evidence had oil slipped that witness P2d 260 held occasions prior defendant’s store on two the floor of the condition). This a defect or continuing admissible to show accidents whether the other in order to determine necessary circumstances. conditions and occurred under similar is replete the evidence received Unquestionably, from ATVs. But aside information about with prejudicial ATV acci a lot of there were general some comments no backward, specific there was over involving tipping dents “must have occurred accident evidence of even one Rader v. Gib and circumstances.” conditions under similar Co., at 359. The documents supra, and Reed 261 Or bons had a have accidents received show that the reported or of control” causes, such as “loss of different number terrain feature. ditch, or other hitting bump, involving product courts In from other the decisions offered, was other accidents where evidence of claims that the evidence requirement to the courts have adhered detailed, than is the more more specific, the other accidents be concerning was received other accidents The information that CPSC obtained hearsay” “hearsay hearsay” within reports hospitals. “double from All of the accident, care-giver care-giver person about that some told the sense *29 discussion, stated, concern purposes of this reported for otherwise to CPSC. Unless hearsay subject accidents,” to a valid evidence is not ing I that the “other assume objection.
297 recently Appeals con- Court The Tenth Circuit here. case Kloepfer very Motor us. v.Honda here before the issue sidered (10th 1990), out of a arose 1452 Cir Co., F2d Ltd., 898 ATV Honda a three-wheeled accident of overturn rearward ATVwas defective steep that the involved claims hill and on a warnings. design case, however, Unlike this its study of CPSC evidence of the excluded federal district court noting Appeals affirmed, Circuit Court of ATVs. The Tenth ‘ proffered reports limited to three-wheeled were not that ‘the investigation this accident an into not relate to vehicles, did accidents, herein, but rather involved the Honda model to injuries involving manufac- vehicles all-terrain and statistics twenty The Id. at 1458. court manufacturers.” tured over possibility that there was “a real also observed give evidence.” Ibid. deference to such would undue reports CPSC-generated courts have excluded
Other hearsay. example, in McKinnon v. Skil For as inadmissible (1st 1981), Corp., consid- Cir court 270, F2d 278-80 concerning admissibility reports CPSC of several ered circular saw plaintiff guards. case, the claimed Like this prior reports gave accidents, “notice” of the defendant CPSC credibility of one defect, and undermined established Appeals Circuit Court of The First defendant’s witnesses. multiple reports proffered contained that the CPSC noted they properly hearsay were excluded. and held that levels of Bottling Similarly, Co., in Henkel v. R S (Iowa 1981), Supreme held Iowa Court 185, 192-93 NW2d properly of a CPSC excluded evidence that the trial court plain analysis” plaintiffs Exhibit 28. “hazard similar to Analysis report titled “Hazard a CPSC tiff contended that under Drink was admissible Soft Bottles” Carbonated hearsay exception public The court con rule. records report indicia oftrustworthi lacked the cluded that the CPSC report admissibility necessary would and that ness have misled the jury. Prashker v. Beech Accord: Aircraft (3d 1958) (trial court Corporation, Cir 602, 258 F2d 608-09 involving Bonanza accidents admit 38 of 45 other refused to responsible on such evidence hold the aircraft aircraft. “To fallibility utterly disregard human the factor of would be inevitably would circumstances to occur such known App unjustified.”); Amerco, Ill patently Inc., 87 v. Johnson be (1980) (The 299, 42 Ill 409 NE2d 315-16 3d Dec *30 1,000 to introduce acci attempted reports prior plaintiff overturning. complex dents U-Haul trailers “The involving the issue of whether a trailer bearing upon of factors ity under a certain set of conditions unreasonably dangerous sketchy made it to ascertain from the information impossible was in the which of the occurrences provided reports prior addition, to the Johnson accident. In sufficiently comparable * * * commonly an examination of individual reveals reports essential factors either silence or dissimilarity concerning loaded, the size and nature of the such as how the trailer was factors.”). hitch, as well