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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ERIE
JOANNA KOLETAR, EXECUTRIX OF THE ESTATE
OF FRANK J. KOLETAR, JR., DECEASED, AND
INDIVIDUALLY AS THE SURVIVING SPOUSE OF MEMORANDUM OF LAW
FRANK J. KOLETAR, JR., IN SUPPORT OF MOTION
TO PRECLUDE
Plaintiffs, PUNITIVE DAMAGES
vs.
Index No. 815983/2018
AIR & LIQUID SYSTEMS CORPORATION, et al,
Defendants.
PRELIMINARY STATEMENT
"Zurn"
Defendant Zurn Industries, LLC (hereinafter or "defendant") moves in limine to
preclude evidence of, references to, or any prejudicial remarks relating to, punitive damages.
Zurn respectfully requests this court to grant the within motion because: (1) this is not the type of
case for which punitive damages were intended as it would serve no retributive or deterrent
function; (2) there is insufficient evidence to support punitive damages against Zurn; (3) any
award of punitive damages in this action would violate Zurn's constitutional rights; and (4) the
financial status of the defendant is undiscoverable and inadmissible prior to a verdict on liability.
The court should preclude Plaintiffs from: claiming the imposition of punitive damages in this
case; referring to punitive damages during opening statements and summation; suggesting any
specific amount of punitive damages before the jury at any point in the trial; discussing or
presenting evidence before jury the financial condition of the defendant.
STATEMENT OF FACTS
The relevant facts are set forth in the accompanying attorney affirmation of Nicholas P.
Fedorka, Esq. dated February 1 1,2020, which is hereby expressly incorporated.
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ARGUMENT
Plaintiffs brought this action against numerous defendants, including Zurn, for personal
injuries arising out of Decedent Frank J. Koletar, Jr.'s alleged exposure to asbestos-containing
products while working as a journey refractory bricklayer at various jobsites from 1961 until
1979. Plaintiffs further allege Mr. Koletar developed mesothelioma and died as a result of the
alleged asbestos exposure. Plaintiffs aver in the complaint that punitive damages are warranted,
without producing any evidence through discovery to support that claim. Therefore, Zurn moves
in limine for an order excluding any and allevidence related to punitive damages in this action.
Plaintiffs have not proffered evidence supporting its claim that Zurn was aware of the risk
of mesothelioma developing in people exposed to itsasbestos-containing materials, if any, under
the circumstances presented by this case at the relevant time (which is no later than 1960s).
Plaintiffs may try to impute knowledge of danger to Zurn by reliance on earlier literature
indicating that miners of asbestos developed disease. They may argue that Zurn may have
Plaintiffs'
somehow had access to that type of information. However, there is no basis for
contention that Zurn acted with reckless disregard for the health of the people who may have
worked with or in the vicinity of such asbestos-containing products. Therefore, the evidence does
not warrant an award of punitive damages.
L POLICY CONSIDERATIONS HOLD AGAINST APPLICATION OF PUNITIVE DAMAGES,
BECAUSE IT WOULD NOT SERVE ANY RETRIBUTIVE OR DETERRENT ROLE.
The application for punitive damages serves no retributive or deterrent role, and serve no
public policy function. The purpose of punitive damages is "not to compensate the injured party
but rather to punish the tortfeasor and to deter this wrongdoer and others similarly situated from
future."
indulging in the same conduct in the Xiaokang Xu v Xioling Shirley He, 2017 NY Slip
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Op 01412 (3d Dept. Feb. 23, 2017). Judicial preclusion of punitive damages is justified where
such an award will not serve any proper purposes, but instead will harm other, even more
fundamental interests, such as the compensation of injured parties and the protection of the
defendants'
rights to due process. See, e.g., BMW v. Gore, 517 U.S. 559, 568 (1996) (holding
that the Due Process Clause prohibits grossly excessive awards of punitive damages); Motorola
Credit Corp. v. Uzan, 509 F.3d 74 (2d Cir. N.Y. 2007) (same). The Supreme Court has noted
punitive damages pose a particular problem for corporations such Zurn, observing that "the rise
of large, interstate and multinational corporations has aggravated the problem of arbitrary awards
juries."
and potentially biased Honda Motor Co. v. Oberg, 512 U.S. 415, 431 (1994).
