Dorothy CLARK, Plaintiff-Appellee, v. CHRYSLER CORPORATION, Defendant-Appellant, 436 F.3d 594

RESTANI, C.J., delivered the opinion of the court. KENNEDY, J. (pp. 612-614), delivered a separate opinion concurring in part and concurring in the judgment. MOORE, J. (pp. 614 - 627), delivered a separate opinion concurring in part and dissenting in part. OPINION RESTANI, Chief Judge. Chrysler Corporation appeals the district court’s order, entered on remand, upholding Dorothy Clark’s $3 million punitive damage award as reasonable and proportionate to the wrong committed and denying Chrysler’s motions for judgment as a matter of law, for remittitur, and for a new trial.

Because we conclude that the punitive damage award is constitutionally excessive, we remit the amount of punitive damages to $471,258.26. I. BACKGROUND On October 14, 1993, Charles Clark was fatally injured in an automobile accident while driving a 1992 Dodge Ram club cab pickup truck. The accident occurred when Mr. Clark pulled into an intersection in front of an oncoming vehicle and the two vehicles collided. Mr. Clark, who was not wearing a seat belt, was ejected from his vehicle and died a short time later. Mr.

Clark’s wife sued Chrysler, claiming that its pickup truck was defectively and negligently designed. On October 1, 1997, after a three-day trial, the jury rendered a unanimous verdict in favor of Mrs. Clark on claims of strict liability, negligence, and failure to warn. The jury found that Chrysler and Mr. Clark were each 50% at fault and returned a verdict of $471,258.26 in compensatory damages and $3,000,000 in punitive damages. The court entered a judgment against Chrysler for $3,235,629.13, reflecting 50% of the compensatory damages plus the $3 million punitive damages award.

After trial, Chrysler renewed its request for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 and for a new trial pursuant to Federal Rule of Civil Procedure 59. In its motion for judgment as a matter of law, Chrysler argued that because there was no evidence of “gross negligence,” an award of punitive damages was improper. [J.A. at 81-85.] Chrysler alternatively argued for a new trial in its Rule 59 motion. The district court denied both motions. [J.A. 87-92.] On appeal, we affirmed the district court’s judgment and upheld the jury’s compensatory and punitive damage awards.

Several months later, the Supreme Court decided State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). In State Farm, the Court elaborated on the procedural and substantive constraints that the Due Process Clause imposes on punitive damage awards. After State Farm was issued, Chrysler petitioned for a writ of certiorari, requesting that the Court “grant certiorari, vacate the decision below, and remand for further consideration (“GVR”) in light of its recent decision in State Farm v.

Campbell.” Pet. for Writ of Cert., No. 02-1748, 2003 WL 22428164, at *2 (U.S. May 21, 2003). In its petition, Chrysler insisted that the jury’s $3 million punitive damage award was constitutionally excessive. Id. 2003 WL 22428164 at *18-*25. Clark opposed the petition, arguing that Chrysler had waived its constitutional challenge by failing to raise it in its post-judgment motions before the district court, and that even if the issue was preserved for review, the amount of the punitive damage award was within constitutional boundaries.

See’ Resp’t Br. in Opp’n to Pet. for Writ of Cert., No. 02-1748, 2003 WL 22428165, at *19-*30 (U.S. July 1, 2003). On.October 6, 2003, the Supreme Court granted Chrysler’s petition, vacated our judgment, and remanded the case to us “for further consideration in light of State Farm.” Chrysler Corp. v. Clark, 540 U.S. 801, 124 S.Ct. 102, 157 L.Ed.2d 12 (2003). We, in turn, remanded the case to the district court for further proceedings in accordance with the Supreme Court’s order. See Clark v. Chrysler Corp., 80 Fed.Appx. 453 (6th Cir.2003).

On February 6, 2004, the district court upheld the jury’s award, and denied Chrysler’s motions for judgment as a matter of law, for remitti-tur, and for a new trial. See Dist. Ct. Op. & Order (Feb. 6, 2004), J.A. at 31-43. Chrysler timely appealed. II. DISCUSSION In State Farm, the Supreme Court elaborated on the measure of punishment, by means of punitive damages, that a state may impose upon a defendant in a civil case.

The Court reiterated the principle that, “[w]hile States possess discretion over the imposition of punitive damages, it is well established that there are procedural and substantive constitutional limitations on these awards. The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.” 538 U.S. at 416, 123 S.Ct. 1513 (citations omitted).

The Court also expressed its concern with the manner in which punitive damages systems are administered, noting that vague instructions “do little to aid [a jury] in its task of assigning appropriate weight to evidence that is relevant and evidence that is tangential or only inflammatory.” Id. at 417-18, 123 S.Ct. 1513. In light of these concerns, the Court applied the three guideposts set forth in BMW v. Gore, and concluded that a punitive damage award of $145 million, where compensatory damages were $1 million, was constitutionally excessive. Id. at 418-29, 123 S.Ct. 1513.

Because of State Farm’s narrow focus on punitive damages and the Court’s limited GVR order, we do not reconsider our earlier holdings regarding liability, compensatory damages, or the sufficiency of evidence to support some award of punitive damages. We must, however, decide whether State Farm requires us to change our conclusion that the amount of the punitive damage award was within constitutional limits. We conclude that it does. In the discussion below, we explain that (

A) Chrysler’s claim regarding the constitutionality of the award has been preserved for review; (

B) the award is constitutionally excessive and should be reduced to $471,258.26 and (

C) a new trial on the amount of punitive damages is warranted only if the reduced award is rejected by Mrs. Clark. A. Chrysler’s claim regarding the constitutionality of the award has been preserved for review The parties dispute whether Chrysler properly preserved its claim that the punitive damage award is constitutionally excessive. We conclude that even though Chrysler initially waived this challenge by failing to raise it in its post-trial motions before the district court, subsequent proceedings in the Sixth Circuit and Supreme Court preserved the issue for review.

Challenges to the excessiveness of verdicts must be brought in the trial court through post-trial motions. Young v. Langley, 793 F.2d 792, 794 (6th Cir.1986). This procedure allows the trial judge an opportunity to initially correct errors, exercise his discretion, and create a full record for appeal. Id. Absent the timely filing of a post-trial motion and the trial court’s ruling thereon, an appellate court will generally not review the alleged excessiveness of damages awards. Id; see also O’Connor v.