as other vehicle, tow the type and states: Exhibit 31 refers to other accidents cases, seen in reviewing problems “After two main majority ATV seem to continue to be accidents — 1) turnover, instability flipover, as documented in rollover 2) rut, etc., hitting difficulty a uphill bumps, or when — when- controlling design the 3 wheel as seen rollover surface, and or a quickly hilly to turn on flat or attempting These have paved gravel patterns repeatedly or surface. deaths, alcohol, riding occurred in accidents and whether not, ages double were or and for all speeding present or Also, time ATV although some victims were first drivers. users, were experience, experienced half had ATV also motorcycles with or minibikes.” The
It to receive of Exhibit 31. any was error part contain no to the accidents referred to therein references the same accident. For concerning any specific information in Exhibits reasons, the evidence of other accidents contained Neither exhibit 20 and 21 should not have been received. that accidents be meets the relevance the other requirement substantially similar. concludes: majority
“Second, the accidents that defendants contend were in the CPSC documents were referred to described plain- to the accident that caused ‘substantially not similar’ con- Again, disagree here. we with defendants’ injury tiffs of the reports at issue concerned excerpts tention. One reports as a class. Another concerned instability of ATVs associated. showing specifically of loss of control’ ‘pattern con- excerpts Three by Honda. ATVs manufactured with back- ATVs overturned in which incidents reported cerned incidents specifically concerned ward, others more and three climbing hills. As while backward in which ATVs overturned similarity configu- noted, excerpt ninth concerned entitled The trial court was of ATVs. among all brands ration that were described occurrences prior find that accident at to the sufficiently were similar excerpts those relevant.” make those occurrences case to issue this Or at 268. concerning provide no details
The CPSC documents prior is that some that can be said The most accidents. enough. flips.” That is involve “rearward Beyond that the exhibits offered this, I maintain prior had are hear accidents occurred similar establish *31 say. offering has the party other accidents evidence of The establishing “occurred other accidents that the burden of under similar conditions v. Gib circumstances.” Rader supra, acci Co., 359. The “other 261 Or at bons and Reed premise accidents that other rule rests on the dents” theory happening happened. of other acci that the The is prove admissible to defendant is aware is dents of which offered to truth, this evidence was defendant. In notice to prove jury, happened. The had accidents that the other acci weighing how the other evidence, consider this would the other accidents? How similar dents had occurred. were category brings of evidence me to the second That — opinions various nine exhibits within these contained safety design concerning personnel of ATVs. or CPSC prejudicial. from a It a memorandum Exhibit 28 is the most Harvey person Marchica, neither Tzuker to Nick named to their record, either as in the identified whom otherwise education, training, responsibilities, as to job or or their or qualifications. states: The memorandum their light and accelera- relatively vehicle is front end of the “The lift, tipping wheel to can cause the front tion on hills * * * operator. backwards onto machine over nation- “Conclusion, projected tripling the more than rate severity, the their relative injuries, wide ATV associated accidents are occurring widening at which and the ever knowledge of fatal are all alarming incidents and ominous. directorate,
“It opinion is the of this based on the data in files, sources, our as well as information from other three-wheeled all-terrain vehicles most present one of the significant growing and explosively product hazards agency.” ever considered this document, Exhibit 23 is a similar a memorandum from Victoria R. Brown and W. to Elizabeth Roy Deppa with As Exhibit the record is silent Haught. concerning their responsibilities exhibit reads: qualifications.
“Based upon our examination of the incidents and the machines, Engineering dynamic stability opinion Sciences is of the that the the comprise
characteristics of the ATV single prominent most factor identifiable as a cause of loss of control.”