As argued below, the values of retribution and deterrence are not furthered by imposing
such damages in this case. Compensatory damages sufficiently punish the defendant in a case
such as this, the theory of liability is predicated on strict liability and where the plaintiff seeks
recovery for mental anguish and loss of enjoyment of life. Furthermore, there is no possibility of
the defendant from the alleged as Zurn has not sold an asbestos-
deterring repeating tort,
containing product in 40 years.
A. Imposing Punitive Damages Serves No Retributive Function.
As many courts have recognized, punitive damages are not necessary where
compensatory damages also function to deter the tortious conduct. See, e.g., Roginsky v.
Richardson-Merrell, Inc., 378 F.2d 832, 841 (2d Cir. 1967) (reversing punitive award and noting
that "heavy compensatory damages, recoverable under some circumstances even without proof
objectives"
of negligence, should sufficiently meet these otherwise served by punitive damages,
since "[m]any awards of compensatory damages doubtless contain something of a punitive
element"); Jet Source Charter, Inc. v. Doherty, 148 Cal. App. 4th 1, 10 (Cal. App. 4th Dist.
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element"
2007) (holding that "[c]ompensatory damages, however, already contain this punitive
of condemning behavior); Blood v. Qwest Servs. Corp., 224 P.3d 301, 331 (Colo. Ct. App. 2009)
(holding that "[c]ompensatory damages for an injury may well be based on components that are
duplicated in the exemplary damages award, particularly where the compensatory damages
include amounts for emotional distress"); Restat. 2d of Torts, § 908 (2nd 1979) (where
compensatory damages include emotional distress, there is "no clear line of demarcation between
punishment and compensation and a verdict for a specified amount frequently includes elements
of both"); Prosser and Keeton on Torts § 4 at 25-26 (one reason for imposing tort liability is to
provide incentive to avoid future harm; this "idea of prevention shades into punishment of the
offender.").
Plaintiffs'
Here, complaint re-asserts claims for mental anguish and loss of enjoyment of
life as part of their punitive damage claim. See, Exhibit A. As compensatory damages cover
these claims, an award of punitive damages would be duplicative and provide an unnecessary
windfall to Plaintiff's counsel. Therefore, the court should dismiss the punitive damages claim.
Justice Helen Freedman, who supervised New York City Asbestos Litigation from 1987
through 2008, has persuasively argued in published literature concerning litigation that "to
charge companies with punitive damages for wrongs committed twenty or thirty years before,
served no corrective purpose. In many cases, the wrong was committed by a predecessor
charged."
company, not even the company now Justice Helen E. Freedman, Selected Issues in
Asbestos Litigation, 37 SW. U.L. Rev. 511, 527 (2008). This point is salient, as Zurn ceased all
manufacturing of asbestos-containing products before 1980.
Courts have also recognized that the sheernumber of claims for compensatory damages sufficientlypenalize the
defendants in asbestos cases.See, e.g, Dunn v. Hovic, 1 F.3d 1371, 1397 (3d Cir.V.I. 1993) ("The avalanche of
compensatory claims against asbestos manufacturers has surely served as more of a punishment and deterrentthan
individual punitive assessments in isolatedcases againstmanufacturers of othertypes of products.")
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B. Imposing Punitive Damages Serves No Deterrence Value.
Moreover, an award of punitive damages would have no deterrent effect because Zurn
does not sell asbestos-containing products. In Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478
(2007) the Court of Appeals held that due to statutory enactments subsequent to the tortious
conduct, itwould be unlikely "that these [punitive] damages would deter future reprehensible
conduct". Therefore, the court limited the Plaintiff's award to compensatory damages. Id at 491.
Appeals'
Essential to the Court of reasoning was the purpose of punitive damages to
others"
"punish the tortfeasor and to deter this wrongdoer and from repeating the wrongdoing.
Id at 489. (emphasis added). Because statutory enactments ensure against repetition, the court
found punitive damages to be unnecessary. See also, Restatement 2d of Torts, § 908 (2nd 1979)
(punitive damages are awarded against a defendant to "deter him and others like him from
similar conduct").