Huard, 117 F.3d 12, 18 (1st Cir.1997) (“We generally will not review a party’s contention that the damages award is excessive or insufficient where the party has failed to allow the district court to rule on the matter.”); DeWitt v. Brown, 669 F.2d 516, 524 (8th Cir.1982) (citations omitted) (noting that the “inadequacy or excessiveness of a verdict is basically, and should be, a matter for the trial court which has had the benefit of hearing the testimony and of observing the demeanor of the witnesses and which knows the community and its standards”).

In Local Union No. 38, Sheet Metal Workers’ International Ass’n v. Pelella, for example, the Second Circuit refused to decide whether the punitive damage award was constitutionally excessive because the appellant failed to raise the issue in its post-trial motions before the district court. 350 F.3d 73, 89-90 (2d Cir.2003), cert. denied, 541 U.S. 1086, 124 S.Ct. 2821, 159 L.Ed.2d 248 (2004). Although State Farm was decided during the course of the appeal and the appellant raised the issue in its reply brief, the Pelella court held that the matter had been waived. See id.

The court reasoned that the appellant “could unquestionably have invoked Gore in the district court proceedings to suggest that the jury’s punitive award was constitutionally excessive.” Id. at 90. Similarly, in this ease Chrysler did not challenge the punitive damage award as constitutionally excessive in either of its post-trial motions. See J.A. at 63-74, 75-86. Unlike in Pelella, however, we nevertheless addressed the issue on appeal. Specifically, we stated that, Chrysler also maintains that ... the jury’s award was so excessive as to violate the Due Process Clause. [We do] not agree....

In none of its briefing does Chrysler indicate why, under Gore, a due process violation occurred in this case. However, a review of the [three] factors quickly reveals that this case is a far cry from Gore. Clark, 310 F.3d at 481-82. As a result, although Chrysler waived its constitutional challenge by failing to raise it in its post-trial motions before the district court, our passing on the issue essentially preserved it for Supreme Court review. See United States v.

Williams, 504 U.S. 36, 41, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992) (“Our traditional rule ... precludes a grant of certiorari only when the question presented was not pressed or passed upon below.”) (quotations and citations omitted); Va. Bankshares, Inc. v.

Sandberg, 501 U.S. 1083, 1099 n. 8, 111 S.Ct. 2749, 115 L.Ed.2d 929 (1991) (rejecting respondents argument that it should decline to address an issue that was not raised below because “[i]t suffices for our purposes that the court below passed on the issue presented, particularly where the issue is ... in a state of evolving definition and uncertainty, and one of importance to the administration of federal law”) (quotations and citations omitted); Payton v.

New York, 445 U.S. 573, 582 n. 19, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (“Although it is not clear from the record that appellants raised this constitutional issue in the trial courts, since the highest court of the State passed on it, there is no doubt that it is properly presented for review by this Court.”) (citation omitted). Furthermore, the Supreme Court’s GVR order suggests that the issue has been preserved for reconsideration on remand.

In this case, the Court granted Chrysler’s request for a GVR order; whereas in two other cases, the Court denied similar requests where the appeals courts refused to pass on the constitutional issue. In Pelel-la, for instance, the Second Circuit refused to decide whether the punitive damage award was constitutionally excessive because the appellant, Local Union, did not raise the issue in the trial court. See discussion supra

Part II.A. On petition to the Supreme Court, Local Union’s request for a GVR order in light of State Farm was denied. See Pet. for Writ of Cert., No. 03-1472, 2004 WL 892040, at *16 (U.S. Apr.20, 2004) (asking Supreme Court to either resolve whether punitive damages are constitutionally permissible or remand to Second Circuit for reconsideration in light of State Farm); Local Union No. 38, Sheet Metal Workers’ Int’l Ass’n v. Pelella, 541 U.S. 1086, 124 S.Ct. 2821, 159 L.Ed.2d 248 (2004), denying cert. to 350 F.3d 73 (2d Cir.2003). Similarly, in Time Warner Entertainment Co. v.

Six Flags Over Georgia, LLC, the Georgia Court of Appeals held that Time Warner waived its constitutional challenge by failing to cite any relevant facts, provide record citations, or present any legal analysis in support of its argument. 254 Ga.App. 598, 563 S.E.2d 178, 184 (2002). Time Warner’s petition to the Supreme Court, requesting a GVR order for further consideration in light of State Farm, was denied. See Pet. for Writ of Cert., No. 02-0978, 2002 WL 32133807, at *25-*27 (U.S. Dec.23, 2002) (requesting, at a minimum, a GVR in light of State Farm); Time Warner Entm’t Co. v.

Six Flags Over Ga., 538 U.S. 977, 123 S.Ct. 1783, 155 L.Ed.2d 665 (2003) (denying cert.). Therefore, even though Chrysler initially waived its constitutional claim by failing to raise it in the district court, our earlier decision and the Supreme Court’s GVR order indicates that the issue has been preserved, and should be considered further on remand. See Lawrence v. Chater, 516 U.S. 163, 168, 116 S.Ct. 604, 133 L.Ed.2d 545 (1996) (explaining that “GVR orders are premised on matters that [the Court] ... believe[s] the court below did not fully consider, and ... require only further consideration”). B.

The punitive damage award is constitutionally excessive As discussed above, the Court in State Farm elaborated on the three Gore guideposts that courts must consider when reviewing punitive damage awards. Namely, (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. See Gore, 517 U.S. at 574-75, 116 S.Ct. 1589.

In light of State Farm, and after a de novo review, Cooper Industries, Inc. v. Leatherman Tool Group Inc., 532 U.S. 424, 431, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001), we conclude that the $3 million award here is constitutionally excessive. An application of the Gore guideposts to the facts of this case reveals that a punitive damage award approximately equal to twice the amount of compensatory damages, or $471,258.26, would comport with the requirements of due process. 1.

Degree of reprehensibility With respect to the first Gore guidepost, State Farm emphasized that the degree of reprehensibility is “[t]he most important indicium of the reasonableness of a punitive damages award.” 538 U.S. at 419, 123 S.Ct. 1513 (quoting Gore, 517 U.S. at 575, 116 S.Ct. 1589).

The Court laid out a list of five criteria that lower courts must consider in determining the reprehensibility of a defendant’s conduct: We have instructed courts to determine the reprehensibility of a defendant by considering whether: the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.

