Petition for Writ of Certiorari — Consolidated Rail Corp. v. Wightman
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In The
Supreme Court of the United States
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CONSOLIDATED RAIL CORPORATION,
Petitioner,
DARLENE M. WIGHTMAN, Administratrix of the Estate
of Michelle L. Wightman, Deceased; MICHELLE
WIGHTMAN CHARITABLE FOUNDATION,
Respondents.
¢
On Petition For A Writ Of Certiorari
To The Supreme Court Of Ohio
¢
PETITION FOR A WRIT OF CERTIORARI
iS
vv
CarTeR G. PHILLIPS ArtIN M. Apams*
SipLcey & AUSTIN RatPpH G. WELLINGTON
1722 Eye Street, N.W. Nancy WINKELMAN
Washington, D.C. 20006 STEPHANIE I.R. FIDLER
(202) 736-8711 Bruce P. MERENSTEIN
SCHNADER HARRISON SEGAL &
Lewis LLP
1600 Market Street,
Suite 3600
Philadelphia, PA 19103
(215) 751-2000
Counsel for Petitioner
*Counsel of Record
4 de Ho
a ee ee ee
QUESTIONS PRESENTED
1. Whether the Due Process Clause of the Four-
teenth Amendment is violated where a state
imposes a $15,000,000 punitive damages award
after a process that was fundamentally flawed
because: (a) there existed a substantial possibility
of judicial bias by the state’s highest court that
went unaddressed by that court when it affirmed
the punitive damages award; and (b) the trial
court prevented defendant from presenting its
evidence with respect to defendant’s reprehen-
sibility and the circumstances of the accident,
allowed the jury to hear only plaintiff’s version
of the case, and thereby deprived defendant of a
full and fair opportunity to present its defense.
2. Whether, in determining if a punitive award is
constitutionally proportional, the proper compar-
ison is to the compensatory damages awarded for
the cause of action for which the state makes
punitive damages available, as the majority of
lower courts have held, which in this case means
that the punitive award is 6,250 times greater
than the compensatory award, in clear violation
of BMW of North America, Inc. v. Gore, 517 U.S. 559
(1996).
PARTIES TO THE PROCEEDING AND
DESIGNATION OF CORPORATE RELATIONSHIPS
All of the parties to the proceeding are named in the
caption. The parent companies of Consolidated Rail Cor-
poration are Conrail, Inc., which is the 100% owner of
Consolidated Rail Corporation; Green Acquisition Cor-
poration, which is the 100% owner of Conrail, Inc.; and
CRR Holdings LLC, which is the 100% owner of Green
Acquisition Corporation. Norfolk Southern Corporation
and CSX Corporation each own 50% of the stock of CRR
Holdings LLC. The non-wholly owned subsidiaries of
Consolidated Rail Corporation are LMS Partnership
(50%) and Indiana Harbor Belt R.R. Company (51%).
TABLE OF CONTENTS
Page
GPR eePe Me? EP MOIW NED ooo cece ccc recccccencnscne i
PARTIES TO THE PROCEEDING AND DESIGNA-
TION OF CORPORATE RELATIONSHIPS........ ii
pot OS Gs spe: 8 5 6: BRN pee na para area vi
iE ao Keine un alu np 4+. 0 ocd-a pas 6 «0c 2
STATEMENT OF JURISDICTION................... 3
CONSTITUTIONAL PROVISION INVOLVED....... 3
RMUEEOES AO WER CANOE eso es eke eee... 3
REASONS FOR GRANTING THE WRIT ........... 9
I. CERTIORARI SHOULD BE GRANTED TO
CLARIFY THE PROCESS THAT IS DUE BEFORE
A STATE MAY IMPOSE A SUBSTANTIAL PUNI-
EE Sa ee PUNEIRIT 6 kc oo knic con cage cacee 9
A. The Decision of the Supreme Court of Ohio
Is Inconsistent with this Court’s Decisions in
Lavoie and Oberg Because it Allows Ohio To
Impose a Substantial Punitive Damages
Award Without Full and Fair Appellate
MUU SR ei eS ates 008s See NS eae oes 10
B. The Decision of the Supreme Court of Ohio
Is Inconsistent with this Court’s Decisions in
Haslip and Oberg, as Petitioner Has Been
Deprived of Substantial Property Without
the Basic Due Process Right of Being Permit-
ted to Introduce Significant Relevant Evi-
dence in its Own Defense................. 16
iv
TABLE OF CONTENTS - Continued
Page
Il. CERTIORARI SHOULD BE GRANTED TO
RESOLVE A CONFLICT AMONG THE LOWER
COURTS REGARDING THE PROPER PROPOR-
TIONALITY ANALYSIS WHEN REVIEWING A
PUNITIVE DAMAGES AWARD................ 20
A. There Is a Conflict among the Lower Courts
Regarding the Proper Foundation for Mea-
suring the Proportionality of a Punitive
ERG PTI ian kovbacecdt idkeacenss 21
B. A Punitive Damages Award That Is 6,250
Times Greater than the Compensatory
Award 'on Which it Is Based Is Grossly
Excessive and Violative of the Due Process
Clause of the Fourteenth Amendment ..... 24
COCA IIe io bok boa haba ka ee he a ee 26
APPENDIX
Opinion of the Supreme Court of Ohio, dated
September 15, 1999, 715 N.E.2d 546 (Ohio 1999) .... 1a
Opinion and Judgment Entry of the Court of
Appeals of Erie County, Ohio, dated September
30, 1997, No. E-97-001, 1997 Ohio App. LEXIS
4576 COS CE PA BRR ai na i ds Re eee ss 34a
Opinion and Order of the Common Pleas Court of
Erie County, Ohio, dated December 5, 1996, No.
89-CV-416, 1996 Ohio Misc. LEXIS 84 (C.P. Ct.
en Merry Pee poe Pron rer on tn op rere 50a
Judgment Entry of the Common Pleas Court of
Erie County, Ohio, dated October 31, 1995....... 72a
Judgment Entry of the Common Pleas Court of
Erie County, Ohio, dated November 10, 1992 .... 74a
| mee nent G ener Ree ar mre nen nme rene r nr neree cn
Vv
TABLE OF CONTENTS - Continued
Page
Motion of Consolidated Rail Corporation to the
Supreme Court of Ohio to Recuse Justice
Francis E. Sweeney and Justice Paul E. Pfeifer
and Memorandum in Support Thereof (Filed
Under Seal), dated January 7, 1999 .............. 75a
vi
TABLE OF AUTHORITIES
Page
Cases
Aetna Life Ins. Co. v. Lavoie,
75. WS. BES CROSS oa ces eae tecpes 1-2; ep 38, 14
Atlantic Coast Line R.R. v. Bennett, 251 F.2d 934
(Qty Cit. BODE) ois vncsccicnvicns se tebeences eabaanas 19
Atlas Food Sys. & Servs., Inc. v. Crane Nat'l Vendors,
Inc., 99 F.3d SO7 (Gite: Cie. 2956p. once Sti cees.s 18
BMW of N. Am., Inc. v. Gore, 517 U.S. 559
(1996) oie knd odie Peeves anes 1, 17, 20, 21, 23-25
Chambers v. Mississippi, 410 U.S. 284 (1973)....... 16, 17
Creative Demos, Inc. v. Wal-Mart Stores, Inc., 955
F. Supp. 1032 (S.D. Ind. 1997), aff'd in relevant
part, 142 B.3d 367 (7th Cis. 1908). .6.. vicsevcavcans 22
Fury Imports, Inc. v. Shakespeare Co., 554 F.2d 1376
(Sth. Che: 2978) cna oo wanciccan eae mae ek eee 19
Gasoline Prods. Co. v. Champlin Ref. Co.,
283 US. GOR CSSD 6 ics sch asin kaddddotennnaes 16
Green v. Georgia, 442 U.S. 95 (1979)
(sree CUMBRIA) io aca ain Leen 5 Si pe wees SSR pide 8S 16, 18
Grynberg v. Citation Oil & Gas Corp.,
S73. NWi2k OOS: CBD TORT i hs Cenc is vine Cena 22
Honda Motor Co. v. Oberg, 512 U.S. 415 (1994)... passim
Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403
(S.DINY., SOBG) sich s is} sa ten Coie Sin ean eats 23
In re Mason, 916 F.2d 384 (7th Cir. 1990) ............ 11
In re Murchison, 349 U.S. 133 (1955).............. iz, is
Vii
TABLE OF AUTHORITIES - Continued
Page
Jeppesen v. Rust, 8 F.3d 1235 (7th Cir. 1993).......... 22
Marshall v. Jerrico, Inc., 446 U.S. 238 (1980).......... 12
Neibel v. Trans World Assurance Co., 108 F.3d 1123
SPUR ane MN Pe ais oko reeks Os eh eSGNE ES baduck cabs 22
Pacific Mut. Life Ins. Co. v. Haslip,
SO Ge BD RAPPER See eh eke Faas os dh 9, 14, 18, 21
Rubeck v. Huffman, 374 N.E.2d 411 (Ohio 1978) ....4, 22
Schimizzi v. Illinois Farmers Ins. Co.,
928 F. Supp. 760 (N.D. Ind. 1996)................. 22
Smyth Sales, Inc. v. Petroleum Heat & Power Co.,
RGR Die Oe Geile Se ks a bcp avkson Vann cceeas 16
Stretton v. Disciplinary Bd. of the Sup. Ct.,
Pe ee Se ON Er BED a do oc cok nada cncecass 11
Tumey v. Ohio, 273 U.S. 510 (1927) ............... 12, 14
TXO Prod. Corp. v. Alliance Resources Corp.,
OP Sie Od LNUMOE i hahaa cides ee deihied s cdeavesin 21
United Air Lines, Inc. v. Wiener, 286 F.2d 302
Pe Se Er bark nkce bwin ate cdhenss tonne 19
Walston v. Monumental Life Ins. Co., 923 P.2d 456
. I a eS earl es 23
Ward v. Village of Monroeville, 409 U.S. 57 (1972)..... 12
Wightman v. Consolidated Rail Corp.,
640 N.E.2d 1160 (Ohio Ct. App. 1994).............. 5
Wightman v. Consolidated Rail Corp., 715 N.E.2d 546
Rien ect SEES PET SO ens Rep 2
Zoppo v. Homestead Ins. Co., 644 N.E.2d 397
I I ind el eae era 4 oy es oo ok Sos 5
Vili r
TABLE OF AUTHORITIES - Continued
Page
Statutes & CONSTITUTIONAL PROVISION
SB UGG: © Uae oo oe es isk BE IS aS 3
US. Comme; aceul: XIV, © Bs as Cs A AR 3
Ohio Rev. Code Ann. § 2125.02(B) (Anderson
NOD sb 8 6nd 0 068 4 ReRV ARUN Os ons REO 4, 22
OrHer AUTHORITIES
Mark Grannis, Note, Safeguarding the Litigant’s
Constitutional Right to a Fair and Impartial Forum,
ee e.g ee rere r re 12
Jason Levien & Stacie L. Fatka, Cleaning Up Judi-
cial Elections, 2 Mich. L. & Pol’y Rev. 71 (1997) .... 12
Model Code of Judicial Conduct Canon 3E(1)(e)
CUO BOUT 6 dave Ges cc sees £55 4s ce oan ea a 14
Roy A. Schotland, Elective Judges’ Campaign
Financing, 2:3. 1: Me Fem. SF (ARGO): 03 <o:0h0 ss cent Xs 12
Harold See, Judicial Selection and Decisional Inde-
pendence, 61 Law & Contemp. Probs. 141 (1998) .... 11
Gerald Uelmen, Disqualification of Judges for Cam-
paign Support or Opposition, 3 Geo. J. Legal
EE Ee CT a Shas bees oa banc s4 eRe esos 14
PETITION FOR A WRIT OF CERTIORARI
The history of this case begins with a trial in which a
$25,000,000 punitive damages award based on a $2,400
compensatory damages award was imposed in a vacuum.
There a jury - specially empaneled for the sole purpose of
deciding the amount of punitive damages - was prohib-
ited from hearing defendant's evidence about the circum-
stances of the accident, evidence that had led a prior jury
to determine that the victim was 40% responsible for the
accident and a prior judge to conclude that no punitive
damages were warranted. The history ends with a state
supreme court affirming an exorbitant punitive damages
award, adding post-judgment interest to it, and declining
to address defendant’s motion to recuse two of that
court’s justices (one the author of the majority opinion)
who had received substantial campaign contributions
from plaintiff’s lawyer and the lawyer’s relatives while
the appeal was pending before the court.
If there is one principle that is clear from this Court's
punitive damages jurisprudence, it is this: whatever the
result, the process leading to the imposition of punitive
damages must be fundamentally fair or it violates the
Due Process Clause of the Fourteenth Amendment. This
petition requests review of the due process issues left
open by this Court’s decisions in BMW of North America,
Inc. v. Gore, 517 U.S. 559 (1996), Honda Motor Co. v. Oberg,
512 U.S. 415 (1994), and Aetna Life Insurance Co. v. Lavoie,
475 U.S. 813 (1986), namely, whether a state violates a
litigant’s rights under the Due Process Clause when it
compels the litigant to pay $15,000,000 in punitive dam-
ages, plus post-judgment interest on that award, despite:
(1) the existence of a serious question of partiality in the
state supreme court and that court’s refusal even to
address a motion to recuse two of its members on that
basis; (2) the state courts’ exclusion of defendant’s evi-
dence about the entirety of the circumstances leading up
to the accident; and (3) a foundation of only $2,400 in
compensatory damages for a punitive damages award of
$15,000,000.
The important issues of this case will continue to
perplex both state and federal courts, and will subject
litigants to deprivations of property without due process
of law, until this Court clarifies the pivotal holdings of
Gore, Oberg, and Lavoie. Accordingly, certiorari is war-
ranted in this case.
OPINIONS BELOW
The opinion of the Supreme Court of Ohio is
reported at 715 N.E.2d 546 (Ohio 1999), and appears in
the Appendix at pages la-33a. The opinion of the Ohio
Court of Appeals of Erie County, Ohio, which was
affirmed in part and reversed in part by the Supreme
Court of Ohio, is unpublished. App. 34a-49a. The Opinion
and Order of the Common Pleas Court of Erie County,
Ohio, granting in part Consolidated Rail Corporation’s
motion for a remittitur and denying its motion for a new
trial, is unpublished. App. 50a-71a.
The Supreme Court of Ohio never ruled on peti-
tioner’s motion to recuse two of the justices of that court,
who had received substantial campaign contributions
from plaintiff’s lawyer and the lawyer’s relatives while
this case was pending before them.
®
STATEMENT OF JURISDICTION
The Supreme Court of Ohio entered judgment on
September 15, 1999. The jurisdiction of this Court is
invoked pursuant to 28 U.S.C. § 1257.
¢
CONSTITUTIONAL PROVISION INVOLVED
Section 1 of the Fourteenth Amendment to the United
States Constitution provides, in relevant part:
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any State
deprive any person of life, liberty, or property,
without due process of law; nor deny to any
person within its jurisdiction the equal protec-
tion of the laws.
U.S. Const. amend. XIV, § 1.
+
STATEMENT OF THE CASE
This case arises out of a February 1989 collision
between a car driven by Michelle Wightman and a Con-
solidated Rail Corporation (“Conrail”) train. A Conrail
train lost pressure in its brake system and automatically
came to a stop, approximately 200 feet east of a grade
crossing in Sandusky, Ohio. The train was sufficiently
close to the grade crossing that it automatically activated
the crossing’s flashing lights and gate.
A number of vehicles, when confronted with the
activated gate and flashing lights, turned back, but others
proceeded through the crossing. Michelle Wightman, a
16-year old, inexperienced driver, who had consumed
several alcoholic beverages on the night in question,
chose to go past the flashing lights and maneuver around
the gates. Before her vehicle cleared the crossing, another
Conrail train, proceeding on an adjacent track, within the
speed limit and with its whistle blowing and its head-
lights on, entered the crossing and struck the vehicle.
Michelle Wightman died instantly and the car was
destroyed.
Darlene Wightman (“Wightman”), Michelle Wight-
man’s mother and the administratrix of her estate, sued
Conrail in the Erie County Court of Common Pleas,
asserting two claims: a wrongful death claim seeking
compensatory damages, and a property damage claim
seeking compensatory and punitive damages for the
$2,400 in property damage to her car. Only compensatory
damages are available for wrongful death under Ohio
law; punitive damages are specifically prohibited for
wrongful death claims. See Rubeck v. Huffman, 374 N.E.2d
411, 413 (Ohio 1978); see also Ohio Rev. Code Ann.
§ 2125.02(B) (Anderson 1998).
At trial, Conrail introduced evidence that Michelle
Wightman had been drinking alcohol (supplied by her
mother) prior to operating her mother’s car. The jury
found both Michelle Wightman and Conrail negligent,
apportioning 60% of the liability to Conrail and 40% to
Michelle Wightman, and awarding Wightman $1,000,000
in compensatory damages on the wrongful death claim.
App. 5la. The jury also determined that Conrail had
acted with a conscious disregard for the safety of others,
thereby giving rise to the possibility of punitive damages
for the property damage claim. App. 52a.
At the time of the first trial, Ohio law required the
judge to determine the amount of punitive damages upon
a jury finding that the conduct met the standard for the
imposition of a punitive award. On the basis of all of the
evidence, including the evidence of Michelle Wightman’s
contributory fault, the trial judge determined that the
proper amount of punitive damages was $0. App. 74a.
On cross-appeals, the Ohio Court of Appeals
affirmed the compensatory damages award, reversed the
trial court’s decision to award no punitive damages on
the property damage claim, and remanded the case for a
determination as to the amount of punitive damages to be
awarded on that claim. Wightman v. Consolidated Rail
Corp., 640 N.E.2d 1160 (Ohio Ct. App.), appeal not allowed,
638 N.E.2d 1044 (Ohio 1994). Shortly before the trial
judge reconsidered the issue of punitive damages on
remand, the Ohio Supreme Court held in an unrelated
case, Zoppo v. Homestead Ins. Co., 644 N.E.2d 397, 401
(Ohio 1994), that the state constitution required that
where a jury decides that defendant’s conduct meets the
standard for the imposition of punitive damages, the jury,
not the trial judge, should decide the amount of punitive
damages. Accordingly, a new jury was empaneled to
determine the amount of punitive damages to be
imposed.