In the context of asbestos litigation in particular, the low deterrence value strongly
militates against imposing punitive damages. The "deterrence and retribution rationales for
punitive damages are not implicated in asbestos cases because of the significant time lapse since
conduct" ensured"
the relevant and because "federal regulation has largely the tortious conduct
will not be repeated. Sanchez v. Various Defendants (In re Asbestos Prods. Liab. Litig.), 2014
2014).2
U.S. Dist. LEXIS 92959, CCH Prod. Liab. Rep. P19,424 *64-65 (E.D. Pa. July 9,
Therefore, an award of punitive damages in an asbestos case cannot be justified by reference to
deterrence.
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For this reason, the real victims of punitive damages are the thousands of claimants who are foreclosed from
recovery because of the insolvency of asbestos defendants. As JusticeHelen Freedman has persuasively argued,
"punitive damages, infrequently paid as they are, only deplete resources that arebetter used to compensate injured
parties".Justice Helen E. Freedman, Selected Issues in Asbestos Litigation,37 SW. U.L. Rev. 511, 527 (2008). To
mitigate thisproblem, the Third Circuit has affirmed the practice of severing claims for punitivedamages altogether
windfalls."
in order "to give priorityto compensatory claims over exemplary punitive damage In re Collins, 233
F.3d 809, 812 (3d Cir.2000).
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In light of the null rationale for punitive damages, Judge Friendly of the Second Circuit
held that New York courts should:
consider very seriously whether awarding punitive damages with
respect to the negligent -- even negligent -- manufacture and
highly
sale of a drug governed by federal food and drug requirements,
especially in the light of the strengthening of these by the 1962
amendments, 76 Stat. 780 (1962), and the present vigorous attitude
toward enforcement, would not do more harm than good. Roginsky
v. Richardson-Merrell, Inc., 378 F.2d 832, 840 (2d Cir. 1967)
In a pattern of reasoning that mirrors that of the New York Court of Appeals in Ross,
Judge Friendly posited that because of federal regulations and the nation-wide attitude towards
enforcement of such federal regulations, an award of punitive damages today may no longer
good."
serve a purpose, and may even "do more harm than While Roginsky dealt with drug
regulations and the Ross dealt with agency disclosure regulations, the principle is the same: the
value of an award of punitive damages plummets where subsequent statutory and regulatory
enactments have ensured against a repetition of the harm.
Here, there is no indication that an award of punitive damages would deter Zurn from
distributing or producing asbestos-containing materials since has not done so in several decades.
Thus, an award of punitive damages as to a company who does not incorporate asbestos into its
products would have zero deterrence value.
In sum, the policies underlying punitive damages would not be served where itduplicates
any award for compensatory damages, and where itfails to deter the defendant and similarly
situated defendants from similar conduct in the future. Here, the award would duplicate damages
already obtained by compensating the Plaintiffs for mental anguish and loss of enjoyment of life.
The award would also have no deterrence value because federal regulations have ensured that the
Plaintiffs'
alleged tortious conduct will not be repeated. Accordingly, the court should strike the
cause of action for punitive damages.
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H. THE EVIDENCE DOES NOT SUPPORT AN AWARD FOR PUNITIVE DAMAGES.
Punitive damages may only be awarded where the plaintiff clearly establishes that
defendant engaged in morally reprehensible conduct. Here, there is no such factual showing that
warrants a punitive damage claim against Zurn.
Under New York law, punitive damages are "intended as punishment for gross
misbehavior for the good of the public and have been referred to as a sort of hybrid between a
fine."
display of ethical indignation and the imposition of a criminal Home Ins. Co. v. Am. Home
Produs. Corp., 75 N.Y.2d 196, 203 (1990) (internal quotation omitted). The Third Department
has held that such damages may "be awarded where a defendant's conduct, even though
unintentional, is grossly negligent, or wanton or so reckless as to amount to a conscious
others"
disregard of the rights of Guariglia v. Price Chopper Operating Co., Inc., 38 A.D.3d
1043, 1043 (3d Dept. 2007). See Xiaokang Xu v Xioling Shirley He, 2017 NY Slip Op 01412, 2
(3d Dept. Feb. 23, 2017) (holding that the defendant must display a "criminal indifference to
civil obligations"); 36 N.Y. Jur. Damages § 175 (2003) ("The degree of misconduct necessary to
warrant and uphold the allowance of punitive damages has been defined in varying language, but
all definitions involve the idea of the intentional, wanton, willful, or malicious commission of
some illegal act, or of such a perverse and obstinate failure to discharge a duty as warrants the
presumption of a reckless indifference to the rights of others which is equivalent to intentional
misconduct.").