The existence of any one of these factors weighing in favor of a plaintiff may not be sufficient to sustain a punitive damages award; and the absence of all of them renders any award suspect. Id. (citation omitted). In our original opinion, we concluded that Chrysler’s conduct was reprehensible because the loss of life evidenced a greater disregard for the rights and safety of others than the economic damage sustained in Gore. See Clark, 310 F.3d at 482. State Farm does not change our conclusion that the physical harm suffered by Mr. Clark weighs strongly in favor of finding Chrysler’s conduct reprehensible.

After considering the four other factors, however, we conclude that the factors as a whole show that Chrysler’s conduct was not sufficiently reprehensible to warrant a $3 million punishment. a. Physical or economic harm Because Chrysler’s conduct resulted in physical harm and ultimately the loss of Mr. Clark’s life, this factor weighs heavily in favor of finding Chrysler’s conduct reprehensible. Cf. Gore, 517 U.S. at 576, 116 S.Ct. 1589 (the harm inflicted was “purely economic in nature”); State Farm, 538 U.S. at 426, 123 S.Ct. 1513 (same). b.

Indifference to or reckless disregard for the safety of others At trial, Clark introduced evidence that the 1992 Dodge Ram door latch and the metal frame of the truck against which the latch closed — the B-pillar — were improperly designed, such that the forces of the accident caused the B-pillar to deform, or “twist out,” and force open the latch, allowing Mr. Clark to be thrown from the truck.

Clark’s experts testified that Chrysler utilized a thin piece of formed sheet metal as a B-pillar; that the truck’s “unboxed” B-pillar design was inadequate to withstand low-impact accidents; that the sheet metal type of B-pillar was substantially outdated and had been removed from the modern state of the art and state of the industry for over 40 years; that every other manufacturer utilized reinforced, boxed-in, or supported B-pillar designs that did not experience bypass failure; and that B-pillar twist-out was a known failure in the automotive industry.

In addition, a Chrysler representative testified that his group did not test for latch failures involving B-pillar twist-out. Also, a member of the Chrysler Safety Office stated that a B-pillar is generally a boxed-in

section of metal, and that an unboxed piece of metal is weak in almost every direction. Finally, there was evidence introduced at trial that Chrysler knew that if a driver was ejected, the risk of death substantially increased. As we stated in our earlier opinion, this evidence is sufficient to support the jury’s decision to award punitive damages. In other words, viewing this evidence in the light most favorable to Clark, there is not a “complete absence of proof’ that Chrysler’s use of a weak and outdated unboxed B-pillar constituted a reckless disregard for the safety of others, including Mr. Clark.

Consequently, we previously affirmed the district court’s denial of Chrysler’s motion for judgment as a matter of law to the extent it was based on the sufficiency of the evidence to support a punitive damages award. On the other hand, because there is no evidence that a boxed-in B-pillar would have prevented the harm suffered by Mr. Clark, and because there is a good-faith dispute over whether B-pillar testing is necessary, we disagree with the district court’s decision that Chrysler’s conduct is sufficiently indifferent or reckless to support a $3 million award.

First, although the evidence indicates that Chrysler utilized a weak, unboxed B-pillar design, there is no proof that even a stronger, boxed-in B-pillar would have prevented Mr. Clark’s accident. Although Clark’s experts testified as to their belief that the un-boxed B-pillar was weak, they did not conduct any tests to see whether another B-pillar would have prevented a door latch from opening under similar circumstances.

See J.A. at 145 (“I believe [that Chrysler’s B-latch] was unreasonably dangerous ... [bjecause there were better systems out there ... that probably would have prevented this ejection.”) (emphasis added); J.A. at 336-42 (testifying that “[t]o understand the strength of [a pillar] you need to run tests,” but admitting that no tests were conducted to determine whether a boxed-in B-pillar would have prevented a door from opening during a similar impact). In the absence of evidence that a different design would have prevented Mr.

Clark’s accident, we cannot conclude that Chrysler’s use of an unboxed B-pillar shows a level of indifference or reckless disregard sufficient to establish reprehensibility. Second, although Chrysler failed to conduct a B-pillar twisUout test, the record shows that there was a good-faith dispute over whether such testing was necessary.

In 1987, General Motors (“GM”) informed the National Highway Traffic Safety Administration (“NHTSA”), as well as other automobile manufacturers, including Chrysler, that it had developed a “Horizontal Rotation Test” as a way of simulating and ultimately reducing the incidence of latch bypass. [J.A. at 232-36, 394-95, 443.] In response, NHTSA conducted an evaluation of the GM test to determine whether the government should replace, or supplement, its existing testing requirements. See Denial of Motor Vehicle Defect Petition, 61 Fed.Reg. 64,563, 64,565 (Dep’t Transp. Dec. 5, 1996).

Ultimately, NHTSA decided against requiring the GM test. [J.A. 331-32.] As a result, GM is the only automobile manufacturer that conducts the test. [J.A. 333.] Therefore, although it is possible that GM’s test may have alerted Chrysler to the deficiencies of its B-pillar design and prevented Mr. Clark’s accident, because the test was neither required by the government nor used by other manufacturers, we cannot conclude that Chrysler’s failure to adopt the test indicates a level of indifference to or reckless disregard for the safety of others sufficient to weigh in favor of reprehensibility. See Barber v.

Nabors Drilling U.S.A., Inc., 130 F.3d 702, 710 (5th Cir.1997) (reversing punitive damage award where there was no evidence the defendant acted with malice or reckless indifference to plaintiffs rights and where the evidence demonstrated a “good faith dispute” as to whether the defendant’s conduct violated plaintiffs rights under the ADA); Satcher v.

Honda Motor Co., 52 F.3d 1311, 1317 (5th Cir.1995) (vacating award of punitive damages against motorcycle manufacturer after concluding, inter alia, that a genuine dispute existed in the scientific community as to whether leg guards do more harm than good, no government or agency had ever required them, and the industry as a whole had categorically rejected them as unnecessary). Thus, in the absence of evidence that a boxed-in or supported B-pillar would have prevented the harm suffered by Mr.

Clark, and because there is a good-faith dispute over whether B-pillar testing is necessary, we conclude that Chrysler’s conduct does not evince a level of indifference to or reckless disregard for the safety of others to permit a $3 million punitive damage award. c. Financially vulnerable target With respect to financial vulnerability, the district court held that this factor weighed in favor of finding Chrysler’s conduct reprehensible because Mr. Clark was a purchaser of one of Chrysler’s vehicles and Chrysler has substantial financial resources.