In view of the procedural posture of the case, the
second trial court then considered (in the context of
motions in limine) what evidence it would allow the par-
ties to present to the second jury. The trial court excluded
Conrail’s evidence regarding the circumstances of the
accident — evidence that had led the first jury to find that
Michelle Wightman was 40% contributorily negligent and
the first judge to conclude that no punitive damages were
warranted. App. 5a, 69a-70a. The trial judge also
excluded Conrail’s expert testimony that Michelle Wight-
man’s age, driving inexperience, and use of alcohol
increased the risk of the accident by 500%. Wightman, on
the other hand, was permitted to put on her entire case
against Conrail, as well as her expert testimony regarding
the cause of the accident and Conrail’s alleged miscon-
duct.
As a result of this one-sided presentation, the jury
awarded Wightman $25,000,000 in punitive damages tied
exclusively to the $2,400 property damage claim. App. 5a.
Conrail moved for a remittitur or a new trial, on the
ground that the punitive damages award was impermissi-
bly excessive and violated due process under both state
law and the United States Constitution. App. 50a. The
trial court granted Conrail’s motion, in part, remitting the
award to $15,000,000 and modified the judgment to
exclude the running of post-judgment interest on the
punitive damages award. Wightman consented to the
remittitur, which included both the amount and the elim-
ination of interest.
Conrail appealed, arguing, inter alia, that the trial
court’s evidentiary rulings and the amount of the puni-
tive damages award, even as remitted, violated its rights
under state law, as well as under the Due Process Clause
of the Fourteenth Amendment. App. 39a-40a. Wightman
filed a cross-appeal, arguing, inter alia, that the trial court
erred in disallowing post-judgment interest on the puni-
tive damages award. The Ohio Court of Appeals affirmed
the trial court’s rulings in all respects. App. 49a.
Both parties sought review in the Supreme Court of
Ohio. Conrail again raised the issues of the excessiveness
of the punitive damages award and the impropriety of
excluding Conrail’s evidence concerning the cause of the
accident under both state law and the United States Con-
stitution. App. 8a, 12a. The Ohio Supreme Court granted
review.
After the oral argument, Conrail obtained the final
post-election campaign finance reports of two justices of
the Ohio Supreme Court, Justice Francis E. Sweeney and
Justice Paul E. Pfeifer, both of whom had been reelected
just prior to the November 1998 argument. These reports
stated that Wightman’s counsel (who had the case on a
33'/3% contingency fee basis), his spouse, siblings, and
their spouses and children, many of whom were lawyers
at the same law firm, had collectively made $25,000 in
campaign contributions to each Justice Sweeney and Jus-
tice Pfeifer in early 1998, at the time the case was pending
before the court on petitions for discretionary review.
App. 105a-106a. The amount contributed by plaintiff's
lawyer and his relatives represented 4.4 percent of the
total financial contribution to Justice Pfeifer’s campaign
during that period and 4.7 percent of the total contribu-
tion to Justice Sweeney’s campaign during that period.
Immediately upon learning this information and
before any decision had been rendered by the Ohio Supreme
Court, Conrail filed a motion to recuse Justices Sweeney
and Pfeifer due to the appearance of impropriety created
by these substantial contributions made by plaintiff’s
lawyer and the lawyer’s relatives during the pendency of
the appeal. App. 75a-77a. The Ohio Supreme Court never
ruled on the recusal motion.?!
Instead, on September 15, 1999, the Ohio Supreme
Court issued its opinion without even mentioning the
recusal motion. App. 1a-33a. The court affirmed both the
$15,000,000 punitive damages award and the rulings
excluding Conrail’s evidence, as comporting both with
Ohio law and the Due Process Clause. App. 9a, 19a. It
also made new law in Ohio by reversing the court of
appeals’ affirmance of the trial court’s disallowance of
post-judgment interest on the punitive damages award,
thereby increasing Conrail’s punishment by over $5 mil-
lion. App. 25a. Both Justices Sweeney and Pfeifer partici-
pated in the decision and voted to affirm the punitive
damages award, as well as to add the interest. Indeed,
Justice Pfeifer authored the majority opinion.
Sf
1 Conrail filed its recusal motion under seal. However, no
order ever was entered sealing the motion.
REASONS FOR GRANTING THE WRIT
I. CERTIORARI SHOULD BE GRANTED TO CLAR-
IFY THE PROCESS THAT IS DUE BEFORE A
STATE MAY IMPOSE A SUBSTANTIAL PUNITIVE
DAMAGES AWARD.
This Court has made clear that the Due Process
Clause applies in full force in the context of punitive
damages. “A decision to punish a tortfeasor by means of
an exaction of exemplary damages is an exercise of state
power that must comply with the Due Process Clause of
the Fourteenth Amendment.” Honda Motor Co. v. Oberg,
512 U.S. 415, 434-35 (1994). Specificaliy, in the punitive
damages context, the Due Process Clause prevents state
juries from imposing punitive damages awards without
“adequate guidance from the court” and without full and
fair appellate review to ensure that such awards are
“reasonable” in relation to the goals of retribution and
deterrence. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1,
18-21 (1991); see also Oberg, 512 U.S. at 430 (“When the
absent procedures would have provided protection
against arbitrary and inaccurate adjudication, this Court
has not hesitated to find the proceedings violative of due
process.”).
This petition presents two important issues that have
not been resolved by this Court regarding the process
that is due before a state may impose a substantial puni-
tive damages award. The first issue involves the require-
ment of full and fair appellate review, and specifically
poses the question whether such review is afforded when
a state supreme court affirms a massive punitive damages
award in the face of —- and without ever addressing —- a
10
motion to recuse two of the court’s justices based on
those justices having received substantial campaign con-
tributions from plaintiff’s lawyer and his relatives while
the case was pending before the court.
The second issue involves the requirement of a jury’s
full consideration of the evidence, and specifically poses
the question whether such consideration is afforded
when the trial court excludes defendant’s evidence with
respect to the circumstances of the accident — evidence
that had led a prior jury to determine that the victim was
40% contributorily negligent, and a prior judge to deter-
mine that no punitive damages should be awarded -
leaving the jury to hear only plaintiff’s version of the
facts.
This case presents an opportunity for the Court to
clarify its due process cases, and to provide much-needed
guidance to state courts struggling with the required
process and substance of punitive damages determina-
tions and appellate review, in light of the Fourteenth
Amendment's proscription against the deprivation of
property without due process of law.
A. The Decision of the Supreme Court of Ohio Is
Inconsistent with this Court’s Decisions in
Lavoie and Oberg Because it Allows Ohio To
Impose a Substantial Punitive Damages Award
Without Full and Fair Appellate Review.
The appearance of judicial partiality is grounds for
vacating a punitive damages award under the Due Pro-
cess Clause. In Aetna Life Insurance Co. v. Lavoie, 475 U.S.
813 (1986), this Court overturned a substantial punitive
11
damages award that had been affirmed by the Alabama
Supreme Court because a justice of that court was a
litigant in an unrelated, but similar, case at the time he
participated in the case at hand. The Court held that the
justice’s participation violated the defendant’s due pro-
cess right to a fair and impartial appellate tribunal, even
though there was no evidence that the justice actually
had been influenced by his stake in the other case. See id.
at 825.
The incongruity between the due process require-
ment of an impartial judge and the appearance of impro-
priety created by lawyer contributions to judicial
candidates has been of utmost concern to jurists and
commentators alike. See, e.g., Stretton v. Disciplinary Bd. of
the Sup. Ct., 944 F.2d 137, 145 (3d Cir. 1991) (“There is no
aspect of the electoral system of choosing judges that has
drawn more vehement and justifiable criticism than the
raising of campaign funds, particularly from lawyers and
litigants likely to appear before the court.”); In re Mason,
916 F.2d 384, 387 (7th Cir. 1990) (noting the “difficult
case” that would be presented if an “attorney gave signif-
icant financial support to the judge’s campaign commit-
tee” while the judge was deciding a case in which the
attorney was involved).
Commentators also have noted the serious ethical
and due process problems created when attorneys con-
tribute significant amounts to judicial campaigns and
then try cases or argue appeals before the jurists they
supported. See, e.g., Harold See, Judicial Selection and Deci-
sional Independence, 61 Law & Contemp. Probs. 141, 142
(1998) (“To the extent the courts are not just another
policymaking branch of government, but are performing
12
the function of assuring the rule of law, there may be a
due process interest in protecting the judges’ decisional
independence from the immediate influence of various
interest groups.”); Roy A. Schotland, Elective Judges’ Cam-
paign Financing, 2 J. L. & Pol. 57, 90 (1985) (noting that
judicial campaign funding “undermines respect for judi-
cial integrity and impartiality”); Mark Grannis, Note,
Safeguarding the Litigant’s Constitutional Right to a Fair and
Impartial Forum, 86 Mich. L. Rev. 382, 418 (1987) (arguing
that significant campaign contributions can erode the
impartiality that “is the very heart of due process”). In
fact, in Ohio itself, a Citizens’ Committee on Judicial
Elections report issued in 1995 reported that 89% of
Ohioans believe that judicial decisions are influenced at
least some of the time by campaign contributions, while
only 7% believe that they are never so influenced. See
Jason Levien & Stacie L. Fatka, Cleaning Up Judicial Elec-
tions, 2 Mich. L. & Pol’y Rev. 71, 78 (1997); see also App.
9la n.8.
The principle at the heart of Lavoie is that a “fair trial
in a fair tribunal is a basic requirement of due process.”
In re Murchison, 349 U.S. 133, 136 (1955). Even when
actual bias is not shown, “our system of law has always
endeavored to prevent even the probability of unfair-
ness.” Id. This Court frequently has reaffirmed this “basic
requirement of due process,” see, e.g., Marshall v. Jerrico,
Inc., 446 U.S. 238, 242-43 (1980); Ward v. Village of Mon-
roeville, 409 U.S. 57, 60 (1972); Tumey v. Ohio, 273 U.S. 510,
532 (1927), which provides a critical limitation on states’
otherwise substantial discretion in ordering their judicial
systems. In the context of judicial elections, large finan-
cial contributions to a judge from a lawyer with a case
13
pending before that judge certainly create the appearance
of a quid pro quo, which violates the “basic requirement of
due process” that a litigant be afforded a “fair trial in a
fair tribunal.” Murchison, 349 U.S. at 136. This constitu-
tional concern is even more acute when the contributing
lawyer has millions of dollars in fees at stake in the
outcome of a pending appeal.
Despite the clear rulings of this Court emphasizing
the fundamental role of due process to ensure impar-
tiality, this Court has yet to address whether a state may
impose a substantial punitive damages award in the face
of, and without addressing, serious allegations of judicial
partiality. The failure of the Ohio Supreme Court to
address Conrail’s substantial contentions regarding two
of that court’s members is equivalent to the denial of
judicial review that this Court in Oberg held violated due
process. Further, the substance of the allegations in Con-
rail’s motion to recuse raises significant questions regard-
ing the “probability of unfairness,” Murchison, 349 U.S. at
136, in the Ohio Supreme Court’s adjudication of Con-
rail’s appeal.
Given the broad use of judicial elections and thus the
recurring risk of questionable contributions by the agents
of parties with matters before judges seeking reelection,
the Court should grant this petition in order to clarify the
contours of the Due Process Clause in such situations in
which the integrity of a state’s appellate process has been
called into question.
At least three factors elevate the ethical questions
underlying the campaign contributions to Justices Pfeifer
and Sweeney to the level of a due process violation. First,
14
the Supreme Court of Ohio failed to address the claim of
potential bias and Conrail’s request for recusal. The fail-
ure to act on this issue, intertwined with Conrail’s sub-
stantive challenge to the $15,000,000 punitive damages
award, constituted a lack of “meaningful and adequate”
review of that award. Haslip, 499 U.S. at 20; see Oberg, 512
U.S. at 434-35. When raised in the context of a huge
punitive damages award, where this Court has stated that
due process requires the most exacting fairness in pro-
cedure, the appearance of judicial bias must be carefully
scrutinized and fully addressed, not ignored, as here.
In addition, the level of the contributions in this case
~ $25,000 to each of the two justices in question at the
very time these justices were considering this appeal -
creates a significant danger of unfairness that raises not
only ethical, but also due process, concerns. Indeed,
recent amendments to the ABA’s Model Code of Judicial
Conduct provide for the disqualification of a judge from a
proceeding in which an attorney has “made aggregate
contributions to the judge’s campaign in an amount that
is greater” than the jurisdiction’s statutory limit, includ-
ing “contributions made indirectly.” Model Code of Judicial
Conduct Canon 3E(1)(e) (amended 1999). The combined
contributions from plaintiff's lawyer and his family to
Justices Sweeney and Pfeifer are far in excess of Ohio’s
statutory limit for individual contributions, and warrant
disqualification not only under basic rules of judicial
ethics, but also under due process principles established
in a long line of caSes from Tumey to Lavoie. See Gerald
Uelmen, Disqualification of Judges for Campaign Support or
Opposition, 3 Geo. J. Legal Ethics 419 (1990).
15
Moreover, at the time of these contributions, in Janu-
ary and early February 1998, the parties were seeking the
state supreme court’s discretionary review of the inter-
mediate court’s rulings. At stake for the law firm was its
one-third share of a punitive damages award of as much
as $25,000,000, plus interest, based on its contingency fee
agreement. The discretionary appeal was allowed in late
February 1998, shortly after the contributions were made;
briefs were submitted in April through July 1998, during
the election campaign; and oral argument was held just
after the two justices were reelected, in November 1998.
The appeal then was decided against Conrail: the puni-
tive damages award was affirmed and the court for the
first time ruled that post-judgment interest could run on
punitive damages, thereby increasing the already exces-
sive penalty by approximately one-third, or by more than
$5,000,000.
Coupled with the amount of the contributions, the
fact that they were made while the appeal was pending
created a significant issue of impropriety that, rather than
being addressed by the Ohio Supreme Court, was utterly
ignored. In sum, this Court should grant the petition in
order to clarify the requirements of the Due Process
Clause in this context that implicates the fundamental
fairness of Ohio’s and other states’ systems of electing
judges and financing their campaigns.
16
B. The Decision of the Supreme Court of Ohio Is
Inconsistent with this Court’s Decisions in
Haslip and Oberg, as Petitioner Has Been
Deprived of Substantial Property Without the
Basic Due Process Right of Being Permitted to
Introduce Significant Relevant Evidence in its
Own Defense.
In addition to the due process requirement of a fair
and impartial judge, as well as the appearance thereof, a
well-established component of due process is the right to
present a defense, including all relevant evidence in sup-
port of one’s defense, before a state may impose punish-
ment. See, e.g., Green v. Georgia, 442 U.S. 95, 97 (1979) (per
curiam); Chambers v. Mississippi, 410 U.S. 284, 294 (1973).
This axiom also applies in the punitive damages context.
See Honda Motor Co. v. Oberg, 512 U.S. 415 (1994).
Conrail’s due process right to a fair trial was violated
when the state jury was allowed to impose a Substantial
punishment without hearing all of the evidence bearing
on the wrongfulness of Conrail’s conduct. Specifically,
the trial court, in a decision later ratified by the state’s
appellate courts, excluded all of Conrail’s evidence that
would have provided a complete and fair picture of the
cause of the accident and of the factors outside of Con-
rail’s contro] that increased the likelihood of the accident
occurring. App. 69a-70a. This violated Conrail’s right to a
fair trial. Cf. Gasoline Prods. Co. v. Champlin Ref. Co., 283
U.S. 494, 500 (1931) (holding that a retrial of less than all
of the issues in a case may only be had when the issues
are “distinct and separable”); Smyth Sales, Inc. v. Petro-
leum Heat & Power Co., 141 F.2d 41, 45 (3d Cir. 1944)
17
(“[T]he determination of the amount of punitive dam-
ages, if any, to be awarded . . . cannot appropriately take
place except in connection with the consideration by the
jury of the whole question of the defendant's liability and
of all the circumstances which it is asserted give rise to that
liability.” (emphasis added)).?
This Court’s emphasis in the criminal context on the
importance of a full and fair presentation of a party’s
defense is instructive here. For example, in Chambers, a
state criminal defendant claimed that his due process
rights were violated by state procedural rules and state
court rulings that rendered him “only partially suc-
cessful . . . in his efforts to bring before the jury the
testimony supporting [his] defense.” 410 U.S. at 289. The
Court noted that a criminal defendant's right to due
process is essentially “the right to a fair opportunity to
defend against the State’s accusations.” Id. at 294. When a
civil defendant faces a punitive damages award of as
much as $25,000,000, and when the state’s imposition of
that award “is an exercise of state power that must com-
ply with the Due Process Clause of the Fourteenth
Amendment,” Oberg, 512 U.S. at 435, this principle from
Chambers is fully logical. The exclusion of Conrail’s “criti-
cal evidence,” see Chambers, 410 U.S. at 302, denied it the
right to a fair opportunity to defend against the punitive
damages claim, and led to a trial that was not “in accord
2 In addition, the court admitted plaintiff’s expert
testimony on 1,000 similar accidents that not only occurred
outside of Ohio, but that did not even involve Conrail, leading
to the possibility that the state imposed a punishment on a party
for actions committed by unrelated (and unidentified) parties.
Cf. BMW of N. Am. v. Gore, 517 U.S. 559, 573-74 (1996).
18
with traditional and fundamental standards of due pro-
cess.” Id.; see also Green, 442 U.S. at 97 (holding that
exclusion of testimony in a criminal trial that “was highly
relevant to a critical issue in the punishment phase of the
trial” denied the defendant a fair trial).