Further, the Fourth Department has held that punitive damages are only appropriate in
those singularly rare cases where the plaintiffs presented evidence of outrageous conduct by the
defendant. See, Matter of Eighth Jud. Dist. Asbestos Litig., 92 A.D.3d 1259 (4th Dept. 2012).
Such evidence must be clearly established, and must be determined by the facts at the time the
alleged tortious conduct occurred. Ross v. Louise Wise Servs., Inc., 8 N.Y.3d 478, supra. An
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"award for punitive damages must be supported by clear, unequivocal, and convincing
evidence."
Camillo v. Geer, 185 A.D.2d 192 (1st Dept. 1992) (citations omitted). See also,
Sladick v. Hudson Gen. Corp., 226 A.D.2d 263, 264, 641 N.Y.S.2d 270, 271 (1st Dept. 1996)
defendants'
("Plaintiffs failed to demonstrate by clear, unequivocal and convincing evidence that
conduct was so wanton or reckless as to justify an award of punitive damages."); Orange &
Rockland Utils., Inc. v. Muggs Pub, Inc., 292 A.D.2d 580 (2d Dept. 2002); Randi A. J. v. Long
Is. Surgi-Center, 46 A.D.3d 74, 86 (2d Dept. 2007); Mahoney v. Adirondack Pub. Co., 123
A.D.2d 10 (3d Dept. 1986) (rev'd on other grounds); Vicuna v Empire Today, LLC, NY Slip Op
30935(U) (Sup. Ct. New York Cty., 2014); Messner v Medtronic, Inc., 39 Misc. 3d 1213(A)
(Sup. Ct. Richmond Cty. 2013);
evidence"
Here, even if the Court were to apply the "preponderance of the standard
espoused by the Fourth Department in In re Seventh Judicial Dist. Asbestos Litig. (190 A.D.2d at
1069 [4th Dept. 1993]), Plaintiffs have produced no evidence to prove Zurn engaged in
outrageous and morally reprehensible conduct.
plaintiffs'
The Hon. James McCarthy confirmed this vigorous standard in dismissing
punitive damages claim in the case of Gerber v. Garlock, et al. See Letter Decision dismissing
punitive damages claim, decided May 1, 2009, attached as Exhibit C. Likewise, the Fourth
Department applied this standard, vacating an award of punitive damages in the case of
Drabczyk v. Fisher Controls International, LLC (citing Matter of New York Asbestos Litigation,
89N.Y.2d 955 [1997]), attached as Exhibit D.
Plaintiffs herein offer no competent evidence that Zurn supposedly knew, at the relevant
times, that exposure to background levels of asbestos could result in the development of
mesothelioma. The Fourth Department further held "as a predicate for awarding punitive
damages against defendant corporations, the jury had to find that superior officers of the
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corporations, acting in the course of their employment, authorized, participated in, consented to,
misconduct."
or ratified the See Bensen v. Syntex Laboratories, Inc., 249 A.D.2d 904, 905 (4th
Dept. 1998); see also Wood v. Strong Mem'l Hosp. of Univ. of Rochester, 273 A.D.2d 929 (4th
Dept. 2000) (same); 1 Mott St., Inc. v. Con Edison, 33 A.D.3d 531, 532 (1st Dept. 2006)
("employer liability for punitive damages can result only when a superior officer in the course of
employment orders, participates in, or ratifies the outrageous conduct") (internal quotations
omitted). A jury may not consider the imposition of punitive damages against a defendant based
parties'
on evidence of other purported knowledge or general awareness of the dangerous nature
of other forms or types of asbestos products in other environments.