There were extensive on-the-record discussions con- documents such as these. cerning concerning Specifically Exhibit these discussions occurred: * ** “THE COURT: This conclusion is rather potent language, and I’m sure the defendants are concerned about Now, notice, talking it. we’re about and we’re trying say plaintiffs argue that this comment the prob- is notice of lems plaintiff alleged this has existed their It complaint. any plaintiffs allegation. doesn’t relate to sion re It’s a broad conclu- injuries. type of observation about ATV-associated CC* “THE COURT: [*] It would be my view * * * notice, comment, probative relate to any, only value on if of that could I your damages, claim for would punitive because *32 has, in the only give think that its value it it doesn’t notice or it be a basis analysis rulings, may context the court’s but notice, argue jury, receiving they to the after this contin- nothing, put things ued to or did continued to these market, cetera, et et cetera. having difficulty conclusionary “I’m real -withthat com- — know, thinking I’m kind of out you just ment. You never — circumstances, for exam- you’d
loud never under certain very I think it be difficult ple, to any strong, well I’m too but would under get testimony any that kind of from kind of witness circumstances, through kind of a my letting and it — is, you and next level of consideration approach back door — inflammatory, this anything was know, if there ever this is it, punitives. relevant to but it be is ** * — know, you do how does You how
“THE COURT: damning that making that this writer is really know one indictment, based on lack of sta- emotional that conclusion your which is whole theme? bility, you earlier that do “Now, acknowledged and I grant you, I stability, why which refers to and that’s have the paragraph no, agonizing I’m over just outright saying I’m connection, it is tenuous. tenuous " I I don’t think understood [PLAINTIFF’S LAWYER]: just your concern until now. right. All
“THE COURT: writer, the man or woman who made this state- “This making a indictment. Just follow opinionated ment is harsh take care of his own [defense counsel] me let step step, problems. jury going you a who’s to hear read person,
“How does this, stability as person referring know that this to lack of gas from a defective tank? distinguished possibly thought My first “[PLAINTIFF’S LAWYER]: response to that is the context of this document. The second documents, is the context of all the and all we know- thought from all the documents about the investigation
nature CPSC conducted. just accept argument.
“THE COURT: I don’t You just can’t say: Judge, you have to look at all these documents. feet, feet, stand or This document has to on its own four two many got. My get or how feet it’s similes twisted here after a while. May I refer the court back
“[PLAINTIFF’S LAWYER]: admittedly to the earlier portions of the documents which highlighted aren’t for submission to the at proposed this but this which point, spends pages is document three evidence, talking about data hospital epidemiological ATVs, evidence involving specifies of accidents and then some preliminary findings about the nature of those acci- dents, highlight, one of which we and then draws conclu- this — sion. I think interpretations It’s don’t there can be two to related to general clearly source of this conclusion. It is stability They issue of ATVs. refer to the rate at which occurring in this paragraph. accidents *33 ‘ Well, ‘THE COURT: waffle, I’m going to at least until I tell you contrary, to the and I’m sorry if your case, it disrupts it’s going to have to disrupt your case.
“At stage trial, this and I’m not indicating any mind, concept my I’m simply I saying want to think and sleep on this last paragraph, you so can use the paragraph on three, but until I you instruct contrary, the language in paragraph conclusion will brought not be jury’s to the attention.”
The trial later judge made this comment concerning the conclusions in Exhibit 28:
“About Plaintiffs that one-page conclusion that I advisement, have under [plaintiffs lawyer],'if you are telling now, me ‘Judge, it’s critical to our case that we include that ruling, that comment to the jury time,’ at this I’m going to admit it. It’s your lawsuit. —
“I think you sometimes have to share although I have the ultimate responsibility, I would feel more comfortable if we could defer disclosing that to the jury. “I think category it’s that of evidence which has to be —
labeled aas real close call. you So have I’m going interfere with lawyer’s a trial tactical you decisions. If think critical, you it’s can do so. But I would much prefer this matter be looked at.”
Plaintiff opted to include Exhibit and it was received.
The majority concludes that this opinion evidence is not within the hearsay definition 801(3), of OEC because it was not offered “to the truth prove of the matter asserted.” The evidence ostensibly was offered to show that defendants had notice that the writers of the memoranda had expressed (I 28) opinions such as quote from Exhibit “three-wheeled all- terrain vehicles may present one of the most significant explosively growing product hazards ever considered this agency.” The question is: Are opinions persons contained records government of a concerning safety product admissible evidence to establish that the manufacturer of a product is on notice of the dangerousness of the I product? would hold that such opinions, offered under the circum- stances in this case, are not admissible.