Because Chrysler’s wealth has no connection to the actual harm sustained by Mr. Clark, we disagree. The financial vulnerability of a target is particularly relevant when the harm inflicted is economic in nature. See Gore, 517 U.S. at 576, 116 S.Ct. 1589 (explaining that the “infliction of economic injury, especially when done intentionally ... or when the target is financially vulnerable, can warrant a substantial penalty”).

Even when a plaintiff endures economic injury, however, “[t]he wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award.” State Farm, 538 U.S. at 427, 123 S.Ct. 1513; see also Gore, 517 U.S. at 585, 116 S.Ct. 1589 (“The fact that BMW is a large corporation rather than an impecunious individual does not diminish its entitlement to fair notice .... ”); Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672, 676 (7th Cir.2003) (“a person is punished for what he does, not for who he is, even if the who is a huge corporation”).

Rather, to serve as justification for a punitive damage award, a defendant’s wealth must bear some relation to the harm sustained by the plaintiff. See State Farm, 538 U.S. at 427, 123 S.Ct. 1513. In this case, economic injury is not involved, and as our discussion in supra

Part II.B.l.a. indicates, no other connection between Chrysler’s financial resources and the physical injury suffered by Mr. Clark was established. Thus, Chrysler’s wealth is an inappropriate basis for the $3 million punitive damage award and this factor weighs against finding Chrysler reprehensible. d. Repeated actions or isolated incident The district court also held that Chrysler’s conduct was not isolated because it was aware that there was no correlation between its door latch testing and the strength of its B-pillar, and thus Chrysler put anyone who drove a Dodge Ram pickup truck at risk.

Because there is no evidence that Chrysler repeatedly engaged in misconduct while knowing or suspecting that it was unlawful, we conclude to the contrary. “[E]videnee that a defendant has repeatedly engaged in prohibited conduct while knowing or suspecting that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant’s disrespect for the law.” Gore, 517 U.S. at 576-77, 116 S.Ct. 1589.

In determining whether a defendant engaged in repeated misconduct, “courts must ensure the conduct in question replicates the prior transgressions.” State Farm, 538 U.S. at 423, 123 S.Ct. 1513. In this case, there is no evidence that Chrysler knew that its use of the un-boxed B-pillar could cause Mr. Clark’s injury. Indeed, there is no evidence of earlier, similar accidents that might have alerted Chrysler to the problem. And as discussed above, because Chrysler was not under any duty to conduct B-pillar testing, its failure to do so does not show any disrespect for the law.

This absence of evidence of repeated misconduct weighs against finding Chrysler’s conduct reprehensible. e. Intentional malice, trickery, or deceit Although the district court concluded that Chrysler did not act with intentional malice, trickery, or deceit, it held that Clark’s death was not the result of a mere accident. We agree that Chrysler ignored potential hazards presented by a weak B-pillar. Indeed, we upheld the jury’s decision to award punitive damages. But, we disagree that this factor weighs in favor of finding Chrysler’s conduct reprehensible.

The concept that trickery and deceit are more reprehensible than negligence reflects the principle that punitive damages may not be “grossly out of proportion to the severity of the offense.” Gore, 517 U.S. at 576, 116 S.Ct. 1589 (quotations and citations omitted). In Gore, the Court concluded that the defendant’s conduct was not sufficiently reprehensible to warrant a $2 million award and noted the absence of “deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper motive.” Id. at 579,116 S.Ct. 1589.

Thereafter, in State Farm, the Court added “intentional malice, trickery, or deceit” to the list of factors that courts should consider. 538 U.S. at 419, 123 S.Ct. 1513; see also Rhone-Poulenc Agro, S.A. v. DeKalb Genetics Corp., 345 F.3d 1366, 1371 (Fed.Cir.2003) (“For the Court’s majority, [intentional malice, trickery, or deceit] has become an important criterion of what the Constitution accepts as reprehensible conduct.”).

In State Farm, even though there was evidence that the defendant had altered company records and engaged in acts that amplified the plaintiffs’ harm, the Court held that such conduct did not warrant a $145 million award. See 538 U.S. at 419-20, 123 S.Ct. 1513. Unlike in State Farm, there is no evidence here that Chrysler engaged in any acts of intentional malice, trickery, or deceit. On the other hand, the evidence indicates that Chrysler knew that its B-pillar design was weak. Therefore, we conclude that this factor is neutral, favoring neither party.

In sum, only the first of the five factors weighs in favor of reprehensibility. The factors viewed, as a whole indicate that Chrysler’s conduct was not sufficiently reprehensible to support such a large punitive damage award. 2. Ratio: The disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award The second guidepost is the disparity between the actual or potential harm inflicted on the plaintiff and the punitive damage award.

Although the Supreme Court has not identified a concrete ratio, it has emphasized that “an award of four times the amount of compensatory damages might be close to the line of constitutional impropriety.” State Farm, 538 U.S. at 425, 123 S.Ct. 1513 (noting “long legislative history, dating back over 700 years and going forward to today, providing for sanctions of double, treble, or quadruple damages to deter and punish”); Gore, 517 U.S. at 581, 116 S.Ct. 1589 (citing 4-1 ratio); Haslip, 499 U.S. at 23-24, 111 S.Ct. 1032 (concluding that although an award of “more than four times the amount of compensatory damages” might be “close to the line,” it did not “cross the line into the area of constitutional impropriety”).

In State Farm, the Court “decline[d] again to impose a bright-line ratio which a punitive damages award cannot exceed,’’but noted that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” 538 U.S. at 425, 123 S.Ct. 1513. In this case, the district court held that the 13:1 ratio was appropriate because it “does not stray far from the single digit ratio ... recommended in State Farm,” and because it is not the type of “breathtaking” award found in either Gore (500:1) or in State Farm (145:1). Dist. Ct. Op. & Order at 9, J.A. at 39.

We agree with the district court, and with our earlier opinion, that the ratio here is not comparable to other “breathtaking” awards. State Farm makes clear, however, that this guidepost involves more than a simple comparison to other ratios: “The precise award in any case ... must be based upon the facts and circumstances of the defendant’s conduct and the harm to the plaintiff.” 538 U.S. at 425, 123 S.Ct. 1513. Based on the facts here, we conclude that a ratio of approximately 2:1 is appropriate, as will be explained further.