Plaintiffs herein may attempt to rely upon knowledge, inquiries, or speculation by parties
other than Zurn concerning generalized risks of asbestos. Such measures cannot support a
punitive damage award against Zurn relating to any alleged but unsubstantiated contentions that
Zurn exhibited deliberate indifference to health and safety.
Plaintiffs have failed to present sufficient evidence justifying an award of punitive
damages against Zurn. Specifically, Plaintiffs have failed to present sufficient evidence that
malice,"
could establish the "improper state of mind or "conscious disregard of the rights of
others," culpability"
or "high degree of moral necessary to support a punitive damages award to
Plaintiffs'
that outcome. Therefore, the court should dismiss the claim for punitive damages.
Ill. CONSTITUTIONAL PROTECTIONS AND PUBLIC POLICY PRECLUDE PUNITIVE DAMAGES
AGAINST ZURN.
As demonstrated above, New York law precludes any award of punitive damages against
Zurn. Punitive damages are also precluded by the constitutional proscriptions against state
deprivation of property without due process. In any case in which a jury is requested to assess
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punitive damages, the court has an important responsibility to prevent arbitrary deprivation of
property. As the United States Supreme Court held:
[p]unitive damages pose an acute danger of arbitrary deprivation of
property. Jury instructions typically leave the jury with wide
discretion in choosing amounts, and the presentation of evidence of
a defendant's net worth creates the potential that juries will use
their verdicts to express biases against big businesses, particularly
those without strong local presences. Honda Motor Co. v. Oberg,
512 U.S. at 432 (1994)
Recently, the Supreme Court confirmed the courts need to exercise more stringent control
on the type of evidence that can be presented to juries considering punitive damages and the
instructions juries receive. After quoting the language above from Honda Motor, the Supreme
Court in State Farm Mutual Automobile Insurance Co. v. Campbell stated:
Our concerns [regarding arbitrary deprivations of property based
on biases against big businesses] are heightened when the decision
maker is presented ... with evidence that has little bearing as to the
amount of punitive damages that should be awarded. Vague
instructions, or those that merely inform the jury to avoid "passion
prejudice,"
or . .. do little to aid the decision maker in itstask of
assigning appropriate weight to evidence that is relevant and
evidence that is tangential or only inflammatory. State Farm, 538
U.S. at 418.
The Supreme Court reaffirmed the judiciary's central role in guarding against excessive
punitive damages by requiring appellate courts to engage in de novo review of the excessiveness
of punitive damages awards. Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S.
424, 440-443 (2001). See also, State Farm, 538 U.S. at 427 (reversing $145 million punitive
award based on $1 million in compensatory damages, holding that the state court improperly
allowed the jury to consider out-of-state conduct and alleged harm to non-parties, and noting that
the "wealth of a defendant cannot justify an otherwise unconstitutional punitive damages
award"). Further, the Court held that judicial supervision and control of the punitive damages
system must emphatically begin long before a jury renders its verdict. Id. at 420-421 (finding
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that the trial court misinterpreted Supreme Court precedent by refusing to limit evidence, and
further emphasizing that trial courts must instruct juries on limitations on what they may
consider in assessing punitive damages). As such, constitutional protections and pubic policy
preclude punitive damages against Zurn in the present matter.
A. Evidence or Discussion Defendant's Wealth, Including itsNet or Gross Worth,
Must Not Be Presented Before the Jury at Any Phase of the Trial.
It follows from the court's duty to guard against punitive damages before the jury renders
a verdict that the court should prohibit plaintiff from presenting information on defendant's
financial wealth, including its net or gross worth, to the jury. Presenting evidence of defendant's
financial condition runs afoul of the protections afforded by the Due Process clause. Moreover,
evidence of defendant's conduct outside the state of New York must not be discussed or
presented before the jury. The court should exercise its supervisory authority by prohibiting the
plaintiff from engaging in such prejudicial tactics.