I with an begin elementary but important proposi- tion. All evidence must rest on a foundation. The most witness knowledge is the direct foundation common — “I experience actual based on knowledge testifying, who is whether for knowledge, An basis expert’s the accident.” saw as whether offered testimony, or other testimony expert rest otherwise, must evidence, impeachment, direct as reliability. foundation tes- reliability eyewitness foundation *34 rule, ancient is a more “I it.” “There is, perceived
timony * * * is to rule, that a witness qualified hearsay than the observation, if it only appears of susceptible a fact testify to observe the facts.” he a reasonable to opportunity had (1992). True, some evidence McCormick, 99, § Evidence 247 2 of Business records reliability. other foundations reposes on a good example. are regularly the fact that reliability is furnished
“Unusual accuracy. The high degree have a of kept typically records to very regularity continuity and of the records calculated * * *. recordkeeper precision train the in habits of (1) law had four elements: the exception “The common original made in the routine of a entries must be entries (2) business, must made the upon the entries have been or of knowledge reporting the recorder someone personal (3) information, must been made at or the the entries have (4) recorded, near the of the transaction and the time and informant shown to be unavailable. recorder must be met, entry was admis- If conditions were the business these McCormick, 2 supra, facts in it.” at prove sible to recited (footnote omitted). 264-65, § 286 rests on government similarly records admissibility 113 F2d Meyer, United States v. reliability. See foundation (7th Cir) (a received into evidence was map properly Corps of the U.S. it was from records compiled because office, of that charge was witness Engineers, were under working the information men who furnished (1940). control), cert den 311 US witness’ offered were not ostensibly These CPSC records 801(3) asserted the truth of the matters under OEC prove 803(8). disclaims reliance OEC in the record. Plaintiff into evidence of What, then, receipt foundation for the to be some in these records? There has contained opinions for evidence. foundation all
Even though majority disclaims reliance on OEC 803(8), it is relevant to our inquiry reasons that follow. 803(8) OEC provides:
“The following are not excluded by OEC even though the declarant is available as a witness:
" (8) Records, statements, reports, or data compilations, form, any public agencies, offices or setting forth: “(a) The agency: activities of the office or “(b) pursuant duty Matters observed imposed by law as to which matters there duty report, was a excluding however, in criminal cases by police matters observed officers and other law enforcement personnel; or
“(c) In civil actions and proceedings against government cases, in criminal factual findings, resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circum- stances indicate lack of trustworthiness.” claims,
Plaintiff concludes, the majority 803(8) OEC does not because apply the records were offered to establish the truth of the matter asserted.3 But all *35 of the documents are government records. I look to OEC 803(8) for its policy concerning limitations on the use of government records. The public policy Oregon is clear concerning opinions government Opinions records: of gov- ernment contained in employees government records are not admissible. 803(8)
The commentary to OEC states part: “The Legislative Assembly intends that this paragraph provide not a sweeping exception for public records contain- ing evaluations or opinions. findings’ ‘Factual is strictly to be construed to only allow as evidence those reports, otherwise rule, in accord with the which are based on firsthand observa- by public making tion the official report.” the
The commentary makes two clear. that things One is the factual must be findings “based firsthand observation the official public the The second is that making report.” below, hearsay aspect But as will be discussed there is another of this evidence majority that the has not considered. containing for records exception public there is no “sweeping opinions.” evaluations or the of the drafters for this conclusion
The reasons are these: Code Evidence Oregon 803(8)(C) is use of a Rule the danger posed by
“The first without an the report opportunity in a finding fact public to determine reporter to cross-examine opponent the use such fact justification for finding. One basis for sufficiently objective that officials are findings public is only if findings in their reports to include fact responsible adversary system, In reliable information. our based on it example, For is however, be tested. this assertion should jurors effectivelyassess that could more expect to reasonable the they background, reliability finding fact if knew of a fact Such information training, and finder. experience certainly in a and would unlikely report to appear public is through it be cross- not revealed to the extent that could be likely are even more from examination. Juries benefit at how arrived knowing specifically public reporter report, Even cross-examination the an in the finding. explanation appears if such little or opponent would have without in the fact no to demonstrate weaknesses opportunity methodology suggest procedures or to better finder’s could have been employed. admit- greater reports even arises when are problem
“An containing part upon in whole or ted conclusions based third Such informa- parties. observation or information of any guarantees tion of trustworthiness possess yet form hearsay still customarily exceptions, underlie 803(8)(C).” Rule finding the basis for fact admitted under Government Fact Shapiro, Grossman & The Admission of 803(8)(C):Limit- Under Rule Evidence Findings Federal L Rev 38 U Kan ing Dangers Hearsay, Unreliable omitted). (1990) (footnotes 771-72 well, opinions as Those reasons applicable, notice. Cross-examin- prove records offered government to prove evidence less concerning ation no important notice. that “[defendants’ states majority confidently *36 taken, excerpts because the were well objections not
hearsay the truth prove from documents were offered the CPSC at There is therein.” 316 Or 269. of the matters asserted that the documents conclusion, because with this problem contain the of CPSC like opinions personnel, the documents accidents, other concerning have a that ren- hearsay aspect ders them inadmissible.