With respect to Chrysler’s conduct, as discussed above, there is no evidence that Chrysler acted with intentional malice, trickery or deceit, or intended to harm Mr. Clark. See discussion supra

Part II.B.1.d. Thus, a 13:1 ratio is not justified on the basis of Chrysler’s reprehensible or “particularly egregious” conduct. See State Farm, 538 U.S. at 425, 123 S.Ct. 1513 (quoting Gore, 517 U.S. at 582, 116 S.Ct. 1589) (noting that higher ratios “may comport with due process where ‘a particularly egregious act has resulted in only a small amount of economic damages’ ”). In fact, Chrysler’s conduct is not sufficiently egregious to justify even a ratio of 4:1, which in many cases may be the limit of constitutional propriety.

On the other hand, in view of the severe noneconomic harm suffered by the Clarks, the compensatory award of $235,629.13 is not overly large. See State Farm (quoting Gore, 517 U.S. at 582, 116 S.Ct. 1589) (explaining that “a higher ratio might be necessary where ‘the injury is hard to detect or the monetary value of noneco-nomic harm might have been difficult to determine’ ”). In contrast, in State Farm, the jury awarded $1 million in compensatory damages to plaintiffs who suffered economic harm.

In that case, the Court concluded that “in light of the substantial compensatory damages awarded (a portion of which contained a punitive element), a punitive damages award at or near the amount of compensatory damages” was justified. Id. at 429, 123 S.Ct. 1513. Other courts have reduced punitive damage awards to a 1:1 ratio where compensatory damages are “substantial.” See Boerner v.

Brown & Williamson Tobacco Co., 394 F.3d 594, 603 (8th Cir.2005) (holding that “substantial compensatory damages award” of over $4 million entered against tobacco company, in favor of widower whose wife died from lung cancer required punitive damages to be reduced to a ratio of approximately 1:1); Williams v. ConAgra Poultry Co., 378 F.3d 790, 799 (8th Cir.2004) (concluding that “large compensatory award” of $600,000 in racial harassment claim “is a lot of money” and reducing punitive damages to 1:1 ratio); see also Phelps v.

Louisville Water Co., 103 S.W.3d 46, 54 (Ky.2003) (noting “the relatively small amount of compensatory damages awarded” to determine appropriate ratio). The compensatory award here is not very substantial. In short, because the compensatory damage award here is not particularly large, a 1:1 ratio is inappropriate. But due to the lack of several of reprehensibility factors, any ratio higher than 2:1 is unwarranted. Accordingly, we conclude that a ratio of approximately 2:1 would comport with the requirements of due process. 3.

Sanctions for comparable misconduct The third guidepost is the difference between the punitive damage award and the civil or criminal penalties that could be imposed for comparable misconduct. In making this comparison, a reviewing court “should accord substantial deference to legislative judgments concerning appropriate sanctions for the conduct at issue.” Gore, 517 U.S. at 583, 116 S.Ct. 1589 (internal quotations and citation omitted).

In State Farm, the Court limited this comparison to civil penalties, explaining that although “[t]he existence of a criminal penalty does have bearing on the seriousness with which a State views the wrongful action[, w]hen used to determine the dollar amount of the award, ... the criminal penalty has less utility.” 538 U.S. at 428, 123 S.Ct. 1513. The Court also explained that “the remote possibility of a criminal sanction does not automatically sustain a punitive damages award.” Id.

In our previous opinion, we concluded that this guidepost weighed in favor of Clark because “automobile manufacturers are generally on notice that their reckless conduct resulting in death could trigger a substantial punitive damages award.” Clark, 310 F.3d at 482. Given State Farm’s focus on civil penalties, however, we now conclude that a $3 million punitive damage award is excessive in light of comparable civil penalties.

At the time of the truck’s design and manufacture, the maximum civil penalty that could be imposed for a design defect was $1,000 per vehicle, up to a maximum of $800,000 for a related series of violations. See 49 U.S.C. § 30165(a) (1994). The $3 million award here is significantly larger than those figures. The district court surmised that Chrysler could potentially be subjected to a larger civil penalty if it gained financially from using the defective B-pillar, or if its corporate license was suspended or revoked.

Neither party, however, presented evidence regarding whether Chrysler gained financially from installing the unboxed B-pillar, or the likelihood of Chrysler losing its corporate license. Furthermore, in State Farm, the Court warned the lower court against “speculating] about the loss of [the defendant’s] business licence, the disgorgement of profits, and possible imprisonment,” especially when “its references were to [a] broad fraudulent scheme drawn from evidence of out-of-state and dissimilar conduct.” 538 U.S. at 428, 123 S.Ct. 1513.

Thus, a comparison of the punitive damage award to the civil penalties that could be imposed for comparable conduct does not support the award and may indicate that $3 million is excessive. To summarize, an application of the Gore guideposts to the facts of this case reveals that

(1) Chrysler’s misconduct does not constitute a high degree of reprehensibility, (2) the ratio of punitive to compensatory awards is unjustifiably large, and (3) a wide gap exists between the punitive damage award and comparable civil penalties. The fact of Mr. Clark’s death does not outweigh all. Therefore, the jury’s award of $3 million as punitive damages upon an award of $235,629.13 as compensatory damages is neither reasonable nor proportionate to the wrong committed. Instead, we conclude that a ratio of approximately 2:1 or $471,258.26 in punitive damages would comport with the requirements of due process.

Accordingly, we reverse the district court’s denial of Chrysler’s motion for remittitur and remand this matter with instructions to enter a punitive damage award of $471,258.26, subject to Mrs. Clark’s acceptance. Absent Mrs. Clark’s acceptance of the remittitur, the district court is instructed to conduct a new trial, limited to determining the proper amount of the punitive damage award. See Strickland v.

Owens Corning, 142 F.3d 353, 360 (6th Cir.1998) (explaining that “the policy behind the device of remittitur ... is that if the plaintiff is willing to accept a lower amount of damages rather than incur the risks and expense of a new trial, and the defendant cannot complain because that lower amount would have been within the jury’s power to award, it is a just economy to terminate the suit without a retrial” (quoting Davis v. Consol. Rail Corp., 788 F.2d 1260, 1267 (7th Cir.1986))). C.

A new trial on punitive damages, based on trial error, is unwarranted Chrysler alternatively argues that State Farm requires a new trial in light of improper arguments and vague jury instructions. In its reprehensibility analysis, State Farm discussed how overly-broad statements or vague jury instructions may result in excessive awards. Nee 538 U.S. at 418, 123 S.Ct. 1513 (“Our concerns [over arbitrary punishments] are heightened when the decisionmaker is presented ... with evidence that has little bearing as to the amount of punitive damages that should be awarded.”).