The unfairness caused by the exclusion of evidence in
the second trial is made crystal-clear by a simple compar-
ison of the result of that trial (a $25,000,000 punitive
damages award) with the result of the first trial at which
all the evidence was allowed (a 40% contributory negli-
gence finding and a $0 punitive damages award). Clearly,
the exclusion of the evidence of circumstances outside of
Conrail’s control that had led the first jury to find
Michelle Wightman 40% responsible for the accident -
including her age, alcohol consumption, and inexperience
behind the wheel - as well as Conrail’s expert testimony
that would have established that the combination of those
circumstances increased the likelihood of the accident by
500%, deprived Conrail of the opportunity to present
circumstances in mitigation of an award that otherwise is
virtually limitless. The jury did not even know that Con-
rail previously had paid $1,000,000 in compensatory dam-
ages on the wrongful death claim. If due process requires
full and fair jury instructions before punitive damages
can be imposed, see Haslip, 499 U.S. at 18-20, then, a
fortiori, it requires a full and fair presentation of the
evidence to the jury in the first place.
The one-sided presentation of the evidence led to a
jury verdict that bore no relationship to the reprehens-
ibility of Conrail’s actions, to the actual damages to the
plaintiff, or to the civil and criminal penalties that could
have been imposed for Conrail’s conduct. See, e¢.g., Atlas
19
Food Sys. & Servs., Inc. v. Crane Nat'l Vendors, Inc., 99 F.3d
587, 600 (4th Cir. 1996) (noting that a jury considering
only punitive damages was properly told about the first
jury’s findings on liability and compensatory dainages, as
these “provided the jury with important background
information”); Fury Imports, Inc. v. Shakespeare Co., 554
F.2d 1376, 1389 (5th Cir. 1977) (“[A]n award of punitive
damages should rest on the jury’s assessment of all the
evidence in the case.”); United Air Lines, Inc. v. Wiener, 286
F.2d 302, 306 (9th Cir. 1961) (holding that, when punitive
damages are at issue, “the defendant is entitled to show
all of the facts surrounding the collision”); Atlantic Coast
Line R.R. v. Bennett, 251 F.2d 934, 939 (4th Cir. 1958)
(“[W]e are unable to say that the new trial can be
restricted to the single issue [of punitive damages] with-
out injustice to the defendant, since the evidence relating
to wilful misconduct is so inextricably tied up with that
relating to primary negligence that a fair trial upon either
issue requires a trial of both issues together.”).
In short, this petition presents significant constitu-
tional questions with respect to the due process require-
ment of full and fair jury consideration, and specifically
whether the evidence surrounding the incident in ques-
tion must be presented to the jury before it can reach a
rational determination of how much damages are appro-
priate to punish and deter the defendant. That issue
warrants review by this Court.
20
II. CERTIORARI SHOULD BE GRANTED TO
RESOLVE A CONFLICT AMONG THE LOWER
COURTS REGARDING THE PROPER PROPOR-
TIONALITY ANALYSIS WHEN REVIEWING A
PUNITIVE DAMAGES AWARD.
In BMW of North America, Inc. v. Gore, 517 U.S, 559
(1996), this Court held that imposition of a punitive dam-
ages award that was 500 times the amount of the actual
harm to the plaintiff violated the defendant's due process
rights. The Court focused on three “guideposts” in con-
cluding that the defendant “did not receive adequate
notice of the magnitude of the sanction that Alabama
might impose” for its wrongdoing, leading the Court to
conclude that the punitive damages award was “grossly
excessive.” 517 U.S. at 574-75. These guideposts included
“the degree of reprehensibility” of defendant's actions,
“the disparity between the harm or potential harm suf-
fered by [plaintiff] and his punitive damages award,” and
“the difference between this remedy and the civil penal-
ties authorized or imposed in comparable cases.” Id. at
575.3
The lower courts are in conflict on how to apply
Gore’s second guidepost. In ascertaining whether a puni-
tive damages award is proportionate to the compensatory
damages, some courts have looked broadly at all of the
defendant’s acts in the case, and all of the causes of
3 In Part 1.B supra, Conrail explained why its due process
right to present all of the evidence bearing on the first of these
factors ~ the degree of its reprehensibility ~ was violated by the
state court’s exclusion of its evidence at the punitive damages
trial. See supra at 16-19.
21
action, whether or not those acts and causes of action
gave rise to a punitive damages award. On the other
hand, other courts have focused — appropriately, in Con-
rail’s view — only on the particular cause or causes of
action that gave rise to the punitive damages award. The
Court should grant the petition in order to provide clear
guidance to the state and federal courts that must resolve
these issues on a daily basis.
A. There Is a Conflict among the Lower Courts
Regarding the Proper Foundation for Measur-
ing the Proportionality of a Punitive Damages
Award.
This Court in Gore reiterated its holdings in Haslip
and TXO Production Corp. v. Alliance Resources Corp., 509
U.S. 443 (1993), “that a comparison between the compen-
satory award and the punitive award is significant.” Gore,
517 U.S. at 581. In Haslip, a ratio of punitive to compensa-
tory damages of four to one was found to be “close to the
line,” but still constitutionally permissible. Haslip, 499
U.S. at 23-24. In TXO, where this Court described defen-
dant’s conduct as consisting of “fraud, trickery and
deceit,” the ratio of punitive damages to “potential harm”
(which took into account not the actual pecuniary loss,
but the potential loss to plaintiffs) was ten to one, a ratio
that was found not to be “grossly excessive.” TXO, 509
U.S. at 462. In Gore, the Court held that a ratio of 500 to 1
was “breathtaking,” and “must surely ‘raise a suspicious
judicial eyebrow.’ ” Gore, 517 U.S. at 583 (quoting TXO,
509 U.S. at 481 (O’Connor, J., dissenting)).
22
The ratio here is 6,250 to 1. Compensatory damages
for the only claim under Ohio law that carried with it the
possibility of punitive damages (i.e., the property damage
claim) were $2,400.4 On this foundation stands a “breath-
taking” punitive damages award of $15,000,000. The Ohio
Supreme Court justified this proportion by focusing on
Conrail’s conduct in its entirety, rather than focusing
solely on the property damage claim that gave rise to the
punitive damages award, thereby, in essence, punishing
Conrail for the wrongful death claim on which no puni-
tive damages were (or could have been) awarded.
It is this difficulty that has confounded the lower
courts, which have split over whether the “egregious act”
encompasses all of plaintiff's claims or simply those
claims on which punitive damages may properly be
awarded. Many courts, both before and since the Gore
decision, have held that the proportionality of punitive
damages awards may be analyzed in relation only to
those compensatory claims that carry with them the pos-
sibility of punitive damages. See, e.g., Neibel v. Trans World
Assurance Co., 108 F.3d 1123, 1132 (9th Cir. 1997); Jeppesen
v. Rust, 8 F.3d 1235, 1239 (7th Cir. 1993); Creative Demos,
Inc. v. Wal-Mart Stores, Inc., 955 F. Supp. 1032, 1043 (S.D.
Ind. 1997), aff'd in relevant part, 142 F.3d 367, 371 (7th Cir.
1998); Schimizzi v. Illinois Farmers Ins. Co., 928 F. Supp.
760, 786 (N.D. Ind. 1996); Grynberg v. Citation Oil & Gas
* Under Ohio law, punitive damages may not be assessed in
a wrongful death action. See Rubeck v. Huffman, 374 N.E.2d 411,
413 (Ohio 1978); see also Ohio Rev. Code Ann. § 2125.02(B)
(Anderson 1998). Therefore, the punitive damages of
$15,000,000 in this case were based entirely on the $2,400 of
property damage.
23
Corp., 573 N.W.2d 493, 501 n.4, 504 (S.D. 1997). Other
courts, however, have evaluated punitive damages
awards by considering all of the damages awarded to a
plaintiff, including amounts awarded for claims that
would not themselves be subject to punitive damages.
See, e.g., lannone v. Frederic R. Harris, Inc., 941 F. Supp. 403,
415 (S.D.N.Y. 1996); Walston v. Monumental Life Ins. Co.,
923 P.2d 456, 468 (Idaho 1996).
The former approach not only is appropriate, but also
is constitutionally required. Otherwise, the very process
designed to protect a defendant’s constitutional rights
when punitive damages are imposed would yield the
anomalous result of sanctioning a punitive damages
award based in part on conduct that the state already has
determined does not warrant the imposition of such dam-
ages. In view of this Court’s recognition that a state
imposes punitive damages to serve state interests, Gore,
517 U.S. at 568-69, a punitive damages award that takes
into account conduct that a state already has determined
it has no interest in punishing violates due process. At a
minimum, this creates a serious question of the adequacy
of notice that is a fundamental component of due process.
This Court should resolve the conflict among the
lower courts by granting this petition and holding that, in
undertaking the constitutionally-required proportionality
analysis, courts should use as the foundation for deter-
mining the punitive-to-compensatory ratio only the com-
pensatory damages arising from those claims actually
subject to punitive damages and on which punitive dam-
ages actually were awarded. Although Conrail believes
24
that a punitive damages award of $15,000,000 is constitu-
tionally excessive even if it could be compared to a com-
pensatory damages award of $1,000,000 (the amount
awarded for the wrongful death claim in this case), this
case presents a stark opportunity for the Court to resolve
the lower-court split concerning proportionately because
there can be no doubt that the proper foundation for the
punitive damages award in this case - the $2,400 of
property damage to Darlene Wightman’s car - was far too
small to support a punitive award of $15,000,000.
B. A Punitive Damages Award That Is 6,250 Times
Greater than the Compensatory Award on
Which it Is Based Is Grossly Excessive and Vio-
lative of the Due Process Clause of the Four-
teenth Amendment.
Once the proper foundation is established for the
proportionality analysis, the punitive damages award in
this case cannot stand, as a ratio of 6,250 to 1 is drastically
greater than the ratio found constitutionally deficient in
Gore. The Ohio Supreme Court dismissed this Court’s
direction in Gore that the Constitution requires a reason-
able ratio between punitive and compensatory damages.
See App. 17a. (“We see the ratio between the compensa-
tory and punitive damages as less relevant here because
of the egregiousness of the act.”). However, as this Court
made clear in Gore, the proportionality factor is separate
and distinct from the reprehensibility factor; state courts
are not free to disregard the proportionality factor and
allow a 6,250 to 1 ratio based on their own assessment of
the “egregiousness of the act.”
25
To be sure, this Court has eschewed simple mathe-
matical formulae for determining when a ratio is consti-
tutionally excessive. See Gore, 517 U.S. at 582. However,
the extremely high ratio in this case, coupled with the
state courts’ denial of Conrail’s due process right to pre-
sent all of the relevant evidence bearing on the reprehen-
sibility of its conduct and the much higher punitive
sanction imposed in this case as compared to similar
penalties under state and federal law, lead to the inevita-
ble conclusion that the punitive damages award violates
the Due Process Clause.
+ + *
At the end of the day, the punitive award in this case
is the product of a deeply-flawed process that excluded
Conrail’s ability to demonstrate that mitigating circum-
stances existed. Punitive damages carry no inherent lim-
itations, which makes the defendant's ability to put ona
complete case absolutely critical to ensure that the award
is the product of a fair process. The trial error was com-
pounded by the failure of the state to ensure an impartial
appellate tribunal to review the propriety of the underly-
ing award under both state and federal law. The conse-
quence of those procedural missteps is a final punitive
award run amok, one that bears no rational relationship
to the compensatory award upon which it is based.
e
26
CONCLUSION
The Court should grant the petition for a writ of
certiorari.
Respectfully submitted,
Carter G. PHILurs Ar.tIN M. Apams*
Siptey & AUSTIN RatpH G. WELLINGTON
1722 Eye Street, N.W. Nancy WINKELMAN
Washington, D.C. 20006 STEPHANIE I.R. Fipcer
(202) 736-8711 Bruce P. MERENSTEIN
SCHNADER HARRISON SEGAL &
Lewis LLP
1600 Market Street,
Suite 3600
Philadelphia, PA 19103
(215) 751-2000
Counsel for Petitioner
* Counsel of Record
Dated: December 3, 1999.
¢
In The
Supreme Court of the United States
CONSOLIDATED RAIL CORPORATION,
Petitioner,
Vv.
DARLENE M. WIGHTMAN, Administratrix of the
Estate of Michelle L. Wightman, Deceased;
Michelle Wightman Charitable Foundation,
Respondents.
On Petition For A Writ Of Certiorari
To The Supreme Court Of Ohio
+
APPENDIX TO PETITION FOR A
WRIT OF CERTIORARI
i
TABLE OF CONTENTS
Opinion of the Supreme Court of Ohio, dated
September 15, 1999, 715 N.E.2d 546 (Ohio 1999) .... 1a
Opinion and Judgment Entry of the Court of
Appeals of Erie County, Ohio, dated September
30, 1997, No. E-97-001, 1997 Ohio App. LEXIS
S570. (OO: Ct Ba FONT oi oink hv Soak cic cccccess 34a
Opinion and Order of the Common Pleas Court of
Erie County, Ohio, dated December 5, 1996, No.
89-CV-416, 1996 Ohio Misc. LEXIS 84 (C.P. Ct.
ny, eet EEE TORS TEE ae 50a
Judgment Entry of the Common Pleas Court of
Erie County, Ohio, dated October 31, 1995....... 72a
Judgment Entry of the Common Pleas Court of
Erie County, Ohio, dated November 10, 1992..... 74a
Motion of Consolidated Rail Corporation to the
Supreme Court of Ohio to Recuse Justice
Francis E. Sweeney and Justice Paul E. Pfeifer
and Memorandum in Support Thereof (Filed
Under Seal), dated January 7, 1999.............. 75a
la
WIGHTMAN et al., Appellants
and Cross-Appelees,
v.
CONSOLIDATED RAIL CORPORATION,
Appellee and Cross-Appellant.
No. 97-2342.
Supreme Court of Ohio
Submitted Nov. 10, 1998.
Decided Sept. 15, 1999.
Syllabus by the Court
A plaintiff who accepts a remittitur may appeal the
trial court’s determination of the damage issue if the
opposing party appeals any issue. If the reviewing court
finds no error as to the determination of damages, the
plaintiff’s prior acceptance of judgment for the reduced
amount will be affirmed unless the result of the principal
appeal requires otherwise.
On February 18, 1989, a Consolidated Rail Corpora-
tion (“Conrail”) freight train collided with a car driven by
Michelle Wightman, killing her and her passenger, Karrie
Wieber. Michelle’s mother, Darlene M. Wightman, owned
the car. Darlene Wightman sued Conrail as administrator
of her daughter’s estate for wrongful death and on her
own behalf for the destruction of her automobile.
The collision occurred as Michelle Wightman
attempted to negotiate a railroad crossing on Remington
Avenue in Sandusky. A Conrail train, SEEL-7, had experi-
enced mechanical difficulty and sat stopped on the track
approximately two-hundred eight feet from the grade
crossing at Remington Avenue. Due to its position when
2a
it stopped, SEEL-7 activated the crossing’s flashing lights
and gates.
Witnesses differed on how long SEEL-7 was stopped
prior to the crash. One witness estimated that he first
observed the stopped train at about 10:30 p.m., about
ninety minutes prior to the crash. The train’s crew esti-
mated that the train had stopped somewhere between
11:00 p.m. and 11:30 p.m. SEEL-7’s conductor, Terry
Warner, and its head brakeman, Leroy Powell, saw that
the gate arms were down at the crossing and that traffic
was nonetheless proceeding. They recognized that a dan-
gerous situation existed at the crossing. However, they
decided not to post a flagman at the crossing, and instead
the two walked the length of the train to find and repair
the mechanical problem. Warner described their decision
as “our only option.”
The engineer in SEEL-7’s lead engine also saw the
heavy Saturday evening traffic moving over the crossing.
He saw no one attempting to turn around and avoid the
crossing. While SEEL-7 was stopped, another train,
TVLA, went over the crossing without incident, traveling
at about seventy miles per hour. Radio communications
alerted the SEEL-7 crew that another train, TV-9, was
approaching the crossing. TV-9 would ultimately smash
into the car driven by Michelle Wightman.
About twenty minutes prior to the crash, a Sandusky
police officer, Lonnie Newell, came upon the scene. Offi-
cer Newell saw that SEEL-7 created a dangerous obstruc-
tion and requested his dispatcher to advise Conrail of the
situation. Satisfied that Conrail had been notified, Officer
Newell left the crossing to undertake a traffic stop and
a TT
3a
issue a verbal warning to a driver who had driven around
the gates.
Shortly after Officer Newell left the scene, sixteen-
year-old Michelle Wightman approached the crossing.
Several cars in front of the Wightman car successfully
proceeded over the crossing. Michelle Wightman slowly
followed. But, as one witness said, “They didn’t have a
chance * * * .” Before the Wightman car cleared the
crossing, the TV-9 train emerged at a speed of almost
sixty miles per hour and struck the car broadside,
instantly killing both occupants.
On October 30, 1990, a jury awarded the estate of
Michelle Wightman $1,000,000 in compensatory damages,
allocating sixty percent of the causal negligence to Con-
rail and forty percent to Michelle Wightman. The jury
also found Conrail liable for the damage to Darlene
Wightman’s property and determined that Conrail should
pay punitive damages on Darlene Wightman’s claim.
At the time of the trial, former R.C. 2315.21(C){2)
provided for bench proceedings to determine the amount
of punitive damages. The trial judge held that no punitive
damages should be awarded.
The Sixth District Court of Appeals upheld the com-
pensatory award to the estate, but reversed the trial
court's failure to award punitive damages on Darlene
Wightman’s claim. The appellate court found “that there
was clear and convincing evidence to support the jury’s
finding of actual malice on the part of appellant [Con-
railj.” 94 Ohio App.3d 389, 408, 640 N.E.2d 1160, 1173.
The appellate court remanded the matter to the trial court
“for determination as to the amount of punitive damages
4a
to which appellee, Darlene Wightman, is entitled in
accordance with this opinion.” Id. at 409, 640 N.E.2d at
1173. On September 14, 1994, this court declined to hear
Conrail’s appeal. 70 Ohio St.3d 1442, 638 N.E.2d 1044.
After the case was remanded to the trial court, but
before the trial court entered an amount of punitive dam-
ages, this court declared R.C. 2315.21(C)(2) unconstitu-
tional as a violation of the right to trial by jury. Zoppo v.