Exhibit 28 is The illustrative. effect of admitting Exhibit 28 is to is an say: CPSC of the United States. agency Nick Marchica works for Nick CPSC.4 Marchica has an opinion ATVs. He wrote concerning to another CPSC employee, “three-wheeled all-terrain vehicles present one of the most significant and growing product explosively ever by hazards considered this agency.” jury was instructed that this statement was admissible for only notice to the defendants purpose giving “that ATVs could overturn.”
It true that may be Exhibit 28 was not offered to prove that “three-wheeled all-terrain vehicles one present significant most explosively growing hazards product ever considered this by agency.” But the document offered opinion was the of a CPSC Marchica, Nick and it employee, was received as the opinion of a CPSC employee having knowledge ATVs, received with no for opportunity cross- examination for the concerning basis No one opinion. deny could that document, this even as the trial limited instructions, court’s had more than would immensely weight an from some opinion Why unidentified third does it person. have more Because it weight? is an of one opinion having knowledge ATVs, a CPSC I that concede employee. document, as offered and received, had but one nonhearsay — to were that a aspect prove defendants on notice person had told them that ATVs The docu- were dangerous. ment has several hearsay aspects: Nick Marchica had on which base knowledge his that Nick Marchica opinion, was a CPSC and that this was Nick Marchica’s employee, opinion.
In order jury for the to consider whether the CPSC documents did “notice” provide defendants, jury must evaluate statements in those documents. reliability In reliability, determining implicitly will consider (1) two things: Does the out-of-court declarant have knowl- (2) edge about the statement the out-of- subject; “Program Manager Safety.” Exhibit 20 refers to Mr. Marchica as Product *37 defendants as truthful? to be viewed likely by declarant court necessarily must jury second considering step, In this asserted.” the “truth of matter into inquire the very in Exhibit was addressed to The 28 opinion defen- to decide: Were was required question The trial judge opined unreasonably dangerous? dants’ ATVs testimony difficult that kind of very get that “it would be ** *, this kind of under circumstances any from witness any * * — this is it anything inflammatory, if there ever was is “is states that cross-examination Wigmore Professor for ever invented any greatest legal engine doubt beyond ** * by trial [Cjross-examination, of truth. not discovery Anglo- is the and contribution of jury, great permanent law to trial system pro- American of methods of improved Evidence at Law cedure.” 5 in Trials Common Wigmore, (1979). weakness § Jones states that “the real basis of in the fact that the absent whose hearsay] lies person, [of subject he asserts, assertion is offered to facts is not prove weak- to the cross-examination to reveal testing process of nesses in his his his perception, memory integrity.” (1972). 166, § 8:2 Mr. was not Jones on Evidence Tzuker available for basis of concerning cross-examination his training. his and his knowledge, experience employment, in the to the public commentary stated policy — Code employees Evidence is clear opinions government government contained in are not It records admissible. that an would be an expert permitted express opinion be in this if the were avail- exhibit, expert such as is contained able for cross-examination. See testimony 704 (expert OEC an is the form of or inference otherwise admissible opinion it an to be not because embraces ultimate issue objectionable fact). However, the trier of those opinions decided relevance, even for untrustworthy thus their patently I such reduced. would hold that notice, greatly purpose records are admissible any purpose.