Nothing in State Farm, however, mandates a new trial on these grounds. Nonetheless, we briefly explain why a new trial on punitive damages is unwarranted. 1. Closing arguments Because plaintiffs closing arguments did not urge the jury to punish Chrysler for its nationwide business activities or for the harm it inflicted on third party individuals, State Farm does not require a new trial on these bases. First, plaintiffs closing arguments did not improperly urge the jury to punish Chrysler for its conduct outside the state of Kentucky.

In State Farm, the Court explained that “a State [does not] have a legitimate concern in imposing punitive damages to punish a defendant for unlawful acts committed outside of the State’s jurisdiction.” 538 U.S. at 421, 123 S.Ct. 1513. The Court concluded that the plaintiff had framed the case as a chance to punish the defendant’s nationwide conduct, citing counsel’s statement that “[t]his is a very important case.... [I]t transcends the [plaintiffs’] file. It involves a nationwide practice.

And you, here, are going to be evaluating and assessing, and hopefully requiring [the defendant] to stand accountable for what it’s doing across the country, which is the purpose of punitive damages.” Id. at 420-21, 123 S.Ct. 1513 (quoting Trial Tr.). Plaintiffs opening statements in this case are unlike those in State Farm. Although plaintiffs counsel told the jury to act as the federal government, when read in context, it is clear that this remark was a response to Chrysler’s assertion that because it had complied with federal safety standards, its product was not defective.

And although plaintiffs counsel asked the jury to “send Chrysler a message” that changes are necessary, this comment was appropriately aimed at deterring Chrysler’s use of a defective door latch system in the future. See State Farm, 538 U.S. at 416, 123 S.Ct. 1513 (explaining that “punitive damages ... are aimed at deterrence and retribution”); Gore, 517 U.S. at 568, 116 S.Ct. 1589 (“Punitive damages may properly be imposed to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition.”); see also McClain v.

Metabolife Int’l, Inc., 259 F.Supp.2d 1225, 1230 (N.D.Ala.2003) (“Although plaintiffs’ counsel, as plaintiffs’ lawyers do, made the time honored argument ‘Send Them A Message,’ there was no attempt ... to punish [the defendant] for what it may have done to [others] beyond the four consumers in this case.”), rev’d on other grounds, 401 F.3d 1233 (11th Cir.2005). Here, plaintiffs opening statements simply did not urge the jury to punish Chrysler for its extraterritorial conduct. Cf. Sand Hill Energy, Inc. v.

Smith, 142 S.W.3d 153, 157 (Ky.2004) (concluding that jury was improperly encouraged to punish Ford for its nationwide conduct when presented with evidence of the number of vehicles Ford sold containing the defect at issue, the number of similar incidents, and the number of individuals who were killed by such incidents). Second, plaintiffs closing arguments did not encourage the jury to punish Chrysler for inflicting harm on third party individuals.

In State Farm, the Court explained that “[a] defendant’s dissimilar acts, independent from the acts upon which liability was premised, may not serve as the basis for punitive damages.” 538 U.S. at 422, 123 S.Ct. 1513. Contrary to Chrysler’s assertion, plaintiffs counsel did not violate this rule by referencing Mr. Goode’s accident. Unlike the “tangential” evidence that was “introduced at length” in State Farm, see id. at 423-24, 123 S.Ct. 1513, Mr. Goode’s accident was “substantially similar” to that of Mr. Clark.

Moreover, these remarks emphasize Chrysler’s failure to test its trucks, a ground upon which liability was premised. [See Interrogs. to Jury; Verdict Form, Interrog. 2, J.A. at 59.] Accordingly, plaintiffs closing arguments do not necessitate a new trial. 2.

Jury instruction Although State Farm emphasized that “[v]ague instructions, or those that merely inform the jury to avoid ‘passion or prejudice,’ do little to aid the decisionmaker in its task of assigning appropriate weight to evidence that is relevant and evidence that is tangential or only inflammatory,” 538 U.S. at 418, 123 S.Ct. 1513 (citation omitted), the Court had expressed concern previously over imprecise jury instructions on punitive damages.

See Gore, 517 U.S. at 588,116 S.Ct. 1589 (Breyer, J., concurring) (“Legal standards need not be precise ... [b]ut they must offer some kind of constraint upon a jury or court’s discretion, and thus protection against purely arbitrary behavior. The standards the ... courts applied here are vague and open ended to the point where they risk arbitrary results.”); TXO Prod. Corp. v. Alliance Res.

Corp., 509 U.S. 443, 475, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993) (O’Connor, J., dissenting) (noting that “it cannot be denied that the lack of clear guidance heightens the risk that arbitrariness, passion, or bias will replace dispassionate deliberation as the basis for the jury’s verdict”); Haslip, 499 U.S. at 18, 111 S.Ct. 1032 (explaining that “general concerns of ... adequate guidance from the court when the case is tried to a jury properly enter into the constitutional calculus”).

Therefore, in accordance with State Farm, we considered the adequacy of the jury instruction in our reprehensibility analysis above. See supra note 12. State Farm-does not require us, however, to order a new trial based on Chrysler’s previously waived or disposed-of arguments in this respect. First, because Chrysler agreed to the language of the jury instruction, the court’s failure to include the guideposts set out in title 36,

section 411.186(2) of the Kentucky Code does not necessitate a new trial. Clark provided Chrysler with two different punitive damage instructions. One contained the factors specified in

section 411.186, and the other included a common law “barebones” instruction. [J.A. at 93-94.] Chrysler agreed to the latter. [J.A. at 52.] Thus, Chrysler is not entitled to a new trial on this ground. Second, we previously rejected Chrysler’s argument that the jury should have been instructed that Chrysler’s compliance with the federal door latch standard created a presumption that the truck was not even defective. See Clark, 310 F.3d at 475-76. Given State Farm’s narrow focus on the extent of punitive damages, it is unnecessary for us to reconsider our earlier decision or to order a new trial on this basis.

Third, although State Farm stated that “[a] jury must be instructed ... that it may not use evidence of out-of-state conduct to punish a defendant for action that was lawful in the jurisdiction where it occurred,” 538 U.S. at 422, 123 S.Ct. 1513, the Court was merely reiterating a principle previously enunciated in Gore. See 517 U.S. at 572-73, 116 S.Ct. 1589 (noting that a State “does not have the power ... to punish [a defendant] for conduct that was lawful where it occurred and that had no impact on [the State] or its residents”). Therefore, Chrysler could have raised this argument earlier.