Homestead Ins. Co. (1994), 71 Ohio St.3d 552, 644 N.E.2d
397, paragraph two of the syllabus. Therefore, the amount
of punitive damages to assess against Conrail became a
jury issue.
A second jury was convened to determine that issue,
and that trial began on May 20, 1996. On that same date,
the trial court granted the motion to intervene of the
Michelle Wightman Charitable Foundation, to which Dar-
lene Wightman had apparently assigned not less than
one-half of any punitive damages award. The foundation
was not permitted to participate in the trial, however.
At the trial, the plaintiffs presented evidence of the
events surrounding the collision, and that evidence gen-
erally mirrored the evidence that had been presented in
the first trial. The jury heard testimony from plaintiffs’
expert, Dr. William D. Berg, a civil engineer with special
interest in grade-crossing safety. According to Dr. Berg,
the railroad industry has known for decades that when
gates at a crossing are allowed to remain down for an
unusual length of time, drivers will proceed over the
crossing. He testified that the danger of a crash is partic-
ularly great when there is an obstruction on the track. Dr.
Berg testified that a large number of the collisions that
5a
occur every year at grade crossings happen under condi-
tions “substantially similar” to those which existed at
Remington Avenue.
Dr. Berg testified that Conrail could have easily pre-
vented the collision by placing a flagman at the crossing
to stop traffic when a train was approaching, slowing the
speed of the TV-9, or blocking the crossing with the
SEEL-7 engine when a train was approaching.
The trial court prohibited Conrail from introducing
evidence it had introduced at the first trial regarding
certain circumstances surrounding the accident, which
focused for the most part on the contributory negligence
of Michelle Wightman. The court granted plaintiffs’
motions in limine regarding evidence of Michelle Wight-
man’s .039 percent blood-alcohol level at the time of the
accident, and evidence that her mother may have pro-
vided her with some alcohol. The court also granted
plaintiffs’ motion in limine regarding the testimony from a
Conrail expert regarding the effect that alcohol and a
driver’s age might have in a railroad-crossing collision.
The court found that the negligence of Michelle Wight-
man was not a part of the punitive damages case.
The court also granted plaintiffs’ motions in limine
regarding the first trial judge’s decision to award no
punitive damages and to references that the first jury had
found Michelle forty percent contributorily negligent.
The court also prohibited references to the fact that Con-
rail had paid $1,000,000 in compensatory damages for the
wrongful death of Michelle Wightman.
On May 23, 1996, the jury awarded Darlene Wight-
man $25,000,000 in punitive damages against Conrail. On
6a
June 7, 1996, Conrail filed a motion for remittitur or, in
the alternative, for a new trial. The railroad’s motion also
sought relief from post-judgment interest on the punitive
damages award.
The court granted a remittitur of $10,000,000, finding
that a $15,000,000 punitive damages award would “suffi-
ciently punish Conrail and create a positive inducement
to change its practices, rather than continue to challenge
the findings of the earlier jury and the Court of Appeals.”
The trial court also granted Conrail relief from post-
judgment interest, despite finding “no conclusive author-
ity in support of Conrail’s request.” The trial court rea-
soned that since punitive damages are not compensatory,
interest on the amount to compensate for delay in pay-
ment may not be necessary.
Darlene Wightman consented to the remittitur, but
both parties appealed aspects of the tria! court’s ruling.
Conrail appealed the jury award as grossly excessive, and
also appealed the trial court’s aforementioned evidenti-
ary rulings. Conrail also claimed that the trial court erred
in admitting Dr. Berg’s testimony.
Darlene Wightman cross-appealed, challenging the
remittitur. Darlene Wightman also appealed the trial
court’s grant of relief from post-judgment interest on the
punitive damages award.
The court of appeals affirmed the trial court in all
regards. The court found the remittitur not appealable
pursuant to this court’s decision in Scioto Mem. Hosp.
Assn. v. Price Waterhouse (1996), 74 Ohio St.3d 474, 479,
659 N.E.2d 1268, 1273. Plaintiffs had urged the court to
PS
7a
adopt the “Wisconsin rule” regarding the appealability of
remittiturs, whereby a plaintiff may appeal a remittitur to
which it consents if the defendant first initiates an appeal.
The appellate court declined to adopt the Wisconsin rule.
Both parties have appealed to this court.
The cause is before this court upon the allowance of a a
discretionary appeal and cross-appeal.
Murray & Murray Co., L.P.A., Thomas J. Murrary and
Mary O'Neill, Sandusky, for appellant and cross-appellee
Darlene M. Wightman.
Cavitch, Familo, Durkin & Frutkin, Harvey L. Frutkin
and Kerin Lyn Kaminski, Cleveland, for appellant and
cross-appellee Michelle Wightman Charitable Founda-
tion.
Ralph G. Wellington, pro hac vice, Nancy Winkle-
man, pro hac vice, and Arlin M. Adams, pro hac vice;
Vogelgesang, Howes, Lindamood & Brunn, Philip E.
Howes and Thomas R. Himmelspach, Canton, for appel-
lee and cross-appellant Consolidated Rail Corporation.
David E. Neumeister, pro hac vice, James K. Horst-
man, Richard Hodyl and Lloyd E. Williams, Jr., urging
reversal on cross-appeal for amici curiae, National Asso-
ciation of Independent Insurers and Alliance of American
Insurers.
Stanton G. Darling II, Columbus, urging reversal on
cross-appeal for amici curiae, Product Liability Advisory
Counsel and National Association of Manufacturers.
Buckingham, Doolittle & Burroughs, L.L.P., and Scott
A. Richardson, Canton, urging reversal on cross-appeal
8a
for amicus curiae, Ohio Association of Civil Trial Attor-
neys.
Allen Schulman & Assocs. Co., L.P.A., and Allen
Schulman, Jr., Columbus; Clark, Perdue, Roberts & Scott
Co., L.P.A., and Paul O. Scott, Columbus, urging reversal
on appeal for amicus curiae, Ohio Academy of Trial Law-
yers.
Squire, Sanders & Dempsey and Charles F. Clarke,
Cleveland, urging reversal on cross-appeal for amicus
curiae, Association of American Railroads.
PFEIFER, J.
We affirm the lower court decisions on evidentiary
matters in this case. We find that the punitive damages
award with remittitur is not excessive and is constitu-
tional. We reverse the lower court on the issue of appeal-
ability of a remittitur and adopt the “Wisconsin rule” on
that issue. We find that the trial court did not abuse its
discretion in ordering a remittitur. Finally, we reverse the
lower court on the issue of relief from post-judgment
interest on a punitive damages award.
Evidentiary Issues
We find that the trial court acted within its discretion
in granting the motions in limine that plaintiffs sought.
Despite its claims to the contrary, Conrail was not pre-
cluded from mounting a defense.
The purpose of the latest incarnation of this case was
to determine how much Conrail should pay in punitive
damages. Liability and actual malice on the part of Con-
rail had already been determined at an earlier trial. This
9a
court held in Schellhouse v. Norfolk & W. Ry. Co. (1991), 61
Ohio St.3d 520, 524-525, 575 N.E.2d 453, 456, that “[a]cts
committed with actual malice constitute behavior quali-
tatively different from that which may be characterized as
merely negligent” and, therefore contributory negligence
is not available as a defense where conduct in conscious
disregard has been established. Thus, since contributory
negligence was not a part of this case, the trial court
properly prevented the introduction of evidence that
Michelle Wightman had consumed a small amount of
alcohol prior to the collision, and that the alcohol may
have been provided to her by her mother. The testimony
of Dr. Herbert Moskowitz was based on the effects Mic-
helle Wightman’s youth and drinking might have on the
accident, and was also properly excluded.
Conrail also sought to have introduced to the jury
certain findings from the first trial, including the compen-
satory damages paid to the estate and the trial judge’s
decision to award no punitive damages. We find that the
trial court properly granted plaintiffs’ motions in limine
on those issues. The amount of compensatory damages
awarded in the first trial to the estate is irrelevant to the
punitive damages claim of Mrs. Wightman. Finally, the
fact that the first trial judge abused his discretion and
failed to award punitive damages is also irrelevant to the
later punitive damages trial.
Conrail also contends that the trial court erred in
admitting certain testimony of plaintiff’s expert, Dr. Wil-
liam Berg. Conrail objects to Dr. Berg’s statement that,
based on the statistics he has maintained for over twenty
years, there are “in the order of 1,000 vehicle train colli-
sions that were of magnitude that occurred at crossings
10a
that didn’t have automatic warning devices, including
gates per year.” Dr. Berg also testified that “a large
number of these collisions are occurring in situations that
are substantially similar. And when I say substantially
similar, what I’m saying is where you have got a loss of
credibility because the signals are operative for an
extended period of time and when you’ve got the
obstructions.”
Conrail argues that Dr. Berg’s testimony failed to
meet the requirements of Evid.R. 703 and 705. Evid.R. 703
provides as follows:
“The facts or data in the particular case upon which
an expert bases an opinion or inference may be those
perceived by him or admitted in evidence at the hearing.”
Evid.R. 705 states:
“The expert may testify in terms of opinion or infer-
ence and give his reasons therefor after disclosure of the
underlying facts or data. The disclosure may be in
response to a hypothetical question or otherwise.”
Conrail asserts that Dr. Berg’s testimony violated
Evid.R. 703 because he had no personal knowledge of the
statistics he cited, and the statistics had not been intro-
duced into evidence. With respect to Evid.R. 705, Conrail
asserts that Dr. Berg did not identify the person or orga-
nization that maintains those statistics and did not dis-
close where the statistics are published.
The decision of whether or not to admit evidence
rests in the sound discretion of the court and will not be
disturbed absent an abuse of that discretion. Peters v. Ohio
lla
State Lottery Comm. (1992), 63 Ohio St.3d 296, 299, 587
N.E.2d 290, 292.
We find that the trial court did not err in allowing Dr.
Berg’s testimony. There are certain things that an expert,
by reason of his expertise, knows. Conrail does not claim
that Dr. Berg did not qualify as an expert under Evid. R.
702. When providing background information, and not
opining as to causation, we cannot expect an expert to
footnote every statement with a recitation of his direct
observation of the phenomenon, or a bibliography
explaining how he knows his statement to be true.
Dr. Berg was merely testifying as to facts in his area
of expertise. A distinction can be made between back-
ground information and an opinion about causation. A
doctor testifying in a medical malpractice case regarding
a failed heart surgery, for instance, need not set forth the
underlying facts regarding his knowledge of the basic
makeup of the thoracic cavity. He does, however, have to
set forth the facts underlying his opinion as to what
caused the procedure to fail.
Dr. Berg was setting forth background information so
that the jury could draw its own conclusion. When testi-
fying as to broad patterns rather than specific opinions,
the same level of foundation is not required.
Dr. Berg was open to aggressive cross-examination if
Conrail thought his statistics were skewed or inaccurate.
He was also open to rebuttal from Conrail witnesses. The
trial court acted within its discretion in allowing the
testimony of Dr. Berg.
12a
We therefore affirm the court of appeals on all of the
evidentiary issues.
Excessiveness of Punitive Damages Award
Conrail argues that the punitive damages award of
$15,000,000 was grossly excessive and violated both Ohio
law and the Due Process Clause of the United States
Constitution. Conrail bases much of its argument regard-
ing Ohio law on the ratio between the compensatory
damage award and the punitive damages award. Mrs.
Wightman’s property loss was $2,400, and upon that loss
was based the $15,000,000 punitive damages award, an
amount 6,250 times greater than the compensatory
award.
In its brief, Conrail provides a survey of Ohio cases
from October 1, 1986 to “the beginning of 1997” in which
punitive damages were awarded, concluding that the
greatest disparity between punitive and compensatory
damages was 600 to |. (Conrail conveniently ends its
survey in “the beginning of 1997” before the award of a
$6,000,000 punitive damages award on a $100 property
damage claim, a 60,000 to 1 ratio, in Garrett v. Consolidated
Rail Corp. [1997], 120 Ohio App.3d 378, 697 N.E.2d 1109,
discretionary appeals not allowed in 80 Ohio St.3d 1444,
686 N.E.2d 273.) Conrail thus seems to indicate that if
Michelle Wightman had been driving a car worth $25,000,
a 600 to 1 ratio, the punitive damages award in this case
would have been acceptable. Conrail’s attempted use of
ratios exemplifies why the determination of punitive
damages is not a mathematical process.
13a
This court has stated that simply a large disparity
between actual and punitive damages is not enough to set
aside a jury’s punitive damages award:
“Low compensatory damages and high punitive
damages assessed by a jury are not in and of themselves
cause to reverse the judgment or to grant a remittitur,
since it is the function of the jury to assess the damages
and, generally, it is not for the trial or appellate court to
substitute its judgment for that of the trier of fact. A large
disparity, standing alone, is insufficient to justify a
court’s interference with the province of the jury.” Villella
v. Waikem Motors, Inc. (1989), 45 Ohio St.3d 36, 40, 543
N.E.2d 464, 469.
A large disparity is allowable because a punitive
damages award is more about a defendant’s behavior
than the plaintiff’s loss. “The purpose of punitive dam-
ages is not to compensate a plaintiff, but to punish and
deter certain conduct.” Moskovitz v. Mt. Sinai Med. Ctr.
(1994), 69 Ohio St.3d 638, 651, 635 N.E.2d 331, 343. The
value of the car Michelle Wightman was driving has little
to do with how a jury might effectively and fairly punish
and deter Conrail’s conduct regarding the operation of its
crossings. Tellingly, Conrail makes no argument that the
punitive damages award was disproportionate as to its
own income or net worth, but only that it was dispropor-
tionate to the value of the Wightman car.
The trial judge in this case did an in-depth analysis of
the appropriateness of the jury’s award. He found an
award of $15,000,000 to be appropriate. We have held that
“the trial judge is in the best position to determine
whether an award is so excessive as to be deemed a
14a
product of passion or prejudice.” Villella, 45 Ohio St.3d at
40, 543 N.E.2d at 469. The trial judge believed a deterrent
effect was necessary for Conrail because it was unwilling
to accept responsibility for the collision. The trial judge
found that Conrail’s trial strategy “reflects a corporate
attitude which clearly fails to recognize that the
extremely dangerous practice which produced this cata-
strophic collision needs to be changed.”
_ A substantial harm, a continuing risk, a deterrent
effect, and an economically viable company are factors
that make a significant punitive damages award appro-
priate in this case. We find that the punitive damages
award was not excessive and did not violate Conrail’s
rights under Ohio law.
Conrail also claims that the punitive damages award
violates Conrail’s due process rights under the United
States Constitution. The United States Supreme Court has
held that an award violates due process when it can be
categorized as “grossly excessive” in relation to the
state’s legitimate interests in punishing unlawful conduct
and deterring its repetition. TXO Production Corp. v. Alli-
ance Resources Corp. (1993), 509 U.S. 443, 456, 113 S.Ct.
2711, 2719, 125 L.Ed.2d 366, 378.
In BMW of N. Am, Inc. v. Gore (1996), 517 U.S. 559, 116
S.Ct. 1589, 134 L.Ed.2d 809, the court held that elemental
notions of fairness “dictate that a person receive fair
notice not only of the conduct that will subject him to
punishment but also of the severity of the penalty that a
State may impose.” 517 U.S. 574, 116 S.Ct. at 1598, 134
L.Ed.2d at 826. The court discussed three guideposts that
indicate whether a defendant has received adequate
15a
notice of the possible sanction. A lack of fair notice may
render a sanction “grossly excessive.”
The guideposts set forth in BMW include the degree
of reprehensibility of the defendant’s conduct, the dis-
parity between the harm suffered by the plaintiff and the
amount of the punitive damages award, and the differ-
ence between the punitive damages award and civil or
criminal penalties authorized or imposed in similar cases.
517 U.S. at 574-575, 116 S.Ct. at 1598-1599, 134 L.Ed.2d at
826. In BMW, the defendant sold a car to the plaintiff
without disclosing that it had been damaged during ship-
ping and had been repainted. Defendant, the national
distributor of BMW automobiles, had a company policy
of repainting cars that suffered minor, predelivery dam-
age. The defendant notified neither its dealers nor its
customers of the damage. The policy affected about one
thousand automobiles. The trial jury awarded plaintiff
$4,000 in compensatory damages and $4,000,000 in puni-
tive damages. On appeal the Alabama Supreme Court
ordered a remittitur in the amount of $2,000,000.
The court in BMW described the degree of reprehen-
sibility of the defendant’s conduct as “[plerhaps the most
important indicium of the reasonableness of a punitive
damages award.” 517 U.S. at 575, 116 S.Ct. at 1599, 134
L.Ed.2d at 826. In overturning the punitive damages
award in BMW, the court made a special note that the
harm inflicted on the plaintiff was purely economic in
nature. The court stated that “BMWs conduct evinced no
indifference to or reckless disregard for the health and
safety of others.” 517 U.S. at 576, 116 S.Ct. at 1599, 134
L.Ed.2d at 827.
:
16a
It is with this guidepost, the most important one, that
this case distinguishes itself the most from BMW. Ineffec-
tive gates at a railroad crossing are of a completely differ-
ent character than a painted-over scratch on a luxury
automobile. Literally and figuratively, we are dealing
with the difference between a scratch and a cataclysm -
the difference between a practice that might affect the
value of an automobile by ten percent, and a practice that
could result in massive property damage, physical inju-
ries, and untold psychological pain. Conrail evinced a
disregard of the danger it posed to the health and safety
of motorists.
In this case, Conrail employees did nothing to warn
drivers of oncoming trains, despite the fact that they saw
vehicles crossing the track by driving around the gates.
Even after a phone call from police, Conrail did not take
preventative measures to avert an accident. According to
the trial judge, this tragic case has done little to persuade
Conrail to change, citing Conrail’s “corporate attitude
which clearly fails to recognize that the extremely dan-
gerous practice which produced the catastrophic collision
needs to be changed.”
We find that Conrail’s conduct reaches the level of
reprehensibility sufficient to warrant the substantial
punitive damages award the jury imposed in this case.