Here, there is no reason to permit Plaintiffs to present to the jury evidence of Zurn's
finances, and to do so would violate due process. In defining the standards for constitutionally
required review of punitive damage awards, the Supreme Court identified three guideposts for
judging the reasonableness of a jury's award and the propriety of the process that produced the
award: (1) the degree of reprehensibility of the defendant's conduct; (2) the ratio of the award to
the actual harm inflicted on the plaintiff; and (3) a comparison with the civil and criminal
penalties imposed for comparable misconduct. BMW v. Gore, 517 U.S. at 575-583.
"guideposts,"
None of these due process components, or in any way depends on a
defendant's wealth, as the Supreme Court confirmed in State Farm, 538 U.S. at 427 (noting that
Campbells,"
State Farm's assets "had littleto do with the actual harm sustained by the and
holding that "[t]he wealth of a defendant cannot justify an otherwise unconstitutional punitive
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damages award"). A defendant's assets or wealth "bear no relation to the award's reasonableness
harm."
or proportionality to the Id. Arguments based on wealth or assets merely "seek to defend
damages."
a departure from well-established constraints on punitive Id.
The Supreme Court in State Farm and BMW v. Gore rejected arguments that evidence of
a defendant's financial status can be invoked to justify a large punitive damage award. Id. at 427;
BMW v. Gore, 517 U.S. at 575-83. Although the plaintiffs in BMW defended the award in part by
reference to BMW's financial condition, the Supreme Court did not even consider that factor in
deciding whether the jury award violated the defendant's right to due process. BMW v. Gore, 517
U.S. at 574-585. In a subsequent case, the Court of Appeals agreed with defendant that "the
emphasis on the wealth of the wrongdoer increased the risk that the award may have been
influenced by prejudice against large corporations, a risk that is of special concern when the
nonresident."
defendant is a Txo Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 464 (1993).
See also Zazu Designs v. L'Oreal S.A., 979 F.2d 499, 508 (7th Cir. 1992) (finding that a
defendant's financial condition is completely unrelated to the victim's injury or "the size of the
award needed to cause corporate managers to obey the law").
Appeals'
Following the Court of decisions in BMW, State Farm and Txo Prod. Corp.,
defendants'
many courts have noted with concern attempts to sway juries based on character as
financially stable corporations. During the closing statements of the trial in Rockwell Int'l Corp.
v. Wilhite, (143 S.W.3d 604 [Ky. Ct. App. 2003j), the plaintiff's counsel made various
disparaging remarks regarding the defendant-appellant Rockwell International Corporation based
on its status as a large multinational corporation. The jury awarded punitive damages in the
amount of $210,000,000, which the trial court affirmed. Upon appeal, the Kentucky Court of
Appeals reiterated the Supreme Court's concern that the emphasis of the wrongdoer's wealth
indicated prejudice. The court reminded the litigants that the "case should be tried on its merits
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parties."
without reference to the wealth or poverty of the Rockwell Int'l Corp. v. Wilhite, 143
S.W.3d at 630. Itheld that references to the defendant's wealth, such as the jury should "make
pay" condition"
the rich defendants was "an unwarranted reference to the financial of the
defendant. Id.
Basing an award of punitive damages on Zurn's finances would impermissibly supplant
and ignore the substantive constitutional guideposts recognized in BMW v. Gore. Augmenting an
award of punitive damages based on the wealth of a defendant who otherwise was found to have
acted in a reprehensible manner (which, here, Zurn did not) would be, in the closely analogous
context of criminal sanctions, like imposing a longer sentence on a defendant simply because he
has a longer statistical life expectancy. Not surprisingly, post-BMW v. Gore lower Court
decisions, like the Supreme Court in State Farm, have held that evidence of net worth cannot
alone support an award that is higher than the award supported by the three BMW v. Gore
guideposts. See, e.g., Continental Trend Resources, Inc. v. OXY USA, 101 F.3d 634, 641 (10th
Cir. 1996) ("From the court's statements we conclude that a large punitive award against a large
corporate defendant may not be upheld on the basis that it isonly one percent of its net worth or
a week's corporate profits."); Lane v. Hughes Aircraft Co., 22 Cal 4th 405, 427 (2000) (Brown,
J. concurring) (holding plaintiffs should be precluded from arguing that punitive damages should
be "a fixed pe