Moreover, there is no indication that Clark even introduced evidence of Chrysler’s conduct outside of Kentucky. Thus, the absence of this instruction does not necessitate a new trial. In sum, because Chrysler is not entitled to a new trial on the basis of improper closing arguments or inadequate jury instructions, we affirm the district court’s denial of Chrysler’s motion for a new trial. III.

CONCLUSION For the reasons set forth above, the district court’s order denying Chrysler’s motion for remittitur is REVERSED and this matter is REMANDED to the district court with instructions to enter an order of remittitur as to punitive damages in the amount of $471,258.26. The district court’s order denying Chrysler’s motion for judgment as a matter of law is AFFIRMED. The district court’s order denying Chrysler’s motion for a new trial is AFFIRMED. . Because we previously discussed the background of this dispute in detail in Clark v.

Chrysler Corp., 310 F.3d 461 (6th Cir.2002), we now discuss only the facts relevant to the instant disposition. . In its petition, Chrysler also asked the Court to grant plenary review to consider whether federal courts sitting in diversity should apply a federal or state sufficiency of the evidence standard in ruling on a motion for judgment as a matter of law under Federal Rule of Civil Procedure 50. Id. at *8-*18. . We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 (2000). .

The Gore Court instructed courts reviewing punitive damages to consider three guideposts: (1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damage award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-75, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). . Thus, we reinstate our earlier opinion with the exception of

Part V.B.2, which addressed the Due Process Clause issue. . Because the Supreme Court had already decided Gore, Chrysler could have invoked the three factors to challenge the constitutionality of the punitive damages award. See Am. Trim, L.L.C. v. Oracle Corp., 383 F.3d 462, 477-78 (6th Cir.2004) (explaining that "State Farm did not work a change in the law so much as it clarified existing law set forth in [Gore]"). .

The Court in Cooper Indus., Inc., 532 U.S. at 440 n. 14, 121 S.Ct. 1678 instructed courts of appeals to "defer to the District Court’s factual findings, unless they are clearly erroneous.” The Court further explained that "with respect to the first Gore inquiry ... the district courts have somewhat superior vantage over courts of appeals,” where such "advantage exists primarily with respect to issues turning on witness credibility and demeanor.” Id. at 440, 121 S.Ct. 1678; accord Willow Inn, Inc. v. Pub. Serv. Mut. Ins. Co., 399 F.3d 224, 230-31 (3d Cir.2005); Leatherman Tool Group, Inc. v.

Cooper Indus., Inc., 285 F.3d 1146, 1150 (9th Cir.2002). In this case, this advantage does not exist because the district court judge who authored the opinion under review is not the same judge who presided over the trial. See J.A. 21; see also Bankcard America, Inc. v. Universal Bancard Sys., Inc., 203 F.3d 477, 481 (7th Cir.2000) ("[b]ecause [the district court] did not preside over the ... trial, he enjoyed no special advantage in determining credibility and gauging the evidence” and “deference is not warranted”); Henry A. Knott Co. v. Chesapeake & Potomac Tel.

Co., 772 F.2d 78, 85 (4th Cir.1985) (“The problem of the successor judge ... is that one person hears the testimony and another person makes the factual findings without having seen or heard the witness .... Deference to such findings, by a district court or an appellate court, would be misplaced in such a case."). Nonetheless, our rendition of the facts parallels the factual findings of the district court. See Dist. Ct. Op. & Order, at 4-5, J.A. at 34-35. .

The court instructed the jury that it could return a verdict for punitive damages if the "conduct of Chrysler Corporation in designing, manufacturing or marketing the 1992 Dodge Ram pickup truck constituted gross negligence.” J.A. at 58. Gross negligence was defined as "a reckless disregard for the lives and safety of other persons, including Charles Clark.” Id. . In a diversity case, when a Rule 50 motion for judgment as a matter of law is based on the sufficiency of the evidence, we apply the standard of review of the state whose substantive law governs the matter — in this case, Kentucky. Am.

Trim, 383 F.3d at 471. Under Kentucky law, judgment should be granted "only if there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable minds could differ.” Morales v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir.1998) (internal quotations omitted). The court cannot substitute its judgment for that of the juiy; rather, it must review the evidence in the light most favorable to the non-moving party, who must be accorded every reasonable inference from the evidence.

Id. .Our explanation here of this earlier holding is only for clarity, as State Farm does not require us to reconsider our decision on this ground. State Farm was concerned with the amount of the award, not the jury's decision to return punitive damages. See 538 U.S. at 419-20, 123 S.Ct. 1513 ("While we do not suggest there was error in awarding punitive damages[,] ... a more modest punishment for this reprehensible conduct could have satisfied the State’s legitimate objectives ....”).

Indeed, the Court remanded the matter for "[t]he proper calculation of punitive damages.” Id. at 429, 123 S.Ct. 1513 (emphasis added). . In noting this absence of evidence, we are not revisiting our earlier holding that the trial court properly admitted the testimony of Clark's experts. See Clark, 310 F.3d at 466. Rather, in accordance with the Supreme Court's GVR Order, our analysis focuses on whether Chrysler's conduct was indifferent or reckless to the requisite degree to support the award. . It is undisputed that Chrysler complied with federal testing requirements. [J.A. at 156.] Although 49 U.S.C. § 30103(

e) provides that "Compliance with a motor vehicle safety standard ... does not exempt a person from liability at common law,” the issue here is punitive damages (emphasis added). . Citing Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 780 (Ky.1984), Clark argues that under Kentucky substantive products liability law, Chrysler is "presumed to know the qualities and characteristics, and the actual condition, of [its] product at the time [it] sells it.” Appellee's Resp. Br. at 29 n. 33. It is undisputed that Chrysler knew that its B-pillar was weak.

The issue, however, is whether Chrysler knew that such a weakness could cause the harm suffered by Mr. Clark. There is no evidence that it did. In fact, as discussed above, there is no proof that the use of a reinforced boxed-in B-pillar would have prevented Mr. Clark’s injury. See discussion supra

Part II.B.1.a; see also Gore, 517 U.S. at 579, 116 S.Ct. 1589 (rejecting plaintiff's argument that defendant should be treated as a recidivist because it "should have anticipated that its actions would be considered fraudulent”) (emphasis added). . Although Clark’s witnesses testified about several other accidents in which Chrysler vehicles experienced bypass twist-out failures, these accidents occurred subsequent to Mr. Clark’s, and are not "prior transgressions” that would have alerted Chrysler to the defect. [J.A. 132-133, 240], .