The “second * * * indicium of an unreasonable or
excessive punitive damages award is its ratio to the
actual harm inflicted on the plaintiff.” 517 U.S. at 580, 116
S.Ct. at 1601, 134 L.Ed.2d at 829. The Supreme Court has
stated that the harm can include the harm likely to result
from the defendant’s conduct as well as the harm that
17a
actually has occurred. 517 U.S. at 581, 116 S.Ct. at 1602,
134 L.Ed.2d at 830. But the court, like this court, has
consistently rejected the notion of a bright-line mathe-
matical formula for the computation of the reasonable-
ness of punitive damages awards. The court recognizes
that “low awards of compensatory damages may prop-
erly support a higher ratio than high compensatory
awards, if, for example, a particularly egregious act has
resulted in only a small amount of economic damages.”
517 U.S. at 582, 116 S.Ct. at 1602, 134 L.Ed.2d at 831.
We see the ratio between the compensatory and puni-
tive damages as less relevant here because of the
egregiousness of the act. The injury here was catastrophic
and could have been financially more so. We are not
persuaded that if Michelle Wightman had been driving a
$40,000 BMW that would make a more acceptable ratio.
An expensive car does not make the award more legiti-
mate. The award stands on its own. This case offers one
of those particular instances where a particularly
egregious act has resulted in a small amount of economic
damages.
The third guidepost set forth in the BMW «case is
comparing the punitive damages award and the civil or
criminal penalties that could be imposed for comparable
misconduct. In BMW, the court looked to the plaintiff’s
home state’s Deceptive Trade Practices Act, which had a
maximum penalty of $2,000. The court reasoned that the
amount would not provide an out-of-state distributor
with fair notice that a violation might subject an offender
to a multimillion-dollar penalty. Id. at 584, 116 S.Ct. at
1603, 134 L.Ed.2d at 832.
18a
Conrail claims to have violated no Ohio statutes on
the night of the accident. Conrail argues that even if it
had not fully complied with all laws, the maximum fed-
eral penalty for the willful failure to comply with an
order to remedy a violation of signal-system safety regu-
lations that creates an imminent danger of death or injury
is $22,000 per violation. Section 209.409, Title 49, C.F.R.
But the BMW case and its civil penalties are a world
away from this case. BMW requires that the penalties
imposed be for comparable misconduct. In BMW, the
$2,000 fine actually applied to the specific conduct of the
defendant that was at issue. The $22,000 fine Conrail
refers to does not apply to the specific conduct involved
in this case. The $22,000 fine applies to the failure to
comply with an order to remedy a violation of signal-
system safety regulations. An order has to have been
made and disregarded by the railroad company for the
fine to be imposed. It is not a fine for causing a death.
The far more relevant civil “penalty” in cases like
these is the potential civil damage award in a lawsuit. We
agree with the trial court that Conrail could expect
extraordinary civil damages from collisions it causes.
Multiple passenger accidents where severe injuries occur
could yield civil damage awards in the millions of dol-
lars. Conrail could see this coming.
There are no comparable statutory fines in this case
to compare how the state deals with similar malfeasance.
The trial court felt that criminal sanctions may have been
in order in this case. The judge opined that “had the
appropriate prosecuting authorities been made aware of
all the facts and circumstances surrounding this tragic
19a
and unnecessary collision, those authorities would have
been compelled to consider criminal prosecution, possi-
bly for involuntary manslaughter.”
Thus, we conclude that the applicable criminal and
civil penalties available were comparable to the punitive
damages award.
In considering the three guideposts set forth by the
court in BMW, we find that Conrail had fair notice of the
conduct that would subject it to punishment as well as
the severity of the possible punishment. The award in
this case was not grossly excessive and did not violate
Conrail’s due process rights.
We therefore affirm the lower court on this issue.
Appealability of Remittitur by Plaintiffs
Plaintiffs sought appellate review of the trial court’s
remittitur, arguing that since the court failed to find that
the jury’s award was excessive, remittitur was unavail-
able. Plaintiffs’ first hurdle in that regard is the issue of
the apppealability of a remittitur. In Scioto Mem. Hosp.
Assn. v. Price Waterhouse (1996), 74 Ohio St.3d 474, 479,
659 N.E.2d 1268, 1273, this court stated that “where a
party voluntarily chooses to accept a remittitur, rather
than a new trial, it cannot challenge that remittitur on
appeal. Iron RR. Co. v. Mowery (1881), 36 Ohio St. 418,
paragraph three of the syllabus.” This court found the
rule against appeal of remittiturs to be “fundamentally
fair, as it simply binds a party to its election.” Id.
The different circumstances that this case presents
have caused us to reconsider our endorsement in Scioto of
Iron RR. There are issues of fairness and judicial economy
20a
surrounding this remittitur that were not a part of the
case in Scioto. And certainly now judicial economy plays
a more important role in our justice system than in did
when Iron RR was decided in 1881.
Here, the trial court ordered the remittitur; in Scioto,
it was the appellate court. The benefits to judicial econ-
omy are greater with a trial-level remittitur. Secondly, in
this case the appropriateness of the punitive damages
award was at the center of defendant’s appeal. We ques-
tion the fairness of allowing one party to challenge the
award without also allowing the other party to voice her
own argument.
This case has given us an opportunity to consider the
value of remittitur and to contemplate the policy that best
and most fairly supports its purposes.
Overall, this case presents a compelling example of
the worth of remittitur. The trial court’s rationale in
ordering remittitur was well intentioned. The court wrote
in its opinion:
“This Court is concerned that if it simply overrules
Conrail’s motion lengthy appeals will ensure with poten-
tially grave consequences for the safety of motorists
using Conrail grade crossings. The Court, therefore, feels
compelled, as a matter of public safety, to do everything
in its power to [e]nsure that the purpose of punitive
damages is promptly effectuated and that Conrail
promptly changes the practice which produced this
unnecessary tragedy. After much reflection, this Court
has concluded that the most effective way to deter Con-
rail from continuing this practice is to remit the jury’s
verdict to an amount which would sufficiently punish
2la
Conrail and create a positive inducement to change its
practices, rather than to challenge the findings of the
earlier jury and the Court of Appeals.”
Remittitur plays an important role in judicial econ-
omy by encouraging an end to litigation rather than a
new trial. The trial court sets forth persuasively the great
value of a conclusion. There are times when an end has
its own value, with justice delivered, and not further
delayed. A final judgment brings closure, certainty, and
possibly a commitment to changed future behavior. These
are societal benefits as well as benefits to the parties.
Wrongs are righted through judgments. Our justice sys-
tem does not work without finality. Until then, the sys-
tem’s great value is in limbo. We take little from it, but we
continually feed it with our energies, intellect, and emo-
tions.
The judge and both parties play a role in ending
litigation. The law surrounding remittitur should reflect
that. Under Scioto, defendants seek remittitur and benefit
from it, but then can extend the litigation risk-free by
appealing the remitted judgment. While remittitur is an
effective tool at bringing about closure, it loses its vitality
when it fails that important role. The plaintiff should not
have to bear the brunt of its failure.
Thus, for reasons of fairness and judicial economy,
we adopt what has become known as the “Wisconsin
tule.” Pursuant to the Wisconsin rule, first enunciated in
Plesko v. Milwaukee (1963), 19 Wis.2d 210, 220-221, 120
N.W.2d 130, 135, a plaintiff who accepts a remittitur may
appeal the trial court’s determination of the damage issue
if the opposing party appeals any issue. If the reviewing
a a
22a
court finds no error as to the determination of damages,
the plaintiff's prior acceptance of judgment for the
reduced amount will be affirmed unless the result of the
principal appeal requires otherwise.
The court’s reasoning in Plesko mirrors our own con-
cerns about fairness and judiciai economy. The court
wrote:
“The objective underlying the recommended pro-
cedure for granting an option to accept judgment for a
reduced amount of damages in lieu of having a new trial,
where the damages awarded by the jury are determined
by the trial court to be excessive, is to avoid the delay and
expense of an appeal or a new trial. In most situations, it
is likely that the party will accept judgment for such
reduced damages rather than undergo the expense, delay
and uncertainty of result of an appeal or new trial. Nev-
ertheless, if a party found liable to pay damages appeals
the judgment resulting from the other party’s accepting
such reduced damages, this objective has been negatived.
When plaintiff is forced to undergo an appeal by the
action of an opposing party, after plaintiff has accepted
judgment for such reduced damages, it seems unfair to
prevent his having a review of the trial court’s determina-
tion leading to the reduction in damages, especially if the
plaintiff has accepted same only to avoid the delay and
expense attending an appeal. Furthermore, the new rule
herein announced may to some extent discourage appeals
by the party held liable because of the possibility that the
party who has accepted judgment for the reduced dam-
ages may prevail on his motion for review and have the
jury’s verdict reinstated.” 19 Wis.2d at 221, 120 N.W.2d at
135.
23a
Remittitur works best where no appeal follows. A
plaintiff accepts remittitur in lieu of a new trial. An
appeal reopens the possibility of new trial, leaving the
plaintiff with a reduced award that she cannot appeal.
Defendants, as in this case, are able to attack that jury
award on appeal. The goal of judicial economy is
thwarted, and a defendant receives an unfair advantage
as to what is appealable.
We do not know whether the threat of appealability
of the remittitur will persuade defendants not to appeal
cases. However, if remittitur’s benefit to judicial economy
is thwarted by an appeal, the system operates more fairly
under the Wisconsin rule.
We therefore reverse the court of appeals on this
issue,
The Remittitur in this Case
A court has the inherent authority to remit an exces-
sive award, assuming it is not tainted with passion or
prejudice, to an amount supported by the weight of the
evidence. In Chester Park v. Schulte (1929), 120 Ohio St. 273,
166 N.E. 186, paragraph three of the syllabus, this court set
forth the specific criteria that must be met before a court
may grant a remittitur: (1) unliquidated damages are
assessed by a jury, (2) the verdict is not influenced by
Passion or prejudice, (3) the award is excessive, and (4) the
plaintiff agrees to the reduction in damages.
The trial court in this case did state at one point in its
opinion on remittitur that it was “not prepared to say that
a verdict of $25,000,000 is excessive under Ohio law.”
24a
The trial court was obviously not concerned with
“magic words.” But the court throughout its opinion did
keep in mind the twin goals of punitive damages — pun-
ishment and deterrence. The court found that the award
as remitted will “sufficiently punish Conrail and create a
positive inducement to change its practices.” The court
reduced the award to an amount sufficient to promptly
effectuate the purpose of punitive damages. Damages
allowed beyond that sufficiency would have been exces-
sive.
We find that the trial court did not abuse its discre-
tion in concluding that a $15 million punitive damages
award was sufficient to achieve the purpose of punish-
ment and deterrence.
Post-Judgment Interest Relief
The trial court granted Conrail relief from paying
post-judgment interest on the punitive damages award.
The court of appeals affirmed the trial court’s wccision.
We find that the trial court’s decision to relieve Conrail
from paying interest on the punitive damages award was
contrary to law.
R.C. 1343.03(B), Ohio’s interest statute, provides in
relevant part:
“[I]nterest on a judgment, decree, or order for the
payment of money rendered in a civil action based on
tortious conduct shall be computed from the date the
judgment, decree, or order is rendered to the date on
which the money is paid.”
25a
The statute is direct and mandatory. The $15 million
punitive damages award was a “judgment * * * for the
payment of money rendered in a civil action based on
tortious conduct.” As such, the interest “shall be” com-
puted from the date the judgment is rendered.
The statute provides no wiggle room, and renders
pointless any discussion about the Philosophical under-
pinnings of punitive damages. The statute applies to
judgments. This was a judgment. The statute applies and
the interest clock ran from the date of the judgment.
We therefore reverse the court of appeals on this
issue.
Accordingly, the judgment of the court of appeals is
affirmed in part and reversed in part.
Judgment affirmed in part and reversed in part.
DOUGLAS, RESNICK and FRANCIS E. SWEENEY,
JJ., concur.
MOYER, C.J., COOK and LUNDBERG STRATTON,
JJ., concur in part and dissent in part.
MOYER, CJ., concurring in part and dissenting in
part.
I concur with the judgment of the majority and with
the reasoning in the majority opinion, except on the
remittitur issue (Issue IV). I write separately because we
are not required to reach the issue of whether a remittitur
is generally appealable by the plaintiff. Therefore, this is
an inappropriate case for defining a new standard of law
for Ohio.
26a
I would hold that where, as in the case before us, a
trial court deems a jury award not to be excessive, the
trial court lacks authority to offer a remittitur, and that it
is an abuse of discretion to grant a new trial or offer a
remittitur to reduce damages.
Because the trial court here expressly determined
that the jury did not award excessive punitive damages
under Ohio law in returning a verdict of $25,000,000, the
trial court had no authority to remit the jury award to
$15,000,000. It therefore becomes necessary to reevaluate
the appropriateness of the punitive damages award.
The majority correctly states that, in lieu of ordering
a new trial, a court has the inherent authority to remit an
excessive award not tainted by passion or prejudice, if the
plaintiff agrees to the remittitur. See, e.g., Larrissey v.
Norwalk Truck Lines, Inc. (1951) 155 Ohio St. 207, 44 O.O.
238, 98 N.E.2d 419, paragraph five of the syllabus; Pen-
dleton Street R.R. Co. v. Rahmann (1872), 22 Ohio St. 446.
However, “[i]t is the function of the jury to assess the
damages, and generally, it is not for a trial or appellate
court to substitute its judgment for that of the trier of
fact.” Villella v. Waikem Motors, Inc. (1989), 45 Ohio St.3d
36, 40, 543 N.E.2d 464, 469. The trial court has only
limited authority to offer remittitur. The concept of remit-
titur was developed to provide the trial court with an
alternate remedy, in the interest of judicial economy, by
which it could correct an award that was legally exces-
sive, thereby avoiding another trial.
In Chester Park Co. v. Schulte (1929), 120 Ohio St. 273,
166 N.E. 186, paragraph three of the syllabus, this court
27a
set forth the specific criteria that control the determina-
tion of a trial court to grant remittitur. One of these
criteria is that the original jury award is found to be
excessive. The majority cites this criterion, admits that the
trial court did not meet it, and yet, accepts the trial
court’s order of remittitur.
I have found no support for allowing a trial court to
offer remittitur absent a finding that a jury’s verdict of
damages was excessive. To allow a court to offer remit-
titur simply because the trial court, as in this case,
believes that a lesser award might help the defendant
accept the verdict without challenge, would be to infringe
improperly upon the plaintiff's right to a jury determina-
tion and could be viewed as encouraging defendants to
threaten appeals and delay payment of verdicts.
The trial court, in this case, originally filed a judg-
ment entry ordering the defendant to pay the plaintiff the
entire $25,000,000 in punitive damages that had been
awarded by the jury. Following this judgment entry, the
defendant moved for remittitur to an amount less than
$1,200,000 on the grounds that the verdict was excessive
and in violation of due process, or in the alternative, for a
new trial on the grounds that the verdict was tainted with
passion and prejudice. The court granted the motion for
remittitur and denied the motion for a new trial. In doing
so, the trial court cited Chester Park, including the crite-
rion that the trial court find the damages award to be
excessive. The trial court then specifically found that the
damages awarded by the jury were not excessive under
Ohio law and unconditionally denied the motion for a
new trial. It nonetheless asked the plaintiff to agree to a
remittitur.
“
28a
It is true that we must defer to the trial court’s
discretion, absent an abuse of discretion, when it deter-
mines a verdict to be legally excessive. See Thompson v.
Titus (1959), 169 Ohio St. 203, 8 O.0.2d 166, 158 N.E.2d
357; Larrissey at 219-220, 44 O.O. at 243-244, 98 N.E.2d at
426. However, we cannot defer to a judgment that the
trial court had no authority pursuant to statutory or
common law to make.
- I would remand this case to the court of appeals to
determine whether the trial court erred in concluding
that the punitive damages award was not excessive.
LUNDBERG STRATTON, J., concurs in the foregoing
opinion.
COOK, J., concurring in part and dissenting in part.
I concur in the decision to affirm the judgment of the
court of appeals on the issues raised by Conrail on cross-
appeal.
I dissent, however, from the decision of the majority
to depart from the precedent ratified just three years ago
in Scioto Mem. Hosp. Assn. v. Price Waterhouse (1996), 74
Ohio St.3d 474, 479, 659 N.E.2d 1268, 1273, that binds a
party to its acceptance of a remittitur. The majority deci-
sion to overrule this recent case rests on “[t]he different
circumstances that this case presents,” and to me that
reasoning departs from the precept that a court’s “judg-
ment should be a declaration of legal principles rather
than a determination of facts and circumstances.” Lamb v.
Lehmann (1924), 110 Ohio St. 59, 80, 143 N.E. 276, 282.
Certainly a court should be vigilant in reviewing prior
holdings for error and should retreat from erroneously
29a
decided precedent when justified. But “different circum-
stances” is not a reason that comports with the goals of
neutrality and predictability.
Because I would not overrule Scioto, I would affirm
the court of appeals’ decision that the remittitur is not
appealable. I also would affirm the related determination
of the court of appeals that because the remittitur judg-
ment denied post-judgment interest, plaintiff may not
appeal that aspect of the remittitur either.
LUNDBERG STRATTON, J., concurring in part and
dissenting in part.
I concur with the majority on the third (Appealability
of Remittitur by Plaintiffs) and fifth issues (Post-Judg-
ment Interest Relief), but respectfully dissent on the first
(Evidentiary Issues), second (Excessiveness of Punitive
Damages Award), and fourth issues (The Remittitur in
this Case).
Excessiveness of Punitive Damages
and
The Remittitur in this Case
I believe that the damages award in this case is, in
essence, an award based on a wrongful death -— the fact
that Michelle Wightman was killed in this accident.
Under Ohio law, punitive damages are not permitted in
wrongful death cases. See Rubeck v. Huffman (1978), 54
Ohio St.2d 20, 23, 8 O0.0.3d 11, 13, 374 N.E.2d 411, 413;
Schaefer v. D & J Produce, Inc. (1978), 62 Ohio App.2d 53,
57, 16 O.0.3d 108, 111, 403 N.E.2d 1015, 1018-1019. The
majority avoids addressing this issue, carefully referring
30a
only to the property damage of $2,400 as the point of
comparison. Yet, the majority frequently refers to the
“harm” created by the accident, such as referring to Con-
rail’s actions as “a practice that could result in massive
property damages, physical injuries, and untold psycho-
logical pain.” By distinguishing this case from BMW of N.