To the no court has my knowledge, upheld best evidence like contained admissibility opinion Exhibits 28 and 23 when offered as part government record. OEC 602 provides:
“Subject to the provisions of OEC a witness may not testify ato matter unless evidence is introduced sufficient to support finding that the personal witness has knowledge of the matter. Evidence to prove personal knowledge may, but not, need consist of the testimony of the witness.” The effect of Exhibit admitting 28 was to Nick permit Marchica to testify without present, and being with no oppor- tunity cross-examine. decision
My on the five remaining exhibits is: Exhibit 25 is a memorandum from William Walton to the commission. It raises “questions about CPSC-investi- (IDEs) gated death and incidents.” injury However, the mem- orandum no details of provided those incidents. Nor does it *38 contain any admissible factual.findings.
Exhibit 120 accidents, refers to ATV previous with- out details providing any regarding circumstances under which those accidents occurred. As is the case with all the above, exhibits mentioned this is the very type evidence to Rader. Absent be excluded the rule in by any showing of circumstances the accidents surrounding referred to these exhibits, evidence of those accidents is not relevant. Nor do these exhibits contain any admissible factual findings. 122
Exhibit does not refer to any prior accidents. it Because was offered to prove knowledge defendants’ backwards, ATV’s could overturn not was offered to asserted, the truth of the matter it is prove admissible.5 Most of the forth in exhibits set are not Appendix any purpose, admissible for either as evidence of relevant “other accidents” otherwise.
On the I with punitive damages question, disagree I read decision in majority. Supreme Court Pacific v. Haslip, Mut. Ins. Co. L 1032, 113 499 US 111 SCt Ed Life 1 (1991), 2d to three due require process procedural protections: trial, At must have jury adequate guidance
1. reasonable, instructions, award and not by so that its appears to refer to some Portions of Exhibit 37 be admissible. Exhibit (“The report report”). received. ARTECH It should not have been other at discretion.” Ill S Ct “unlimited product discretion is exercised long jury’s] [the as
1044. “As constraints, due is satis- process within reasonable fied.” Ibid. must establish post-trial procedures
2. The state to damages trial review of awards court punitive review trial adequate ensure “meaningful court.” Ibid. must post-trial appellate
3. The state establish cer- “This review makes review procedures. appellate are reasonable their tain the punitive damages rational of their to light purpose punish amount and and to its Id. at repetition.” what has deter occurred damage It awards are 1045. also ensures “that punitive severity out of grossly proportion have some understandable relationship offense and Ibid. compensatory damages.” majority require post-verdict no review appears procedures.
I would reverse the trial court the Court I therefore dissent. Appeals.
Plaintiffs read the lawyer exhibit following excerpts to the jury:
EXHIBIT 20 “United States U.S. Consumer Product Government Safety Commission Memorandum Washington, D.C. 20207
Date: 09 JUL 1984 “TO: The Commission Marchica, “FROM: Nick Program Manager Safety Commission, Product gram Management Officeof Pro- (ATVs) “SUBJECT: All-Terrain Vehicles “Stability handling is of concern. The characteristics are peculiar to the ATVand distinctly different to a compared two-wheeled vehicle. Considerable practice required is However, beginner master ‘all-terrain’ use. may readily terrain, ride the ATV on gentle stability due to the static tricycle configuration. >|; í¡: % reviewing “In 40 in-depth investigations of ATV acci- January through dents from March several haz- ard patterns were identified:
“(cid:127) — Flipover rollover or Thirty-four or Rollover cases resulted from
tipover of the vehicle. In 13 of the rollover concussions, injuries cases the were serious and included eye injuries and fractured shoulders. Contact with the during handlebars rollover contributed to several cases of skull, face, jaw. fractured Opinion
“Medical “The Medical Director’s a lack of opinion is there is of the vehicle’s actual comprehension complexity performance consequent characteristics and the inherent dangers. of deceptive impression This is due to two factors: the given by tricycle type vehicle with a wide tread
stability wheels, agility and broad and the of the vehicle which frequently showing flight, operat- advertised as the vehicle at maneuvers.” ing high speeds performing complex *40 U.S. Consumer Product “United States Safety Commission Government Washington, D.C. 20207 Memorandum 11 FEB
Date: Haught, Elizabeth CACA “TO: Brown, ESHF and W. Roy “FROM: Victoria R. ESES Deppa, Vehicle Specialty
“SUBJECT: Assessment of the Insti- Training tute of America Rider Proposed Program for All Terrain Vehicles * “* * upon Based our examination of the incidents and machines, Engineering opinion Sciences is ofthe that the stability the ATV dynamic comprise characteristics of most factor identifiable as a of loss of single prominent cause control.”