We also note that although the parties agreed to the language of the jury instruction, the instruction provided the jury with little guidance for determining an appropriate amount of punitive damages. See supra note 6. A more informative instruction may have focused the jury on the level of Chrysler's reprehensibility and prevented such an excessive award.

See State Farm, 538 U.S. at 418, 123 S.Ct. 1513 (expressing concern over "Mague instructions” that do little to help the jury to avoid assigning too much weight to evidence that may have "little bearing as to the amount of punitive damages that should be awarded”). . As noted above, the court reduced the compensatory damages award of $471,258.26 to $235,629.13 in accordance with the jury's finding that Mr. Clark was 50% at fault.

We use this reduced amount to determine the appropriate ratio because a ratio based on the full compensatory award would improperly punish Chrysler for conduct that the jury determined to be the fault of the plaintiff. See Gore, 517 U.S. at 575, 116 S.Ct. 1589 (quotations and citations omitted) ("exemplaiy damages imposed on a defendant should reflect the enormity of the offense”). Because Mrs. Clark received only $100,000 damages for loss of aid, assistance, services, and companionship for the period before Mr.

Clark’s death and no damages for the period of his life expectancy (except for pecuniary losses), J.A. at 424, the total damages may be smaller than in death cases from other jurisdictions where loss of companionship, etc. for the years after death can yield large damage amounts. Nonetheless, the punitive damage award is not to be inflated to compensate a plaintiff for damages not permitted by the relevant jurisdiction. .

Clark suggests that this guidepost is insignificant because, although the Court in State Farm observed that the defendant may have been subject to a $10,000 fine under comparable state laws, it approved a punitive damage award "at or near the amount of compensatory damages,” which was 100 times greater than the comparable civil penalty. Appellee's Resp. Br. at 33-34. This guidepost, however, does not dictate what the punitive damage award should be, but rather indicates whether the award is unreasonably excessive.

See Gore, 517 U.S. at 583, 116 S.Ct. 1589 (describing third guidepost as an "indicium of excessiveness”). . The district court relied on Mathias v. Accor Economy Lodging, Inc., 347 F.3d 672 (7th Cir.2003) to argue that it is appropriate to consider the loss of a business license in the comparable-penalty inquiry. In Mathias, unlike here, however, there was evidence that Motel 6, which knowingly rented rooms infested with bedbugs, gained financially from its misconduct and could likely lose its business license.

See id. at 677 (concluding that Motel 6 profited from the fraud "because by concealing the infestation it was able to keep renting rooms. Refunds were frequent but may have cost less than the cost of closing the hotel for a thorough fumigation.”); Id. at 678 (noting that under Chicago Municipal Code, "a Chicago hotel that permits unsanitary conditions to exist is subject to revocation of its license, without which it cannot operate”). . Contrary to Clark’s assertion, Chrysler did not waive this argument by failing to object to plaintiff's closing arguments at trial.

In the Sixth Circuit, if "counsel's closing argument is improper, and if there is a reasonable probability that the verdict of [the] jury has been influenced by such conduct, it should be set aside,” even if opposing counsel failed to object. Strickland, 142 F.3d at 358 (alteration in original) (quotations and citation omitted). However, "failure to object at trial to closing arguments does raise the degree of prejudice which must be demonstrated in order to get a new trial on appeal.” Id. .

Specifically, counsel stated that "the only test Chrysler Corporation has done that has anything to do with the door latch and the door latch coming open is what's required by the federal government.... They are saying, we are going to not do anything unless Uncle Sam makes us.... Well, today ... you all are the federal government in this case.” J.A. at 394. .

In particular, counsel stated that "[t]he message to send Chrysler, I think they need to get, somebody needs to get their attention and say you don't do this,” J.A. at 406; "the message that should be sent is do better,” J.A. at 407; "the evidence warrants punitive damages. And it should be enough that somebody at Chiysler Corporation up in Detroit or wherever ... knows about this and somebody gets enough that somebody asks, wait a minute, why did that jury in London, Kentucky, why did they award this amount of punitive damages? What was that case about?” J.A. at 407-08. .

There are three comments at issue: First, counsel told the jury that unlike Charles Clark, Mr. Goode was wearing his seatbelt and "[sjtill got ejected” from a Chrysler vehicle. J.A. at 391. Second, counsel stated that "Charley Clark tested [the truck] for Chrysler. Perry good [sic] tested it for Chrysler. Chrysler didn't test it.” J.A. at 400. Third, counsel told the jury that "punitive damages are to send a message.... The message to send Chrysler, I think they need to get, somebody needs to get their attention and say you don't do this. You test [the trucks] before you sell them.

You don’t wait until somebody ‘gets killed and hire [an expert] to run a test that has nothing to do with the facts of this case.... You test them before Perry Goode gets thrown out and laid up for two years. You test them before Charles Clark gets killed.” J.A. at 405-06. .The trial judge explained, "I found substantial similarity in that the striking vehicle struck with the right front fender; the struck vehicle was hit in the left front fender; ... the B pillar on the club Ram pickup is identical, according to ... interrogatory responses ... to the 1992 B pillar on the ... club Ram pickup that Mr.

Clark was driving.” J.A. at 251-52. . The five factors specified in the statute are (1) the likelihood that serious harm would arise from the defendant’s misconduct; (2) the degree of the defendant's awareness that serious harm would occur; (3) the profitability of this misconduct to the defendant; (4) the duration of the misconduct, and any concealment of it by the defendant; and (5) any actions taken by the defendant to remedy the misconduct once the defendant became aware of the misconduct. Ky.Rev.Stat. Ann. § 411.186(2). .

Moreover, Chrysler did not challenge the instruction on this basis on its first appeal, see Clark, 310 F.3d 461; and in its petition for writ of certiorari, it argued this point only with respect to reprehensibility, see Pet. for Writ of Cert., No. 02-1748, 2003 WL 22428164, at *22, n. 9. . It is clear, then, that there is no true "good-faith dispute” over the necessity of B-pillar testing. Therefore, the cases cited in the lead opinion for the proposition that a good-faith dispute precludes a finding of indifference to or reckless disregard of others' safety, Barber v.

Nabors Drilling U.S.A., Inc., 130 F.3d 702 (5th Cir.1997); Satcher v. Honda Motor Co., 52 F.3d 1311 (5th Cir.1995), cert. denied, 516 U.S. 1045, 116 S.Ct. 705, 133 L.Ed.2d 661 (1996), are inapposite.