Am. Inc. v. Gore (1996), 517 U.S. 559, 116 S.Ct. 1589, 134
L.Ed.2d 809, on the basis of health and safety issues, the
majority implicitly sanctions the punitive damages award
for the wrongful death, not the comparatively minor
property loss.
By affirming an award of punitive damages that is
6,250 times the property damage award (even after remit-
titur), this court may encourage plaintiffs in wrongful
death cases to include a property damage claim, no mat-
ter its value, to use as a basis to recover exorbitant
punitive damages. The result is, in essence, a judicially
endorsed negation of Ohio’s wrongful death statute. This
court has now implicitly sanctioned punitive damages for
wrongful death, despite the fact that a wrongful death
claim exists only by statute and does not provide for
punitive damages.
Since the majority does not directly address this
issue, presumably, the principle of law still stands that
punitive damages cannot be awarded in a wrongful death
claim. To the extent that the majority intended otherwise,
I dissent.
Evidentiary Issues
I believe that Conrail was wrongfully denied due
process when it was not allowed to present a full defense
OO”Q_LDD __—eGeGS<O
3la
in the remand trial. The Ohio Constitution mandates that
due process be afforded to all litigants. “The fundamental
requisite of due process of law is the opportunity to be
heard.” Grannis v. Ordean (1914), 234 U.S. 385, 394, 34S.Ct
779, 783, 58 L.Ed. 1363, 1369. See, also, Matthews v.
Eldridge (1976), 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47
L.Ed.2d 18, 32 (“The fundamental requirement of due
process is the opportunity to be heard ‘at a meaningful
time and in a meaningful manner.’ "); Brock v. Roadway
Express, Inc. (1987), 481 U.S. 252, 261, 107 S.Ct. 1740, 1747,
95 L.Ed.2d 239, 250. |
For over a century, the law in Ohio has been that
when awarding punitive damages, a jury should consider
all evidence, both aggravating and mitigating. Schneider v.
Hosier (1871), 21 Ohio St. 98, 113-114. Due process and
fundamental fairness require that the jury be informed of
all of the circumstances in order to fully evaluate the
defendant’s conduct. Yet Conrail was prevented from
presenting an effective defense because the trial judge in
the retrial on the punitive damages issues excluded much
of the testimony from the original trial. The second jury,
in essence, heard only plaintiff’s version of the events.
I agree that to some degree an award of punitive
damages may have been Proper in the case. The majority
clearly set forth the shortcomings of Conrail in this mat-
ter. But Michelle Wightman was not without fault. There
was testimony in the original case that had Wightman
exercised caution, she could have avoided this accident.
Yet this jury heard none of this evidence.
In fact, the original jury found that Wightman was
forty percent responsible for the accident. That jury heard
32a
evidence that Wightman was a young, inexperienced
driver, having had her license for only six months. That
jury heard how she had drunk two cans of beer and three
wine coolers, supplied by her mother, before the accident.
They also heard from another expert, Dr. Herbert
Moskowitz, that this combination of factors increased
Wightman’s risk of accident by five hundred percent.
That jury also had a vehicle dynamics event analysis from
expert Deane H. Ellsworth that an unimpaired driver
proceeding at her speed would have had time to see and
avoid the oncoming train. The jury on remand was enti-
tled to know that another jury had earlier found Wight-
man to be forty percent contributorily negligent.
We do not know if the jury on remand, had it heard
all of this evidence on remand, would have awarded the
same amount of punitive damages. But we do know that
the first trial judge, who did hear this evidence, refused
to award any punitive damages at all — a sharp contrast to
the second verdict of $25 million. That alone creates a
very strong presumption of prejudice. By hearing Dr.
William Berg’s testimony only and no contradicting opin-
ion on whether the accident was avoidable, the jury had
no opportunity to judge the credibility of that testimony.
Only by hearing all of the testimony could the jury on
remand have effectively evaluated (1) whether to award
any punitive damages, and (2) if so, how reprehensible
Conrail’s conduct was in light of the evidence adduced at
the original trial that Wightman could have avoided the
accident. Evidence of Wightman’s contributory negli-
gence was not sufficient to excuse Conrail from compen-
satory liability, but it may well have been sufficient to
excuse Conrail from a punitive damages award. This
33a
grossly one-sided presentation denied Conrail any due
process or fundamental fairness in this trial.
For the reasons above, I believe that the verdict was
sorely tainted. I would reverse and remand on the evi-
dentiary and excessiveness issues for a full and fair
retrial.
34a
Darlene M. Wightman Adm«x. of the Estate of Michelle
L. Wightman, Deceased, et al., Appellees/Cross-
Appellants v. Consolidated Rail Corporation, et al.,
Appellants/Cross-Appellees
Court of Appeals No. E-97-001
COURT OF APPEALS OF OHIO,
SIXTH APPELLATE DISTRICT, ERIE COUNTY
September 30, 1997, Decided
OPINION AND JUDGMENT ENTRY
SHERCK, J. This appeal and cross-appeal comes to us
from an award of $15,000,000 in punitive damages against |
a railroad found culpable of “actual malice”, following a
train/automobile collision. Because we conclude that the
trial court’s evidentiary rulings were correct and the
damages awarded not excessive, we affirm its decision.
We similarly affirm the trial court on the issues raised by
appellees /cross-appellants.
Shortly before midnight on February 18, 1989, a west-
bound freight train (designated SEEL 7) owned by appel-
lant/cross-appellee (“appellant”) Consolidated Rail
Corporation, lost pressure in its air brakes near
Remington Avenue, Sandusky, Ohio. This equipment fail-
ure caused the train to stop approximately two hundred
feet east of the Remington Avenue road crossing. The
presence of the train so near the crossing triggered the
warning lights and gates at the crossing.
SEEL 7 was manned by a three-man crew - an engi-
neer, conductor and brakeman. The engineer remained in
the locomotive cab and communicated the train’s prob-
lem by radio to a Toledo dispatcher. The conductor and
35a
brakeman began to “walk” the mile-long train for the
purpose of finding and repairing the air leak. In the
meantime, traffic on Remington Avenue began to maneu-
ver around the gates and over the two sets of tracks.
Shortly before midnight, a Sandusky police officer came
upon the scene. The officer requested his dispatcher to
advise the railroad of the situation. He also issued warn-
ings to two or three drivers he observed go around the
gates. The officer then left the scene to stop another
motorist.
At 12:05 a.m., sixteen-year-old Michelle Wightman,
driving her mother’s 1985 Ford, came upon the crossing
and attempted to maneuver around the gate and cross the
tracks. As she inched across the tracks, Michelle’s car was
struck by an eastbound fast freight train on the parallel
track. Michelle and her passenger, sixteen-year-old Karrie
Wieber, were killed.
Appellee/cross-appellant (“appellee”), Darlene M.
Wightman, Michelle’s mother, instituted a suit on behalf
of herself and as the administrator of Michelle’s estate.
The suit contained two causes of action: a wrongful death
claim and appellee’s personal property claim arising from
the destruction of her car. Both claims were premised on
appellant’s negligence which appellee alleged constituted
intentional, wanton and reckless misconduct. The suit
sought compensatory and punitive damages.
_ In October 1990, the matter proceeded to jury trial.
At trial, appellee’s presentation focused on the factors
contributing to the collision. Railroad safety expert Dr.
William Berg testified that the cause of the accident was
the combination of restricted visibility (due to SEEL 7’s
36a
close proximity to the crossing) and the loss of “cred-
ibility” (due to the inordinately long activation of the
railroad gates and flashing lights without the arrival of a
train). Appellee argued that the railroad had near certain
knowledge that under these circumstances someone
would cross the tracks. At the same time, railroad
employees knew that a fast freight was coming on the
obscured track. With this knowledge, appellee contended,
the railroad could have instituted any number of simple,
cost free measures which would have prevented the colli-
sion and the resulting death of two people. According to
appellee, the railroad’s failure to take any measure to
prevent the collision constituted actual malice — a con-
scious disregard for the safety of persons in circum-
stances in which a great probability of substantial harm
existed. Appellant took the position that Michelle Wight-
man was herself negligent per se for violating a state law
prohibiting crossing railroad tracks when warning signals
are activated.
The jury returned a verdict for the plaintiff. In
response to a series of interrogatories, the jury set dam-
ages on the wrongful death claim at $1,000,000, appor-
tioned comparative negligence at sixty percent for
appellant and forty percent for Michelle Wightman, but
concluded that appellant was guilty of actual malice
which was a proximate cause of the collision. The jury
also found that appellant should be liable for punitive
damages.
Following the verdict, the trial court, in conformity
with former R.C. 2315.21(C)(2), began bench proceedings
on the punitive damages issue. However, in mid-Novem-
ber 1990, appellant filed an affidavit of prejudice against
37a
the trial judge which it followed with several motions
seeking to set aside the verdict. The Supreme Court of
Ohio rejected appellant’s attempt to disqualify the trial
judge. Nonetheless, it was not until late summer 1991 that
the damages hearing was completed. More motions fol-
lowed. Finally, the trial court rejected appellant's further
attempts to set aside the jury’s decision and, on February
11, 1992, entered judgment on the verdict. The court
awarded the compensatory damages, but refused to grant
any punitive damages. The court did not rule on appel-
lee’s motion for post-verdict interest on the compensatory
damages or her motion for attorney fees.
Pursuant to a trial court's certification that there was
no just reason for delay, the February 11 judgment was
appealed to us. We affirmed the jury’s verdict, but on
appellee’s cross-appeal concluded that the trial court
erred when it failed to award any punitive damages. We
rejected on cross-appeal appellee’s constitutional chal-
lenge to that portion of R.C. 2315.21, which reserved to
the trial judge the consideration of the amount of puni-
tive damages. The matter was then remanded to the trial
court for consideration of punitive damages. Wightman v.
Consolidated Rail Corp. (1994), 94 Ohio App. 3d 389, 640
N.E.2d 1160.
After remand, the Supreme Court declared R.C.
2315.21(C)(2), which reserved consideration of punitive
damages to the trial judge, unconstitutional. Zoppo v.
Homestead Ins. Co. (1994), 71 Ohio St.3d 552, 644 N.E.2d
397, syllabus. The result of that decision sets the unique
procedural posture for the present appeal.
38a
The combination of the Supreme Court’s nullification
of R.C. 2315.21(C)(2) and our remand to the trial court to
set punitive damages meant the original jury would need
to be reassembled or a new jury empaneled to determine
the amount of punitive damages. Because of the extended
period between the original trial and the remand, the
second option was chosen.
_ Prior to trial, the court granted appellee’s motions in
limine barring reference to the prior trial judge’s refusal
to award punitive damages, the award of compensatory
damages in the first trial, application of a federal railway
administrative rule enacted after the accident and evi-
dence of Michelle Wightman’s alcohol consumption or
allegations that appellee furnished alcoholic beverages to
her daughter. The trial court also granted appellant’s
motion to exclude any reference to the fact that a portion
of the award might go to a charitable foundation.! The
court also limited discussion of other railroad crossing
accidents unless such were “substantially similar” to the
one at issue.
1 In the period between the remand and the punitive
damages trial, the estate pledged a portion of any punitive
damages received to appellee/cross-appellant Michelle
Wightman Charitable Foundation. The foundation was
permitted to join the proceeding as a party but the trial court
granted a motion in limine denying any mention to the jury of
the foundation or any assignment of proceeds. The foundation
is an appellee/cross-appellant in this appeal. For purposes of
this appeal we shall reserve the appellation “appellee” to
Darlene Wightman unless making specific reference to the
foundation.
39a
The matter was then retried before a second jury.
Testimony at the second trial, to a great extent, mirrored
that in the first. Dr. Berg again testified that the position
of SEEL 7 near the crossing blocked the line of sight for
any motorist looking for westbound trains and triggered
traffic control devices which became ineffective as time
passed. Berg testified that of the thousands of railroad
crossing accidents which he had studied, a large number
occurred in circumstances substantially similar to these.
He also testified that it would have been relatively simple
and cost free for the railroad to remedy this dangerous
situation. According to Berg, the railroad could have
insisted that the train crew flag the crossing, slowed the
fast moving freight, or moved the engine of the stopped
train across the crossing when it was known a fast freight
train was due.
On submission, the jury returned a verdict awarding
appellee $25,000,000 in punitive damages. Subsequent to
the verdict, the trial court granted appellant a remittitur.
Although specifically refusing to find the $25,000,000
award excessive, the court reduced the amount to
$15,000,000; appellee accepted this reduction. The trial
court also denied appellee’s motion for attorney fees and
post verdict interest on the compensatory damages
award; the court further granted appellant relief from
interest on the punitive award.
Appellant now brings this appeal setting forth the
following three assignments of error:
“I. The trial court violated Conrail’s Due
Process rights by prohibiting Conrail from intro-
ducing its evidence regarding the circumstances
eT nn re
40a
of the accident and allowing only plaintiff to
introduce such evidence.
“II. The trial court erred in admitting
plaintiff’s expert testimony because the expert
did not base his opinions on personal knowl-
edge or on the evidence admitted at trial and
did not disclose the facts that supported his
opinions, in violation of Rules 703 and 705 of the
Ohio Rules of Evidence.
“III. The trial court violated Conrail’s
rights under Ohio common law and the Due
Process Clause of the United States Constitution
by refusing to overturn or further remit the
punitive damages award because that award,
even after remittitur, is grossly excessive in light
of Conrail’s conduct and is 6,250 times greater
than the compensatory damages award.”
Appellee Darlene Wightman cross-appeals raising
the following four assignments of error:
“I. THE TRIAL COURT ERRED BY NOT
MAKING ITS REMITTITUR EXPRESSLY CON-
DITIONAL ON ACCEPTANCE BY BOTH PAR-
TIES AS AUTHORIZED BY THE SO-CALLED
‘WISCONSIN RULE,’ WHICH THIS COURT
FOR THE PUBLIC GOOD SHOULD ADOPT AS
THE LAW OF OHIO.
“Il. THE TRIAL COURT ERRED BY
GRANTING CONRAIL’S REQUEST FOR
RELIEF FROM INTEREST ON THE PUNITIVE
AWARD.
“Til. IT WAS ERROR FOR THE TRIAL
COURT TO DENY INTEREST ON THE COM-
PENSATORY AWARD TO THE WIGHTMAN
4la
ESTATE, COMPUTED FROM THE DATE OF
THE LIABILITY VERDICT.
“IV. THE TRIAL COURT ERRED IN
DENYING PLAINTIFF’S MOTION FOR ATTOR-
NEY FEES.”
Appellee Michelle Wightman Charitable Foundation
has filed a brief in support of Darlene Wightman’s appeal
and an independent cross-appeal in which it raises the
following single assignment of error:
“The Trial Court erred by remitting the jury’s puni-
tive damage award because the Trial Court specifically
found that the jury award was not excessive.”
I.
In its first assignment of error, appellant maintains
that the trial court's decision to bar reference to certain
matters rendered it defenseless. The court granted plain-
tiff’s motion in limine to block reference to the fact that
the first trial had resulted in a wrongful death award, but
no punitive damages. The court also prevented the intro-
duction of evidence that appellee’s decedent had con-
sumed a small quantity of alcohol prior to the collision
and expert testimony concerning the effects such alcohol
might have had on a driver.
Relevant evidence is generally admissible, irrelevant
evidence is not. Evid.R. 402. Relevant evidence is defined
as that evidence having a tendency to make the deter-
mination of a fact of consequence more or less probable
than it would be without the evidence. Evid.R. 401. Even
evidence which is relevant is inadmissible if its probative
value is substantially outweighed by the danger of unfair
42a
prejudice, confusion of the issues or misleading the jury.
Evid.R. 403(A). The decision of whether or not to admit
evidence rests in the sound discretion of the court and
will not be disturbed absent an abuse of that discretion.
Huffman v. Hair Surgeon, Inc. (1985), 19 Ohio St. 3d 83, 87,
482 N.E.2d 1248. An “abuse of discretion” is more than an
error of law or of judgment, the term connotes an attitude
that is unreasonable, arbitrary or unconscionable. Berk v.
Matthews (1990), 53 Ohio St. 3d 161, 168-169, 559 N.E.2d
1301.
When we initially reviewed this case, we affirmed the
first jury’s verdict in its entirety, including its conclusion
that appellant’s disregard for the safety of others consti-
tuted “actual malice.” Wightman v. Consolidated Rail Corp.
(1994), at 408. We also noted that a finding of actual
malice negates any role that comparative or contributory
negligence plays in reducing or defeating the recovery of
damages. Id. at 407. The only issue to be decided on
remand was the amount of punitive damages to which
appellee would be entitled. Id. at 409. Consequently, the
amount of compensatory damages awarded in the first
trial and the fact that the first trial judge failed to award
punitive damages were absolutely irrelevant to any issue
of consequence in the punitive damages trial.
The presence of a smali quantity of alcohol in the
teenage driver’s blood may have had some probative
value in a comparative or contributory negligence setting.
However, those issues were settled in the first trial. Even
assuming blood alcohol evidence was in any way rele-
vant to the punitive damages issue, it was certainly not
an abuse of discretion for the trial court to exclude such
testimony pursuant to Evid.R. 403(A).
43a
Accordingly, appellant's first assignment of error i:
found not well-taken.
II.
In its second assignment of error, appellant contends
that the trial court erred in admitting the testimony of
plaintiffs’ expert, Dr. Berg. Specifically, appellant objects
to Berg’s statement that of the approximately one thou-
sand vehicle-train collisions annually, a large number
occurred in situations substantially similar to this one.
Again, decisions as to the admission of or exclusion
of evidence are within the sound discretion of the court.
Appellant's position is that Evid.R. 703 and Evid.R. 705
prohibit any expert opinion unless based on the expert’s
own specific observations or evidence admitted at trial.