“United States U.S. Consumer Product Safety Government Commission Memorandum Washington, D.C. 20207
Date: 29 MAR 1985 “TO: The Commission Walton, AED, William “FROM: W. ES Forwarding Meeting Log. “SUBJECT: of ATV <<# Hi * * Hi Design of the Honda Development
“SUBJECT:
ATC[*]
% Hi vv (All Cycle) “*Note that ATC Terrain is the Honda trademark of the device more referred as the All generally name Terrain Vehicle (ATV). a Hi Hi Hi Hi Hi ATV Safety
“Discussion dialogue length safety “The dealt at some considera- ATC, design in the with raised as specificquestion tion to the extent of those considerations in the
encompassed development process. Specifically, we raised questions about (IDEs) CPSC-investigated and injury death incidents. The emerging Engineering awareness Sciences staff that a pattern dynamic common of loss of control due to the charac- teristics of the ATV was described.” *41 “United States U.S. Consumer Product Safety Government Commission Memorandum Date: MAR 20 1985 ‘ Marchica, ‘TO: Nick EX-P Tzuker, “FROM: EPHA Harvey Further Information “SUBJECT: on All Terrain Vehi- (ATVs) cles “(cid:127) The end of is relatively light front the vehicle and acceler- lift, hills can tipping ation on cause the front wheel to * * * operator. over backwards
machine onto “Conclusion, the tripling projected more than nation- their injuries, severity, wide ATV associated relative the rate occurring at which accidents widening and the ever knowledge of fatal all alarming incidents are and ominous. directorate,
“It opinion is the of this based the data in on files, sources, our as well as from information other three- wheeled all-terrain may present vehicles one of the significant most and explosively growing product hazards ever considered this agency.”
“United States Consumer U.S. Product Safety Government Commission 11, February Memorandum Date: Marchica, “TO: Nick EX-P * * * Rutherford, George
“FROM: EPHA Kennedy, Jean EPHA Updated Injury “SUBJECT: Data on All Terrain
Vehicles
“DISCUSSION cases, main reviewing
“After two seen problems majority of ATV accidents seem to continue to be - 1) instability turnover, in flipover, as documented rollover 2) rut, etc., uphill hitting bumps, difficulty or when - controlling design of attempting the 3 wheel as seen in rollover when hilly surface, turn quickly on flat or and or a paved gravel patterns repeatedly or surface. These have deaths, alcohol, riding occurred double or accidents and whether not, were speeding present ages and for all Also, although drivers. some victims were first time ATV users, half had ATV experience, also were experienced with motorcycles or minibikes.” Register “Federal Vol. No. 105 / /
Friday, May 1985 Proposed Rules / “CONSUMER PRODUCT SAFETY COMMISSION CC* [*] # [*] Vehicles;
“All-Terrain Advance Notice Proposed Rulemaking; Request for Comments and Data “Agency: Consumer *42 Safety Product Commission “Summary: data, Based on available the Commission has preliminarily determined that may there be an unreasonable injury risk of associated with the use of all-terrain vehicles (ATVs) which be sufficiently regula- severe to require tory action the Commission. The commission is aware of at least 161 occurring deaths associated with ATVs between January April 1982 and 1985. Estimates the number of hospital emergency injuries room treated associated with 68,956. ATVs 1984 was This is almost and two one-half injuries times the number of times the number in injuries in 1983 and more than seven 28,000 An
1982. estimated ATVrelated hospital emergency were treated in rooms nation- wide in the first four months of 1985. This is approximately percent higher injuries during than the estimated treated the same time period primarily 1984. The Commission is (1) concerned about control of the which result from loss accidents (2) vehicle; overturning, as the vehicle such backward, forward, rolling over flipping tipping over or over (3) sideways; being and the rider thrown from the ATV after ditches, it hits and terrain features. bumps, [Footnote other omitted.]