This position is specious in two respects. First, Dr. Berg’s
credentials reveal that he has a Ph.D. in civil engineering
and has spent decades studying, among other things, rail
crossing collisions. In addition, Berg testified that he
personally investigated numerous vehicle-train collisions.
If appellant needed more specifics than this, it was free to
inquire on cross-examination. Second, Evid.R. 703 pro-
hibits expert testimony based on unadmitted hearsay or
unobserved data only with respect to the specific issues
in the case at bar. According to Professor Giannelli,
“In one sense, * * * most expert witness
testimony is based, in part, on hearsay. The
- extrajudicial statements of colleagues, textwri-
ters, and teachers are all used by experts in
forming opinions. See 2 Wigmore. Evidence
§ 665b (Chadbourn rev 1979). Rule 703 does not
prohibit this use of hearsay information. This
44a
use of texts and lectures contributes to the
expert’s qualifications. Rule 703 is concerned
only with the ‘facts and data in the particular
case.’ Those facts must be admitted in evidence.
According to the court in Bluebird Baking Co. v.
McCarthy, 3 Ohio Op. 490, 19 Ohio L. Abs. 466,
470, 36 N.E.2d 801 (App, Franklin 1935), an
expert’s qualifications and knowledge ‘may be
based on personal experience or upon reading
from standard works. It generally is based upon
both. * * * ” Giannelli, Ohio Evidence Manual
(1991), § 703.05 at 117.
For Dr. Berg to testify to the specific reasons Michelle
Wightman’s car was struck by a train, the circumstances
surrounding that collision must be admitted into evi-
dence. However, for Dr. Berg to testify to a broad general
pattern of collisions, many of which were substantially
similar to the Wightman crash, no such foundation is
required. Again, if appellant was not pleased with the
expert's testimony it was free to cross-examine or present
contrary opinion from its own experts. Accordingly,
appellant’s second assignment of error is found not well-
taken.
Il.
Appellant's remaining assignment of error concerns
the amount of punitive damages awarded which appel-
lant characterizes as being “grossly excessive.” Noting
that a wrongful death cannot form the basis for punitive
damages, see, Rubeck v. Huffman (1978), 54 Ohio St. 2d 20,
374 N.E.2d 411, appellant argues that the only foundation
45a
for the $15,000,000 award was the $2,400 value of appel-
lee’s car. This, appellant computes, is a ratio of six thou-
sand two hundred fifty to one, substantially greater than
the average ratio of punitives to damages in Ohio cases
and even greater than the five hundred to one ratio found
constitutionally offensive in BMW of North America, Inc. v.
Gore (1996), 571 U.S. __, 134 L. Ed. 2d 809, 116 S. Ct.
1589.
The trial court’s detailed and perceptive analysis of
this issue is contained in its order of December 5, 1996, in
which it granted appellee’s motion for remittitur.
(Attached as Appendix A.) Although we reserve discus-
sion of the trial court’s ultimate decision to grant the
remittitur until our consideration of appellee’s cross-
appeal, we otherwise approve and adopt the decision of
the trial court (pages 8 through 19) on this issue as our
own.
Accordingly, appellant's third assignment of error is
not well-taken.
IV.
Appellee Darlene Wightman’s first cross-assignment
of error and appellee Wightman Foundation’s sole assign-
ment of error contest the trial court's grant of appellant’s
motion for remittitur, contending it could not have prop-
erly granted such a motion absent a finding that the
award was excessive. Both of these Parties agreed to
accept the remittitur. It has long been held that a judg-
ment based on an agreement of the parties renders imma-
terial erroneous rulings of the court. Jackson v. Jackson
(1865), 16 Ohio St. 163; Sanitary Commercial Services, Inc. v.
46a
Shank (1991), 57 Ohio St. 3d 178, 181, 566 N.E.2d 1215.
More specifically, Ohio common law provides that a party
who accepts a remittitur cannot change the remittitur
even if the opposing party institutes an appeal. See Scioto
Memorial Hosp. Assoc. v. Price Waterhouse (1996), 74 Ohio
St. 3d 474, 478, 659 N.E.2d 1268, Iron Railroad Co. v.
Mowery (1881), 36 Ohio St. 418, paragraph three of the
syllabus.
Nevertheless, appellee urges us to adopt the “Wis-
consin rule” which states that a defendant, who benefits
from a remittitur and appeals, faces the risk of having the
original verdict reinstated. Plesko v. Milwaukee (1963), 19
Wis. 2d 210, 220-221, 120 N.W.2d 130. While we may
concur with appellee’s reasoning on this issue, we are
bound to follow the rule of law set down by the Supreme
Court of Ohio. Kruse v. State (1972), 31 Ohio St. 2d 132,
148, 285 N.E.2d 736, Corrigan, J. concurring, overruled on
other grounds (1981), 67 Ohio St. 2d 31, 426 N.E.2d 784.
Therefore, appellee’s arguments are best directed to that
court. Accordingly, appellee Wightman’s first cross-
assignment of error and appellee Wightman Foundation
sole assignment of error are not well-taken.
V.
Appellee Darlene Wightman’s remaining assign-
ments of error concern the trial court’s refusal to grant
post-judgment interest on the punitive damage award,
impose prejudgment interest on the wrongful death
award for the nearly two year period between the verdict
and the judgment on the verdict, and grant appellee
reasonable attorney fees.
47a
With respect to the denial of post-judgment interest
on the punitive damages, the trial court’s decision on this
issue came as part of the calculations it employed in
determining the remittitur. As discussed above, appellee
accepted this remittitur and cannot now be heard to
complain of its terms. Accordingly, appellee Darlene Wig-
htman’s second cross-assignment of error is found not
well-taken.
In her third cross-assignment of error, appellee Dar-
lene Wightman seeks to meld common law prejudgment
interest with the statute allowing for prejudgment inter-
est when there is bad faith. As noted in Moskovitz v. Mt.
Sinai Md. Ctr. (1994), 69 Ohio St. 3d 638, 656-657, 635
N.E.2d 331, at common law the factfinder was permitted
to include in its tort award an amount sufficient to com-
pensate a victim for interest on damages actually sus-
tained in order to make the plaintiff whole. Id. citing
Hogg v. Zanesville Canal & Mfg. Co. (1832), 5 Ohio 410, 424.
Moreover,
““** * if reparation for the injury is delayed for
a long time by the wrong-doer, the injured party
can not be made whole unless the damages
awarded include compensation, in the nature of
interest, for withholding the reparation which
ought to have been promptly made.’ ” Id. quot-
ing Lawrence Railroad Co. v. Cobb (1878), 35 Ohio
St. 94, 98-99,
Statutory prejudgment interest is authorized by R.C.
1343.03(C) which permits interest to be awarded from the
date a cause of action accrued if, following a post-verdict
hearing, the court determines that a party against whom
a verdict is returned failed to make a good faith effort to
48a
settle the case. The determination of whether there was a
lack of good faith by a party is vested in the sound
discretion of the court. Moskovitz at 658.
The question of whether common law prejudgment
interest should be awarded appears to be an issue for
submission to and resolution by the finder of fact. See
Moskovitz at 656-657 and cases cited therein. No request
for such a submission to either Wightman jury was made;
therefore, no such consideration was undertaken. Appel-
lee is consequently precluded from common law prejudg-
ment interest.
Assuming for the sake of argument that the phrase
“** * good faith effort to settle the case * * * ” used in
R.C. 1343.03(C) may be construed to apply to dilatory
tactics employed by a party between a verdict and the
issuance of a judgment, this does not alter the fact that
the trial court refused to find bad faith. Viewing the
totality of the circumstances, we cannot at this stage
conclude that the trial court’s determination was an
abuse of discretion.
Concerning attorney fees, this again is an issue which
rests in the sound discretion of the court. Digital and
Analog Corp. v. Norton Supply Co. (1992), 63 Ohio St.3d
657, 664, 590 N.E.2d 737.
“Although the general rule is that reasonable
attorney fees may be awarded in an action where
punitive damages have also been awarded, a trial
court may decline to award any amount of attor-
ney fees if the defendant upon whom such fees
will be imposed successfully rebuts the presump-
tion that reasonable fees should be awarded.
Thus, a trial court may consider whether the
punitive damages awarded are adequate both to
compensate the plaintiff for his attorney fees and
49a
to fulfill the punitive and deterrent urpose of
the exemplary damages awarded. if the court
concludes that the punitive damages are suffi-
cient to fulfill those purposes without the imposi-
tion of attorney fees, the court may decline to
award such fees, even if a jury has determined
that such fees should be awarded.” Id. at 664-665
(Citations omitted.)
A determination by the trial court that a $15,000,000
punitive award provided a sufficient Punitive and deter-
rent purpose would be within the court’s discretion.
Accordingly, appellee Darlene Wightman’s third and
fourth cross-assignments of error are found not well-taken.
On consideration whereof, the court finds substantial
justice has been done the parties complaining, and the
judgment of the Erie County Court of Common Pleas is
affirmed. It is ordered that appellant and appellee share
equally the court costs of this appeal.2
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the
mandate pursuant to App.R. 27. See, also, 6th
Dist.Loc.App.R. 4, amended 7/ 1/92.
Peter M. Handwork, J.
George M. Glasser, J.
James R. Sherck, J.
CONCUR.
? The parties have file numerous motions following oral
argument, all of which are, hereby, overruled.
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50a
DARLENE M. WIGHTMAN, Admx. of the Estate of
Michelle L. Wightman, Deceased, et al., Plaintiffs,
-vs- CONSOLIDATED RAIL CORPORATION, et al.,
Defendants.
CASE NO. 89-CV-416
STATE OF OHIO, COURT OF COMMON PLEAS,
ERIE COUNTY
December 5, 1996, Filed
ORDER
On May 23, 1996, a jury returned a verdict in favor of
the plaintiff, Darlene M. Wightman, against defendant,
Consolidated Rail Corporation (“Conrail”), in the amount
of $25,002,400.1 On May 24, 1996, the Court entered judg-
ment for that amount “with interest and costs taxed
against the defendant.”
Defendant moves for remittitur “in an amount less
than (sic) $1,200,000.00” on the grounds that the verdict is
excessive and in violation of due process under the crite-
ria announced in BMW v. Gore, 517 U.S. __, 134 L. Ed. 2d
809, 116 S. Ct. 1589 (1996). In the alternative, defendant
seeks a new trial on the grounds that the verdict is
tainted with passion or prejudice and, additionally, that it
was denied a fair trial due to evidentiary errors. Defen-
dant also asks the Court to amend the judgment entry to
“delete the provision for interest on the basis that the
award violates the Excessive Fines Clauses of the United
States Constitution and the Ohio Constitution.”
1 The parties stipulated that Darlene Wightman had
suffered $2,400 in property damage.
5la
The Court has reviewed the extensive written sub-
missions of both parties and has carefully considered the
oral arguments of counsel presented on July 18, 1996. For
the reasons that follow, the Court grants defendant’s
motion for remittitur; denies defendant's motion for a
new trial; and grants defendant’s motion to amend the
judgment of May 24, 1996 to delete the provision requir-
ing defendant to pay interest on the judgment.
On the evening of February 18, 1989, a Conrail train,
SEEL-7, came to a Stop near Remington Avenue in the
City of Sandusky, Ohio, because of a broken air hose.
Before stopping, the train activated the gates and lights at
the crossing. Shortly after midnight, while SEEL-7
remained standing approximately 200 feet from the cross-
ing, another westbound train, TV9, traveling approxi-
mately 60 mph on the adjacent mainline track, struck a
passenger car owned by Darlene Wightman and operated
by her teen-age daughter, Michelle Wightman. Michelle
and her friend, Karrie Wieber, were killed instantly in the
crash. Witnesses estimate that SEEL-7 was stopped
between 40 minutes to an hour prior to the collision.
Darlene Wightman, as Administratrix of her daugh-
ter’s estate and individually as the owner of the car, sued
Conrail for compensatory and punitive damages. On
October 30, 1990, a jury found Conrail to be 60% at fault
and awarded compensatory damages to the Estate of
Michelle Wightman in the amount of $1,000,000. The jury
also returned the following verdicts in response to inter-
rogatories:
a
52a
Interrogatory No. 7
Do you find by clear and convincing evi-
dence, that defendant, Conrail, authorized, par-
ticipated in, or ratified actions or omissions of
an agent or servant that demonstrated ‘malice’,
and, if so, that such malice was, by clear and
convincing evidence a proximate cause of the
accident?
Answer: Yes
Interrogatory No. 8
Do you find, by clear and convincing evidence,
that defendant, Conrail, should be liable for
punitive damages?
Answer: Yes
At the time of the trial in 1990, Ohio Rev. Code Ann.
§ 2315.21 (Page’s 1995) provided that juries were to
decide the right to punitive damages and that the amount
of punitive damages was to be determined by the Court
in a separate hearing. The punitive damages hearing to
the Court in this case was held on August 9, 1991.
Both parties filed numerous post-trial motions. On
November 10, 1992, the trial court entered judgment in
favor of the Estate of Michelle Wightman for $1,000,000
on the basis of Schellhouse v. Norfolk & Western Ry. Co.
(1991), 61 Ohio St. 3d 520, 575 N.E.2d 453. The Court
awarded no punitive damages and did not rule on plain-
tiffs’ motions for attorneys fees and prejudgment interest.
Conrail appealed the compensatory award to the Wight-
man estate and the Wightmans cross-appealed the trial
court’s failure to award punitive damages, attorneys fees
and pre-judgment interest.
53a
The Court of Appeals affirmed the compensatory
award, reversed the trial court's failure to award punitive
damages, and remanded the case “to the trial court for
determination as to the amount of punitive damages to
which appellee, Darlene Wightman, is entitled in accor-
dance with this opinion... . ” The Court also remanded
the matter to the trial court for rulings on plaintiffs’
motions for attorneys fees and pre-judgment interest.
Wightman at 409.
On September 14, 1994, the Supreme Court of Ohio
declined jurisdiction to hear the case.
While the unresolved issues were pending in this
Court, the Supreme Court of Ohio held that Ohio Rev.
Code Ann. § 2315.21 (C)(2) violates the right to trial by
jury under Section V, Article | of the Ohio Constitution.
Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St. 3d 552, 644
N.E.2d 397. Based on Zoppo, plaintiffs requested the
Court to set the matter for jury trial on the issue of
punitive damages only.
On October 31, 1995, the Court ruled that the plain-
tiffs were not entitled to attorneys fees or pre-judgment
interest.
Before addressing defendant's arguments in support
of remittitur, a brief review of Ohio law governing this
Process is in order.
I. THE LAW GOVERNING REMITTITUR
Although Civil Rule 59 does not explicitly authorize
courts to remit part of a damage award, remittitur has
long been recognized in Ohio jurisprudence and derives
54a
from the fact that the authority to order a new trial in the
interest of justice is within the court’s inherent power.
Chester Park Co. v. Schulte (1929), 120 Ohio St. 273, 278,
285, 166 N. E. 186; Redman v. Price Bros. Co., 27 Ohio N.P.
(N.S.) 287. The principles governing remittitur were first
clarified by the Ohio Supreme Court in Chester Park, supra
as follows:
The subject of reduction of verdicts and
judgments in actions for liquidated damages is
coming before courts of review with ever-
increasing frequency. It is therefore time, and
high time, that this court should lay down some
principles and declare some policies for future
guidance. ..:
1. In an action for unliquidated damages,
neither the trial court nor any reviewing court
has the power to reduce the verdict of a jury or
to render judgment for a lesser amount without
the consent to such reduction of the party in
whose favor the verdict was rendered.
2. If a trial court in an action for unliqui-
dated damages finds that the verdict is exces-
sive, and that it was rendered under the
influence of passion or prejudice, it has no alter-
native except to set it aside and grant a new
trial.
3. Ifa verdict in an action for unliquidated
damages is in the opinion of the trial court
excessive, but not appearing to be influenced by
passion or prejudice, the court may with the
assent of the plaintiff reduce the verdict by
remittitur to any amount supported by the evi-
dence... .
Id. at 289-90 (Emphasis added).
55a
Under Chester Park, a trial court, when presented
with a motion to remit, must consider: (1) whether the
jury’s award was tainted with Passion or prejudice, and
(2) whether the verdict, as it stands or as reduced by
remittitur, is supported by the evidence. Using this
framework, the Court will first consider whether this
jury’s verdict was tainted with passion or prejudice.
II. CRITERIA GOVERNING THE DETERMINATION
OF “PASSION OR PREJUDICE”
Where a trial court determines that a jury verdict is
the product of Passion or prejudice, the verdict is null
and void and the Court is required to order a new trial.
90 Ohio Jur. 3d, Trial, § 643. This is true whether the
award is excessive or inadequate. Although some author-
ities hold that the size of a verdict may furnish a “suspi-
cion” of passion or Prejudice, size alone is not conclusive
Proof of passion or prejudice. Arkansas Valley Land &
Cattle Co. v. Mann, 130 U.S. 69, 9S. Ct. 458, 32 L. Ed. 854;
Fromson & Davis Co. v. Reider (1934), 127 Ohio St. 564, 189
N.E. 851; Pearson v, Cleveland Acceptance Corp. (1969), 17
Ohio App. 2d 239, 246 N.E.2d 602; Gates v. Strong (1966),
14 Ohio App. 2d 121, 237 N.E.2d 161. Only where the size
of the verdict has been held to be so out of Proportion to
the damage done as to “shock all sense of proportion” or
“shock all reasonable sensibilities,” have courts found
that the size of the verdict justifies setting it aside. Spicer
v. Armco Steel Corp. (1974), 68 Ohio Op. 2d 314, 322 N.E.2d
279; Duren v. Suburban Community Hosp., 24 Ohio Misc. 2d
25, 482 N.E.2d 1358 (Ohio Com. PI. 1985).
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56a
Defendant argues that the size of the jury’s award
suggests that it “was influenced by the fact that Conrail is
a very large, out of state corporation” and by the fact that
plaintiffs’ counsel argued that the jury should consider
Conrail’s financial resources in determining the damages
to be assessed. The Court finds this argument to be
without merit.
As noted by the Court of Appeals, one of the factors
to be properly considered in determining the amount of
punitive damages under Ohio law is the financial condi-
tion of the defendant. Wightman at 408. Since the manifest
purpose in allowing a jury to consider defendant's finan-
cial worth is to assist the jury in determining the amount
necessary to punish and deter the offending conduct,
there is nothing improper, per se, in suggesting that a jury
should consider a defendant’s financial condition in
determining the amount of money necessary to effectuate
the purposes of this remedy. The Court, therefore, finds
that the argument of plaintiffs’ counsel in this case was
proper and that the jury’s verdict was not the result of
passion or prejudice engendered either by the evidence of
defendant’s financial condition or by the manner in
which plaintiffs’ counsel incorporated evidence of defen-
dant’s financial condition into his final argument.
Accordingly, defendant’s motion for a new trial on this
ground is denied.
Having decided that the punitive damage verdict is
not the product of passion or prejudice, the Court must
now turn to the second issue required by Chester Park,
namely, whether the damages awarded are excessive in
the opinion of the trial court.
57a
III. STANDARDS FOR DETERMINING EXCESSIVE-
NESS
Defendant contends that the punitive award is
“grossly excessive” and asks this Court to remit the ver-
dict to an amount less than $1,200,000. Defendant argues
that, since the actual damages here are $2,400 and since
the Court in Gore found a ratio of punitive to actual
damages of 500 to 1 to be excessive, this Court should
“order a remittitur to an amount under $1,200,000 mil-
lion, consistent with the decision in Gore.” This conten-
tion will be considered, firstly, under the standards for
excessiveness embodied in Ohio law governing punitive
damages. Thereafter, the Court will consider whether the
verdict is excessive in light of the United States Supreme
Court’s constitutional analysis in Gore.
a. Excessiveness under Ohio law
Where a trial court determines that the size of a
verdict is not warranted by the evidence, it may, with the
consent of the plaintiff, reduce the verdict to an amount
justified by the evidence. Larrissey v. Norwalk Truck Lines
(1951), 155 Ohio St. 207, 219; 98 N.E.2d 419, 426; Shoe-
maker v. Crawford (1991), 78 Ohio App. 3d 53, 65, 603
N.E.2d 1114. There is no simple mathematical formula to
be applied in determining when remittitur is proper. The
court's essential role is to determine whether a verdict is
supported by the weight of the evidence.
In deciding whether a verdict is supported by the
evidence, trial courts are given substantial deference and
wide latitude. Unlike the standard for determining
58a
whether or not to direct a verdict, trial courts are permit-
ted in this context to assess the credibility of witnesses
and to weigh the evidence. In performing this function,
however, trial courts do not evaluate testimony and evi-
dence as if they are sitting as a trier-of-fact. Rather, a trial
court must ascertain whether the verdict, as rendered, is
contrary to the “manifest weight of the evidence” result-
ing in “manifest injustice.” Rohde v. Farmer (1970), 23 Ohio
St. 2d 82, 92-93, 262 N.E.2d 685.
In discussing the factors to be considered in assessing
punitive damages, the Court of Appeals stated in Wight-
man at 409 as follows:
Although the General Assembly has not set
forth the factors to be considered, our review of
cases dealing with awards of punitive damages
compels us to conclude that the amount of the
actual damages sustained should not be the sole
factor in determining the appropriate award of
punitive damages. Rather, a number of factors
must be considered by a trial court in making its
determination, while keeping in mind that the
purpose behind an award of punitive damages
is punishment of the guilty party and the deter-
rence of similar conduct in the future. See, gen-
erally, Villella v. Waiken Motors, Inc. (1989) 45
Ohio St. 3d 36, 543 N.E.2d 464; Calmes v. Good-
year Tire & Rubber Co., (1991), 61 Ohio St. 3d 470,
473, 575 N.E.2d 416, 419. These factors would
necessarily include, but are not limited to, the
nature of the conduct that resulted in the injury,
the financial condition of the defendant, the
amount necessary to deter future similar con-
duct, and prior or similar acts by the defendant,
as well as the amount of actual or compensatory
damages. Villella, supra; Spadafore v Blue Shield
59a
(1985), 21 Ohio App. 3d 201, 21 Ohio B. Rep.
215, 486 N.E.2d 1201; Estate of Morad v. Task
(Mar. 10, 1994), 1994 Ohio App. LEXIS 921,
Cuyahoga App. No. 64787, unreported, 1994 WL
78157.
Defendant’s motion requires this Court to apply these
criteria to the testimony and evidence before the Court.
At the outset, this Court feels compelled to say that
the record before it clearly justifies an award of substan-
tial punitive damages. As far as the nature of Conrail’s
conduct is concerned, this case may be without prece-
dent. When the SEEL-7 train came to a stop about 200 feet
from the Remington crossing, the crew members recog-
nized immediately that a dangerous condition existed.
They knew that other westbound trains traveling at
speeds up to 70 mph were due at the crossing. They could
see that the stopped train, standing on the northernmost
mainline track, severely obstructed the ability of south-
bound motorists to observe the presence of a westbound
train. They knew that the lights would continue to flash
and the gate arms would remain down so long as their
train remained stopped near the crossing. They also knew
that, because their train had activated the signal system
as it “was approaching Remington Avenue, there was no
way another train could cause the red lights to begin
flashing and the gate arms to come down so as to advise
motorists of an approaching train in hazardous proximity
to the crossing. They knew that, if they left the train to
find and repair the problem which had brought SEEL-7 to
a stop, their train might remain stopped for an hour or
longer before the problem could be corrected.
60a
The SEEL-7 crew also knew from experience that,
under these conditions, most motorists will proceed over
the crossing. According to one witness with 43 years of
railroad experience, 99% of all drivers are likely to pro-
ceed over the crossing in circumstances where the gate
arms have been activated for an unusual period of time.
The evidence showed that the conditions at Remington
Avenue created special dangers for motorists because of
the physical characteristics of the crossing.
Remington Avenue is a relatively narrow two-lane
street, with a sharp grade up to the tracks. On the north-
ern approach to the tracks, there is a steep ernbankment
immediately at the edge of the pavement. This makes it
difficult, even dangerous, for motorists to turn their vehi-
cles around once they reach close proximity to the cross-
ing. In this instance, it was Saturday night and the traffic
was heavy. Consequently, any motorist who actually
stopped short of the gates would complicate the driving
task of other motorists trying to proceed southwardly on
Remington Avenue. These conditions were plainly visible
to SEEL-7’s crew.
The evidence established that the position of SEEL-7
to the east of the crossing made it impossible for a driver
of a southbound car to observe the headlights of a west-
bound train on the adjacent track until the southbound
car was already at a point where it would probably be
struck by a fast moving train. It was entirely foreseeable,
therefore, that a motorist might get in a position where
there was not sufficient time to react and avoid a collision
once the approaching train became visible. This
extremely dangerous situation was recognized imme-
diately by Sandusky Police officer, Lonnie Newell, who
6la
happened on the scene about 20 minutes prior to the
collision. Officer Newell immediately reported the dan-
ger he observed to his dispatcher and, a few minutes
later, the dispatcher notified Newell that Conrail had
been advised of the danger at the crossing. After receiv-
ing this notification, Officer Newell left the crossing. Con-
rail introduced no evidence showing that it did anything
in response to the notification of danger by the Sandusky
Police Department. About 15 minutes later the Wightman
car was struck by a westbound train.
There was extensive testimony regarding measures
which Conrail could have used to guard against a cata-
strophic collision while gate arms are down while an
obstructing train remains stopped near a crossing. A flag-
man can be sent to the crossing to stop traffic when a
train is approaching. One or more of the engines of the
stopped train can be detached from the remainder of the
train and moved forward to block the crossing while
another train is approaching. Because there was continu-
ing radio communications between Conrail’s dispatcher
at Toledo and other trains, SEEL-7 could have notified the
dispatcher about the conditions at the crossing and the
dispatcher could have radioed approaching trains to slow
down their speed to accommodate existing conditions.
None of these measures was taken. Instead, a 60 mph
train, TV9, was allowed to approach the crossing without
any slackening of its speed and a collision occurred
which took the lives of two teen-age girls.
The record shows that SEEL-7’s conductor and head
brakeman, after recognizing and acknowledging the dan-
ger at the crossing, left the head end of the train to find
the problem which had caused SEEL-7 to come to a stop.
62a
Conrail argued in the second trial on punitive damages in
1996 that, in doing so, its crew was not following the
rules and, therefore, it did not actually ratify the acts of
its employees. This contention, firstly, ignores the finding
of the first jury in 1990 that “Conrail authorized, partici-
pated in, or ratified actions or omissions of an agent or
servant that demonstrated ‘malice’ ... (and) ... that
defendant, Conrail, should be liable for punitive damages
”
Secondly, Conrail’s position regarding ratification
ignores the fact that the decision of the original jury was
appealed and the Court of Appeals, after carefully con-
sidering Conrail’s argument that there was insufficient
evidence to justify an award of punitive damages, stated
as follows:
This court has thoroughly reviewed the argu-
ments of the parties concerning the jury charge,
the entire transcript of the proceedings before
the trial court and the applicable law . . . . Upon
consideration of the entire record of proceedings
in the trial court, we find that there was clear
and convincing evidence to support the jury’s
finding of actual malice on the part of appellant
CRC. 94 Ohio App. 3d at 400, 408.
Conrail’s contention, therefore, that there was no ratifica-
tion essentially constitutes an attempt to repudiate the
earlier decisions of the jury and the appellate court.
Thirdly, the testimony of Conrail’s own employees
does not support its argument. According to the conduc-
tor of SEEL-7, Conrail’s rules required him and the head
brakeman to find and correct the problem rather than be
ae
4
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s
%
63a
concerned about having a flagman at the crossing. In the
1996 trial, the conductor testified as follows:
Q: So you then felt that under your training
and the rules, you were supposed to go back
and find and fix the leak, rather than go up and
protect the crossing?
A: That was our only option.
Furthermore, according to Mr. Kevin Dailey, who is
the manager of Conrail’s operating rules for the Dearborn
division, Conrail’s operating rules dealing with the situa-
tion which existed at Remington have not changed since
the date of the collision. Dailey testified as follows:
Q: So what you’re really saying then, that in
this precise situation as far as your operating
rules on Conrail are concerned the rules were
the same in 1989 as they are today?
A: That’s correct.
This Court finds it troubling that Conrail, in the 1996
trial, essentially asked the jury to disregard the findings
of the earlier jury and the decision of the Court of
Appeals. This reflects a corporate attitude which clearly
fails to recognize that the extremely dangerous practice
which produced this catastrophic collision needs to be
changed. This Court is of the opinion, therefore, that an
award of substantial punitive damages is both warranted
by the evidence and necessary to accomplish the funda-
mental purpose of punitive damages, namely, to deter
future similar conduct. On the basis of this record, there-
fore, the Court is not prepared to say that a verdict of
$25,000,000 is excessive under Ohio law. This Court, how-
ever, does not believe that its responsibilities end there.
64a
The Court is concerned that if it simply overrules Con-
rail’s motion lengthy appeals will ensue with potentially
grave consequences for the safety of motorists using Con-
rail grade crossings. The Court, therefore, feels com-
pelled, as a matter of public safety, to do everything in its
power to insure that the purpose of punitive damages is
promptly effectuated and that Conrail promptly changes
the practice which produced this unnecessary tragedy.
After much reflection, the Court has concluded that the
most effective way to deter Conrail from continuing this
practice is to remit the jury’s verdict to an amount which
will sufficiently punish Conrail and create a positive
inducement to change its practices, rather than continue
to challenge the findings of the earlier jury and the Court
of Appeals. The Court is prepared, therefore, to enter an
order denying Conrail’s motion for a new trial on the
condition that plaintiffs consent in writing within ten
days of this order to a remittitur in the amount of
$10,000,000.
b. Excessiveness under the Due Process Clause
Having determined that a remittitur of $10,000,000 is
appropriate, the Court will now consider whether the
verdict, as remitted, violates due process under the prin-
ciples announced by the United States Supreme Court in
BMW v. Gore. The first step in this constitutional analysis
is to identify the state interests that a punitive award is
designed to serve.
2 Darlene Wightman has assigned a substantial part of her
punitive award to a charitable foundation which, on motion,
65a
(i) The state’s interest in punishing the conduct
States are accorded substantial flexibility in establish-
ing the amount of punitive damages necessary to vindi-
cate a state’s interest in punishing misconduct and
deterring its repetition. Nonetheless, an award of puni-
tive damages violates due Process when it is “grossly
excessive” in relation to that interest. In the instant case,
the specific state interest advanced by the award of puni-
tive damages is the protection of public safety at railroad
grade crossings. This is a legitimate state goal and is
different both in kind and degree from the economic
interests at stake in Gore.
The prevention of unnecessary deaths at railroad
grade crossings is clearly a state interest of supreme
importance. This Court, therefore, concludes that an
award of $15,000,000 in punitive damages under the facts
of this case supports and promotes the state’s legitimate
interest in punishing and deterring behavior that creates
a grave danger to public safety. Having identified this
interest, the Court must now consider whether the size of
the punitive award is “grossly excessive” according to the
three guideposts prescribed by the Supreme Court.
(ii) The reprehensibility of the conduct.
The first and most important of the three Gore criteria
is the degree of reprehensibility of the defendant’s con-
duct. It has long been accepted that the gravity of the
was permitted to intervene as a party in interest, but not to
Participate in the punitive damages trial.
66a
offense and the aggravating factors associated with the
conduct may properly be considered in determining the
size of a punitive award. Critical to the Gore court’s find-
ing of unconstitutional excessiveness was the fact that
“none of the aggravating factors associated with partic-
ularly reprehensible conduct is present.” The Court noted,
for example, that the BMW’s conduct “evinced no disre-
gard for the health and safety of others.” Gore at 4340.
By contrast with the defendant’s conduct in Gore,
Conrail’s conduct here evinces a conscious disregard for
public safety. The evidence supports the conclusion that
Conrail’s failure to take corrective action at railroad
grade crossings, when the warning devices are inopera-
tive or ineffectual, creates the likelihood of sudden, vio-
lent injury or death to passing motorists. Moreover, the
evidence shows that it is a long-standing Conrail practice.
Additionally, there was no evidence that BMW per-
sisted in its conduct after a court had adjudged that
conduct unlawful. By comparison, the jury here could
have concluded that Conrail has not substantially altered
its operating rules and procedures since the Wightman
collision. |
On these facts, therefore, a punitive award of
$15,000,000 is supported by the reprehensibility of Con-
rail’s wrongful conduct alone.
(iii) The ratio of the punitive award to the
actual injury.
The second guidepost considered in BMW v. Gore is
“whether there is a reasonable relationship between the
67a
punitive damages award and the harm likely to result from
the defendant's conduct as well as the harm that actually
has occurred.” Gore at 4341, quoting Pacific Mutual Life
Ins. v. Haslip, 499 U.S. 1, 21, 113 L. Ed. 2d 1, 1115. Ct. 1032
(1991). (Emphasis in original.) The Court makes it clear
that the proper analysis is to compare the size of the
award with the potential harm, not just the actual harm.
Where, as in the present case, the potential for grave
harm is great, “even low compensatory damages may
support a higher ratio than high compensatory damages.”
Gore at 4342.
As noted earlier, the differences between the poten-
tial for harm in Gore and the potential for harm associated
with Conrail’s conduct represents a difference in kind,
not just in degree. In Gore, the harm engendered by the
conduct was self-contained and apparent at the time the
conduct was executed; that is to say, the injury resulting
from the wrongful repainting of automobiles is limited to
the decrease in economic value. As the Supreme Court
observed, “there is no suggestion that Gore or any other
BMW purchaser was threatened with additional potential
harm.” Gore at 4342. In contrast, Conrail’s long-standing
Operating practice made it highly probable that serious
injury or death would occur and cause substantial harm.
Gore also rejects the notion “that the constitutional
line is marked by a simple mathematical formula, even
one that compares actual and potential damages to the
punitive award.” Gore at 4342, citing TXO Production
Corp. v. Alliance Resources Corp., 509 U.S. 443, 448, 125 L.
Ed. 2d 366, 113 S. Ct. 2 711 (1993). (Emphasis in Original.)
Conrail’s argument fails to recognize that Gore itself
68a
emphatically rejected the use of such a calculation, partic-
ularly when the wrongful conduct consciously disregards
public safety. It follows, therefore, that the Court must
reject Conrail’s suggestion that the Court apply a simple
mathematical formula to determine whether the verdict
in Wightman is unconstitutionally excessive.
(iv) Sanctions for comparable misconduct.
The final indicium of excessiveness described in Gore
is whether there is a wide disparity between the punitive
award and the civil and criminal sanctions the state
imposes on similar misconduct. If such a disparity exists,
a defendant would not be given fair notice of the poten-
tial punishment associated with the particular act of mis-
conduct and thus the punitive award could be
unconstitutionally excessive. The Court, however, finds
no such infirmity here.
Since it is apparent that the conduct at issue — the
failure to provide motorists with adequate warning of
approaching trains at multiple track crossings when gates
are down for an abnormal length of time while motorists’
ability to see approaching trains is obscured — could have
generated a civil damage award of several million dol-
lars. This might have been the outcome, for example, had
Michelle Wightman and Karrie Wieber, instead of being
instantly killed, been severely injured in the collision.
Therefore, this award does not violate this Gore criterion.
Furthermore, this Court believes that had the appro-
priate prosecuting authorities been made aware of all the
facts and circumstances surrounding this tragic and
unnecessary collision, those authorities would have been
69a
compelled to consider criminal prosecution, possibly for
involuntary manslaughter.
Finally, as noted by the Supreme Court in Gore, even
in cases where there is a disparity between punishments
for comparable conduct, a higher punitive award is justi-
fied where the defendant has a history of noncompliance,
since experience has Proved that the lower amount is
ineffectual as a deterrent. In this case, the plaintiff sub-
mitted sufficient credible evidence to show that the
defendant's operating procedures had been in place for
years prior to the Wightman collision, despite the fact
that Conrail has known for many years that these pro-
cedures create great danger that a catastrophic train/car
collision will occur.
The Court, therefore, concludes that a verdict of
$15,000,000 is not grossly excessive in light of the due
process analysis set
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