“* * * is concerned about whether the The Commission ATVs, characteristics of three and four wheel performance stability handling, including dynamic their are reason- The Commission’s technical staff has not deter- feasibility, practicality, appropriateness, ably safe. mined or cost of modifications, adequately or other which would performance injury eliminate the risk of associated with ATVs. reduce or However, data, staff based on available the Commission ATVs, characteristics of performance believes including dynamic stability handling, signifi- their are a in ATV related accidents. cant factor “* * * Overturning and control were documented loss of majority reported in the ATV deaths. Engineering
“D. Information configuration unique “The basic of the ATV and its characteristics, including dynamic stability and performance handling, major involving role in accidents appear play serious-injuries Many reported and deaths ATVs. investigations resulted from loss of control of in-depth alcohol, regardless the ATV and were observed riding of whether double, were also These inci- speeding observed. Also, ages. although dents involved drivers of all some vic- users, were first time ATV had many previous tims ATVs, riding riding motorcycles experience experience or minibikes.”
“United States U.S. Consumer Product Safety Government Commission Memorandum Date: 5/1/84 Marchica, Program Management “TO: Nick * * * Esch, “FROM: Albert F. M.D.
Medical Director *43 (ATVs) Vehicles, All Terrain “SUBJECT: by Epidemiology, in the reports prepared “As indicated associated with appear The common mechanisms that to be injuries dislodgment the severe are the operator from motion, the vehicle while it is in overturning of the and/or vehicle with consequent entrapment crushing injuries ** * the driver.
“* * * [Tjhere appears to be common lack of understand- ing comprehension or of the complexity of the vehicle’s characteristics; actual performance and its consequent dangers. inherent in part This could be due to the deceptive by a impression given appearing, tricycle comfortable type vehicle, with a wide tread and broad wheels which would stability. might seem to assure Such confidence be furthered * * by the erroneous image vehicle’s *. implied agility i|; >¡: U* ífí
“The nature of the risk therefore can be characterized as circumstances in which there is a deceptively dangerous vehicle, (possibly mistermed All Terrain within reasonable constraints of operation), requiring high degree safe of skill insight control, into its performance proper utilized aircraft, with ages. cross section As these vehicles can unforgiving judgement be of minor errors in and consequent usually major injuries.” accidents result in “United States U.S. Consumer Product Government Safety Commission Memorandum Date: MAY1984 Haught, “TO: Elizabeth CACA Roy Deppa, “FROM: ESES
Medical Director * * * Relating “SUBJECT: Review of Information Mechanical Characteristics of All Terrain (ATV’s)
Vehicles “The ARTECH reveals that the three-wheeled report configu- currently being very marketed are similar ATV’s ration, variation either between brands and there is little * * *” year year. from Safety Product Commission “U.S. Consumer D.C. 20207 Washington, (202) 634-7710 *44 “RECEIVED APR 1985 (News Directors, Reporters, Consumer ALL MEDIA “TO: Columnists, Editorial
Action-Line Editors) Page Rising Injury All-Terrain Vehi- & Toll Death “RE: from (ATVs) cles <£* * * H* time, identify two this Commission staff
“CAUSES. At accidents. These in ATV-related underlying problems (1) turn- (causing flipovers, vehicle instability of the involve: hits a moving uphill ATV is or overs, rollovers when an * * which to have contrib- appear *. Variables bump); rut or surface, riding incidents, severity, include: or their uted to involvement, nighttime passenger, additional alcohol speed, use, and lack of helmet. specifically involved patterns hazard in-depth “An review of * * * scenarios: revealed three basic
in ATV-related fatalities (vehicle (2) backwards flipped tipover/flipover/rollover hill, frontwards, descending a hill, over ascending tipped * * turning); (Emphasis sideways while rolled over original.)